Register of Pecuniary Interests of Judges Bill

  • defeated on 25 February 2015

Register of Pecuniary Interests of Judges Bill

Member’s Bill

240—1

Explanatory note

General policy statement

It is a time-honoured principle of Western democracy that public servants of every kind must be beyond reproach, and suspicion thereof. Public confidence in the standard of behaviour and conduct observed by leading servants of the people is a cornerstone of social harmony and political stability. A threshold of confidence to that end should ideally be enshrined in constitutional and legislative form. Little scope should be available for individual discretion or subjective perception.

The principle of transparency in this respect pertains in particular to issues of financial (pecuniary) interest. Nothing undermines public confidence in a nation’s institutions and procedures more than suspicion that a public servant may have, and especially proof that one has, suffered a conflict of interest arising from a pecuniary interest in a particular dealing in which he or she was professionally involved.

In New Zealand, members of the Executive (Cabinet) have been required under statute, since 1990, to provide statements of pecuniary interests pertaining to their personal financial affairs. Such statements are submitted to the Speaker and these are made available for public consumption.

In 2006, this practice was extended to all members of Parliament. Since then, members have been required to submit annual statements of pecuniary interests to a Registrar who makes the information publicly available. The Legislature’s version of pecuniary interest statements was modelled along the lines of that of the Executive.

In both cases, a careful balance has been struck between transparent public knowledge of an individual’s financial affairs and the preservation of personal privacy.

The correct balance in this respect appears to have been achieved over the years–the public interest in such annual statements is significant without appearing prurient, and few complaints have been voiced by those on whom the obligations are placed. There seems to be a general acceptance that such exercises are in the public interest and are neither unduly onerous nor revealing.

No such practice, however, has been observed in the case of the judiciary. Recent developments within New Zealand’s judicial conduct processes suggest that application of the same practice observed by the other two branches of government might assist in the protection of the judiciary in future.

Being obliged under law to declare pecuniary interests that might be relevant to the conduct of a future case in which one is involved would relieve a judge from a repetitive weight of responsibility to make discretionary judgements about his or her personal affairs as each case arises. Having declared one’s pecuniary interests once, in a generic manner independent of any particular trial, a judge may freely proceed in the knowledge that, if he or she is appointed to adjudicate, public confidence for participation has already been met. Yet care is to be exercised to ensure that the final decision is left to the individual judge whether to accept a case. There should be no intention of external interference into the self-regulation of the judiciary by the judiciary.

This is the reasoning behind this draft legislation–the Register of Pecuniary Interests of Judges Bill. The purpose of the Bill, as stated, is to promote the due administration of justice by requiring judges to make returns of pecuniary interests to provide greater transparency within the judicial system, and to avoid any conflict of interest in the judicial role.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause. The Bill will come into force on the day after the date on which it receives the Royal assent.

Clause 3 sets out the purpose of the Bill, which is to promote the due administration of justice by requiring judges to make returns of pecuniary interests to provide greater transparency within the judicial system and to avoid any conflict of interest in the judicial role.

Clause 4 provides that nothing in the Bill is to be interpreted as compromising the constitutional principle of judicial independence guaranteed by the Constitution Act 1986 and respected by constitutional convention.

Clause 5 provides definitions for various terms in the Bill.

Clause 6 describes the two key components of the Bill, which are to require returns of pecuniary interests from judges and to establish a register of such returns.

Returns of pecuniary interests

Clause 7 imposes a duty on judges to make an initial return of pecuniary interests following appointment as a judge.

Clause 8 imposes a duty on all judges to make annual returns of pecuniary interests.

Clause 9 lists the contents of returns of pecuniary interests.

Clause 10 provides that relationship property settlements and debts owed to certain family members do not have to be disclosed in returns of pecuniary interests.

Clause 11 provides that short-term debts for supply of goods or services do not have to be disclosed in returns of pecuniary interests.

Clause 12 provides that where the obligation to make an annual return, in any particular case, arises prior to the obligation to make an initial return, the judge must make an initial return and is not obliged to make an annual return until the following year.

Clause 13 provides the period covered by returns of pecuniary interests.

Clause 14 provides that disclosure of the actual value, amount, or extent is not required in relation to any matter that is required to be disclosed.

Clause 15 provides that the registrar must prescribe the form of returns.

Register of pecuniary interests

Clause 16 establishes the register of pecuniary interests of judges.

Clause 17 provides that the registrar is the person holding the office of the Judicial Conduct Commissioner established under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.

Clause 18 sets out the functions of the registrar, which are to—

  • compile and maintain a register of pecuniary interests of judges and publish the information contained in returns of pecuniary interests

  • provide advice and guidance to judges in connection with their obligations under this Act

Publication of information contained in returns of pecuniary interests and name of any judge who fails to submit return

Clause 19 provides that the registrar must publish the information contained in both initial and annual returns of pecuniary interests.

Clause 20 provides that the registrar must publish the name of any judge who fails to submit any return.

Miscellaneous provisions

Clause 21 provides that it is the responsibility of each judge to ensure that their obligations under the Act are fulfilled and places limits on the responsibilities of the registrar.

Clause 22 provides that a complaint that a judge has failed to make a return of pecuniary interests is a matter that has a bearing on judicial functions or judicial duties for the purpose of section 16(1)(b) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.

Clause 23 provides for the destruction of returns and information relating to an individual judge when that person ceases to be a judge.