The vast majority of complaints about New Zealand judges over the past 15 years have gone nowhere, despite a United Nations recommendation and calls from the public for change.
More than 3,200 complaints have been made about New Zealand judges since 2005, yet there have only been two occasions in which formal discipline was recommended.
The complaints over the past 15 years have been made to the body responsible for overseeing judges, the Judicial Conduct Commissioner (JCC).
The total, from figures come from the JCC’s own reports, cover all New Zealand courts and equates to four complaints a week.
Such is the concern at the lack of accountability, one person who says she has been repeatedly victimised by a number of NZ courts, including the Family Court, High Court and the Court of Appeal, has started a petition to a United Nations High Commissioner citing the Government’s failure to protect “the citizens and residents of New Zealand from grossly incompetent and/or dishonest New Zealand Court judges.”
The woman involved, who can’t be named because of past court cases, says the process is flawed, and that while those concerned about the actions and behaviours of a judge are told to make a complaint to the JCC, it is “pointless” as the complaints “don’t go anywhere”.
The petition follows Newsroom’s Taken by the State series covering cases about Family Court judges since 2017.
No formal procedure to discipline judges for misconduct.
In 2000, a United Nations Commission on Human Rights report slammed New Zealand’s lack of judicial oversight, with the special rapporteur expressing “surprise and concern” there was no procedure to discipline judges for misconduct.
So in 2004 the government established the Judicial Conduct Commissioner and brought in the Judicial Conduct Panel Act (also known as the JCC Act).
However, this law makes no provision for any formal disciplining of judges, barring the extreme action of removing a judge from office – an action that has never been taken.
Of the thousands of complaints made, the vast majority – more than three quarters – are dismissed, most of these on the basis they call into question the judges’ decisions, which the JCC is legally unable to challenge.
The law instead seeks to “enhance public confidence in the judicial system” and “to protect the impartiality and integrity of the judicial system” through receiving complaints about the conduct of judges.
The result is that despite the thousands of complaints being made about judges between 2005 and 2020, not a single judge has been formally disciplined. Instead, the commissioner can take one of three actions:
It can dismiss the complaint; it can refer it to the Head of Bench (head judge of that court); or it can recommend to the Attorney-General that a Judicial Conduct Panel be appointed to look further into the complaint to assess whether it is recommended the judge be removed from office.
This last action has only ever been taken twice, and in both cases a Judicial Conduct Panel did not end up going ahead.
In the first case, the panel was convened in 2010 after three complaints (including one from a retired Court of Appeal Judge) were made against Justice Bill Wilson, who eventually resigned and ended any ability for the panel to take action. Former judge Wilson was awarded a year’s salary of $410,000, upon his resignation.
The second panel recommendation occurred between 2019-2020 against a District Court judge, however the Attorney General took no action as he was satisfied steps had already been taken by the judge’s Head of Bench, which involved the judge stepping down for a period of time to receive further training.
In instances where judges are referred to the Head of Bench, which occurred just eight times in the 2019-2020 year, the JCC website states the Head of Bench will determine how the matter is dealt with by considering responses such as “asking the judge to apologise to the complainant, or offering the judge appropriate assistance to avoid the inappropriate conduct happening again.”
However, the Head of Bench has no authority to enforce these actions. This is because judges are by law immune from direct discipline “to ensure that justice is administered impartially”.
The website goes on to state: “In general, Judges are accountable through the public nature of their work and the requirement that they give reasons for their decisions.”
Complainants can take an appeal, but this can be prohibitively costly. The person who started the petition to the UN says this is unjust.
“This ensures no judge in New Zealand can be held accountable for unlawfully and/or illegally causing losses and harm to a person despite a judge acting with gross incompetency and/or dishonesty via their judgments delivered against a person.”
She wants a law change, in line with the original UN comments around providing procedures to discipline judges for misconduct.
Who watches the watchdog
This situation has long been on radar of non-profit The Backbone Collective, who in 2017 released a report that examined the complaints and appeals processes available for victims-survivors in the Family Court.
Co-founder Deborah Mackenzie says the process of judges investigating judges is not only ineffective but potentially dangerous for the complainant.
“Complaining is a circulatory and dead-end process that often places women in more danger and is seldom responded to safely. We concluded that the JCC did not offer an effective, independent or safe avenue for women victim-survivors because of its very nature as a self-regulatory body (judges looking at the conduct of judges).”
Mackenzie says behaviour they heard from complainants included judges minimising violence and abuse; accusing women and children of lying about violence and abuse; verbally abusing the victim-survivor; and making false accusations about the victim-survivor’s character in court or in judgments.
“These women have also explained that when they tried to complain about a judge’s conduct to the JCC their complaint was at best pointless and at worst resulted in them being punished for their complaints in proceedings that followed.”
The person who launched the UN petition says the law New Zealand instituted is meaningless, and complaining to the commissioner a waste of time: “Twenty-one years later we still don’t have any laws in place to discipline judges, but we do have the JCC Act and the office of the Judicial Conduct Commissioner which has been, and continues to be, used as a ruse to dupe not only Kiwis but the UN as well.”
Newsroom approached the JCC to ask why there have been so few instances of judges being formally disciplined. Its response was to refer us to their most recent annual report: https://www.jcc.govt.nz/reportsandnews.html