HUMAN RIGHTS IN NEW ZEALAND 20 1 0 purpose of the proceedings is to consider a recommendation made by an Ombudsman. 65 It is important that these exceptions are invoked only in exceptional circumstances, where exclusion is a necessity. A wider application risks undermining the purpose of LGOIMA and bringing the legitimacy of local authorities as democratic bodies into question. one or more of the grounds set out in section 16(1) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. The most common ground for the dismissal of complaints occurred, in essence, where the complaint called into question the correctness of a decision made by a judge. Section 8(2) of the act provides that it is not a function of the Commissioner to challenge or call into question the legality or correctness of any judgment or Adjudicative procedures provided by the other decision made by a judge in relation to any legal State should be fair proceedings. The proper avenue for that is by way of Judiciary An independent and impartial judiciary is a cornerstone of a legal system. This convention has recently come under scrutiny following the ‘Saxmere interests’ cases. Wilson appeal or application for judicial review. Other grounds for dismissal were varied, including complaints being frivolous, vexatious or not in good faith. Four complaints were referred to the Heads of Bench. J did not recuse himself when a case came before him in As an unelected body, the legitimacy of the judiciary rests the Court of Appeal where he had a long-term business largely on its credibility and the acceptance by the public relationship with counsel for the (successful) Wool Board. of its rulings as fair. A 2004 UK government consultation The Saxmere interests were successful in having Wilson paper, entitled ‘Increasing Diversity in the Judiciary’ noted: J’s decision remitted for hearing, when the Supreme Court found (reversing their earlier judgment) that there was an apprehension of bias in the mind of a fair-minded lay observer. 66 Following this decision, and the instigation of a formal judicial-conduct inquiry, Wilson J resigned from his position as Supreme Court judge. This case raises questions as to whether the conventions surrounding judges recusing themselves are too informal. However, it should be noted that prior to this case, there were no reported decisions on apparent bias relating to the relationship between judges and counsel, reflecting that the conventions are largely followed. 67 No judicial [I]f the make-up of the judiciary as a whole is not reflective of the diversity of the nation, people may question whether judges are able fully to appreciate the circumstances in which people of different backgrounds find themselves. 69 The importance of women judges in this regard was described by Justice Judith Potter (then President of the New Zealand Law Society) at the swearing in of Dame SIlvia Cartwright as the first woman judge of the High Court in 1993: system is immune from allegations of apparent bias. For I am increasingly concerned about the example, in Re Pinochet, 68 the House of Lords recalled widening credibility gap between the law one of its earlier decisions. and the citizens it serves – for one reason or The Judicial Conduct Commissioner received 139 com- law is not seen to be relevant to the lives of plaints in 2008–09. These were based on various grounds, including rudeness, unfairness, inappropriate remarks, another, or for a whole host of reasons, the many people living in our society. failure to listen, bias and predetermination. The Commis- It would be idle to pretend that the presence sioner dismissed 113 complaints during the year upon of women in representative numbers on our 65 LGOIMA, section 48(1)(c) 66 Saxmere v the Wool Board Disestablishment Company Ltd [2009] NZSC 122 67 This convention was followed in early 2008 when Sian Elias recused herself from a Supreme Court case involving jockey Lisa Cropp. The judge part-owns the galloper Resolution that Cropp rides and decided that if she sat on the case her judgment could appear biassed. 68 [1999] All ER (d) 18 69 Department for Constitutional Affairs, ‘Increasing Diversity in the Judiciary’, 2004, p 14 101