Contents

Chapter 8
Leadership and accountability

Court officers performing judicial functions

8.23In Issues Paper 29, the Commission noted that section 27 of the Judicature Act 1908 provides for the appointment from time to time of registrars and other officers under the State Sector Act 1988 “as may be required for the conduct of the business of the court”.105  Section 28 provides that every registrar and deputy registrar shall have all the powers and perform all the duties in respect of the court which registrars and deputy registrars have hitherto performed, or which by any rule or statute they may be required to perform.
8.24Registrars of the various courts exercise both judicial and quasi-judicial powers. There has occasionally been discussion as to who is to supervise such officials in the exercise of their various functions. In its 2010/2011 Annual Report, the Ministry of Justice acknowledged that it has no ability to direct or control staff in their judicial functions:106

In delivering services, the Ministry recognises the importance of the constitutional requirement of independence in judicial function and works with the judiciary to ensure this independence is preserved and maintained. This reflects the need for judicial independence – the courts must be, and must be seen to be, separate from, and independent of, the executive.

Staff who exercise judicial functions do so under the supervision of judges and with the guidance provided in handbooks and other training material approved by the judges. The Ministry has no ability to direct or control staff in their judicial functions.

8.25In our view, that statement reflects the correct principle. In Issues Paper 29, we said that, given its constitutional importance, it could be argued the principle should be reflected in legislation, and included in a new Courts Act. This raises the question of whether it is possible to draw a legislative line between the judicial and non-judicial functions exercised by court staff. While the arrangement outlined by the Ministry of Justice in its annual report sounds clear, in practice there may be some difficulty in drawing bright lines between judicial and non-judicial functions of registrars.

8.26The Commission asked submitters for views on whether new courts legislation should codify the principle that court officers performing judicial functions are not subject to direction by the Ministry of Justice.

8.27The Senior Courts’ judges agreed new courts legislation should codify the principle that court officers performing judicial functions are not subject to direction by the Ministry of Justice, and said the provision should reflect that the principle applies more generally to court officers undertaking both judicial and registry functions. The judges said further that:

It is a deficiency in the current administration of the Courts that the lines between what is properly the subject of Executive control and what is properly subject to judicial direction in the administration of the Courts are not properly maintained. We have been trying to engage with the Ministry on this point, one in which the New Zealand legal system is vulnerable to proper criticism.

8.28We consider there should be a statutory provision to make it plain to all that court officers undertaking judicial or registry functions are not subject to direction by Ministry officials. We would encourage further discussion between the Ministry of Justice and the judiciary on this issue.

R40 New courts legislation should codify the principle that court officers performing judicial functions are not subject to direction by the Ministry of Justice.

105Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 96, at [4.17].
106Ministry of Justice Annual Report 1 July 2010 – 30 June 2011 <www.justice.govt.nz> at 3.