Dialogue: Prudence and prurience

Justice Fisher's sex-site behaviour has been properly dealt with and politicians should keep their distance, argues STEPHEN HUNTER*.

The Government's reaction to Justice Robert Fisher's use of his work computer to view sexual material shows a lack of respect for the independence of the Judiciary.

The matter - two to three weeks of inappropriate internet use - was dealt with by Chief Justice Dame Sian Elias at the time and an assurance was given that it would not happen again.

Now, more than 15 months later, the Government is reportedly angry that it was not informed, the Prime Minister has publicly questioned Justice Fisher's behaviour and the cabinet is considering its options.

It is this Government's blustering, rather than a judge's web-surfing habits, that should be the cause of genuine public concern.

Governmental power is (to state the obvious) divided between three branches:

Executive power, although formally residing in the Queen, is exercised on the advice of ministers of the Crown or by those ministers in the name of the Crown.

Legislative power is exercised by Parliament.

The Judiciary exercises power by interpreting and developing the law when applying it to specific facts.

Although the three branches are in many respects interdependent, each must recognise and respect the formal independence of the others.

Turning to the courts, judicial independence embraces the dual concepts of decisional and institutional independence.

Decisional independence refers to a judge's ability to decide cases according to law, free from improper external influence.

Institutional independence concerns the separation of the judicial branch from the Executive and legislative branches.

Institutional independence requires that the Judiciary be responsible for managing its own internal affairs free from political interference, although, of course, it must cooperate with the other branches on a great many administrative matters.

It is not always an easy balance to strike: On the one hand the Government has a legitimate interest in seeing public resources used properly; on the other the Judiciary has the right to significant independence in controlling its affairs.

The New Zealand Judiciary has adopted an internal procedure for dealing with complaints about judges.

Any person may complain in writing to the Head of Court (in Justice Fisher's case, Dame Sian), who determines how it will be dealt with.

The actions of the Head of Court are subject to review by the Judicial Complaints Lay Observer, at present former Justice Secretary David Oughton.

Only in grave circumstances does the law call for the involvement of members of the other branches of government in judicial discipline.

Section 23 of the Constitution Act 1986 provides that a High Court judge may be removed from office by the Governor-General, acting upon an approach by Parliament, only on the grounds of misbehaviour or the judge's incapacity to do the job.

Misbehaviour has always been understood to be limited to the most serious cases and although illegality is not necessarily the touchstone, there is no suggestion that Justice Fisher's conduct rises to a sufficient level.

It is entirely appropriate that his actions were dealt with by the Chief Justice and the matter left there.

The Prime Minister had no more right to be informed of this misconduct than Dame Sian would have had to be informed that a cabinet minister had done the same thing.

More serious misbehaviour, which raises the possibility of removal from office, may impose different obligations.

The Chief Justice might also have a duty to disclose a judge's misconduct to the Attorney-General if she were consulted by the Attorney about an appointment to the Court of Appeal.

But neither situation arises in this case.

The Judiciary should - if it has not already done so - develop internal policies regarding internet use.

The publication of such policies would increase public confidence in the courts system.

Last September, the Judicial Conference of the United States, a body of senior judges who make administrative policy for US courts, adopted a model policy (borrowed from the Executive branch) for the use of Government office equipment, including information technology.

That policy recognises that taxpayers have a right to expect that their Government will be well-managed and assets used appropriately.

The policy specifies that the viewing of sexually explicit or sexually oriented materials is an inappropriate personal use of Government property.

But the Judicial Conference also reaffirmed that individual courts have responsibility to enforce appropriate use policies.

Judicial independence is not a mantra to be repeated each time judges are criticised. Like other public officials, judges must be subject to popular scrutiny and it is understandable that politicians wish to comment on what they regard as wrongful conduct.

But it is important for the Government to remember the institutional respect it owes the Judiciary, and its limited role in supervising judicial behaviour.

Monitoring internet use in these circumstances does not fall within it.

*Stephen Hunter is a New Zealand lawyer completing a masters degree at Harvard Law School.