The Swearing In Of Justice Sian Elias As The Chief Justice Of New Zealand

  • Doug Graham


May it please the Court

It is an honour for me to appear this morning to represent the Government at this special sitting of the Court summoned to swear in the new Chief Justice of New Zealand. This ceremony is one which occurs infrequently, and is in fact only the 12th such sitting in the history of our country. However what will be remarkable to even the most distracted observer, is that this is the first time that the new Chief Justice is a woman. This is, unquestionably, a most welcome development. The fact that the Prime Minister, the Leader of Her Majesty's loyal Opposition and the Chief Justice are all women is particularly memorable and, indeed, I suspect historically internationally unique. I have had the pleasure of knowing all three personally, and I am absolutely confident that there will be no one so foolhardy to suggest that the contemporaneous elevation of these three outstanding New Zealanders to such high office is due to anything other than merit. I am sure that all would agree that that is how it should be. If I am wrong however and there is some such daring commentator prepared to make such a comment, let me say immediately that I would prefer to be somewhere else when they do.

Your Honour,

It was clear from the beginning that you had the qualities to rise to the very top of the profession and today you have done just that. Your career at the Bar was marked by a willingness to accept instructions in cases that were particularly sensitive and therefore especially difficult. I refer to the Treaty of Waitangi jurisprudence which is unique to New Zealand. Your desire to see that justice was at last provided to Maori was evident in the tenacious and the skilled way you conducted many leading cases before the Courts and the Waitangi Tribunal. The outcome of these has created precedents for others to follow. I am bound to say that there are moments when, as Minister in Charge of Treaty Negotiations, I would have preferred you to have been less successful in your advocacy.

Your Honour

Your all round ability was apparent during your time as a leading silk and it came as a surprise to no one when you were elevated to the High Court bench. There your application of the law in a compassionate yet firm manner has been admired by all. Now you assume the highest judicial office in the land. I am sure you will grace the office.

The burden of this high office is a heavy one. For not only has the work of the Court increased in recent years, but so too has the complexity of the issues coming before the Court. As a result, the time needed to deal with cases has lengthened which has put additional pressure on the judges themselves, but more so on the Chief Justice who has the duty to ensure the efficient disposition of all litigation. That will now be your responsibility. You will also be involved in the appointment of new Judges, will need to concur in the appointment of silks, and will henceforth represent the independent Judiciary in its relationship with the Government. If history is anything to go by you will have any number of well meaning people who will wish to provide you with advice on any one, and as often as not, all of these matters. While I have no doubt that you will be more than capable of making the decisions yourself, may I have the temerity to suggest that the acquisition of the flak jacket will prove useful.

There will be other pressures that may not yet have occurred to you. They are nonetheless formidable challenges in themselves. For example, the drivers of the ministerial cars in Wellington who will drive you to and from the Court, have already sought an assurance from me that you will be more than capable of defending the appalling record of the Auckland Blues. In this I hope you will be more successful than I have been.

Your Honour,

May I presume to refer to one matter that I suspect will cause you some concern during your tenure in office. This is the issue of judicial accountability. One need only watch the television or listen to the radio to hear quite vitriolic attacks on judges of an extremely personal kind. Indeed I sometimes think there is some sort of competition amongst session of the media to make the most outrageous accusation. It seems to be driven by media ratings or electoral considerations. Whatever the reason, it has the effect of diminishing public confidence in the administration of justice in this country. Some heads of the bench have thought if necessary to put the other side and to defend the judge or judges concerned. That is quite understandable. But it can result in trial by television where armchair judges decide whether bail should have been granted or some such matter, not on the basis of carefully considered argument, but on a ten second news item. These unwarranted and unwanted criticisms are nothing more than an insidious attempt to influence the judges to adopt a critic's view on what is appropriate. This pressure can inhibit the bench from exercising an impartial judgment and it is possible that judicial decisions come to be made with the constant thought as to how the decision might appear on the 6 o'clock news rather than on the real merits of the case.

Your Honour

This country has an enviable record in the administration of justice. Our courts are almost always open to the public and the competence of our judges can be measured by anyone prepared to sit and watch any particular case being dealt with. Where the law vests a discretion in a judge to decide what should be done after a hearing argument, that judge is entitled to make his or her decision without undue pressure. It need hardly be said that the right to decide without pressure is for the benefit of those coming to Court seeking justice, and not for the benefit of the judges themselves. Ignorant criticism of a judicial decision does not enhance accountability based as it is on an incomplete understanding of the facts of the case or the applicable law and often both. This is a dangerous trend that must be addressed with care and sensitivity. I know that you will appreciate the point I am making.

Chief Justice

You begin today on a most challenging path. You have all the requisite skills to grace the office as you have graced all other offices you have held. On behalf of the Prime Minister and the Government I congratulate you on your elevation to Chief Justice of New Zealand and wish you a long and distinguished tenure as the head of the Judiciary. We are confident you will maintain the high standard set by your predecessors.

May it please the Court.