Judicial Recusal and Disclosure: Is a Register of Judges' Pecuniary Interests the Best Way to Enhance Freedom of Information?

Abstract

In response to allegations that former Supreme Court Justice Wilson made inadequate financial disclosure in the Saxmere litigation, the Register of Pecuniary Interests of Judges Bill (the Bill) was introduced to Parliament on 11 November 2010. If the Bill were passed, judges would be required to submit reports disclosing their pecuniary interests, which would be published in a public register. In March 2011, the Law Commission released an issues paper on the Bill, Towards a new courts act: a register of judges’ pecuniary interests? : review of the Judicature Act 1908 first issues paper (Law Commission Register of judges’ pecuniary interests issues paper). With a freedom of expression lens, this paper critiques and examines some of the issues discussed by the Law Commission. Freedom of expression and open access were clearly on the mind of the author of the Bill; the purpose of the Bill is to ensure judicial transparency and avoid conflicts of interest in the judicial role. This paper balances this public interest with two important competing interests, privacy and judicial independence, to consider whether the Bill should be enacted. The paper begins by outlining the purpose and provisions in the Bill. The author then asks whether the current law on judicial recusal and disclosure is sufficient. The approach taken in other jurisdictions is then briefly considered. The majority of the paper focuses on whether the register proposed in the Bill is desirable or necessary in New Zealand, by balancing freedom of expression against privacy and judicial independence. The author concludes that privacy and judicial independence are justified limits on freedom of expression, and proposes an alternative solution to a register.