Quis custodiet ipsos custodes?

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.