New Zealand Herald, New Zealand
March 28 2005
Who rules NZ: Top judge and judicial activist
Dame Sian Elias, New Zealand’s first woman Chief Justice, likes to
push the boundaries. Picture / Mark Mitchell
28.03.05
As a young woman in the 1960s, Sian Elias was determined not to be
ordinary or, as one friend recalls her saying, not to be “an Austin
1100, suburban housewife”.
And she got her wish. She has had an eventful legal career, capped by
her appointment as New Zealand’s first woman Chief Justice.
And naturally she has the services of a Crown limousine. But Sian
Elias is no judicial show-pony.
Beyond her graciousness and charm, she has been the lightning rod for
trouble in the past two years between the Government and the
judiciary.
There have been occasional mutterings in the Beehive about why she
doesn’t stand for Parliament if she wants to get political.
And occasional nervousness. As Chief Justice, Elias becomes
“administrator” in the Governor-General’s absence, acting proxy head
of state with the ultimate power to dissolve Parliament.
The nervousness is over the possibility that some day she might
actually do it, although she probably never would.
Less facetious is a subtle change in attitude by the Government to
legislation as a result of a more suspicious relationship between the
judiciary and the Executive.
At the peak of disgruntlement about Elias last year, senior
Government members were heard to talk of the need to “Sian-proof”
legislation.
That means leaving as few ambiguities and loose ends in legislation
before Parliament as possible in order to leave no room for later
judicial activism, the usually pejorative term to describe
development of new principles of law by judges to justify their
decisions.
Or as those deemed “activists” see it, the term given to judges by
people who don’t like their decisions.
The relationship appears to be in a cautious phase at present, with
the players determined to give no cause for complaint after
ill-judged outbursts by both Elias and State Services Minister Trevor
Mallard last year.
If the relationship was perceived as hostile, it’s not a description
that can be pinned to Elias in any personal sense. Quite the
contrary.
If there were one trait no one who knows her would argue with, it is
that she is gracious in all things, even under fire.
Act MP Stephen Franks knows from experience. He was pilloried for
suggesting in Parliament that Elias left open an appearance of bias
by sitting on the foreshore and seabed case because of a case she had
argued before the Waitangi Tribunal over control of the Manukau
Harbour and seabed.
A short time later he was at a function on the legal cocktail circuit
at which two High Court judges abused him, one calling him a disgrace
to his profession for his criticism.
Elias was at the same function and made a beeline for him, not to
castigate him but to engage him in discussion about what he had said.
Elias did not figure largely on the radar of this Government until
two years into its first term, when it discovered she had disciplined
a senior Auckland judge 18 months earlier for accessing soft porn on
his High Court computer. The fact that she had not told the
Attorney-General of this was as great a sin in the Government’s eyes
as the judge’s actions and seen as protecting “the boys’ club”.
For its part, the judiciary and many in the legal profession were
disturbed at the public flogging by the Government and the none too
subtle pressure to get Justice Robert Fisher to resign.
Elias’ leadership was undoubtedly appreciated then by her brethren on
the Bench, but that was likely shaken last year when she raised the
possibility that judges could be swayed by financial considerations.
It was an argument in favour of a better remuneration package and in
the worthy promotion of judicial independence, but it failed
spectacularly to enhance the standing of judges.
The recent tension between the Executive and the judiciary has
centred around two things: opposing views on the notion of “the
sovereignty of Parliament”, and the way Elias has gone about
criticising the Government for what she perceives is ignorance over
the importance of judicial independence – bleating about it to
overseas audiences and declaring the Prime Minister to have “a
profound lack of understanding” of judicial independence.
But the undercurrent has been the Government’s horror at the Court of
Appeal’s foreshore and seabed judgment, led by Elias.
It could be said that the landmark case was one she had been in
training for throughout her legal career.
The decision of June 2003 allowed for the possibility that the Maori
Land Court could issue freehold title over the foreshore and seabed.
Addressing the consequent legal uncertainties and upheavals in
Maoridom dominated the political agenda for the next 18 months.
Elias is a heroic figure among those whose passion is Maori justice,
and a key figure in what is so disparagingly termed the treaty
industry. She has a reputation for compassion and humanity.
So did her father, the son of Armenian refugees, who practised as a
GP for many years in West Auckland.
Elias arrived in New Zealand with her father and Welsh mother as a
toddler from London. She was raised in Titirangi and went to the
private Anglican school Diocesan School for Girls in Epsom.
Skipping the upper sixth form after getting University Entrance, she
started at Auckland University’s law school in 1966, one of only half
a dozen girls, including former Attorney-General Margaret Wilson, in
a class of well over 100 boys.
But while the young Wilson was resolute in all things and a political
creature, it was not clear at the time that the cultured young Westie
would earn a name synonymous for championing legal justice issues for
Maori.
That evolved through her career, rather than existing as a driving
force from the outset.
At university she was part of the Dio set, stylish, fun without being
flamboyant.
She studied hard but was not among the scholarly elite of her cohort.
She was part of a generation that wanted to change the world but she
was a strong advocate of the legitimacy of change from within the
system.
She preferred to observe demonstrations from the independence of the
footpath, where good law students should be, rather than join the
melee.
Elias joined the Auckland aristocracy and the Fletcher dynasty when
she married Hugh Fletcher in 1970. The pair studied further at
Stanford University in California, where she gained a masters in law.
The couple have two grown sons.
Elias has been one of New Zealand’s most notable models of
affirmative action for women.
She and close friend Lowell Goddard were chosen to become the first
women Queen’s Counsel in 1988, and in 1995 Elias was appointed a High
Court judge.
She has New Zealand’s first woman Prime Minister, Jenny Shipley, to
thank for her job as the country’s first woman Chief Justice – a
position commonly appointed not only from the other gender but from
outside the judiciary.
Elias’ appointment may have been a surprise to the legal profession,
but it was no surprise to the Cabinet colleagues of Shipley, who made
no secret of the fact that she was determined to appoint a woman.
Elias beat present Court of Appeal Judge John McGrath, then
Solicitor- General, to the job.
She is a successful model of affirmative action. No one in the legal
profession the Herald spoke to disputes that she is up to the job of
Chief Justice, even her critics.
One of her most notable judgments as a High Court judge directly
affected politicians in the David Lange vs Joe Atkinson defamation
case.
The final outcome on appeal was to give the news media a stronger
defence against defamation actions by politicians.
As a lawyer, she specialised in company law and was leading counsel
for the plaintiff in the long-running Equiticorp case.
But it is her association with Treaty of Waitangi law for which she
attracted headlines.
With two small boys in 1979, Elias was working part-time at the Grey
Lynn neighbourhood law office when she worked for some Maori and
Pacific Island defendants accused of attacking a haka party of
Auckland University engineering students.
In 1984, she helped Nganeko Minhinnick’s Manukau Harbour claim to the
Waitangi Tribunal, a case that opened up a new world to her.
It also led to work on other treaty cases, including a claim to
prevent the Government selling radio frequencies, and the case
challenging the 1994 Maori electoral option.
The work has given her an appreciation of Maori custom and
aspirations that she fosters today among the judiciary and in her
private life.
Every Waitangi Day she makes a pilgrimage as a private citizen to
Waitangi, something Shipley does as well.
When she was appointed Chief Justice, Elias told the Herald: “One of
the reasons I’m so optimistic about the future is because what
happened at Waitangi [the signing in 1840] is so consciously founded
on an expectation that justice will be achieved through law.”
Her first words last year at the first sitting of the new indigenous
Supreme Court were to acknowledge the presence in the public gallery
of an unassuming Maori couple, invited for the occasion to represent
the tangata whenua, Te Atiawa.
Elias was made Chief Justice at the young age of 50. The compulsory
retirement age of 68 means that over 18 years she has the potential
to leave an imprint on the law in New Zealand. But it is unlikely she
will stay that long.
Five years into the job, she is half- way through her term as New
Zealand’s top judge, saying when she was appointed that she saw it as
a 10-year position.
But she may have changed her mind given the way her job has changed.
The position of Chief Justice carries more weight and is more
powerful today than it was five years ago. Elias now assumes the
mantle of pre-eminent jurist as head of the Supreme Court.
Before the Supreme Court was established last year, the Chief Justice
was more of an administrative role, with the right to sit on any
case.
The president of the Court of Appeal was regarded as the pre-eminent
jurist, and no more so than under the tenure of Sir Robin Cooke,
later Lord Cooke of Thorndon.
He made a deep imprint on not just the law but on the continuing
debate over the sovereignty of Parliament and, undoubtedly, on the
development of Elias’ career.
One of his earliest challenges to the sovereignty of Parliament still
cited by his acolytes was contained in a 1984 judgment involving, of
all things, the Poultry Board, when he said “some common law rights
presumably lie so deep that even Parliament could not override them”,
which is tantamount to saying that in extreme circumstance, the
courts can overrule the will of Parliament.
It is a good guess that Elias is one of his admirers – she did not
consent to an interview – and if she wasn’t in Cooke’s early days,
she certainly would have been after 1987.
That was when he handed down his Court of Appeal ruling in the case
of the Maori Council vs the Attorney-General, establishing a key
principle of the Treaty of Waitangi as “partnership”.
It was a stunning judgment and a victory for the Maori Council and
its team of lawyers – David Baragwanath, now a High Court judge, the
late Martin Dawson and one Sian Elias.
Its significance, however, was adjudged through the passage of time
with its “partnership” principle being fostered by successive
Governments in many areas of state.
The suspicion with which the judiciary and Elias is regarded in some
parliamentary quarters is not over a simple academic argument about
the sovereignty of Parliament but because of a belief that those who
would dismiss it are often activist and more likely to deliver
decisions of the foreshore ilk – with a devil-may-care attitude to
its consequences.
Cooke is still going strong. In his most recent speech, he described
the sovereignty of Parliament as a “catchphrase beloved by some
sections of the media and some politicians” which “does not survive
in-depth analysis”.
Elias has picked up Cooke’s baton.
She began her run in a speech in Melbourne in 2003 about
parliamentary sovereignty, describing it as a merry-go-round.
“We have assumed the application of the doctrine of parliamentary
sovereignty in New Zealand. Why is not clear,” she said.
“Parliamentary sovereignty is an inadequate theory of our
constitutions. An untrammelled freedom of Parliament does not exist
.. We should get off the merry-go-round.” .
The words of a woman who has found a confidence in her role as Chief
Justice – and no doubt of a woman determined not to be an ordinary
Chief Justice.
The Chief Justice
* Heads the judiciary.
* Presides over the Supreme Court.
* Stands in for the Governor-General if necessary.
* Manages the relationship between courts and other branches of
Government.
* Advises the Attorney-General on judicial appointments.