Chapter 4 - Leadership and accountability

Court staff exercising judicial functions

Section 27 of the Judicature Act 1908 provides for the appointment from time to time of registrars and other officers under the State Sector Act 1988 “as may be required for the conduct of the business of the court”. Section 28 provides that every registrar and deputy registrar shall have all the powers and perform all the duties in respect of the court which registrars and deputy registrars have hitherto performed, or which by any rule or statute they may be required to perform.

Registrars of the various courts exercise both judicial and quasi-judicial powers. There has occasionally been discussion as to who is to supervise such officials in the exercise of their various functions.

In the past, the judiciary has expressed concern about a lack of institutional independence. In its 2010/2011 Annual Report, the Ministry of Justice acknowledged that it has no ability to direct or control staff in their judicial functions:97

In delivering services, the Ministry recognises the importance of the constitutional requirement of independence in judicial function and works with the judiciary to ensure this independence is preserved and maintained. This reflects the need for judicial independence – the courts must be, and must be seen to be, separate from, and independent of, the executive.

Staff who exercise judicial functions do so under the supervision of judges and with the guidance provided in handbooks and other training material approved by the judges. The Ministry has no ability to direct or control staff in their judicial functions.

In our view, that statement reflects the correct principle. But, given the constitutional importance of the principle, it could be argued that it should be reflected in legislation, and included in a draft Couts Bill. This raises the question of whether it is possible to draw a legislative line between the judicial and non-judicial functions exercised by court staff. While the arrangement outlined by the Ministry of Justice in its annual report sounds clear, in practice there may be some difficulty in drawing bright lines between judicial and non-judicial functions of registrars.


Should a new Courts Bill codify the principle that court officers performing judicial functions are not subject to direction by the Ministry of Justice?

Ministry of Justice Annual Report 1 July 2010 – 30 June 2011 < > at 3.