Justice
The rare convening of a panel to investigate a judge’s alleged misconduct came to an abrupt halt when the judge “ceased to hold office.” What does this mean for openness and transparency, and what precedent does it set for future business?
Who the former judge is and what they supposedly did are severely suppressed details. What is known is that the event took place “several years ago” and was in the judge’s personal, non-professional, capacity.
Whatever it was, it was the only 363 complaint received by the Office of the Commissioner for Judicial Conduct last year, and only the second since the office’s creation in 2005, which came with a recommendation to the Attorney General that a panel had to do.
But before the allegations could be made and a decision made on what the consequences might be, the judge stepped down, meaning the panel — whose sole purpose is to decide whether a judge should be removed from office be put – could not go any further.
Edward Willis, senior lecturer in law at the University of Auckland, said the panel’s decision not to proceed appeared to strike the right balance. “Because of the idea of judicial independence, removing judges from office is a very fraught, highly procedural exercise.”
“It is important to realize that the legislative regime we are dealing with here is very focused on the issue of removing judges from office, that is the function of this regime. It’s not a widely held ‘do judges behave?’ system.”
Willis said that depending on the nature of the behavior, there would be other mechanisms for dealing with it.
“If what the judge has done violates criminal law, there are mechanisms to deal with it through the criminal justice system.”
He said it was unlikely to set a worrying precedent.
“If There Were Some Cases” [of] judges who conveniently resign or leave office before they can be investigated, that would be problematic, but we are not there… Personally, I struggle to see a big argument for reform here.
But Jessica Kerr, a law professor at the University of Western Australia, said it was not unheard of for judges to leave their positions before there was a potentially adverse finding.
“There have been cases like this in Australia and elsewhere… we know from experience that sometimes judges resign to avoid an unfavorable finding.”
She said that while the allegations of misconduct were clearly serious, as evidenced by the decision to convene a panel, it would never be known whether they were true. It is also not known whether the judge has resigned in this case or not.
“On the one hand, you might feel sorry for a judge who resigns in situations like this, because a judicial appointment is an appointment for life, and giving that up is no small matter and their reputation could be in shambles 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 a clear opportunity to vent and resolve the accusation, but by leaving the bench they have removed that option.”
She also said it raised questions of public confidence.
“So there is the person affected by the specific complaint who has no finding and who has no possible cure. Then there are other people who have appeared before this judge in the past.
“While we have a robust appeals and review process, you can’t blame people for questioning whether this somehow undermines the legitimacy of old decisions.”
“And then there are wider concerns about trust in the system…should this judge have been appointed in the first place? Should there have been red flags from the start? If this behavior had been picked up and addressed before, and of course what could be done to prevent a similar situation from happening again.”
During the hearing to decide whether the investigation should proceed now that the judge was no longer a judge, Special Prosecutor Dale La Hood called on the panel to interpret the law through a “wider public interest lens, not just focused on the issue of removal “.
The panel found that the law did not mandate it to move forward, and Kerr added that there could be room for law reform.
“Their decision was a result of the way the current law is structured. But I don’t think there is – in principle – any reason why the Commissioner for Judicial Conduct and/or a panel should not be given the authority to look at the conduct of a former judge while they were on the bench.”
That point was also made in the panel’s decision.
“If it is believed… that there is a public interest in resolving factual disputes and recording a judicial panel’s opinion as to whether conduct warrants the removal of a judge from office, despite the judge in question not serving a judicial holds more office, then Parliament can address that.”
Raised by La Hood at the hearing, Kerr said what the former judge may be doing is also something to consider.
“Some will take up quite prominent positions in the public service. People trust former judges and there is a public interest in protecting that trust.
“So I think there are reasons why letting these kinds of allegations hang can really hurt public confidence in the system and I think it’s something that deserves attention in terms of law reform, possibly.”
Provisional suppression of the name and suppression of allegations of wrongdoing remain in place.