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Holding the balance
New Zealand’s Bill of Rights

Holding the balance

Judicial roles
Resolving disputes
Appointment of judges
Education
Judicial independence
Misbehaviour
Out of order
Protected
Performance

New Zealand’s laws are the rules and judges are the referees. Parliament passes laws. Judges interpret those laws in cases which come before the courts.

Our legal system has a very long history. Many of the rights people enjoy today go back to ancient laws, such as the Magna Carta (1215), which established the right to be treated fairly and equally before the law. Aspects of English law in New Zealand today include the Westminster tradition of government, use of common and statute law, adversarial court proceedings, jury trials and rights protecting the individual from the state.

Other important influences on New Zealand law are the Treaty of Waitangi, which has been incorporated into many statutes, and the Bill of Rights, which limits the power of the state and requires our laws to be interpreted according to principles of fairness and justice.

Judicial roles

The main function of judges is to resolve disputes, whether between individuals or between individuals and public authorities. Judges interpret the law in the light of the facts of the cases before them. In accordance with their judicial oath, they must reach their decisions without regard to their personal opinions, and they don’t make policy, which is the responsibility of Parliament.

Judges spend only part of their time sitting in court. They also spend time preparing for court or writing up their judgments, and many are involved in judicial administration, as well as statutory responsibilities in respect of Rules of court procedure, legal education, law reporting and the Parole Board. In the High Court overall judicial activity tends to be evenly balanced between criminal and civil work, while in the District Court more time is devoted to criminal work.

There are currently four tiers in our court system. The Privy Council in London remains our highest court, although there are proposals to replace the final right of appeal with the creation of a New Zealand Supreme Court. The next tier is the Court of Appeal, which has eight permanent judges. The High Court has 32 permanent judges, and five Masters, who do only civil work. The District Court has 124 permanent judges. The number of judges in each bench is limited by statute. Where necessary, these appointments are supplemented by judges on temporary warrants.

The Chief Justice is the head of the judiciary. By virtue of her office she is also a member of the Court of Appeal and she is the head of the High Court bench. Other courts also have a head of bench. The Chief Justice and heads of bench are not like the leaders of political parties or like the CEO’s of state sector organisations. No judge has direct authority over any other judge. Judges can only be corrected on appeal. They cannot be directly disciplined. The Chief Justice and other heads of bench have an important role in judicial administration and are respected because of their position. This limitation on their authority helps safeguard the independence of the judiciary.

Resolving disputes

The aim of our legal system is to provide a fair way of resolving disputes, with everyone being treated equally by the court. However, it is hard to make this ideal work in practice. Going to court is very expensive and can take a long time. This means that some people cannot afford to take cases to court. To help overcome this we have a legal aid system to try and help people who are poor but need to go to court.
Appearing in court can be very intimidating for people who have not been there before. It is an adversarial process in which each side argues for its case and seeks to prove the other side wrong. For this reason, New Zealand has been trying to introduce other options than a full court hearing.
People who are claiming small amounts of money can go to the Disputes Tribunal, which costs a lot less, is much quicker and is far more informal than a court. Another alternative is to enter into mediation, where a neutral referee will try and help the parties sort things out speedily and with as little hostility as possible. In the Family Court, almost all cases start off with counselling for the parties so that they have a chance to sort out their problems with the help of a trained person.

Appointment of judges

The Attorney-General or the Minister for Justice (in the case of the District Court) appoints judges. They are appointed until the retirement age of 68.

They have to know the law well, so they are selected from the legal profession, usually from lawyers who have worked in courts for many years. In the past, appointments came from among the leaders of the profession. This process was largely informal and has been criticised as too secretive. In recent years there has been a concerted effort to widen the selection process to include more women and appointees from different ethnic backgrounds, as well as a wider range of professional experience.
At present, 13% of New Zealand’s judges are women, a rapid increase of numbers in recent years. (compared to England, where women make up 9.75% of judges.) There are still few Maori and Pacific Island judges, but that too is changing.
A significant step occurred in May 1999, when New Zealand’s first female Chief Justice, Dame Sian Elias, was sworn into office.
New procedures for appointing judges have been introduced to make the system more transparent. Vacancies are now advertised, and are open to all suitable applicants.

Education

Judicial education in New Zealand took a significant step in 1998 with the opening of the Institute of Judicial Studies.

Most of a judge’s training comes from his or her years of professional experience in the law, and some of a judge’s work can only be learned on the job. However, judging can be isolated work. Keeping abreast of developments in law and society provides necessary context. The Institute of Judicial Studies, under the control of the judges, provides opportunities for continuing legal education and exchanges of views between judges of different courts.

Judicial independence

Judicial independence is an important principle of the New Zealand constitution, aimed at ensuring judges are not subjected to political interference. There are strict rules about how judges are appointed, disciplined and removed. This is so that they are not put under improper pressure when they make their decisions and cannot be removed by a government unhappy with their decisions.

Judges can only be removed from office in extreme cases of misconduct or incapacity. Instances of serious misconduct have been very rare, and have resulted in the resignation of the judges involved.

To protect judicial independence, judges cannot be directly disciplined. However, there is a formal process that hears complaints against judges for inappropriate but not unlawful behaviour, and the head of bench, who investigates the complaint, may recommend action if satisfied the complaint is justified. An independent lay observer may review the decision and recommend to the head of court to look at the complaint again. In practice, very few complaints are found to be justified.

Misbehaviour

There has been debate in recent years about whether it should be easier to remove judges. In the mid-nineties a police investigation resulted in two judges of the Whangarei District Court being charged with fraud. The police alleged that they had ‘fiddled’ their expenses claims to obtain money to which they had no right. One of the two pleaded guilty and resigned from the judiciary. The other pleaded not guilty and was acquitted after trial, and remains a judge. New rules have now been introduced to make it clearer when judges can be required to leave office. The incident showed that the judiciary is not above the law and that New Zealanders can have confidence in the Rule of Law.

Out of order

The Standing Orders (rules) of the House of Representatives prohibit MPs from criticising judges. Even the Minister of Justice does not comment on individual court decisions, as that could be seen to be interfering with judicial independence.

In recent years, there has been a number of cases when MPs have criticised the decisions made by judges. By convention, the Judges have not been able to defend themselves from criticism. This was the role of the Attorney-General. But because the Attorney is also a politician, and may be reluctant to censure colleagues, the judiciary now sometimes defends itself. The Chief Justice or other heads of court will respond if the criticism is felt to be unfair, personally directed at a particular judge, or damaging to public confidence in the judiciary.

Protected

Another aspect of the independence of the judiciary is that judges’ pay cannot be lowered (or cut off). Judges cannot be sued, meaning that they can make decisions without fearing that parties who do not agree with them will try to punish them by suing them.

Performance

Although the courts play an essential part in the New Zealand system of constitutional government, their structure and operation are not widely understood.

Statistics about court workload tell only part of the story. The performance of judges is not adequately measured by identifying the output of the courts. The judicial responsibility, as expressed in the judicial oath, is to do right according to law. Quantitative standards do not measure the achievement of that standard. They say nothing about the quality of decision-making.
The New Zealand judiciary depends on the confidence of the public it serves. That confidence is above all maintained when judges are seen to be resolutely impartial in discharging their judicial duties and committed to upholding the Rule of Law.

New Zealand’s Bill of Rights

New Zealand’s Bill of Rights Act affirms a range of civil and political rights and freedoms, including that all people living in New Zealand have:

• The right not to be deprived of life.
• The right not to be subjected to torture or cruel treatment.
• The right not to be subjected to medical or scientific experimentation.
• The right to refuse to undergo medical treatment.
• The right (if a New Zealand citizen who is of or over the age of 18 years) to vote in elections for the House of Representatives, and to offer themselves for membership of the House of Representatives.
• Freedom of thought, conscience and religion.
• Freedom of expression.
• Freedom of peaceful assembly.
• Freedom of movement.
• Freedom from discrimination.
• Freedom to enjoy their own culture, religion and language.
• Freedom from unreasonable search and arbitrary arrest and detainment.
• The right to minimum standards of treatment if arrested.
• The right to justice.
• The right to bring civil proceeding against, and defend proceedings brought by, the Crown.

Auckland High Court

The costumes worn by judges and lawyers reflect the long history of our courts system.

Dame Sian Elias, Chief Justice

The main function of judges is to resolve disputes, whether between individuals or between individuals and public authorities.