Will The Last Independent Judge In New Zealand Please Turn Out The Lights
Kiwis often make excuses for parochialism. Where we find a bureaucrat has given a lucrative construction contract to her brother-in-law or a judge rules in favour of his business partner we rationalise it as something to be expected in New Zealand because we are only 4 million people. When apparent conflicts occur, bureaucrats and judges tell us it is merely coincidence – that they are professional enough to put such conflicts aside in reaching the proper decision. We believe them or simply do not care. Inevitably, the envelope gets pushed futher and further, until the law itself favours what is unlawful almost anywhere else in the world.
The “impartial and informed observer” no longer exists in New Zealand as a standard for analysing judicial conflicts of interest. In a 2007 case, Justice Paul Heath dismissed his extensive financial conflict with a party he ruled in favour of by stating ” I have never been to his house, nor has he been to mine”. Sir Hugh Williams used to brag to his mistress that he dealt with parties challenging his conflicts by claiming ignorance of the alleged relationship and then punishing them in his judgment for having the audacity to raise the issue. In one such case, according to his former mistress, Sir Hugh – current president of the Electoral Commission – had a robust laugh out of ruling in favour of the maid of honour at his wedding after stating he did not know the woman when asked by opposing counsel of any conflict the judge had (something few lawyers in New Zealand have the backbone to ask).
Recently, in a judicial review of the Judicial Conduct Commissioner brought by lawyers Clive Bradbury and Greg Muir for dismissing a conflict of interest complaint against Judge Geoffrey Venning, Justice Lowell Goddard dismissed the review as an “abuse of process” even though Venning had admitted to being an active director of a competing forestry scheme to the one at issue before him.
Judges are appointed in New Zealand with the expressed understanding that they conceal each others conflicts on the perverse belief that to not do so could weaken public confidence in the judiciary. In short, we are not hurt by what we do not know. One problem with this is it acts as an encouragement for all judges to break the law.
This perhaps explains why NZ judges are a tighter group than the Mongrel Mob. Appeals which challenge judicial bias or conflict are universally dismissed, commonly with harsh criticism against the party bringing the challenge. And if the judiciary is not a gang in the common sense of the word, how can it be explained that judges never abstain let alone dissent when it comes to lobbying Parliament to pass or not pass laws. More than 200 judges are currently behind submissions to the Justice and Electoral Select Committee demanding Parliament not pass the Pecuniary Register of Interests of Judges Bill – a bill, if passed, which would require judges to register their business and financial interests. Ten years ago all the judges made submissions challenging the Judicial Matters Bill, stating, “The protection for judicial independence, which underpins the rule of law and which has been a feature of our legal tradition since 1701, must not be undermined.”
Apparently, ‘judicial independence’ does not include independence from each other.
We have a new meaning for ‘independent’ in New Zealand and, while this meaning conflicts with the legal definition, it is the constant rallying cry of our 205 judges. According to our judges, they are being abused by Parliament and the public. The only allies helping to preserve their independence is the powerful Rules Committee and the New Zealand Law Society. The truth is most judicial appointments emanate from the Law Society proving ground where lawyers demonstrate first their commitment to judicial discretion and secrecy, as well as actively target and then prosecute lawyers who criticise court corruption. This explains a lot.
The public are increasingly standing up against such nonsense, even where lawyers are fearful to do so. The University of Otago is currently conducting a study to determine why there has been an explosion in recent years of lay litigants. The answer could be as obvious as why pay a lawyer to argue law which does not matter when it is more important to have a relationship with a judge. What is certain is the Courts’ response has been to issue increasing numbers of secret judgments and suppression orders when common sense suggests public rulings would be the best way to put these lay litigants in their place if they are truly wrong.