Few acts warrant greater public concern than when a government implements a general prohibition against access to public records. Even the seemingly best reasons over time prove not to hold up. As the 19th century American news publisher Joseph Pulitzer said more than once, “There is not a crime, there is not a dodge, there is not a trick, there is not a swindle, there is not a vice which does not live by secrecy.”
Two years ago last month, five permanent judges of the Supreme Court of New Zealand took away the power of their Registrar to allow public access to our highest Court’s files and rulings other than what they choose to publish on the court website. Not surprisingly, this judicial direction was not published and its existence has only been reported on this news site. More recently, Supreme Court Justice Mark O’Regan ruled by private Minute that formal Applications for Leave to the New Zealand Supreme Court are not part of the public court record.
O’Regan’s Minute has been appealed on four legal grounds, including the unlawfulness of private, unrecorded Minutes to dismiss interlocutory applications to the Supreme Court. The Supreme Court judges have yet to issue any decision.
In another private Minute last week, fellow Justice William Young loosely relied upon O’Regan’s Minute as authority to deny access to another file, before admitting some Supreme Court decisions are unrecorded. Young claimed three such decisions tucked away in the subject case file added nothing to the decisions which had been published. The judge still placed them off limits to the public.
Adding to these obvious alarm bells, petitioners for Supreme Court case information are routinely stiff-armed with the response they refer to the Supreme Court website.
Two separate judicial reviews of the Supreme Court Registrar’s own 2013 prohibition against record access – also by unpublished directive – have been summarily struck out by High Court judges on applications from the Registrar. Clifford J and Collins J concluded administrative decisions by staff of the Supreme Court are not judicially reviewable. Each judge ignored the ‘guarantee’ to judicial review provided by s27(2) of the New Zealand Bill of Rights Act 1990, relying instead on the 2006 Supreme Court ruling Marfart v Television New Zealand despite that ruling expressly refusing to consider this question in the first two sentences of the judgment.
Requests for Supreme Court record access must now be determined by Judges of the Supreme Court as interlocutory applications, immediately raising questions of standing, as well as putting applicants at risk of thousands of dollars in costs orders if they are unsuccessful.
Hardly surprising, applications for access to New Zealand’s highest court are rarely made. It is believed no request to date has been successful. Certainly no ruling has been publicly released.
This practice and result not only conflict with common law doctrines in democracies, it is in contrast to every other New Zealand Court – all legislatively bound by a public access prerogative.
Supreme Court Justice William Young’s Minute ordered SC46/2015 Creser v Creser off limits. His unpublished reason was the Applicant “has been categorised as being in abuse of process and I am reluctant to take any steps which might facilitate the broader dissemination of material which has been so categorised.” Really?! This included issuing three decisions off the record in an appeal which is understood to have relied upon evidence of a judicial conflict of interest by Justice Mark O’Regan which O’Regan had personally ordered could not be accepted for filing!
There is zero chance any of this will be reported by New Zealand mainstream media which, indicative of their actual focus, have yet to find a celebrity rumour not worthy of breaking headlines. As this story of secrecy at New Zealand’s highest court is posted, the New Zealand Herald is breaking the story of a “Hollywood superstar and womaniser reported to have HIV”. The Herald story offers no clue as to who this person may be other than “he’s a straight man”. This is sadly what passes for mainstream news in New Zealand.
It was kiwisfirst which broke the story of former Supreme Court Justice Bill Wilson’s conflict of interest in 2009, prompting emails between Justice Ted Thomas and former Bar President James Farmer which lamented the scandal could bring down the Chief Justice of the Supreme Court “if probed”. It never was. The Australian Judge (Murray Gleeson) who arrived amid much fanfare as the independent investigator was quietly sent home in the middle of the night and his expensive taxpayer-funded assessment has never been released. A lawyer close to the secret investigation revealed to kiwisfirst that Gleeson concluded Wilson was a product of an environment where judicial conflicts of interest were endemic. Wilson soon resigned with a $2 million payout and a lucrative pension on the proviso he not speak about his fellow judges.
But there is arguably a greater crime occurring than secret NZ Supreme Court files and cover-ups and the mainstream media’s inability to report it. It is the hypocrisy of the Supreme Court judges filing submissions to Parliament which repeatedly claim it is not only the public nature of their jobs but the “high visibility” of “the judicial process” which “impose an important discipline on judges and provide an effective protection against arbitrary or biased decisions.” This claim was in the Judges joint submissions dated 30 August 2012 in opposition to a proposed bill requiring them to register their pecuniary interests.
In respect to similar 2003 proposed legislation, every judge currently on the Supreme Court lodged opposition wherein they declared themselves already sufficiently accountable, audaciously declaring in light of their more recent actions, “The openness of the judicial process reduces the prospect of misconduct and of it going unremarked and unchecked. “Sunshine is the best disinfectant.””
New Zealand could sure use a ray of that sunshine now. Unfortunately, the sheep who read only the mainstream rags will never become educated as to these perverse practices driving the highest level of government let alone the unnerving hypocrisy of the judges integrally involved.