INTRODUCTION

Sir Geoffrey Palmer has expressed the view that ‘the New Zealand judiciary is an understudied institution’. I agree wiThthat evaluation, and am very pleased to have this opportunity to add incrementally to judiciary studies as part of this tribute to the career and work of Bruce Harris. The invitation to contribute also affords an opportunity to respond, however belatedly, to the plea of the Hon Justice John Priestley in the Henry Harkness Lecture, when he said:

As my title of this contribution suggests, I am concerned here with the position of the courts as well as the status of the judiciary. The two topics are interrelated in rather complicated ways, but my thesis of this contribution is that because of this interconnection, the judges are quite widely perceived as being, without more, a species of civil servant. This chimes wiThthe remarks of the former Chief Justice, Dame Sian Elias, who expressed related sentiments concerning the status of the courts:

What Dame Sian complains of, in effect, is that the separation of powers, the set of common law constitutional principles that seeks to treat the legislature, the executive and the judiciary as separate institutions, is not being fully respected in the New Zealand context, at least so far as the judges are concerned. Justice Priestley made a similar complaint, referring to an incident when he was identified on a name-plate at a seminar as ‘Justice John Priestley from the Ministry of Justice’. His point was that ‘a judge is … part of an arm of government, independent, and performing a vital constitutional role’, rather than a civil servant, which his maladroit labelling implied if not asserted. The significance of the point is, in the words of Professor Aileen Kavanagh that: