Yale Lawyer Exposes Justice Ministry Flaws

Barrister Colin Henry

In the ongoing saga of “If Only The New Zealand Public Had Access To Ministry of Justice Documents”, New Zealand barrister Colin Henry is trying to peel away the shroud that obscures the nation’s justice system and bureaucracy.

In the judicial review proceeding, Henry v Minister of Justice and Attorney-General CIV2018 404 1898, Colin Henry, JD is asking a High Court judge to rule the Minister of Justice acted improperly when attempting to fill the Race Relations Commissioner post the middle of last year. Multiple grounds are listed in the claim.

Mr Henry is a senior lawyer who has practised in New Zealand and the United States and has argued successfully before the United Kingdom Privy Council.

High Court Judge Sally Fitzgerald, in August 2018 refused Mr Henry’s application for an order restraining the Minister from filling the post of NZ Race Relations Commissioner pending judicial review. Mr Henry is one of 34 applicants told they remained under consideration pending a re-advertising of the position and consideration by a selection panel – only to be told soon after they had already been ruled out before the selection panel convened.

The government had vowed the selection process would be transparent after many recent appointments shrouded by secrecy smacked of cronyism. The last Race Relations Commissioner, appointed in 2013, was Susan Devoy, a world champion squash player with no experience in race relations or law. In 2011, David Rutherford was appointed Chief Human Rights Commissioner for New Zealand despite his entire employment history being focused on “sports law and acquisitions”. Mr Rutherford spent the first two years of his seven years tenure unabashedly apologising for not having a grasp on human rights generally.

Henry’s judicial review and prior efforts have so far been unable to find out the reasons why he was not short-listed for the post. In the judicial review the Ministry have admitted the selection panel kept no records of its activities – a seeming violation of ss 3 &17 of the Public Records Act 2005.
Judicial review – a statutory check against errant government procedure – is considered so important that s27(2) of The New Zealand Bill of Rights Act 1990 provides that this right (in conjunction with s6 of the same Act) must be applied by judges over other laws in any balancing exercise.

Since Mr Henry’s application, the Ministry of Justice Chief Legal Counsel Jeffrey Orr has provided an affidavit stating that unfortunate events converged to create only an appearance that the selection process was not the genuine or transparent process the government had vowed to adhere to. According to the affidavit, despite the Justice Minister’s lapse in re-advertising the position after 36 applicants responded, the selection process had achieved its goal of finding two suitable candidates within the first advertisement deadline. A later affidavit described the two shortlisted candidates only as “academics who identify as Maoris”.

Mr Orr’s tenure as Chief Counsel has been marred by repeated attempts to prevent transparency required by statute. In 2007 Mr Orr wrote his legal opinion that judges are not required to keep complete and accurate records as expressly required of them under the Public Records Act 2005; that their conduct in this regard is governed by “court custom”. Mr Orr has routinely kept official complaints and criminal offending by judicial officers secret on the basis their rights to privacy outweighs any public interest – as the New Zealand Herald reported with respect to the conduct of 18 Justices of the Peace in 2016.

Meanwhile the Race Relations Commissioner post has not been filled. An affidavit filed two weeks ago by another Ministry official states that the Ministry of Justice is planning to re-advertise for the post of Race Relations Commissioner despite its claim last year that two applicants had been short-listed for selection in July. And the post was re-advertised this past Friday.

Thursday of last week Mr Henry appeared before Justice Sally Fitzgerald for a final scheduling check ahead of a planned 27 March 2019 substantive hearing. The Attorney-General unsuccessfully attempted to raise an application out of time to strike out one of Mr Henry’s affidavits on grounds the information it contained was irrelevant and scandalous. Fitzgerald J suggested to Counsel for the Ministry, Rosslyn Warren, that her application was unnecessary and agreed with Mr Henry that the Ministry needed to address his requested interrogatories but later that day issued a Minute reversing the facts on both, stating that the Ministry had “agreed” to answer some of the interrogatories.

The drama is set to continue 27 March 2019 in the Auckland High Court.