Friday, December 10, 2021

Why the judicial conduct panel's secret inquiry can't possibly be about Judge Callinicos

There was an intriguing report in yesterday’s Dominion Post about a secret inquiry by a judicial conduct panel.

It was a classic case of a story raising more questions than it answered. Quoting a press statement issued by the panel, the story revealed that the unnamed judge at the centre of the inquiry had questioned its legitimacy.

More specifically, the panel said the judge had challenged its jurisdiction to conduct the inquiry “in the particular circumstances of the case”. That would be the first question the panel had to decide.

The panel made interim non-publication orders covering the judge’s identity and the background of the case. Even the judge’s gender wasn’t disclosed. The question of what could be published about the inquiry would not be considered again until that issue was decided, “at the earliest” (which suggests that even then, the panel may reserve its right to keep the proceedings secret).

All this furtiveness was bound to arouse feverish speculation – and sure enough, conspiracy-minded people were soon mischievously putting it about that the unnamed judge under investigation was Hawke’s Bay Family Court judge Peter Callinicos.

This wild gossip was based on no firmer foundation than that Callinicos was reported earlier this year as being the subject of complaints about his conduct in the racially sensitive “Moana” child custody case, in which he subjected Oranga Tamariki social workers to some robust questioning.

While the Moana case was still in progress, a complaint about Callinicos from the then head of Oranga Tamariki, Sir Wira Gardiner, resulted in the judge being contacted by two of his superiors – an apparent breach of judicial independence. It later emerged that Callinicos had been investigated behind his back by even more senior members of the judiciary.

Attorney-General David Parker subsequently accepted Judicial Conduct Commissioner Alan Ritchie’s recommendation that an unnamed judge be investigated by the panel, to which Parker appointed Chief High Court Judge Susan Thomas, District Court judge Lawrence Hinton and former diplomat Jacqueline Caine (Ngai Tahu, Kati Mamoe, Waitaha). The Dominion Post disclosed that in his latest annual report, Ritchie said that “[O]n my assessment, the [judge's] conduct, if established, would fall well short of accepted judicial standards”. (As far as is known, no inquiry has been announced into concerns about an unnamed judge’s judicial independence being compromised.)

Putting two and two together and adding a generous dollop of irrational conjecture, some people have assumed that the unnamed judge at the centre of the current proceedings must be Callinicos. On the face of it, this supposition appears to be supported by the fact that judicial conduct panel hearings are rare and there are unlikely to be two running simultaneously.

But I can put their minds at rest. These proceedings cannot possibly be about Callinicos. By a highly unusual coincidence, they must relate to another case.

My reasoning is simple.

■ There is a well-established presumption of open justice. Justice must not only be done, but be seen to be done etc etc.

■ The judicial conduct panel would be aware that the Callinicos case has been well-publicised and has therefore become a matter of keen and legitimate public interest.

■ It will be aware too that the case has raised concerns about the clubby nature of the judicial establishment and the opaque nature of almost everything related to judicial affairs, from the appointment of judges to the way disciplinary matters are dealt with.

■ In the circumstances, the panel would presumably be anxious to dispel any suspicions, far-fetched though they may be, about important issues being dealt with behind closed doors and out of public view. The last thing it would want is wild allegations about secretive Star Chamber-type inquisitions.

It follows, then, that the inquiry reported by the Dominion Post must relate to something entirely different.



Terry M said...

Open and transparent? Now where have I heard that before?

Kiwiwit said...

Yeah right.

Eamon Sloan said...
This comment has been removed by the author.
Karl du Fresne said...

I was trying to make a point. Apparently not very successfully....

Trev1 said...

This is deeply concerning Karl. In Ardern's Aotearoa it appears we not only no longer have a functioning Fourth Estate but an independent judiciary may no longer exist. The doors to dictatorship have been flung wide open. Incidentally as Ms Caine is not a judge what is she doing on the enquiry? Do her tribal affiliations earn her a place?

Chris Morris said...

You wouldn't be trying to call a secret panel out, would you? That will definitely be a black mark against you in the Minister's book. Though I don't think you would be worried about that.
The fact that this panel against Callinicos doesn't follow due process is very concerning. So much for following the law. I hope one of the opposition MPs reads your column. Bring it out into the light of day will be very enlightening. The Minister and PM will duck for cover so quick.

David McLoughlin said...

There is clearly a Star Chamber being conducted here. That it is being conducted by people who know very much what the Star Chamber was -- well, the judges among them, anyway -- makes this deeply disturbing.

Our open court system was created to stop the abuse that was Star Chamber. That our judges would hold a Star Chamber against one of their own -- whoever she or he or they may be -- would have defied credibility only a year or so ago.

Nobody is safe when Star Chamber is in session.

another man said...

It is long time needed for an open transparent oversight of this “ clubby racehorse owning set).
They are officers of the court and should be subject to independent oversight open to the hoi polloi. Even if we don’t own racehorses.

Bryan Flanagan said...

Quite right Karl, it couldn't be Callinicos, could it ? Nicely put Sir.

Odysseus said...

Star Chamber, a bought and paid for media, and a Police Force "Scanning and Targeting Unit" that carries out surveillance on people who express "anti government" sentiment: Boy, that all came together quickly.

David McLoughlin said...

a Police Force "Scanning and Targeting Unit" that carries out surveillance on people who express "anti government" sentiment:

I don't have a high opinion of Cameron Slater. He has attacked me often enough in the past and frequently denigrates people I admire. But never, not for one moment, have I ever regarded him as some kind of threat to the nation who should be subject to any kind of police surveillance.

I was speechless when I read what is at that link. And I read it again and again.

It deeply worries me that the police have a unit such as revealed by that OIA that appears to keep tabs on outspoken people such as Slater.

I am only slightly relieved that at least one senior police intelligence official was concerned enough to write a caution: "I remain conscious of the need for objectivity and accuracy in all that we write. I had a sense of unease when I read paragraph 21 today where we wrote “Facebook disinformation site ‘The BFD’. Are we absolutely certain of our statement that The BFD could be fairly characterised as a disinformation site?"

I am also surprised, but pleased, that the Police released the material about Slater to him under an OIA. In my long experience, the more important the information, the more officials try to keep it secret.

For example, I have been waiting for months now for MBIE to provide me with the numbers of people and their organisations given MIQ on their return from the Glasgow conference. I knew when I asked back in August that they would not want to make that public and they would stymie and stall my request, so I have not been disappointed.

But the material about police surveillance of Slater to me seems much more important as a public interest issue than who took the gravy train to Glasgow, so all credit to the police for making it public. I have considerable respect for Andrew Coster, the commissioner -- he would have had the final say in releasing the material to Slater. Ka pai.

I look forward to our "mainstream" media expressing alarm about what is revealed in that OIA. The media uniformly despise Slater (despite once being happy to use him as a source of gossip); but an intelligence unit that could spy on a Slater is conceivably not many steps removed from one that could spy on many of those journalists who despise Slater. I have had the police knock on my door in the past when they have not liked something I wrote; we live in more extreme times now than when that happened.

As I said above, when Star Chamber is in session, nobody is safe.

Trev1 said...

Well David, important comments. But as you know, our "mainstream media " will do nothing to hold this regime to account on this or any other matter. They are beyond contempt.