What role does the Chief Justice of New Zealand Play in Politics?

Something puzzling happened last week. The Chief Justice of New Zealand, Dame Sian Elias, made the news for criticising the government for its reform of the criminal justice system.

Derek Cheng of the Herald reckons she has done it before.

“It is not the first time Dame Sian has taken aim at the Government. In a 2009 speech she criticised the punitive approach to the criminal justice system and suggested granting amnesty to some prisoners to relieve New Zealand’s bulging prisons.”

At the time she was hammered by both Simon Power and Garth McVicar.

“In response, Minister of Justice Simon Power said that it is up to the Government to set sentencing policy and judges to apply it. Sensible Sentencing Trust’s Garth McVicar stated Elias should resign because of her stance but academics and lawyers lent support to the points raised in her speech.”

Maybe it is time to give Simon Power some credit, as it seems he is right. Though this blogger is not sure about the precedent for the top judge to criticise government policy, or even be involved in the political environment at all. Could readers please comment via the tipline (comments will treated as confidential) about what the precedence is in NZ, and what the constitutional rules around such criticism is?

Responders should confine themselves to the Chief Justices’ role, not whether she is right or wrong. Lets establish whether Sian Elias should be commenting on government policy or whether she should remain on the bench if she choses to comment.


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  • cobolt

    I think these are two different things. It is one thing to comment on the proposed changes to legal procedures and something else entirely to comment on sentencing policy. One affects how you do your job, the other what you must do within your job.

  • Graeme Edgeler

    I was amazed by how little news it made: my blog post and the article from Derek. It seemed like big news to me.

    This sort of thing isn’t completely uncommon – there have been judicial submissions on bills before. And the last Criminal Procedure Bill was enacted after the Chief High Court judge publicly pleaded for it to be enacted (because meth trials at that time had to be heard in the High Court and were clogging it up). But generally, this sort of thing goes on behind closed doors.

    That said, if they’re going to do it, shouldn’t it be open?

  • peterwn

    The key thing is ‘do people want to hear what the Judiciary thinks on matters pertaining to its functioning’. I for one do. If it influences political thinking then so be it. The Judiciary is one of the three branches of democratic government and so surely should be able to vent its opinion to the people. Similarly judges also take into account the mood of society at large in their decision making especially when handed a rat’s nest piece of legislation by Parliament. I think it was unfortunate that the Coroners Act was amended years ago to muzzle the then Auckland coroner who ‘called a spade a spade’ which for example upset relatives of a seriously drunk person killed in an accident.

  • mrgradgrind

    Maybe Dame Sian is turning to attempting to influence the creation of law because the results of her interpreting the law have been mixed.