Gary Judd KC
I am pleased that, with limited exceptions, the practice of court‑initiated karakia appears to have been discontinued. I previously raised this issue in correspondence with the Chief Justice Dame Helen Winkelmann, describing the proposal as a serious departure from judicial neutrality, inconsistent with the New Zealand Bill of Rights Act and the rule of law.
In her reply of 16 May 2025, the Chief Justice observed that guidance in the District Court and Senior Courts Bench Books permits karakia where initiated by the parties, subject to judicial discretion, and does not contemplate court‑initiated karakia. The Senior Courts Bench Book further requires that the views of counsel be sought before allowing such a request, and corresponding amendments were to be recommended for the District Court Bench Book. In specialist courts, such as Rangatahi Courts, karakia are more commonly used, but judges are directed to ensure that participation is not compelled.
While this guidance goes some way toward recognising the importance of judicial neutrality—particularly in rejecting court‑initiated karakia—I have questioned whether it goes far enough.
Prompted by recent events, including the Judicial Conduct Commission’s examination of allegations relating to an incident at the Northern Club involving Judge Ema Aitken, I now examine the issue more closely.
‘Unacceptable pressure’
In my view, all forms of actual or apparent partiality must be eliminated. True neutrality requires that neither judges nor court officials participate in karakia. Consent by counsel does not cure institutional partiality. Any participation by the judicial branch creates the appearance of a non‑neutral institution and places counsel in a difficult position, where refusal may be perceived as risking adverse consequences for their clients. That is an unacceptable pressure.
Although the karakia issue concerns in‑court conduct and the Northern Club incident arose outside court, both raise questions about the appearance of partiality in matters of belief, conscience, or opinion. While judges, as private individuals, enjoy freedom of expression, the judiciary as an institution must remain impartial. Institutional neutrality is not optional.
These issues should be addressed on principled grounds. The relevant principles are readily found in the judicial oath, now set out in s 18 of the Oaths and Declarations Act 1957. The oath requires a judge to serve “according to law” and to do right to all manner of people “without fear or favour, affection or ill will.” Its lineage can be traced back to the appointment of New Zealand’s first Chief Justice in 1841, and its substance has remained materially unchanged.
Judicial oath
Several principles emerge clearly.
First, the oath anchors judicial duty in law, not belief. Judicial authority derives exclusively from fidelity to law. Any practice that appears to introduce cultural, spiritual, or ideological commitments into the exercise of judicial power risks undermining that foundation.
Secondly, impartiality is absolute. The oath does not recognise acceptable forms of partiality; it rejects all of them. Good intentions, widespread support, or contextual justifications cannot dilute this standard.
Thirdly, neutrality is institutional rather than personal. The oath speaks to conduct in office, not private belief. Institutional neutrality cannot be waived by agreement of counsel or parties. The appearance of neutrality is as important as its reality.
Fourthly, the obligation to do justice to “all manner of people” requires vigilance against structural coercion. Practices that implicitly pressure participation or discourage dissent are inconsistent with that obligation, even where formal consent is obtained.
Although the oath includes an appeal to God, the 1957 Act expressly accommodates pluralism by permitting affirmations or alternative forms of oath. Importantly, the law does so by limiting religious expression to the individual judge when assuming office, not by incorporating belief into institutional practice. Pluralism is respected through the withdrawal of compulsion, not through the endorsement of belief.
Recent developments in therapeutic or values‑based approaches to justice may be well‑intentioned, but they raise a fundamental question: are such practices compatible with the judicial function? If they require judges to assume roles inconsistent with the office of judge, safeguards must exist to preserve the neutrality of that office.
Applying these principles, karakia and similar practices have no place in the judicial process. As for public commentary on political issues, such as that allegedly arising from the Northern Club incident, their compatibility with judicial office is a matter for the Judicial Conduct Panel. The principles outlined above will inevitably inform that assessment.
The same could be said about partiality in the NZ Police, by adorning their police cars with Maori, Pasifika, and rainbow flag artwork. Same applies to the NZ Police including the rainbow flag prominently in their emails on equal standing alongside the NZ Police crest, or participating in parades and events of selected groups.
When was the last time you saw a police officer dancing or singing in uniform at a Christian event or see Celtic knot artwork on a police car?
Who within the NZ Police gets to decide which groups get support, and why are all police officers forced by association to be seen as supporting such groups and ideologies or silenced from supporting other groups? What is acceptable support and what is not? If a rainbow flag is permissible on equal standing with the NZ Police crest, why can’t police members chose instead to sign emails off with the flag of the United Tribes of New Zealand, a Palestine or Israeli flag, or the Gadsden flag?
This conduct by police creates at least an appearance of partiality by endorsing groups of the community and giving tacit support for its members and ideologies, which may clash with the views of different groups or members of the community.
It is partial preference that can give rise to doubts about the independence and objectivity of police in enforcing the law. An example may be the lack of police action at the Posie Parker incident, where people peacefully gathering were confronted and unlawfully intimidated by some members of the “counter-protest”, and yet police basically did nothing on the day or subsequently by prosecution of intimidation that was clearly recorded on video.
The irony of course, much to their credit, is that Auckland Pride slammed the rainbow police cars as being a PR stunt. That is exactly what it is – political correctness and virtue signalling so that the NZ Police can feel special and on the “right side” of community thinking.
The Auckland Pride comments highlight that none of us need preferential treatment or endorsement by police, and we sure don’t need police making what are undoubtedly political statements.
We just need equal treatment and respect, and for police to abide by their oath in s 22 of the Police Act to serve ” without favour or affection, malice or ill-will”.
So if I understand Mr Judd’s position, it is acceptable to make an oath or affirmation which requires either a belief in God, or a conscious decision that you don’t want to embellish your oath with reference to religious elements. Similarly, when you enter judicial office you have to make that decision. Giving evidence which is false is an offence because you have sworn or affirmed to tell the truth. Again there is a religious element, or a choice not to include the religious element. A karakia may have a religious element but as I am sure Mr Judd knows, may also be a secular invocation. It is a ceremonial addition to a court ceremony, which has many other ceremonial elements. But I fail to understand why the use of a karakia indicates bias or is a political comment. These days I practice in a jurisdiction where it is common to have a prayer of a religious nature, and I have not detected any bias in the judicial decisions caused by the use.