Who the former judge is and what they supposedly did are tightly suppressed details. What is known is the event happened “some years ago” and was in the judge’s personal, not professional, capacity.
Whatever it was, it was the only complaint out of 363 received by the Office of the Judicial Conduct Commissioner last year, and only the second since the Office was established in 2005, that came with a recommendation to the Attorney-General that a panel investigate.
But before the allegations could be aired and any decision on what the consequence might be, the judge “ceased to hold office”, meaning the panel – whose sole purpose is to decide whether to remove a judge from office – could not go any further.
University of Auckland senior law lecturer Edward Willis said the decision by the panel not to proceed appeared to strike the right balance. “Because of the idea of judicial independence, removing judges from office is a very fraught, very procedural exercise.”
“It’s important to realise that the legislative regime here that we’re dealing with is very focused on the issue of removal of judges from office, that is the function of this regime. It’s not a broad-based ‘are judges behaving themselves?’ system.”
Willis said depending on the nature of the conduct there would be other mechanisms for dealing with it.
“If what the judge did is in breach of criminal law there are mechanisms to deal with this through the criminal justice system.”
He said it was unlikely to set a concerning precedent.
“If there were a number of instances [of] judges conveniently resigning or leaving office before they could be investigated, that would be problematic, but we’re not there … I struggle personally to see a huge case here for reform.”
But University of Western Australia law lecturer Jessica Kerr said it was not unheard of for judges to leave their positions before a potentially adverse finding.
“There have been cases like this in Australia and elsewhere … we know from experience that judges do sometimes resign to avoid an adverse finding.”
She said while the misconduct allegations were clearly serious, as shown by the decision to convene a panel, it would never be known if they were true. It is also not known whether the judge in this case resigned or not.
“On one hand you might feel quite sorry for a judge who does resign in this kind of situation, because a judicial appointment is a life appointment, and giving that up is not a small thing and their reputation may be in ruins even without a finding against them.
“But on the other hand, you can see some judges as the architects of their own misfortune because there is this clear opportunity to have the allegation ventilated and resolved, but by leaving the bench they have removed that option.”
She also said it raised questions of public confidence.
“So there’s the person affected by the specific complaint who doesn’t have a finding and who doesn’t have any potential remedy. Then there are other people who appeared before this judge in the past.
“Even though we have a robust appeal and review process, you can’t blame people for wondering whether this might somehow undermine the legitimacy of old decisions.”
“And then there are broader concerns about trust in the system … should this judge have been appointed in the first place? Should there have been red flags right from the start? Should this conduct have been picked up and addressed earlier, and of course, what might be done to stop a similar situation happening again.”
During the hearing to decide whether the investigation should go ahead now the judge was no longer a judge, special counsel Dale La Hood called for the panel to interpret the law through a “wider public-interest lens, not solely focused on the question of removal”.
The panel found the law did not give it the remit to go any further, with Kerr adding there could be scope for law reform.
“Their decision was a consequence of the way the current law is structured. But I don’t think there’s any reason – in principle – why either the Judicial Conduct Commissioner and/or a panel couldn’t be given the power to look at the conduct of a former judge during the time they were on the bench.”
That point was also made in the panel’s decision.
“If it is felt … that there is a public interest in resolving factual contests and recording a judicial conduct panel’s opinion as to whether behaviour would warrant a judge’s removal from office, despite the judge in question no longer holding judicial office, then that is for Parliament to address.”
Raised by La Hood in the hearing, Kerr said what the former judge may go on to do next, was also something to be considered.
“Some go on to hold quite prominent public service roles. People trust former judges, and there’s a public interest in protecting that trust.
“So I think there are reasons why leaving this kind of allegation hanging really can harm public confidence in the system and I do think that it is something that deserves consideration in terms of law reform, potentially.”
Interim name suppression and suppression of the misconduct allegations remain in place.