Chapter 4 - Leadership and accountability

Responsibility and accountability

As we have already indicated, New Zealand has an unusual functional grouping in its trial and appellate courts. The High Court, Court of Appeal and Supreme Court all have different statutory responsibilities, but the judges of those courts (who actually form the particular “court”) are linked to a common college – that of their status as High Court judges. This is an important policy feature of the courts' architecture in New Zealand.

Within the higher courts, pursuant to section 4B of the Judicature Act 1908 the Chief High Court Judge is responsible to the Chief Justice for ensuring the orderly and prompt conduct of the High Court’s business. The Chief High Court Judge may make all the arrangements that are necessary for the sittings of the Court and the conduct of its business. This amendment was put in place in 2003 when the Chief Justice moved to become Head of Bench in the Supreme Court and head of the judiciary in New Zealand.

There is no similar “linkage” within the higher courts for the President of the Court of Appeal. In our view, there ought to be a similar statutory accountability mechanism for the Presidency of the Court of Appeal. This would not be a radical change to the status quo: we understand that the Chief Justice has met for some time now on an inter-bench basis with the President of the Court of Appeal and the Chief High Court Judge to resolve matters of mutual necessity or interest.

In the District Courts, the late Chief Judge Johnson and the Principal Judges of the Family Court and the Youth Court had evolved a series of protocols which effectively resulted in the Principal Judges being responsible to the Chief District Court Judge for ensuring the orderly and prompt conduct of the District Courts’ overall business.

We propose that these formal linkages should be expressly set out in a new Courts Bill. The Chief District Court Judge should continue to have authority in relation to, and responsibility for, the proposed single national District Court structure,89 just as she currently does for the District Courts. The Principal Judges of the Youth Court and Family Court should be responsible to the Chief District Court Judge for ensuring the orderly and prompt conduct of the business of their divisions. In relation to the lower courts, the Chief District Court Judge would have final authority, thus preserving the distinction between the higher/lower courts structure. The Chief District Court Judge should be enabled to make all the arrangements that are necessary for the sittings of the District Court (and its divisions) and the conduct of the business of the District Court.

The Chief Justice of New Zealand, as head of the judiciary, would again have authority to engage with the Chief District Court Judge if and when it ever became necessary.

In short, putting in place these formal linkages would in practice amount to confirmation of what has already evolved. The Commission, however, considers this to be sufficiently important to warrant legislative recognition.

Q8

Do you agree that the linkages in the structure of the judiciary should be formally recognised in legislation?

Q9

If so:

  • should the Principal Judges of the Youth Court and the Family Court be responsible to the Chief District Court Judge for ensuring the orderly and prompt conduct of the business of their divisions?
  • should the President of the Court of Appeal and the Chief High Court Judge be accountable to the Chief Justice for the orderly and efficient operation of their benches?

Annual reporting obligation?

One further issue we raise for consideration is whether there should be a statutory requirement for the Chief Justice to produce an annual report on the judiciary in New Zealand.

It is of the greatest constitutional importance that the judiciary be independent of the Executive. The judiciary must, however, also be individually and collectively accountable for the proper discharge of its functions.

Individual accountability for decisions is secured through rights of appeal. In New Zealand, these rights are very broad. Complaints about inappropriate judicial conduct can be directed to the Judicial Conduct Commissioner.90 The Commissioner is appointed by the Governor-General on the recommendation of the House of Representatives (not the Executive).91

However, there is no annual report on the judiciary as a whole. This means there are no consolidated statistics on what the judiciary is facing and how it is disposing of work, and how particular courts are performing.92  There are some figures published by the Ministry of Justice on the Courts of New Zealand website, giving raw case numbers only,93 although we are advised that the next round of annual statistics, which will be published in early March 2012, will include some critical analysis approved by heads of bench.

The absence of an annual report means that there is no single place where the concerns and views of the judiciary as a whole can be expressed and published. The Chief Justice and the heads of bench do from time to time comment, whether in judgments, in a public forum or in speeches, on matters affecting the judiciary. They also make direct representation to individual Ministers and the Attorney-General. But there is not a “State of the Union” type address.

In the United Kingdom in July 2007, the Lord Chief Justice announced that the Judicial Executive Board had agreed that he should lay an annual review before Parliament in order to meet the needs of accountability to Parliament and the public in the light of the Constitutional Reform Act 2005 (UK). The House of Lords welcomed this decision and suggested that the report might encompass administrative issues and, where appropriate, areas of concern about the justice system, provided that there was no discussion of individual cases. It believed that the report would provide a useful opportunity for both Houses of Parliament to debate such matters on an annual basis, and for the Lord Chief Justice to engage effectively with parliamentarians and the public.94 The first such review was published in March 2008. (However, in a follow-up report, the House of Lords described the Lord Chief Justice as subsequently resiling from the commitment to produce such a report on a strictly annual basis.95)

A number of issues arise. First, at a level of principle, is it appropriate to have a statutory requirement for an annual report of this nature? In the United Kingdom, the Lord Chief Justice was very firmly of the opinion that a statutory requirement would not be desirable:96

We do not consider that would really be compatible with the independence of the judiciary as a separate arm of state. We do think it is appropriate that we should volunteer a review so that we are publicly accountable in that way, but it is important that we should be doing so of our own volition.

Second, there are practical considerations, such as the availability of adequate statistical material held by the Ministry of Justice and access by the judiciary to it. The Ministry of Justice advises that the judiciary has access to whatever statistics it may require, for regular reporting and ad hoc requests, and the Ministry is set up to support the actioning of such requests. Even so, a report of this kind could place a heavy burden on the Chief Justice, and additional resources may need to be provided.

If there was to be an annual report, should it be presented to Parliament, or simply made available to the public (for example on the Courts of New Zealand website)?

Q10

Should the Chief Justice be statutorily required to produce an annual report on the judiciary?

Q11

If so, should it be presented to Parliament, or simply made available to the public?

For a discussion of this proposed structure, see chapter 6.

Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.

Section 7(2).

By way of contrast, see the Ministry of Justice (UK) Judicial and Court Statistics 2010 < www.justice.gov.uk >.

Courts of New Zealand “Statistics” < www.courtsofnz.govt.nz >.

United Kingdom Select Committee on the Constitution Relations between the executive, the judiciary and Parliament (HL) (2006–07) HL 151 at [139].

United Kingdom Select Committee on the Constitution Relations between the executive, the judiciary and Parliament: Follow-up Report (HL) (2007-08) HL 177 at [22].

United Kingdom Select Committee on the Constitution, Relations between the executive, the judiciary and Parliament: Follow-up Report (HL) (2007-08) HL 177, Minutes of evidence 9 July 2008 at Q12.