Spot on Halfling. Where’s Justice Isac’s decision on Judge Aitken’s attempt to escape scrutiny of her conduct? The longer the delay, the more plummeting confidence in NZ’s justice system will fall even more.
Thanks John. I wanted to avoid discussing the unfortunate incident at the Northern Club and tried to keep things as neutral as possible. I am sure that there are many who await with interest the decision of Isacs J. Sooner him than me
Given that the Guidelines only apply to sitting Judges to set a rubs difficult. But whenever one takes on a public decision making role there will necessarily be constraints in the interests of presenting an imparyial face. Even the perception of bias can cause problems. Statements made prior to judicial appointment - there are rules about what the Americans call recusal that may come into play.
I am so grateful you write such essays dispassionately. Reading some of the comments it is clear there is confusion between 'freedom of expression for judges' and 'bullshit from the bench'. As someone not too far from where I'm sitting right now often says, there are no winners or losers in a case, there is a result. If the 'result' is not the one expected, you pack up your huge stack of files, bow to the judge, then go back to chambers and lick your wounds. However, the client sees it differently - 'useless barrister, should have argued it my way', 'stupid fat judge got it wrong', blah blah blah. Yes, judges do sometimes get their decisions overturned on appeal, but then they can be overturned again in a higher court. It's not all perfect, but it's still pretty damn good.
I may be breaking my promise to myself if I say that there are Judges who do not like the idea of being appealed.
For myself I didn't mind - indeed I welcomed it. A chance to have my paper marked by someone else and an opportunity to have any errors I made corrected. I think there was one occasion when someone higher up the food chain reversed me and I thought it was clear, reading his decision, that some of the nuance is the case was overlooked (and I am trying to be nice when I say that).
‘Tis only human for a judge to be a bit miffed when, on appeal, a decision he or she has written with diligence and care is reversed. And in my experience one could sometimes see that an appellate judge’s particular predilections had played a part. But then none in any profession or calling can ever entirely cast off his or her idiosyncrasies. And today’s idiosyncrasies may be tomorrow’s received wisdom.
Most lay people would've received the report of Judge Ema Aitken's & Galler's outbursts as, certainly, free speech but not speech free of consequences given their positions, surely.
I would rather not comment on a specific case. The purpose of the article was to explain the constraints on Judges. Dr Galler was not subject to such constraints.
Allow me to raise an associated, concomitant question, in connection with the mentioned principle of comity, whereby any of the three constitutional power-bases are not permitted to interfere with the proper functions of the other two. The problem is that the Executive is strategically positioned within the Legislature for exactly the purpose of interfering. The fully partisan Executive, through the 'Responsible Government' convention, is enabled to set the agenda for the debating chamber, to force matters to be heard under urgency (without adequate scrutiny or public input), and also to directly interfere in the operations of Select Committees. How many times in recent years have we heard report that a Minister has privately instructed a Select Committee chair (of the same party) to either direct committee proceedings like so, or to point blank block an inquiry that has been requested by other members of the Select Committee? Then there was a recent example of Executive directing that public submissions not be recorded (correctly)…. And who is there that can provide oversight and discipline upon such flagrant abuses of power? Well, exactly no one: the Speaker won't stop these actions nor rebuke the majority party of government on such matters, and we have suicidally abolished our Legislative Council - which was surely there in our original constitution for exactly these purposes...? As a result, the Legislative branch cannot properly fulfill its intended function: to investigate matters of concern and to hold the Executive to account. Likewise, it would seem that the Responsible Government principle, and the absurd, clearly outmoded rule that Ministers must only be elected persons and only from the party (or parties) of government, are in direct conflict with the Comity principle? Your comments, if you will....?
Probably merits more than a comment but let me summarise the problem - a unicameral legislature - no checks and balances between legislature and executive - no constitution - no ability of the Courts to check executive power apart from judicial review which is not available all the time - unbridled legislative supremacy - an MMP system that is designed and intended to hamper firm action - remember the concerns at the Douglas reforms - necessary - didn't go far enough - led to a form of "brake" with coalitions - but then look at the way Labour squandered its oppportunity after 2020 - a lack of political will (probably just as well. The US system was designed with checks and balances built in but the growing use of government by Executive Decree has eroded that mightily. It did work rather well once upon a time.
A very good insight into custom behind the curtain, thanks. I appreciate that Judges need to walk a (sometimes) narrow non-partisan line. That makes sense for judges as it does for teachers or lecturers. But when judges, senior ones at that, go hard out with activism, which tools do we employ to restrain them? I have an issue with the ‘you can’t criticise a judge’ mantra, for despite being a legal lightweight, I’m smart enough to to call BS on so much that flows from the bench these days. (Respecting those many judges who do a great job tho…). The Legislative arm could fix things, so why don’t they? (The MACA action seems whimpy to me…)
Time to engage the legal hairsplitting mode. You may have seen my piece on criticizing the Judiciary on Law News (which will be forthcoming on Substack). There is a difference between criticisng the reasoning and the decision of the Court. That doesn't imply criticism of the Judge. Academics and Law Review writers do it all the time "with the greatest of respect"
That is an entirely different case from Shane Jones personal attack on Justice Gwynn when he referred to her as a communist. Completely out of bounds - breach of comity - breach of the Cabinet manual - the who 9 yards.
As for a privatus (remember your Latin) such conventions don't bind. But like all things, tone is important.
But then there are the ex curia remarks that Judge may make in law review articles and the like and that is murky territory. Gary Judd KC has been very critical of remarks made by Justice Glazebrook about decolonisation and Warren Pyke has been critical of an article by Justice Joe Williams. The problem is that these writings could be interpreted as a likely predetermination of issues that may come before the Court and that creates a problem.
I wrote a number of articles (and a couple of books) when I was on the Bench but they were on mundane Law and IT matters like E-Discovery or digital evidence [although one book was about the impact of the printing press on lawyers in the Early-Modern period - REALLY controversial :-))]
Lawyers are increasingly becoming assertive in expressing political views. Could previous statements made as a layperson affect their perception on the bench? Also interested to hear whether you think quasi judicial roles such as tribunals (these often have lawyers as chairs) have their rights constrained to the same extent.
I am keenly interested in the obligations of the judiciary. The trouble is that it is not entirely clear what the judiciary is. It is plainly the collection of people who make decisions in the senior and district courts. But what else does it include, if anything?
There are a myriad of decision making bodies that make rulings on matters legal without being amongst the clearly defined group I just mentioned. I think it plausible to argue that the judiciary encompasses all those who fall within the scope of section 3 of NZBORA. Though I accept that others would restrict the scope to those subject to the Judicial Conduct Panel Act (JCPA).
I have personal experience of persons who, whilst not subject to the JCPA, nonetheless should be subject to the Guidelines or at least the Bangalore Convention. I am thinking of bias and competence.
Mind you I have also experienced incompetence amongst those subject to the JCPA. I was looking at an example yesterday that eluded me when the judgment was issued about a decade ago. It was a matter of summary judgment. I was the plaintiff and I lost. The matter hinged upon contractual interpretation. For my argument to work it was necessary for shareholders existing at the time a put option was granted to be the only shareholders carrying the onus of the option. The judge decided that all and any subsequent shareholders were also subject to the burden of the put. There was therefore an "arguable" case and the finding was against me. It is a nonsense, of course, as the doctrine of privity of contract excludes the later shareholders.
Such is life. Served me right I suppose for attempting the short cut afforded by summary process.
The Judicial Conduct and Judicial Panel Act 2004 is a good entry point for defining a Judge. It is set out in section 5 where Judges who are subject to the JCC are listed. High Court Judges and their appointment is governed by the Senior Courts Act 2016 and District Court Judges and their appointment is governed by the District Courts Act 2016.
You acorree3ctly observe that in some respect "the judiciary" is wider than that. Community Magistrates, Tenancy Tribunal Adjudicators and Disputes Tribunal Referees do not fall under the JCC's watchful gaze but still exercise a judicial function.
Then there are the myriad administrative decision makers who are authorized by statute or by delegation to make statutory decisions which are generally reviewable. These would not consitute the Judiciary which implies a curial or Court function.
You referred to the Bangalore Convention but I assume you mean that Bangalore Principles of Judicial Conduct. Much contained in that document is reflected in our Guidelines.
The judicial branch of Government (s.3 NZBORA) envisages the Courts. The administrative decision makers would fall within the executive branch of Government.
Everyone has their views about the ability of the judiciary. As counsel I recall there would always be commentary about this Judge or that Judge and how good or bad they might be.
Spot on Halfling. Where’s Justice Isac’s decision on Judge Aitken’s attempt to escape scrutiny of her conduct? The longer the delay, the more plummeting confidence in NZ’s justice system will fall even more.
Thanks John. I wanted to avoid discussing the unfortunate incident at the Northern Club and tried to keep things as neutral as possible. I am sure that there are many who await with interest the decision of Isacs J. Sooner him than me
I wouldn’t hold my breath John.
I expect a bit of tut tutting and a stern wet bus ticket when the decision finally comes out, probably during the next election.
Given that the Guidelines only apply to sitting Judges to set a rubs difficult. But whenever one takes on a public decision making role there will necessarily be constraints in the interests of presenting an imparyial face. Even the perception of bias can cause problems. Statements made prior to judicial appointment - there are rules about what the Americans call recusal that may come into play.
Thanks for your kind remarks.
I hope ,you continue to enjoy my writing as I enjoy yours.
Keep up the good work
I am so grateful you write such essays dispassionately. Reading some of the comments it is clear there is confusion between 'freedom of expression for judges' and 'bullshit from the bench'. As someone not too far from where I'm sitting right now often says, there are no winners or losers in a case, there is a result. If the 'result' is not the one expected, you pack up your huge stack of files, bow to the judge, then go back to chambers and lick your wounds. However, the client sees it differently - 'useless barrister, should have argued it my way', 'stupid fat judge got it wrong', blah blah blah. Yes, judges do sometimes get their decisions overturned on appeal, but then they can be overturned again in a higher court. It's not all perfect, but it's still pretty damn good.
I may be breaking my promise to myself if I say that there are Judges who do not like the idea of being appealed.
For myself I didn't mind - indeed I welcomed it. A chance to have my paper marked by someone else and an opportunity to have any errors I made corrected. I think there was one occasion when someone higher up the food chain reversed me and I thought it was clear, reading his decision, that some of the nuance is the case was overlooked (and I am trying to be nice when I say that).
He he he
‘Tis only human for a judge to be a bit miffed when, on appeal, a decision he or she has written with diligence and care is reversed. And in my experience one could sometimes see that an appellate judge’s particular predilections had played a part. But then none in any profession or calling can ever entirely cast off his or her idiosyncrasies. And today’s idiosyncrasies may be tomorrow’s received wisdom.
Thanks. I love that you now write these observations in such a clear and accessible way.
Aitkin was drunk and broke all the rules with her drunk mates.
That she has now clammed up and is in damage control, just shows her entitlement.
She should never sit on any bench ever again.
The one taking photo’s should already be before his professional body.
But they all protect each other.
You will note I specifically avoided talking about a particular case. I have explained my reasons in another comment.
Most lay people would've received the report of Judge Ema Aitken's & Galler's outbursts as, certainly, free speech but not speech free of consequences given their positions, surely.
I would rather not comment on a specific case. The purpose of the article was to explain the constraints on Judges. Dr Galler was not subject to such constraints.
I know. Just saying. We're all subject to consequences of some sort.
Understood.
Allow me to raise an associated, concomitant question, in connection with the mentioned principle of comity, whereby any of the three constitutional power-bases are not permitted to interfere with the proper functions of the other two. The problem is that the Executive is strategically positioned within the Legislature for exactly the purpose of interfering. The fully partisan Executive, through the 'Responsible Government' convention, is enabled to set the agenda for the debating chamber, to force matters to be heard under urgency (without adequate scrutiny or public input), and also to directly interfere in the operations of Select Committees. How many times in recent years have we heard report that a Minister has privately instructed a Select Committee chair (of the same party) to either direct committee proceedings like so, or to point blank block an inquiry that has been requested by other members of the Select Committee? Then there was a recent example of Executive directing that public submissions not be recorded (correctly)…. And who is there that can provide oversight and discipline upon such flagrant abuses of power? Well, exactly no one: the Speaker won't stop these actions nor rebuke the majority party of government on such matters, and we have suicidally abolished our Legislative Council - which was surely there in our original constitution for exactly these purposes...? As a result, the Legislative branch cannot properly fulfill its intended function: to investigate matters of concern and to hold the Executive to account. Likewise, it would seem that the Responsible Government principle, and the absurd, clearly outmoded rule that Ministers must only be elected persons and only from the party (or parties) of government, are in direct conflict with the Comity principle? Your comments, if you will....?
Probably merits more than a comment but let me summarise the problem - a unicameral legislature - no checks and balances between legislature and executive - no constitution - no ability of the Courts to check executive power apart from judicial review which is not available all the time - unbridled legislative supremacy - an MMP system that is designed and intended to hamper firm action - remember the concerns at the Douglas reforms - necessary - didn't go far enough - led to a form of "brake" with coalitions - but then look at the way Labour squandered its oppportunity after 2020 - a lack of political will (probably just as well. The US system was designed with checks and balances built in but the growing use of government by Executive Decree has eroded that mightily. It did work rather well once upon a time.
A very good insight into custom behind the curtain, thanks. I appreciate that Judges need to walk a (sometimes) narrow non-partisan line. That makes sense for judges as it does for teachers or lecturers. But when judges, senior ones at that, go hard out with activism, which tools do we employ to restrain them? I have an issue with the ‘you can’t criticise a judge’ mantra, for despite being a legal lightweight, I’m smart enough to to call BS on so much that flows from the bench these days. (Respecting those many judges who do a great job tho…). The Legislative arm could fix things, so why don’t they? (The MACA action seems whimpy to me…)
Time to engage the legal hairsplitting mode. You may have seen my piece on criticizing the Judiciary on Law News (which will be forthcoming on Substack). There is a difference between criticisng the reasoning and the decision of the Court. That doesn't imply criticism of the Judge. Academics and Law Review writers do it all the time "with the greatest of respect"
That is an entirely different case from Shane Jones personal attack on Justice Gwynn when he referred to her as a communist. Completely out of bounds - breach of comity - breach of the Cabinet manual - the who 9 yards.
As for a privatus (remember your Latin) such conventions don't bind. But like all things, tone is important.
But then there are the ex curia remarks that Judge may make in law review articles and the like and that is murky territory. Gary Judd KC has been very critical of remarks made by Justice Glazebrook about decolonisation and Warren Pyke has been critical of an article by Justice Joe Williams. The problem is that these writings could be interpreted as a likely predetermination of issues that may come before the Court and that creates a problem.
I wrote a number of articles (and a couple of books) when I was on the Bench but they were on mundane Law and IT matters like E-Discovery or digital evidence [although one book was about the impact of the printing press on lawyers in the Early-Modern period - REALLY controversial :-))]
I read this, this morning and you made some great points. I look forward to reading The Disinformation Paradox when I finally get a break.
I'm really glad to have found your writings.
Lawyers are increasingly becoming assertive in expressing political views. Could previous statements made as a layperson affect their perception on the bench? Also interested to hear whether you think quasi judicial roles such as tribunals (these often have lawyers as chairs) have their rights constrained to the same extent.
I am keenly interested in the obligations of the judiciary. The trouble is that it is not entirely clear what the judiciary is. It is plainly the collection of people who make decisions in the senior and district courts. But what else does it include, if anything?
There are a myriad of decision making bodies that make rulings on matters legal without being amongst the clearly defined group I just mentioned. I think it plausible to argue that the judiciary encompasses all those who fall within the scope of section 3 of NZBORA. Though I accept that others would restrict the scope to those subject to the Judicial Conduct Panel Act (JCPA).
I have personal experience of persons who, whilst not subject to the JCPA, nonetheless should be subject to the Guidelines or at least the Bangalore Convention. I am thinking of bias and competence.
Mind you I have also experienced incompetence amongst those subject to the JCPA. I was looking at an example yesterday that eluded me when the judgment was issued about a decade ago. It was a matter of summary judgment. I was the plaintiff and I lost. The matter hinged upon contractual interpretation. For my argument to work it was necessary for shareholders existing at the time a put option was granted to be the only shareholders carrying the onus of the option. The judge decided that all and any subsequent shareholders were also subject to the burden of the put. There was therefore an "arguable" case and the finding was against me. It is a nonsense, of course, as the doctrine of privity of contract excludes the later shareholders.
Such is life. Served me right I suppose for attempting the short cut afforded by summary process.
Robert
The Judicial Conduct and Judicial Panel Act 2004 is a good entry point for defining a Judge. It is set out in section 5 where Judges who are subject to the JCC are listed. High Court Judges and their appointment is governed by the Senior Courts Act 2016 and District Court Judges and their appointment is governed by the District Courts Act 2016.
You acorree3ctly observe that in some respect "the judiciary" is wider than that. Community Magistrates, Tenancy Tribunal Adjudicators and Disputes Tribunal Referees do not fall under the JCC's watchful gaze but still exercise a judicial function.
Then there are the myriad administrative decision makers who are authorized by statute or by delegation to make statutory decisions which are generally reviewable. These would not consitute the Judiciary which implies a curial or Court function.
You referred to the Bangalore Convention but I assume you mean that Bangalore Principles of Judicial Conduct. Much contained in that document is reflected in our Guidelines.
The judicial branch of Government (s.3 NZBORA) envisages the Courts. The administrative decision makers would fall within the executive branch of Government.
Everyone has their views about the ability of the judiciary. As counsel I recall there would always be commentary about this Judge or that Judge and how good or bad they might be.
I hope this helps.