Preface

My interest in the judicial institution was heightened by a collaborative work with my late colleague, Emeritus Professor Enid Campbell OBE, AC. The project, funded by an Australian Research Council grant, culminated in The Australian Judiciary, published by Cambridge University Press in 2001. Later, I was privileged to have been invited by Professor Shimon Shetreet (Hebrew University of Jerusalem) and Professor Christopher Forsyth (Cambridge University) to participate in a series of conferences relating to their international project on judicial independence. That participation further kindled my interest in exploring comparative dimensions of the functioning of the judiciary in contemporary times. It became clear to me that valuable lessons can be learned from the experience of other liberal democracies on how to ensure that the judiciary can continue to play a pivotal role as an independent and impartial entity in a robust democracy.

The fundamental nature of the rule against bias

Nemo judex in re sua is both an ancient and fundamental principle of English law. A judge is disqualified from determining any case in which he or she may be, or may fairly be suspected to be, biased. The word ‘bias’ comes from the tendency of a bowl to turn in one direction of another. It thus means simply an improper predisposition of a judge to decide in one way or another. But if the fundamental nature of the rule is well recognised, its application and reach is less clear. The law is set about by some subtle distinctions which have been unstable and uncertain in the recent past. The law is now relatively clear, but the way in which it is applied is still open to debate and discussion.

This chapter will start with a consideration of two interlinked but important themes necessary for an understanding of the law. The first of these is the question of whether the rule is, in truth, a rule against bias at all or whether it is a rule against the appearance of bias. Judicial views have differed on this in the past eighteen years but, as will be seen, the issue is now largely settled in favour of the view that it is the appearance of bias that is predominant. This result is keyed into the primary purpose that lies behind the rule against bias: it is to protect and secure public confidence in the administration of justice.

Lord Atkin once memorably remarked that ‘Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.’ His Lordship had in contemplation, in a contempt case, a bipartite problem: those who administer the law, and with the cloak of the protections afforded that role, may, and must where necessary and appropriate, make strong comment in the course of determining a controversy. And persons outside the circle of those administering justice are entitled to make ‘respectful’ but just as outspoken comment or replies about the ‘public act done in the seat of justice’. Those propositions are not in doubt.

The question the equation as thus stated does not answer is, what is the position of a judge who feels impelled to make some observations as to what is happening within the justice system itself, or some particular aspect of it, outside of the formal confines of a given case or judgment? Should the judge confine his or her observations purely to the discharge of particular judicial obligations in that given case? If not, under what circumstances is it permissible and appropriate for an individual judge to offer particular commentary of a more general character?

American society is deeply conflicted – perhaps it would be more accurate to say schizophrenic – with respect to the role that both elected and appointed judges should play (and should be allowed to play) in the governance of a constitutional democracy with a long tradition of judicial review.

On the one hand, Americans of every political stripe and every social stratum are quick to “go to law” to achieve vindication (or establishment) of their rights, eagerly egging judges on as they craft novel remedies for the perceived ills of society. Sooner or later, it seems, every issue of social policy, from the most fundamental to the most trivial, will be presented to an American court for adjudication.

When the time comes to identify the most significant legacy of the period of the Labour Government from 1997 to 2010, it is likely that constitutional reform will be a strong contender. Under a broad ‘modernisation’ manifesto, a raft of changes were introduced which have reshaped the constitutional map of the United Kingdom. Devolution of power to Scotland, Northern Ireland and Wales, the reform of the House of Lords and the incorporation of the European Convention on Human Rights into domestic law are some of the most familiar of these reforms. Equally important, though less widely known, are the profound changes affecting the judicial branch of government. In June 2003, the government announced, unexpectedly, that the office of Lord Chancellor was to be abolished, a new Supreme Court was to be set up and the judicial appointments process radically reformed. At the time, some commentators claimed that these proposals were an attempt on the part of the Government to take control of an increasingly activist judiciary. As the details emerged, however, it became clear that such fears were unfounded. Indeed, one of the most paradoxical and striking features of the reforms was that they effected a fundamental shift of power away from the executive.

In April 2001 High Court Justice Michael Kirby addressed a university graduation ceremony in Adelaide. In what was described as a ‘passionate defence of Australia’s public education system’ the judge called upon the Commonwealth government to boost funding for state schools. Not surprisingly his call was roundly endorsed by the Australian Education Union and praised by the Opposition spokesperson Mr Michael Lee as a timely intervention. The Attorney-General, Mr Daryl Williams, and the Prime Minister, Mr John Howard, bluntly responded to this incursion into a public policy debate by a member of the judiciary. The Attorney-General said that:

The Prime Minister was less restrained in his condemnation of Justice Kirby’s actions:

Reflecting on the incident on the eve of his retirement from the High Court in 2009, Justice Kirby conceded that the intervention was ‘a mistake, looking back on it’. Nevertheless he believed there was value in engaging with the public as a sitting judge.

New Zealand has a population of 4.4 million people and is one of the world’s oldest democracies. New Zealand’s population is diverse: 78 per cent European ethnicity; 15 per cent Maori, the indigenous people; 6.6 per cent Asian; and 6.5 per cent Pacific peoples. Its British heritage ensured that New Zealand enjoyed strong judicial institutions from the beginning, very much in the tradition of the common law. In 2010 there were almost two hundred permanent judges in the New Zealand judiciary, a quantity that seems generous given the size of the population. But there does exist an elaborate court structure with generous rights of appeal. Furthermore, New Zealand has at present about 11,000 lawyers with current practising certificates, providing one lawyer for approximately every four hundred people. New Zealand has a mature legal system with a strong tradition of the rule of law.

Any analysis of the New Zealand Constitution and the place of the judiciary within it must start with the Constitution Act 1986. This ordinary statute is perhaps the most important constitutional law New Zealand has, although it lacks many of the features of constitutions in other countries. The Constitution Act can be amended by an ordinary Act of Parliament. Further, it provides little guidance on the rules and principles under which government will be conducted.

I had not given much thought to judicial independence until I did a study for the Canadian Judicial Council in the mid-1990s on the subject. My report, A Place Apart: Judicial Independence and Accountability in Canada, examined a wide range of issues relating to judicial independence and accountability, including security of tenure, financial security, discipline, codes of conduct, administering the court system and appointments. Those topics were approached from a historical and comparative perspective. I will, of course, be drawing on that study, as well as several later articles, for this chapter on two important aspects of judicial independence: judicial selection and judicial conduct in Canada. First, some background.

What is the Canadian Judicial Council? The Council is composed of all the federally appointed chief justices and associate chief justices in Canada – at present thirty-nine in total – and was chaired at the time of my study by Chief Justice Antonio Lamer. The Council, which had been established by legislation in 1971 by the then Minister of Justice, John Turner, grew out of the annual conference of federal chief justices that John Edwards of the University of Toronto’s Centre of Criminology had established in 1964. The Council would, as was stated on second reading of the legislation, ‘provide a national forum for the judiciary in Canada, and . . . strive to bring about greater efficiency and uniformity in judicial services and to improve their quality’. It would also provide a new and better forum to investigate complaints against the federal judiciary, at the time handled by the Department of Justice, which could be followed by an ad hoc commission, such as the much criticized single-judge inquiry several years earlier into the conduct of Justice Leo Landreville.

The United Kingdom constitution has witnessed significant change in recent years. The tremendous pace of change is part of an effort to modernise the constitution, which has had a significant impact on the judiciary. New developments include the ‘abolition’ of the office of Lord Chancellor (followed by a modification of this office), the establishment of the Judicial Appointments Commission, the opening up of some judicial appointments to public competition and the creation of the new Supreme Court for the United Kingdom. These reforms serve to ensure better separation of powers and to safeguard the independence of the judiciary.

The United States has many systems of judicial selection, discipline and removal. The national courts (sometimes called the federal courts) and the fifty states differ quite substantially along these dimensions. This chapter describes the federal court system in some detail and provides a broad-brush overview of state judicial systems. There are perhaps two modest common characteristics among all these systems: (1) judicial selection in all the systems is, with minor exceptions, tightly connected to ordinary politics and judges individually or through their hierarchies play a relatively small role in judicial selection and removal; and (2) judges are initially appointed from the practicing bar at almost every level, with no strong expectation of promotion within the judicial hierarchy.

The national court system in the United States has four tiers. Initial decisions in many administrative matters, including immigration cases and disputed claims for payments to the disabled, are made by “administrative law judges.” These judges are appointed through merit-based processes within the administrative agency or bureaucracy they serve, although political appointees sometimes intervened in those processes in the Bush administration, and they are subject to discipline and removal through typical civil service mechanisms. Within the federal courts the lowest tier is occupied by “magistrate judges,” appointed within each district by the local judges and serving eight-year renewable terms. Magistrate judges make preliminary rulings in cases assigned to them by trial judges, make recommendations to those judges on dispositive questions and may try criminal cases, mostly minor offenses, with the defendant’s permission.

On 22 July 1977, the Secretary of State for Scotland (Mr Bruce Millan) laid an order before Parliament removing Sheriff Peter Thomson from judicial office, the order to take effect on 6 December 1977. The said order was made under a statutory procedure which empowered the Secretary of State to remove a Sheriff on the ground that the latter was ‘unfit for office by reason of inability, neglect of duty or misbehaviour’, a power which could be exercised only after an investigation by the Lord President of the Court of Session and the Lord Justice Clerk, the two most senior judges in Scotland. In this case the complaint against Sheriff Thomson was that he had published a pamphlet entitled ‘Scottish Plebiscite – Report by Sheriff Peter Thomson’, proposing a referendum on Scottish Home Rule. This was not the first time Sheriff Thomson had engaged in political action. In 1974 he had circulated voting cards with questions about the establishment of a Parliament in Scotland, along with a return envelope addressed to himself as ‘The Returning Officer’. On being given notice of this earlier incident, the then Secretary of State requested an investigation to be conducted by the Lord President and the Lord Justice Clerk, with which, to the evident irritation of the senior judges, Sheriff Thomson refused to cooperate, or even acknowledge. The judges reported that although Sheriff Thomson’s conduct was ‘incompatible with his judicial office’, he was nevertheless not unfit for office ‘in view of his otherwise satisfactory service’, though they did add that if the Sheriff should engage in any similar activity in the future, ‘it might be extremely difficult to resist the conclusion that his fitness for his office was at an end’.

This chapter examines the appointment, discipline and removal of judges in New Zealand. Developments over recent years have formalised the procedures for appointing and disciplining judges, including the procedures that might lead to a judge’s removal. Previously, appointments to judicial office were shrouded in secrecy and mystery, and the disciplining of judges was meted out in camera away from the public eye. That system came under mounting scrutiny and pressure for change, with calls for greater transparency and accountability within the judiciary. Changes introduced from 1999 standardised the appointing procedures and made them more transparent, and established a formal complaints process for investigating complaints of judicial misconduct. These changes codified the procedures, but they still remain more permissive than in most other jurisdictions. Heads of bench lack any direct disciplinary powers over their colleagues and appointments to judicial office remain largely at the discretion of those administering the appointments process. New Zealand has resisted setting up a judicial appointments commission which most other jurisdictions have established.

This chapter falls roughly into two parts. The first part sources the guarantee of judicial independence in New Zealand and examines the procedures for appointing, disciplining and removing judges. The second part contextualises the discussion within New Zealand by identifying several practices that, in the writer’s view, compromise the principle of judicial independence.

The High Court of Australia

Comparative law and comparative constitutional law in particular challenge the scholar. This is so even when the scholar’s enquiry is confined to the search for useful comparative descriptions of aspects of legal systems. Meaningful exposition must be able to cross boundaries of difference in history, culture and political organisation. To do so successfully, the scholar must find descriptors of general application and relevance.

When focusing upon institutional arrangements, and particularly the judiciaries of different countries, that challenge is no less acute. There are many similarities between the judicial systems of liberal democracies. But even among liberal democracies similarity may mask diversity. When considering the constitutional position and function of judiciaries beyond those found in the democracies, the differences can be profound. Yet judges from many different countries and political systems engage with each other increasingly in international fora, conferences and bilateral meetings. There, many matters of genuinely common interest unite such judges and make engagement and dialogue mutually useful. These matters include court organisation and efficiency, information management, judicial education, case management, alternative dispute resolution and judicial specialisation. It is possible for judges from different legal systems to have a common interest in all of these things and yet to sit in courts which have different relationships with the legislature and the executive and different functions in relation to constitutional interpretation, judicial review and even statutory interpretation. At another level, statements of commitment to such ‘fundamentals’ as judicial independence may not always apply in one society in a way that is comprehensible to another. Comparative law, which offers too wide a focus across areas of great difference, may yield too diffuse a picture to be useful.