Bills

Bills Digests

Content provider
Information
Date:
27 June 2008
Downloads

Note: The above document(s) are provided as an Adobe PDF (PortableDocument Format) file. you can download a free viewer for PDF files from Adobe's web site.

Related documents
Contact details
Parliamentary Library
Parliament Buildings
Wellington

Digest No. 1625

Judicial Matters Bill 2008

Date of Introduction: 25 June 2008
Portfolio: Attorney-General
Select Committee: As at 27 June, 1st reading not held.
Published: 27 June 2008Prepared by John McSoriley BA LL.B, BarristerLegislative AnalystP: (04) 471-9626 (Ext. 9626)F: (04) 471-1250 Caution: This Digest was prepared to assist consideration of the Bill by members of Parliament. It has no official status.Although every effort has been made to ensure accuracy, it should not be taken as a complete or authoritative guide to the Bill. Other sources should be consulted to determine the subsequent official status of the Bill.

Purpose

The aim of this Bill is to amend the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the Judicial Conduct Act) to provide for the appointment of a Deputy Judicial Conduct Commissioner and to provide that the Judicial Conduct Commissioner, in addition to existing remedies, may decide to take no further action on a complaint. The Judicature Act 1908 is also amended to raise the maximum number of Associate Judges who may hold office at any particular time from six to nine.

Background

The Judicial Conduct Commissioner

The Judicial Conduct Act established an office called the Judicial Conduct Commissioner (the Commissioner), appointed by the Governor-General (after consultation with the Chief Justice) on the recommendation of the House of Representatives. That Act sets out a process for the receipt and processing of all complaints against Judges to be managed by the Judicial Conduct Commissioner. The Act also established a Judicial Conduct Panel which may be appointed at any time and which must inquire into, and report on, any matter or matters of judicial conduct referred to it by the Attorney-General on the recommendation of the Commissioner. The membership (after consultation as to who the members may be with the Chief Justice) consists of the following persons appointed by the Attorney-General: two members who are either two Judges or a Judge and a retired Judge or a sitting or retired judge and a practising lawyer); and a lay member.

The Attorney-General has a discretion to initiate the removal of a Judge on receipt of a report of the Judicial Conduct Panel if that Panel concludes that consideration of the removal of a Judge is justified. However a Judge must not be removed from office unless a Judicial Conduct Panel has reported to the Attorney-General that it is of the opinion that consideration of the removal of the Judge is justified.

Main Provisions

Deputy Judicial Conduct Commissioner

The Bill establishes the new office of Deputy Judicial Conduct Commissioner appointed by the Governor-General on the recommendation of the House of Representatives, after the House has been advised by the Attorney-General that the Attorney-General has consulted the Chief Justice of New Zealand on that recommendation.

The function of the Deputy Commissioner is to, generally, carry out the functions of the Commissioner in relation to complaints during the absence from office or the incapacity of the Commissioner or the vacancy in the office of the Commissioner.

The Deputy Commissioner must deal with complaints in respect of which the Commissioner has decided he or she has a conflict of interest. Where the Deputy Commissioner decides that he or she has a conflict of interest in relation to a complaint which is being dealt with by the Deputy Commissioner because of the absence from office or the incapacity of the Commissioner or the vacancy in the office of the Commissioner, the Deputy Commissioner must promptly refer the complaint to the "Head of Branch" [1]   or the Commissioner if the Deputy Commissioner " ... believes on reasonable grounds, after consulting the complainant (if any), that the Commissioner is likely to be able to begin to deal with the complaint within a reasonable time" (Part 1, Clause 7, inserting New Sections 8A and 8B into the Judicial Conduct Act).

Commissioner's power to take no further action

The Bill gives to the Commissioner a power to take no further action in respect of a complaint if satisfied that further consideration of the complaint would, in all the circumstances, be unjustified. The reasons for such a view are not limited but may be or include the following:

  • that the complaint has been resolved to the complainant's satisfaction following an explanation from the Judge who is the subject of the complaint (however such satisfaction is not " ... by itself, a reason why further consideration of a complaint would, in all the circumstances, be unjustified");
  • that the complaint, although genuine and made in good faith, is based on a misunderstanding;
  • that the Commissioner, in spite of his or her best efforts, does not have, or is unlikely to be able to obtain, enough information in his or her conduct of the preliminary examination required by Section 15(1) of the Judicial Conduct Act to form an opinion as to whether:
  • the subject matter of the complaint, if substantiated, could warrant consideration of the removal of the Judge from office; or
  • there are any grounds for dismissing the complaint under Section 16(1) [2]   of the Judicial Conduct Act (Part 1, Clause 10 (amending Section 15(1) and (5) of the Judicial Conduct Act and substituting Schedule 1), Clause 11 (inserting New Section 15A into the Judicial Conduct Act) and Clause 12 (amending Section 16 of the Judicial Conduct Act by inserting New Subsections (1A) and 1(B)).

Number of Associate Judges

Section 26C of the Judicature Act 1908 provides that the Governor-General may from time to time, by warrant, appoint fit and proper persons to be Associate Judges of the High Court. The maximum number of Associate Judges is six. However part time Associate Judges may be appointed so that they are appropriate fractions of one Judge.

The Bill increases the number of Associate Judges from six to nine (Part 2, Clause 17).

Copyright: © NZ Parliamentary Library, 2008
Except for educational purposes permitted under the Copyright Act 1994, no part of this document may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, other than by Members of Parliament in the course of their official duties, without the consent of the Parliamentary Librarian, Parliament Buildings, Wellington, New Zealand. This document may also be available through commercial online services and may be viewed and reproduced in accordance with the conditions applicable to those services.

  1. The Judicial Conduct Act defines the term "Head of Bench" to mean:in relation to the Supreme Court, the Chief Justice;in relation to the Court of Appeal, the President of the Court of Appeal;in relation to the High Court, the Chief High Court Judge;in relation to the Employment Court, the Chief Judge of the Employment Court.   [back]
  2. Section 16(1) of the Judicial Conduct Act provides that he Commissioner must dismiss the complaint if he or she is of the opinion that:the complaint is not within the Commissioner's jurisdiction; orthe complaint has no bearing on judicial functions or judicial duties; orthe requirements of Sections 12 ("who may complain") and 13 ("how to complain") have not been met; orthe complaint is frivolous, vexatious, or not in good faith; orthe subject matter of the complaint is trivial; orthe complaint is about a judicial decision, or other judicial function, that is or was subject to a right of appeal or right to apply for judicial review; orthe person who is the subject of the complaint is no longer a Judge; orthe subject matter of the complaint was considered before the commencement of this section by the Head of Bench or the Judicial Complaints Lay Observer; or he or she has previously considered the subject matter of the complaint, and there are no grounds to justify taking any steps under Section 17 ("Commissioner's power to refer complaints to Head of Bench") or Section 18 "Commissioner's power to recommend that Attorney-General appoint Judicial Conduct Panel").   [back]