National Blog of New Zealand

Garth McVicar recently made comment that New Zealand ought to adopt a system of judicial election.

Presently judicial appointment is governed merely by convention. Candidates are drawn from a pool of experienced senior counsel and appointed by the Executive after a not insignificant amount of vetting. This longstanding approach seeks; amongst other aims, to ensure the impartiality of the judiciary.

Judges need to be free from fear or partisan politics in delivering their judgments in order to do justice between the particular parties before the court.

Mr. McVicar’s suggestion that the election of judges is the only way to hold the judiciary to account is patently untrue. It seems only to emphasise McVicar’s misunderstanding of the purpose of the judicial branch of government.

There’s an air of hypocrisy and sophistry in suggesting that judicial elections will ensure accountability, if we unpack McVicar’s comments this writer believes what is actually saying runs something more like this:

“We need more ‘hanging judges’. We also need a way of removing any judge who in the public’s eyes fails to live up to the ‘popular’ mandate for more punitive sentencing”

Such a system runs contrary to the impartial application and interpretation of the law that the courts exist to provide. If judges are elected it would result in a more politically charged judiciary. The very nature of the political process could jeopardise the proper execution of judicial office “without fear or favour, affection or ill will.”

The policy that McVicar espouses has nothing to do with accountability and everything to do with injecting bias and prejudice into the courts.

Edward Ryan, former Chief Justice of the Wisconsin Supreme Court noted that the judiciary “represents no man, no majority, no people. It represents the written law of the land… it holds the balance, and weighs the right between man and man, between rich and poor, between weak and the powerful.”

Policy and value judgements are not to be done by stacking the bench, they are the realm and purpose of the legislature.

Harsher sentencing does not work. Criminals do not rationally weigh up potential sentences - the impetuses for criminal offending are far more varied and complex.

It’s time McVicar was ignored, his comments clearly illustrate the ill considered nature of his viewpoints. Why does this man remain the go-to guy when there are so many other people; both professional and academic advocating for a fair and effective criminal justice system?

Public funding for tertiary education comes from a limited pool, as do the academics and multitude of other resources that comprise a good tertiary qualification. The Tertiary Education Commission report to the incoming Minister stated that one of the key challenges facing tertiary education planning in New Zealand is how, “a university system featuring more differentiation between institutions can make best use of scarce resources.”

In the face of this statement the curiously branded AUTU (”Auckland University of Technology University”) will now offer the LLb (”Legum Baccalaureus”) or what’s commonly known as a law degree. AUT ‘differentiate’ their law degree by suggesting it will have a strong commercial focus by;

“Adopting themes (such as ideas of property); by using cases involving crime in a business context (rather than the murder/manslaughter type of offence commonly used in other law schools) to illustrate relevant principles in the Criminal Law paper; by using examples of business enterprises challenging decisions of government and local bodies in the Judicial Review paper.”

In a press statement made by the New Zealand Law Students Association concern was raised about the proposed curriculum, noting that AUT seem to have confused their experience in teaching limited commercial law subjects to Commerce Students with providing the widely balanced, well resourced, comprehensive curriculum that is necessary for offering a viable law degree.

The Council of Legal Education is required to moderate entry level examinations between law schools. However, it will be interesting to see how a Criminal Law paper can disregard the classical curriculum in favour of more simple regulatory offences and the like yet still remain as challenging to students as traditionally covered material.

Many institutions including the University of Auckland and AUT already offer ‘Commercial Law’ majors under their Bachelors of Commerce and Business respectively. There is no reason why then that the traditional Llb needs to be revised from it’s role of training fully versed legal professionals. Those with a penchant for commercial law may pursue such a course under an alternate degree or as a follow on specialisation from their Llb should they wish to practise. The existing law schools all offer commercial and business law papers which build upon a general legal education provided in the initial years of the Llb. The reasoning for which is that as the concepts learnt in the initial years are the central tenets of the operation of law in all spheres.

AUT states that, “Law graduates consistently have one of the highest employability rates of any groups of graduates with only 50 per cent going on to practise law.” It is well recognised that the market for law graduates is reaching saturation, particularly in these strained economic times and it is in the interest of existing institutions and students to oppose AUT’s new ‘commercial law degree’. If AUT plans to run a programme without the intention of its graduates practising law then such demand is already well catered for in existing business programmes.

The reason law has high employability rates is that employers recognise the holistic nature of the education provided by the Llb and the intellectual rigour it demands of students. Maintaining the value of the LLb is as much in the interest of students as it is in the publics. Being awarded an Llb is a prerequisite for admission as a Barrister & Solicitor of the High Court, a profession with duties to the justice system, one another, the public and the rule of law. It is everyone’s interest to ensure our society is well served by competent lawyers who are able to competently defend citizen’s rights and coordinate the framework of morality and commerce that is the legal system.

The perception of a foreign degree in most countries is based upon the perception of all graduates from that foreign nation awarded said degree. If one institution lets down the degree it will damage the international reputation worked hard for by the existing faculties.

AUT believe that the Auckland ‘market’ is currently, “underserved compared to other New Zealand major centres and Australian cities”. Entry into the University of Auckland’s law programme is competitive with typically over 1000 applicants applying and only 300 being accepted based upon their grades in the first year program. This entry requirement reflects the current strains on teaching resources, the need to ensure that applicants possess a sufficient standard of intellect and ability and in recognition of the limited demand for law graduates. It would appear that AUT’s target market will be students who don’t cut the mustard for the limited places in the University of Auckland’s Law School. University of Auckland lecturers apparently told first-year students who might not get into its shrunken second-year intake, to take a look at AUT - who seem excited at the prospect of having those who were not of the callibre considered suitable by UoA.

AUT is better off remaining focused as a technical institute and avoiding the more academic subject of law. New Zealand is well served by the existing law schools. It doesn’t need another law school targeting those who perhaps ought not be pursuing a profession which prides itself on the skills of reason and advocacy combined with academic merit, duty and integrity.

Lest the next Auckland University Law Students Society tshirt read, “If you go to AUT and study law, you’re a bloody idiot.”