Address by the Attorney-General on the occasion of the swearing in of Justice Winkelmann as Chief Justice of New Zealand and Tokelau

ADDRESS BY THE ATTORNEY-GENERAL

14 March 2019

 E te Kaiwhakawā Tumuaki, e te Perehitene, e ngā kaiwhakawā o te Kōti Matua, tēna koutou.

May it please the Court, the Chief Justice, the President, your Honours.

Your Honour, it gives me great pleasure to appear on behalf of the Government on the occasion of your swearing in as Chief Justice of New Zealand and Tokelau. I convey the Government’s warmest congratulations and best wishes to you and your family on this significant achievement. 

This is a rare and auspicious Court sitting. It marks an appointment to a crucial position within our constitutional arrangements: the head of the Supreme Court. As our most senior judge, you are the leader of the judicial branch of government; a constitutional guardian, a senior statesperson. 

Your Honour’s appointment as Chief Justice marks the first such appointment since the Supreme Court was established in 2004.   

You are the 13th Chief Justice of New Zealand, the first being appointed in 1841.  Much has changed since then, both in terms of the extent of the responsibilities of the office you now hold, and the legal, cultural and social context within which those responsibilities are exercised.   

Your Honour is the second woman to assume the role.  Your appointment, and that of your predecessor Chief Justice Elias, is an indicator the ledger is balancing towards gender equality within society. 

In contrast to the first Chief Justice, William Martin, who initially had only himself to manage, your Honour leads a Bench of over 250 judges and associate judges.  

Like your predecessors, you have the responsibility to guard the common law, statutes and conventions that underpin our constitutional settings.  These are complex and at the margins sometimes contentious. They involve fundamental principles of respect for human rights, parliamentary sovereignty, and comity and respect between the branches of government.  

Our system works well. It is uncomplicated by a supreme constitution, an upper house, presidential powers or state legislatures.  We don’t face the difficulties other countries have when changing their written constitutions to meet the needs of the day; for example gun laws in the USA; MPs citizenship in Australia; or limits on campaign spending. Our system is moderated by MMP and by our independent judiciary, which enjoys the respect and confidence of the public.

The considered and gradual evolution of New Zealand’s conventions and constitutional laws – including the place of the Treaty of Waitangi – is greatly influenced by the courts. We have seen, for example, the courts develop judicial declarations of inconsistency, expressing the courts’ opinion that Parliament’s law is inconsistent with the Bill of Rights. 

Following the courts’ consideration of this issue, the Government has decided, in principle, that the Bill of Rights should be amended to expressly authorise judges to make declarations of inconsistency.  We are proposing a process for Parliament to consider such a declaration.  This will facilitate healthy, democratic dialogue, which is an important part of our constitution working as it should – to protect civil liberties while retaining Parliamentary sovereignty. Parliament and the Courts exercising their spheres of influence and respective privileges while exercising mutual respect and restraint towards each other.

As will already be clear to everyone here, your Honour is well placed to assume the mantle previously carried with distinction by the 12 earlier Chief Justices. You will forge a path for the judiciary that marries respect for legal tradition with the challenging issues of our times. 

I would predict that issues New Zealand and other countries will need to grapple with in your time at the bench will include; rights to privacy from data aggregation and predictive targeting by private sector digital giants; protection from surveillance technologies that in practice used to be under the control of the state but are now within the practical reach of private citizens and corporations.  Where does the limit lie between freedom of speech and harmful fake news or hateful propaganda?  What duties are owed by those who profit from social media platforms to society, private citizens, or to the public institutions which democracy relies upon? These are very important and complex issues for our time and the wisdom of the courts you lead will help achieve wise outcomes.  

Those issues are for the future. Today’s occasion provides an opportunity to reflect upon your Honour’s distinguished career, as a lawyer and a member of the judiciary, and upon the particular values you bring to the role of Chief Justice. 

Your career is remarkable. You have repeatedly excelled in new roles, recognised by awards, promotion, and prestigious appointments.  In 1984, you graduated with a BA and LLB from Auckland University.  Foreshadowing your future success, you won many awards in law, history and political studies, including the Auckland District Law Society prize for best graduate. The following year, you commenced practice at Nicholson Gribbin, later Phillips Fox, becoming a partner after three years – the minimum.  You were the first woman partner of that firm and, at 25, one of the youngest in its then 117 year history.  You spent 17 years at Phillips Fox, becoming prominent in the partnership and known for your high professional standards and contributions to both the work and social life of the firm.  You built a practice specialising in commercial litigation, insolvency and medical disciplinary litigation.  You gained the admiration of your peers for your intelligence and for your rigorous approach to the practice of law. 

These strengths proved to be invaluable during the long-running litigation between the statutory managers of Equiticorp Limited and the Crown which absorbed much of your time for some six years.  The trial alone lasted for 14 months.  Those involved commented on your energy in tackling very difficult issues with a consistently collegial and amiable attitude.

In 2001, your Honour became a barrister sole at Shortland Chambers.  Your time at the separate Bar was short-lived, however, as you were appointed a High Court Judge in 2004.  Notable cases from your time in that Court include the series of decisions that culminated in the Supreme Court case Hamed v R, concerning the admissibility of Police evidence obtained by trespass and covert surveillance on Te Urewera lands.  That case touched on implied licence, Bill of Rights protections and matters of constitutional principle.  Another is Nathan v Dollars & Sense Ltd, where Your Honour tackled indefeasibility of title, applying the fraud exception to set aside a mortgage obtained by forgery.  Your decision was upheld on appeal to the Supreme Court.  Your Honour’s involvement with Christchurch earthquake litigation included the decision in Re Earthquake Commission, where you and Justices MacKenzie and Miller clarified the liability of the Earthquake Commission.

Your Honour garnered the same respect at the Bench as you had at the Bar, reflected in your appointment as Chief High Court Judge in 2010 -- a position you held until 2015 when you were elevated to the Court of Appeal. 

During your Honour’s tenure as Chief High Court Judge, you introduced reforms to improve accessibility to, and public understanding of, the Court’s processes. You sought to improve the timeliness with which the Court resolved civil and criminal matters.  You reintroduced publication of annual reports for the High Court, which included reporting against timeliness standards for the delivery of judgments, and you established the Senior Courts’ Twitter account to improve communications with the public.

Your response to the Canterbury earthquakes continued this reform.  Along with Justice Miller, you set up the Earthquake List in Christchurch to deal with proceedings flowing out of the earthquakes.  This initiative saw your Honours jointly receive the Australasian Institute of Judicial Administration Award for Excellence in 2013.  You also advanced the place of te reo in courts, opening and closing Court days in both English and te reo Māori.

Your Honour’s time on the Court of Appeal, as we would expect, traversed challenging legal ground.  In Attorney-General v Problem Gambling Foundation of New Zealand, your Honour grappled with the limits to justiciability of government contracting decisions in judicial review.  Continuing your involvement in Christchurch Earthquake matters, your judgment in Southern Response adopted the “liberal and flexible” approach for class action lawsuits, upholding the High Court’s decision to grant leave to a group of individuals to take action against their insurer.  One of your Honour’s more recent cases was Tukaki v Commonwealth of Australia, where you considered the relevance of the Treaty of Waitangi to the Extradition Act 1999.  I raise these as merely a sample of your Honour’s decisions which demonstrate confidence and legal acumen across a broad range of legal topics, and a willingness to engage with complex legal, contextual and factual matters. 

Not content with the ordinary volume of a Judge’s workload, your Honour has also taken on roles such as representative of the Chief Justice on the Council of Law Reporting, and Chair of the Institute of Judicial Studies, which provides continued education to the judiciary.  Following last year’s studies showing concerns about bullying within the legal profession, your Honour demonstrated yet again your leadership and humanity by sensitively leading a related course for the judiciary.  

Your Honour’s work illustrates your ongoing commitment to addressing access to justice issues. Your Honour made clear the reason for this commitment in the 2014 Ethel Benjamin address, namely that:

… access to justice is the critical underpinning of the rule of law in our society: the notion that all, the good, the bad, the weak, the powerful, exist under and are bound by the law.  That condition cannot exist without access to courts.

I respectfully agree.

Following the announcement of your appointment as Chief Justice, you confirmed you intend to continue to focus on issues that affect people’s ability to access the courts when seeking justice, stating:

… it is part of the role of judicial leaders to promote understanding of the role of the courts, the work that judges do and the importance of having courts that are accessible to all.

Your Honour noted that “legitimacy and authority of the courts depends on public trust and confidence”, and that a judiciary which understands and is connected to the communities that make up New Zealand is vital to the health of our democracy. 

Your Honour’s career achievements might indicate a person with few commitments other than the law. Not so.  At one level, you are – like everyone – an ordinary person with a big job.  You have a family and friends.  Your ability to achieve balance between your career and your family is a point of admiration amongst your colleagues.  When needed, you have prioritised your husband Martin and your four children – David, Anthony, Christopher, and Helena – of whom you are very proud.  

You were also very close to your mother, Kathleen, and through her, your Croatian heritage.  Today is tinged with the deep sadness that your mother cannot be here to bear witness to this ceremony. I can imagine the enormous sense of pride such a strong figure in your life would have felt today seeing her youngest child appointed to such a prestigious role. 

At your Honour’s swearing in as a Judge of the High Court, the then Solicitor-General Sir Terence Arnold said you had an outstanding judicial career ahead of you.  He was correct. I was going to say as usual he was correct, but I thought I might be criticised for that in relation to certain judicial review proceedings which have recently been lodged. Throughout your career, you have exhibited the intellect, integrity, independence and leadership required to reach the pinnacle of the legal profession.  Your Honour has recognised that judicial office is an important public service vital to the health of our society and democracy. The role of the Chief Justice demands much of the holder of that role.  The Government is confident that you will exercise this important role with flair, good judgement and distinction.  

Madame Chief Justice, e te Kaiwhakawā Tumuaki, on behalf of the Government I congratulate you on your appointment.

As the Court pleases.