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.