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Register of Pecuniary Interests of Judges Bill (Consistent) (Sections 5, 14, 19) [2010] NZBORARp 93 (19 November 2010)

Last Updated: 27 May 2020

Register of Pecuniary Interests of Judges Bill

19 November 2010

ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

REGISTER OF PECUNIARY INTERESTS OF JUDGES BILL

1. We have considered whether the Register of Pecuniary Interests of Judges Bill (‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). The Bill, a Member’s Bill in the name of Dr Kennedy Graham MP, was introduced on Thursday, 10 November 2010 and is awaiting its first reading. We understand that the next Members’ day is scheduled for Wednesday, 24 November 2010.

2. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching that conclusion, we have considered the consistency of the Bill with ss 14 (freedom of expression) and 19(1) (freedom from discrimination) of that Act. Our analysis is set out below.

PURPOSE OF THE BILL

3. The stated purpose of the Bill is to promote the due administration of justice by requiring judges to make returns of pecuniary interests to provide greater transparency within the judicial system and to avoid any conflict of interest in the judicial role. The Bill would require newly appointed judges to make an initial return of pecuniary interests and all judges to make annual returns of pecuniary interests.

4. The Bill would also establish a register of pecuniary interests of judges. The Judicial Conduct Commissioner, established under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, would be the Registrar for the purposes of the Bill. The functions of the Registrar are to:

a) compile and maintain a register of pecuniary interests of judges

b) publish the information contained in returns of pecuniary interests, and the name of any

judge who fails to submit any return, and

c) provide advice and guidance to judges about their obligations under the Bill.

5. The Bill applies to all judges of the Supreme Court, Court of Appeal, High Court, District Court, Employment Court, Environment Court, Maori Land Court, Court Martial or Court Martial Appeal Court. It also applies to Associate Judges of the High Court and coroners. It includes a person acting in one of these roles on a temporary basis but does not apply to retired or former judges.

CONSISTENCY WITH S 14 OF THE BILL OF RIGHTS ACT

6. Section 14 of the Bill of Rights Act affirms the right to freedom of expression, which includes the freedom to seek, receive, and impart information and opinions of any kind and in any form. Freedom of expression includes the right not to be compelled to say certain things or to provide certain information. [1]

Application of s 14 to the Bill

7. Clause 7 of the Bill requires every judge to make an initial return of pecuniary interests 90 days after appointment as a judge and cl 8 requires every judge to file returns annually. Clause 9 of the Bill specifies the information required. In summary, cl 9 requires disclosure of directorships or pecuniary interests in companies, trusts of which judges are a beneficiary or trustee, location of property in which a judge has a legal or beneficial interest, superannuation schemes, names of debtors and creditors (where the value is over $50,000), debts over $500 discharged by someone else and other sources of income.

8. Clause 20 of the Bill requires the Registrar to publish the names of judges who fail to submit a return. It is not clear whether any other sanction would apply to those judges but the Bill appears to envisage that a complaint would be made to Judicial Conduct Commissioner under the Judicial Conduct Commissioner and Judicial Conduct Panel Act. [2] That Act establishes a process for investigating complaints against judges, which can result in their removal from office. The Bill therefore creates an element of compulsion to provide the information set out in cl 9 of the Bill.

9. It is arguable whether the information required by cl 9 is truly expressive in nature. Much of the relevant information will be matters of fact rather than opinion or belief. Nevertheless, the scope of cl 9 is sufficiently broad that some information could contain an expressive element. For example, it requires information about the purpose and activities of trusts and companies in which the judge has a governance role. We have therefore considered whether a limitation of the freedom of expression would be justified under s 5 of the Bill of Rights.

Justifications under s 5 of the Bill of Rights Act

10. Where a provision is found to limit a particular right or freedom, it may nevertheless be consistent with the Bill of Rights Act if it can be considered a reasonable limit that is justifiable in terms of s 5 of that Act. The s 5 inquiry may be summarised as follows: [3]

a) does the objective serve a purpose sufficiently important to justify some limitation of the right or freedom?

b) If so, then:

i. is the limit rationally connected with the objective?

ii. does the limit impair the right or freedom no more than is reasonably necessary for

sufficient achievement of the objective?

iii. is the limit in due proportion to the importance of the objective?

11. The purpose of the Bill is to provide greater transparency and avoid any conflicts of interest for judges. This is designed to promote public confidence in the independence and impartiality of the judiciary. The disclosure of the pecuniary interests is rationally connected to that objective because it is reasonable to believe that such interests could give rise to potential conflicts of interest.

12. In our view, the impairment of the right is no more than necessary, and is proportionate, because the information required is narrowly prescribed. It is largely restricted to financial interests or governance roles in companies or trusts. The Bill also includes some exceptions in respect of certain information. For instance, a judge is not required to disclose:

a) relationship property settlements or debts owed to the judge by specified family members (cl 10)

b) short-term debts (less than 90 days) for the supply of goods and services (cl 11), or

c) the actual value, amount, or extent of any asset, payment, interest, gift, contribution, or debt (cl 14).

13. We note that cl 9(1)(g) requires judges to disclose the location of real property in which they have a legal or beneficial interest. For the purposes of this advice, we presume that this obligation would not require the public disclosure of a private residential address but could be met by describing the location of the property in general terms. This appears to be the current practice in respect of the Register of Pecuniary Interests of Members of Parliament. [4]

14. For these reasons we have concluded that, if the Bill does limit the right to freedom of expression affirmed in s 14 of the Bill of Rights Act, the limitation can be justified under s 5 of that Act.

CONSISTENCY WITH SECTION 19(1) OF THE BILL OF RIGHTS ACT

15. Section 19(1) of the Bill of Rights Act affirms the right of everyone to be free from discrimination on the grounds set out in the Human Rights Act 1993, including family status. Family status includes being married to, in a civil union or de facto relationship with, or being a relative of, a particular person. A legislative provision may give rise to prima facie discrimination where: [5]

a) it draws a distinction based on one of the prohibited grounds of discrimination, and b) the distinction involves disadvantage to one or more classes of individuals.

Application of s 19(1) to the Bill

16. Clause 2 of the Bill defines a pecuniary interest as any interest in anything that reasonably gives rise to an expectation of a gain or loss of money for a judge, or their spouse or partner, or child or step-child or foster child or grandchild.

17. The Bill appears to draw a distinction on the basis of family status by including matters affecting family members of judges in the definition of pecuniary interest. The distinction is between those people related to a judge and those people not related to a judge. The distinction leads to disadvantage because those individuals will have their financial details publicly disclosed by virtue only of the fact that they are related to a judge.

Justifications under s 5 of the Bill of Rights Act

18. We have considered whether the apparent limitation on the right to be free from discrimination can be justified under s 5 of the Bill of Rights Act applying the test in the Hansen case set out above.

19. The purpose of including the interests of close family members in returns is to provide greater transparency and avoid any conflicts of interest for judges. The provision is

rationally connected to the objective because the interests of close family members could be seen to have a bearing on the independence and impartiality of the judge. It also helps prevent structuring of financial arrangements to avoid disclosure.

20. As above, the impairment of the right can be seen as no more than is necessary, and can

also be seen as proportionate, because the information required is narrowly prescribed by the Bill and includes some exceptions.

21. In assessing the proportion of the proposal, we paid particular attention to whether it is necessary to include all the categories of relative set out in the Bill. On balance, we consider the scope of the provision is appropriate as the interests of the relatives specified in cl 2

could reasonably be expected to affect the independence and impartiality of the judge. We also note that cl 2 includes a closed list of relatives that fall within scope. This promotes certainty because there can be no doubt as to whether a particular relationship gives rise to a duty to disclose pecuniary interests under the Bill.

22. For these reasons, we have concluded that the limitation on the freedom from discrimination affirmed in s 19(1) of the Bill of Rights Act appears to be justified under s 5 of that Act.

CONCLUSION

23. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. This advice has been prepared by the Public Law Group and the Office of Legal Counsel.

Jeff Orr

Chief Legal Counsel

Office of Legal Counsel

Footnotes:

1. RJR MacDonald v Attorney-General of Canada (1995) 127 DLR (4th) 1

2. Clause 22 of the Bill states that a complaint that a judge has failed to make a return of pecuniary interests is a matter that has a bearing on judicial functions or judicial duties for the purpose of s 16(1)(b) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act.

3. R v Hansen [2007] 3 NZLR 1

4. See for example the Register of Pecuniary Interests of Members of Parliament: summary of annual returns as at 31 January 2010 (Presented to the House of Representatives pursuant to Appendix B of the Standing Orders of the House of Representatives).

5. Atkinson v Minister of Health and others [2010] NZHRRT 1; (2010) 8 HRNZ 902; McAlister v Air New Zealand

[2009] NZSC 78; and Child Poverty Action Group v Attorney-General [2008] NZHRRT 31.

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 Register of Pecuniary Interests of Judges Bill. 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.


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