No need to change pecuniary interest law, says Law Society
The New Zealand Law Society believes the present substantive law on recusal for financial interests is adequate and a register of judges’ pecuniary interests is therefore unnecessary.
In its comments on the first issues paper in the Law Commission’s review of the Judicature Act 1908, Towards a New Courts Act: A Register of Judges’ Pecuniary Interests?, the Law Society states that the purpose of the Bill – to promote greater transparency within the judicial system and avoid any conflicts of interest in the judicial role – is an approach “fraught with misconceptions”.
The Society states that judicial returns of overall pecuniary interests do not provide greater transparency and that complete disclosures of specific pecuniary (and other) interests, tailored to the needs of the individual case, are required to achieve that goal.
Cases involving judicial “pecuniary interests” are likely to constitute a relatively small portion of cases giving rise to conflict of interest/recusal arguments, the Society says. When they do arise, the existence of an entry on a judicial register of pecuniary interests will not relieve the judge from his or her obligations to make full disclosure and to reach a decision whether recusal is warranted.
The Society notes that reference to “recent developments within New Zealand’s judicial conduct processes” can only be to the failure of now-retired Supreme Court Justice Wilson to recuse himself in Court of Appeal case. However, the case involved a close personal between Justice Wilson and counsel for one of the parties to the appeal, as it was about the judge’s relevant “pecuniary interests”.
There is no practical need for a register of judges’ pecuniary interests, the Society says. Instead, what is needed is a better-understood and publicly available set of procedures that operate where a judge or litigant considers that recusal may be necessary or there is a likelihood of complaint about his or her suitability to hear a case. The Society comments that current practices are not well understood by litigants and counsel and are inconsistently applied.
The Society comments that implementing procedures to encourage timely disclosure by judges may require cases to be allocated to particular judges sooner than occurs currently, and for disqualification issues to be considered in a preliminary way at the first opportunity. If any matters relevant to disqualification are dealt with in accordance with such procedures, then any need for a pecuniary interests register would fall away.
The Society agrees that the Law Commission’s suggestion that each court should evolve a distinct recusal process seems appropriate.
It also says that the Bill fails to take into consideration judges’ privacy and freedom from harassment by aggressive media or hostile individuals, including but not limited to dissatisfied litigants. The Society asserts that the disclosure of such information could be abused and be unduly intrusive for a judge.
Imposing disclosure obligations and establishing a public register in relation to judges’ pecuniary interests are likely to seriously to erode public confidence in the judiciary, far more than allowing the status quo to continue, says the Society.