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ACTING JUDGES AND THE SUPREME COURT OF NEW ZEALAND
MICHAEL TAGGART*
There is an obvious link between the number of permanent judges on a court of final appeal, the requisite quorum, the law and practice of recusal,1 and the court's consequent ability to function properly. The linkage is stark in New Zealand due to the small size of the Supreme Court by international standards, the requirement that the Court sit in banc and the fact that there are likely to be more recusals due to conflicts of interest than in larger societies.2 The designers of the Supreme Court legislation were alive to these issues but, as we will see, the provision made in the Supreme Court Act 2003 is unclear in several respects and open to constitutional objection on the ground of potential misuse. Furthermore, it is unlikely to ensure a sufficient number of judges to replace permanent judges of the Supreme Court who for whatever reason are unavailable to sit. It is the purpose of this article to ventilate these issues and to suggest one possible reform.
During the debate over the creation of the Supreme Court the size of the Court proposed by the Government was five judges. This was acknowledged to be small by overseas standards, but was said to be appropriate to New Zealand conditions.3 Some flexibility has been introduced in that the legislation allows for the appointment of a sixth permanent judge.4 The appointments of Justices McGrath and Wilson were 'supernumerary' in the sense that they have anticipated the retirements of Justices Keith and Anderson (respectively), and therefore overlapped creating a Court of six for short periods. There appears to be no intention to expand the Supreme Court permanently to six judges, although there is no legal impediment to a Government doing so under the existing legislation. If this were to occur in the future some of the difficulties discussed below may be eased but it is unlikely they would be eliminated entirely. This article proceeds on the basis that the permanent membership of the Supreme Court is likely to remain five judges.
It should not be thought, however, that the number of judges in a court of last resort is immutable. Over its long history the size of the United States Supreme Court has varied from six to ten justices,5 as has the quorum requirement; and recusal by judges occasionally has rendered the Supreme Court inquorate.6 Moreover, there is a distinct modern preference for appellate courts to sit with an odd number of judges to prevent a tied vote.7 This modern practice is in stark contrast with the centuries-long practice of the common law courts in Great Britain to sit with four judges.8
The Supreme Court of New Zealand comprises the Chief Justice and either four or five other (permanent) judges.9 The quorum for hearing and determining a proceeding is five judges.10 As we will see shortly, limited provision is made in the Act for sitting with less than five judges when supervening circumstances shortly before or during an appeal render one or two judges unavailable to sit.11 Where one or more permanent judges have recused themselves in advance from hearing a particular case, provision is made for the selection of one or more Acting Judges from a roster.12 This regime raises a number of significant issues.
Section 27(1) provides that 'for the purposes of the hearing and determination of a proceeding the Supreme Court comprises five Judges of the Court'. This is a statutory quorum requirement. It displaces the well-settled common law rule that a quorum is a majority of those holding office (namely, three if five judges appointed or four if six judges appointed).13 The quorum requirement is not often spelt out in a final appellate court's constituent statute. There appears to be no precedent in the common law world for the quorum to equal the total number of permanent judges on the Court. This is a source of some, but not all, of the difficulties.
The marginal note to s 30 reads '[p]rocedure if Judges absent'. In the statutory text itself 'absence' is rendered as 'death or unavailability'. Importantly, this provision contains a temporal element: it applies only when a Court hearing was about to begin or had begun.
The procedure laid down in s 30 is available only when up to two judges are absent or unavailable. The unspoken assumption is that no less than three judges can hear and determine an appeal. As a matter of literal meaning as well as commonsense a judge would be 'unavailable' to hear a case if she or he was disqualified by law from doing so. So, but for the temporal element in this provision, s 30 could have operated as the primary rule covering recusal or disqualification, and it would have left it up to the remaining members of the Court (either three or four judges, depending on whether one or two judges were 'unavailable') to decide whether to adjourn or proceed.14 But it is clear that the temporal element is vital. The s 30 procedure was intended to cover unavailability on the eve of hearing or during the hearing or deliberation.15 The primary mechanism to cover unavailability through disqualification when it was known in advance of hearing and declared (either on the initiative of the judge or raised by one of the parties and determined by the judge and/or Court prior to the hearing) is the use of Acting Judges to substitute for the recused judge(s).
There are bound to be absences from the bench, both planned (such as 'sabbatical' or other special leaves) and unplanned (prolonged illness, operations or conflicts of interest). The principal mechanism to overcome the difficulties created by the comparatively small number of permanent members and the quorum requirement was the creation of a roster of 'retired' Court of Appeal and Supreme Court judges to draw upon in the event of non-availability of permanent Supreme Court judges.
At the time of enactment of the Supreme Court Act 2003, the retirement age for all judges was set at 68 years of age. The Supreme Court Act empowers the Governor-General to appoint any retired judges from the Court of Appeal or Supreme Court as Acting Judges of the Supreme Court. In 2007, the retirement age of judges was raised from 68 to 70 years of age.16
For the avoidance of confusion it should be noted that there has long been provision for post-retirement judges to be appointed temporary or Acting Judges at both District Court and High Court levels.17 I simply note that this regime has been the subject of adverse comment18 and that litigation challenging the validity of the Acting High Court Judge system is presently before the courts.19 The focus here is confined to the selection, appointment and use of Acting Judges at Supreme Court level.
The use of Acting Judges in Supreme Court cases involves the exercise of two discretions, one by the Executive, and the other by the Chief Justice. Each is considered in turn.
Section 23 provides that the Governor-General 'may' appoint as Acting Judges those judges who have retired from the Supreme Court or Court of Appeal and have not reached the age of 75 years. By constitutional convention, the Governor-General acts on the advice of ministers, and in this instance the responsible minister is the Attorney-General.20
There is good reason for the statutory discretion. There are many reasons why judges retire, and one assumes that only those judges who are ready, willing and able to act as Acting Judges will be appointed. However, there are a couple of things that are constitutionally odd, not to say odious, about this process. It is odd that a member of the Executive has a discretion that could be exercised to pick and choose between retired judges. It presents the possibility that the Executive might pick a 'safe pair of hands' from the Government's perspective, or not put on the roster a retired judge whose judgments the Government has found unpalatable. This would infringe the independence of the judiciary. I stress that this has not happened in relation to Acting Judges of the Supreme Court, but it could happen in future or simply be perceived to be the case.
Constitutional difficulties have been avoided so far by the Attorney recommending and the Governor-General appointing every judge that has retired from the Supreme Court to be Acting Judges and also almost all the retirees from the Court of Appeal under the age of 75.21 So far three permanent judges of the Supreme Court have retired: Justices Gault, Keith and Anderson. After a post-retirement stint as Captain of the Royal and
Ancient Golf Club of St Andrews in Scotland, the Rt Hon Tom Gault QC has sat on 11 cases as an Acting Judge since returning to New Zealand.22 The Rt Hon Sir Kenneth Keith was also appointed an Acting Judge but his election as a judge on the International Court of Justice prevents him from engaging in any occupation of a professional nature, and, consequently he did not sit at all.23 The Hon Noel Anderson departed from the Supreme Court six years before mandatory retirement age, and was almost immediately appointed an Acting Judge.
Shortly after the Supreme Court was established all the retired members of the Court of Appeal younger than 75 were made Acting Judges. The former Chief Justice, the Rt Hon Sir Thomas Eichelbaum, was ex officio a member of the Court of Appeal and was appointed an Acting Judge (and sat six times before reaching the age limit).24 A former President of the Court of Appeal, the Rt Hon Sir Ivor Richardson, sat in one case as an Acting Judge.25 The Rt Hon John Henry QC was appointed twice and sat 8 times before turning 75.26 The Rt Hon Ted Thomas QC sat three times as an Acting Judge.27
The most recently appointed permanent member of the Supreme Court, Justice Bill Wilson, came from the Court of Appeal where he sat for just over a year, coming there directly from practice. Not surprisingly, the Registrar of the Supreme Court advised in April 2008 that there were then eight cases that Wilson J was disqualified from sitting on. As discussed later, this means that an Acting Judge will have to sit or, if one is not available, s 30 will have to be given an expansive reading to allow a four-judge Supreme Court to decide how to proceed.
So far almost all 'retirees' have been willing to go on the Acting Judges' roster. This cannot be assumed to hold in the future. It is not unreasonable for a judge to think that retirement means just that. In future instances where a retiring judge is either unwilling or unable to serve as an Acting Judge and is not placed on the roster, this departure from the current practice of 'gazetting' all retirees may raise comment (no doubt, ill-informed) to the effect that the Executive is picking its Acting Judges according to party political criteria. The present and future Attorneys-General should be spared this.
There is another slight oddity. Parliament has set a compulsory retirement age for judges. It has passed into legal folklore — and therefore difficult to attribute — that this is a presumption of 'statutory senility'. There are good reasons for compulsory retirement for judges.28 As noted earlier, however, the age limit has fluctuated over time: it was 72 years up to 1981, then it was reduced to 68 and since 2007 has been raised to 70. To allow some or all of these judges who are no longer allowed to sit fulltime to play a role (perhaps in some cases a decisive role) in resolving our most important cases in the apex appellate court appears a little odd, at least when there are better alternative solutions. Nor is it fair to expect this service by retired judges. As an American commentator observed a long time ago about the proposal that the Chief Justice of the United States Supreme Court invite back retired justices to cover for the unavailability of sitting judges, 'a Justice ... may feel duty bound perhaps contrary to his [or her] better judgment or against the advice of his [or her] physician'.29 Some judges have in mind a very active retirement and so may not be able to drop everything to fill in on the Court. Many judges involve themselves in activities such as university governance, charity work, speech making, writing books, chairing inquiries, directorships, trouble shooting of various kinds, etc. Some will live in New Zealand outside the capital city (where the Court is situated) or reside overseas. Moreover, the more active the Acting Judge is in retirement the greater the possibility of the need to recuse in particular cases. It is self-evident that the same principles of recusal or disqualification apply to Acting Judges as to permanent Judges.
The appointment of an Acting Judge appears in the New Zealand Gazette. There is no easily accessed consolidated (and updated) list giving dates of appointment and expiry, or the number of reappointments. Appointments are for a maximum of two years, but there is no prohibition on renewal.30 The only Acting Judge to be reappointed so far is the Rt Hon John Henry QC.
The Act provides that Acting Judges can resign at any time by giving written notice to the Attorney-General.31 There is no requirement for this to be notified in the Gazette. This lack of transparency is unnecessary and undesirable.
This opacity caused considerable confusion recently. As noted earlier, the Rt Hon Ted Thomas QC was appointed an Acting Judge upon retirement from the Court of Appeal, and sat on three Supreme Court appeals.32 His two-year term expired on 8 November 2006. It was extended twice for periods up to the end of May 2007 by the Minister of Justice so that an outstanding judgment could be completed.33
On 5 October 2006, Ted Thomas gave a paper at a publicly advertised lecture at the Law School in the University of Auckland which concluded that Tony Blair had deliberately misled the Cabinet, Parliament, the British labour party and the public in the lead up to joining the Americans in declaring war on Iraq, and that the political process had failed to discover and stop this.34 At that point he was an Acting Judge of the Supreme Court: his term did not expire for just over a month. The paper that Ted Thomas delivered at Auckland in October 2006 subsequently was published in May 2007 in the British journal The Spokesman.35 That publication sparked media interest in the UK and here. Apparently aware neither that Justice Thomas's two year term as Acting Judge had appeared to expire in November 2006 nor that it had been extended twice to the end of May 2007, two opposition MPs criticised the judge for not respecting the separation of powers.36
There is no good reason for this opacity. The Chief Justice has remarked that the New Zealand public is 'remarkably incurious' about constitutional matters.37 It is certainly true that New Zealanders are not yet a nation of 'Supreme Court watchers' like the Americans, obsessed by the workings of and machinations on the highest bench, but it is hardly too much to ask that a current list of who is actually an Acting Judge be readily available to the public (including the media). The 'bramble bush' of the New Zealand Gazette is not for the faint hearted. All this has the whiff of treating Acting Judges as simply on the Court to make up the numbers. This cannot be right. It is now accepted that the background, experience and belief system of a judge can in 'hard cases' (and, of course, only these should get to the Supreme Court) influence the reasoning and result.38 The Acting Judge's vote is as good as everyone else's on the Court.
It is critical to the efficient working of the Supreme Court that the supply of Acting Judges keeps up with the demand for substitutes for unavailable or disqualified permanent judges. The eligibility criteria for appointment are important in this regard. There are two requirements: a judge must have 'retired' from the Court of Appeal or Supreme Court, and be less than 75 years of age. No Acting Judge can sit after turning 75 years of age.
Unfortunately, there is uncertainty as to what 'retired' means. The ordinary meaning of the word suggests that only judges who stay on the Court of Appeal or Supreme Court to the retirement age of (now) 70 are eligible for appointment as Acting Judges on the Supreme Court.39 If the judge goes earlier than compulsory retirement age then this is, in ordinary parlance, a resignation rather than retirement. It is not necessary here to chase this argument to ground. All that is necessary to say is that the argument is plausible, and is supportable on policy grounds. Given the youth of the present Court of Appeal it is not inconceivable that one of more judges of that Court might resign early. If such a judge was put on the Acting Judges' roster, then (subject to reappointments every two years) he or she might have a longer tenure on the 'reserves bench' than some of the permanent members. It is tolerably clear that as originally conceived the Acting Judgeship was for a post-retirement 'window' of seven years (68 to 75) and now for five years (70 to 75). To allow judges who resigned before the time of compulsory retirement (possibly well before) to be appointed Acting Judges would do violence to that scheme.
This is not a hypothetical question. The Rt Hon Tom Gault departed well before mandatory retirement age to take up appointment as Captain of the Royal and Ancient Golf Club of St Andrews in Scotland, and was appointed an Acting Judge. More recently, the Hon Noel Anderson departed from the Supreme Court on 1 May 2008. He was then 64 years of age and had served on the Supreme Court for just over two years. Given the depleted ranks of Acting Judges, it is perhaps unsurprising that he has been drafted onto the Acting Judge roster almost immediately.40 The unresolved issue of the meaning of 'retired' comes squarely to the fore. If his departure from the Supreme Court is treated in law as a 'retirement' then the Hon Noel Anderson is eligible for successive biennial reappointments as an Acting Judge for the next decade.
Even if the interpretation that would render judges such as the Hon Noel Anderson ineligible for appointment as Acting Judges were to prevail ultimately, it is highly unlikely to lead to the retrospective invalidation of any of the decisions rendered by the Supreme Court whilst comprising an ineligible Acting Judge. Section 23(9) of the Supreme Court Act states that the fact that an Acting Judge acts as a member of that Court is 'conclusive proof of the Judge's authority to do so'. This may be narrowed by the next sentence — 'No action of the Judge, and no decision of the Court, may be questioned on the ground that the occasion for the Judge to act as a member of the Court had not arisen or had ceased' — which seems directed more to the process of allocating an Acting Judge to a particular case than to the validity of the underlying appointment. Be that as it may, it beggars belief that the Judges would want to invalidate decisions on this basis, and, of course, at common law the de facto officer doctrine usually avoided that consequence as well.41 So the point may remain forever moot.
Lastly, as a matter of completeness, it should be noted that there is no requirement that the retired judge be put on the Acting Judge roster at the time of retirement. A 'retired' judge of the Court of Appeal or Supreme Court is eligible for appointment anytime from retirement up to the age of 75.42 This was the case with the appointments of Sir Thomas Eichelbaum (ex officio on the Court of Appeal as Chief Justice) and Sir Ivor Richardson, who retired in 1999 and 2002 respectively.43
For almost a year (from early July 2007 until early June 2008) the Rt Hon Tom Gault was the sole Acting Judge on the roster. As noted above, the Hon Noel Anderson QC was appointed an Acting Judge for two years from 5 June 2008. Currently he is the only Acting Judge of the Supreme Court. The Rt Hon Tom Gault's two year appointment ended on 30 August 2008, although he would be eligible for reappointment(s), if willing, through to 31 October 2013, when he will turn 75 years of age.
The next Supreme Court judges due to retire are Justices Peter Blanchard and Andrew Tipping, both in August 2012. This is highly unlikely to keep the Acting Judges' roster functioning properly. Nor is there any prospect of a flood of retirees from the Court of Appeal.
The promotion of the most senior judges on the Court of Appeal to the newly created Supreme Court in 2004 created a vacuum that was filled by a cadre of mostly younger judges. It is not surprising that no Court of Appeal judge has retired since then and most of them have many years to go. With the recent extension of compulsory retirement age to 70 years, the present members of the Court of Appeal will not reach retirement age until the following dates: President William Young [April 2022]; Justice Susan
Glazebrook [February 2026]; Justice Grant Hammond [May 2014]; Justice Robert Chambers [August 2023]; Justice Mark O'Regan [November 2023]; Justice Bruce Robertson [February 2014]; Justice Terence Arnold [April 2017]; Justice Ellen France [February 2028]; Justice Baragwanath [August 2010].
If any of these judges resign before those dates then (as suggested above) they may not be eligible for appointment as Acting Judges of the Supreme Court. So, as far as retirees from the Court of Appeal bench are concerned, there is likely to be a continuing shortage of Acting Judges to substitute for absent or disqualified Supreme Court judges into the foreseeable future. Only one Court of Appeal judge is due to retire in the next three years.
Once on the roster, the Chief Justice of the Supreme Court selects an Acting Judge to sit in a case where a permanent member is disqualified or otherwise unavailable.44 The Act contains no criteria to guide that act of selection. (This assumes there is a choice. As noted already, for almost a year there was only one Acting Judge on the roster.) The existence of this formally unstructured judicial discretion is again constitutionally problematic; for the reason that potentially the Chief Justice could select an Acting Judge from the roster in a deliberate attempt to determine the result. This is often referred to as 'court stacking'.45 There is, of course, no evidence that this has occurred on the Supreme Court but both the perception and reality are vitally important for maintaining public confidence in the judiciary. This is the raison d’être of the law of disqualification or bias, and more generally underpins the administration of justice.
For those who think 'court stacking' fanciful ponder these examples. When Lord Denning opted to leave the House of Lords in 1964 and became Master of the Rolls, he changed the longstanding practice of assigning cases randomly and allocated what he saw as the most important ones to the division of the Court of Appeal that he presided over and allocated judges to particular cases;46 this led to speculation that he 'stacked' some of those benches with judges likely to agree with him. But one need not rely on such scuttlebutt. An empirical study of the use of the power to appoint temporary judges to the California Supreme Court by successive chief justices over a 25 year period showed that the temporary judges disproportionately voted the same way as three out of the four appointing chief justices.47
In New Zealand, just prior to the establishment of the Supreme Court, Petra Butler of Victoria University of Wellington proffered evidence to suggest that the allocation of judges to cases by the President of the New
Zealand Court of Appeal (Sir Ivor Richardson) was not entirely random, and argued persuasively for the adoption of criteria for 'neutral case allocation' in order to ward off allegations of 'court stacking'.48
This topic was the subject of discussion during the Justice and Electoral Select Committee consideration of the Supreme Court Bill. The ACT member said that 'in the absence of fixed rules' Acting Judges might be chosen according to their well-known views. The United Future member proposed that a convention be adopted that the most recently retired available judge be selected to avoid any perception of stacking. In the event, however, the Act omitted any criteria to guide the Chief Justice's selection.
Quite properly, the Chief Justice has adopted the practice of selecting Acting Judges by strict rotation, assigning the next available Acting Judge on the list to the next case, and so on. The Registrar apparently plays no role in this process. The problem with such admirable self-imposed fetters is that they can easily be swept away by a 'new broom', as Lord Denning did in allocating cases and judges to particular divisions of the Court of Appeal of England and Wales. The argument for casting in the Act or regulations a neutral principle for allocating Acting Judges to particular cases is compelling, not only to 'future proof' the situation against 'new brooms' but also to protect the present Chief Justice and her successors from partisan criticism.49 The more contentious a split Supreme Court decision containing one or more Acting Judges is, the more likely such criticism is to be heard.
The Chief Justice has the discretionary power to select an Acting Judge from the roster, but the authorisation for that Judge to act has to be signed not only by the Chief Justice but 'at least' two other permanent Judges. This is to ensure that a majority of the Court is convinced that the appointment of an Acting Judge is 'necessary for the proper conduct of the Court's business'.50 This might operate as some protection against 'court stacking' as the permanent Judges might refuse to sign a certificate if they suspected this was going on. This would be tantamount to a vote of no confidence in the Chief Justice, and likely to occur (if at all) in the most extreme situation.
The Acting Judges' roster is problematic. It was an expedient that has not worked well and may well fail altogether in the future. The designers of the Supreme Court legislation appear to have overestimated the number of judges that would be on the roster and to have underestimated the continuing demand for substitutions and the constitutional objections. They ignored the recommendation of the Advisory Group that in the event of recusal or unavailability of Supreme Court judge(s), the most senior, non-conflicted member(s) of the Court of Appeal be assigned to hear the case.51 This is more feasible now than when the Group reported in April 2002 as the number of Court of Appeal judges has increased recently from seven to nine.52
There are other advantages in doing this, as the long-time practice of using High Court judges on the Criminal Appeals Division of the Court of Appeal has shown,53 and likewise rotating our Court of Appeal judges on the Privy Council.54 It increases understanding, breaks down barriers and fosters collegiality. On any view, the majority of future appointments to the Supreme Court will be drawn from the Court of Appeal. There is much to be said for this form of intermingling and collegiality.
Not everyone will agree. There was a feeling in some quarters at the time the Supreme Court was created that there should be a clear separation between the Court of Appeal and the Supreme Court, much as there had been until fairly recent times between the New Zealand courts and the Privy Council.55 The thinking appeared to be that the Supreme Court will only develop a distinctive approach if all permanent judges sit in every case and the Court develops collegial processes of deliberation among themselves. This thinking is reflected in the Advisory Group's Report,56 but obviously that Group did not think it inconsistent to utilise sitting Court of Appeal judges as substitutes for unavailable permanent judges.
It is time to revisit this issue and to belatedly adopt the Advisory Group's recommendation. It avoids the potential problem of retired judges selected by the Executive on unknown criteria, as well as deflecting future allegations of 'court stacking'. At the present time we are reliant on constitutionally proper fetters imposed on themselves by the Attorney-General and the Chief Justice. This is laudable but hardly permanent. The reform recommendation will ensure a constant supply of high quality and full-time appellate judges to substitute for unavailable permanent Supreme Court judges.
This is not the place to survey the law and practice of recusal by permanent and Acting Judges of the Supreme Court.57 It is mentioned here to illustrate just how easy it is for the Court to become depleted and that in some circumstances s 30 and the Acting Judges' roster may need bolstering by the doctrine of necessity.
The practice of the 'old' Court of Appeal — fashioned by the judges now on the new Supreme Court, and hence likely to prevail there — was that the Court itself would review decisions by individual judges not to recuse themselves in the face of party requests to do so.58 The most common grounds of recusal are involvement as counsel or judge below, involvement of direct relatives in the case, and financial interest.59 For example, Justices Gault and Keith consistently recused themselves from cases that their lawyer children (Ian Gault and Ben Keith) argued or were involved in. This is required by the American Bar Association's influential Model Code of Judicial Practice,60 but there is no such official code of judicial ethics in New Zealand and it is a matter of individual judicial discretion here.61
The following situation could have occurred any time between July 2007 and June 2008 when Acting Judge Gault was the only Acting Judge on the roster. If Ian Gault had been counsel in any case where one of the permanent Judges had had to recuse her- or himself then Acting Judge Gault would have been unwilling to sit and the Supreme Court would have lacked a quorum to determine such cases. This conflict would have been identified in advance, rather than on the eve of the hearing, but it is possible that the language of s 30 might be stretched to cover such 'unavailability' with the consequence that the remaining four permanent Judges would have been able to decide to continue. If not, the only alternatives would have been the doctrine of necessity or some broader inherent power to prevent a failure of justice.
The doctrine of necessity allows an otherwise disqualified judge to hear and decide a case when no other qualified person is available.62 It has been said that the principle underlying the doctrine is the prevention of 'a failure of justice'.63 The whole point of including a provision like s 30 in the Supreme Court Act and stipulating for the use of Acting Judges was to obviate the need to rely on the doctrine of necessity. But it is not beyond the realm of the possible that more than two permanent Supreme Court judges could be disqualified or unavailable (thereby exceeding the limits of s 30) and that there might be insufficient (non-conflicted) Acting Judges on the roster to fill the gaps. At the moment that would be the case, as there is only one Acting Judge on the roster. Furthermore, in rare occasions — such as occurred in the aftermath of the Taito litigation64 — almost all the judges might be tainted to some degree by involvement in a systemic failure of justice. In such situations the Supreme Court would be inquorate, unless the doctrine of necessity operated. It would be a nice question should it ever arise whether the legislative scheme has abrogated that doctrine altogether.65 What the Pinochet saga in the UK and the aftermath of the Taito case in New Zealand demonstrate is that a final court of appeal has inherent powers to prevent a failure of justice66 and 'maintain its character as a Court of Justice'.67 I doubt that the clumsy expression of policy in the Supreme Court Act would, or should, defeat these goals.
There are a number of ways to alleviate the problem caused by absence, unavailability or disqualification of permanent judges of the Supreme Court. This article has focused on the present and possible future problems of using Acting Judges and has suggested abolishing this expedient and replacing it with the use of 'non-conflicted' sitting senior Court of Appeal Judges assigned on neutral criteria. This would require statutory amendment. Other possibilities include: expanding the number of permanent judges to six or even seven; reducing the quorum requirement to four or three; increasing the retirement age back to 72 years. No doubt, there are other options or combinations possible. For practical and constitutional reasons, however, the present situation is neither sustainable nor desirable: something needs to be done soon.
[*] Alexander Turner Professor of Law, Faculty of Law, University of Auckland. I acknowledge reading Anthony Trenwith's unpublished paper "The Reserves Bench" and thank him for allowing me to do so. Thanks also to Mr. Gordon Thatcher (Registrar of the Supreme Court), the Office of the Chief Justice and Ted Thomas for providing information.
[1] 'Recusal' is a useful American term and means disqualification of a judge (often self-initiated) from hearing a case because of interest or prejudice, real or perceived. See Bryan A Garner (ed), Black's Law Dictionary (5th ed, 1979) 1148.
[2] See Duncan Webb, 'Judicial Conduct in a Very Small Place: Some Contextual Questions' (2005) 6 Legal Ethics 106.
[3] See on this the Report of the Advisory Group, Replacing the Privy Council: A New Supreme Court (A Report to Hon Margaret Wilson, Attorney-General & Associate Minister of Justice, Office of the Attorney-General, Wellington, April 2002) [85].
[4] Supreme Court Act 2003, s 17(1)(b).
[5] John V Orth, 'How many Judges does it take to make a Supreme Court?' (2002) 19 Constitutional Commentary 681.
[6] See H E Cunningham, 'The Problem of the Supreme Court Quorum' (1943-44) 12 George Washington Law Review 175, 182-88.
[7] In some countries by constitutional or statutory provision a tie-breaking vote is given to the Chief Justice. This is the position in the High Court of Australia see Michael Coper, 'Tied vote' in Tony Blackshield, Michael Coper & George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 671. In New Zealand, s 31(2) of the Supreme Court Act 2003 codifies the common law rule: if the judges are evenly split, the decision below is affirmed. For empirical study of the 'problem' of tied votes on the United States Supreme Court, see Ryan Black & Lee Epstein, 'Recusals and the "Problem" of an Equally Divided Supreme Court' (2005) 7 Journal of Appellate Practice & Process 75.
[8] Orth, above n 5, 681; Russell, 'The Quorum of the Court In Banco' (1922) 58(5) Canada Law Journal 161.
[9] Supreme Court Act 2003, s 17(1).
[10] Supreme Court Act 2003, s 27(1).
[11] Supreme Court Act 2003, s 30.
[12] Supreme Court Act 2003, s 23.
[13] See David Lanham, 'The Quorum in Public Law' [1984] Public Law 461; Loughlin v Guinness (1904) 23 NZLR 748. Where the number of judges is reduced by 'absence' or 'unavailability' in accordance with s 30(1), subparagraph (1)(b)(ii) of that section stipulates the opinion of the majority of those remaining will prevail.
[14] In the event that the unavailability occurs during or after a hearing, the judges can decide that the matter is reheard by (presumably) a court of five.
[15] Advisory Group Report, above n 3, [94].
[16] Judicature Act 1908, s 13 (as amended in 2007).
[17] Judicature Act 1908, ss 11 & 11A; District Court Act 1947, ss 10 & 10A.
[18] Jason Varuhas, 'Acting Judges' [2006] New Zealand Law Journal 172; Sir Geoffrey Palmer, Judicial Administration Issues (Chen & Palmer, commissioned report to the Hon Margaret Wilson, Attorney-General, 1 November 2002) [142]: 'In principle, it is undesirable that the Courts make such extensive use of allegedly retired judges'. See also in the Australian context, Justice Michael Kirby, 'Acting Judges — A Non-theoretical Danger' (1998) 8 Journal of Judicial Administration 69, 72-76 and, further a field, Morné Oliver, 'The Appointment of Acting Judges in South Africa and Lesotho' [2006] Obiter 554
[19] Wikio & Beckham v Attorney-General (High Court, Wellington, CIV 2004-485-2198, 11 July 2008, MacKenzie J) (appeal pending). Thanks to Cheryl Gwyn for this information.
[20] Some will bridle at me treating the Attorney as a member of the Executive. I am aware, of course, that the Attorney-General as First Law Officer has special constitutional and legal powers and responsibilities, and in theory is meant to be above the political fray. This is not the place to argue the point. For a powerful challenge to the orthodoxy see the paper by Fiona Hanlon (University of Melbourne), 'The AG - First Law Officer of the Crown, Political Guardian of the Rule of Law, or just another Politician? — An Historical Assessment of the Office in Australia and directions for the future' (Paper presented at the 'Death of the Rule of Law' conference (12th Annual Public Law Weekend), Australian National University, 9-10 November 2007).
[21] The Rt Hon Ian McKay was not appointed an Acting Judge.
[22] The Rt Hon Tom Gault QC was appointed an Acting Judge from 1 September 2006 to 30 August 2008: [2006] New Zealand Gazette (14 September 2006, No 107), 3183.
[23] Statute of the International Court of Justice, Art 16(1). See Shimon Shetreet, 'Standards of Conduct of International Judges: Outside Activities' (2003) 2 The Law and Practice of International Courts and Tribunals 127, 154-56. Sir Kenneth was appointed an Acting Judge from 14 November 2005 to 13 November 2007: [2005] New Zealand Gazette (17 November 2005, No 193), 4833.
[24] [2004] New Zealand Gazette (18 November 2004, No 149), 3725 (8 November 2004 to 16 May 2006).
[25] [2004] New Zealand Gazette (18 November 2004, No 149), 3725 (8 November 2004 to 23 May 2005).
[26] Rt Hon John Henry QC was appointed an Acting Judge from 8 November 2004 to 7 November 2006, and was (re)appointed from 8 November 2006 to 2 July 2007 (presumably his 75th birthday): [2004] New Zealand Gazette (18 November 2004, No 149), 3725 & [2006] New Zealand Gazette (14 September 2006, No 107), 3183.
[27] [2004] New Zealand Gazette (18 November 2004, No 149), 3725 (8 November 2004 to 7 November 2006).
[28] Any one who doubts this should read David N Atkinson, Leaving the Bench: Supreme Court Justices at the End (1999). There is no compulsory retirement age for justices of the United States Supreme Court. See Artemus Ward, Deciding to Leave: The Politics of Retirement from the United States Supreme Court (2003).
[29] Cunningham, above n 6, 188. Admittedly, this must be a greater problem given the age at which, and the condition of health in which, most United States Supreme Court Justices retire. This has not discouraged advocates of the idea. See Steven Lubet, 'Disqualification of Supreme Court Justices: The Certiorari Conundrum' (1995-96) 80 Minnesota Law Review 657, 673-75.
[30] Interpretation Act 1999, s 12(b).
[31] Supreme Court Act 2003, s 23(10).
[32] Above n 27 and accompanying text.
[33] I am grateful to the Rt Hon Ted Thomas QC for providing this information. He says he did not seek reappointment and advised the Attorney-General of that on 17 April 2006. The first extension was until 31 March 2007 and the second until 30 May 2007.
[34] 'Human Rights in the Age of Terrorism: More Particularly an Indictment on the Prime Minister of Great Britain'. The event was 'hosted' by Amnesty International, the International Law Association and the Faculty of Law (where Ted Thomas has been Distinguished Visiting Fellow since 2005).
[35] E W Thomas, 'An Indictment of Tony Blair, and the failure of the political process' (2007) 95 The Spokesman 12-48. This left-wing journal was established by Bertrand Russell and is published by the Bertrand Russell Peace Foundation. The entire issue is devoted to the topic of 'War Crimes'. The authorial bylaw is as follows: 'E W Thomas is a Retired Judge of the Court of Appeal of New Zealand; Acting Judge of the Supreme Court of New Zealand; and Visiting Fellow at the Law School at the University of Auckland ...'.
[36] The politicians are quoted in Irene Chapple, 'Kiwi judge calls Blair a criminal', Sunday-Star Times, 13 May 2007. This raises large questions about a judge's (including Acting or former judges') freedom of speech. From a large literature, see Enid Campbell, 'Judges' Freedom of Speech' (2002) 76 Australian Law Journal 499.
[37] Sian Elias, 'Transition, Stability and the New Zealand Legal System' [2004] OtaLawRw 1; (2004) 10 Otago Law Review 475, 475.
[38] From a wealth of material that could be cited, see in the New Zealand context E W Thomas, The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles (2005).
[39] I leave to one side the possible argument that judges appointed to the Court of Appeal prior to the 2007 Amendment (increasing the age of compulsory retirement from 68 to 70 years) could insist on retiring at 68 and remaining eligible for appointment as an Acting Supreme Court Judge in reliance on the constitutional principle that his or her terms or conditions of employment cannot be changed. On the principle in New Zealand, see: s 24 of the Constitution Act 1986; Andrew Stockley, 'Judicial Independence: The New Zealand Experience' (1997) 3 Australian Journal of Legal History 145, 160-63; Jock Brookfield, 'Introduction' & Sir Geoffrey Palmer, 'Judicial Selection and Accountability: Can the New Zealand System Survive?' in B D Gray & R B McClintock (eds), Courts and Policy: Checking the Balance (1995) 1, 3 and 11, 31-40 (respectively).
[40] He was appointed an Acting Judge of the Supreme Court for two years from 5 June 2008: [2008] New Zealand Gazette (12 June 2008, No 98), 2595.
[41] See Re Arlidge (1897) 15 NZLR 361, Shimon Shetreet, Judges on Trial: A Study of the Appointment and Accountability of the English Judiciary (1976) 118-20, and Sir Owen Dixon, 'De Facto Officers' (1940) 1 Res Judicata 285.
[42] Supreme Court Act 2003, s 23(2).
[43] See above nn 24 and 25.
[44] Supreme Court Act 2003, s 23(4).
[45] See generally Petra Butler, 'The Assignment of Cases to Judges' (2003) 1 New Zealand Journal of Public & International Law 83, especially 85.
[46] Iris Freeman, Lord Denning: A Life (1993) 278.
[47] See Comment, 'The Selection of Interim Justices in California: An Empirical Study' (1980) 32 Stanford Law Review 433, as discussed in Stephen R Barnett & Daniel L Rubinfeld, 'The Assignment of Temporary Justices in the California Supreme Court' (1985-86) 17 Pacific Law Review 1045.
[48] Butler, above n 45, 91 and 111-13.
[49] Ibid; Varuhas, above n 18, 174.
[50] Supreme Court Act 2003, s 23(6).
[51] Advisory Group, above n 3, [93].
[52] Judicature Act 1908, s 57(2).
[53] See Wikio & Beckham v Attorney-General (High Court, Wellington, CIV 2004-485-2198, 11 July 2008, MacKenzie J), [123]-[124] (appeal pending).
[54] This experience belies the objection that a sitting Court of Appeal judge should not be sitting in judgment on her or his colleagues.
[55] See the revealing chapter about the Privy Council and colonial judges by Robert Stevens, 'The Role of the Judiciary: Lessons from the End of Empire' in Peter Cane & Jane Stapleton (eds), Essays for Patrick Atiyah (1991) 151.
[56] Report of the Advisory Group, above n 3, [86]-[87].
[57] The latest word on the test requiring recusal or disqualification in New Zealand is Muir v Commissioner of Inland Revenue [2007] NZCA 334; [2007] 3 NZLR 495 (CA). See also Justice Noel Anderson, 'The Appearance of Justice' [2004] WkoLawRw 1; (2004) 12 Waikato Law Review 1 and Chief Justice Sian Elias, 'Impartiality in Judging and the Passions of Mankind', address to the Singapore Academy of Law, 3 November 2004, available from www.courtsofnz.govt.nz/from/speeches.html (accessed 18 April 2008).
[58] Man O'War Station Ltd v Huruke Station Ltd & Others [2000] NZCA 352; upheld by the Privy Council: Man O'War Station Ltd v Auckland City Council (No. 1) [2002] 3 NZLR 577 (PC). See generally Abinbola A Olowofoyeku, 'Regulating Supreme Court Recusals' [2006] Singapore Journal of Legal Studies 60, especially 76-78. The situation in the United States Supreme Court is very different. See generally Caprice L Roberts, 'The Fox Guarding the Henhouse?: Recusal and the Procedural Void in the Court of Last Resort' (2004) 57 Rutgers Law Review 107.
[59] See Ross Cranston, 'Disqualification of Judges for Interest, Association or Opinion' [1979] Public Law 237.
[60] ABA Model Code of Judicial Conduct (1998 Edition), Canon 3E(1)(d)(ii). See generally Jeffrey M Shaman, Steven Lubet & James J Afini, Judicial Conduct and Ethics (3rd ed, 2000) 4.12, and Richard E Flam, Judicial Disqualification: Recusal and Disqualification of Judges (1996) 8.5.1-8.5.2.
[61] Compare the different approaches on this issue in the UK (Shetreet, above n 41, 308 and David Pannick, Judges (1987) 40), and Australia (J B Thomas, Judicial Ethics in Australia (2nd ed, 1997) 56. Justices Keith and Gault are following the Australian practice.
[62] R R S Tracey, 'Disqualified Adjudicators: The Doctrine of Necessity in Public Law' [1982] Public Law 628; Philip A Joseph, Constitutional and Administrative Law in New Zealand (3rd ed, 2007) [24.5.5].
[63] Parishes of Great Charte and Kennington (1742) 2 Strange 1173; 93 ER 1107, 1108; quoted by Tracey, ibid 628.
[64] R v Taito [2003] NZCA 335; [2003] 2 NZLR 577 (PC).
[65] Compare Vector Ltd v Transpower New Zealand Ltd [1999] NZCA 167; [1999] 3 NZLR 646, [62] (Richardson P, Gault, Blanchard & Tipping JJ).
[66] R v Bow Street Metropolitan Stipendary Magistrate & Others, ex parte Pinochet Ugate (No 2) [1999] UKHL 1; [2000] 1 AC 119, 132 (Lord Browne-Wilkinson) (HL). See Evadne Grant, 'Pinochet 2: The Questions of Jurisdiction and Bias' in Diana Woodhouse (ed), The Pinochet Case: A Legal and Constitutional Analysis (2000) 41. See also Sydney Tilmouth and George Williams, 'The High Court and the disqualification of one of its own' (1999) 73 Australian Law Journal 72.
[67] R v Smith [2002] NZCA 335; [2003] 3 NZLR 617, 628 (Elias CJ) (CA). For critical discussion of this power, see Rosara Joseph, 'Inherent Jurisdiction and Inherent Powers in New Zealand' [2005] CanterLawRw 10; (2005) 11 Canterbury Law Review 220, 229-32. See generally Joseph, above n 62, [20.6.1]-[20.6.4].
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