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Monday, November 1, 2021

Karl du Fresne: Tony Ellis ups the ante in the Callinicos affair


The Callinicos affair – or should that be the Callinicos scandal? – continues to simmer, no matter how much the judicial establishment might want it to evaporate.

Regular readers of this blog will be familiar with the background. There’s a good summary here, but to recap briefly: Hawke’s Bay Family Court judge Peter Callinicos made himself unpopular by upsetting Oranga Tamariki social workers with his no-nonsense questioning (entirely justified, in the circumstances) during the racially sensitive “Moana” custody case, and subsequently appears to have been stitched up by senior judges who disapproved of the way he conducted proceedings.

In the latest development, Wellington barrister and human rights specialist Tony Ellis has advised Chief Justice Dame Helen Winkelmann, Attorney-General David Parker and Judicial Conduct Commissioner Alan Ritchie that he has complained to the UN’s Rapporteur (which in this context means investigator) on Judicial Independence.

Such complaints are usually treated as confidential, but Ellis has very deliberately made his public, saying he wants to generate wider debate.

He stresses that his focus is on deficiencies in the system rather than on the judges involved. In particular, Ellis calls for a more independent means of appointing the judiciary and argues that the present system, where the Attorney-General recommends all appointments, is too susceptible to political influence.

But what gives his complaint a special piquancy is that Winkelmann, her deputy Sir William (Willie) Young – the two most powerful figures in the judicial system – are themselves implicated in the Callinicos affair, as is Ritchie. Ellis has formally alleged in a complaint to the police that Winkelmann and Young were parties to a breach of judicial independence through their involvement in behind-the-scenes discussions about Callinicos, who was given no opportunity to defend himself.

For his part, Ritchie is in Ellis’s cross-hairs because of his dismissal – again, without any input from Callinicos – of concerns about the way the so-called Heads of Bench, Chief District Court Judge Heemi Taumaunu and Chief Family Court Judge Jackie Moran, intervened in the Moana case in apparent breach of the principle that judges are masters in their own courts. Ellis called on Ritchie to recuse himself from further consideration of the case, arguing that he had irrevocably compromised his independence.

What seems remarkable is that Ritchie himself has no judicial experience. He’s a former executive director of the Law Society – in other words, a fully paid-up member of the club – and a panel convenor on the Parole Board. Ellis describes him as a “junior official” with limited powers. A retired senior lawyer of my acquaintance was mystified as to how Ritchie got the job of assessing complaints against top judges, to whom – human nature being what it is – he’s likely to be subservient.

As for Ellis, I’ve no doubt he’s regarded as a pest and a self-publicist by many members of the legal and judicial establishment. But society sometimes needs pests – especially when they lift rocks to see what’s hiding underneath, or shine a torch into the darkness at the back of the cave.

The judicial establishment is formidably opaque. It functions as a closed shop, operating on a nod-and-wink basis, and gives the impression of being as allergic to sunlight as a vampire. Hardly any outsiders can claim to know how it functions or on what basis its members are appointed.

Almost alone in an otherwise generally transparent democracy, it is largely immune to public scrutiny. Considering the power of the courts, this is a potentially dangerous anomaly. It means that public trust in the system hinges entirely on the notion that judges always behave impartially and with absolute integrity, which seems a naïvely optimistic assumption.

Footnote: National's Shadow Attorney-General, Chris Penk, has weighed in on the controversy. You can read him here.

Karl du Fresne, a freelance journalist, is the former editor of The Dominion newspaper. He blogs at karldufresne.blogspot.co.nz.

4 comments:

Terry Morrissey said...

I don’t think that I would have a whole lot of confidence in any UN Rapporteur being relied upon to give an impartial decision with the present PM. With her leanings I would suggest that the UN Rapporteur should also recuse himself/herself as they are no doubt likely to be influenced by the ideology of the present government.
Also, I would feel very uncomfortable with the UN being anywhere near any thing to do with the governance or justice system of this country. In fact, I would be pleased if they were to take their UNFCCC, IPCC, Agenda 21 and stick them where the sun don’t shine.
As for the justice system, there’s obviously a need for a damn good sort out, but whether the current AG has the bottle or the backing to handle it is another matter. After all, it was one of this government’s ministries that originally put the cat among the pigeons via Oranga Tamariki.
When the Chief Justice screws up, even with poor advice, we have a problem.

Ray S said...

It seems they have all lost site of what started the whole thing off.
That of the future of a young child.
From what I have read, the decision regarding the future of the child was made purely on the best outcome for her.
I pray that no plans are being made to seize the child and spirit her away for a better cultural upbringing.

Unknown said...

Just like Communist China where the Police Service ( used to be Police Force) and the judicial system is controlled by the ruling party. Now in NZ the racial bias favouring the criminals at the expense of the victims is disgusting. Kiwialan.

starpath said...

The conduct of senior members of the justice system in our country needs ongoing scrutiny.
Justice Peter Callinicos is having to endure a raft of poor decisions from those we should be expecting to trust in the highest regard.