The guarantee of judicial independence is an indispensible requirement of judicial office. The guarantee entails security of judicial tenure, the institutional independence of courts and the financial security of judges. The independence of the judiciary is aimed at maintaining public confidence in the administration of justice. Judicial independence promotes fair and just decisions (or decisions that are perceived as fair and just) and is a necessary condition of impartiality. Impartiality is the ultimate value associated with the justice system. Judges must not be biased and must be free from government influence, pressure or threat.
Superior Court judges
Until the Act of Settlement 1701 in England, the king or queen could dismiss judges whenever they wished. During the 17th century the Stuart kings flaunted the dismissal power to secure a complaisant judiciary. The Act of Settlement was enacted as a protection against future royal abuses. It guaranteed the tenure of superior court judges ‘during good behaviour’ and set their salaries, which could not be reduced during a judge’s commission. The act required an address (resolution) of both houses of the British Parliament to secure a judge’s removal. These guarantees were introduced in New Zealand in 1858 and were re-enacted under the Constitution Act 1986. The Crown can remove a superior court judge only following an address of the House of Representatives, moved on the ground of misbehaviour or incapacity. No New Zealand judge has been removed from office under this procedure.
Inferior court judges
Inferior court judges do not enjoy the same security of tenure as their superior court counterparts. Inferior court judges may be removed by the governor-general acting on the advice of the attorney general. No parliamentary address is required. The attorney general’s advice may be tendered on either of two grounds: misbehaviour or inability. Employment Court judges are the exception. These judges enjoy the same security of tenure as superior court judges and can be removed only following a parliamentary address moved on the ground of misbehaviour or incapacity. No inferior court judge has been removed from office. However, several judges have resigned in circumstances that might have justified their removal.
Independence of courts
The law provides for security of judicial tenure but not the institutional independence of courts. The judiciary must have adequate resourcing and administrative support services to function as an autonomous branch of government. Their administrative support services should be separate from the central bureaucracy and control of government ministers. Ideally, the administration of courts (assignment of judges, sittings of courts, court lists and direction of court staff) should be vested in the judiciary itself, and the judiciary’s information-technology systems should be independently operated and maintained. However, two chief justices have lamented the courts’ dependence on the central bureaucracy and have called for reconfigured administrative support systems.
