Karl du Fresne: The Callinicos fire is still smouldering

Remember the saga of Moana and Judge Callinicos? You know, the case of the little Maori girl whom Oranga Tamariki removed from her Pakeha foster parents, who had given her a loving and secure home for the first time in her short and miserable life, and placed with a Maori family she didn’t know so that her cultural needs could be met? And how two senior judges – the so-called Heads of Bench – interfered in the case after the then acting head of Oranga Tamariki, the late Sir Wira Gardiner, complained that Family Court judge Peter Callinicos (who ruled that Moana should stay with her Pakeha carers) had “bullied” Oranga Tamariki social workers who gave evidence in the case – social workers whose conduct Callinicos was scathingly critical of? And how Callinicos had to remind his judicial superiors that it was wrong to approach a presiding judge during a part-heard case, since it might compromise the judge’s impartiality? And how the Judicial Conduct Commissioner looked into the case without even bothering to interview Callinicos and found that the Heads of Bench hadn’t acted inappropriately? And how it eventually emerged that an even more senior judge – from the Supreme Court, no less – had involved himself in the case behind the scenes and given his opinion? (You may pause for breath here.)

Well, it’s taken a few months, but the Dominion Post’s dogged Hawke’s Bay reporter Marty Sharpe has reported a further development. Sharpe’s story, which the Dom Post, for reasons best known to itself, placed on page 9 despite its disturbing implications, contains good and bad news.

Sharpe reported that the Law Society’s Rule of Law Committee, made up of legal heavyweights including Sir Geoffrey Palmer and other experts in public and constitutional law, looked into the Callinicos affair and produced a 12-page report which concluded that the actions of the senior judges were “highly unconventional” – an admirable legal euphemism – and had the potential to undermine public confidence in the judicial system. On the face of it, those are damning words. (The Rule of Law Committee, incidentally, was established in 2007 to “assist the profession to meet its fundamental obligation to uphold the rule of law and to facilitate the administration of justice”. It may come as a surprise to readers of this blog, as it did to me, to discover that a special committee had to be created to encourage something as basic as respect for the rule of law, which you'd assume was a pre-requisite for, er, lawyers, but there you go.)

Anyway, the good news is that there are still people in the legal system who seem concerned with the need to maintain public confidence in the independence and integrity of the judicial system – although the fact that the Law Society has apparently been sitting on this report since last October doesn’t say much for its concern about transparency on an issue that raised serious doubts about judicial conduct.

The bad news is that having been presented with the report, the society has done … well, nothing, apparently. The committee made several recommendations, including “urging the use of conventional mechanisms … when dealing with alleged inappropriate judicial conduct”, but Sharpe reports that the society appears not to have acted on them.

That prompted the society’s Wellington branch to write to the then Law Society president, Tiana Epati, expressing concern at the society’s silence on an issue involving “what appears to be a breach of the principle of judicial independence”. Branch president Christopher Griggs, who was also on the Rule of Law Committee, said the society "should communicate to the Attorney-General its concern at the prospect of senior public servants seeking private audiences with the Heads of Bench touching on matters before the courts”.

Epati, who has since finished her term, replied that the Law Society board stood by its earlier decision not to take any action. She pointed out that Chief Justice Dame Helen Winkelmann had already established a conduct advisory committee to review judicial guidelines and consider how improvements could be made. (Again, it seems surprising this should have been considered necessary, since the official judicial guidelines stress the importance of judges remaining independent – a principle so fundamental that naïve lay people like me would think it hardly needs to be spelled out.)

Net result: the Law Society board didn’t see that any further action was necessary “at this time”. But as Griggs pointed out, the conduct advisory committee can only consider matters that relate to the judiciary. That leaves another issue to be tidied up – namely, the conduct of government department heads, which appears to be the Attorney-General’s territory. “We remain of the view that it is not okay for the head of a government department to have a cup of tea and a bickie meeting with Heads of Bench to discuss matters subject of a part-heard hearing,” Griggs told Sharpe.

Some lawyers, then, clearly think the Law Society could have taken a more pro-active role in asserting the importance of judicial independence. The Callinicos affair is a fire that’s still smouldering despite official attempts to smother it. It’s hard to avoid the conclusion that the last thing the judicial and legal establishment wants is to be exposed to awkward public scrutiny.

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