20 weeks long service leave every five years!

November 25th, 2013 at 2:00 pm by David Farrar

The Herald reports:

Long-service leave for District Court judges has increased from 65 days every five years to 100 days, the Herald can reveal.

The entitlement took effect in September and was negotiated in 2008 – but has only just come to light.

That’s an outrageously generous provision, on three fronts.

  1. Long service leave tends to be every ten (or longer) years, not every five years
  2. Typically the period of long service leave might be two to four weeks – not 20 weeks.
  3. Long service leave is normally to encourage reward people for staying on with the same employer. Judges are appointed for life, so the rationale for it seems lacking

It means a judge can take five consecutive months’ leave every five years, in addition to seven weeks of annual leave.

Effectively it means their annual leave provision is 11 weeks a year.

In general, District Court judges with more than five years’ service are available to sit for only 158 days of the year after deductions are made for weekends, statutory holidays, annual and long-service leave, days for writing judgments, and non-sitting activities such as attending conferences.

Days for writing judgments and training such as conferences are in a different category to leave where you are not working at all.

Sir Michael Cullen said he had little recollection of approving the long-service upgrade. But he said it would have taken account of increased stress of the job and it allowed judges to catch up on what was going on in the legal world, in the same way as academics took sabbatical leave.

I don’t think even academics get five months sabbatical every five years. Also I think they are meant to do some research activities during their sabbatical.

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Australian State Supreme Court and social media

October 25th, 2013 at 4:00 pm by David Farrar

Stuff reports:

The Australian Supreme Court is joining Facebook and launching a website with live videos and retired judges’ blogs in a bid to preserve the concepts of open justice and a fair trial in the digital age.

Chief Justice Marilyn Warren said on Monday that the concept that justice must be done and seen to be done was a “fundamental tenet of Australian democracy.” …

Judges could not engage in public discussion about their decisions or controversial legal issues to maintain their independence and impartiality. But the court’s website could feature blogs from retired judges “to create greater community understanding around controversial issues.

“This will represent a historic shift away from traditional judicial reluctance to explain or defend judicial decisions that are made in accordance with the rule of law,” Chief Justice Warren said.

I really like the idea of having retired judges blog on legal issues. It is a great way to improve understanding of our legal system. The Ministry of Justice and judiciary in NZ should look at doing it here.

“Communication judges” – Justices Simon Whelan, Anne Ferguson and Jack Forrest – and the court’s communications manager, Anne Stanford, would soon meet to discuss the current website, which was “clumsy, difficult and sometimes impossible to navigate. It is contemplated that other than the judges, no-one over 30 will be allowed to participate in the meeting.”

New media forums, including on tablets and smart phones, allowed the public to access a more views about court decisions online. But it was important for the court to directly engage with the public, as newspaper circulations declined and courts faced greater scrunity than ever before, with decisions “constantly reviewed, questioned and critiqued.” …

The Supreme Court already streamed judges’ sentencing remarks in criminal trials in a bid to “fill the void left by” fewer court reporters: “When web-streaming is used the community can check for themselves what transpires in the Supreme Court and see and what the judiciary actually do when they administer the law.”

I’d love to see that here also – streaming of all sentencing decisions, along with all decisions available online.

UPDATE: Note it is a state supreme court, not the Australian High Court.

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The Press on Judging the Judges

May 11th, 2013 at 9:38 am by David Farrar

The Press editorial:

The new website developed by the Sensible Sentencing Trust inviting the public to “judge the judges” has attracted more alarmed comment than it warrants.

Critics of the site worry about its focus on individual judges and fret that it may encourage contemptuous or defamatory attacks on judges. These concerns are overwrought.

As it is set up at present, the site is relatively innocuous and to the extent that it gives greater publicity to judges’ decisions and sentencing notes may do some good. …

Instead, the site presents a number of criminal cases in which, in the opinion of the site’s organisers, judges have given either particularly lenient or particularly commendable sentences to offenders.

Along with the Sensible Sentencing Trust’s critique of the sentence, the site also presents a link to the Ministry of Justice website so readers can form their own opinions from what the judge has said in his or her judgment and sentencing notes.

Those readers who bother to follow the links and read those documents will gain as good an insight as possible into the many competing, and often irreconcilable, factors that judges must take into account in trying to produce a just result in the cases before them.

I agree that the links to the case notes are a useful service.

While the website itself may be an incentive to redneck, talkback-style instant outcry about the leniency of this or that sentence, by making the official documents more widely available it also provides some antidote to it.

The silliest argument against a site critiquing judges’ decisions is that judges cannot answer back. The response to that is that they do not need to – their judgments speak for themselves, which is why judgments should be promptly available.

If further publicity is needed to protect a judge from unfair criticism, the Ministry of Justice has a large enough PR department to see it is done and in extreme cases there is nothing to inhibit the Attorney-General or Minister of Justice from speaking.

It will be interesting to see how many more cases end up on the site.

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Judges like bright colours

April 21st, 2013 at 12:00 pm by David Farrar

The HoS reports:

The Herald on Sunday has obtained emails from the investigating officer in the case, Constable Paul Sharples, sent to witnesses working for NZTC. We showed the emails to Auckland district commander Mike Clement and he confirmed a review of the case was under way.

In an email from Sharples dated October 11, 2011, to an NZTC staff witness, he explains how his brief would be presented: “I will get this laminated on A3. Judges are like children, they like bright colours.”

Personally if I was a Judge I’d be amused, not offended. I’m sure after wading through thousands of pages of documents, a Judge does appreciate a nice colourful A3 statement!

The reference to being like children is in the context of the case being forged qualifications for a childcare worker, so it probably seemed a witty analogy.

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A league table for Judges?

August 16th, 2012 at 2:00 pm by David Farrar

Andrea Vance reports at Stuff:

Judges should face performance reviews and be held accountable for their decisions, victims say.

Judges are appointed for life, and can only be removed for misconduct. This allows them to be independent of the Government of the day, which is critically important. So I do not support anything which would allow the Government to sideline a Judge.

However this story did get me thinking that what could be useful is collation of data on Judge’s decisions, and compile this into a league table.

One could record each Judge’s sentencing decisions for various crimes, and over time see which Judges tend to give heavier and lighter sentences for different types of crimes.

I suspect many lawyers know this anyway through observation.

One could also record how often a Judge gives bail, when opposed by the Police, and even what further crimes are committed on bail, when granted despite opposition.

This is all public data. We have an open justice system. I’m not suggesting the Government compile this data. It could be a crowd sourced project.

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An e-mail from Charles

May 3rd, 2012 at 3:32 pm by David Farrar

Charles Chauvel e-mailed his Labour colleagues today:

Dear Colleagues

If you are home in time this evening to watch it, you might like to tune in to Court Report on TVNZ7 (Freeview and Sky77) at 9.30pm. 

I’ll be on the panel to discuss, in the words of the show’s publicity blurb, ‘the storm brewing between the judiciary and the Government’.  This is an issue that is likely to become more significant as time passes.

The show also features commentary from electoral law specialist Hayden Wilson on the Banks scandal.

Linda Clark is the host.

If you miss it on TV tonight, it will also available online at www.tvnz.co.nz/the-court-report

 Regards

Charles

Nice of Charles to try and increase the viewer ratings for TVNZ7.

One of the Labour MPs offices forwarded it onto lawyer Deborah Manning, but also accidentally forwarded it to all DIA Ministerial addresses, including the Attorney-General.

It is a Labour special tonight, as Hayden is also a fairly well known Labour activist. Not that this means his views are not worth listening to – they are.

The issue that Charles is discussing is a rumour that the number of Judges will be reduced by 20 or so as a cost cutting measure. Now you can not make Judges of the High Court (higher court judges are also High Court judges) redundant under S23 of the Constitution Act 1986:

A Judge of the High Court shall not be removed from office except by the Sovereign or the Governor-General, acting upon an address of the House of Representatives, which address may be moved only on the grounds of that Judge’s misbehaviour or of that Judge’s incapacity to discharge the functions of that Judge’s office.

No wriggle room there.

District Court Judges come under the District Court Act 1947, where s7 says:

The Governor-General may, if he thinks fit, remove a Judge for inability or misbehaviour.

Every Judge shall retire from office on attaining the age of 70 years.

Not quite the same level of protection as High Court Judges. The principle is an important one – Judges should not have to worry about job security in case they offend a Government of the day.

Now I have no idea if the Government is looking to reduce the number of Judges (but the number of cases going to court is falling), but if they are I’d be very very surprised if it was done by anything other than natural attrition.

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Should we have specialist judges?

May 22nd, 2011 at 12:00 pm by David Farrar

Rob O’Neill in the SST reports:

In his “Trust Busting” paper, Molloy cited a series of cases that he said “raise disturbing questions of systemic integrity”.

He complained about New Zealand’s “one judge fits all” approach to law, where the legal profession fails to insist counsel should not argue cases in areas where they have no competence, and parliament fails to insist judges sit on cases only where they have acknowledged expertise.

“Parliament continues to fail to organise the High Court into divisions dealing with crime, family law, equity [trusts and fiduciary matters] and other general litigation,” Molloy said.

He compared the approach to having a gynaecologist performing brain surgery, or electrical engineers designing viaducts. That judges are allocated “like cabs off a rank”, he said, is “deplorable”.

Molloy said counsel would be in breach of their duty of care and exposed to claims of negligence were they to litigate in areas beyond their expertise. Yet judges often sit on cases they should not.

I’ve heard this complaint several times – that Judges are all meant to be generalists, rather than make the best use of their specialist skills.

I wonder what the rationale for the status quo is?

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Editorials 3 May 2010

May 3rd, 2010 at 11:00 am by David Farrar

The Herald is on judicial transparency:

The legal profession, at least in its upper echelons, is so small that there are bound to be close and long-standing relationships between senior lawyers and judges which may create the appearance of conflicts of interest.

The possibilities have been amply demonstrated by the case of Supreme Court Justice Bill Wilson, who finds himself facing the Judicial Complaints Commissioner because, when he was a Court of Appeal judge, he failed to fully disclose the extent of his indebtedness to a lawyer appearing before him.

And that is the problem – the lack of disclosure. The debt, by itself, does not mean the Judge could not sit on the case, and be impartial. In fact Justice Wilson ruled against the lawyer’s clients in a number of cases.

But the matter does not end there because now the Judicial Complaints Commissioner must decide whether the judge’s conduct in failing to promptly and fully disclose the nature of the relationship needs to be referred to either the Chief Justice or the Attorney-General. Unfortunately, either course of action may also raise questions of the kind mentioned by the Supreme Court because Justice Wilson has had close associations with both office holders.

He and Mr Galbraith have been in a racehorse-owning partnership with Chief Justice Dame Sian Elias. On the other side of the equation, Justice Wilson and Attorney-General Chris Finlayson were partners at the law firm Bell Gully and Mr Finlayson is on record as calling him a friend. So whichever way this case may turn, it gives rise to the very kinds of doubts that the courts, quite rightly, are at pains to avoid.

The Attorney-General is friends, I am sure, with a large number of Judges. I think we have to be careful about not having unrealistic expectations that Judges and lawyers have no dealings with each other at all, except in court.

But whatever the outcome of this particular case, the courts should reconsider the old policy of secrecy and remoteness as a means of preserving confidence in the system generally. More openness in the form of a public register of judges’ pecuniary interests – much like that which applies to MPs – would be much more effective.

Compulsory listing of such things as business interests, partnerships, trusts and, importantly, debts would make any possible appearance of conflicts of interest immediately apparent and therefore defuse any controversy such as the one engulfing Justice Wilson before it had a chance to arise.

The idea of a register is worth considering.

The Press suggests the winner of the UK elections will inherit a poisoned chalice:

When the British deliver their electoral verdict on Thursday, the winning party will be presented with a poisoned chalice. The huge cuts the new government will have to make to spending ensure it will be hounded into deep unpopularity and be long branded as the Scrooge that ended a decade of prosperity.

The reality that the golden economy has been dead for two years and has been sustained by massive borrowing will not ease the predicament of the incoming administration. In the cause of weathering the economic storm, spending and borrowing was maintained; only now do the bills have to be paid.

Yet the Lib Dems and Labour keep insisting one should go on borrowing and spending more for a wee bit longer.

The Dominion Post marks World Press Freedom Day:

For most New Zealanders, today is just another working day to be endured before the next long weekend heaves into view. To journalists, however, it means more than that. May 3 is the annual date that Unesco has set aside as World Press Freedom Day, an occasion to celebrate the value of a free media.

It is a prize worth winning, but comes at a price. New Zealand journalists don’t get killed for doing their jobs in this country, but that is not true elsewhere. In 1975, Kiwi Gary Cunningham was one of five journalists murdered by Indonesian forces in East Timor wanting to prevent the world knowing of their invasion. And already this year, at least 12 journalists have been slain for following a vocation with attendant dangers.

Here, the risk normally involves being called a “little creep” by an angry prime minister, being ejected from the team bus by an irate sports coach, or being sued for defamation for – perhaps – wrongly criticising someone with a reputation to defend.

True.

Thus it is harder in a modern democracy to persuade a cynical populace that to do away with a free press is to do enormous damage to the body politic and civic discourse. In the West, it is more common for the public to dismiss the work of reporters as sensationalism, trivia, and “lies”. Sometimes, they are right.

More usually, they are wrong. People often forget that everyone errs and that their errors are rarely exposed for others to judge. Chefs’ mistakes are buried in the rubbish; doctors’ mistakes are in a graveyard.

In the media business, mistakes can be of fact, emphasis or omission – and are usually inadvertent. Unlike the mistakes of others, however, journalists’ errors are published or broadcast for everyone to see, and – in the best of the breed – corrected publicly.

Alas the public correction is all too rare.

The ODT calls for no delay to the ETS:

Having once claimed to be a “follower” of our trading partners in such legislation, New Zealand, the critics claim, now looks likely to be an international leader – out on a limb with a feigned carbon tax that may in time come to be regarded as either innovative or foolish.

Businesses, for one, have not been slow to remind the Government of this risk, arguing that the policy will make it even more difficult to trade successfully with other countries which have yet to implement climate-change responses, or plan to defer them.

They have asked for New Zealand’s policies to be “aligned” with those of our major trading partners – a request that on the surface appears reasonable but is realistically impracticable. …

Yet, if the world has so much to lose from climate change, then it behoves countries to take whatever steps they can to minimise the effects – as a matter of urgency.

A global solution is obviously required and Western nations, including New Zealand, must lead it, since they are in the best possible position to afford the costs and provide the technology and innovation to achieve it.

Here the ODT is wrong. If China is not part of a deal to reduce emissions, then the efforts of the rest of the world will be futile. China by 2020, will be producing more greenhouse gas emissions than the rest of the world does today – even if they live up to their Copenhagen pledge.

For New Zealand to now delay further what has already been a slow, step-by-step procedure, would deny pragmatism in favour of the changing winds of political fortune.

I don’t support a change to the ETS legislation being done under urgency. If however there is no post Kyoto agreement, which includes commitments from China, then the rationale for an ETS is greatly reduced.

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More problems for Justice Wilson

April 13th, 2010 at 11:00 am by David Farrar

Phil Kitchin writes:

A supreme court judge under investigation for not fully declaring a conflict of interest has been accused by another judge of making up a story to avoid disclosing his true financial debt to a top lawyer.

The accusation against Justice Bill Wilson, who sits in New Zealand’s highest court, was made by distinguished retired judge Sir Edmund “Ted” Thomas in a complaint to the Judicial Conduct Commissioner, Sir David Gascoigne.

Sir Edmund claimed Justice Wilson made up a “fictitious” story which Sir Edmund believed indicated Justice Wilson wanted to continue to withhold his true financial position from the Supreme Court.

Justice Wilson is at the centre of a mounting controversy about his repeated failures to fully disclose that he owed $242,000 to Alan Galbraith, QC, when he sat on Court of Appeal cases involving Mr Galbraith.

A point worth making is that the debt itself does not necessarily mean Justice Wilson was biased, or even should not have heard the case. The issue is that the debt should have been disclosed so Saxmere could decide whether or not they wanted another Judge.

Justice Wilson has in fact ruled both for and against Mr Galbraith’s clients in various recent cases. I don’t think he was biased. However as with Nixon, it is often the “cover up” rather than the original offence that does you in.

The growers later went to the Supreme Court alleging apparent bias against Justice Wilson. The court dismissed the growers’ complaint but at paragraph 25 of the judgment, Justice Blanchard effectively said the case might have turned out differently had there been evidence of Justice Wilson being beholden to Mr Galbraith by owing him money.

“However, the materials placed before the court reveal nothing of the kind. There is nothing to indicate any indebtedness,” Justice Blanchard said.

Sir Edmund’s complaint alleged Mr Galbraith said he phoned Justice Wilson after the hearing and was “astonished” to hear Justice Wilson say he was vindicated.

Sir Edmund claimed Justice Blanchard’s comments caused “considerable consternation” and Justice Wilson also told Mr Galbraith he had approached Justice Blanchard about paragraph 25 and was told the comments were only intended to apply to “on demand” debts.

“This advice was met with disbelief,” Sir Edmund’s complaint alleged.

“This story is fictitious. No such conversation with Justice Blanchard took place,” Sir Edmund told Sir David. He considered it “highly improbable” that Mr Galbraith would make such a story up.

Now this is only one side of the story, and the Judicial Conduct Commissioner should complete his work. I think calls for resignation are premature, and should not be based on newspaper stories.

However if the allegations, as reported, are correct they pose a severe challenge to Justice Wilson’s ability to continue. There is a considerable difference between an accidental non disclosure, and a deliberate one.

If the Judicial Conduct Commissioner finds that “an inquiry into the alleged conduct is necessary or justified” and “if established, the conduct may warrant consideration of removal of the Judge”, then a Judicial Conduct Panel will be established.

Any such panel will have three members – two judicial/legal and one lay. Its hearings will be in public, and will not be a lot different from a public trial. It is hard to imagine a Judge would go through such a public process, rather than resign if a panel is formed.

If the panel recommends dismissal, then the decision goes to the Attorney-General. He can not decide to dismiss, if the panel does not recommend it, but he can decide not to dismiss, if they do so recommend.

If the AG did decide to support dismissal, it would require a motion in Parliament asking to the Governor-General to do so.

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Judges’ Pay

February 11th, 2009 at 9:00 am by David Farrar

The Herald reports:

Prime Minister John Key expects other high-earners paid from the public purse to follow MPs and the Governor-General by asking not to get a pay rise this year.

Parliament yesterday unanimously agreed to ask the Remuneration Authority not to lift MPs’ wages when they are reviewed in the middle of this year.

The Remuneration Authority is responsible for setting the salaries of MPs, judges, local body councillors and public sector bosses.

“I’m sure judges and the like will take a similar view and I’m sure the Remuneration Authority, in reaching their conclusion, will take into consideration that this is a time of restraint and it’s important that we, as well-paid New Zealanders, show leadership,” said Mr Key

Good God, this is about as subtle as firing a flare gun through the door of the court. The PM is basically telling Judges to suck it up and also ask for a nil pay rise.

John has to be careful here. Trying to pressure Judges into a nil pay rise, isn’t that far removed from trying to pressure them into a pay cut. And in real terms, a nil increase is a pay cut. The motives are good, but perhaps the Attorney-General could point out to the Prime Minister that rather useful piece of law known as The Constitution Act 1986:

24 Salaries of Judges not to be reduced
  • The salary of a Judge of the High Court shall not be reduced during the continuance of the Judge’s commission.

Dean Knight also blogs on this issue, and suggests freezing Judges salaries could border on unconstitutional.

John did say he admired Muldoon when he was at school. Hopefully admiration does not become emulation!

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