Neil Sands
Former Attorney-General Judith Collins KC has revealed she tweaked judicial appointment protocols after Judge Ema Aitken’s Northern Club row and says she found it “quite extraordinary” that a disciplinary panel concluded Aitken did not understand the obligations comity imposes on a member of the bench.
Collins, who is leaving Parliament to become head of the Law Commission, also praised embattled Prime Minister Christopher Luxon’s leadership and defended the process for appointing King’s Counsel in the face of criticism from Lady Deborah Chambers KC.
Collins was among those who complained to the Judicial Conduct Commission about Aitken’s behaviour at the Northern Club in November 2024, when the District Court judge disrupted a NZ First fundraiser by shouting and calling party leader and Deputy Prime Minister Winston Peters a liar.
As a result, Collins stood aside as Attorney-General in the matter, which concluded with a finding from a Judicial Conduct Panel this month that Aitken’s actions on the night were “a serious breach of comity” but fell just short of warranting her removal from the bench.
Collins said she had no regrets about how she handled the case.
“I don’t think there’s anything I could have done differently,” she told LawNews in a wide-ranging exit interview this week. “If I hadn’t put a complaint in, having had a complaint made to me about it, I think that would have been a bad decision.”
She welcomed the panel’s detailed examination of comity – the ability of the three branches of government – the judiciary, executive and Parliament – to work together with mutual respect and restraint.
“I thought the report back was very thorough… One of the more concerning comments was that the panel found the judge didn’t really understand the obligations of comity, but that she could be taught that.
“I think that was quite extraordinary. I felt ‘wow, that says quite a lot really’. It really does show that comity goes both ways, as I keep saying, to the judiciary and to Parliament and to the Cabinet.”
Asked if the panel’s decision should be required reading for all members of the judiciary, she says: “I think they’ll all just want to read it. I don’t think they’ll need to be told,”
‘Privileged positions’
Aitken will remain a judge until her acting warrant expires in February next year, but Collins said the case had prompted her to improve screening before making such appointments.
“Following the Aitken matter, we changed the rules around it,” she said. “I changed my protocols to make sure that the Law Society was consulted about any complaints that they might have had, and [then] discussed them obviously with the judiciary.”
Collins said other factors not related to the Aitken case were also considered, such as “is this a judge who runs the court properly, or is there an issue there?”.
She also defended the process for appointing King’s Counsel, which was amended in 2019 to include a commitment to improving access to justice.
The relevant criterion reads: “A history of making a personal contribution to advancing better access to justice for those who need it, for example by undertaking criminal/civil legal aid work, supporting community-based law centres, or through honorary positions or pro bono work.”
In an opinion piece published last week, Chambers said this was “a serious distortion of what KC is for and it runs directly counter to the consumer-signal purpose of the rank”, arguing it should relate to excellence in the courtroom, not community work.
Collins said Chambers was entitled to her point of view, but she disagreed with it, adding: “I also know that there are plenty of other lawyers who don’t agree with it.
“Actually, I do think it’s part of our work as lawyers to undertake pro bono work, to undertake work for the community, because as lawyers, we’re in privileged positions,” she said.
Luxon ‘doing a great job’
Collins, who has seen her share of leadership contests in a political career spanning 24 years, backed Christopher Luxon amid rumblings over poor poll results, advising him to “just keep going”.
“He’s doing great job. I really, I really like working with him, and he’s let me get on and do my job,” she said.
“He hasn’t treated me like a threat, which is fantastic. He’s just made use of me. [I’ve done] everything I can do, and he’s been great to me. So from my point of view, I like the way it works, I like the way he gets on and does stuff, I like the fact he’s got a spine, he’s got the courage to do things that a lot of others wouldn’t.”
Lady Chambers’ piece on the rank of silk cannot be swept aside by the former AG merely saying she disagrees with her, and that notable others agree with the current system (a politician occupying a public office might be able to get away with side-stepping the issue in this manner, but this does not amount to a substantial and reasoned answer to Lady Chambers’ critique).
Lady Chambers critique of the system of appointment raised more than the point about taking into account pro bono or legal aid work. The appointment to rank signals to the public that this lawyer is one of excellence, and gives that lawyer a competitive advantage in the marketplace for legal services.
In my opinion, the system is archaic, and relies heavily on sponsorship and backdoor soundings; it lacks transparency and fairness to candidates. We need to move to a system that has a rigorous selection processes for candidates, such as the independent panel system in England and Wales (described as a ‘competition’, see https://kcappointments.org).
Is it any real surprise that the disciplinary panel didn’t find misconduct?
Same old same old, being the long-standing impression that lawyers look after lawyers (even / especially? when they become judges..).
Meaning the legal proffession looks after its own…