Should Chief Justice Sian Elias recuse herself when the Supreme Court hears the water rights claim?
According to Fran O'Sullivan in the Weekend Herald, unnamed Cabinet ministers have been floating that question.
The answer is almost certainly no; Sian Elias should be in the court's central seat when the case is called.
Certainly where there are grounds for a judge recusing him or herself, and where he or she has not volunteered to do so, parties before the court should raise the issue.
Where there are no reasons for recusal, the parties should stay silent on the issue. Groundless applications for recusal, or judges too ready to stand aside in response to accusations of apparent bias, are threats to judicial independence.
In countries with less respect for judicial independence one piece of litigation strategy is to try to get the court you want by "warning" judges off hearing a case. Even if the judge in question stays on the case, harm may still be done as the notion gets into circulation that there may have been some truth in the allegations of possible bias.
Those briefing the Herald should know better than to trail doubts about whether the Chief Justice should be sitting if all they have to point to is that she did a good job for her former client. As O'Sullivan pointed out, where there has been a proper reason for Elias stepping aside she has done her judicial duty. The Chief Justice and the Supreme Court - having decided the Saxmere case just three years ago, which eventually led to the resignation of Justice Bill Wilson - are certainly aware of when a judge should recuse him or herself. The Saxmere case states the legal rule that governs when a judge should sit, and when not.
The New Zealand law on recusal for apparent bias matches for the most part the tests used in Britain and Australia. Stated by the court in the Saxmere case it asks: Would "a fair-minded and informed lay observer ... reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question (ie, case) the judge is required to decide?" The courts in New Zealand and the UK have also said that such an observer is a person with relatively detailed knowledge of the legal system, of the nature of the judicial oath, and the professional nature of the barrister-client relationship. They think about things carefully and are not quick to judgment.
Relevant to the Maori Council's water rights case, the English Court of Appeal, in its leading case on bias, made clear it would require something pretty exceptional to persuade it that "previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before" a judge would warrant the judge not continuing to sit. The lead judge in that case was Lord Bingham of Cornhill, one of the great Privy Council judges of the last century.
It is relatively common for a judge to hear cases which are argued by people the judge used to work along-side when they were a practising lawyer, or which involve people the judge once acted for. Only in the rarest of cases will that amount to a case of apparent bias.
The Chief Justice was appointed to the bench in 1995 during the fourth National Government's term of office. It must be at least 17 years since she acted for the Maori Council, and quite possibly more. Simply having been the council's lawyer does not come close to meeting the threshold set by the common law for recusal.
There have not been similar calls for the court's second most senior member, Justice McGrath, to recuse himself whenever the Government is a party before the Court. Justice John McGrath was the Solicitor-General (the Government's top lawyer) for 11 years before he became a judge in 2000. On the reasoning attributed in Saturday's report to the unnamed Cabinet ministers - that having acted for a party over a significant period disqualifies a judge from hearing cases involving his or her old client - Justice McGrath would spend an awful lot of time alone in his Supreme Court office while his colleagues decided all those cases involving the Government. That would obviously be nonsensical. And there is nothing odd about having appointed a former Solicitor General to the bench - to do so is common elsewhere in the world.
New Zealand has a proud history of an independent and impartial judiciary. We can take comfort that all the judges who will sit on the water rights appeal - not just Chief Justice Elias - will give the parties a fair hearing and decide the case according to the law. It would be best if a named Cabinet minister came forward and said so.
Dr Richard Cornes is a NZ-trained lawyer and legal academic specialising in Supreme Courts. He is a senior law lecturer at Essex University, in England.