Brilliant new scheme in the office of the Judicial Conduct Commissoner

The first Judicial Conduct Commissioner in New Zealand, Ian Haynes, had a brilliant scheme for protecting errant judges when he was appointed overseer in 2005.  The scheme worked like this.  Commissioner Haynes, who had a statutory responsibility to expose judicial misconduct, evaded this duty by enlisting “independent counsel” to assess the more problematic complaints.  The independent counsel, who had no such statutory duty, would advise dismissal on grounds of perceived weakness or insufficient evidence (a discretionary call).  Haynes would then rely upon this independent advice to dismiss the complaint.  Haynes could not be held accountable for relying upon legal advice, regardless of how irresponsible it was.  The counsel could not be held accountable for improper advice because their fiduciary duty was only to the Commissioner.  It was a classic ‘one hand washes the other’ scheme.

Current Commissioner David Gascoigne has gone a step better.

While Mr Gascoigne may have entered his appointment with more honourable intentions than Haynes (he, after all, made a recommendation to convene a panel to investigate former Justice Bill Wilson months after taking up the position, albeit only to be knocked back by a High Court order) he has appeared to take recent steps to subvert the governing statute compelling him to expose judicial misconduct.  The new scheme is to dismiss all complaints which are not already ultra vires by broadly relying upon s 8 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 to evade preliminary consideration of complaints.  That section states the JCC is prevented from challenging the correctness of a judicial decision.

Commissioner Gascoigne is not required to consider a complaint he claims no power to investigate.  By not investigating he can not be found in breach of his statutory obligation to expose judicial misconduct.  Evading an investigation also avoids putting the complained-against judge in the often nettlesome position of answering the allegation.

An Official Information Act request by kiwisfirst to the Commissioner asking to know how many complaints have been refused consideration under s8 was itself refused on the claimed basis the Commissioner is exempt from the OIA.  A plain reading of the Act suggests this is untrue, but the broader question is why this information cannot be made public as a matter of course.  After all, the overriding function of the Act was to maintain public confidence in the integrity of New Zealand’s courts.

The answer to this question is that Parliament and the Judiciary have contrasting opinions as to what properly maintains public confidence.  Parliament may consider public confidence lies in transparent courts and accountability of judges, but the Judiciary has a different interpretation – one which they revealed when rejecting the only recommendation by the Commissioner (from 700 complaints) to convene an investigative panel.  Despite the backing of retired Australian Chief Justice Murray Gleeson and Court of Appeal Judge Sir Ted Thomas in the Commissioner’s recommendation that a formal panel be convened to investigate former Supreme Court Justice Bill Wilson in 2010, a full bench of the High Court had this to say in support of quashing that recommendation in 2011:
“[39] … Parliament evidently sought to increase the accountability of judges by establishing procedures for removing them from office and by establishing an office for dealing with complaints about them. At the same time, it sought to establish a fair process that protects the requirements of judicial independence and natural justice. These objectives are designed collectively to enhance public confidence in the judicial system; that is, the legislation presumes that public confidence results not merely from increased accountability but also from protecting judicial independence and treating individual judges fairly.”

That judicial independence never worked as a mechanism for keeping New Zealand judges honest evidently does not factor into the Courts’ definition of ‘fairness’.