Chief Justice fears loss of independence

Dame Sian Elias

By AUDREY YOUNG political editor

The independence of the judiciary is at risk in New Zealand, Chief Justice Sian Elias told a British select committee, one of several criticisms that have been embarrassingly exposed on the British Parliament website.

It appears unlikely that Dame Sian or the two other Supreme Court judges who appeared in May before the House of Commons constitutional committee, Justice Kenneth Keith and Justice Thomas Gault, knew the cross-examination of their evidence was to be publicly posted verbatim.

She complained about the funding, the administration and the name of the Supreme Court, which was established in January and which replaced the Privy Council as New Zealand's final appellate court.

The judges also expressed difficulties in finding a proper way for the judiciary to communicate with the Executive and Parliament.

But the most serious concerns involved the protection of judicial independence in finding a balance between the sovereignty of Parliament and the rule of law.

Questioned by Lord Crickhowell about the need to protect the independence of the judiciary, Dame Sian said is was "a real risk in our country because I think our constitutional arrangements have been very obscure and I do not think it is good enough that the initiates [insiders] think they know what the system is".

"It is one of the reasons why I would like to see better, more formal communication with the legislature because I think we are very vulnerable on this question of independence and because it is not well understood in the community as a whole."

She talked about the pride Australians took in their High Court even when its decisions were disagreed with.

"I hope the visibility of the [Supreme Court] will aid a public understanding of the balances in constitution, but at the moment I think there is a lot of ignorance in New Zealand."

Justice Gault said he shared those concerns but pointed the finger more at politicians than the community.

New Zealand did not have the checks and balances of an upper house.

"I do not feel confident that our politicians grasp the constitutional significance perhaps as they should."

He also said the judiciary was "struggling to find appropriate protocols or levels of consultation" between the judiciary and Government in areas of development of the law and law reform.

It was important to preserve judges from the perception they were involved with the law-making process in respect of which they had to exercise judicial function, but they also had a contribution to make in various areas.