Judicial Constraints

Limitations on Freedom of Expression for Judges

Disclosure:

When I started writing on Substack it was inevitable that some of the content would be about Judges and the Judicial role. One promise I made to myself was that I would not “lift the robe” and disclose information conveyed in confidence or within the “Chatham House” rules environment of the Common Room or Chambers. This article is sourced from publicly available information.

The following letter appeared in the “Letters to the Editor” section of the Herald for Saturday 12 April 2025.

I am rather bemused by the incident involving a District Court judge and members of NZ First that took place last year at Auckland’s exclusive Northern Club.

My initial thoughts were that it was a New Zealand version of the Gunfight at the OK Corral. And then reality kicked in. Wait a moment, this all took place in Auckland last year.

We also live in a democracy. So that means that District Court Judge Ema Aitken exercised her right of free speech. So what is the problem?

The problem is that Judges do not enjoy the freedom of expression rights that are guaranteed under section 14 of the New Zealand Bill of Rights Act 1990.

They enjoy the right to receive information and opinions but are constrained in their ability to impart information and opinions of any kind and in any form. The reasons for this are grounded in judicial ethics, impartiality and the public’s confidence in the Judiciary.

Judges must not only be impartial but also be seen to be impartial. If a judge expresses strong personal or political opinions in public, it may create a perception of bias, especially if a related issue arises in a case before them. This in turn may lead to recusals or disqualification from cases where the judge’s public statements suggest a predisposition.

It is important that the public’s trust in the judicial process requireds that cases are decided solely on the law and evidence, not personal beliefs.

Judges are neither politicians nor advocates. The judicial role requires neutrality. Thus public commentary, especially on controversial or political matters, risks blurring the boundary between judicial and legislative/executive roles. A judge should not participate in political debate. To do so is generally inconsistent with the concept of judicial restraint and offends against the principle of comity – a convention or understanding that underpins the separation of powers – legislative, executive and judicial. To put it simply, Judges are expected to “stay in their lane”.

The issue of comity is dealt with in the Guidelines for Judicial Conduct (discussed further below) as follows:

The independence of the judiciary imposes reciprocal obligations upon the judges to respect the proper role of Parliament and the executive. Judges cannot avoid entering upon politically contentious matters if properly brought before them in legal proceedings (although comments should be measured). But extra-judicial statements upon politically contentious matters are not appropriate if the judge’s involvement could reasonably undermine confidence in his or her impartiality on a matter that could come before the court, if it might unnecessarily expose the judge (and the judiciary) to political attack, or if the status of judicial office is used.

Confidence in the justice system depends on the fact that Judges are independent, not swayed by public opinion, ideology, or pressure. Court decisions are made based on legal principle, not personal values or social trends and out-of-court comments that suggest otherwise can erode confidence in judicial integrity, especially in high-profile or politically sensitive cases.

There is good reason to avoid making comments off the Bench on current issues. Even well-intentioned comments can be taken out of context or distorted in the media and could be interpreted as signalling future decisions, or as commenting on current cases, which is prohibited. Furthermore, such comments could be used by parties to challenge decisions, alleging prejudgment or lack of fairness.

However, Judge are not completely gagged. They can speak publicly on matters involving judicial administration, Rule of Law issues, access to justice and legal education.

Some Judges, and I was one, may teach courses at a University Law School but even then, they must speak in a way that maintains dignity, neutrality, and institutional respect.

Most jurisdictions (including New Zealand, Australia, UK, US) have Judicial Conduct Guidelines or Ethical Principles which restrict judges from making public comment on matters that may come before the court or which are politically controversial. My copy of the Guidelines is dated 2019 although there was an earlier edition in 2005.

The Guidelines allow some comment (e.g. on administrative justice or legal education) but urge caution.

Paragraphs 61 and 62 set out the general principles.

“…the days are past when appointment to the judiciary compelled social and civic isolation. Effective judges should not be isolated from the communities they serve. Judges are also entitled to private and civic lives which are not disadvantaged by office.

On the other hand, a judge’s conduct, both in and out of court, inevitably attracts closer public scrutiny than that of other members of the community. And the standing of the judiciary is adversely affected by conduct which, for others, might not attract serious criticism. Judges must therefore accept some restrictions on conduct and activities as a consequence of appointment.

Where the balance should be struck is a matter of reasonable difference of opinion but, as a general principle, a judge should try to ensure that his or her conduct in public and in private, maintains and enhances public confidence in the integrity of the judge and of the judiciary generally.”

The Guidelines state that Judges may make submissions to Select Committee but caution is recommended. The Guidelines state that

“It is important to avoid entering upon matters of a political nature and to bear in mind the need to maintain judicial independence from the legislative and executive branches of government. It is important for the Chief Justice to be consulted before embarking upon a submission.”

The Guidelines also address participation in public debate, media and judicial writing.

If a matter of public controversy calls for a response from the judiciary or a particular court, it should come from the Chief Justice or Head of Bench or with his or her approval. In other cases it may be beneficial to public debate for judges to provide information relating to the administration of justice and the functions of the judiciary. Such participation is desirable but requires care. In particular a judge should avoid political controversy. It is important to avoid using judicial office to promote personal views and to avoid the appearance of capture by particular organisations or causes. Judges should avoid expressing opinions on matters which may arise in litigation and which may lead to concern about the impartiality of the judge.

Judges can write article in news outlets to inform the public about the law and about the administration of justice generally. Before agreeing to write such an article, the judge should consult with the Head of Bench.

The Guidelines even address social media.

A judge may participate in online social networking, provided he or she acts in accordance with these Guidelines. Care is needed to avoid any compromise to judicial independence or impartiality through expressions of opinion or online activities. This could include links through social media such as for example friending a litigant that may give rise to conflicts of interest or a perception of bias.

It can be seen from these examples that there are a number of constraints on Judges. As the Guidelines make clear there are restrictions on conduct and activities as a consequence of appointment.

These Guidelines did not exist when I was appointed. There were some recommendations and conventions about behaviour and conduct but the restrictions of engaging in controversial or political matters were well understood. The principle of comity and the separation of powers prevailed.

To address the issue raised by the Herald correspondent, Judges do not have free speech – something of which I was aware in the thirty or so years that I served. Although I operated a blog I was careful about what I posted and certainly could not have run many of the articles that appear on this Substack.

But one of the things that did occur to me when I finally surrendered my warrant was that I had recovered my section 14 NZBORA rights in full.