Wednesday, September 15, 2004

Seabed Judicial Review lost at sea?

Capital Diary cites an NZPA report that the Government has dropped its judicial review against Judge Wickliffe. The original decision to pursue the review had caused me some bewilderment.

So why has the Government dropped the Judicial Review? According to Margaret Wilson, it's because:
"The High Court judicial review was based on the legal principle that judges must recuse (stand aside) themselves from all hearings where there is an appearance of bias. Judge Milroy's appointment eliminates the basis of that application," she said.

But Judge Wickliffe had already recused herself after making the decision that angered the Government! The Maori Land Court was bound to appoint a new Judge even if a Judicial Review was never announced! The purpose of the review was to try to overturn Wickliffe's decision to allow a seabed and foreshore claim to go ahead. And now that has been dropped, her decision stands.

Margaret Wilson then denies what I suspected at the time the judicial review was initiated:
"I would like to reiterate that the review of Judge Wickliffe's March decision was taken by the Crown. It was not based on a personal decision of mine nor was it a personal attack on Caren Wickliffe.

As the advertisments for Tui beer put it, "Yeah, right". When questioned in the House about this case, Turia had phrased the question:
When was the last time an Attorney-General sought judicial review of a decision of a judge in the Māori Land Court?

Phill Goff, who answered on her behalf, did not even attempt to deny that Margaret Wilson initiated the action and instead claimed she had done so "out of principle". Given that the first clause of Wilson's denial is a Lianne Dazielesque lie, the second is also likely to be.

What could have caused the Government to call off the action? It can't be resistance within the Solictor-General's Office because that was almost certainly due to the delay in instigating the Judicial Review (the original decision was made in March, Turia's question is in September). Likewise the weakness of the government's case becoming apparent can't have been the answer as it surely must have been obvious to the Solicitor-General the minute he looked at the details.

I can only assume that because of the short period of time between Turia raising the matter in the house and the dropping of the case (just under two weeks), that Margaret Wilson initiated the action without informing the rest of the Cabinet. Thus when Turia raised the matter, it was brought to the Government's attention and they spend the next two weeks looking for some excuse to quietly kill the review.

I await with interest to see what happens during Question Time in the House tomorrow.