Summary
The High Court dismissed a judicial review against the Judicial Conduct Commissioner’s recommendation to convene a panel to investigate alleged misconduct by District Court Judge Ema Aitken.
Background
Statutory framework
The Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (“Act”) sets out a detailed process for accountability of judges for misconduct. The Act aims to maintain the balance between these accountability mechanisms and the need to protect security of judicial tenure from political interference.
Under the Act, the Judicial Conduct Commissioner is the point of first receipt for complaints of judicial misconduct. In the most serious cases, the Commissioner may recommend to the Attorney-General to convene a Judicial Conduct Panel to investigate the alleged misconduct. When a Panel is convened, they are tasked with investigating the matter and making a recommendation as to whether the judge should be removed from office.
The Attorney-General may commence the process for removal of the judge if (and only if) the Panel recommends this course of action following their investigation.
The incident
In December 2024, several media reports surfaced alleging that District Court Judge Ema Aitken and her partner verbally attacked Deputy Prime Minister Winston Peters and other New Zealand First members at a Christmas party at Auckland’s Northern Club (“Incident”).
Following a complaint about the Incident, the Commissioner recommended that the Attorney-General convene a Panel. The Commissioner noted that there were differing accounts of what occurred during the Incident, and particularly whether Judge Aitken’s outburst had a political motive.
Before the Attorney-General acted on the recommendation, Judge Aitken filed judicial review proceedings alleging the recommendation was unlawful on four grounds and seeking that the matter be referred back to the Commissioner for further investigation.
In February2025, the court granted interim orders recommending that the Crown take no further action to convene the Panel.
The Case
Commissioner’s role
The court held that the Act was intended to propose a number of discrete steps that must be satisfied before a judge could be removed from office.
The Commissioner’s function within this scheme was to filter out unmeritorious complaints, and to recommend appropriate next steps for meritorious ones. Given their function, the Commissioner was expected only to form a preliminary view of the subject-matter of the complaint. The Commissioner could recommend convening a Panel if they were satisfied that the complaint was plausible and that the alleged conduct, if substantiated, could warrant consideration of removing the Judge from office.
The Commissioner did not have licence to determine disputed issues of fact, which was a function reserved by the Act for a Panel (if one was appointed).
First ground - Failure to identify legal standard
Judge Aitken alleged the Commissioner had erred in law by failing to expressly identify the legal standard against which the alleged conduct was to be measured.
The court held there was no general rule that the Commissioner had to expressly identify the relevant standard. In marginal cases, failure to do so might indicate that the Commissioner had misapplied the legal test, but this was not such a case. If a political dimension to the Judge’s conduct was substantiated, this would certainly warrant consideration of Judge Aitken’s removal.
Second ground - Failure to provide sufficient reasons
Judge Aitken’s second ground alleged the Commissioner had failed to provide sufficient reasons for their decision (as required by s 18(2) of the Act) because they had failed to identify the relevant legal standard and clearly apply that standard to the facts before them.
The court was satisfied that the Commissioner’s reasons were adequate in the circumstances.
The ambit of any statutory requirement to provide reasons was context-dependent. A quasi-judicial body might be expected to provide fairly robust reasons if they were making authoritative determinations on facts and law, particularly where the decisions made were publicly available and relied on by third parties. However, given the Commissioner’s determinations were both preliminary and (ordinarily) confidential, the requirement to provide reasons was far less stringent.
In these circumstances, Commissioner’s reasons were sufficient. They were neither required nor permitted to go into any further detail than they had regarding conflicting factual accounts of the Incident.
Third ground - Insufficient preliminary examination
The Judge’s third ground alleged that the Commissioner could not properly form the opinion required under s 18(1) without referring her response about alleged political animus back to the complainant.
The court rejected this argument. An iterative approach to disputed evidence might be necessary in particular cases, but it was not an absolute legal requirement. There was no evidence it would have made any difference in this case. The claim was in essence an invitation for the Commissioner to determine disputed factual allegations, a function that the Act did not permit the Commissioner to perform.
Fourth ground – Failure to determine initial scope of Panel enquiry
Judge Aitken’s final ground of challenge was that the Commissioner’s cursory reasons meant that the scope of the resulting Panel inquiry would be unclear.
The court held that the scope of the inquiry was clear. While the Commissioner did not expressly set it out, his reasons read as a whole and with regard to attachments and appendixes clearly established that the Panel would investigate the Incident, including the allegation that Judge Aitken’s actions were politically motivated. If that motivation were made out, this would suggest breach of constitutional convention that could certainly warrant removal from office.
Result
The court dismissed the application in its entirety and allowed interim orders restricting further action to lapse. Before the hearing, the Attorney-General recused herself from further involvement, as it had been her that referred the complaint to the Panel.
The acting Attorney-General, who is now responsible for the matter, convened a panel on 22 July 2025. The Panel is scheduled to hear the complaint in February 2026, and to report back to the Attorney-General with its recommendations by Easter 2026.
This decision sets a clear precedent about the limits of the Judicial Conduct Commissioner’s functions, which provides welcome clarity following earlier cases that developed the law in response to more complex facts.
For further information on this or similar cases please contact Director, Brigitte Morten.
