Guest Post: Attorney-General Must Address Judicial Conflict

A guest post by Shadow Attorney-General Chris Penk:

Conflict within the judiciary must be addressed urgently by the Attorney-General.

It is highly troubling to read reports that certain judges have sought to influence the conduct of a court case being heard by another member of the bench, Judge Callinicos.

Readers of Kiwiblog may have seen reports that Chief District Court Judge Heemi Taumaunu and Principal Family Court Judge Jackie Moran entered into discussions with one of the parties to the “Moana” case – the party being government agency Oranga Tamariki, no less – while it was still in progress.  It has also been reported that those Heads of Bench then proceeded to contact Judge Callinicos about his handling of the case.

If these reports are accurate, both senior judges have acted in a manner that is entirely inappropriate.

Judge Taumaunu surely cannot credibly claim that he was merely seeking to engage Judge Callinicos with concerns over the latter’s “in-court conduct”, rather than his decision-making: a judge’s conduct of a trial is an exercise in judicial decision making in itself.  Certainly such intervention was ill-timed, at the very least.

It is difficult to disagree that these senior judges’ actions represent “a breach of judicial independence”, as Judge Callinicos himself has characterised it.

There are appropriate ways for complaints about judicial conduct to be made.  None of these involve private discussions taking place behind closed doors between judges uninvolved in the case being heard, especially while the matter remains live.

Judicial independence is critical to safeguarding the rights and freedom of citizens under the rule of law.  Open justice is a cornerstone of New Zealand’s system of government and must not be casually corrupted.

This situation is extremely concerning, not only because it brings in question the judgement of some of our most senior judges but also as it will undermine public trust in the courts system.

In addition, it is very unseemly, to say the least, that judges are now litigating the matter in the public arena.

It is unfortunate that the most senior levels of our judiciary have demonstrated a lack of leadership in the matter.  This being so, the Attorney-General is the constitutionally appropriate figure to resolve this situation of conflict between judges.

I acknowledge that the involvement of the Attorney-General could itself be considered an intrusion, given that powers of New Zealand’s branches of government should generally be exercised separately.  I would support the Attorney-General actively providing leadership in this matter, however, as the judiciary is proving itself incapable of regulating its own affairs properly.

Indeed I would strongly urge the Attorney-General to step in.

So far, the signs are not promising.  I have asked Written Parliamentary Questions of the Attorney-General regarding his possible involvement. First, I asked whether he had received advice in the matter, intending then to seek a copy of such advice by way of OIA request.  His answer was “no”.  I then asked Mr Parker if he has sought any advice about the situation.  His answer, which I have just received, was again “no”.

The Attorney-General should be taking note of issues of judicial conflict.  Simply turning a blind eye to them will prevent justice from being seen to be done.