Judge Ema Aitken loses case to stop panel looking at her conduct at NZ First event

Wednesday, 30 April 2025

An Auckland District Court judge has lost an attempt to stop the appointment of a special panel to look into her conduct at a social function where New Zealand First leader Winston Peters was speaking.

If the allegations made against Judge Ema Aitken were found to have happened, then that was potentially a breach of the constitutional convention that judges should stay out of the political fray.

It was now for Acting Attorney-General Paul Goldsmith to decide if he accepts a recommendation to appoint a Judicial Conduct Panel to investigate her conduct.

The appointment of a panel kicks off a process that could lead to a judge’s removal.

Aitken had been attending a social function for judges at a different part of the private Northern Club on November 22 when it was alleged she “gatecrashed” the New Zealand First function.

The judge has denied raising her voice while Deputy Prime Minister Winston Peters was speaking, what she said, or trying to enter the function room at the club, or even if she knew it was a New Zealand First party function.

But party secretary Holly Howard gave an account to the club that an “older female” passing the function overheard a snippet of Peters’ speech and loudly told Howard, “He’s lying! How can you let him say that?”.

She said the woman tried to enter the function room and made a scene.

But the judge’s own account was that the incident was momentary and accidental, and she had not known at the time that Peters was the speaker, and not until much later that it was a New Zealand First function.

She said she heard words to the effect, that law schools were now teaching that tikanga Māori overrode the Westminster system.

In an account to the conduct commissioner she said she only mouthed the words, “that’s not true” to a single guest seated nearby, who she later realised was MP and a minister in the coalition government, Casey Costello.

Atiken said she also said in a normal speaking voice, words to the effect that it was not true and was misinformation.

Aitken agreed she had said there was a room full of judges nearby, although she said it was in the context that they might take a different view of what the speaker had said, but Howard said the woman had been aggressive and threatening when she said the other judges would be interested to hear about it.

On the day The Post published an article about Howard’s account the judicial commissioner started his own preliminary investigation, and asked Aitken for a response.

Aitken asked the High Court to review the process leading to the recommendation that a Judicial Conduct Panel be appointed to look at her behaviour.

In a High Court decision issued on Wednesday her challenge to the recommendation to appoint a panel was dismissed.

She had alleged four errors in the process, and Justice Andru Isac found none were made out.

He considered that the decision was reasonably open to the Judicial Conduct Commissioner and that the reasons were brief, but the decision did not contain any material errors.

Other alleged errors had been not setting out a legal standard to consider her conduct against, that the circumstances were not inquired into enough for the commissioner to form an opinion, and that the commissioner had not identified the scope of any eventual panel inquiry.

Aitken said if the commissioner was told to look into the circumstances further it might remove the “political dimension”, and the recommendation for a conduct panel to be appointed, Justice Isac’s decision said.

He had been told there was a stark factual dispute about what she did.

Justice Isac said the commissioner’s role was not to decide what happened. That was for a conduct panel, if one was appointed.

Having received a plausible allegation, and Aitken’s account disputing aspects of it, the only reasonable decision was to recommend consideration of appointment of a conduct panel, he said.

When the incident became known, Attorney-General Judith Collins referred it to the Judicial Conduct Commissioner. She then stepped aside, leading to Goldsmith’s involvement.

The commissioner also had a report that the club commissioned which gave the account from Holly Howard.

The commissioner’s recommendation to set up a conduct panel was on hold while Aitken’s challenge to the recommendation was before the court, and that continued for 48 hours after Justice Isac gave his decision, unless renewed.

Aitken personally apologised to New Zealand First for her comments, which she said had been rude, uncalled for and inappropriate. Chief District Court Judge Heemi Taumaunu also apologised on behalf of the District Court.

Justice Isac rejected a suggestion that the commissioner should have said he excluded consideration of the actions of Aitken’s partner, intensive care specialist David Galler, and a King’s Counsel also at the judge’s event, Michael Reed, who were alleged to have separately visited the New Zealand First event.

It did not need to be stated to be excluded from the scope of his reference in his recommendation because it was not an allegation made against the judge, Justice Isac said.