The CJ and the CBA



The Criminal Bar Association conference was held at the University of Auckland Business School this weekend. I got a free ticket, so I’m not allowed to tell you the coffee was so-so and there was no free wifi. But I can tell you that, caffeine, internet, and the compromise of my independence aside, it was a well-run, well-curated conference that was a good time for this public-lawyer-by-nature who dreams of the occasional crime.

The conference had genuine News: the Minister of Justice announced that legislation to repeal three strikes would be introduced within a month, subject to Parliamentary business. There was also a Detective Inspector from the National Organised Crime Group warning everyone about money laundering while standing in the Fisher and Paykel Appliances Auditorium. Occasionally Robert Lithgow QC did his best Robert Lithgow QC impression.

One and a half days of conference was attended by 370 attentive lawyers plus one Wellington-based criminal practitioner a few seats away from me who spent most of Saturday working his way through Jared Savage’s Gangland, a copy of Private Eye, and every puzzle in this week’s Listener. Whoever signed his CPD verification form, you’ve been had.

And then late on Saturday afternoon the Chief Justice blew the doors off the place.

She spoke for about 20 minutes – she was sharing the hour long slot with Kós P and Thomas J, three Heads being better than one. The other two were good. The President was permitted a short victory lap for the Court of Appeal’s junior policy, then told everyone to make more filenotes. The Chief High Court Judge lamented problems with disclosure which, in front of the CBA, is the equivalent of passing round the Werther’s Originals at the rest home.

And the Chief Justice. There were several topics, including the role of the Supreme Court. But it’s the bit about the role of the Chief Justice which I think ought to be heard more widely. I didn’t record her words accurately enough to quote back to you at length now. There was an official recording, which might be made public. But the impression still resounds, despite being delivered in the typical Dame Helen matter-of-factness (that I haven’t found a way to parody in writing yet): the rule of law is core business for a Chief Justice. And her choice of expression took practical form. These are my vain ascriptions of motive to her words, but they matter: the description wasn’t “The Chief Justice is the head of the judiciary in New Zealand”. It was “I need to see what is going on in these kinds of areas because it’s my job”. She gave an example: she needs to know about whether prisoners lose their cell assignments if they come to court, in case that perversely incentivises non-appearances or pleas. The implication was clear: the CJ needs to know, in order to decide how the courts might respond – whether that’s by considering increasing or decreasing AVL, advocating for changes with other branches of government, or holding all hearings in Swedish if that had a chance at making a difference. If it touches on the practical administration of courts’ work and the rule of law then it’s her job.

Jargon offered a decorative ribbon; she was taking a “whole of courts” or system perspective. But it’s like trying to wrap a hockey stick as a Christmas present. You know what you’re going to get (and it’s also something the CJ can hit you with).

Then the payoff. Legal aid, a topic that had already had airings at the conference. As Fiona Guy Kidd QC had said earlier that day, “The reality is the hourly rates for legal aid have not increased in the entire time I’ve been doing legal aid work, since 2011.”

The CJ didn’t hold back. And this part, I did get the quote for:

I think our legal aid system is broken. It’s hard to imagine how it can be more broken but I don’t really want to utter those words because then it will be. … It is unbelievably inadequate. … I am about to start saying it in a much more angry way.

And later, “It is a system that is going to collapse if we don’t do anything about it.” Without meaningful legal assistance for parties, we risk meaningful justice. And without meaningful legal aid, we jeopardise that legal assistance.

If that set off alarm bells at the Department for the Separation of Powers, you couldn’t hear them over the CBA’s applause.

Her Honour’s remarks, I think, went further – far further – than Dame Sian in Blameless Babes, a speech that at worst was a Gerry Brownlee-style “just asking questions” outing about penal policy, and one that came with an express acknowledgement of the separation of powers (see [16] of the speech: “In the last 10 years especially, there has been a change to greater prescription by Parliament. That is entirely legitimate. Parliament through legislation sets down the framework.”).

It was the judiciary commenting on government policy, as contained in legislation that Parliament has seen fit to enact. It was the judiciary commenting on the use of the public purse.

But far from being an overreach, it was entirely consistent with the role of the Chief Justice she had taken time to set out. It was never said out loud, but the defusing of criticism message I thought was quite compelling. The preemptive response to the criticism of “stick to your job” is clear: “this is my bloody job”.

Perhaps I’m still high on the thrill of hearing the constitution miss a gear change. But it was a moment that was genuinely electric. You will laugh at me for being too over the top but ever since Saturday afternoon I go back to  McGrath J’s expression of concern at the proposed removal of the reference to the “rule of law” in the Judicature Modernisation Bill in what became the Senior Courts Act 2016. I think those references matter precisely for moments like these.

It all seems a bit gushing, though, doesn’t it? To say an unusual speech is evidence of a Chief Justice on a mission? To claim to see strategy, to see cunning, even, if the whole thing were not so clear-eyed. To say I’ve seen rock and roll future and its name is Bruce Springsteen? Then put this aside as some injudicious hero worship. I rather suspect that if you asked the CJ she’d say she was just getting on with the job. Quite right. But if I were you I wouldn’t get in her way.


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