The Judicial Conduct Commissioner's preliminary inquiry into Justice Bill Wilson's conduct has begun. Did you notice how much our constitution has changed?

I've already posted on the curious case of Justice Bill Wilson and his failure to step aside from deciding a case in which he had a fairly substantial conflict of interest, looking at the Supreme Court's ultimate response to that failure. As I noted at the end of that post, that failure also produced a complaint to the Judicial Conduct Commissioner by one of the parties to the case.

I won't revisit the background to that case (there's an account of the saga's history here). Instead, now that the Judicial Conduct Commissioner has begun his work on a preliminary inquiry into that complaint, I want to look at what this work actually involves and where it eventually may lead. Because, Justice Wilson's case has caused me to look at the law governing how judges get investigated and ultimately sacked in New Zealand, and that law is pretty interesting.

Let's start with the obvious: how to judge our judges is a problematic and age-old question (hence the pompous latin tag to this post). There are good constitutional reasons for insulating judges (at least, judges in the higher levels of our court system) from interference by the more political branches of government, meaning that it would be completely inappropriate to apply normal, everyday modes of public service accountability to them. However, the power that judges wield in society (as well as the fact that they are but human beings with all the foibles and frailties that entails) means that some process is needed to investigate and discipline them in cases of misbehaviour.

At the start of the 18th Century, a compromise of sorts was worked out in the UK through the Act of Settlement. Under this legislation, judges retained their jobs quamdiu se bene gesserint (during good behaviour) and could only be removed from their position following a vote of both Houses of Parliament. Short of this ultimate sanction, which has never been invoked, judicial discipline was a matter for the judiciary itself to apply in the form of professional self-regulation (either through the formal appeals process or through unofficial back room pressure and sanction).

As a child of the UK's legal tradition, New Zealand inherited this compromise position. We reaffirmed it as recently as 1986, with the Constitution Act, s.23 stating:

Protection of Judges against removal from office

A Judge of the High Court shall not be removed from office except by the Sovereign or the Governor-General, acting upon an address of the House of Representatives, which address may be moved only on the grounds of that Judge's misbehaviour or of that Judge's incapacity to discharge the functions of that Judge's office.

However, effectively leaving matters of judicial conduct in the hands of the judiciary itself raises obvious concerns regarding self interest and percieved fairness. Can judges be counted on to police each other's behaviour and to respond appropriately to lapses of conduct? Is it acceptable for complaints about judicial behaviour to be dealt with in secret? After all, if it is not only important that justice is done but that it also is seen to be done in the courtroom, does that not also apply where it is a judge's actions that are at issue?

Such concerns led Parliament to pass the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. This enactment was intended to establish a new and somewhat more transparent process for dealign with complaints about judges. (In a commendedable move, the parliamentary drafter included a diagram of how the process works as a schedule to the legislation.)

To summarise, the Act establishes the office of the Judicial Conduct Commissioner, to whom complaints about judges may be directed. He - the current Commissioner is Sir David Gascoigne - undertakes a preliminary inquiry into that complaint. After this inquiry, he must either:

  • dismiss the complaint - but this only happens if the complaint is about a matter outside the Commissioner's jurisdiction (i.e. it relates to the judges decisions reached during a court case) or is too vexatious or trivial to bother about; or,
  • pass the complaint on to the top judge of the court the complained about judge sits on, with the top judge to then decide what disciplinary action to take; or,
  • recommend to the Attorney-General that a Judicial Conduct Panel be set up to further investigate the matter, because the complaint looks serious enough to justify sacking the judge.

Outcomes one or two do not then change the previous position all that much (although the fact that the Commissioner has deemed a complaint serious enough to pass on to the top judge, along with possible publicity about that fact, may help ensure he or she takes some further action). Outcome three, however, results in another new process. A Judicial Conduct Panel (which must consist of two Judges, ex-Judges or experienced lawyers and one lay-person) conducts its own public inquiry into the complaint. At the end of this process, it provides the Attorney-General with a report on whether it believes the complaint justifies the judge being removed from office.

Here's where things get a bit interesting. The Attorney General doesn't have to follow the Panel's advice that a judge should be removed (although the probabilities of an Attorney General refusing to do so are vanishingly small). But assuming he or she chooses to do so, what happens then?

Well, it depends on what sort of judge is at issue. For a lower court judge, the Attorney General can simply advise the Governor-General to sack him or her. But for judges in the Employment Court, High Court, Court of Appeal and Supreme Court, the extra protection given by the Constitution Act 1986, s.23 still applies. They can only be sacked "upon an address of the House of Representatives", meaning that Parliament has to vote for their sacking.

However, here's the kicker. Under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s.33(2):

A Judge must not be removed from office unless a Judicial Conduct Panel has reported to the Attorney-General that it is of the opinion that consideration of the removal of the Judge is justified.

So in other words, Parliament effectively has outsourced the decision on whether a judge's misbehaviour or incapacity are serious enough to justify sacking him or her to the Judicial Conduct Panel that examines the particular complaint. Yes, in theory Parliament could refuse to vote in favour of removing a judge (if that is the Panel's recommendation), although in practice I can't imagine this happening. But Parliament has bound its hands in that it cannot vote to remove a judge from office unless a Judicial Conduct Panel tells it this is the right thing to do.

All of which is a fairly radical reworking of the position established some 300 years ago by the Act of Settlement. Not that change is necessarily a bad thing. And there certainly is precedent for Parliament handing off its powers to outside bodies (think of the decision to let courts decide contested elections, or the Representation Commission draw up electorate boundaries). But it is a change that rather happened under the radar and without much fanfare - as do so many of the constitutional amendments in this land.

Oh - one final note. In drawing attention to how judges may eventually get sacked, I in no way mean to imply that this is likely in Justice Bill Wilson's case. For one thing, I suspect (and certainly hope) that the issue will not be deemed serious enough to warrant a Judicial Conduct Panel being established. For another, any judge who faces such a panel most likely would choose to resign rather than face the embarrasment of what is in effect a public trial for misbehaviour.

 

Comments (7)

by BK Drinkwater on January 20, 2010
BK Drinkwater

Yikes. I think I remember sitting in the House when this passed third reading. Judith Collins was in full attack dog mode, during what must have been an otherwise boring day. (I was a real peanut gallery nerd for a couple of years.)

I ain't no lawyer, though; so while I thought the law itself was interesting, I didn't really appreciate its significance.

by Graeme Edgeler on January 20, 2010
Graeme Edgeler

The diagram is a great idea, but I note that section 3 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act (what a name!) states that the diagram is intended a guide only.

This is probably a good thing, because I believe the diagram is wrong.

Judges of the Court Martial Appeal Court, and Judges of Court Martial, also have security of tenure, and are subject to the JCC (ref: JCCAJCPA, s 5), and may only be removed by the Governor-General/Sovereign acting upon the address of the House of Representatives (ref: Court Martials Appeals Act 1953, s 3; Court Martial Act 2007, s 16).

It's kinda odd, because District Court judges can be appointed as judges of Court Martial (ref: CMA s 11). [four currently are], and as you note, District Court judges can be removed without an address from the House of Representatives.

But that's really an aside. I did note the change when it happened. I thought it added to the independence of the judiciary, so it seemed a good idea, and I didn't really think too much further about it. I wonder how many other lawyers did the same?

by N. McIntyre on January 20, 2010
N. McIntyre

A forgotten aspect of judicial conduct is the actual process for appointment to the Bench. Is there a transparent, robust and accoutable appointment process? I'm not convinced there is.

I worked for the Ministry of Justice in the 1990's at a time when two Judges were caught out fiddling their travel expenses (they would claim overnight hotel/meal allowances even though they had driven from Northland back to their homes in Auckland at the end of the day).

One Judge (the more junior of the two) had the decency to resign his Warrant and plead guilty to some charge, whilst the other clung onto to his appointment, pleaded not guity and got off. He was transferred from the criminal bench and appointed to only hear ACC appeals. For all I know he may still be there.

After this episode the Ministry examined the judical appointment process and found it wanting, notably the lack of checking of a lawyer's background prior to being appointed a Judge. The Ministry considered introducing credit checks, director/shareholding checks (for conflict of interest) and the formal interview of referees.

Officals took their proposal to (if I recall correctly) the Chief District Court Judge, but he dismissed it out of hand immediatly, noting that referee interviews in particular could lead to considerable embarrasment for the candidate if something derogatory was uncovered and s/he were not subsequently appointed to the Bench. Referees would then know that their colleague had missed out - oh the embarrassment!.

So the "old mates" network is still in place, where a lawyer gets a quiet tap on the shoulder and simply signs a declaration (which is never verified) that there is nothing in their background that makes them unsuitable for appointment to the Bench.

All MP's are now required to disclose their pecuinary interests annually and a similar register should be considered for Judges, although it may not be necessary for it to be made public, but it should exist.

A retired Judge on the North Shore is currently facing charges for $4,000 of damage done by "keying" a car parked close to his apartment driveway. Apparently over time many cars parked in the same place have been "keyed", but finally the Police laid charges supported by eye-witnesses. If this former deputy head of the Police Complaints Authority is convicted one should ask should he have ever been appointed to the Bench at all, and what checks, if any, were done to verify his suitability?

A Judicial Conduct Commissioner is a good idea but it will always be the "ambulance at the bottom of the cliff". What is also needed is a vetting process at the preliminary appointment stage to weed out unsuitable candidates for Judicial appointment. The current system is far too informal.

by Justin Maloney on January 21, 2010
Justin Maloney

I agree that the Judicial Conduct Commissioner and Judicial Conduct Panel Act has really added to the perceived independence of the judiciary. I am not sure how much more transparent this makes things, but I guess time will tell.

Prior to the act the government du jour could conceivably remove a potentially troublesome judge on a whim, essentially enacting a reverse process to the US where supreme court judges are appointed politically. Here judges could have been "unappointed" politically.

Of course in practice no sane minded government intent on another term would run around firing judges willy-nilly. So that's why its improved the "perceived independence". One could argue its done nothing but add another layer of bureaucrats to the court system, or additional workload for judges... but in justice perception is everything so I think its an excellent addition.

 

by Andrew Geddis on January 22, 2010
Andrew Geddis

N. McIntyre,

That was a point raised by National and ACT when the Bill was before Parliament - it did nothing to change the appointment procedures for the judiciary. There is information on how those procedures operate here. I note that with regard to prospective District Court Judges, "... referee checks are carried out and the President of the Law Society is consulted. (Law Society consultation may follow consideration by the Attorney-General.)" So things have been tightened up a bit since the cases you refer to - but the process still is not all that transparent. There was a public consultation process begun in 2004 on the idea of a Judicial Appointments Commission (you can see it here), but nothing seems to have come of it.

Justin,

Yes - the Act does seem to be a case of building a dyke before the flood waters come ... and as I say, I don't have any real quibbles with its intent/processes.

by Chris Diack on January 26, 2010
Chris Diack

Andrew  this topic is a constitutional backwater where is the post on Citizens United v Federal Electoral Comm  (its finger lickin good)

by J. Philipson on January 27, 2010
J. Philipson

Great article Andrew. Extremely interesting for me especially as I am currently doing a research and writing question on this very point, looking at a comparison of both the processes and conduct concerned in the Pinochet/Hoffman, Fortas/Johnson affairs and of course this latest saga in the Saxmere case.

 

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