The most prolific litigant in New Zealand is also the sole appointer of New Zealand judges and his touch is having a profound effect on the nation’s jurisprudence.
The New Zealand Attorney-General appoints every judge in a secret process which recommends he consult with the Chief Justice of the Supreme Court but notably entails no public vetting or confirmation and no public record of his/her considerations.
Since 2008, that person has been Attorney-General Chris Finlayson (pictured).
The upshot is Mr Finlayson has personally appointed all but one of the current Supreme Court judges (sans Sian Elias CJ), all of the 10 Court of Appeal judges and 33 of the 46 High Court judges. By any measure it is an unprecedented concentration of power for any democracy.
We tend to believe that Finlayson does a good job of selecting judges from what often is joked about as the least honourable profession because we do not see New Zealand judges committing crimes and being hauled off to prison. But the reason we do not see this is not because NZ judges are largely honourable law abiding citizens. Indeed two of our highest Court (i.e. Supreme Court) judges are generally accepted to have acted criminally as lawyers. As a Serious Fraud Office lawyer, William Young J collected $42,000 from his cousin John Austen to derail the criminal fraud prosecution against him as Chairman of Fortex. Austen’s fellow directors were convicted. Terrence Arnold J was guilty of evidence tampering as Solicitor General in ‘the Berryman Bridge case’ but he escaped criminal prosecution after Special Crown Counsel John Pike ruled it was “not in the public interest” to do so.
Then there is the culture of court secrecy and pressure against media reporting which has hidden a plethora of judicial back hands and feather-nesting. After Supreme Court Justice Bill Wilson (Finlayson’s former mentor at Bell Gully) was forced to resign in 2010 after it became public the judge ruled in a case where he owed appearing counsel Alan Galbraith $243,000, former NZ Bar Association President James Farmer QC tried to quell the scandal by warning retired Justice Ted Thomas in a July 2009 email exchange that any inquiry into Wilson “could bring down the Chief Justice if probed”. Farmer implored silence on the basis the Chief Justice was his friend. In a public display of an impartial investigation, the NZ government hired retired Chief Justice of the High Court of Australia to give a legal report, only to send him home packing in the middle of the night when Gleeson presented his brief which found judicial conflicts were an endemic problem in New Zealand. Chief Justice Gleeson’s report has never been released.
Because a wall of silence and media oppression hide offending by NZ judges we tend only to see the unfitness of our judges when their services are exported. Last year we saw this with Dame Lowell Goddard who despite being lauded by the State propaganda machine as New Zealand’s premier judge and human rights advocate was roundly exposed for her racist remarks and gross ineptitude as fleeting chair of the United Kingdom’s Independent Inquiry into Child Sexual Abuse. In that role Goddard had not conducted a single hearing after more than a year on the job and was still admitting to staff she did not understand the law or even her own authority as Chair when she turned in her resignation days before being sacked.
One lawyer has commented the system is diabolical in that litigants routinely parade into New Zealand courtrooms having no clue the judge they are appearing before is a stakeholder in the opposing business or married to the opposing litigant’s cousin. All made possible because judges in New Zealand have no legal obligation to disclose their personal and financial ties.
Given the culture of secrecy and unaccountability it is not surprising A-G Finlayson is a defendant in two judicial reviews this year for not reporting to Cabinet on breaches of existing law by Supreme Court judges as he is required to do by clause 4.3 of the Cabinet Manual 2008, which directs “The Attorney-General has a responsibility to notify Cabinet of any proposals or government actions that do not comply with existing law and to propose action to remedy such matters.” In each case the Attorney-General has refused to file a defence, seeking strike out instead on the ground “the judiciary are not government, but independent of government”.
The first judicial review has to do with all five judges meeting ex-parte and off the record in December 2015 and then issuing a judgment which set down new limits on public access to Supreme Court records. The new legal ruling was issued under the auspices of a previously concluded appeal Greer v Smith, and the judges gave no notice or allowed any submissions on this issue which was not placed before any court. The judges ruled unanimously that public access can be denied to any court record by any one of its members and such denials are unappealable. The second is in respect to the escalating practice of Supreme Court judges issuing secret rulings off the court record.
As with the Supreme Court’s contravention of legislation passed back in 1973 and 1974 which requires court Registrar’s make court records publicly accessible, Finlayson has refused to even say whether or not he agrees secret orders issued by judges of our highest court are unlawful.