Judicial System Notes

Housekeeping

  • Zoom Tutorials:

    • Attendance is recorded; presence must be made known (camera on, responding) to be marked present.

    • Virtual equivalent of being physically present in the room.

  • Essays:

    • Use the New Zealand legal style guide for citations (available online for free).

    • Ensure consistency with the guide.

    • Use the overarching general citation at the beginning of the handbook if something doesn't fit neatly into the guide's categories.

  • Exam Timetable:

    • Available now.

    • Know your exam room (organized by last name) beforehand.

  • Urgency Example:

    • Recent government movement on pay equity laws provides a good real-world example of urgency.

Judicial Independence and Impartiality

  • Key qualities of the judiciary, relating to the rule of law.

  • Judicial independence secures the judiciary's independence, aligning with the separation of powers.

  • Rule of Law:

    • Ensuring everyone is subject to the law, including those in power.

    • Law should be clear, predictable, and applied equally.

    • No perfect existence due to inherent human judgment.

Fundamental Principles Demonstrating the Rule of Law

  • Laws must apply to categories of persons/behaviors, not individuals.

    • Laws should address what people do (behaviors) or categories they choose to be a part of (professions).

    • Gang affiliation laws skirt this principle due to association-based prosecution, but choice is involved.

  • No laws can be secret.

    • All laws are published and accessible.

    • Ignorance of the law is not an excuse if the law was publicly accessible.

  • No law can act retroactively.

    • Cannot punish actions that were legal when committed.

    • Exceptions exist (e.g., Nuremberg trials).

  • No laws may contradict.

    • Courts interpret which law takes precedence when contradictions arise.

  • Law must apply equally to all.

  • People must be able to predict the consequences of breaking the law.

    • Need to know potential punishments (prison, fine, etc.).

Judicial Independence and Impartiality & the Rule of Law

  • Focus on whether courts can apply the law equally.

  • Independence is both an individual and institutional quality.

    • Individual judges must be independent from other judges, other branches of the government, and external influences.

    • The judiciary as a whole must be independent from other branches of government (Parliament and Executive).

Manifestations

  • Judiciary is independent from other branches of government.

  • Judges themselves are independent.

  • Neither the institution nor the judges harbor prejudice/preconceptions.

    • The third manifestation is challenging to enforce legally.

    • Cultural incentives within the judiciary aim to reduce prejudice.

Reinforcement

  • Reinforced regularly by the judiciary and in legislation.

  • Guidelines for judicial conduct (2019):

    • Impartiality is the essential quality required of a judge.

    • Made explicit by judicial oath.

    • Requires judges to act without fear or favor, affection, or ill will.

    • Judicial independence is essentially a means to the end of impartiality.

  • Independence is the source of impartiality.

    • External influence compromises impartiality.

  • Goal: Impartial judges.

  • Required for everyone to have a fair hearing in court.

Maintenance

  • Maintained/reinforced through legal instruments, judicial policy, and cultural undertakings.

  • Independence within appointments of judges to the bench.

  • Independence in the way that judges can be removed from the bench.

  • Independence in the way that their remuneration is determined.

  • Representation of society on the bench and how that implicates impartiality.

  • Transparency in the way that judges' jobs are undertaken and decisions are made.

  • Legal immunity that judges hold.

  • Public appearances.

Appointments

  • Made apolitically (no elections, no overt political influence).

  • Appointed by the Governor General on recommendation of the Attorney General.

  • Attorney General consults with the current judiciary.

    • District Court: Consults with the Chief Judge of the District Court.

    • Higher Courts: Consults with the Chief Justice of the Supreme Court.

  • Appointments are announced in cabinet but not discussed/debated.

Removal

  • Section 23 of the Constitution Act 1986:

    • A judge of the High Court, which includes the Court of Appeal and Supreme Court, shall not be removed from office except by the sovereign or the governor general acting upon an address of the House of Representatives, which address may be moved only on the grounds of that judge's misbehavior or of that judge's incapacity to discharge the functions of that judge's office.

    • High standard of "misbehavior" (so egregious it mimics being unable to do the job).

    • Transparent process (House of Representatives must vote).

    • Judges are generally asked to resign before this process is undertaken.

    • Example: A judge made a decision in favor of a party to whom they owed money, and they ended up resigning as a result of that.

Remuneration

  • Section 24 of the Constitution Act:

  • Salary of a judge of the High Court shall not be reduced during the continuacne of the Judges Commison

  • Parliament can't easily impact a judge's wage unless they change the law.

  • This protection is important because a judge shouldn't be worried about disagreeable decision making.

  • Does the legislation provide complete protection?

    • Not complete; Parliament can change the law.

    • Significant backlash expected from the legal profession if changes were proposed.

  • Is the financial protection controversial?

    • Offers constitutional reassurance.

    • Prevents manipulation of remuneration, which would influence judicial decision-making.

Representation

  • Need for judges to avoid prejudice against groups/types of people.

  • A judiciary that represents diversity helps improve impartiality.

    • Internal regulation of prejudices.

    • Increases public trust.

    • Improves access to justice.

  • Our judiciary today:

    • Gender ratio: 60/40 (Male/Female)

    • Pakeha descent: 200 judges

    • Maori descent: 45 judges

    • European descent (not Pakeha): 30 judges

    • South Asia, Southeast, East Asian, and Pacifica: handful

  • Efforts to improve diversity in judiciary and law schools.

Transparency

  • Public needs to understand how courts operate, what they've decided, and why.

  • Includes court hierarchy, publishing cases, and reasoning for decisions.

  • Judges must articulate reasons for decisions.

  • Legislative linking between transparency and impartiality:

    • Senior Courts Act 2016, Section three-1D. The purpose of this Act is to improve the transparency of court arrangements in a manner consistent with judicial independence.

Immunity

  • Judges avoid court action to protect them from influence.

  • Judges can't be sued for decisions made in a legal issue.

    • Includes instances where a judge breached a law.

  • Attorney General Ann Chapman Case

    • A man was charged with a crime and appealed that conviction.

    • A judge denied him on grounds that were inconsistent with the Bill of Rights Act.

  • If people were allow to sue judges, there would be an incentive for the judge to just grant all appeals all the time.

  • Court of Appeal heard that and said, You make a good point, maybe you should be able to sue this judge for breaching the Bill of Rights Act.

  • the Supreme Court heard it afterwards and said, No, even though this judge was found to have breached the Bill of Rights Act, you can't sue them.

  • Section 28 of the Courts Act - same immunities as a judge of the High Court, that includes judges of the Court of Appeal and the Supreme Court.

Complaints

  • Internal complaints process set up by the judiciary in 1999 (Judicial Conduct Committee).

  • Complaints can be made for inappropriate behavior (other than decisions you don't like).

  • Since 02/2005, '3 thousand '2 hundred complaints have come through the system and ninety five percent of them have been dismissed.

  • Complaints can be referred to the head of the bench and maybe some sort of fine.

Public Appearances

  • Lord Kilmer quote:

    • "So long as a judge keeps silent, his reputation for wisdom and impartiality remains unassailable. But every utter every utterance which he makes in public, except in the performance of his judicial duties, must necessarily bring him within the focus of criticism."

  • Balance:

    • At what point does a judge expressing their real-world opinion turn them from being an impartial judge into a motivated decision-maker?

  • Overtly political or legally one-sided opinions impede impartiality.

Conclusion

  • Independence means judges should be free from interference from other branches and/or external parties when making legal decisions.

  • Cornerstone of the rule of law.

  • Appointments process, remuneration protections, and immunity improve independence, reinforcing impartiality.

  • Independence maintains public trust in delivering impartial justice.