Unheralded changes to way judges judged alters 300-year-old verdict

Who judges the judges and how can they be sacked if they prove prone to "judicial misconduct"? Andrew Geddis casts an eye over a relevant and recent, but little known, constitutional change.

The Judicial Conduct Commissioner has begun a preliminary inquiry into Supreme Court Justice Bill Wilson's conduct.

I am not going to discuss that case here, as its details have yet to be fully considered by the commissioner.

Nor should what follows be taken as speculation about what the commissioner might do in Justice Wilson's case.

But his case does raise some interesting issues about how alleged judicial misconduct is dealt with in New Zealand.

It also highlights how a quite important constitutional change took place a few years ago, without anyone much noticing.

Let's start with the obvious: how to judge our judges is a problematic and age-old question.

There are good constitutional reasons for insulating judges (especially judges in the higher levels of our court system) from interference by the more political branches of government.

Thus, it would be completely inappropriate to subject them to normal, everyday modes of public service accountability.

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 for misbehaviour.

At the start of the 18th century, the United Kingdom worked out a compromise of sorts through the Act of Settlement 1701.

Under this legislation, judges were guaranteed their jobs "during good behaviour" and could only be removed following a vote of both houses of Parliament.

Short of this ultimate sanction, which has never been invoked, judicial discipline was left as 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.

And, of course, the criminal law applied to judges' activities, just as it did to every other person.

As a child of the UK's legal tradition, New Zealand inherited this compromise.

We reaffirmed it as recently as 1986, with the Constitution Act stating that judges of the High Court and above may only be removed by a majority vote of Parliament "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 the policing of judicial conduct in the hands of the judiciary itself raises obvious concerns over self-interest and perceived fairness.

Can judges be trusted to oversee 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 legislation was intended to establish a new and somewhat more transparent process for dealing with complaints about judges.

To summarise, the Act creates a 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 completing this inquiry, he must either:

1. Dismiss the complaint, but this only happens if the complaint is about a matter outside the commissioner's jurisdiction (i.e. it relates to a judge's ruling in a court case) or is too vexatious or trivial to proceed with; or,

2. Pass the complaint on to the top judge of the court the complained about judge sits on, with the top judge then deciding what disciplinary action to take; or,

3. 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. However, outcome three will result in another new process commencing.

A judicial conduct panel (which must consist of two judges, ex-judges or experienced lawyers and one lay-person) conducts a public inquiry into the complaint.

At the end of this inquiry, 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.

Given that the attorney-general is almost certain to follow the panel's advice that a judge should be sacked, what happens then?Well, it depends on what sort of judge is at issue.

For a lower court judge, the Attorney-general can simply tell the Governor-General to sack him or her. But for judges in the High Court and above, the extra protection given by the Constitution Act 1986 still applies. They can only be sacked if Parliament agrees.

However, here's the kicker.

Under the 2004 legislation, "A judge must not be removed from office unless a judicial conduct panel 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 is serious enough to justify the sack to the judicial conduct panel that examines the particular complaint.

Yes, in theory the Attorney-general or Parliament could refuse to follow 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 this is a fairly radical reworking of the position established some 300 years ago by the Act of Settlement.

Not that change in general, or this change in particular, necessarily is a bad thing.

And there certainly is precedent for Parliament handing off its powers to outside bodies (think of its 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.

Andrew Geddis is associate professor of law at the University of Otago.

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