Contents

Chapter 6
Judicial conflicts
of interest

No other employment or office – section 4(2A) of the Judicature Act 1908

6.9Restrictions on outside work or appointments help to reduce the likelihood of a conflict of interest arising for a judge. In Issues Paper 29 we noted that how this is achieved statutorily is somewhat untidy, and less transparent than it should be.

6.10Section 4(2A) of the Judicature Act 1908 is the relevant provision for Senior Court judges. It provides:

A Judge must not undertake any other paid employment or hold any other office (whether paid or not) unless the Chief High Court Judge is satisfied that the employment or other office is compatible with judicial office.

6.11Section 4(2A) was inserted into the Judicature Act 1908 at the same time as other provisions dealing with part-time judges.64  In Issues Paper 29 we stated that although we consider section 4(2A) applies to all judges, whether they are full- or part-time, this is not explicit on the face of the section.
6.12The equivalent provision in the District Courts Act 1947 provides in addition that “no judge shall practise as a barrister or solicitor”,65 which suggests the provision was intended to apply only to part-time judges.

6.13We also said in Issues Paper 29 that there is room for argument as to whether section 4(2A) of the 1908 Act applies to judges of the Supreme Court and the Court of Appeal. Section 4 is in Part 1 of the 1908 Act, which deals with the High Court. The appellate judges are technically also judges of the High Court, although they do not sit on the High Court bench, and their relevant Head of Bench is not the Chief High Court Judge, but the President of the Court of Appeal or the Chief Justice (as the case may be).

6.14The issue of whether section 4(2A) applies to judges of the Court of Appeal and the Supreme Court was raised by counsel in Saxmere Company Limited and Ors v Wool Board Disestablishment Company Limited, but the Supreme Court found it unnecessary to decide this issue.66  The Court did, however, note that “it would be odd, to say the least, to require an appeal judge to obtain a consent of the kind envisaged by the subsection from the head of a lower bench.”67  Although this approach has been criticised,68  it does indicate a need for amendment of the relevant statutory provision to reflect the appropriate lines of judicial authority and accountability.
6.15In Issues Paper 29 we said we thought the relevant section in a new Courts Bill should apply to all judges, whether they have a full- or part-time warrant, and it should be clear on the face of the section that it applies to both trial and appellate judges. We were provisionally of the view that a generic section would be appropriate, which clearly states that no judge may undertake any other paid employment, act as a barrister or solicitor, or hold any other office (whether paid or not), unless the particular Head of Bench for that judge is satisfied that employment or other office is compatible with judicial office.69

6.16The Senior Courts’ judges submitted that while they see a provision such as section 4(2A) as appropriate in the case of part-time judges, they question the need for such a provision in relation to full-time judges. The judges said that at the time the provision was enacted it was understood that it was intended to apply only to part-time judges:

Since there is a strong convention that holding judicial office is a full-time occupation which precludes other office or employment, it has never been seen necessary to provide specifically for such a limitation until part-time appointment became an option. (The holding of offices and other extra-judicial associations judges may have is the subject of ethical guidelines and conventions and the approval of the Chief Justice or head of bench.)

6.17The Senior Courts’ judges submitted further that if the Commission proposes to maintain section 4(2A) in terms that do not make a distinction between part-time and full-time judges, or trial and appellate judges, then the provision should be changed to provide for notification to and approval by the Chief Justice after consultation with the head of bench on which the judge sits. They also stated that if the provision is to be retained, then it should make clear that there is no limitation on a judge being a trustee of a family trust or similar entity.

6.18Other submitters who responded to this issue generally agreed the section 4(2A) restrictions should apply to all judges in all courts. The Crown Law Office does not agree there is room for doubt as to the application of section 4(2A) of the Judicature Act 1908, as the provision clearly applies to “a judge”. It said the purpose of section 4(2A) is to ensure that other offices are compatible with judicial office for reasons of preserving the judge’s impartiality and the respect in which the judicial role is held, but also in terms of time commitments. In the Crown Law Office’s view, it is probably not possible or desirable to attempt to craft a provision that covers all roles, appointments or offices, whether paid or unpaid, that may be incompatible with judicial office:

Clearly there is a point at which the question must be subject to consideration by judges as a group and the judges may choose, for example, to develop guidelines for themselves.

6.19The New Zealand Law Society said it agrees that the rules regarding employment and external activities undertaken by judges should be clarified, and that appropriate procedures should be put in place for seeking approval for such activities. The Law Society said the rules should be clearly and publicly stated, and should apply to all judges.

6.20Looking at things from another angle, a community law centre submitted that allowing judges to sit on “school boards and the like” assists in diversity and gives judges an insight into community issues and a connection with grassroots New Zealand.

6.21We agree there needs to be flexibility to enable judges to serve on school boards or advisory organisations, or to act as a trustee of a family trust, where this is compatible with judicial office (as is currently the case). It seems sensible to follow the Senior Courts’ judges’ suggestion as to the appropriate procedure for a judge to obtain consent for the holding of any such office.

6.22We do not agree, however, that the provision should only apply to part-time judges. Although full-time judges are unlikely to have time for other work, they may wish to hold other office, and consistent standards and procedures for approval should apply to them. We therefore think there should be a provision in new courts legislation providing that no judge (whether part-time or full-time, in a trial or an appellate court) may undertake any other paid employment or act as a barrister or solicitor. Nor should a judge be able to hold any other office (whether paid or not), unless that judge has notified the Chief Justice, and the Chief Justice, in consultation with the judge’s Head of Bench (for judges in any Court other than the Supreme Court), is satisfied that the other office is compatible with judicial office, and the relevant judge has been advised of this.

6.23Although prior clearance through the Chief Justice or relevant Head of Bench for any such undertaking likely reflects the existing practice, we think it should be provided for in legislation, so the position is clear to the public.

6.24We also think it is important for the public to know what types of activities will likely be considered consistent and inconsistent with judicial office, and that the Chief Justice, in consultation with the Heads of Bench, should develop and publish guidelines on this.

R18 There should be a clear statutory provision in new courts legislation prohibiting all judges from undertaking other employment or acting as a barrister or solicitor.

R19The statute should also prohibit judges from holding other office (whether paid or unpaid) unless the Chief Justice, in consultation with the relevant Head of Bench, has approved the other office as being consistent with judicial office.

R20The Chief Justice, in consultation with the other Heads of Bench, should develop guidelines on the types of activities that are and are not considered consistent with judicial office, and make those guidelines available to the public via the internet.

64Judicature Amendment Act 2004.
65District Courts Act 1947, s 5(5).
66Saxmere Company Limited and Ors v Wool Board Disestablishment Company Limited [2009] NZSC 122, [2010] 1 NZLR 76.
67At [9].
68Phil Taylor “Judge faces being first to go to conduct panel” The New Zealand Herald (online ed, Auckland, 19 December 2009).
69Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 62, at [3.52].