Summary
The High Court granted interim orders preventing the Attorney-General from appointing a Judicial Conduct Panel to investigate allegations of judicial misconduct by a District Court Judge.
Background
Under our constitutional system, the independence of the judiciary is protected by providing security of tenure for individual judges. However, if the public is to retain confidence in the system, there is a countervailing need to ensure there is accountability for judicial misconduct.
The Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (“Act”) seeks to balance these conflicting objectives by establishing a multi-step process that must be undertaken before a Judge can be removed from office.
The process starts with the Judicial Conduct Commissioner. On receipt of a complaint, the Commissioner has discretion to take one of several actions. In cases where the Commissioner is satisfied that it is necessary to investigate a complaint that, if proven, could warrant consideration of removal of the judge, they may recommend that the Attorney-General convene a Judicial Conduct Panel to investigate the matter.
The Attorney-General may then decide to follow all or part of the Commissioner’s recommendation, and convene a Panel to investigate. Following an investigation, the Panel may recommend to the appropriate decision-maker to remove the Judge. The Attorney-General’s decision and the Panel’s investigation is determined by the scope of the Commissioner’s initial investigation.
In December 2024, several media reports surfaced alleging that District Court Judge Ema Aitken and her partner verbally attacked Deputy Prime Minister Winston Peters and other New Zealand First members at a Christmas party at Auckland’s Northern Club.
A complaint was referred to the Commissioner by the Attorney-General. On 23 January 2025, the Commissioner exercised their powers under the Act to recommend to the Attorney-General that a Judicial Conduct Panel be appointed to investigate complaints about Judge Aitken’s conduct at the Northern Club Christmas Party
On 10 February 2025, before the Attorney-General convened the Panel, Judge Aitken filed judicial review proceedings alleging that the Commissioner’s recommendation was unlawful. At the same time, she sought interim orders preventing the Attorney-General from acting on the recommendation until the judicial review claim had been determined.
The case
To obtain interim orders, Judge Aitken had to demonstrate that they were necessary to protect her position, and that it was appropriate for the court to exercise its discretion to grant them.
Preservation of position
The court rejected Judge Aitken’s argument that she had a position to preserve solely because the trial court might decide the Commissioner’s decision was unlawful at trial. She was required to establish some kind of prejudice that would arise if the interim orders were declined and she went on to succeed at trial.
However, the court also rejected the Crown’s narrow argument that the only prejudice that could arise to a judge was potential removal from office (which could not possibly occur before trial).
The court noted that the Attorney-General’s decision to appoint a Panel following the Commissioner’s recommendation was a serious one. While convening the Panel was not an inevitable step to a Judge’s removal, the mere fact of an appointment was a serious step that could increase public pressure on the Judge and potentially compromise their independence.
On this basis, the court accepted that there was a potential prejudice to Judge Aitken’s natural justice rights for having to respond to the Attorney-General’s decision to convene the Panel, when that decision was potentially affected by the Commissioner’s error of law.
Discretion
In exercising its discretion, the court considered the merits of Judge Aitken’s case, the nature of the statutory power, and the balance of convenience.
The merits of the case tentatively favoured granting the orders, with the court stating that Judge Aitken’s claim did not appear ‘entirely lacking in merit’.
Public policy considerations pulled in different directions and were a neutral factor in granting relief. While granting interim orders might delay the statutory process and undermine the effectiveness of the complaints process, allowing a potentially unlawful process to continue until final determination could undermine the Act’s countervailing objective of protecting judicial independence.
The balance of convenience was the decisive consideration.
The prejudice to the Crown if the orders were made and they went on to succeed at trial was minimal. The hearing had been scheduled for the following month, meaning as soon as judgment was issued, the Attorney-General would be able to proceed confidently.
By contrast, Judge Aitken stood to suffer serious prejudice if the orders were declined but she went on to succeed at trial – she would be required to provide a response to the decision to convene the Panel (which could compromise her natural justice rights) and there was a likelihood of adverse publicity which could affect the undertaking of her judicial functions.
As the greater potential prejudice lay with Judge Aitken, the Court exercised its discretion to grant the orders sought.
Result
Interim orders were granted declaring that the Attorney-General ought not take any further action consequential on the Commissioner’s decision until further order of the court.
The hearing of the main judicial review proceeding was heard in mid-March 2025, with the court yet to issue judgment.
The case illustrates the delicate balance the court must maintain in the rare cases of determining the legality of the judicial misconduct process under the Act. The court in this case erred in favour of protecting the natural justice rights of Judges as a means of protecting judicial independence, suggesting a relatively low threshold for obtaining interim orders in the rare instance of proceedings under the Act.
For more information on this case or similar issues please contact Director Brigitte Morten
