Judicial Watchdog Also Appointing Judges

Reality is commonly stranger than fiction when it comes to the insular and secret New Zealand court practices.  Its players appear ever determined to further blur the lines.

Enter Gavin Duffy; the man of many faces and even more conflicting government duties.  He appoints the judges and is manager of the office which holds them accountable.  Now that is efficiency!

In a system where appearances count more than substance, the Office of the Judicial Conduct Commissioner was New Zealand’s reaction in 2004 to the following United Nations Special Rapporteur report on one of New Zealand’s most notorious judges (Special Rapporteur E/CN.4/2000/61, 21 February 2000) “Judge (Josephine) Bouchier’s conduct is tantamount to her having interfered in the administration of criminal justice in the matter, resulting in the integrity of the judge being brought into question. The Special Rapporteur expresses surprise and concern over the fact that there is no procedure in New Zealand to discipline judges for such misconduct.”

Its geographical remoteness and small population generally keep New Zealand off the global radar of the United Nations.  That the UN even took notice of Bouchier, a mere NZ District Court Judge as removed from the world stage as a Justice of the Peace in the Australian Outback, was a bit surprising.

Creation of the judicial watchdog agency was only meant for show.  The first commissioner was senior partner of large law firm Kensington Swan.   Early on, some complainants to his office were asked to consider withdrawing their complaints.  The office had an initial budget which did not allow for a full-time staff member.  Its actions are by design secret, and exempt from Official Information Act inquiries.  It was only last month, after five years on the job as the second Commissioner, David Gascoigne decided it was no longer a good look for him to dismiss misconduct complaints against his former law-partners-turned-judges and judicial-mates.  His predecessor Ian Haynes routinely dismissed complaints against his judicial partners but, unlike Gascoigne, he would state in such decisions he considered this a requirement under the Act because there was no alternative to him personally rendering a decision.  For the first five years Gascoigne – senior partner of Minter Ellison – took the approach his conflicts need not be considered because the governing Act allowed him so little discretion in his rulings.  His actual bias therefore did not come into play.

The office has since received over 1,900 complaints, with only 3 (all concerning one judge’s act of conduct) recommended to be referred to an investigative panel.  That sole recommendation was overturned on judicial review, demonstrating the true effect if not the intent of this “watchdog” legislation.

Back to Mr (and future knight) Duffy.  He is “Manager” of this paper watchdog legislatively tasked with holding judges accountable for evil deeds.  When he is not Manager of the judicial watchdog, he is head of Statutory Appointments for the Ministry of Justice – in charge of appointing judges.

When contacted by kiwisfirst, Mr Duffy admitted his responsibility is “to oversee and assist” the Judicial Conduct Commissioner, for which he is paid under the separate budget of the Ministry of Justice.   He pointed to Section 6 of Schedule 2 of the Judicial Conduct Commissioner and Judicial Panel Act 2004 as the statutory underpinning to his apparent conflict of interest.

When asked last week how much the Ministry of Justice pays him to oversee the judicial watchdog, Mr Duffy opined such a request constituted an Official Information Act request which he would respond to within 20 working days.  Kiwisfirst responded with the additional request Mr Duffy include what portion of his Ministry of Justice salary is remuneration for his Statutory Appointments position within the Ministry.

Under Mr Duffy’s direction and oversight, a judge’s decision to sit on cases where he/she has a financial interest does not fall as misconduct under the watchdog’s jurisdiction notwithstanding this judicial conflict underpinning the only misconduct complaints referred to the Attorney General to date (all in relation to former Supreme Court Justice Bill Wilson ruling in favour of his business partner’s client).   Complaints of judges ruling in favour of their business associates and family are now dismissed by the Commissioner under section 8(2) of the Act which states, “It is not a function of the Commissioner to challenge or call into question the legality or correctness of any instruction, direction, order, judgment, or other decision given or made by a Judge in relation to any legal proceedings.”

This broad and revisionist interpretation of the governing Act insulates all types of judicial misconduct as it can hardly be suggested, let alone proven, that any act of judicial misconduct was not a willful decision the judge rightly or wrongly thought was theirs to make.  It is this irony that the Commissioner’s jurisdiction now falls, if at all, to inadvertent acts of judicial misconduct which increasingly has observers scratching their heads and lawyers avoiding the statutory scheme.

The above facts are widely known to the mainstream press in New Zealand who are in equal parts fearful of reporting or apathetic to what is occurring.  Perhaps this explains the ever more blatant nature of conflict of interests generally within the New Zealand courts structure.  Ultimately it is the absence of the distilling discipline which only the fourth estate is left to provide that allows such outlandish shams to be passed off as virtuous institutions of justice in New Zealand.