Those fearless advocates of the law have gone the way of wigs in the New Zealand courtroom, but the new breed replacing them present a risk to the rule of law itself.
Take, for example, the increasing practice of the New Zealand Supreme Court issuing statute-defeating decrees, with the obedient legal fraternity tripping over themselves to win favour by quickly endorsing the unreasoned and unsupported edicts.
How bad has the problem become? In March of this year, the Supreme Court decreed obiter in Siemer v Stiassny NZSC 11 that the direct right of review against chambers judgments of the Court of Appeal provided by s61A(2) of the Judicature Act 1908 does not apply to chambers judgments which order security for costs.
“Chambers judgments” are private rulings, commonly made by one judge without hearing. “Obiter” is the judicial equivalent of a flippant remark; legally accepted as not relevant to the decision in the judgment, as well as unreasoned. In this case, the Supreme Court was forced to admit the comment was obiter when it was challenged by recall application.
Nonetheless, this admission did not hamper the speed by which McGechan on Procedure (the lawyers’ practice and rule manual in New Zealand) and Crown Law endorsed the Supreme Court fiat as the law of the land. This was confirmed earlier this month in the Supreme Court leave hearing against a security order of Court of Appeal Justice White in Reekie v Attorney General SC47/2013, when the Crown Solicitor filed a Memorandum conceding the statute-whacking edict was obiter and unreasoned but still the law of the land because McGechan cited the decree and the Crown agreed with its unstated logic.
The rule of law affront goes beyond any one page unreasoned obiter edict being endorsed as the law of the land without any hearing or debate. In this case the Judicature Act passed by Parliament makes no distinction between chambers judgments ordering security for costs as defined by s61A(1) that, in turn, are reviewable under s61A(2). The Supreme Court edict therefore negated an evident statutory right of review enacted by Parliament. We can only guess the contrived distinction lies in security chambers judgments routinely endorsing the Registrar’s order that security must be paid even though such orders are perfunctory administrative decisions which cannot consider merits.
More vigilant societies than 21st century New Zealand have been duped by the Orwellian practice of retroactive chopping and changing the unassailable laws fixed to the barnyard door. Nazi Germany, and more recently Fiji and New Zealand, understood the importance of controlling criticism of authority to ensure the smooth erosion of laws. A proactive independent bar and a vigilant free press have long been considered the greatest threats to governments abusing rule of law principles and civil rights. On this, it is telling in NZ that (1) Attorney General Chris Finlayson publicly lambasted New Zealand’s most senior Queen’s Counsel Tony Molloy for criticising the general poor quality of judicial decisions in New Zealand – comparing the distinguished Dr. Molloy to a “vexatious litigant” and demanding Molloy relinquish his queen’s-counselship if he could not talk nice – with the dutiful Law Society fining Molloy $1,000 for the pre-eminent jurist’s public service, then (2) the NZ press dutifully reported the episode as if the junior and political Finlayson had disciplined an impetuous child.
In its “National Integrity System Assessment” this year, the New Zealand government-funded Transparency International chapter found “The judiciary meet high standards of independence, integrity and accountability” based upon “interviews with the Chief Justice, President of the NZ Bar Association and the New Zealand Law Society Chief Executive”, proving opinions from the fox – with chicken feathers in his teeth – as to the safety of the hen house he is guarding are to be accepted by the gullible public. Remember it was only in 2010 that former Bar President James Farmer attempted to quell the Justice Bill Wilson scandal which he opined in a private email to Sir Edmund Thomas could “bring down the Chief Justice if probed”, unapologetically stating he put loyalty to the Chief Justice before any interests in the legal system of New Zealand!
The NZ legal fraternity have always been the bastion of genteel subservience to authority. However, particularly in recent years the Law Society has cracked down on lawyers critical of the system – the symptom or result being the law evolved to where defamation damage awards now eclipse those of other torts. Assault, misfeasance and false imprisonment rarely get more than $10,000, while defamation awards get 25 times that amount. Perhaps worse, defendants accused of defamation routinely are denied the right to defend themselves.
Lawyers in New Zealand have done the career assessments. Barrister Evgeny Orlov was struck off last month for criticising Justice Rhys Harrison as racist. Fair enough, until one looks at the evidence that other lawyers have made similar allegations about Harrison and Orlov had evidence to support his claim, but the tribunal hanging him by a 4 to 1 vote refused to consider his defence of truth or fair comment.
For the last two years, Chief High Court Justice Helen Winkelmann has shown an unhealthy interest in prodding the Law Society into briefing her on their investigation of Dr Frank Deliu for criticising her predecessor Anthony Randerson J. Three officers of the Law Society (John Marshall, Jonathan Temm and Mary Olivier) have obediently briefed Her Chiefness over this period notwithstanding statutory requirements of confidentiality governing their investigations.
The New Zealand legal society considers its mission is to cover up judicial misconduct. They largely believe the propaganda that PM John Key has stated publicly; that exposing judicial corruption will cause the public to lose faith in the judiciary. And the mainstream press have stopped trying to report it because these stories never make it past the press lawyers. The sad reality is the sheepish lawyers and sheepish press make us all sheep through policies which characterise useful criticism of corruption as merely vexatious. Our collective intelligence is defined by that which we are not allowed to know. It is the true cost of New Zealand leading the world in freedom to express uncontroversial views.