Deborah Coddington: Court of public opinion no place for Dame Sian

Chief Justice Dame Sian Elias is doing her damnedest to provoke some of us who value an independent judiciary into trying to restore New Zealand's access to the Privy Council.

It's not too late, despite the negative arguments put forward by opponents. In October this year, Britain's Judicial Committee of the Privy Council will become part of the Supreme Court of Great Britain. Finely tuned legal minds will know more than me, but we may only have to amend our Supreme Court Act.

But back to the Chief Justice, and the controversial speech she made to Wellington lawyers on July 9, suggesting, among other issues, that amnesties for prisoners could reduce overcrowding in jails.

Dame Sian knew the media would rush to the usual suspects for "rent-a-quotes" - Sensible Sentencing's Garth McVicar was first off the rank, closely followed by "three-strikes" David Garrett. And that is precisely what happened.

They were followed by the typically polarised talkback debate that gets us precisely nowhere. The liberals side with the Chief Justice; the rednecks want her sacked; the moderates remain silent. Business as usual then.

And despite support from New Zealand Law Society President John Marshall QC, Dame Sian does not have the support of the nation's entire legal fraternity.

Stephen Franks, never one to hold back, has been extremely blunt in his condemnation of the Chief Justice's speech, telling his blog readers: "Stray into political partisanship, or even criticise politicians even-handedly, and judges can expect to be treated like politicians ... The CJ's speech is lamentably damaging ...

"She has her own stables to clean, when on her watch the average delay to trial has doubled, the average length of defended trials has more than doubled, the number of judges has tripled over the past 30 years, and the cost of justice is putting it out of reach of all but the rich and those who qualify for legal aid."

But everyone except Justice Minister Simon Power missed the point, and he was right to jump on her.

A Chief Justice should not make speeches so obviously concerned with political and social policy. This is not the role of her office, and it's not the first time she has done it.

Across the Tasman, she criticised the New Zealand legal fraternity for not promoting women lawyers. She opined not enough were elevated to the Bench, taking silk, or promoted in law firms. When tackled by the Bar Association, Dame Sian's response was that the speech was meant for an Australian audience only.

She will probably argue that judges occasionally write articles for law journals on aspects of law, and that is true. Sir Robin Cooke penned academic essays but managed to exercise restraint so the published result was lawyers' law, rather than advocating radical social policy.

Nonetheless, Sir Robin paid a price towards the end of his life when he lobbied strongly for the abolition of access to the Privy Council, and his appearance before a select committee was sad and emotional.

He died a judicial activist, losing respect from many who had previously admired his formidable intellect.

This is not a personal attack on Dame Sian. Her speeches are interesting, but strip away her titles and she remains a judge.

After all, litigants are entitled to expect impartiality when they appear before the court. Judges can nudge laws incrementally, but only Parliament changes legislation.

If any judge has strong ideas about rehabilitation, victims' rights or overcrowded jails, they can raise these with the Law Commission, the Minister or the Ministry.

Another problem with controversial issues being aired by the Chief Justice is that the message is lost in the controversy. Dame Sian is the head of the judiciary and holds responsibility for the overall administration of the courts. She must cease discussing political policy in public and knuckle down to writing judgments.

A close analogy would be a Police Commissioner floating the possibility that police officers reduce crime figures by not arresting marijuana-smokers because it's a victimless crime.

Taxpayers are spending millions on a new Supreme Court building, when we once could go to the Privy Council - the finest, most independent legal brains in the world - free. Read that and weep.