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Matthew Muir, Welcome to the High Court

Sat 6 Dec 2014 In: People View at Wayback View at NDHA

The following address was delivered yesterday afternoon by Dame Sian Elias, the Chief Justice of New Zealand, welcoming this country's - and one of the world's few - openly-gay High Court judges to the bench. In welcoming Justice Matthew Muir to the bench, Dame Sian acknowledges his partner James Peters, his academic and professional qualities, the changes brought about by the Homosexual Law Reform legislation and the way in which Muir's homosexuality will add a broader dimension to the diversity of life experiences brought by the judges to the High Court. (The headlines below have been inserted by to assist the reader. We acknowledge the assistance of Dame Sian in ensuring this address was made available to the glbti communities so quickly.) Dame Sian Elias Te whare e tu nei, Tane Whakapiripiri, e tu rangatira koe E nga mate, haere atu ra. E nga kanohi ora o ratou ma Nau mai, haere mai ki tenei hui a Te Kooti Matua. Tena koutou katoa. This House I have acknowledged, has seen much since it first opened in 1868. I have greeted it and acknowledged those who have passed through it and who are no longer with us. I have greeted you who are here, the living. This is a public sitting of Te Kooti Matua, the oldest court of New Zealand, the High Court of New Zealand. I want to welcome particularly the family and friends of Justice Muir. Especially James, to whom we should express gratitude for supporting this next step in the career of his lifetime partner, despite what I know have been distinct reservations. We will do our best to dissipate those. All those who are here because of their friendship or family connections with the Judge are welcome participants today. That he undertakes this work with your support is essential. Judging is necessarily lonely work. But if a Judge is aloof from human contact, he or she will not be well equipped to serve in this capacity. So family and friends are a very important part of this public undertaking now and in the years ahead. I acknowledge the presence of former Judges of the Court of Appeal and High Court. They attend to mark their approval of this appointment to the tradition of service to which they have themselves contributed so much. I also acknowledge the presence of judges of other benches. The administration of justice in New Zealand is the work of many benches and many hands. Matthew Muir is sworn in as a High Court Judge FITNESS FOR THE OFFICE The swearing in of a new Judge of the High Court is a happy occasion, but also is solemn undertaking. The happiness arises from the goodwill which always attends public recognition of fitness for high judicial office. We know it has been earned by the application of outstanding professional qualities over many years of practice in demanding work. So it is a great pleasure for all of us to acknowledge publicly our admiration, gratitude and respect for what you have done to date. And I want to speak briefly to that work which has fitted you for judicial office shortly. But first it is right to acknowledge that an occasion such as this is solemn because it is more than simply a rite of passage in a career. When a new judge is launched, the obligations and expectations we have are all referable to the judicial oath. This office is not a prize or a destination but a promise of vocation in which appointment is justified through work to come which fulfils the promises undertaken. ON THE JOB AHEAD Although familiar, the oath is never far from mind. Doing right to all manner of people after the laws and usages of New Zealand takes industry, insight, imagination, firmness and kindness. It is not easy. One of the greatest judges of the common law, Benjamin Cardozo admitted that there were times when he had despaired of ever being able to decide one way or the other in a difficult case. Then, suddenly, as he put it, the fog lifts Although he acknowledged that the difficulties of coming to decision meant that “in a vague way” he understood that some others might doubt the conclusion he had reached, for him, the judgment had “become the only possible conclusion, the antecedent doubts merged, and finally extinguished, in the calmness of conviction”. That calmness of ultimate conviction after effort is one of the greatest rewards in judging, as your Honour will find. All judges know we are privileged to undertake this work on behalf of the community and that it is solemn trust. No one makes decisions affecting others casually, all judges wrestle with the fear that we will fall short of our obligations and work injustice. The decisions we are called upon to make have capacity to harm or wound and may change the lives of others. That is why one great judge says that, when judging, judges are themselves on trial and the same judge speaks of the “chains that bind us” as judges. Knowing and observing those chains takes technical skill and effort: judicial authority always has to be justified in reasons publicly given. This is not a job where you can coast or cut corners or even prioritize effort to any great extent, because your obligation is to the litigant immediately before you and it is to do right according to law. No one here has any doubt that Your Honour will be an outstanding judge. You are one of Her Majesty’s counsel, learned in the law. And in that outstanding company you are someone highly respected as effective and experienced counsel. Yours is the traditional appointment of a top silk. And very welcome indeed for that, because there is no surer prediction of fitness for judicial office than practice in the first ranks. A silk, as Sir David Baragwanath is fond of pointing out, must be fit to go to sea in all weather. And as a judge you will find that you never know what weather will blow in. Judges have no control over the work that comes through the door. It is part of the attraction of the job, but it is also one of the challenges. And there is always the odd cold shower delivered by the Court of Appeal just when you think you are getting the hang of things. Of course, the knowledge that the Court of Appeal is there is huge comfort for busy trial judges forced to make determinations under pressure. So although it is sometimes bracing, the knowledge that the Court of Appeal is available to correct errors is reassuring. MUIR'S PATH TO THE JUDICIARY Your Honour’s success at the bar followed a strong academic record at Auckland University and later at the University of Virginia. You have been in practice for more than 34 years, and at the bar for half of that time. After standing out in commercial and banking litigation work at Buddle Findlay, you went to the bar in 1995. You were closely associated there in your early years with the late Richard Craddock. And there was no more astute spotter of young legal ability or better mentor. It is a matter of real sadness that Richard is not here to see you take this step. But he must have known it was something that would come to you, if you wished to undertake it. Your practice concentrated on some of the more difficult areas of law: banking, negligence (particularly onerous litigation concerning professional duties, including a number that arose out of the collapse of the secondary finance market). You have also been instructed in major property disputes, including in respect of leaky buildings, an area of work that has dominated civil litigation in the last 15 years. You have had a special interest in aviation law, arising out of your own interest in flying. You have been an acknowledged leader at the bar in these and other areas of practice. SEXUAL ORIENTATION AND SOCIAL CHANGE So, you are a judicial appointment in the very best mould. In addition, however you bring personal qualities that equip you to be a great judge. When the Attorney-General asked me to follow up with you whether you would be willing to take appointment at this time, you had only one real question for me. It was whether your appointment would be seen as one to increase the diversity on the bench. I was taken aback by that question, because I had seen you as an appointment in the traditional model – a heavy-hitting senior silk. I’ve reflected on that reaction in the last few weeks. I now think that my initial response of surprise at your question showed insufficient insight into the qualities you bring to the bench.   In defence, I should say that those of us who have lived through momentous social change sometimes forget how recent it all was. And how bad things were. There has been a revolution in our lifetimes in the position of those who are different because of gender, or race, or sexual orientation. I do not suggest that all the barriers are down. But we have come a long way. And I think it would be wrong not to acknowledge that on this occasion. And to acknowledge that you personally played a significant role in bringing about change by advocacy in the 1980s and indeed by your own example. DIVERSITY AND THE BENCH Those who have had different experiences as members of minorities or indeed majorities which have faced discrimination bring important perspectives to judging and influences on the way the courts operate. The visibility in positions of authority of members of such groups is important in itself. So too is the contact which makes it impossible for their colleagues to maintain unconscious biases. I have spoken on a number of occasions on the influence I think women judges have had in breaking down former assumptions about gender roles held by judges at the time when I first started practising law. Familiarity breaks down misconceptions. As importantly, distinct experiences and perspectives are themselves essential if the law is to be applied in the context of modern society. If the law is to be kept fit for purpose it must be applied with consciousness of the values and ethics of the society served. Dame Elizabeth Evatt, an early female judge in Australia argued – I think convincingly – that women and minority judges are more likely to realise how often claimed objectivity is marred by unconscious biases. It was said of Judge Thurgood Marshall, the first Black American to be appointed to the Supreme Court, that his compassion was “Exhibit A for the proposition that judicial reason cannot be divorced from the life experiences of judges”. In women judges like Justice Mary Gaudron of the High Court of Australia or Brenda Hale of the UK Supreme Court you see sometimes a slightly different take on matters, perhaps particular care about human dignity, a scrupulousness not to wound or slight, a heightened insight into the disadvantage of those who come before the courts, a willingness to express doubt, and a sense of obligation to explore underlying principle. Their insights have affected their colleagues who have had less complicated paths to the bench, less experience of humiliation and set back. They too in their work are Exhibit A for the benefits of diversity in appointments. Your Honour, you bring these insights and strengths too. And they will enhance the administration of justice in New Zealand. You are a man of high integrity, impeccable judgment, courage, unfailing courtesy, and deep humanity. There is no fear that you will fall short of the obligations you have undertaken today. You have all the skills and attributes to make a very fine judge. That is why we are so glad to have you join us. On behalf of the judiciary it is my privilege to welcome you and wish you happiness in your judicial work. No reira tena koutou, tena koutou, tena ra tatou katoa.     Dame Sian Elias, Chief Justice of New Zealand - 6th December 2014

Credit: Dame Sian Elias, Chief Justice of New Zealand

First published: Saturday, 6th December 2014 - 10:50am

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