Integrity of NZs Judicial Complaints Commissioner This note compares the handling of complaints about judges in other culturally

similar jurisdictions and draws the conclusion that our system is not competently investigating complaints about the behaviour of judges. As a result, it can reasonably be assumed that in the absence of supervision, the behaviour of our judges will at times be significantly out of step with expectations of society. Judging from international comparisons, we would expect about 3 admonishments per year and one dismissal every two years. By comparison, not a single judge has been dismissed in 3 years. As the societal expectations of judges are not able to be able to be fully and clearly defined, it is important that individual cases are reviewed and the outcomes made available to the public and to judges, on an ongoing basis. The silence of the judiciary on the absence of a working supervision system, does them no credit at all. In fact, their behaviour is fairly consistently set against accountability to the public. Professional accountability has never been a comfortable subject. None of us enjoys being questioned on our actions, with the possibility of accountability biting us with severe consequences. In the absence of working systems of professional accountability, the public may suffer horribly and in their hurt, have sought redress through the courts and through Parliament. In almost all cases, self-regulation has had spectacular failures and Parliament has moved towards external regulation. In the last 20 years, Parliament has taken supervision of the medical profession and real estate agents from self-regulation and imposed external regulation, with lay member input. The only two significant professions that have retained self-regulation, have been legal workers and judges. They have been able to do this only through protection from MPs that are legal workers, in breach of Parliaments Rules on standing out of debates when there is a Conflict of Interest. However, well publicized examples of failures of self-regulation keep on occurring This leads to public pressure for working systems of accountability. The legal-workers now have a new system of self-regulation, which still operates without lay person input and seems to be just the old system dressed up with new titles. This system seems to keep drawing public complaints, at the same rate as the old system it replaced. It isnt having any improved impact on malpractices by legal-workers. In the last 20 years, complaints about malpractice and fraud by judges have kept on surfacing, with little or no resolution. One particularly embarrassing example, was an accusation that two District Court judges were making fraudulent expenses claims. It is extremely unusual for Justice Department staff to make allegations against judges, as they can easily lose their jobs or be disadvantaged. In this case, when the allegations could no longer be hidden, a police investigation decided to lay charges. Judge Hesketh pleaded guilty and resigned. Judge Beattie was found not guilty at trial and refused to resign as judge. Public concern at the possibility of

crimes being heard in front of a judge who had escaped conviction on technicalities, led to him being slid sideways. There have been many complaints about judges hearing cases involving friends, family and business partners. Even when requested to recuse themselves, some had refused. In other cases, the aggrieved party had only found out about the judges connections to the other party, long after the corrupted trial had closed and the deadline for submitting an appeal was long gone. As a result of these incidents, legislation was passed setting up a Judicial Complaints Commissioner. Surprisingly, he was given no power to discipline or dismiss! If his preliminary investigation recommended further action, the case would be passed to the Head Of Bench, for formal investigation. The Head Of Bench, who had no power to discipline or dismiss, was still not given these powers either! These were the very people who had mishandled previous allegations and previously refused to take action against errant judges, probably because they were too close ie the old Conflict Of Interest. So, nothing had changed at all, just the window dressing and added expense to the taxpayer. As legal workers and judges price their services further out of the reach of the average citizen, then the costs of appealing unsatisfactory or defective judgements becomes further still out of sensible reach of citizens. In this situation, the availability of a complaints handling system can help the judges to stay in compliance with legislation and in tune with public expectations about ethics. There are many types of shady practice, with examples from Chicago, Sydney, Queensland, Stalin, Auckland District Court and doubtless many others too. Tenure for life with no accountability supervision is well demonstrated to fail regularly. The two main systems of supervision are: 1. Regular voting for judges ie no tenure, and 2. External supervision, with lay input and the power to discipline or dismiss. Many USA states use the voting system, with reasonably effective results. The USA Federal courts, Chicago, California and Australia use the latter system. NZ uses the latter system, but the investigator is a legal worker, with no lay input and he investigates complaints non-proactively. If the preliminary investigation finds a case to answer, it is not publicly reported and is passed secretly to the Head of Bench, for supposedly a formal investigation. The Head of Bench can carry out this investigation secretly and is under no obligation to report the outcome publicly and not to the complainant either. Unsurprisingly, this system hasnt found the need to discipline or dismiss a single judge, in three years! By international comparison, if we scale USA and UK experience with judicial supervision, we would expect in NZ to see a judge dismissed every two years and 2 or 3 disciplined per year. Thus zero disciplines of any sort in three years shows that the JCC doesnt have the stomach to carry out his job proactively, or independently or successfully. This isnt really surprising, given the Conflict of Interest, no lay input and the toothless role.

In the USA all preliminary investigations that find a case to answer, are publicly reported and the public are able to attend the formal hearing. The UK is just starting to be more open, but still has a long way to go, to match USA accountability. Judges criticize a business owner who hasnt regularly audited his business accounts, for contributing to a fraud against his company. Similarly, citizens who fail to supervise their judges, are asking to be victim to fraud or malpractice by judges. When our judges claim that they dont need supervision, they are showing they are not able to handle the rigours of professional life. They should be replaced.