Interview – van Bohemen J

Written by Jessica Kirton-Luxford

 

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Hon Justice van Bohemen graduated with an LLB(Hons) and BA from Victoria University in 1979.  He was admitted to the bar in February 1980.  He joined the Legal Division of the Ministry of Foreign Affairs and worked there and at the New Zealand Mission to the United Nations at various times over the ensuing years.  He was a Senior Solicitor at Russell McVeagh (Auckland), a partner for eight years in Buddle Findlay (Auckland) and a partner for one year in Chen Palmer (Wellington).  From 2005–2010, he was Director of the Legal Division of the Ministry of Foreign Affairs and Trade, and New Zealand’s International Legal Adviser.  From June 2010–April 2015, he was a Deputy Secretary at the Ministry, responsible for Multilateral and Legal Affairs. In May 2015 he took up the role as New Zealand’s Ambassador and Permanent Representative to the United Nations in New York and was New Zealand’s representative on the Security Council.  Justice van Bohemen was appointed as a High Court Judge in August 2017.


What is your elevator pitch for who you are and what you do?

Well, I guess I’m a judge now.  And so in in that sense, I just do the normal business of a judge, but my sense of self has always been that I’ve been very much a civil servant in the past with an international focus.

About two thirds of my career was spent in the Ministry of Foreign Affairs and Trade and about one‑third of that was spent in New York.  I had an unusual diplomatic career because I was only posted to one place – New York – three times.  So, there’s been a multilateral focus to my diplomatic career as well.

I was New Zealand’s representative to the United Nations on the Security Council, in 2015 and 2016, and I was posted to New York in the 1980s as a third Secretary.  Again, in 1993 and 1994, I was one of the deputies in the New Zealand mission when we were on the Security Council.

What do you consider your top few career highlights were prior to becoming a judge?

Being the New Zealand Ambassador on the Security Council when we were members of the Council was obviously a career highlight, and was something I was keen to do.  I think it went reasonably well, to the extent that a small country can have an influence on international events in that body.  We were lucky in the sense that it was the last years of the Obama administration, which was somewhat internationalist in outlook and prepared to use the Council to a moderate extent.  I think life has become more difficult since then for various reasons. 

The other career highlights I had including leading, from the New Zealand perspective, the negotiation of a treaty to regulate fisheries in the high seas area from Chile to Australia, from north of the equator down to Antarctica.  It was a very large stretch of the Pacific Ocean to try and get a handle over.  That was a significant achievement.

I was the Whaling Commissioner for a period.  It was very interesting, but it was a bit more problematic in terms of achievements.  In earlier parts of my career, I was very involved in negotiating and implementing arrangements for international cooperation in Antarctica, which was both legally very interesting given the competing positions on sovereignty in Antarctica and rewarding in the sense that most participants were committed to securing workable outcomes that enhanced cooperation and secured the protection of the Antarctic environment. 

You have quite a unique background for a judge, so how do you think your experience has influenced your work that you do now?

I’d have to say not a lot.  In a in a subject specific sense, I’ve only had a few issues with an international law dimension, as I was warned might be the case when it was suggested to me that I consider becoming a judge.

In the one case that I did have some relevant expertise, counsel objected to my sitting on a case about whether New Zealand’s phosphate trade with Morocco was consistent with the international position on Western Sahara, because the phosphate came from Western Sahara.  Counsel considered I was conflicted because of speeches that I’d given for the Government on the topic of Western Sahara.  Those were not speeches in my personal capacity, they were speeches for the government so there was no reason for me to stand aside.  However, I did not press the point.  I think the reality was that counsel didn’t want to have a judge who might know more about the subject than they did. 

The only other cases that have raised international law issues have been in the family and refugee contexts.  The Hague Convention on the return of children subject to custody orders has occasionally come up; the Refugee Convention also but less often.  More generally, human rights issues arise but the focus is more on the New Zealand Bill of Rights Act rather than the international agreements to which the Act relates.

One thing that I find difficult in a judging context is that in my experience in United Nations negotiations, one is looking for the middle ground to reach some kind of agreement.  Sitting in a court where the adversarial system encourages the people to take positions that are not aimed at reaching agreement but winning is sometimes frustrating.  Some counsel don’t seem to appreciate that winning means persuading the judge you are right, so taking extreme positions is unlikely to be useful.  We see quite a lot of that anyway, and a lot of time is wasted by people trying to make arguments that are not likely to succeed.

In your experience, how does international law interact with domestic law?

Well, that is reasonably settled in the sense that judges in New Zealand are quite familiar with referring to international instruments and using them as aids to interpretation.

The Supreme Court did that recently in a case where the question was whether a special discount should be made for a sentence for a person who had a young child who had developed an attachment to him.  They considered that it was consistent with the Children’s Convention to allow a separate discount for that.  I followed that decision when sitting as a temporary judge on the Court of Appeal.  But they were cases where the Convention was referred to, not as a rule, but to setting principles.  I don’t think there’s anything particularly special about that.

I’m just going to move to some questions more specifically about your experience as a judge.

What specifically made you decide to become a judge?

Well, I can’t say that it was it was a lifelong ambition to be a judge.  It was more a case of looking to do something useful at a time when I knew that my diplomatic career was likely to end. 

It was first suggested to me that I might be a judge in 2014 and at a time when I knew there was a good chance I would be posted to New York if New Zealand was elected to the Security Council for 2015/16.  I said yes, I was interested but not then.  I wanted to do it a bit later on, once I had the chance to be in New York.  This meant my time as a judge was necessarily more constrained time-wise than it might otherwise have been.

I did it because I wanted to do something useful.  I’d have to say I did not do enough due diligence before I said yes.  I didn’t really appreciate the nature of the role in terms of just how much work there is to do.  The role is also very different from being a senior civil servant.  I was used to having large teams of people working for and supporting me; whereas judges only have the support of a clerk and there are clear constraints on what they can do in terms of contributing to the final outcome.  Working alone and dealing with areas of law which I knew very little about in short order was certainly very challenging.

So on that vein, what kind of challenges and pressures have you faced in your kind of professional experience as a judge?

Well, keeping up with the work is the biggest pressure.  I had a very big case I had to decide, which I heard last year.  It was about contractual arrangements over a new town centre in Auckland.  Writing that decision took over a year. I found carrying the knowledge that I had a large and significant judgment to deliver very difficult, while also trying to keep my other work going.

All judges at the moment are feeling the pressure of the backlog of work that the COVID generated.  There’s a huge pressure on the court schedule that’s beginning to lighten now because they’ve made provision for some extra judges through judges staying on post retirement age.  The hardest part is just dealing with the pressure of that work.    

Are there ways that you manage your wellbeing in light of those challenges?

I can’t say I’m very good. I don’t have much work/life balance.  I have a spouse who’s a lawyer, and she works even crazier hours than I do.  It’s usual for us to have dinner and go back to our desks, sometimes even to have dinner at our desks.  It’s usual to work at least one, if not both days, on the weekends, simply because the pressure of work is such that you’re either writing judgments or preparing for something the next day.

What do you think is the most challenging or complex case you’ve presided over and how did you approach it? 

Well, in a legal sense that that the case I previously mentioned about the Westgate Township.  It was complex because it covered a 19-year history of relationships between the developer and the Auckland Council.

It was also complex.  On the one side, the developer said the contracts it made with the Waitakere and Auckland Councils only made sense if interpreted against the history of local government reform and planning development in Auckland.  On the other side, the Council did not deny that history or its general relevance but said the contract documents said everything about the parties’ legal obligations.  It took me a long time to understand that history and reach a decision on what it meant in terms of the interpretation of the contracts.  In the event I found for the Council, but my decision is under appeal.  At some stage we will find out if the Court of Appeal agrees with me or not.

Another hard case, a very different one, was a judge alone trial where a young woman was charged initially with causing the death of her child, which was later moderated to assault and failing to provide the necessaries of life.  I had to make decisions at the criminal standards as to whether I considered that the things she’d been charged with had been proven.  But being the judge alone in that situation is quite challenging.

On a more positive note, what are some of your proudest achievements or contributions in your role as a judge?

Well, I’m waiting to see what the Court of Appeal does with my decision on a very interesting accident compensation case.  It was similar to “right to die” cases that have arisen in Australia and other jurisdictions.  Through medical misdiagnosis, a woman did not terminate her pregnancy and her child was born with spina bifida.  The question was whether the child had cover under the ACC legislation.  I found that to be a very interesting case.

So how has your kind of perspective on the legal system and justice evolved throughout your appointment?

Well, certainly you see the human dimension of justice.  I once described our role as judges as society’s drain cleaners, which some my colleagues didn’t particularly enjoy.  But I mean, the truth is that the job of a judge is dealing with problems that people can’t solve for themselves.  And so you do have to do grapple with things that others don’t have to.

’’You do see things that other people don’t really think too much about other than for five minutes when they read the newspaper.  It’s a role where you have to just accept that there are things you can do and things you can’t do.

It’s odd, but I what I’ve had to come to terms with it is that a court is like a play.  There’s a beginning and an end in the sense that you come, you’re on stage, you write your judgment, and then it’s over.  Whatever happens afterwards, you can’t influence. 

It’s different from my previous role where you followed issues over a long time and often dealt with them in a succession of meetings and informal discussions – sometimes lasting over several years.  You also had many opportunities for informal interaction with the other participants and the opportunity to explore possible solutions.  I have learned that, in the High Court, there are few opportunities to explore options for resolving a problem.  By the time of a High Court hearing, the parties and their counsel tend to be pretty dug into their positions.

It touches on what you were just saying, but what do you think are the most significant issues and challenges facing the legal system today?

We are facing this problem about increasing violence.  I have my own theories about in the sense that I think with access to violence in an entertainment sense and also access to weapons, people are becoming inured to inflicting violence on each other.  This troubles me a great deal.

How do you kind of handle situations which you encounter in your role which may conflict with your personal beliefs and values?

I haven’t really had one where I’ve had to, but when you’re sentencing you have to follow the sentencing guidelines and other cases.  You don’t come into court and just impose what you think.  As is right, you impose what you think is just, having regard to established principles.

One of the hardest ones is bail, where you have people charged with but not convicted of crimes spending long periods of time waiting for trial.  But we also have to weigh the risks of somebody getting hurt or worse if they are allowed somebody out on bail.

So those are really difficult things to weigh, but I haven’t felt that I had to do anything that conflicted with my values.

Are there any legal or judicial figures that have significantly influenced your judicial philosophy?

That’s a really good question.  Because I haven’t really been a lot in this world, especially in the 10 years prior to my appointment, I hadn’t seen a lot of judges in action.  Earlier, when in private practice, I did go to court occasionally, but it wasn’t a big part of what I did.  I don’t have the knowledge of other judges that my colleagues did.  Because of that , I can’t really say that I tried to emulate any other judges.

It was difficult becoming a judge because it was the first job I’ve ever had to do without the chance to sit there and watch others do it.  My first day on the job, I had to go into court and do it having spent half a morning watching another judge do the duty list.  And then after that I was on my own.

Thankfully, we’re getting a bit better at training judges.  But the expectation was that most people came with experience of the courts and knew how they worked.

I enjoy the judgments of Kirby J from Australia.  During the COVID lockdown, when the challenge to the proroguing of the UK Parliament was on, I watched the Supreme Court for quite long periods, and I was very impressed with Baroness Hale:  the way she ran that argument and the way she delivered a judgment in very short order afterwards.  It was a very instructive thing, but also hugely impressive with respect to her command of the information and the way it was managed in the very deep political context.

What do you aspire to achieve in your role?

You are probably too young to remember this one, but PM Muldoon was once asked what he wanted to achieve in New Zealand.  He said he wanted to leave New Zealand no worse off than when he found it.  At the time, I found that uninspiring and the absence of ambition to make things better dispiriting.  But I now understand that there was an essential humility to the statement, even if I remain far from being a Muldoon fan.  I suppose I want the same in the sense that I want to make sure I do a good job.  I want to deliver appropriate justice, but I’m not looking to change lives or to write law.  I’m just trying to do a good job.

Have you been involved in any kind of initiatives or programs to improve the judicial system or increase access to justice?

In small ways to, say, improve some processes.  For example, in criminal jury trials, a number of us now make a habit of preparing our question trails early and sharing them with counsel, and making sure the jury has them before closing addresses and summing up, so that the jury’s got a reference point when they are listening to argument about what they have to decide. I think that’s an important thing, because people are listening for sometimes weeks on end, and most don’t take notes.  I think it’s asking too much of people to have them then listening to closing addresses with nothing in front of them.


I haven’t mentioned this, but one task that the Chief Justice gave me as one of my one of my responsibilities, which does have an international dimension, is that I’m responsible for the Pacific Justice Sector Program, which we are now trying to deliver to the countries of the Pacific.  This involves assistance to judges, court staff and the profession and also support to village and community level justice mechanisms.  Working out what to do and how to do it can be very challenging
We’ve taken over a program that was initially delivered out of the Australian Federal Court and we’re trying to bring it home to New Zealand, because it’s funded from the New Zealand Ministry of Foreign Affairs.  To use an analogy, it’s a very thin bit of butter over a large piece of toast because we don’t have a huge amount of money. It’s a large constituency, so deciding what you offer and what you deliver are very important questions.

The next few questions will have more of a future focus.

What do you see the future of the legal profession and the role of judges evolving to be in the coming years.

Sometimes I worry because computers, or information technology I should say, make it possible to put so much more information before judges.  We are becoming bombarded with material – both in terms of evidence and in length of submissions. 

I know this is difficult because they say, well, every argument has got to be given a chance.  But frankly, when you see the length of decisions we’re all writing now, because of the amount of material that’s being put in front of us, it’s getting difficult.  It also adds to delay which is itself an impediment to justice 

So finally, do you have advice for those who are maybe starting out or in their legal careers, or even who are more advanced, maybe even aspiring to kind of have a judicial pathway?

Well, if you were going to become a judge, I would encourage you have a broad litigation experience if you can.  Spending some time in the criminal law would be really useful because, as a judge in the High Court at least, you have a great deal of that. 

I would also discourage people coming from judges too early.  It’s a big job, the pressures are pretty constant.   If you become a judge early, I suspect the road ahead can look pretty long at times.  But then, there are people who really thrive in the court room environment so they may well have a very different take from me. I would encourage people to have a career at the bar or in firms for a good period before they became a judge.  But that’s just a personal take on it though.

Do you have any final closing remarks that you’d like to make?

Well, I mean, I’m very lucky in the opportunities that I’ve had.  Recently, I watched the biography of Yogi Berra, who was a famous catcher for the New York Yankees.  He was famous for his aphorisms, and one of them was ‘when you come to a fork in the road, take it’.

People kept saying, what does that mean?  I think I know; it means take the more different, less obvious option.  Well in my career, I didn’t have a long-term plan, but when opportunities came up to do something different, I did.

I was in foreign affairs.  I was not certain that I wanted to do something else, but the opportunity came to join a law firm.  So I did that.  I wanted to see if I could succeed in private practice, even though it took me well out of my comfort zone.  The opportunity came to go back to go to New York and I took that because I knew it would be exciting, even if it delayed becoming a partner at one of the biggest law firms.  After New York, I went to a different firm because that suited our family circumstances.  But after nine years, eight as a partner, I wanted to do something different.

By that stage, I thought I had pretty much done my chips with the Ministry but then there was treh opportunity to become the Director of the Legal Division and I grabbed it.  For me, that was the best job I had in my career.  I came to it later in my career than many of my colleagues who have done it.

But because I had done a lot of different stuff, it was fascinating to have that role, which covered the full range of activities in which the Ministry was involved.  I was confident about the institution I was working with, I knew it how it worked, and I knew the issues very well.  It was a very satisfying time, even if there were occasions where the Minister was not best pleased with the advice we were providing.

After five years in that role, I joined the Ministry’s Senior Leadership team for another five years.  That was stressful.  When I took on the role, the Ministry was in the midst of a change process that had huge impacts on colleagues, many of whom I had known for a long time and were friends. 

A big focus on the latter period of that job was on securing New Zealand’s election to the Security Council.  The real credit for that success lies with others but I had the satisfaction of selecting and supervising the team that delivered the result.  And then on New York for the third and last time.

After all of that, taking on the job of being a judge was a huge change.  I knew it would be, but I was surprised at just how big a change.  But, I am very pleased that I did it, even if I did find the first few years rather more challenging than I expected.

Thank you so much for your time and insights.  This has been a very interesting profile of your very extensive career.

Jessica Kirton-Luxford
Jessica Kirton-Luxford

Jessica Kirton-Luxford is a recent graduate of the University of Otago in 2022 with an LLB(Hons) and a BA, and was awarded the Otago District Law Society prize, given to the top two students graduating from the law programme. She was awarded the Prime Minister’s Scholarship for Asia and interned at an NGO in Toyko, Japan. Alongside experience in the commercial sector, she is a teaching assistant Victoria University of Wellington | Te Herenga Waka and has extensive faculty tutoring experience the University of Otago

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