David Fisher

David Fisher is a senior reporter for the NZ Herald.

Special report: Judging the judges

This week, we speak to judges, lawmakers and victims about our judiciary and what needs to change. Today, Judge Jan-Marie Doogue talks about the drive for transparency.

Judge Jan-Marie Doogue says the fact the judiciary applies the law but does not make the law is widely misunderstood by the general public. Photo / Dean Purcell
Judge Jan-Marie Doogue says the fact the judiciary applies the law but does not make the law is widely misunderstood by the general public. Photo / Dean Purcell

Judges are pledging greater openness and better information for the public about the administration of justice in New Zealand to meet a rising clamour for accountability.

But chief district court judge Jan-Marie Doogue said the drive to expose the workings of justice was being frustrated by a heavy workload, a lack of money and an under-developed courts infrastructure.

Judge Doogue, who became a judge 20 years ago, leads the district court judiciary of 123 judges - Australasia's largest.

She was interviewed with others for a Herald series after a poll last month found 53 per cent of those polled had high confidence in the judiciary while 38 per cent had "big concerns".

In a rare interview, Judge Doogue pledged greater openness from the country's busiest court but also spoke of an apparent public misconception over accountability. She said concerns over the judiciary should be seen in context with international rankings endorsing it as among the world's best.

She said there was a lack of education about the three arms of government and the role the judiciary has in that. The three branches of state in New Zealand are Parliament and its MPs, the executive with its ministers and the judiciary.

Judge Doogue would like to see "civics" classes in schools - lessons on the responsibilities and rights of citizens and their relationship with the state. She said such education would help the understanding judges did not have a "blank page".

"The public need to understand that about the judiciary. We apply the law. We don't make the law. Some of the debate around this appears to be there are no restrictions on what we do. There are serious restrictions on what we do.

"A properly informed public would understand it is the legislature that makes the laws. If they say, as they do in the Sentencing Act, you must impose the least restrictive sentence - that's not judges being soft on crime, that is judges doing what the legislature has told them to do."

She said media reporting sensationalised some cases and decisions without reporting full details. That meant "the public are ill-informed or malinformed about the judges' role. So they don't see us as accountable. Whereas if they were educated through adequate means as they grew up and the media were presenting a balanced argument, they would know there are many forms of accountability.

"If we do have serious levels of lack of public confidence in our judiciary that has the potential to destabilise what is in effect a very healthy democracy.

"We're one of the best democracies in the world with some of the biggest challenges of any democracy in the world in terms of challenges of indigenous disaffection from colonialism and yet we box on as a nation and do very well.

"But if we do not have law and order and we do not have confidence in that arm of government ... then we will all ... suffer because of that."

She said a District Court annual report being developed would meet an "obligation" to have public "health checks" of the system which would report the volume and speed of case-flow through courts, along with the percentage of cases overturned on appeal.

The judiciary has hired a "community engagement" manager. As part of the public engagement, a district court judge is today running a class at Whangarei Boys High School.

It is the first in a new programme which will put judges in schools and before community groups to build knowledge and understanding of the judiciary and its role. The manager also connected with media, recently raising concerns in some newsrooms about court reports.

Judge Doogue said the judiciary was accountable through open courts and decisions which had to be stated clearly.

However, the desire for good quality data to report the functions of the court was hampered by moribund internal systems and a lack of money to put improvements in place.

She said the judiciary had been told there was not enough money to make changes which included having district court judgments available online - particularly sentences in high-profile cases.

She said the data which would be used to show accountability also needed investment. Information showing how overdue cases were was 50 per cent to 65 per cent inaccurate, she said.

"The ministry has to find the money to fund accurate data, because they acknowledge their data is not accurate - that's a big thing to turn around."

She said cost-cutting across government was also hitting as the district courts expanded the type of work they took on. Work was under way with the Ministry of Justice to ringfence workflows, to guard against the pressure of work impacting on the quality of justice delivered.

The workload meant there were roles which should be funded which had not existed until recently. When appointed 18 months ago, she said "believe it or not" there was no one who scheduled the workload of the 123 district court judges, a "significant investment for the taxpayer".

"What do you do with people who have very satisfactory salaries? You actually want them to be working as effectively as possible."

She said reporting on information in the court would likely be limited to generic data rather than tied to individual judges. As an example, appeal statistics carried "nuances" she believed would not be reported leading to a judge becoming an unfair target for criticism.

"In essence you're putting the head on the block unnecessarily, from my point of view. I think it is just one step too far. Our reality is that currently we have to expect the worst because that is how we are being reported.

"We would not be able to recruit good quality judicial officers to this bench or any other bench if they are going to be publicly excoriated or exposed."

Judge Doogue said there had been an "exponential" rise in criticism in the last 10 years. The criticism of judges "can be intense and it can be ongoing".

"You can't take this job on unless you have the fortitude to do it.

"You don't get to do the job unless you have a lot of experience for withstanding public opprobrium for what you do," Judge Doogue said.

Changes will bring greater openness and clarity to courts system

The changes forecast by the Law Commission's report into the century-old law governing judges bring in a new era of judicial openness.

The preface by Sir Grant Hammond, the commission president, said society strove for the "rule of law". It required everyone in the country, no matter who they were, to be "bound by and entitled to the benefit of laws publicly made and publicly administered by the courts".

The review was needed because the present laws meant the rules governing the courts were not "clear, accessible and intelligible".

When Cabinet meets today "most of the suggestions will be picked up", said Justice Minister Judith Collins. She said "the general thrust and issues dealt with by the Law Commission are the ones we very much agree with".

Attorney General Chris Finlayson said recommendations opening up the appointment of judges would go ahead.

The law changes recommended by the commission are:

Appointment of judges

The process by which judges are appointed, from Chief Justice down, should be stated in law. The Prime Minister appoints the Chief Justice while other judges are appointed by the Attorney General. Consultation before appointment with appropriate people and groups should also be made law. The formal requirements to become a judge also need to become law, including a statute which enshrines legal ability, understanding of tikanga Maori, understanding of diversity and qualities of integrity, sound judgment and objectivity.

Conflicts of interest

The prohibition on judges acting as lawyers should be made explicit in law. The law should also rule out a judge holding any other office paid or unpaid without the Chief Justice's permission. The process for recusal - removing a judge from a case - should be spelled out in law.

Part-time and acting judges

The number of District Court judges should be set in law to reflect workload. New laws should allow the appointment of part-time judges for courts below the Supreme Court. Full-time judges should be able to shift to part-time for five years leading up to retirement.

Leadership and accountability

Legislation should be passed to give more corporate reporting lines in the judiciary and provide a clear chain of command. There should be a requirement in law for an annual report on all courts published by the Chief Justice. The areas to be reported on should be set in law.

Sir Grant told the Herald the recommendations brought added clarity to the courts. Spelling out appointments of judges would improve confidence, he said.

"The process has not been sufficiently transparent. And some Attorneys [Attorney Generals] have not used the same criteria. In the past it did look like a tap on the shoulder."

Sir Grant pointed to a lack of process or clarity in recusal cases and on the issue of reporting the court's business to the public.

"The starting point should be one decent annual report which has the basic information in it. That's been a long struggle on the part of the commission to get the judiciary to finally accept."

The series

Today: Law changes herald new age of transparency
Tomorrow: The truth about bail and the impact of the changes
Wednesday: Sentencing with a purpose
Thursday: A day in the life of a judge
Friday: The push for tougher sentences
Saturday: What next for the justice system.

- NZ Herald

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