James Farmer

Legal Commentary

"Criticism of Supreme Court needs to be put in context" as published in the New Zealand Herald 11 May 2012

Wednesday, May 23, 2012

There is a very long tradition of analysis and criticism of Court Judgments by lawyers, particularly academic lawyers.  In all the common law countries, including the United Kingdom, the United States, Australia and New Zealand, there are many legal journals in which articles are written either praising, but more often probably, lamenting some recent court Judgment. 

Both, formerly as an academic lawyer in England and New Zealand and since as a barrister in New Zealand and Australia, I have contributed to legal debate by writing many articles and delivering many conference papers which analyse judicial decisions and trends in decision-making.

This is very healthy as it throws light on trends in judicial reasoning and provokes debate as to whether it is heading in the right direction or not.  The Judgments of the highest courts – in England the House of Lords (now Supreme Court), the High Court of Australia, the US Supreme Court and, in New Zealand now, the Supreme Court attract the greatest attention. 

At that level, the Judgments create precedents binding on all courts lower in the hierarchy. Such courts have a greater authority to re-examine the law in the light of the social values of the day.  

It is inevitable that there will be differing opinions on the correctness of the outcome or reasoning of particular cases.  Again, that is very healthy if it leads to constructive debate, debate which hopefully will help to determine whether the court concerned has taken a wrong turn or whether it is on the right track.  The same is true of debate in every walk of life, including government as the most obvious example.

It is important however not to treat criticisms of particular Judgments given by a particular court as a complete condemnation of the court as a whole and of its ability to give Judgments that for the most part are unexceptional and exactly what can rightly be expected.

It is for that reason that I have considerable disquiet about the prominent piece in the NZ Herald for Saturday 5 May in which, under the heading “Justice in the firing line” it is said that the Supreme Court is facing “unprecedented public criticism” which is having an adverse impact on our case law and on our international reputation.

The Herald article does detail a number of specific Judgments of that court which have attracted criticism – including two which I have written about in less than glowing terms.  But what is lacking from the article is analysis of the many (by far the majority) of the Court’s Judgments which have been accepted by the legal profession as being soundly based and which in many instances have corrected errors in the courts below.

The article does, correctly, make the point that evolution of an appellate court takes time and the quality of judicial appointments is important.  The US Supreme Court from its establishment took many years to gain the acceptance and respect that it has had since that time. 

I have made the point myself that it was always going to take some time for the new Supreme Court here to work out its appropriate role in the judicial system, particularly when the first Judges had all been elevated from the existing Court of Appeal. That Court has always had a massive work load, which necessarily was error-focused.  It seldom therefore had the time to review the tension between established case law and changing policy demands and to provide definitive statements about legal principle and policy.

My own assessment is that the Supreme Court is now taking a more principled and policy oriented approach to the legal issues with which it has to deal and is more comfortable in articulating that role than perhaps it was initially. 

There are of course also continuing changes to the personnel on the Court – a matter which the Herald article acknowledges.  The existence of a strong Court of Appeal from which future appointments are likely to come does not, in my view, give rise to any concern as to the continuing quality of the Judges of our highest court.

I do think also that there is no proper basis for concern as to the “international reputation” of the Supreme Court.   It is a new court and it will undoubtedly have to earn its reputation. But it is building on the long-established fine reputation of the New Zealand Court of Appeal.  New Zealand Judges are extremely well qualified academically, most of them having earned post-graduate degrees at top foreign Universities. 

For instance, two of the existing members of the Supreme Court (Justices Young and Chambers) have doctorates from Cambridge and Oxford respectively, Justice Blanchard and the Chief Justice have Master’s degrees from Harvard and Stanford.  The Judges of the Court of Appeal are similarly well qualified.

The Herald article also discusses the issue of specialisation in the Courts.  It is of course not possible in a six member Supreme Court to have every area of legal specialty represented.  The debate around specialisation really focuses much more on the High Court which deals with the bulk of more major litigation.  That is a hugely important topic but it is a topic for a different day and not to be confused with any assessment of the work of the Supreme Court.

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