Recent revelations as to the non-transparent and, frankly, farcical nature in which complaints against judges are dealt with by the only oversight body for judicial abuses are finally being exposed.
Last week, the Office of the Judicial Conduct Commissioner anonymised and then effectively dismissed five complaints against two heads of bench - Chief District Court Judge Heemi Taumaunu Principal Family Court Judge JJ Moran in a rare case that made media headlines. The judges stood accused of attempting to coerce a judge in a child care case to soft-pedal questions to Oranga Tamariki (formerly Child Youth and Family) witnesses.
The JCC referred the complaints to Chief Justice Winkelmann despite the Chief Justice being on record of attempting to similarly influence the same trial judge! In his referral of the complaints to the CJ, the JCC stated, “I have confidence that (the Chief Justice) will ensure that the whole of the circumstances will be subject to appropriate scrutiny not just by her but by the judiciary as a whole so that there is a prospect of these crucial issues of judicial independence being fully understood at all levels.”
The witness in the complaint, Judge Callinicos, was not contacted by the JCC despite the JCC seeking views from the two judges complained about.
Meanwhile, Judge Callinicos has said he has been contacted by 60 fellow judges to express their support. The truly scary aspect of this is none of these judges have spoken up publicly.
This spotlight occurs at the same time the JCC is refusing to disclose the identity of the only judge whose conduct he found may warrant “inquiry” by a Judicial Conduct Panel in 12 years. Yes, the Judicial Conduct Commissioner claims no powers to conduct any inquiry into judicial misconduct.
The JCC has been assisted in his abdication of oversight by Court of Appeal President Stephen Kos who, in 2013, ruled the JCC has no power “to make merit determinations on judicial misconduct” and can only “recommend a Judicial Conduct Panel be appointed by the Attorney-General to inquire into any matter concerning the conduct of a Judge.”
During this 12 year famine of judicial accountability, the JCC dismissed over 2,000 misconduct complaints against judges.
Couple this with judges conducting court business in secrecy; a ubiquitous practice that is quickly becoming institutionalised. Under the public radar a significant percentage of Supreme Court rulings are being suppressed, often with no reasoning other than suppression has become the Court’s practice. When pressed, and the judges don’t consider it beneath them to respond, “fair trial rights” is broadly thrown out as justification. This despite the “fair trials” commonly occurring three courts below at the District Court and the Supreme Court’s oft-spoken refrain that it does not second guess or interject itself into factual considerations at the trial level.
Last year, the Supreme Court upped its powers of suppression to include concealing the fact a judgment has been issued. In September 2020, the Supreme Court created new private prosecution law in S & M v Vector SC58/2019. In doing so, the full bench went beyond suppressing its findings and concealing identities of parties involved. Despite giving no reasons why suppression was deemed necessary, the full bench instructed their registrar to keep any record of its Vector judgment off the Court’s website. The only hint a judgment exists is the missing number “58” in the chronology list of judgments for 2020.
When challenged that their blanket suppression orders breach suppression law, the Supremes are quick to point out, without any lawful support or hearing, that Parliament never intended to limit judges’ unlimited “inherent” powers of suppression when passing such legislation.
Real harm is being caused in this information vacuum, as evidenced by a rare particle that recently escaped this black hole. In 2018, after the Supreme Court issued provisional orders in a case, it was discovered then-Chief Justice Sian Elias had a $500,000 shareholding in the defendant’s insurer and her husband Hugh Fletcher was on the insurer’s board. The bureaucracy worked overtime to quell that brewing scandal, imploring the sheepish legal community to defend the judges in order that “the public do not lose faith in the administration of justice”.
No question some judges hold stock in the respondent Vector Limited, the largest utility in New Zealand. How many, we do not know because judges killed the proposed 2010 Register of Pecuniary Interests of Judges bill that would have required judges declare their financial interests, same as members of Parliament. Every political party supported the bill when proposed - but every party voted it down after submissions that purported to have universal support of the judiciary opposed enactment on the ground it may be good law for other democracies but not for New Zealand because judges here need their privacy to act with independence.
So how did the Supreme Court deal with the non-party application of kiwisfirst to rescind its blanket order in the S&M v Vector judgment? You be the judge.
Below are links to the relevant applications and judgments, including the blanket-suppressed judgment that created new private prosecution law in New Zealand.
Judgment Vector SC58 suppression 21.9.21
Non-party Applic to vary suppression order Vector [2020] NZSC 97 15.3.21
Minute of Supreme Court, 22 March 2001
Objection to Supreme Court’s jurisdiction by counsel for the appellants, 22 March 2021
Judgment of Supreme Court refusing to vary suppression, RE:Siemer [2021] NZSC 50, 28 May 2021
Non-party application for recall of RE:Siemer [2021] NZSC 50, 14 June 2021
Recall Judgment of Supreme Court RE: Siemer [2021] NZSC 72, 25 June 2021
Non-party application for recall of RE:Siemer [2021] NZSC 72, 30 Aug 2021
Recall Judgment of Supreme Court RE:Siemer [2021] NZSC 111, 9 Sept 2021
