Mai Chen: Fairness in law honours a legal legacy

The funeral of Sir Robert was a time for reflection. Photo / Natalie Slade

Judge's talents highlight benefits of an open system where the courts are free to rule against the government.

Reflecting on the death of Justice Sir Robert Chambers reminds me how much I like living in a country where the law is enforced by talented judges in courts independent of the government.

I last appeared before Sir Robert when he was sitting on the Court of Appeal. I was acting for a tertiary institution, and the Crown was appealing against the High Court's decision that a minister's decision about that institution was illegal.

We didn't prevail - but the point is that in New Zealand you can take on the government if you think it is acting unlawfully, and you won't be put in prison for it. I have visited lawyers in other countries who take on their governments for clients, and we have had to meet outside because their offices are bugged, and some have been threatened with jail.

A week ago, the Criminal Bar Association took on the Government when it successfully argued that the Government's new legal aid policy for criminal cases was illegal because it is inconsistent with the Legal Services Commissioner's independent functions and unreasonably fetters the commissioner's discretion.

The Court of Appeal agreed - and the Government has appealed to the Supreme Court, rather than ignoring that ruling.

Salisbury School in Richmond challenged a ministerial decision to close it, and after a court victory, the minister says the school will now stay open.

The fundamental values of fairness and justice run deep in New Zealand society. We believe in a level playing field, a fair cop, the law applying equally to all. Look at the fuss over name suppression, and how the Government responded by tightening the criteria in the new Criminal Procedure Act.

This value comes from New Zealand's roots. As David Hackett Fischer said in his book Fairness and Freedom (Oxford University Press, 2012) which compares two open societies, New Zealand and the United States: "NZ's British settlers in the 19th century also tended to be dissenters and nonconformists ... Many felt themselves to be victims of social injustice, gross inequity, and deep unfairness not merely in individual acts but in the systematic operation of an entire society. They hoped to build a better world that offered 'a fair field and no favour'."

Judges are the ones who have to referee fights between citizens and the government. They have to uphold the law without favour. So it really matters who the judges are. I thought we would have the benefit of Sir Robert's legal prowess for another decade, and the pleasure of his company for many more after that. In addition to the huge loss to his family, so much talent, training, experience and expertise has been lost to our country's highest court.

But then I remembered that what made Sir Robert a great lawyer, judge and good friend to many was that he had always used his legal talents to the full, and lived life the same way.

I first met Sir Robert when I sat next to him at a Law Society dinner. He had a perfect legal CV. He received scholarships to Auckland and Oxford Universities. He lectured at Auckland University. He wrote many legal texts and was made a QC in 1992, a High Court judge in 1999, a Court of Appeal judge in 2004 and a Supreme Court judge in 2011.

He was great to appear before. Full of enthusiasm and questions. He may not have agreed with you, but you certainly felt as if you got a good hearing. He was also very kind to me, as was his wife, Lady Deborah Hollings QC, even though I did not know them very well. When they heard I was coming to Auckland, they invited me to an event at their Auckland house.

The best way to honour Sir Robert and his legal legacy is to do better on the rule of law and fairness front, because it matters. Doing so is an important aspect of what New Zealanders value. I doubt the country would score as well in the Better Life Index issued this week by the OECD, especially in the civic engagement (trust of political institutions, in government) and safety categories, if we didn't feel overall fairness and the rule of law were being upheld - whoever is in government.

Mai Chen is managing partner of Chen Palmer and an adjunct professor at the University of Auckland business school.