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Combatting Distributed Dictatorship: Submission as to the jurisdiction of the ombudsmen under the Offical Information Act 1982 with respect to the Institute of Judicial Studies © Peter Zohrab 2007

 

(See also:

• Institute of Judicial Studies, and

• Complaint to Human Rights Committee, Geneva, about Institute of Judicial Studies)

 

The issue

This submission is made in response to your letter of 10 July 2007. I have taken on board your request that I do not further canvass the relevant provisions of section 2 of the Official Information Act 1982 ("the Act") and that I concentrate on constitutional issues. In this submission, I do concentrate on constitutional issues, but I hope you will forgive me if I occasionally touch on section 2 of the Act, since it is not foreseeable whether the points I wish to make have already been traversed by the Crown Law Office and the Ministry of Justice -- given that I am certain that I approach the issues from a radically different perspective than they do. Indeed, I give evidence below that those bodies have been blinded by ideology to the real legal issues involved.

I assume that there is a public interest in having all the issues fully canvassed before the public purse goes to the expense of funding a court case on the issue of your jurisdiction -- should that prove necessary.

The issue arose when I wrote to the Institute of Judicial Studies ("the Institute") on 6 May 2006, making two requests, including the following:

Under the Official Information Act, could you please send me copies of all teaching materials and transcripts of all verbal teaching presented to Judges, Masters or Justices of the Peace by any instructor on the topic of "Gender Equity", or any of its sub-topics.

The reason I made that request was that I knew that the term gender equity was only used by female supremacists, who use it in a highly one-sided and inequitable way to argue that special consideration be given to females in courts and other contexts. This special consideration would inevitably discriminate against males.

The Institute rejected my request, so on 6 June 2006 I requested that the Ombudsmen investigate its refusal under the Act. On 8 February 2002, the then Chief Ombudsman, Sir Brian Elwood, had ruled that the Ombudsmen had jurisdiction under the Act to investigate and review decisions of the Institute. This had enabled me to find out the names of certain persons who had given presentations at the Institute on the topic of gender equity.

I submit that the fact that your predecessor has already ruled on this issue would tend to make you hesitate to make a contrary ruling on the same issue now.

 

The Independence of the judiciary, independent and impartial courts, and open justice

In your letter of 10 July 2007, the opening paragraph contains the sentence:

I am sorry that this matter has taken some time to resolve but it has raised what has been regarded as an important issue relating to the independence of the judiciary.

I submit that this sentence reveals a very serious misunderstanding about the notion of the Independence of the Judiciary -- a misunderstanding that has huge constitutional implications. It is a misunderstanding about the nature of democracy itself. I believe that this misunderstanding arises from political bias in the Ministry of Justice, Crown Law Office and the Office of the Ombudsmen in favour of the substantive issue of the use of the notion of gender equity so as to increase female power at the expense of male power. This bias has blinded those bodies to the correct interpretation of the legal issue.

I submit that the principle of the Independence of the Judiciary applies only to the actions of individual judges in specific court cases. This principle exists so that a court case can be decided by a judge purely on the basis of the facts and the Law, without interference from extraneous factors, people or institutions.

The principle of the Independence of the Judiciary exists, I submit, for the benefit of the public at large -- it is not meant as a protection for groups or institutions connected with the judiciary to enable them to act as they see fit without democratic public scrutiny or control.

It is not a principle that applies simply to all matters pertaining to the judiciary in any way whatsoever. In this connection, I note from the New Zealand Law Society's periodical Law Talk that the Government is asking the Justice and Electoral Committee to conduct an inquiry into access to court records. Courts minister Rick Barker is quoted there as saying:

... the Government believes there needs to be public debate on issues such as the meaning of open justice in respect to court records....

If the notion of open justice, the need for public debate, and parliamentary scrutiny all apply to court records, then it is obvious, I submit, that they also probably apply to the Institute of Judicial Studies. No one would argue, however, that they would apply to the decision-making process of an individual judge in a specific case, because of the principle of the Independence of the Judiciary. The appeals process exists for the purpose of scrutinising individual judges' decisions.

In his speech on this topic, Australian Hon Justice Michael Kirby referred to the International Covenant on Civil and Political Rights ("ICCPR") Article 14.1 and stated:

It is impossible to ensure the rule of law, upon which other human rights depend, without providing independent courts and tribunals to resolve, in the language of the ICCPR, competently, independently and impartially, disputes both of a criminal and civil character. The alternative to the rule of law is the rule of power, which is typically arbitrary, self-interested and subject to influences which may have nothing to do with the applicable law or the factual merits of the dispute. Without the rule of law and the assurance that comes from independent decision-makers, it is obvious that equality before the law will not exist.

I submit that it is also significant that he goes on to state that judges also need to be independent from each other. I submit that the Institute, by allowing a few judges to constitute a Gender Equity Consulting Group, has permitted these judges to infringe on the independence of other judges and to damage the rule of law in New Zealand.

 

Constitutional importance of the Official Information Act 1982, and its interpretation

The Ombudsmen's website states the following:

The ongoing success of any freedom of information legislation is dependent on an understanding and acceptance of the ultimate goal of promoting more open and accountable government and protecting only that information which needs to be withheld in the interests of good government.

In our legislation this ultimate goal is expressly identified in ss.4 and 5 which set out the principle and purposes of the Act. The principle of availability in s.5 requires official information held by Ministers, departments, organisations and local authorities subject to the legislation to be made available unless there is good reason under the legislation to withhold it. S4(a) recognises that good government and respect for the law are fundamentally dependent on adequate, progressive disclosure of information to the people of New Zealand both:

“(i) To enable their more effective participation in the making and administration of laws and policies; and
(ii) To promote the accountability of Ministers of the Crown and officials

Respect for the law is intimately connected with respect for judicial officers. If judicial officers are thought to be brainwashed in ways that disadvantage certain sections of the community, then respect for the law is certain to diminish, perhaps resulting in the sorts of actions we have seen some Fathers' Rights protesters taking -- or even more extreme ones.

The book Constitutional and Administrative Law in New Zealand has some strong words on the constitutional importance of the Act, e.g. "Freedom of information is the lifeblood of a liberal democracy." I submit that, as is well known, constitutional statutes are, and need to be, interpreted purposively and generously. With respect to constitutional rights, Lord Wilberforce famously called for:

"a generous interpretation avoiding what has been called 'the austerity of tabulated legalism', suitable to give to individuals the full measure of the fundamental rights and freedoms referred to."

I submit that, since it is a constitutional Act, the Act needs to be interpreted purposively and generously. That means that sections 2(2) to 2(4A) of the Act need to be be interpreted purposively and generously, so as to give to individuals the full measure of the fundamental rights and freedoms referred to -- i.e. so as to give them access to the information they need to ensure respect for the law, to ensure that justice is both done and seen to be done.

I submit that you were mistaken to state, in your letter, that this would

involve demanding information from and about a group of people who are in all other respects outside the scope of the Act.

Any information relating to that group of people (judicial officers) that is held by the Ministry of Justice is, in principle, obtainable under the Act. The Ministry of Justice is (in part) a service organisation for the Judiciary, just as the Parliamentary Service is a service organisation for Parliament. As you state in your letter, the Judiciary and Parliament are not subject to the Act, although the Ministry of Justice and the Parliamentary Service are subject to it. So we have a clear parallelism between Parliament and the Judiciary, which are not subject to the Act, and their service organisations, which are subject to it.

As your letter points out, the Judicial Conduct Commissioner, a Judicial Conduct Panel and the Judicial Complaints Lay Observer are all outside the scope of the Act. These are all quasi-judicial entities -- not service organisations for the Judiciary. So the question arises: is the Institute a quasi-judicial entity or a service organisation for the Judiciary? I submit that it is quite clearly a service organisation, having no quasi-judicial powers of its own, and therefore it comes under the Act, by analogy with the Ministry of Justice and the Parliamentary Service.

I submit that there is no evidence that the scheme of the Act or the aim of Parliament was to exclude whole branches of government from the scope of the Act. If that had been the case, the Parliamentary Service would have been excluded, I submit, and those aspects of the work of the Ministry of Justice that bear on the Judiciary would also have been excluded. Instead, the Act makes a careful distinction between core functions where the public interest dictates that they be excluded (i.e. Parliament itself and the work of individual judges) and ancillary or service functions that facilitate these core functions.

I submit that a generous and purposive interpretation of sections 2(2) to 2(4A) of the Act would bear in mind the purpose listed in section 4(a)(i):

To enable (the people of New Zealand's) more effective participation in the making and administration of laws and policies.

You have not informed me of any reason for considering the purpose listed in section 4(c):

To protect official information to the extent consistent with the public interest and the preservation of personal privacy,

so I assume that no serious argument could be mounted, based on that subsection, in relation to the Institute.

 

The Constitutional role of the Ombudsmen

I submit that the office of the Ombudsmen constitutes one of the checks and balances of the New Zealand constitution. The ombudsmen perform a quasi-judicial role -- yet they are officers of Parliament, rather than members of the Judiciary. The question arises why Parliament saw fit to create a quasi-judicial office outside the Judiciary. I submit that the answer is that Parliament saw that justice was too important a concept to leave to the Judiciary alone to take care of.

I submit that the situation we have now in New Zealand, where the Judiciary, in effect, have undertaken a bit of "empire-building" and, together with the Minstry of Justice, now run their own training organisation (i.e. the Institute), is a perfect example of how the Ombudsmen can act as a check and balance with respect to the power of the Judiciary.

The Judiciary, after all, are the only branch of Government with real power (i.e. I exclude the Governor-General, who has little real power in most circumstances) which is not under democratic control. Now that the Judiciary, through the Institute, is imposing an ideology upon judicial officers (see below), the ombudsmen are in a position to ensure that they do not do it behind an undemocratic veil of secrecy.

 

BORA-consistent interpretation

Section 6 of the Bill of Rights Act 1990 ("BORA") mandates that an interpretation of an enactment which is consistent with BORA rights and freedoms should be preferred where possible. I submit that my arguments under various headings in this submission are relevant to specific sections of BORA and mandate that the Act be interpreted in a BORA-consistent manner with respect to the particular section concerned. I submit that It would be hard to see how BORA section 4 could be used to argue that a justified limitation on BORA rights and freedoms was involved in the case of the Institute.

 

Freedom of/to seek information

BORA section 6 (mentioned above) should be read in conjunction with BORA section 14, which reads:

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

I seek that the Act should be interpreted so as to be consistent with BORA section 14, with the consequence that the Institute is seen as subject to the Act.

 

Discrimination

BORA section 6 (mentioned above) should be read in conjunction with BORA section 19, which reads:

(1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.

(2) Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part II of the Human Rights Act 1993 do not constitute discrimination.

BORA section 19(1), in conjunction with BORA section 6, should, I submit, force an interpretation of the Act whereby any attempts by the Institute to instill a discriminatory ideology such as gender equity (see below) into judicial officers should not be allowed to evade scrutiny. Such attempts by the Institute should not come under BORA section 19(2), because the attempts by the Institute to prevent me from finding out what has been actually taught to judicial officers under the heading gender equity demonstrate that the Institute has not been acting in good faith.

 

Natural justice and fair trial, bias and predetermination

BORA section 6 (mentioned above) should be read in conjunction with BORA section 25(a), which reads:

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

(a) The right to a fair and public hearing by an independent and impartial court:

...

If the Institute is not scrutinised by the public as to the policies (policies are the preserve of Parliament and the Executive, not of the Judiciary) that are being taught to judges, then courts will be/are no longer independent and impartial.

In a criminal case which pits a male against a female (e.g. as accused and complainant, respectively), defence counsel might wish to plead a line of argument that runs directly counter to a doctrine that has been taught by the Institute, under the heading gender equity, to the presiding judge. The judge would therefore be biased, and the issue would have been to some extent predetermined.

Many or all available judges might be similarly biased, and so could the presiding judges on appeal. Would defence counsel be forced to try to cross-examine the presiding judge like a hostile witness, in order to find out if he/she had been taught a doctrine by the Institute that was contrary to the argument that counsel wished to advance? Would large numbers of judges have to withdraw from such cases? The situation would be quite farcical and destructive of the accused's rights.

These considerations, I submit, make it essential that the Act be interpreted so as to cover the Institute. Similar arguments apply in relation to BORA section 27 (The Right to justice).

 

Freedom of thought, conscience, and religion, manifestation of religion and belief, and the rights of minorities

BORA section 6 (mentioned above) should be read in conjunction with BORA sections 13, 15 and 20, which read, respectively:

Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.

Every person has the right to manifest that person's religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

A person who belongs to an ethnic, religious, or linguistic minority in New Zealand shall not be denied the right, in community with other members of that minority, to enjoy the culture, to profess and practice the religion, or to use the language of that minority.

The rights enshrined in BORA sections 13, 15 and 20 may in practice be infringed if the Institute teaches judicial officers, under the heading gender equity, that certain attitudes towards men and women and their interaction are wrong, unjust or inequitable, and a person whose (for example) religion or minority culture teaches him/her that such attitudes are just and proper appears before a judge who has been taught the opposite by the Institute - especially in the Family Court, where such issues can be expected to be frequently relevant.

That should be contrasted with the impotence of people from certain minorities or with certain religious beliefs, who see all around them practices that they find abhorrent but which they simply have to put up with. Why should they have to put up with these (to them) abhorrent practices, yet suffer in court because their beliefs conflict with dogma taught to judges by the Institute?

Therefore, I submit, BORA section 6 and the above three BORA sections should be read with the Act to force an interpretation whereby the Institute is seen as coming under the Act.

 

Disclosure / Right to be informed

There is a paradox here, in that judges often have to enforce disclosure on parties to a court action -- yet the Institute itself is trying to avoid disclosure in this matter!

 

Fiduciary duty and the Institute of Judicial Studies

I submit that the Institute has a fiduciary duty towards the people of New Zealand. It is in a position of trust and power and therefore has a duty to act in the best interests of all the people of New Zealand -- not to adopt an ideology which promotes the interests of one section of the community against another section. Therefore, the Act should be interpreted so as to include the Institute, so that its exercise of its fiduciary duty can be scrutinised.

 

Unreasonableness/Irrationality

It is unreasonable/irrational of the Institute, I submit, to teach gender equity as if it were the state religion, or enshrined in the constitution, or even in an ordinary statute -- when it is none of those things. It is also unreasonable/irrational of it not to allow me to teach gender equity from a male perspective and not to allow me to see what has been taught at the Institute under that heading. I submit that the Institute can have no understanding of the term free and democratic society, which appears in section 5 of BORA.

 

Gender equity

The term gender equity, however defined, is only ever applied to benefit women and to disadvantage men. No rational balancing of the respective advantages and disadvantages of the male and female roles in society is ever carried out by the Feminists who use this term (or by any other Feminists), prior to coming to a conclusion about who is disadvantaged. Women are taken to be disadvantaged from the outset, and the process merely involves ways of demonstrating the truth of this predetermined conclusion.

The term gender equity, as used in practice, is the outcome of a process that involves no natural justice, because the principle audi alteram partem is never applied. This can be seen from the refusal of the Institute to let me teach it from a male perspective and their refusal to let me see what has been taught under that heading.

The gender equity programme at the Institute, however, not only involves predetermination and a lack of natural justice; it is also the result of a judicial mindset that already provably discriminates against men -- so it is men, if anyone, who should be the benficiaries of a judicial gender equity programme!

For example, a Ministry of Justice study of sentencing found that:

Gender 'is not in and of itself a justification for discriminating between offenders' (Hall 1998, page B173-4). Yet, the results of the multivariate modelling show that females are more likely than males to receive community service, community programme or no sentence and less likely to receive a prison sentence, periodic detention or a monetary penalty. Thus, gender differences in sentencing persist even after taking account of differences in the type and seriousness of the offence committed (e.g. the average seriousness of offences committed by women is lower than for men) and in the extent of previous offending (e.g. women have fewer previous convictions on average; section 3.1). Indeed, gender is the amongst the most significant variables influencing the probability of receiving a community service sentence or a monetary penalty.

Greg Newbold lists evidence to similar effect, including the statement:

The more discretionary the level of enforcement, the more heavily does the criminal justice system weigh in favour of the female.

 

Conclusion: avoiding a distributed dictatorship

Irrespective of the rights and wrongs of various issues that Feminists have, over many decades, raised in order to demonstrate women's disadvantaged position in society and what needs to be done about it, this process has always gone on without any attempt to investigate any balancing disadvantages suffered by men. For many decades, Feminists have taken their beliefs wherever their lives took them and have spread these beliefs. They have spread these beliefs through their occupations -- e.g. in the education system and the media.

That has had, I submit, very unjust results. Now that this process has spread, via the Institute, to the Judiciary, I submit that we have a de facto distributed dictatorship in New Zealand, rather than a free and democratic society. It remains to be seen if the Office of the Ombudsmen will be equal to the task of restoring a little democracy to New Zealand.

 

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