Chief Justice talks about the C word

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“Now let me tell you why I was right in Hamed v R.”

The C word is “constitution”.  Sorry.

On 10 August 2018 Chief Justice Dame Sian Elias gave Maxim Institute’s annual Sir John Graham Lecture.  Her Honour has given speeches in the past that have attracted controversy, and with less than a year to go in her tenure my main motivation for attending was hoping for Dame Sian to give the speech equivalent of the ending of Butch Cassidy and the Sundance Kid.

Alas, in that respect the speech did not contain anything truly controversial, although her Honour indicated she would not resile from earlier comments.  Early on she said that she had reviewed her 2009 Dame Shirley Smith address – the “Blameless Babes” speech – and on reflection while “talking about penal policy is one of those things that a sensible Chief Justice would avoid … everything I said in 2009 is what I would want to say today.”

So, no entry into the fray of politics.  The closest things came was a quote from TS Eliot that tradition “cannot be inherited, and if you want it, you must obtain it by great labour.”  By using that as a motif in the speech the Chief Justice got to repeat the words “great labour” several times to a room full of Maxim Institute types.  Fantastic!

Speaking of which, the Maxim Institute people were… strange.  References to God in their greetings, but with an intensity that tended towards the Scientological.  The speakers there rattled off abstract nouns like they were trying to name the Seven Dwarfs.  Maxim Institute, we were told, stands for freedom, justice, compassion, truth, dignity, Sneezy and Doc.  As for the audience that the event attracted, well, there was more privilege in the room than Part Two, Subpart Eight of the Evidence Act 2006.

The text of the address, and the video, will be publicly available soon, so it’s not my intention to rehearse it all.  I’ve put some soundbites to topics below,which mainly come from the Q + A.

The main theme was on the need for work (great labour) to preserve our unwritten constitution and the rule of law.  Her Honour attributed calls for a formalised written constitution as the product of people who feel our current constitution as not working for them.  Small changes to our constitution work like a cat’s cradle and risk pulling other parts of it out of shape.  A classic Elias-ism and one that underpins her judicial philosophy, I think – so many times her dissents are born of conservatism rather than radicalism.  The fact that she dissents masking a Canute-like stand.  Her speech last year on managerialism in criminal justice was good at revealing a lot of that.

She also spoke about the dignity of a hearing and drew on Jeremy Waldron’s work a lot.  It is incumbent on judges to bring their A-game to the Dog Control Act cases, in the same way they bring it to the cases that are constitutional moments.  Constitutional moments, she explained, are the hearings that judges would rather avoid given the risk of damage to the constitution at critical junctures.

I’ve been thinking a lot about the speech over the weekend and my lasting reaction is just how sad it is that mandatory retirement will mean that we lose the Chief Justice next March.  She has been in her role and heading the Supreme Court long since before I started studying law.  Her speech was lively and reflective and she seemed a long way from retirement by choice or necessity.  Her departure will be our loss.

Selected quotes (not made up)

The Chief Justice on:

The Foreshore and Seabed decision: It was “inevitable that it would take time for that case to be absorbed” but I would have thought “a little more time could have been taken for it to be absorbed”.  It was the type of case that as a judge you simply don’t want to have to decide and “if there was anywhere to hide, you would”.

The capacity for civic engagement/a personal attack on the author of this blog: Today, people’s “attention span for engagement seems Twitter-cised.”

The fact that 50% of Maori men born in 1988 have a criminal record: It’s “not something we can continue to live with”.

Whether a supreme, codified constitution is desirable: “I don’t think so, if we are prepared to understand our constitution and prepared to work at it.”

Sexism in law: “I thought we’d come a lot further”.  I’m “dismayed” at the recent stories.  It is “a cultural impediment that we need to face up to”.  The fact there aren’t more women in seniro positions is “something that bothers me a great deal”.  “I personally think it’s time for women to get really angry”.

The law having to come to grips with AI: “I’m retiring in March.”

The establishment of the Supreme Court: “It was overtime”. “It will be the work of generations”. “It gives us the opportunity to develop our own voice”.

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