judicial independence Flashcards
judicial independence is vital for ?
our system of government and maintaining the rule of law and the constitutional balance under the Westminster system
what is the minimum requirement of the rule of law
government according to law
when questions arise as to the legality of government action, who do we turn to?
the courts - for an independent ruling on the legality of the action - therefore, they must be independent of the government to impartially and fairly adjudicate on the matter
how does the American system ensure constitutional balance
each of the three branches are independent of the others, with no mixed personnel - the executive (president), congress (legislative) and federal courts organised under the supreme court of the united states act on a check to each other which provides a natural balance
how does the Westminster system get constitutional balance
because of our merged powers, a strong and independent judicial branch has to be able to act as a counter-balance to the political branch. therefore, they must have independence from the political branch
what are Robin Cooke’s fundamentals?
judicial independence is a fundamental and unalterable, like a representative democracy
all persons must be answerable before the law as administered ?
in a system of independent and impartial courts
The NZBORA s25(a) guarantees?
persons charged with an offence the “right to a fair and public hearing by an independent and impartial court”
which guarantee of the ICCPR does NZBORA s25(a) give effect to
gives the same guarantee but extends it to also cover civil proceedings
what was said about confidence in justice in Metropolitan Properties Co (FGC) v Lannon
“Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking : ‘the judge was biased’”
what is a guarantee at judicial independence aimed at?
maintaining public confidence in the administration of justice
judicial/justice confidence is destroyed when people leave thinking the judge was biased. When else is it destroyed?
when people believe that the institutional independence of the court is compromised
what does judicial independence include
secured judicial salaries and adequate state resourcing and support that will allow the judges to adjudicate properly and fairly. It implies more than security of judicial tenure. It extends even to the courthouse and the courts information technology systems.
are independence and impartiality related and defined?
they are related but also distinct.
impartiality = the ultimate value associated with adjudication, trumping even independence. Independence is necessary in order to ensure impartiality.
what was discussed in Valente v R
Both impartiality and independence are fundamental to the ability of the courts to do justice and to maintain public confidence in the justice system.
the court said judicial independence required “not only the individual independence of a judge, it also implies the institutional independence of the court over which the judge presides”
the concept denoted “not merely a state of mind or attitude in the exercise of judicial functions, but indeed a status or relationship to others”
there are three legal guarantees which must be clearly set out in the law: judicial tenure, the financial security of judges and the institutional independence of courts
what act is the cornerstone of judicial independence
Act of Settlement 1700 (Eng)
before the glorious revolution, judges held office at?
the King’s pleasure and they could also be removed at the King’s pleasure
what did the Stuart King’s seek to achieve in relation to judges
a complacent bench that would do the King’s bidding
James I tried to resurrect the medieval notion of ?
divine right
what happened in Prohibitions del Roy
CJ Cook established that while justice was dispensed in the King’s name, judicial power laid with the judges
what happened in the Case of Proclamations
could the King reclaim the power to legislate by royal proclamation?
CJ Cook famously said the King “hath no prerogative but that which the law of the land allows him”
It is for the judges to declare what the law was
“The King by his proclamation cannot change any part of the common law or statute law or the customs of the realm” - the power to alter the general law has passed from the medieval King to Parliament
what did Charles I do in his reign in relation to judges
dismissed two further CJ’s, suspended a judge from office in 1629 - made a concession by agreeing to the appointment of judges “during good behaviour”
what did Charles II do in his reign in relation to judges
Charles I concession revoked, judges were now again appointed and dismissed at the pleasure of the King
what did James II do in his reign in relation to judges
in his 3 year reign he dismissed 13 judges for failing to do his will and then fled the realm for fear of his own safety and was deemed to have abdicated the monarchy during the Glorious Revolution
what did judges do during the glorious revolution
judges aligned with the Parliamentarians to defeat the Stuart’s attempts at subverting the constitution
what did Parliament do after the Glorious Revolution
Act of Settlement - introduced the guarantee of judicial independence for the first time. It provided that:
- judges commissions be made during good behaviour
- their salaries be ascertained and established
- addressed the power of removal, greatly constraining the power to remove judges - in order to remove a judge lawfully, an address of both houses of Parliament must be passed seeking that end (on the grounds of misbehaviour or incapacity)
what happened in A-G v Mr Justice Edwards
the law provided a maximum number of judges and Mr Justice Edwards was appointed in ignorance of that.
existing constitutional convention which restricted Parliament’s power of address - that power of address must be confined to cases of proven judicial misbehaviour
up until what act was there considerable doubt as to what British statutes we inherited?
Imperial Laws Application Act 1988
did we inherit the Act of Settlement 1700
yes, but only parts and not the part guaranteeing judicial independence
in which case did Goddard J doubt whether any colony inherited the protection of judicial independence
Terrell v Secretary of State for the Colonies
how were judges appointed in NZ from 1840 - 1858
at pleasure - no security of tenure
what was established in NZ in 1841 and where was the power
the SC (now HC) - power to appoint judges was conferred on her majesty (on the advice of the secretary of state for the colonies - british minister) OR the governor (Hobson)
where did the power to appoint judges in nz change to in 1844
appointing power conferred on the Crown but the governor retained a residual appointment power because logistically transporting the need for a new judge and getting the decision back from England just didn’t work quickly enough but this decision did have to be enforced by her majesty so she maintained a power of veto
what landmark occured in 1858 in NZ
the Supreme Court Judges Act 1858, s 6 secured judges’ salaries and 8-9 judges’ superannuation
- introduced judicial independence guarantee in NZ for the first time, modelled on the Act of Settlement
- governor could only remove judges following an address of both houses of the general assembly
- power of appointment of judges reverted back to the Governor because responsible government was introduced, which meant the governor had to act on the advice of his local ministers rather than those in london
what was the Judicature Act 1908
- now replaced with the Senior Courts Act 2016
before SCA 2016 CA and HC were constituted under this Act but we consolidated everything and added in the supreme court act 2003 in the Senior Courts Act 2016
in what sections does the constitution act 1986 give judges protections
s23 - protection of judges from removal from office - only by the GG acting upon an address of the HOR on the grounds of misbehaviour or incapacity to discharge the functions
S24 - salaries of judges not to be reduced
under which sections of the Senior Courts Act 2016 are judges given protections
134 - removal from office
141 - salary of a judge not to be reduced
do judges of inferior courts have the same protection as judges of Senior Courts
no - these courts have limited statutory jurisdiction and their judges enjoy a lesser protection - they don’t enjoy the same security of tenure
what protections are given to judges under the District Court Act 2016
29(1) - on advice of AG GG can remove on grounds of inability or misbehaviour (no address required)
38(1) - judges remuneration must not be reduced
what are some examples of inferior courts
district court, environment court
does the GG have a power to suspend a judge
not any more
has an address been moved in the NZ Parliament to remove a senior court judge
no, but 2 in the 19th century were investigated (Chapman J unfounded allegations of bias and Edwards J was just horrible but did a deal to retire a year early for £1000)
have addresses to remove a judge been moved in the Australian parliament?
yes
Queensland supreme court judge Justice Angelo Vasta found guilty of perjury and tax fraud
NSW supreme court judge justice bruce vince found guilty of systemic procrastination in delivering judges and later resigned because he couldn’t do his job
High Court of Australia judge Justice Lionel Murphy inquiry conducted after he talked with the presiding judge about going easy on his friend charged with an offence
has a federal judge been removed in Aus
no
what did DC judges used to be called
magistrates
what is common to get DC judges to resign
them being leaned on to leave
what was the problem with judges Beattie and Hesketh in 1997
Beattie (longstanding judge) told Hesketh (new judge) that when they went on circuit from Whangarei to outer laying regions the convention was to come back to Whangarei and still claim expenses. Hesketh, though acting on Beattie’s advice pleaded guilty to intent to defraud and resigned. Beattie defended the charges and was acquitted but had to only hear ACC appeals from then on
why did Ross Elliot resign from being a DC judge in 1998
2 inconclusive trials of indecency brought against him
the standing and jurisdiction of the DC (from 1980) is greater than?
the old magistrates court
has extending the same protections senior court judges have to district court judges ever come up?
yes but the bill lapsed and wasn’t enacted into law
at what age must all judges retire (by statute)
70
judicial independence is aimed at?
maintaining public confidence in the administration of justice
what was emphasised in the Gibraltar case
the strength of the principle of judicial independence and the high standard of proof required to remove a judge from office
what other expressions are used to describe misbehaviour
corruptive or corruptive motive, dishonest motive, perversion of justice, abuse of power, badness of heart and corrupt intention, partial and oppressive behaviour, partisan political bias, moral delinquency and corruption or moral turpitude
the public interest in impartial adjudication trumps?
considerations of administrative cost, convenience and efficiency in the disposition of cases
to be institutionally independence, the courts must?
be separate from the central bureaucracy under the control of government ministers
there is no bright line distinction between holdings judges ___ ___ and guarding against ___ ___ __ __ ___
to account, unsolicited attacks on their integrity
there is a need for continuing mutual restraint as between what two branches
political and judicial
what was said about judicial independence in Body Corporate 212138 v Minister for Land Information New Zealand
“It is for the Court, not the parties, to decide which judge will sit on a particular case”
what were Kirby J’s ideas on the statutory restructuring or abolition of courts
strong view that judges whose court is abolished should be reappointed to a court of the same or similar rank with similar status, salary and benefits of office. if a judge declined to be reappointed to some other court they should continue to receive the benefits of office (salary, benefits, allowances, superannuation payment) until the statutory retirement age (70) or until the end of their fixed term
what happened with the Employment Relations Act 2000 and their judicial tenure
Parliament abolished the former employment tribunal and 9 tribunal members appointed under the former statute were not reappointed under the new Employment Relations Authority. They believed the guarantee of judicial independence entitled them to salaries for the duration of our fixed term contracts.
They sought reemployment to the body but failing that wanted to receive benefits.
In the case, Claydon v Attorney-General, the CA distinguished between courts and tribunals and held the guarantee of judicial independence only applied to courts. However, laid down that clearly the restructuring of a court along the same lines would offend the principle and that tribunals were entitled to some protection none the less. Government restructuring a tribunal to get rid of certain members would be a breach
what happened when parliament enacted the Coroner’s Act 2006
reformed the coronial system and 55 part time coroner roles were disestablished and replaced with 20 legally qualified full time coroners.
Since coroners are inferior courts, the government ignored judicial independence arguments and was not concerned.
if judges remuneration feel beneath a minimum level, what could judges be perceived to be?
susceptible to political manipulation
the guarantee of financial security has prevailed over attempts to what in NSW
offset a judges salary because of his non or under performance
do inflation or taxation increases offend the principle of judicial independence by reducing their real salary?
no - US courts have held non-discriminatory and indirect reductions in judicial salaries not to be a breach
what happened in O’Malley v Woodbrough (USSC)
income tax affects everyone and is non-discriminatory so it does not offend the principle of judicial independence
will a direct reduction in judicial salaries, even if non-discriminatory, contravene article III of the US Constitution
yes
what happened in US v Will (UCSC)
congress (the legislative body) linked judicial salaries to automatic increases in the salaries of other officials. Periodically they would legislate to stop the increase before it took effect. This was held to not violate article III of the US constitution because the legislation became operative before the salaries increased.
On other occasions legislation became operative after the increases had taken effect so this clearly contravened article III because it was direct
what happened in Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island
the SCC said salary negotiations are indelibly political so established independent judicial remuneration commissions throughout the country at a federal and provincial level. UK, AUS and NZ have followed suit.
In NZ we have the Remuneration Authority Act 1977 which determined periodic increases to judicial remunerations with no need for cabinet approval or need for an order in council - they take effect automatically
on what occasions have economic pressures called judges salaries into question and what happened
1921-1922: public servant salaries reduced and judges considered whether to offer equivalent. they made the offer and AG rejected.
1931: 10% decrease for public servants, gov invited judges to volunteer the same reduction and judges declined citing previous precedent. Myers CJ: it would be “as improper for a judge to accept a reduction in salary as for the government to impose it”
1932: public servants had further salary reduction and government asked judges to accept the same. they were sympathetic but dissuaded because of the precedent it would set.
1991: some judges agree to voluntary reduction (heads of benches made a joint statement to accept) but potentially this decision to accede to the Ministers request lacked vision - the Minister was urging a direct AND discriminatory reduction which is unconstitutional in the US
are there similar arguments around superannuation are salary about judicial pay
yes - Supreme Court Judges Act 1858 introduced the guarantee of judicial independence in this country and conferred the right to receive superannuation
what did the Lange Labour Government do to superannuation in 1987 that the judges objected to? What did the Solicitor General advise?
changes taxes on superannuation schemes which reduced net super payments as part of a broader scheme to produce greater tax revenue which would then lead to lower taxation rates across the board applying to ordinary citizens and judges so they would benefit overall.
SG advised that superannuation was deferred remuneration and therefore protected by the constitutional guarantee. the changes however applied to all citizens and did not constitute a ‘reduction in salary’ when you aggregate what was going on so it didn’t conflict the guarantee.
what issue with superannuation arose in 1991
it was announced it was going to replace the existing government superannuation scheme, which applied to all public servants including judges with a less attractive scheme to cut costs. The Solicitor General advised that this reduced judges overall salary package and therefore contravene the statutory statutory guarantee and amounted to a direct (though non-discriminatory) reduction in salary. The SG recommended that the new scheme should apply to all future appointees to the bench but not existing judges, which was accepted by the government
is there legal or extra legal (constitutional conventions) for institutional independence in NZ
no
what is the Principle of Comity
bureaucracy must not seek to intervene in the business of the courts
the judiciary must be seen to function as ?
an autonomous branch of government, independent of the executive branch
what happened in AWG Group Ltd v Morrison
the public interest in impartial adjudication is paramount and trumps considerations of administrative cost, convenience and efficiency.
to be institutionally independent, courts must be separate from the central bureaucracy
what did Eichelbaum CJ (in 1997) and Dame Sian Elias CJ (in 2004) have to say about institutional independence
rallied against the courts dependence on the central bureaucracy and called for reconfigured administrative support systems
what did the Valente case lay down in terms of institutional independence and how did Elias CJ go further?
institutional independence implies they must have control over:
- assignment of judges to cases
- head of bench has a right to determine the sittings of courts (when)
- allocation of court rooms to hear particular cases
- right of courts to direct court staff
Elias CJ said they should also control:
- IT systems of judges and court staff
- budget preparation and allocation of court expenditure off their single allocation
what are the Beijing Statement of Principles of the Independence of the Judiciary
20 CJ’s from the region came together and settled on basic principles of institutional independence:
- court administration, including appointment, supervision and disciplinary control of administrative personal and support staff must vest in the judiciary, or in a body in which the judiciary is represented and has an effective roll
- budget of the courts should be prepared by the courts or a competent authority in collaboration with the courts having regard to the needs of the independence of the judiciary and its administration
what happened in the review of the justice system in 1995
judicial administration was seen to be a government responsibility of the Justice Department and it delivered all administrative support services.
There was widespread dissatisfaction with that system so the Department was disbanded and replaced with:
- Ministry of Justice: policy advice
- Department of Corrections: administers prison system
- Department for Courts: provides support services for the courts, working in close partnership with the judges and particularly the Heads of Bench
Judges were satisfied - they had a lot more institutional autonomy
how was the court structure and its institutions reformed in 2003 under Labour
integrated the Department for Courts within the Ministry of Justice without consultation with judges.
Dame Sian Elias CJ rued the loss of institutional independence and dependence on the Ministry’s support systems (particular courts IT systems) as well as failure respond to the judges security needs.
The Ministry of Justice is a government department with competing policy priorities and this seemed to contravene the Beijing principles.
what was the problem with Justice Robert Fisher
In 2002 he resigned from the bench after it was found he had visited some porn sites 15 months earlier. The audit of the judges computer was detailed and it was not good that a Ministry official was inside his computer where he writes his judgments - big problem!
do non-tenured (acting) judges pose a threat to judicial independence
Kirby said it does. There are allegations that they must court the Attorney-Generals grace and favour to get reappointments
under the senior courts act 2016, what are the rules around non-tenured judges
- GG, on the advice of the AG, may appoint acting judges of these courts
- persons must be under the age of 75 years
- must have previously been a judge of that court
- maximum term is 2 years but they may be reappointed for another 2 years
what happened in R v Te Kahu
there was a constitutional challenge to the appointment of an acting judge that it contravened the principle of judicial independence and in particular the right to a fair trial by an independent and impartial tribunal.
this acting judge was appointed upon his retirement and then reappointed.
the court declined to rule on the challenge because the legislation permits this.
they did agree though that acting judges do raise concerns, especially since only some retired judges are offered terms and only some are offered renewed terms after that.
they accepted judges granted this warrants may not be as independent or perceived to be as independent as fully tenured judges.
they cited Scottish authorities where challenges were brought against temporary judges and it was held they had failed the requirement of an independent and impartial tribunal.
what is the acting appointment of judges required
required from time to time due to spikes in judicial workload
why is the appointment of acting judges a risk
non-tenured judges lack the security of tenure that is the cornerstone of judicial independence
a two-year acting judge appointment is similar to what
Stuart kings appointing at pleasure
what happened in R v Genereux
in Canada, judge advocates were appointed on a case by case basis to hear charged brought against members of the defence force. This failed the security of tenure required by judicial independence guaranteed under Canadian law
what happened in R v Lippe
a constitutional challenge was brought on the basis of systemic bias, which arose as it was practice to appoint part-time judges who also held private practices on the side. The court pointed to judges oath of office, code of ethics and statutory rules of recusement to stand aside if they had an interest as reasons why it didn’t breach
are there part time judges in NZ
provision in Senior Courts Act s 106 - part-time CA and HC judges - AG may grant judges request provided the head of bench consents
District Court Act 2016 s 30 - chief DC judge must agree
not contemplated they would carry on other activities as this would be highly improper, even though the SC in Lippe thought it was okay
how is judicial independence protected by constitutional convention
- precludes judicial appointments being made as a reward for political favours - AG makes recommendations but PM for the CJ and there are consultations with the CJ and senior judges who know them, organised by the SG
- Ministers and public servants must refrain from criticising judicial decisions but may say a decisions differed from the legal advice they received and acted on and what they intend to do as a result
- judges cannot defend themselves publicly so instead look to be backed up by Law Societies, Barr association and Legal Academy
what happened in Re Ouellet
Federal minister in Canada called a decision silly, completely unacceptable, a complete shock and a complete disgrace and was held to be in contempt of court
more direct attacks on judges can be more damaging than ?
little political statements - calling judges “second rate lawyers” that “favour old boy networks” and are “weak kneed” and “mollycoddled the thugs”
what does judicial circumspection mean
- caution, discretion, prudence
certain things are expected of judges themselves to maintain their own unwritten code of conduct for maintaining their independence and integrity
how are judges constrained
by their peers (fellow judges) and the profession
what did Bolger say about the conventions in the Cabinet manual that protect judicial independence
questioned whether it went too far because he thought politicians had a right to call out decisions of public concern - he distinguished between critical appraisal and unsolicited attacks
what do standing orders say about what Ministers can do in relation to judicial indepdendence
Standing Order 177 Offensive References to Judiciary - a member may not use offensive words against any member of the judiciary (in debates, select committee etc)
Standing Order 115 Sub-judice rule - matters awaiting or under adjudication cannot be raised in any House proceedings
