Judicial Independence

Question 2

What is judicial independence?

Answer 2

An indispensable principle of a liberal democracy and the rule of law

Question 3

Sir Robin Cooke

Answer 3

Argued it was one of two “unalterable” fundamentals that might arguably lie beyond legislative reach

Question 4

Vital for maintaining two things

Answer 4

The rule of law and the constitutional balance under the Westminster system

Question 5

Separation under the Westminster system

Answer 5

Separation of the judicial power more complete than the separation of the executive and legislature (e.g. s 6 CA1986 - a minister of the crown must be an elected member of parliament). Due to this merging, we heavily rely on the judiciary as a check and balance

Question 6

s 25(a) NZBORA

Answer 6

Everyone charged with an offence has a right to a hearing by an independent and impartial court

Question 7

Metropolitan Properties Co v Lannon

Answer 7

Justice must be rooted in confidence; and confidence is destroyed when right minded people go away thinking “the judge was biased”

Question 8

Valente v R

Answer 8

Impartiality and independence are fundamental to the capacity of the courts to do justice and maintain public confidence in the justice system

Question 9

Three limbs

Answer 9

Security of judicial tenure, security of judicial salaries, institutional independence of the courts

Question 10

Pre Act of Settlement

Answer 10

Throughout the 17th century, the Stuart Kings disdained independence of judicial mind, and their dismissal power was a powerful disincentive for judges who would assert their independence of mind and action

Question 11

Act of Settlement 1700

Answer 11

Secured judges tenure, reduced Crown’ power to control appointments to office = cornerstone of judicial independence, contains phraseology which survives in many constitutions including US. Became constitutional convention that a judge could only be dismissed on misbehaviour (could only be commissioned for good behaviour)

Question 12

Terrell v Secretary of State for the Colonies

Answer 12

Lord Goddard CJ doubted whether any colony inherited the provisions os s3 guaranteeing judicial independence

Question 13

NZ

Answer 13

Did not receive guarantee of judicial independence upon establishment of colonty

Question 14

Supreme Court Judges Act 1858

Answer 14

s4: judicial tenure
ss 8-9 judicial salaries
conferred power of appointment to governor

Question 15

CA 1986

Answer 15

Re-enacted provisions from the Supreme Court Judges Act 1858

Question 16

s 23 CA1986

Answer 16

Protects judges against removal from office. Judges may only be removed from office via an address of the HOR on one of two grounds: misbehaviour or incapacity (s 134 SCA 2016)

Question 17

DCJ security of tenure

Answer 17

Do not have the same security of tenure as Senior Court Judges: can be removed by the GG on advice of the AG with no address of parliament (s 29(1) DCA 2016)

Question 18

No address to remove a judge in NZ history, but 3 inquiries

Answer 18

o 1874 SC Judge Chapman accused of bias, but parliamentary inquiry found allegations to be unfounded
o 1890: Edwards J persuaded to take an early retirement because of “ill temper and vindictiveness”
o 2004: Wilson J accused of judicial bias because he had a close business relationship with counsel for a party in a case he was sitting on. Judicial Conduct Panel was established, but he elected to resign

Question 19

DCJ Complaints

Answer 19

No precedent for the removal of an inferior court judge. E.g. 1965 the Minister of Justice forced the retirement of two magistrates under veiled threat of dismissal. One had failing health and had become irascible and difficult to deal with in court; the other interrogated witnesses, was overbearing and unprofessional, and prejudged cases
- Would rather resign than face public inquiry and become a spectacle

Question 20

Non-tenure judges

Answer 20

Do strike at the institutional independence of the Courts.
o R v Te Kahu: court accepted judges might seek to secure post retirement appointment and may not be as independent and impartial as judges on permanent tenure (s 116 SCA 2016 judges can be temporarily appointed)
o However, are also convenient and may ease workload pressure

Question 21

Statutory abolition/restructuring of courts

Answer 21

Kirby J: abolition/restructuring of courts poses “a grave threat to judicial independence”. Thinks judges whose courts are abolished must be reappointed to similar courts with a similar salary, and that these requirements are an “unyielding convention”

Question 22

Claydon v AG

Answer 22

Established 3 principles in obiter:
o The restructuing of a court would certainly offend the guarantee of judicial independence
o Judges whose court was abolished/restructed were entitled to reappointment, or continuing to receive the benefits of office (accepting Kirby argument)
o Abolishing a tribunal in order to remove particular members would certainly violate judicial independence

Question 23

In NZ, no political appetite for idealised conception of judicial independence

Answer 23

Supported by Coroners Act 2006. Established restructured coronial system: arguments based on judicial independence held no sway when this act was enacted. Disestablished all existing coroner positions – 55 mostly part-time coroners in NZ, all of their positions disestablished

Question 24

Prince Edwards Island Case

Answer 24

Judges remuneration must not fall beneath a minimum level that could be perceived as exposing them to political pressure through economic manipulation

Question 25

s 24 CA 1986

Answer 25

Protects against changing the salary of a judge during the continuance of their commission

Question 26

S 141(1) SCA 2016

Answer 26

Salary of a Judge must not be reduced during the continuance of the Judge’s appointment

Question 27

s 38(1) DCA 2016

Answer 27

Remuneration payable to a judge must not be reduced while the judge holds office

Question 28

s 110(2) Coroners Act 2006

Answer 28

Salary of a coroner or an associate coroner must not be diminished during the continuance of their appointment

Question 29

Guarantees of financial security have prevailed over attempts to offset judicial salaries

Answer 29

This prevents government from reducing salary due to non-performance. The remedy for this is to have the judge removed, which was established by the NSW SC

Question 30

Indirect, non-discriminatory reductions in judicial salary

Answer 30

Do not breach the principle of JI.

Question 31

Atkins v US

Answer 31

Inflation affects the public at large, therefore no issue with failure to take action

Question 32

O’Malley v Woodbrough

Answer 32

Across the board taxation increases do not breach the constitutional guarantee and are permissible

Question 33

US v Hatter

Answer 33

Increases that specifically target judges will breach the constitutional guarantee because they are indirect but discriminatory reductions in salaries (needed to intervene before salary effect took place)

Question 34

US vs Will

Answer 34

Discriminatory reduction in remuneration targeting judges and not public service at large. Article 3 prohibited forcing judges into a new social security scheme under which they would have to pay additional tax became a discriminatory reduction in judicial remuneration

Question 35

Remuneration Authority Act 1977

Answer 35

Determines periodic adjustments to salaries

Question 36

Exigencies of national economy

Answer 36

o 1921-22 Govt reduced all public servant salaries. SC judges offered an equivalent reduction in salary. AG Sir Francis Bell rejected the offer, as it would infringe judicial independence and the guarantee of judicial remuneration
o 1931 judgesdeclined a 10% salary cut during the derpression, citing Bell. Myers CJ – it would be improper for a judge to offer to accept a reduction in salary, as it would be for the govt to seek it.
o Recession in 1991 – some judges agreed to a voluntary reduction

Question 37

Proposals to alter judges’ superannuation

Answer 37

Confronted the same objections
o 1987 Lange govt changes applied to all citizens, therefore did constitute a reduction in salary (SG John McGrath)
o 1991 Bolger govt wanted to replace superannuation scheme with less attractive one. Proposal would reduce judges total salary package, so made proispective in effect

Question 38

Guarantee of the Courts institutional independence

Answer 38

The state must provide adequate resources and administrative support services for the judiciary to function as an autonomous branch of govt. Public interest in impartial adjudication is paramount – trumps consideration of administrative cost, convenience, and efficacy

Question 39

AWG Group Ltd v Morrison

Answer 39

If a judge is found to be biased, the matter must be litigated again. The cost of rehearing is secondary to the concern of unbiased adjudication

Question 40

Valente v R

Answer 40

Institutional independence implies judicial control over assignment of judges, head of bench, sitting of courts, allocation of court rooms, direction of all court staff

Question 41

The Beijing Statement of Principles of the Independence of the Judiciary

Answer 41

Stipulated that the principal responsibility for court administration must fall within the auspices of the court. The budget of the court should be sufficient to allow each court to function without an excessive workload. Until 1995 administration of the courts was a govt responsibility of the justice department - in breach of this

Question 42

1995 review

Answer 42

Recorded widespread dissatisfaction with the structure, justice department disbanded and was replaced with 3 standalone entities – MOJ, Dept of Corrections, Dept for Courts. This arrangement gave the courts greater institutional independence until 2003, then the govt rolled Department for Courts into the Ministry of Justice – Sian Ellis CJ rued the loss of institutional independence from 2003 onwards

Question 43

Independence

Answer 43

Senior judges have cavilled at officials’ proposals to share court information with other govt agencies (police, corrections, legal aid and public defenders). Tipping K: balked at the term “partnership” to characterise relationship between judiciary and Ministry. One of mutual cooperation, not partnership

Question 44

Constitutional convention and judicial circumspection

Answer 44

Supplement the legal protections guaranteeing judicial independence and the integrity of judicial office. Ministers and public servants refrain from criticising judicial decisions. May comment on punishment policies or the effectiveness of the law, but they may not inpugn the performance of the Courts

Question 45

Re Ouellet

Answer 45

A federal cabinet minister found in contempt when he impugned the sanity of a judge

Question 46

Fitzgerald v Muldoon

Answer 46

Minister may say decision differs from legal advice and announce what the govt may do, but may not say a judge was mistaken or wrong