Contents

Chapter 6
Judicial conflicts
of interest

Introduction

6.1Judges must have the respect and faith of the communities they serve to be effective. To achieve this, the public must be satisfied that cases are being decided fairly and impartially, on the basis of findings of fact and the application of the law to those facts, rather than on the basis of favouritism or prejudice. Judicial accountability is also essential to maintaining public confidence in the judiciary and the rule of law.

6.2On appointment, a judge is required by statute to take an oath to do justice to all persons “without fear or favour, affection or ill-will”, which reflects the independence and impartiality required of a judge.

6.3If, after being assigned to hear a case, a judge considers there are circumstances that raise doubts as to whether he or she should sit on that particular case, the judge may have to stand down, or “recuse”. The case will then be heard and decided by another judge. A judge cannot simply choose not to sit on a case to which he or she has been assigned. There has to be a proper reason for a judge to take this course, and the judge must be guided by the common law and judicial codes of practice in deciding whether or not it is appropriate to sit.

6.4Issues around judicial conflicts of interest and recusal attracted public attention over allegations of inadequate disclosure by Wilson J in relation to his financial relationship with counsel appearing before him, as discussed in Saxmere Company Limited v Wool Board Disestablishment Company Limited.59  Those allegations led to a complaint to the Judicial Conduct Commissioner, litigation, and ultimately the resignation of the Judge.
6.5Subsequently, Green MP Dr Kennedy Graham’s Register of Pecuniary Interests of Judges Bill was drawn from the Members’ ballot, and introduced to Parliament on 11 November 2010. The purpose of the Bill is to:60

Promote the due administration of justice by requiring judges to make returns of pecuniary interests to provide greater transparency within the judicial system and to avoid any conflict of interest in the judicial role.

6.6The Bill had its first reading on 27 June 2012, and was referred to the Justice and Electoral Committee.

6.7As a statutory requirement for a register of judges’ pecuniary interests relates to matters being considered in the Commission’s review of the Judicature Act 1908, the Commission published Towards a New Courts Act – a Register of Judges Pecuniary Interests? (Issues Paper 21) in March 2011.61
6.8In this chapter, we return to the issues raised in Issues Paper 21, and consider how best to prevent and manage judicial conflicts of interest. First, we examine section 4(2A) of the Judicature Act 1908 (discussed in Issues Paper 29), which codifies the general principle that judges must not undertake any other paid work.62  Compliance with section 4(2A) reduces the potential for conflicts of interest to arise for a judge, and we make recommendations to improve the clarity and scope of the section. We then look at whether there is a need for the establishment of a register of judges’ pecuniary interests along the lines of that proposed in the Register of Pecuniary Interests of Judges Bill which, at the time of writing, is before Parliament. Finally, we consider issues associated with judicial recusal, and make recommendations to improve the recusal process.63
59Saxmere Company Limited v Wool Board Disestablishment Company Limited [2009] NZSC 72, [2010] 1 NZLR 35.
60Register of Pecuniary Interests of Judges Bill 2010 (240-1), cl 3.
61Law Commission Towards a New Courts Act – A Register of Judges’ Pecuniary InterestsReview of the Judicature Act 1908 First Issues Paper (NZLC IP21, 2011).
62Law Commission Review of the Judicature Act 1908: Towards a consolidated Courts Act (NZLC IP29, 2012) at [3.47]-[3.54].
63See the disclosure of interest regarding this chapter at the beginning of the Report at page vii.