New Zealand Law Society - Hon Margaret Wilson DCNZM

Hon Margaret Wilson DCNZM

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The Magna Carta today reads much like a coalition agreement to form government and in some ways in its historical context of the standoff between the King, the Barons and the Church, it was a political compromise. It was a list of accumulated grievances, many of which related to a reliable system of dispute resolution that evolved into the court system we know today. It was not a Charter of the People. It was, however, an important foundation in the building of a democratic system that took another 800 years to reach the representative democratic system we know today. It is a useful reminder that justice is dependent on institutions and procedures that are fair and are accessible. Litigants in the Family Court today may question whether this fundamental objective of the Magna Carta has not been forgotten in the interests of financial savings.

The 800th anniversary of the signing of the Magna Carta on 19 June 1215 has provided the opportunity for advocates of the rule to law to remind people why the notion is fundamental to democratic society. This is a timely reminder given the intention of the government in its Judicature Modernisation Bill to remove from the legislation a commitment to the rule of law by the courts. The reason for the government’s removal of a statutory commitment to the rule of law is unclear but the reasons for its reinstatement was sufficiently express in the submission of the Supreme Court, Court of Appeal and High Court to the Select Committee on the Bill. This submission from New Zealand’s courts has been ignored. The submission succulently explains the importance of the court system to New Zealanders. It reads as follows:

“The Judicature Modernisation Bill 2013 bears upon the balances struck by the New Zealand constitution in relation to the functions of the judiciary in a society based upon law. The matters covered are of importance to all New Zealanders. Being central to the exercise of judicial responsibilities, they are also matter upon which judges have particular perspective and interest, which we have thought it to be in the public interest to express. In the context of New Zealand’s largely unwritten constitution, constitutional values and balances can be easily overlooked. The Judicature Act 1908 is constitutional legislation because it is concerned with the jurisdiction and administration of the judicial branch of government. Changes to it therefore require particular care to ensure that they do not disrupt fundamental balances. Indeed, our preference is that the title ‘Judicature Act’ is appropriately retained as a more accurate representation of the foundational nature of the principal act constituting superior courts of record.”

If a public commitment by the executive to the rule of law is not fundamental to New Zealand’s constitutional arrangements, then it is difficult to think what is – beyond the supremacy of parliament and the executive of course.

It is unlikely we will see another gathering of the barons marching on Wellington to seek a renewal of commitment to accessible justice for all because the barons can afford their own private justice. One can only hope that that just as there was in 1215 some barons who saw beyond their own self-interest and provided the leadership to slowly but surely lay down the foundations for what today we have inherited as a system of courts that although under considerable resource pressure deliver the best justice they can within the constraints of public policy and funding.

Professor Wilson was admitted in 1971 and worked as a solicitor for Peter Jenkins in Auckland. She was a lecturer and senior lecturer at Auckland University law school from 1972 to 1990, and was a Law Commissioner from 1988 to 1989. She was appointed first Professor of Law and founding Dean at the University of Waikato in 1990. On 5 December 1999 she became a Labour list MP and was appointed to Cabinet as Attorney-General, a role she held along with other ministerial posts until 28 February 2005. Professor Wilson became the 27th Speaker of the House of Representatives from 3 March 2005 until 8 November 2008 when she retired from Parliament. In 2009 she was appointed Professor of Law and Public Policy at the University of Waikato.

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