Contents

Chapter 8
Leadership and accountability

Annual report

8.10A further accountability matter raised in Issues Paper 29 was whether there should be a statutory requirement for the Chief Justice to produce an annual report on the judiciary in New Zealand.101  We stressed that judicial independence is a fundamental aspect of the New Zealand constitution, but said the judiciary must also be individually and collectively accountable for the proper discharge of its functions. There is individual accountability for judicial decisions through rights of appeal, and the statutory processes for dealing with complaints about inappropriate judicial conduct. However, there is no annual report on the judiciary as a whole. 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.

8.11From 1998 to 2008, the Court of Appeal produced an annual report relating to significant cases in that Court. In February 2012, the Chief High Court Judge presented a report on events of note in the High Court during 2011, and stated that in the future the Court intends to report annually on the previous calendar year. This is a useful resource, but is confined to the High Court only.

8.12Courts in other jurisdictions also produce annual reports, the contents of which vary according to the particular jurisdiction. For example, in the 2011 Year-End Report on the United States Federal Judiciary, the Chief Justice took the opportunity to address the issue of whether the Judicial Conference’s Code of Conduct for United States Judges should apply to the Supreme Court, and provided clarification on how the Justices address ethical issues.102  The report also contained a short appendix, which summarised the workload of the courts for the year.
8.13In the United Kingdom, the Supreme Court Annual Report and Accounts 2011-2012 covered a variety of matters including the mission, values and objectives of the Court, appointments to the Court and the selection process, court statistics, a summary of high profile cases and judgments, external relations and corporate services.103

8.14In Issues Paper 29, the Commission asked whether there should be a statutory requirement for the Chief Justice to produce an annual report on the Judiciary, and, if so, whether it should be presented to Parliament, or simply made available to the public. We noted that there are practical considerations associated with such an exercise, such as the availability of adequate statistical material held by the Ministry of Justice and the potential need for additional resources to assist the Chief Justice.

Submissions

8.15The Senior Courts’ judges submitted that they did not consider that an annual report should be required by legislation. They said it would also be constitutionally inappropriate for the judiciary to report to Parliament, as it is a separate branch of government. The judges pointed out that, unlike in the United Kingdom and some Australian states, in New Zealand the judiciary has no powers of self-administration or control of financial expenditure, or the necessary personnel and other resources required to undertake the task of preparing an annual report. The judges said they would prefer to concentrate on regular and current publication by the Ministry of Justice of information that is useful in understanding the operation of the courts and their performance. We understand that the judges are engaging with the Ministry of Justice to improve the statistical material provided to the judiciary, which would be available for publication.

8.16An individual submitter suggested there should be an annual report containing an account from each of the Heads of Bench on the conduct of business in their court, and an overview by the Chief Justice. It was also noted that one advantage of having a legislative provision is that it would provide a regularised timeframe and a general sense of content, for example, a requirement for the report to include figures on volumes and timeliness, and commentary on these, including any trends in the figures that may be provided on the Courts of New Zealand website. In the absence of a legislative requirement for an annual report, there is a risk that the content will fluctuate and the timing of issuing the report will vary.

8.17Submissions also raised the point that an annual report is not a judgment and will likely raise legitimate questions, which should be responded to.

8.18While acknowledging the limits of the Commission’s review, a submission by Richard Cornes, an academic researching the role of the Chief Justice of New Zealand, noted that New Zealand judges work in constitutional arrangements that provide the elected branches of government with very significant power, and he made arguments for handing responsibility for leadership and management of the judicial branch to a New Zealand Judicial Council presided over by the Chief Justice, with appropriate resources to redress the constitutional balance to better protect the judiciary. Suggested functions for such a Judicial Council included:

Commission’s view

8.19The establishment of a Judicial Council is not contemplated in the scope of the Commission’s limited review of the Judicature Act, but the Commission looks forward to reading the results of Dr Cornes’ research, expected to be published in 2013.

8.20The Commission remains of the view that the Chief Justice should publish an annual report on the judiciary, and agrees with the suggestion that an update from each of the Heads of Bench should form part of this. Although more statistics are now available on the Courts of New Zealand website,104  it would be helpful to have critical analysis of these, and an overall view of the shape of the judiciary and the issues facing the courts.

8.21It would be useful for requirements on the contents of the report to be set out in legislation, but this may depend on the data that can be made available by the Ministry of Justice.

8.22As a separate branch of government, we do not think the judiciary should be required to present an annual report to Parliament, but the statute should require an annual report to be made available to the public, by a set period of time after the end of the Ministry of Justice’s financial year. We suggest that six months would be appropriate, but the due date should be agreed by the Chief Justice and the Ministry of Justice.

R38 There should be a statutory requirement for the Chief Justice to publish an annual report on the judiciary within six months of the end of the financial year of the Ministry of Justice (or such other date agreed by the Chief Justice and the Ministry of Justice).

R39The Ministry of Justice and the Chief Justice should agree the broad matters to be covered in the annual report on the judiciary, which should be specified in new courts legislation.

101Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 96, at [4.8]-[4.16].
102“Chief Justice’s Year-End Reports on the Federal Judiciary” (2011) Supreme Court of the United States <www.supremecourt.gov>.
103“Annual Report and Accounts” The Supreme Court (UK) <www.supremecourt.gov.uk>.
104See, for example, Courts of New Zealand “Statistics” <www.courtsofnz.govt.nz/from/statistics>.