Stasi law society

Frank Deliu exposes Judicial Conduct Commissioner

Omens of threat to an ordered society, perceived or real, can provoke the most sensible citizens to willingly forfeit their freedoms.  After 9-11, Americans paradoxically clamoured for new laws which limited their right to assembly and freedom from search and surveillance.  To those who protested, the suspicion mounted over what they had to hide.  Few things give more power to an autocracy than a war against a vague threat, and the gullibility of the masses escapes notice of few prone to abuse public trust of power.

In New Zealand, so long as the buses run on schedule and crime was well hidden, people had no reason to complain the government was becoming more secretive and corrupt.  But despite this apathy, and investigative journalism in NZ years long ago suffering the same fate as the Moa, scandals each week are popping up in this country with the population of Toronto.  It is proving impossible not to recognise New Zealand has a corruption problem despite the cultural taboo against exposing misfeasance by powerful individuals.

While politicians are increasingly outed for apparent corruption, there remains a disparity between their treatment by the island nation’s press and the stalwart bureaucrats who are much better placed to threaten and cajole. While Justice Minister Judith Collins’ statements are being spell-checked by journos concerning who she had dinner with in China, a virtual feeding frenzy of corruption plays out each day within the Justice Ministry. Ironically, Ms Collins was making an effort to lift the veil of secrecy shrouding many judicial acts prior to her recent tribulations.

One man who is trying to help Kiwis get a grip on the disparity is Auckland barrister Frank Deliu (pictured). He famously won a High Court review which exposed the Judicial Conduct Commissioner for sitting on complaints of judicial misconduct and has been keeping the government busy responding to United Nations human rights complaints. Last week he exposed the National Standards Committee Secretary of the New Zealand Law Society for unlawfully answering private inquiries from the Chief High Court Judge concerning an investigation another judge asked the NZLS to conduct into Dr Deliu for complaining about a third judge. In New Zealand, such charades are demonstrative of our unique brand of ‘judicial independence’.

Though the NZLS could not dispute the evidence Secretary Mary Ollivier had acted unlawfully, they did their best by neither confirming nor denying the charges in a “decision” which merely stated the Society decided “to take no further action in respect to the complaint”. This is but one similarity the NZLS has with Stasi, the official state security service of the former East Germany. Another is the evidence which shows the NZLS is being used by judges as a hit squad to exact disguised punishment against their critics, with both the judges and the NZLS officials acting unlawfully (e.g. disclosure revealed that Ms Ollivier was one of four NZLS officials Chief High Court Judge Helen Winkelman sought ex parte communications with).

The person in charge of professional legal standards being found to have acted unlawfully would be news in any law respecting country but it is doubtful you could find news of it anywhere but on kiwisfirst.

More ominous threats exist within this secret regime. Earlier this year, in what many labelled a show trial staged by the NZLS – and which virtually no lawyers criticised – Barrister Evgeny Orlov was disbarred over an infamous row he had with then-high Court Judge Rhys Harrison. Harrison’s errant denigration of Orlov was accepted as judicial comment. Orlov’s criticisms of Harrison, which four witnesses sought to support but the tribunal refused to consider, were sufficient for the tribunal to pass sentence of economic capital punishment. Despite the high stakes, the judge was not allowed to be questioned and the tribunal’s witness stated she could not remember whether the judge was disrespectful to Orlov but her memory is she likely would have remembered if he had been.

The lay member on the panel dissented from the decision.

The tactics leading up to the trial were perhaps more suspect. Discovery revealed the NZLS had been trolling this website from at least December 2010 for information to open files on lawyers and even lay persons who were exposing actions of the New Zealand court system and Attorney General. Considering Attorney-General Finlayson preaches to lawyers who will listen that kiwisfirst publications are false and defamatory, the NZLS’s reliance on kiwisfirst publications is, in the least, baffling.

One upshot of the New Zealand regime is Judge Winkelmann’s misconduct will never be questioned because exposing misdeeds by judges in New Zealand results in Stalinesque charges against the whistleblowing-lawyer for bringing the judiciary into disrepute. No media lawyer will approve their organisation run such allegations and evidence for fear of exposing themselves to attack as well as their employer. In 2010, emails briefly surfaced between former President of the New Zealand Bar Association James Farmer and retired Court of Appeal Judge Ted Thomas revealing an attempt to quell the conflict of interest scandal surrounding Supreme Court Justice Bill Wilson at the time because of fear the scandal “could bring down (the Chief Justice of the Supreme Court) if probed”. Despite these men certainly being in a position to know what constituted a legitimate threat to bring down the Chief Justice, no probe occurred and nothing more was reported.

NZ Judges routinely issue judgments which declare judges must be exempt from the law in order to maintain their independence – as Justice Kit Toogood ruled in 2012 in granting the Judicial Conduct Commissioner’s application striking out a judicial review against the Commissioner’s refusal to conduct a preliminary examination of a judicial misconduct complaint. While Section 15 of the Judicial Conduct Commissioner and Judicial Panel Act states the Commissioner “must” do so, Toogood declared the purpose of the Act was to protect judicial independence, concluding the Commissioner’s reading of a complaint amounts to a preliminary examination despite the Commissioner ruling he would not conduct a preliminary examination.

Lawyers who care about what is happening are afraid to state the obvious in public; “An independent judiciary is one thing, while a wilful, capricious, unprincipled and tyrannical judiciary is another”, as Australian High Court Justice Dyson Heydon brilliantly imparted to a NZLS seminar in 2008.

It should not be surprising that NZ Judges interpret laws in a manner most beneficial to their interests. But it is safe to state that when the President of the NZ Bar Association seeks to cover up judicial misconduct, the Law Society acts on private requests of judges to “prosecute on its own motion” because the lawyer dared to lay a complaint against a fellow judge, and the press fails to report it, the rule of law is being lost. A vigilant, intrepid press and a vibrant independent bar have always been essential protections against despotism by judicial officers in law-respecting democracies. New Zealand jurists have turned this historical lesson on its head, put lipstick on the ass and show no mercy for citizens who refuse to kiss it.