Sian Elias: A voice for justice and fairness

The judgments of Lord Cook of Thorndon have left a profound mark on New Zealand. At his funeral the eulogy delivered by Chief Justice Sian Elias looked at his legacy. These are edited extracts.

Lord Cooke of Thorndon was a great judge. The finest we have produced. He was also perhaps the best-known in the wider community.

Through the work that came to him as a judge, he was involved in many of the major issues of the day. In law, he lifted our game. He made us proud to be New Zealand lawyers.

He made us see that we have a legal system with its own values and traditions and he taught us to prize it. At the same time, he was a great judge of the common law and he kept us connected to the wider world of legal thought, which he himself did so much to develop.

Robin Cooke was an outstanding legal scholar. Professor Williams at Victoria University College rated him the finest student he had taught.

While a clerk at Chapman Tripp he hung around the courts, watching. He believed that listening in court to real cases was one of the best forms of legal education, and regretted that the exigencies of modern legal practice seemed to leave little time for such activity.

He worked his passage to Cambridge in 1950 as a purser's assistant on the Rangitoto, something most of us will find difficult to imagine.

He was a research fellow at Caius College and the young Cooke was in the vanguard of the intellectual movement that would, in 1982, lead Lord Diplock to say that creating a system of administrative law was the greatest achievement of the English courts in his judicial lifetime. (A claim for England that the Lord Cooke would later suggest was a little immodest considering the lead given by Canadian and New Zealand case law.)

It seems safe to conclude that the approach the young Lord Cooke brought to his own work was shaped not by paternal conditioning [his father was a judge] but by the expansive experiences of Cambridge and his intellectual preferences.

He may also have been influenced by the time, which was one of intellectual and artistic flowering in New Zealand.

Law was a slow starter in the move towards emancipation from English influence. It was not until the 1960s that New Zealand judges started to shed what JL Robson and others have called essentially derivative thinking, hanging off the latest English cases.

And it was not until the 1970s that New Zealand judges started to strike out independently with any real assurance. The appointment of Mr Justice Cooke in 1972 was key to the development of a distinctive New Zealand jurisprudence from that time.

Lord Cooke disliked labels, categories and other such impediments to the demonstration of legal principle in action. He was impatient of those who hankered after illusory certainty in law, pointing out that the untidiness of life didn't allow things to be cut and dried.

He was fond of quoting Lord Wilberforce's rejection of "the austerity of tabulated legalism". He preferred direct reasoning, to achieve realistic and common sense solutions which met human expectations. He believed in practical justice that delivered fair and reasonable outcomes.

His impact on New Zealand law has been immense. Many judicial colleagues have mentioned their reliance on his judgments, always the first cited by counsel, and in all areas: Criminal, family, equity, negligence, and contract.

It is the public law judgments for which he is principally known by the wider community. Huge advances were made in natural justice, in judicial supervision of executive power, in human rights, in remedies, and in the insistence that questions of law are always ultimately for the courts.

It is not only in the substantive law that Lord Cooke has had such impact.

In 1956, on his return from Cambridge, he criticised the New Zealand judiciary for its "unquestioning compliance" with English case law. He advocated closer examination of academic criticism and the case law of other jurisdictions, including the United States.

And from his time on the Court of Appeal there has been a revolution in legal method.

It is hard to remember now how precious we were about citing the works of living authors, or US materials, or non-legal publications.

In 1977, he held that the Minister of Education had been wrong to discriminate between male and female married teachers for the purpose of a removal allowance.

Although the blow for the equality of women was welcome, the principal significance today is that Mr Justice Cooke took into account the Universal Declaration of Human Rights and the Declaration on the Elimination of Discrimination against Women.

It was a leap we in New Zealand now take for granted but which was breathtaking then.

Lord Cooke was of the view that we are moving, slowly but inexorably, to a common law of the world, built on human rights. He regarded the Universal Declaration of Human Rights as "the most important document in legal history".

Lord Cooke believed it is not the role of the judge to mould society.

Other forces lie at the root of social change and the judge has an identifying and balancing function.

Lord Cooke said in an obituary for Lord Denning, but which I think applied also to his own approach to judging, that Lord Denning would not think of himself as a social engineer, one who altered people's lives. Rather, he was "one who laboured to ensure that they got better justice as they lived their lives".

A great virtue of legal process in difficult cases, where society is unsettled, is its deliberation and impartiality. After the Court of Appeal hearing of the Maori Broadcasting case, brought to try to get Maori language on New Zealand television, two of the plaintiffs said to me: "Win or lose, we feel we have been heard at last".

We lost. But we should not underestimate the human desire to confront issues that matter in formal process before a disinterested tribunal. Lord Cooke understood that need, and that the courts contribute to good government and nation-building by responding carefully and honestly to it.

The Treaty cases stand out. They were truly awful cases for all involved. So much was at stake. People who felt they had nothing to lose and no other option came to Molesworth Street to express their expectations of justice. The expectation of justice through law had been a theme at Waitangi in February 1840, in the great drama which started our nation off. In [his book]Portrait of a Profession Lord Cooke had expressed doubts about the Treaty's status.

They may be taken to indicate that counsel has been driven to desperate straits.

Of course in the cases he had to decide, Parliament itself had imported the "principles of the Treaty" into the State Owned Enterprises, so the straits were not quite as desperate.

And the Treaty of Waitangi Act and the work of the Waitangi Tribunal had broken down a wall of ignorance. The courts were a different matter.

In the end, he said of the Treaty "a nation cannot cast adrift from its own foundations". But, reflecting on the first of the cases to come before the Court of Appeal, he has acknowledged that he was not readily led to the result. However, he said "it would have seemed an abdication of judicial responsibility to decide otherwise".

Lord Cooke was conscious of the dangers for the court in such cases. But he was of the view there is not much point in accepting judicial office unless one tries to accept the unwelcome or disturbing, but independent, responsibilities that go with it.

I never asked him, but it seemed to me that the breakthrough came when David Baragwanath, leading counsel in the case, read out to the court the affidavit by Whina Cooper, in her own words, when she talked about the hills behind her home at Panguru on the Hokianga. I saw tears come to the eyes of the President.

I have not touched adequately on the great compassion of this man. His humanity, shown in many cases on many different topics, and underlying his deep commitment to human rights.

His great courtesy to counsel. His interest in young lawyers, and the great encouragement he gave to so many of us, including women lawyers at a time when the profession was not entirely supportive.

He was a great New Zealander, and his pride in our country, its people, and its history is shown in his choice of arms on his elevation to the peerage.

They depict two black robins above a shield divided by a cross containing in the four quarters four volcanoes in silver, "inflamed". A reference to the explosion of Mt Ruapehu. The motto is Pro Aequitate Dicere - speak for fairness. The supporting figures are a mid-19th century captain of the Royal navy (in evident reference to Captain Hobson) and a Maori warrior.

These arms speak of Robin Cooke's love of the landscape of New Zealand, our foundation as a nation in the Treaty of Waitangi, and his life's work in speaking for fairness and justice.

We have had other great judges, and we will have more. But I do not expect to see in my lifetime one such as this.