The inauspiciously-named “Judicial Conduct Commissioner and Judicial Panel (Deputy Commissioner and Disposal of Complaint) Act 2010“ was quietly passed by Parliament last week. The purpose and effect is to make it easier for the JCC to dismiss complaints against NZ judges, as well as establish a new position of “deputy commissioner” to assist with the ever-increasing backlog of complaints.
Formal complaints of judicial misconduct have increased 40% in the last year despite broad cynicism by the public that making such complaints are a futile exercise and a waste of time.
Some complaints have been in the system more than two years, including the high-profile complaint against Supreme Court Justice Bill Wilson.
Of the more than 550 complaints lodged with the JCC since the original Act took effect in 2005, not one has been referred to the Attorney General with the recommendation of a formal investigation (which was the expressed provision of the Act).
Previous JCC Ian Haynes – a senior partner with national law firm Kensington Swan – had a system whereby he hired a Queen’s Counsel to make a recommendation that he not pursue the more problematic complaints. Unlike Mr Haynes, the Queen’s Counsel he engaged had no statutory duty to expose judicial misconduct. Her legal duty was to Haynes as an individual. This system allowed Haynes to dismiss complaints detailing obvious judicial misconduct by relying on “independent legal advice”. It was the classic “one-hand-washes-the-other” scam.
Senior partner of Minter Ellison David Gascoigne – Haynes’ replacement since May 2009 – seems to have found his predecessor’s system a bit vulgar. He personally rejected it, but has been struggling since his appointment to keep up with the level of complaints which now average 3 a week. Gascoigne also inherited from Haynes a backlog of 40 of the most difficult complaints.
Beyond the JCC, the office employed only a part-time secretary. Almost immediately after his appointment, Commissioner Gascoigne notified the Attorney General he required help in properly addressing complaints due to the overwhelming caseload.
The amended act which came into force on 23 March 2010 provides Gascoigne with greater range in dismissing complaints, as well as the added manpower to assist with the paperwork.