Marty Sharpe of the Dominion Post has another story on the Judge Callinicos affair this morning, this time reporting a law academic’s concerns about Chief Family Court judge Jackie Moran having regular meetings with Oranga Tamariki’s chief executive and senior lawyers.
Auckland University law professor Mark Henaghan is quoted as saying our legal system is based on the separation of powers between Parliament, the courts and the executive. Meetings between Moran and Oranga Tamariki, whose staff and lawyers are frequently involved in contentious cases before the Family Court, appear to cross that line.
Henaghan says they give the appearance of “undermining the separation of powers and potentially weakens the checks and balances principle and the independence of the judiciary”.
But hey, there’s nothing to be concerned about. Sharpe’s story then quotes Caroline Hickman, chairwoman of the NZ Law Society’s family law section, as saying she didn’t find such meetings unusual because Moran’s role was “to ensure the orderly and expeditious discharge of the business of the Family Court”.
She said Moran also regularly met with her own organisation to discuss issues relating to the smooth functioning of the Family Court, and co-operation between Oranga Tamariki and the Court.
But there’s a crucial difference, as
Hickman must know, between discussing matters of procedure and administration –
which is what she seems to be talking about – and actively intervening in a
case while it was still in progress, and thus creating the impression of trying
to influence the outcome.
That’s the key issue in the so-called
Moana case, in which Family Court judge Peter Callinicos accused two senior
judges – Moran and Chief District Court judge Heemi Taumaunu – of compromising his judicial independence by contacting him after
Sir Wira Gardiner, then acting CEO of Oranga Tamariki, complained that Callinicos
had “bullied” OT social workers during the hearing of the case. Callinicos was extremely critical of OT's conduct during the hearing and issued a decision thwarting the ministry’s attempts to remove a vulnerable
Maori girl from a loving, safe Pakeha home on the pretext that her cultural
needs were not being met.
Barrister Tony Ellis, in a complaint to
the Judicial Conduct Commissioner, has accused the two senior judges – known as
the Heads of Bench – of unlawfully lobbying Callinicos. It's also alleged that Callinicos was the subject of discussions, without his knowledge, involving
second-ranked Supreme Court judge Sir William Young, who is claimed to have criticised
Callinicos in a “scathing” letter to the Judicial Conduct Commissioner, Alan
Ritchie – and that Ritchie formed a conclusion about the affair without even
giving Callinicos a chance to respond to the accusations against him.
All this has spilled out into the public
arena in an unprecedented judicial squabble, with Callinicos engaging lawyers to
act on his behalf and 60 fellow judges reportedly contacting him to express
The affair has been exacerbated by a
campaign against Callinicos dating back to his decision in an unrelated marital
case involving a woman named only as Mrs P, whose case was taken up by feminist
academics and sympathetic (for which, read partisan) journalists. All this has
made the Hawke’s Bay judge a marked man, targeted both from within and outside
the judicial establishment. It’s likely he has also made an enemy of Hawke’s
Bay iwi Ngati Kahungungu, which wanted Moana placed with Maori caregivers.
I suppose it can be considered progress of
sorts that the Law Society has at least found its voice on the Moana controversy,
even if Hickman’s comment seems disingenuous. When Sharpe approached the
society’s president, Tiana Epati, for comment after he first broke the story in
August, she hadn’t bothered to look into the case and wouldn’t speculate on whether
it raised matters of public importance.
As I wrote at the time: “This seems
extraordinary. If you entertained the fanciful notion that the Law Society had
an interest in ensuring judicial probity and upholding public respect for the
law, you were clearly deluded. The society’s so unconcerned that it hasn’t even
bothered to acquaint itself with the case beyond what the rest of us have read
in the paper.”
The good news is that Sharpe is not
allowing the story to fade from the public view, no matter how keen the legal
and judicial establishment is to kick the ball into the long grass.