Home | Databases | WorldLII | Search | Feedback New Zealand Bill of Rights Act Reports

Judicial Matters Bill (Consistent) (Sections 25, 27) [2008] NZBORARp 16 (10 June 2008)

Last Updated: 13 March 2020

Judicial Matters Bill (2008)

10 June 2008

Attorney-General

Judicial Matters Bill (216-1): Consistency with the New Zealand Bill of Rights Act 1990

Our ref: ATT395/60

1. I have reviewed the Judicial Matters Bill for consistency with the New Zealand Bill of

Rights Act 1990.

2. The Bill has two parts. The first proposes to amend the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 in two respects:

2.1 to provide for the appointment of a Deputy Judicial Conduct Commissioner; and

2.2 to allow the commissioner or (deputy commissioner) to decide to take no further action in relation to a complaint.

3. The second part of the Bill proposes to amend the Judicature Act 1908 to increase the maximum number of Associate Judges of the High Court from six to eight.

4. None of these proposals give rise to any apparent inconsistency with the Bill of Rights Act. Analysis

5. The Bill deals with issues touching on the maintenance of the independence of the judiciary, as implicitly affirmed by the right to fair trial and to fair procedure under ss 25 and

27 of the Bill of Rights Act.

6. The provisions dealing with the Judicial Conduct Commissioner have the potential to affect judicial independence, both in so far as they involve scrutiny of judicial conduct, and in so far as the commissioner’s process provides a safeguard in respect of such conduct.

7. As under the Principal Act, however, the proposed amendments contain safeguards that ensure judicial independence is not compromised.

8. The proposal to allow the appointment of a deputy commissioner is for the deputy to be appointed in the same way as for the commissioner, being by the Governor General on the recommendation of the House of Representatives, following consultation by the Attorney General with the Chief Justice. The deputy is to perform the commissioner’s functions when the commissioner has a conflict of interest, is absent from office, is incapacitated, and during a vacancy in the Office of Commissioner.

9. The proposed additional power for the commissioner to take no further action increases the options available to the commissioner (or deputy commissioner) in responding to a complaint. At present, the commissioner is required to:

9.1 dismiss the complaint; or

9.2 refer the complaint to the Head of Bench; or

9.3 recommend that the Attorney General appoint a Judicial Conduct Panel.

10. The Bill proposes to add a fourth power, which is to decide to take no further action in respect of the complaint, where he or she considers that further action is unjustified. The proposal slightly weakens the prescriptive effect of the Act, as it gives a wide discretion to the commissioner to take no further action, whereas the current structure of the Act requires the commissioner to decide to dismiss the complaint on specified grounds, or if those grounds do not apply, to refer the complaint on. The discretion in the proposed power is however limited by the requirement that the commissioner reach the view that further action would be “unjustified”. This term will be read in light of the purposes of the Act and therefore provides an inherent limit to the discretion. The Act does not therefore limit the rights of complainants to have their complaints properly considered.

11. The provision for the appointment of additional Associate Judges of the High Court also has the potential to affect judicial independence. Associate Judges are subject to a more limited (though still substantial) protection of tenure under s 26E(i) of the Judicature Act

1908 than are Justices of the High Court under s 23 of the Constitution Act 1986. Given,

however, the defined responsibilities of Associate Judges and the susceptibility of their decisions to review no issue arises.

12. In accordance with Crown Law practice, this opinion has been peer reviewed by Ben

Keith, Crown Counsel.

Yours sincerely

Victoria Casey

Crown Counsel

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Judicial Matters Bill (2008). It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should

not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.