One approach to the issue of Judicial accountability

Edward Willis 112X140                 Judicial accountability is a fraught issue. Like all public decision makers that exercise power in the name of the state, judges should be held to account for their decisions.
  • By Edward Willis, lawyer at Webb Henderson

Other public decision makers are primarily held to account through democratic means.  However, part of the function that the courts serve requires a degree of independence from familiar methods of democratic oversight. The challenge of judicial accountability is, therefore, how to secure a meaningful degree of accountability while maintaining judicial independence.  

One way of addressing this tension is to observe that judicial decision making often carries a kind of democratic mandate. Part of the role of a judge is to interpret and apply legislation.

That legislation is itself endorsed by a democratic process institutionalised in the form of Parliamentary enactment. If judges are faithful to the text and purpose of the legislation then the decisions of the courts are democratic, at least in a broad sense.

This answer is, however, not sufficient. There is a risk, either real or imagined, that an “activist judge” might pervert this democratic mandate to achieve particular ends. Often it is an apparent departure from the text or purpose of an enactment that attracts this type of criticism.

However, a clear legislative intent can equally be frustrated by undue fidelity to the text of a statute. 

That appeared to be what occurred in the Supreme Court in Greenpeace New Zealand Inc v Genesis Power Ltd [2008] NZSC 112.

In ruling that a consent authority was not entitled to consider the possible climate change effects of a proposed electricity generation facility, the majority of the Court relied almost exclusively on a narrow textual analysis of the relevant statutory provisions.

This result was somewhat counterintuitive given that the clear policy of the relevant statute – the Resource Management Act 1990 – was to manage, not ignore, the effects of climate change.

What’s more, the majority of the Court sought to shelter behind the guise of democratic mandate as expressed in the legislation by claiming it was applying an orthodox purposive interpretation.

The decision of the majority was not necessarily incorrect; the key point is it is difficult to know whether any democratic mandate for the decision could possibly be established given that the stated reasoning obscured the relationship between the decision and statutory text and purpose.

If establishing a democratic mandate for judicial decision making is so difficult even where statutory language is specifically addressed, what alternatives are available?

One approach would be to recognise that judging actually requires judges to make value judgements when issuing their decisions.

Our concern should not be directly with reconciling judicial decision making with apparent Parliamentary intent, but to ensure that the values of the community (including as expressed in legislation) are reflected in the judgments of the courts.

This involves, broadly, judges being willing to lay bare the particular value judgements that inform specific instances of judicial decision making. Inappropriate application of particular values – those that run against community standards – will then be exposed and be able to be responsibly criticised. The law can then evolve in response to such criticism either through statutory amendment, or (more likely) refined and refocused judicial consideration.

There may, of course, be the odd uncomfortable appellate-level precedent set along the way, but a number of judgments out of step with societal values will only increase the pressure for the law to be reconsidered.

This approach requires that the policy judgments that underpin cases are made clear. Judicial accountability is promoted because both the decision of a court and the reasons for that decision being reached are open to close scrutiny by interested parties.

In short, reasoning open to such close scrutiny must result in greater levels of judicial accountability, as it ensures that the values we hold as a society are reflected in the decisions of the courts.

Attorney-General v Chapman [2011] NZSC 110 appears to provide a good example of this kind of approach. In the judgment of McGrath and William Young JJ, their Honours outline their approach to the issue of judicial liability for breach of the New Zealand Bill of Rights Act 1990 with which the case was concerned in the following terms (para [97]):

… the reality is that the case … turns on a policy judgment. Judicial immunity gives effect to systemic public interest considerations, the most important of which is judicial independence. As we will explain, allowing a claim of this kind to proceed would be as inimical to those public interest considerations as allowing a personal claim against judges.

In setting out and following this approach, the Judges have done everything they should: identify the competing policy considerations, weigh them carefully in an explicit fashion, and reach a reasonable conclusion based on that process. If the Court had decided the other way, it should have employed exactly the same process.

We may disagree with the substantive outcome, but I don’t think that we can seriously challenge that the decision is legitimate and the process appropriate.

In fact, the heavy and cogent criticisms that have been levied at the substantive outcome in that case – that judicial immunity stands – suggest that the reasons offered by the Court were appropriately clear and transparent. That substantive disagreement is a key part of how the law develops. 

Finally, it is worth clarifying that this form of accountability is institutional, and not specific to individual judges.

That is entirely appropriate. Judicial accountability spreads over an appellate hierarchy and ultimate supervision by Parliament (through legislation), and in this sense it is the law as an institution that is accountable to the community.

Accordingly, the independence of the judge in the particular case is maintained, and the pressure of particular interest groups can be resisted. Judges should be free to make the best decisions they can, but the law must serve our needs and so remain accountable to us all.  

Edward Willis is a senior public, administrative and regulatory lawyer for Auckland-based law firm Webb Henderson. He is a sought-after adviser to businesses on the public law implications of their commercial dealings. He is also a PhD candidate at the University of Auckland School of Law, where he studies constitutional law on a full scholarship.  

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