Judicial independence is a critical ingredient of the rule of law. The late Tom Bingham, former Lord Chief Justice of England and Wales, had a lot to say about it in The Rule of Law:
These statutory references make clear that judges must be independent of ministers and the government. Does the principle require independence of anyone or anything other than the government? It does. It calls for decision-makers to be independent of local government, vested interests of any kind, public and parliamentary opinion, the media, political parties and pressure groups, and their own colleagues, particularly those senior to them. In short, they must be independent of anybody or anything which might lead them to decide issues coming before them on anything other than the legal and factual merits of the case as, in the exercise of their own judgment, they consider them to be…. Scarcely less important than an independent judiciary is an independent legal profession, fearless in its representation of those who cannot represent themselves, however unpopular or distasteful their case may be.
And Sternford Moyo, former president of the Law Society of Zimbabwe, drew attention to a declaration on the rule of law made by the International Commission of Jurists at Athens in 1955. It provided that:
- the State is subject to the law;
- governments should respect the rights of individuals under the rule of law and provide effective means for their enforcement;
- judges should be guided by the rule of law, protect and enforce it without fear or favour and resist any encroachment by governments or political parties in their independence as judges; an
- lawyers of the world should preserve the independence of their profession, assert the rights of an individual under the rule of law and insist that every accused is accorded a fair trial.
There is nothing here at which, half a century later, one would wish to cavil. Moyo went on, as others had done, to list the characteristics of a society in which the rule of law is observed: a general clarity of the law; the existence of a climate of legality; the existence of an adequate and justiciable bill of rights; the existence of an independent judiciary; and the existence of an independent legal profession.
I have previously drawn attention to the New Zealand Law Society’s failure to protect lawyers’ independence and to ensure that the rule of law was observed in the terms of reference for the deceptively named Independent Review.
The events of July 2023 show NZLS to be not just careless about the rule of law but positively hostile to it. Until July 2023, NZLS had a Rule of Law Committee (ROLC).
Its terms of reference were to:
- advise and assist the legal profession in meeting the fundamental obligation of lawyers expressed in s 4(a) of the Lawyers and Conveyancers Act 2006;
- promote the continued separation of the legislative, executive and judicial functions of government and, in particular, to promote and protect judicial independence;
- monitor and respond to rule of law issues arising from proposals, decisions or actions of the New Zealand government or government agencies;
- monitor the mechanisms of government, including constitutional conventions;
- maintain a neutral political position;
- respond, as appropriate, to requests for advice and assistance from international legal associations on rule of law issues; and
- assist the Law Commission in its goal to achieve laws that are just, principled and accessible
In July 2023, NZLS quietly disestablished the ROLC. In the absence of any explanation, the following course of events points to the likely cause.
On 6 October 2021, the ROLC sent a memorandum to NZLS’ president and board concerning a threat to judicial independence. It is likely readers won’t have heard about it because NZLS kept it under wraps.
During substantive consideration of the matters canvassed in the memorandum, the committee’s membership comprised chair Austin Forbes KC and members Gregor Allan, Christopher Griggs, Isaac Hikaka, Sarah Jerebine, Professor Philip Joseph, Professor Geoff McLay, Sir Geoffrey Palmer and James Wilding KC.
The matters which attracted the ROLC’s attention concerned the undermining of judicial independence. Oranga Tamariki (OT) was a party to a part-heard Family Court proceeding. OT’s then interim chief executive, the late Sir Wira Gardiner, communicated with Chief District Court Judge Heemi Taumaunu and the Principal Family Court Judge, Judge Jackie Moran, about the part-heard case, reportedly concerning the conduct of the sitting judge towards witnesses of or from OT. Judges Taumaunu and Moran sought to engage with the sitting judge about those concerns. The sitting judge declined to engage.
That short description is adequate to show that the sitting judge had a proper appreciation of the rule of law’s requirement for judicial independence, but the Heads of Bench and OT’s interim CE did not. The ROLC also considered related matters which it viewed as raising rule of law concerns, such as monthly meetings of OT staff with a Head of Bench during which they complained about the sitting judge’s conduct.
It would not be necessary for the judges to be familiar with works such as Bingham’s to know what the rule of law requires. Quoted in the ROLC’s memorandum, the New Zealand Guidelines for Judicial Conduct 2019, include this:
Independence in the discharge of judicial duties 19. Judges are independent in the performance of judicial function not only from the other branches of government, but from each other. Judicial decision-making is the responsibility of the individual judge, even in a collegiate appellate court. The Chief Justice or Head of Bench has no authority over the discharge of judicial function by other judges.
Indeed, it is implicit in the judicial oath’s pledge to serve “without fear or favour, affection or ill will.” Judicial independence is an absolutely fundamental characteristic of a nation subject to the rule of law. The ROLC recommendations included that NZLS write to the Chief Justice and Attorney-General, raising the concerns outlined in the memorandum, publish an article in LawTalk raising the concerns and informing or reminding readers of the conventional mechanisms for addressing concern about judicial conduct and that it advocates for written protocols addressing the role of public servants and the judiciary, including the Heads of Bench, when they become aware of issues regarding judicial conduct. We, the members whose interests NZLS has the function of representing and serving, would not know if NZLS had sent the recommended letters unless it chose to tell us and it is just possible that the advocacy for written protocols may have been done privately. But we certainly do know that LawTalk has not published an article.
It is perfectly obvious that without a ROLC, NZLS has no ability to perform its functions concerning the rule of law. NZLS comprises a board, council and bureaucracy whose personnel are not selected for their rule of law expertise. Therefore, NZLS had a group of eminent practising and academic lawyers to assist it to do so. I considered the possibility of another committee assuming the responsibilities. Scanning the list of committees on the NZLS website, no longer including the ROLC, the only possible candidate was the Public Law Committee, but its description when I looked at 3:53 pm on 24 July was:
The Public Law Committee takes an interest in any issue coming under the rubric of “public law” including, but not limited to, constitutional and administrative law, the role of the three branches of government, and the interface between government and the citizen.
When I looked again, on 28 July, the website description had changed to:
The Public Law Committee was established to advise the Law Society board and contribute to proposals for legislative, regulatory or other change in the area of public law. The committee’s area of work includes:
- the rule of law;
- constitutional law, including key constitutional principles such as representative democracy, judicial independence, and the relationship between branches of government;
- administrative law, including administrative decision-making, regulatory frameworks and systems and the powers and independence of investigative and oversight bodies; and
- the structure, functions, and powers of central and local government bodies.
This is entirely disingenuous. Plainly, the Public Law Committee, which has been in existence for many years, was not “established” with the additional rule of law areas of work. It has been given rule of law work and had “judicial independence” added, so recently that the website description changed between 24 July and 28 July.
The change must have occurred because NZLS had disestablished the ROLC, the committee with the dedicated function of helping NZLS to discharge its duties arising from the most important of lawyers’ fundamental obligations, to uphold the rule of law and facilitate the administration of justice.
Why has NZLS not told the profession what it has done? Why does its website description not frankly say that it has disbanded the ROLC and expanded the work of the Public Law Committee? Why has it not explained why it has dispensed with the services of eminent rule of law experts?
NZLS’s members are not served by such opacity and obfuscation. Do we wish to be represented by an organisation which conducts its affairs in this way, purportedly on our behalf? Because NZLS has not given an explanation, we must draw our own conclusions about the reasons. The only available explanation is that NZLS did not like the advice it was given, so it got rid of the advisers.
The sequence of events indicates NZLS has moved from not caring about the rule of law to active hostility to it. Making it a bit-part of the work of a committee with public and administrative law as its primary focus pays no more than lip service to the rule of law and displays contempt for its fundamental importance and the role of New Zealand lawyers in its protection and promotion.
Protecting and upholding the rule of law and lawyers’ independence are so fundamental to NZLS’s reason for being that its failure on both counts indicates that NZLS has become seriously dysfunctional. It seems to be in the clutches of idealogues whose objectives are aligned with neither the rule of law nor the welfare of the profession. ■