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The Relationship Between Courts and Other Branches of Government

The Constitution Act 1986 recognises the three branches of government - the Legislature (Parliament), the Executive (Cabinet and Ministers outside Cabinet, plus government departments), and the Judiciary. Each operates independently of the others. This is known as "the separation of powers".

The independence of the Judiciary in these arrangements exists to ensure impartiality in judicial decision-making and is fundamental to the constitutional balance under the Constitution Act 1986 and to the principle of legality that underlies it. Judges when judging should be subject only to the law. This principle is not unique to New Zealand - it is well recognised in other democratic countries and is also spelt out in international documents such as the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region (19 August 1995); the United Nations Basic Principles on the Independence of the Judiciary (1985), and the International Covenant on Civil and Political Rights (1976).

Independence of the judges is secured by ancient guarantees of security of tenure and salary (s23 and s24 Constitution Act 1986) and by constitutional conventions which prevent the Executive directing the Judiciary. Parliament directs the Judiciary only by legislation. An important constitutional convention in this context is that the Attorney-General acts independently of political considerations in recommending judicial appointments.

Judges also have immunity from being sued in their private capacity in respect of actions taken against them in their role as judges. Judges are protected against removal from office except on the grounds of misbehaviour or incapacity. The removal process requires an address from the House of Representatives.

Independence does not prevent interaction between the various branches. For example, the Executive may consult with the Judiciary on policy and legislative proposals which impact upon judicial administration. Judges do not as a general rule comment on the policy that the Executive wishes to pursue because policy is for the Executive to decide. There can, however, be practical issues where the perspective of judges can be of help to the Executive. Some examples of comments by the Judiciary to the Executive on policy and legislative proposals are contained in the High Court 2001 - 2003 Judicial Report.

For their part, members of the Executive respect the judicial function. The formal position is set out in the Cabinet Manual which states that:

"the separation of the Executive and the Judiciary under the New Zealand system of government means that Ministers must exercise prudent judgment before commenting on judicial decisions - either generally or in relation to the specifics of an individual case (for example, the sentence). Ministers, following long established principle, do not involve themselves in deciding whether a person should be prosecuted or on what charge. Therefore, they should not express comment on the results of particular cases or on any sentence handed down by a court. Sentencing is a complex process. Ministers must avoid commenting on any sentences within the appeal period and should avoid at all times any comment that could be construed as being intended to influence the courts in subsequent cases. It is, however, proper for Ministers to comment on the effectiveness of the law, or about policies on punishment (that is, on those matters where the Executive has a proper involvement), but not where the performance of the courts is brought into question."

The Chief Justice as the head of the Judiciary is the primary point of contact between the Executive and the Judiciary. Heads of Bench may also communicate directly with the Executive on matters of interest to their own courts.

The Chief Justice occasionally attends Select Committees of the House considering legislation (for instance relating to judicial disciplinary procedures), usually with other judges. Heads of Bench sometimes attend as well in respect of pending legislation relevant to their jurisdictions (for instance family or employment related legislation).

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