Supreme Court judges must stand aside, says crusader lawyer

Chief Justice Dame Helen Winkelmann was appointed on the advice of the Prime Minister.  (File photo)

Kevin Stent/Things

Chief Justice Dame Helen Winkelmann was appointed on the advice of the Prime Minister. (File photo)

A lawyer’s crusade to overhaul the way judges are appointed — especially those at the top — has led him to ask the entire Supreme Court bench to waive a case he wants to hear in court.

For more than 20 years, attorney Tony Ellis make exceptions to the way judges are appointed and sometimes asked them to step aside.

It is a principle objection to the nomination process, not to the judges personally, he said. Judges should be appointed in a way that underlines their independence and impartiality and distinguishes them from politics.

But the chief justice was in a… special position to be appointed on the advice of the Prime Minister. Ellis said it didn’t look like an impartial trial when the government was the most prolific party in criminal and civil cases.

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Administrator

The Chief Justice, Dame Helen Winkelmann, also had conflicting duties, for when the Governor General was out of the country, unable to perform his duties, or there was no Governor General, the Chief Justice acted as administrator of the government , or “acting governor general”.

Coincidentally, when Governor General Dame Cindy Kiro recently went to the Queen’s funeral in the UK, Winkelmann was also out of the country, so the next highest judge, Dame Susan Glazebrook, filled the role until Winkelmann returned.

As Administrator the judges could perform all the constitutional functions of the Governor General, including giving royal assent to new laws and attending Executive Council meetings to preside, but not as a member. The executive council consists of all the ministers of the Crown.

Dame Helen Winkelmann, as government administrator, handed over Dr.  Bryan Betty the insignia of an officer of the NZ Order of Merit for services to health.

KEVIN STENT/Things

Dame Helen Winkelmann, as government administrator, handed over Dr. Bryan Betty the insignia of an officer of the NZ Order of Merit for services to health.

Ellis said the chief justice should stop acting as an administrator, a role she has held about six times. At that time she was attuned to all three branches of government simultaneouslyviolating principles of separation of powers, he said.

Politics

Ellis has asked the chief justice — and the other five Supreme Court justices appointed on the advice of the attorney general — to refrain from hearing a recently filed appeal on behalf of one of his clients.

All of their appointments were political, especially that of the Chief Justice, as it was on the advice of the Prime Minister, he said.

Ellis pointed to comments made by former Attorney General Margaret Wilson in a 2013 article. “I have always considered it a great privilege to recommend the appointment of judges. It’s a political process and it seems silly to deny it’s something else.”

He argued that the judges of the court showed no semblance of independence or impartiality when they dismissed the appeal of his mentally retarded client, whose name was expunged, and who had sought an extended family supervision order reviewed.

KEVIN STENT/STUFF

The successor of Dame Sian Elias will be judge Helen Winkelmann of the court. (First published on December 17, 2018)

Ellis has previously objected to the judicial appointment procedure and he wasn’t optimistic the judges would distance himself from hearing his client’s case.

Once the options in the New Zealand legal system were exhausted, he was able to take his client’s case to the United Nations Human Rights Commission, which he said would be more admissible.

He says the best he could hope for would be that Winkelmann would not act as an administrator, and that one or all of the Supreme Court justices would say it would be time to refer the judicial appointment process to the Law Commission or that a Royal Commission in the nomination process.

And even if they were to step aside, the “doctrine of necessity” would oblige them to sit down anyway so that the appeal can be heard. The doctrine allows judges, who were otherwise disqualified, to hear an appeal because injustice could result if they didn’t.

A lawyer crusading about how judges are appointed has asked them all to step aside.  (File photo)

Paul McCredie/Stuff

A lawyer crusading about how judges are appointed has asked them all to step aside. (File photo)

The Crown is expected to oppose Ellis’s request to have the judges sidelined, as the nomination process followed the law and an amendment to the law would be required to change it.

The court has yet to make a decision on the application.