Talking about justice

It will have brought the Chief Justice of New Zealand, Dame Sian Elias, little satisfaction that the reception of her recent 2009 Shirley Smith Address, to the Wellington branch of the New Zealand Law Society Women in Law committee.

It has been characterised by the very reactions that make meaningful public discussion of crime and punishment in this country difficult: misrepresentation, political hypersensitivity and moral outrage.

In fact, she more or less predicted it.

"I've also taken `blameless babes' as my working title," she told her audience on July 9, "although I suppose I will have to alter it because it is bound to be misrepresented along the lines of `Chief Justice says murderers are blameless babes'."

That was not quite the riposte although, when it came, it did carry a similar import.

What Dame Sian was posing - neither telling, instructing, nor insisting - in the course of a careful, annotated 15-page speech, arising out of her vast experience in the field, were a number of questions about the state of our criminal justice system and the trends that have been forecast for it.

She described an evolution from optimism over strategies for reform to "the rise of popular anxiety about crime which has led to calls for increasingly punitive sentences", and the passing of leadership in the debate over penal policy "from officials and professionals working in the field to advocates for victims and safer communities".

She noted the concerns of distinguished criminologists on the impact on criminal justice of the relatively recent emphasis on the "victim of the crime", and how it might put at risk an evolved system of detachment and public ownership of determining criminal culpability which "freed victims and their kin from the tyranny of private vengeance".

She also identified - citing evidence from several countries that imprisonment neither prevents crime nor in the longer term makes societies safer - some possible strategies to address the burgeoning prison population and its rapidly rising costs.

Among these were community education, intervention at "critical stages in the lives of those at risk", probation (introduced to the New Zealand legislature in 1886 by the Hon Joseph Augustus Tole, thus: "it is cheaper and safer to reduce crime or to reform criminals than it is to build gaols"), allowance for mental ill-health, and, most controversially, reduction of the prison population.

At no time during her speech did Dame Sian either single out the policies of the present Government for criticism or state boldly what she thought must be done.

On the contrary, she said, "We cannot blame successive governments.

"They have responded to high public anxiety.

"And indeed the high level of crime is a source of proper public concern and political attention."

Nonetheless, Justice Minister Simon Power last week responded with barely contained anger to the Chief Justice's remarks.

Of one small part of Dame Sian's speech, on the question of "executive amnesties" to ease pressure on the prison system - cautiously raised with the rider that she did not know "whether it is practical or politically acceptable" - Mr Power said: "The Government was elected to set sentencing policy.

"Judges are appointed to apply it."

It was a sharp rebuke with an unambiguous message: "Butt out."

Yesterday, Prime Minister John Key backed his Justice Minister, saying the Chief Justice had exceeded her jurisdiction.

"There's a line there and hopefully politicians don't stray one side and the judiciary don't stray the other."

Whether Dame Sian did stray beyond the boundaries decreed by constitutional nicety and the principle of "comity" is a matter of debate, even among the experts, with several taking an opposing view to Mr Power and Mr Key.

The Chief Justice, that side of the argument goes, has a constitutional right to speak out on matters affecting the administration of justice.

But in speaking out she was implicitly raising one rather large and inconvenient truth: that the crime and punishment auction presided over by successive governments in this country - which has the second-highest imprisonment rate among the world's developed nations - is not working.

A careful reading of Dame Sian's speech shows an internationally respected intelligence and expertise - not least in constitutional matters, it might be added - applied to issues she has dealt with daily for 40 years.

If, as a country, New Zealand is unable to take advantage of that invaluable repository of experience, at the very least by being coaxed into a calm and rational discussion of a criminal justice system rapidly approaching crisis, what hope is there?

Far from being castigated, the Chief Justice is to be commended for offering some pertinent starting points.

Add a Comment