While New Zealanders are getting their news from the celebrity gossip pages, a disconcerting evolution is occurring behind court doors. The few laws that govern and restrain the actions of New Zealand Judges, many of whom were largely unknown lawyers stealthily stalking the corridors of power a few years ago, have been eroded.
The advent may have been in 2010 when the nascent Supreme Court of New Zealand ruled by a 3-2 margin in Attorney General v Chapman that rights guaranteed by the New Zealand Bill of Rights Act 1990 were no longer enforceable against judges. At the time Rodney Harrison QC and Grant Illingworth QC announced to an applauding Human Rights Lawyer Association meeting at Auckland University that they would take the matter to the United Nations. Nothing happened.
Simultaneously there was the Public Records Act 2005 which required all branches of government to create and maintain accurate public records of their affairs. In March 2009, Ministry of Justice Counsel Jeff Orr asserted that judges were exempt – stating judges are governed by their own customs and “not by the requirements of any enactment (eg the Public Records Act, the Crimes Act 1961)”. Current Attorney-General Chris Finlayson, a member of the Justice and Electoral Select Committee at the time Orr claimed judges were above this law that pertained to them, was instrumental in getting the dichotomy of law and “judges above the law” off the agenda.
In Greer v Smith  all five judges of the Supreme Court of New Zealand convened privately, without submissions from government or public, to rule a single judge in their court can issue private judgments refusing access to public records at our highest court – and that such a private order was also unappealable. There was no lawful jurisdiction for the Supreme Court to convene and determine new law on their own motion and in private. This time not one lawyer in the Land of the Long White Shroud stood up publicly to say this was wrong.
Last month, the Official Information Act 1982 became the latest object of judicial exemption when the Ombudsman rejected an appeal against the Judicial Office for Higher Courts’ refusal to provide an “official agenda” for a taxpayer-paid judge retreat earlier this year on the ground, “The judicial conference agenda does not constitute ‘official information’ because it is held by the judiciary which is not subject to the OIA.”
More accurately, the judiciary are only exempt from such transparency in their judicial function. Taxpayer funded official agendas and judicial cocktail parties are not exempt. Not surprisingly, the Chief Ombudsman is retired Family Court Judge Peter Boshier who infamously was requested by National Party President Peter Goodfellow in 2010 to preside over his contested divorce from Libby Black-Goodfellow. The Chief Ombudsman upheld the denial of disclosure from the Judicial Office for High Courts which stated – “the judicial conference agenda is held by the Judicial Office for Higher Courts as the administrative support arm of the judiciary. We hold this information on behalf of the judiciary who are not subject to the Official Information Act.”
The exemption from law extends beyond our 61 High Court judges and 144 lower court judges. The Judicial Office for Higher Courts has 115 staff employees – all of whom are exempt from the Official Information Act because, according to Director Brigid Corcoran “Staff of the Judicial Office provide professional support services directly to the Chief Justice, to the Higher Courts heads of bench and to the wider judiciary. In so doing they report and are accountable to the judiciary.”
Then there is the Supreme Court Act 2003 which requires under section 16 that Supreme Court judges give reasons for refusals. The dirty secret that is uniquely New Zealand is many Supreme Court decisions are kept off the record, which is helpful in evading this law which pertains entirely to judges.
And those who challenge the off-record secrecy are shut out of the courts altogether.
Also last month the Supremes secretly ordered their Registrar not to accept any further recall applications from Wellington businessman Malcolm Rabson where they concern a court-appointed trustee (lawyer) ordered to pay Mr Rabson $1.3 million in December 2011. The Supreme Court order was in the form of an off-record private handwritten note – and clearly unlawful. The Judges’ appointee protected in the Rabson order has never paid out a cent of the $1.3 million, has not provided a set of accounts for 5 years and claims today to hold less than $158,000 after his fees. Mr Rabson, despite being a successful New Zealand businessman who has lived here all his life, naively raised the issue of the court-appointee’s close relationship with Supreme Court Justice Mark O’Regan and all hell broke loose to silence him. He has been ordered to pay Justice O’Regan’s mate thousands of dollars in court costs for challenging costs orders by O’Regan – first because Rabson did not seek recall from O’Regan, then because the injustice was “not of sufficient moment” and finally because the law did not prevent such unjust costs orders.
While none of this gets reported by the mainstream press, our saving grace in the end may prove to be that NZ judicial privilege and subterfuge are not playing abroad. New Zealand High Court Judge Lowell Goddard resigned under a cloud yesterday in her role as Chair of the United Kingdom’s Independent Inquiry into Institutional Child Abuse after it was disclosed she spent 3 months of her first year in the position abroad, failed to hear any evidence and claimed only last week to lack understanding of English law. Anyone who took the time to read Dame Lowell Goddard’s profile on this website at her appointment – and former UK Home Secretary and current Prime Minister Theresa May did so – would have seen the writing on the wall.