The President's Column - November 2024

In my first month in the job, I have carried on the work of my predecessor Maria Dew KC; shadowing Maria before taking over has been a very good introduction to the new role.  

I have found that “business as usual” involves a good deal;  the pleasure of attending and speaking at dinners for newly appointed King’s Counsel in Christchurch and Auckland ( with some worry about saying the right or wrong thing), meetings with the Association’s insurance brokers and the insurers for the annual renewal of the insurance scheme provided for our members; management and Council meetings to settle on budgets, upgrade of administration systems and agree on decisions to develop our training for members. 

There is some new ground for me in this. But I have been most struck by the number of issues on which we have to decide whether to make public comment. I had expected that this might be a challenging part of the work, but it has been more difficult to get used to. Like most of our members who practise in the courts I am used to a default position of not commenting publicly; often because it is simply not permitted or is not my job or because it is often inconsistent with the aim of the work.

This background and instinct make working out the right approach to public comment difficult and troubling particularly where there are so many issues that we might comment on and everyone seems to publish comments everywhere.

One of the Association’s roles is to promote the rule of law. This term is much used (and misused); it can really be used to mean what you want in any debate. Comment on rule of law issues might cover anything that is concerned with the working of the system that produces the legal order in our country.  So, the reasoning might be, if an issue can be said to concern the rule of law, the Association should consider commenting. But that is not much by way of guidance given the breadth of what can be said to involve the rule of law.  

Considering the various issues that arose in the media in my first few weeks brought me back to our role as barristers in the system that makes and applies the law in New Zealand. The rule of law might broadly be said ( paraphrasing Sir Tom Bingham) to involve a system that aims to have clear laws that are publicly made and administered openly and applied by independent courts equally without discrimination; in such a system particularly where the law is ever more complicated, the role of independent lawyers advising and representing parties on the legal issues before the courts is as important as the independence of the judges.

Like many members I suspect I became a barrister because I liked the idea of doing a job that required independence to arrive at reasoned and just answers to specific problems; it had nothing to do with politics and the politics of any barrister was not relevant to the job. As a young lawyer I don’t think that I thought much about the bigger picture; I went from case to case doing my best (and still try to do that). But over time you do come to appreciate that the work of barristers and their independence in doing their job is as important to the constitutional balance that makes up the rule of law as the independence of the judiciary.  

Upholding the Bar’s role in the constitutional balance is important. I think that this provides a reasonable guide or starting point when considering the issues on which we should comment – matters that concern the work of barristers in our courts, ensuring that our work is understood and recognised, that the work is properly supported so that it is available to all, that the justice system is functioning effectively.

That does not mean that we should not comment after good consideration on the operation of our constitutional system more broadly where that is necessary, but I think the focus of our public comment should be on the issues that affect our ability to provide the independent representation for all that the functioning of the rule of law in NZ requires. Comment on many current issues can readily tend towards politics.    

Over the next few weeks, I look forward to meeting many of our members at various regional functions before the Christmas break.

Paul David KC