In 2005, the New Zealand government set up the Office of the Judicial Conduct Commissioner to provide oversight on allegations of judicial misconduct. Since that time 172 complaints have been filed against certain judges. The Commissioner answers why none of these have yet been deemed worthy of referral to a Judicial Conduct Panel for investigation as stipulated in the Act
Three years ago the New Zealand government passed the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 with the intent of investigating and disposing of complaints of misconduct lodged against judges. There was a general sense at the time that the existing means of investigating judicial misconduct – namely, referring the matter to the Head of that Court – did not facilitate an open and just disposal of the complaints. Because the complaints, once lodged, seemed to die with the Head of Bench with no outcome visible to the public, the Act provided a new ‘independent’ oversight and disciplinary process to handle formal complaints made against specific judges.
The Act expressly stated that the purpose of the Act was “to enhance public confidence in, and to protect the impartiality and integrity of, the judicial system”. Rather than rely upon the Head of the Bench to discipline or remove one of his or her colleagues, the Judicial Conduct Commissioner (JCC) was given the power to refer complaints directly to a Judicial Conduct Panel, this panel appointed for the expressed purpose of formally investigating the complaint and making disciplinary recommendations directly to the Attorney General. Instead of reporting to another judge or the Ministry of Justice, the JCC reports to Parliament. For some reason that can only be classified as bizarre given its mandate, the OJJC nonetheless receives its funding through the Ministry of Justice and, hence, falls under its control.
With this somewhat inauspicious beginning in 2005, the first Commissioner was appointed by the Governor-General upon the recommendation of the House of Representatives. Resultantly, Ian Haynes, a senior partner with the law firm Kensington Swan, was appointed as JCC, where he remains today. While Mr. Haynes is generally respected and unquestionably experienced in the law, a major problem would seem to be that he is a practicing lawyer in the New Zealand Courts. Coincidentally, Kensington Swan was the largest benefactor of legal aid last year, having received $2.26 Million. All of this would seem to create an environment where the left hand would be wise to watch out for the interests of the right hand. But rather than make assumptions, let’s look at the evidence and what the Commissioner had to say.
Through March 2007, the Office of the JCC had received 172 formal complaints against certain judges. As of this story going to press, not one complaint has been deemed worthy of referral to a panel for formal investigation. When Mr. Haynes was recently asked why none of these complaints seemed to warrant an investigation, he was quick to ‘correct’ the record and state that 5 complaints he received had indeed been referred to the Head of the Bench. As to the troubling question why he would refer complaints back to the Head of the Bench rather than appoint a panel (mindful that the Act was created to provide an independent alternative to the Head of the Bench), Mr. Haynes pointed out that this was still one option open to him, but then added that there were also some complaints not disposed of that may yet go to a Panel. He stated some complaints were destined to go nowhere because they disputed a judge’s findings and such complaints must be dismissed in accordance with the Act. As to problems posed by the fact that he is a practicing lawyer who must answer to these judges, Mr. Haynes claims this is not a problem because he never appears in Court. But 172 complaints? The answer again is that some of these have yet to be investigated.
Given the significant number of complaints against judges, it may partially be the case that the job is a bit overwhelming. An official request of the Ministry of Justice disclosed that the Office of the Judicial Conduct Commissioner has only one part-time employee in addition to the Commissioner. The total annual budget for the office is $134,000. To put this budget in perspective, a lawyer can easily earn this much on one case. As to how much of this is remuneration to the Commissioner, Mr. Haynes would not be drawn in, replying only that he was certainly not doing it for the money. So why is he doing it? To this Mr. Haynes replied that he had been asked by the Governor General and considered it his duty to comply with the request. As phone interviews go, it was difficult not to be impressed with his sincerity.
Not that certain aspects of Mr. Haynes job haven’t caused him discomfort since his appointment. He has made several suggestions for Amendments to the Act in his last annual report. One suggestion is to allow the Commissioner to defer to a substitute where the JCC has an obvious conflict of interest. According to Commissioner Haynes, three such cases have so far been presented to him, including one against High Court Justice Judith Potter who is a former partner of his at Kensington Swan. To his chagrin the response he received is that he still must decide these complaints personally.
Another recommendation he has made is that the Commissioner be allowed a fourth option in disposing of a complaint (the current three being dismiss the complaint, refer the matter to Head of Bench, or recommend the appointment of a Judicial Conduct Panel). Mr. Haynes considers that being allowed to “take no further action” would be an appropriate fourth alternative where the complaint has some merit but the judge has either apologized or provided an explanation satisfactory to the complainant.
One gets the sense in talking with Commissioner Haynes that, while he seems genuinely committed to his role, he feels hamstrung and a bit frustrated with it all. Nevertheless, the source and extent of his frustration – or merely an acknowledgement that he suffers frustration – are clearly not something he is prepared to discuss. He says he answers only to Parliament and evades issues he considers inappropriate or off-limits with the adeptness of a diplomat. Nonetheless, one also gets the impression he has little interest in continuing as Commissioner once his current appointment expires next year.