New Zealand constitution vulnerable: Chief Justice

AUCKLAND: The first Chief Justice of the Supreme Court has urged New Zealanders to embrace the strands from which the country’s piecemeal constitution is woven or risk a rigid and formal framework.

Chief Justice Dame Sian Elias, in one of her final public addresses in the role, spoke of New Zealand’s ‘‘dynamic constitution’’ built from ‘‘a collection of fragments of old statutes and modern ones . . . and case law’’.

‘‘It is fragile. It is not well known. It is like a cat’s cradle. It is easy to move a strand here and not realise the damage done there.’’

She said it required constant vigilance by everyone, otherwise if it was the preserve of only lawyers and judges, ‘‘it is vulnerable’’.

‘‘Unless we are prepared to work harder at maintaining our dynamic constitution, one of the big questions that will have to be faced in the years ahead is whether the risks of impercep tible erosion will drive us to adopt what my Australia friends like to speak of as a ‘Capital C’ constitution.’’

Dame Sian is due to stand down next March, having reached the compulsory retirement age of 70 for judges.

The Government is in the early stages of choosing a replacement. Attorneygeneral David Parker has been briefed on the process, and the Prime Minister will make the final decision.

Dame Sian delivered the speech in Auckland as the Maxim Institute’s Sir John Graham lecture, the first given since his death last August.

In speaking on New Zealand constitutional underpinning, she described centuries of legislation and declarations, and the role of common law created through court judgements.

Dame Sian said she was not seeking to provoke and was ‘‘content to accept that the courts are junior players in the development of law’’.

But she said common law was an agent of change, with legal precedent bringing modernity to statute.

Speeches by Dame Sian have caused controversy between her and previous governments.

Her ‘‘Blameless Babes’’ speech in 2009 criticised punitive sentencing policies and brought a sharp rebuke from thenjustice minister Simon Power.

Dame Sian rose to the Supreme Court when it was formed in 2004, having been appointed Chief Justice in 1999. — NZME