Twas under the cover of Christmas and the Supreme Court of New Zealand was stirring. Santa slipping down the chimney had nothing on all five judges quietly convening to consider their own motion to change law on public access to its court records. Not even a mouse had been notified.
The resultant 18 December edict in Greer v Smith “proposes” that New Zealand’s highest court will address public requests for court records according to “pre-1973” law. This new process means any administrative request to access the Supreme Court public record must be determined by a single Supreme Court judge, off-the-record, privately in chambers, with no right of appeal or review.
The judges were seeking to thwart a public-access web portal newzealandsupremecourt.co.nz set up to demonstrate the Court’s publicly-released dismissals were commonly not addressing the legal grounds appealed to it. Justice Willy Young (pictured) wrote the new edict on behalf of the unanimous full Court.
The Supremes’ nostalgic hark back to 43 Christmases legally past is not insignificant. Forty-three is the years needed to evade the public access-enabling legislation passed by Parliament in 1973 & 1974, the right to impart public information guaranteed by the New Zealand Bill of Rights Act 1990, the section 28(3) Supreme Court Act 2003 right of review and Section 3 of the Public Records Act 2005. These relevant laws – all of which conflict with the full Court’s negation of jurisdiction to review their privately-made orders – were not applied by the bench.
New Zealand’s unwritten Constitution prohibits Supreme Court judges from convening private court on their own motion to pass new law. This violates the separation of power doctrine which vests law-making powers only with the legislature and limits legal determinations by judges to matters placed before them by a legislative application process. Doing so without giving public notice or without allowing legal submissions raises further constitutional issues.
One upshot is Attorney-General Chris Finlayson has been formally notified of the Constitutional breaches and asked to support a Recall. The Cabinet Manual expressly places a remedial obligation on the top law-enforcement officer; “The Attorney-General has particular responsibility for maintaining the rule of law. 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.”
The cover story provided in the judgment indicates the five Supreme Court judges were mindful they were breaching the law. In an attempt to obscure their unilateral action, the judges recorded in their judgment that “Mr Siemer in person” appeared as counsel in the matter. In response Mr Siemer has provided an Affidavit confirming the Court provided no notice of its actions and allowed no submissions. The judges then proclaimed their action did nothing more than bring the process to access Supreme Court records in line with the legislatively established process at the High Court. Exactly equal – except for High Court decisions on access begin with the Registrar, get appealed to a judge, then appealed to the Court of Appeal and then appealed to the Supreme Court if a law has been violated. In contrast, the first stop chambers decision of a Supreme Court judge is the first, last and final word. To paraphrase George Orwell, “All courts are equal, but some courts are more equal than others.”
History suggests none of this is surprising. We actually know little of the judges who sit on our courts, there is no open vetting process to their appointments and the only accountability we did have was the result of the common law imperative they conduct court business in public, publicly record their rulings and give reasons for their rulings.
This latest concerted action by the Nation’s five highest judges will soon test the resolve of our farmers and teachers in Parliament who are routinely outmanoeuvred by the judicial oligarchy. How this plays out may definitively determine whether we have law-abiding courts worthy of our law-respecting culture.