NZ's legal world mourns great jurist

Lord Robin Cooke

Barristers throughout New Zealand will mourn the death of former Appeal Court President Lord Robin Cooke of Thorndon, the New Zealand Bar Association says.

Chief Justice Sian Elias said Lord Cooke had touched every area of New Zealand law.

Lord Cooke, one of few New Zealanders to reach the peerage, died in a Wellington hospice on Wednesday night, aged 80.

He retired from the Bench in November 1995 after 23 years as a judge and 10 as Appeal Court president.

Bar Association president James Farmer, QC, said Lord Cooke was without doubt the pre-eminent jurist in New Zealand's history. "Recognition of that fact was evident from his appointment as a Law Lord, sitting not only in the Privy Council but in the House of Lords hearing appeals from the courts of the United Kingdom.

"He was and is the only New Zealand judge ever to have been accorded such an honour.

"There were few areas of law, and certainly none of importance, that his judgments did not affect."

Mr Farmer said Lord Cooke would be most remembered for his work in public law, including Maori rights.

Criticisms of Lord Cooke for what has been termed judicial lawmaking, or judicial activism, were misplaced, he said.

Controversy swirled around Lord Cooke's court in the 1980s, when he was instrumental in writing the principles of the Treaty of Waitangi.

Critics said he had crossed the line from interpreting the law to making it.

However, Mr Farmer said Lord Cooke had a "very keen appreciation" of the judicial role.

"That meant to him searching for the intention of Parliament in enacting a particular piece of legislation and, if confronted with the inevitable anomalies and imperfections of legislative drafting, interpreting the statute in a way that was faithful to that intention.

"He also had an accurate understanding ... of the fact that the common law developed in the hands of judges to keep pace with the changing needs and conditions of contemporary society."

Sir Geoffrey Palmer, Attorney-General and later Prime Minister at the time, agreed, telling National Radio Lord Cooke's work was a "legitimate act of interpretation".

Grant Morris, who teaches legal history at Victoria University, said Lord Cooke's court did not intrude on government authority. "The Government of the time threw that responsibility to the court by not detailing what those principles were.

"If Parliament was unhappy with it, then they could have passed legislation to specify what they believed the principles were."

Mr Morris said Lord Cooke changed the Treaty from a contradictory 19th-century document into something that worked today.

- NZPA