Supplementary Order Paper No 108 (Attorney-General)

Commissioner must conduct preliminary examination

Section 15(1) of the Judicial Conduct Act at present provides the Judicial Conduct Commissioner (the Commissioner) must conduct a preliminary examination of each complaint and 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 (headed: " Commissioner must dismiss complaints that fail to meet required threshold").
• Section 15(5) provides that having completed this preliminary examination and formed the opinion required, the Commissioner must take one of the following steps:
• dismiss the complaint (under Section 16); or
• refer the complaint to the Head of Bench (under Section 17); or
• recommend that the Attorney-General appoint a Judicial Conduct Panel to inquire into any matter or matters concerning the conduct of a Judge (under Section 18).
• The Bill as introduced proposed a third consideration for the Commissioner to consider under Section 15(1) (in line with New Section 15A, which is headed "Commissioner's power in certain circumstances to take no further action in respect of complaints") as follows:
• "there are any grounds for exercising his or her power under [New] Section 15A to take no further action in respect of the complaint".
• SOP No 108 proposes one further consideration for the preliminary examination by the Commissioner under Section 15(1) as follows:
• "the subject matter of the complaint, if substantiated, could warrant referral of the complaint to the Head of Bench under Section 17".
• SOP No 108 proposes other redrafting or consequential amendments to the clauses relating to this preliminary hearing by the Commissioner under Section 15(1) (Clause 10(1) of the Bill, amending Section 15(1) of the Judicial Conduct Act; Clause 11, amending New Section 15A92)(c); Clause 12, amending Section 16(1); inserting New Clause 12A, amending Section 17(1)).

Increase in number of District Court Judges and permanent Judges of the Court of Appeal

SOP No 108 proposes to increase the number of District Court Judges from 140 to 156 and proposes to increase the maximum number of permanent judges of the Court of Appeal from nine to ten (including the President of the Court of Appeal) or from 8 to 9 (if the President is excluded) (New Part 1A of the Bill, inserting New Clause 15B, amending Section 5(2) of the District Courts Act 1947; inserting New Clause 18 into the Bill, amending Section 57(2)(b) of the Judicature Act 1908 ).

Higher duties allowances paid to High Court Judges and retrospective validation

SOP No 108 specifically authorises higher duties allowances paid to High Court Judges serving on the Court of Appeal and retrospectively validates all such allowances already paid (inserting New Clauses 16A and 16B into the Bill, inserting New Sections 16A and 16B into the Judicature Act 1908).

Comment

The issue of the basis for such higher duties allowance arose in the case of Wikio v Attorney-General (2008) 8 HRNZ 544 (HC) which related to unsuccessful applications for judicial review by two persons convicted following a criminal trial and who had their appeals to the Court of Appeal dismissed. The applicants took issue with the independence and impartiality of the Judges who heard their cases and in that context raised issues associated with the higher duties allowance paid to a High Court Judge who was an acting Court of Appeal Judge in that case. Justice Mackenzie in the High Court refused the applications but did say inter alia that the provisions for such higher duties payments should rest on" ... a more secure constitutional foundation".

Supplementary Order Paper No 109 (Attorney-General)

SOP No 109 sets out a motion to divide the Bill into three Bills as follows:

• Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Bill;
• District Courts (District Court Judges) Amendment Bill;
• Judicature (Judicial Matters) Amendment Bill.