Source: New Zealand Government
Thank you all for the invitation to speak with you this morning. I have been looking forward to this opportunity. May is a busy month for the Government, and it is always a relief to have the Budget delivered.
Today, I would like to speak about what I see as my privilege and responsibility to uphold the rule of law, and the role that all lawyers play in this, alongside the judiciary and the executive.
This is also an opportunity for me to hear from you. It is always wonderful to hear from Law Association members who are out there in communities, listening to what clients want from their legal system, and from those making laws that affect them. You have a front row seat to lawmakers in action and can help us understand the impacts of what we do.
A legal system we can be proud of
We can be proud of our legal system.
As you know, the rule of law is a foundational doctrine underpinning the law and order of any civilised society. New Zealand’s adherence to the rule of law ensures that standards of justice are upheld and provides safeguards against the arbitrary exercise of power. That adherence is recognised internationally, with the World Justice Project ranking us 6th overall in the 2024 Rule of Law index.
This commitment to the rule of law helps maintain our international rankings as a country with low corruption rates. This reputation is important for New Zealand’s economic growth and prosperity as a nation. Those living, working, and investing here know that we have a sound and accessible justice system and that success doesn’t require bribes behind the scenes.
We are known as a country where access to independent courts, and the outcomes from these courts, cannot be bought or sold. That is invaluable and it means we are a good place to do business.
And it’s not just me saying this: we are currently fourth internationally in the 2024 Corruption Perceptions Index behind Denmark, Finland and Singapore and well ahead of Australia, which is tied for 10th place.
This is a great place to sit in the rankings, but we still have room for improvement. While our position is steady in the top five, our Corruption Perceptions score has fallen from a high of 91 in 2013-15 to 83 last year.
In 2024, the OECD Survey on Drivers of Trust in Public Institutions found that only 42% of New Zealanders believed that public employees would refuse bribes to speed up service access. Even in the Rule of Law Index, there are factors such as order and security where we drop outside the top 10.
The Government is committed to being better. Earlier this month, my colleague Minister Mark Mitchell joined the Serious Fraud Office for the launch of their national campaign targeting foreign bribery. The campaign will raise awareness and involves the introduction of a new online platform to support safe, anonymous reporting of suspected foreign bribery.
The campaign asks people to be on the lookout for ‘red flags’. You may come across some of these in your roles, particularly if you are advising clients engaged in international trade – things like business partners or agents refusing to provide details on transactions, or someone requesting an unusually high level of discretion around a particular contract. I think this is a great initiative, and I encourage you all to engage with the SFO’s content to learn more about the campaign.
Moving away from traditional institutions
Society is changing at a rapid pace. We are in a time, globally and domestically, where traditional institutions are losing the trust and respect they were once afforded. Data from the 2023 General Social Survey released last September found that New Zealanders’ trust in institutions such as Parliament, media and the courts has declined since 2021.
We cannot be so naïve as to think that this loss of trust has occurred entirely by accident. There will always be those that see opportunities in destabilising norms. However, it is not just “bad“ actors who undermine our institutions. Misunderstandings of the constitutional settings can also impact how our respective institutions are seen and perceived.
We can all think of times where emphasis is put on the Judiciary and Executive appearing to disagree. When the public see judges and politicians criticising each other, confidence in both groups can be lost, and this can affect the strength of our institutional domains.
When your clients see the judiciary and executive seemingly at odds, how can they feel confident about the experience they will have with our legal system?
Comity and the separation of powers
Those of you who attended last year will have heard me talk about our constitutional arrangements and comity. I have spoken about its importance at length, most recently to senior members of the judiciary.
Comity requires each branch to act with mutual restraint and respect towards the others. This principle allows them to respond in a way that reinforces, rather than undermines, the other branches’ legitimacy. It helps us ensure that we remain on the right side of our respective constitutional lines.
If the delicate balance that keeps the executive, Parliament and the judiciary operating well together is disturbed, it is extremely difficult to restore. This balance helps us be strong, both individually and collectively as the institutions of government, so it is crucial we do our best to preserve it.
The separation of powers is something that I as Senior Law Officer pay particular attention to: what is the nature of that separation? How has it changed and how might it change in the future? How do we ensure that separate does not mean siloed, disconnected or in conflict, and that independence does not mean isolated?
Maintaining trust and confidence
Those of us involved in creating the policy underpinning the laws of New Zealand need to ensure the resulting law is precise, clear, and not open to significant debate about its meaning.
Earlier this year, I took on the portfolio of Minister for the Public Service. I’ve made it clear to Public Service leaders that the more complex and challenging it gets, the more simple we need to keep it.
Together with Public Service Commissioner Sir Brian Roche, I am committed to ensuring that the purpose and functions of the Public Service are clearly understood, including the importance of free and frank advice and the efficient use of taxpayers’ money. I want New Zealanders to feel confident that all those serving them can be trusted to deliver results.
It is my expectation that when the Public Service delivers those core functions well, the legislation and practice that emerge will be less ambiguous. This will allow you to focus on your role and reducing the number of instances where the executive and legislature may be seen to have handed off their responsibilities.
“The Courts will sort that out” should not be a default position for a parliamentary lawmaker. We will play our part.
Independent, fair and efficient courts are an important cornerstone of our democracy and the rule of law, and courts are a key underpinning of social stability. They give confidence that our rights as citizens can be upheld; differences and conflicts can be resolved through law; our society can be protected from law breakers; and that the State can be required always to act in accordance with the law.
The courts do justice according to law, on the basis of clear, certain and determinate frameworks of legal principle. That sort of stability is not only essential to the rule of law and maintaining confidence in our legal system, but also facilitates government under law and economic growth.
New Zealand Judges are independent in their decision making and cannot be influenced by Parliament or the executive. They should hold us to account. New Zealand is not best served by courts that rubber stamp decisions.
However, the judiciary also cannot usurp the functions of the executive and the legislature. That undermines the system for everyone. While our common law method, of course, enables judicial development of the law that is to be done carefully, incrementally and being alert to the need to preserve certainty, stability and coherence of the law.
We all need to respect the roles each branch of government plays even when – in fact, especially when – it is inconvenient to do so.
King’s Counsel appointments
While we are all here together, I would like to remind you that applications for King’s Counsel are open until 9 June.
Appointments of King’s Counsel are made by the Governor-General on the recommendation of the Attorney-General and with the concurrence of the Chief Justice. The Governor-General may also appoint King’s Counsel in recognition of their extraordinary contributions to the law in fields other than advocacy. I take my role in this process very seriously.
I am proud to be the Senior Law Officer of New Zealand and to represent and advocate for lawyers.
However, whether it is judicial appointment or KC appointment, I will not reward poor interpersonal conduct with appointment to these important and influential roles.
If you experience rudeness or intolerance, overbearing or bullying behaviour, whether from judges or lawyers, please raise it through the processes available to you. Contact your law society representative if you need to know more about these options.
I will never apologise for having high standards. If there is one thing you take away from my remarks today, I hope it is a reinforced sense of how important it is for each of us to do our duty.
Do not underestimate the contribution of ensuring we speak the truth to each other and valuing what we each do. Together we all have our part to play in maintaining the trust and confidence of people, here and overseas – and long may it continue.
Thank you for your time today.
