A LETTER TO MUGABE
30 November 2013
Transparency International New Zealand’s annual general meeting last week filled the 200 seat room at the Archives in Wellington ? at least to hear Justice Minister Judith Collins and Dame Sylvia Cartwright speak. The preceding business meeting, where the non-profit chapter’s rules were changed and it took thirty seconds to find a non-director willing to endorse the year’s financials, saw around 50 attendees.
Hugs and accolades abounded for New Zealand’s number one ranking in the “corruption perception index” (tied with Denmark and Finland). The tight membership of largely government contractors and employees shared their love of quoting the index, with every country mention including their CPI index in the same breath ? Sri Lanka was ‘79’, Papua New Guinea was ‘150’ and Cambodia was ‘157’.
Justice Minister Collins was the first speaker, predictably crowing about all the good work the current government was doing to make the NZ courts more transparent with the proposed Courts Act before Parliament. But when she sought TINZ’s help in New Zealand’s ratification of the ten year old United Nations Convention Against Corruption, she at once underscored the failings and opportunities with TI’s CPI. New Zealand’s historical position of refusing to pass anti-corruption laws as unnecessary apparently does not play as well on the international stage as it does with the local flock. Currently no New Zealand judge has gone to prison and TINZ was in lockstep with Collins in wanting to keep it that way. Perhaps if TINZ could rank New Zealand higher than #1 and Helen Clarke could push from the inside, the United Nations may see it New Zealand’s way.
The Minister clearly felt uncomfortable when former banking ombudsman Liz Brown gave her a parting gift and congratulated her and the government after joking about the irony in TI chapters around the rest of the world being the bane of their governments.
Wellingtonian of the year Suzanne Snively also promoted the New Zealand model of being funded almost entirely by the NZ government and the TINZ membership comprised of bureaucrats and those who feed at the bureaucratic trough. Snively, who is the paid director of TINZ as well as managing director of a company More Media Ltd which contracts to the government, announced she receives many comments from other chapters about how lucky the New Zealand chapter is in not having to get grants from private donors to support their mission.
On her Linked-In profile, Ms Snively promotes her consulting wares, pitching as ‘Executive Chair’ of the fictitious company Transparency International New Zealand Limited (the non-profit charity is ‘Transparency International (New Zealand) Incorporated”) “New Zealand has the potential to be an exemplar to others, demonstrating how this can improve business profitability through lower cost of doing business in overseas countries, better access, lower cost of capital and for those listed companies, a higher yeilding (sic) share price.”
On the wall of the AGM was a large A-3 posting of “ROLL OF HONOUR, External Advisory Group Members” comprised, as it were, of chiefs of government in New Zealand.
The next speaker, Dame Sylvia, spoke about how lucky we are compared to the corrupt Cambodia where she is currently posted as a judge of the Exemplary Chambers in the Courts of Cambodia (ECCC). She spoke of the bribery and influence which she said allows Prime Minister Hun Sen to give government contracts to all his mates and she decried him as a puppet of the Vietnamese. It soon became evident the TINZ directors who repeatedly visit Cambodia are getting the short end of the stick. Knowing Sylvia gets them in the door but does not have the tangible coattails some feel her position should afford her mates.
Director Murray Petrie talked about “the last time I was at the Ministry of Justice in Cambodia” and Director Snively was thanked by Dame Sylvia for bringing her a loaf of bread. However, Kiwisfirst could not get an answer to the query of how many members and directors of TINZ have financial interests in Cambodia, leaving any estimate to be gleaned from the less than transparent financial report for 2013 which had under “Other Expenses” $81,107 in “Events, conferences, travel and other expenses”.
Only in such a transparent organisation would you find almost 35% of their outgoings listed as ‘other expenses’ under ‘other expenses’.
Message to Robert Mugabe: Your country Zimbabwe is currently 166th in TI’s Corruption Perception Index. But if you agree to fund your local chapter and restrict membership to government officials as in New Zealand, your “perception” as less corrupt is a foregone conclusion. Come to New Zealand and this chapter will show you how it is done.
7 November 2013
'My name is Graham and I am an alcoholic' is something Graham McCready says at least once each day. This pensioner and “Wharfie's son from Thorndon” - as he likes to refer to himself - rarely misses catching a bus into Wellington for his daily AA meeting. Given his successes at exposing failures in the NZ police and Crown Law, and recent run for councillor in
Wellington’s Eastern wards, it is a wonder how he finds the time as well as a testament to his convictions.
Of late McCready has become well known as the private prosecutor given the green light by an Auckland District Court Judge to criminally prosecute Act Party leader John Banks for filing false electoral finance reports - after the NZ police and Crown Law had refused to prosecute. Previously his successes included private prosecution of Labour MP Trevor Mallard for assault and advocating pensioners housing claims in Tenancy Tribunals. As a result of his chosen path he has been vilified as an attention seeking criminal and lauded as a champion for the rule of law in a system governed by partisanship.
Last week, under mounting public pressure, Solicitor General Michael Heron announced Crown Law would take over prosecution of Mr Banks from the
New Zealand Private Prosecution Service which McCready fronts. The reversal is a huge embarrassment, highlighting the political influences which often give connected criminals the wink from Crown Law and Police. Heron waivered but was ultimately humiliated by McCready's public protestations his $80 computer and pensioner earnings left him financially disadvantaged in continuing to prosecute Banks whose high-priced Queen's Counsel has already filed countless motions to stall the proceedings.
In contrast to their position regarding Banks, Police last month filed a criminal prosecution against NZPPS director John Creser for assault of Court of Appeal Registrar Clare O'Brien. Ms O'Brien, a former cop, complained Mr Creser laid his hands on her when serving her with court papers on behalf of a client. No injury was claimed.
Neither is McCready immune. Last year he was convicted of blackmail after he made a settlement offer to a powerful Wellington businessman on behalf of several accounting clients to vote the businessman’s proxy in exchange for not pursuing a claim. The case remains subject of blanket court suppression orders. McCready’s evidence that the businessman had committed a fraud in failing to provide a prospectus and misrepresenting contracts to his franchisees is suppressed by multiple court orders - with the most recent one by Justice Collins taken on the judge's own initiative. Police who prosecuted McCready for attempted blackmail have so far refused to prosecute the fraud.
Despite the stress of routinely seeing corrupt officials being protected and those who expose them prosecuted, McCready rarely appears chagrin. He enjoys spending considerable time buying surplus computers on-line, repairing them in his 50 square metre Miramar apartment, and then donating them to local schools. He sees it as a chance to help people as well as make up for past failures in his own life. The struggles of his youth, his father striking for collective bargaining rights on the docks of Wellington and his personal experience that those in power are often not held accountable are lessons he clings to in his quest to make society better for the average citizen.
$100 MILLION BLACK HOLE
2 November 2013
The New Zealand Supreme Court may be the most expensive building in history built to the homage of five lawyers but don’t expect the gratuity to extend to the New Zealand public, let alone the public interest.
Within its $100 Million walls are stored some of the most exceptional legal submissions the New Zealand public may never see. It may require an Act of Parliament to pry the lid off the documentary vault.
Late last month, after weeks of “taking advice”, Supreme Court Registrar Gordon Thatcher issued a letter declaring because “there are no regulations which permit a search of this courts files” he “is unable to make available copies of applications for leave to appeal and the submissions lodged.”
Mr Thatcher’s response was in reply to a request that court documents be provided for publication on a website dedicated to providing an archive of public documents to New Zealand’s highest court. Currently only judgments are provided by the Supreme Court on-line, as well as transcripts to the small percentage of applications which are granted a hearing. Many leave dismissal judgments are less than two pages in length, begging more questions than answers in respect the reasons the Supreme Court judges relied upon in refusing to grant an appeal hearing.
A strong argument is made that it is the public interest for lawyers in particular to be able to see the legal issues being presented to the New Zealand Supreme Court in the absence of cogent reasons for dismissing applications and submissions to it.
Applications for judgment reasons are routinely met with a reply that under section 16 of the Supreme Court Act 2003, the Court “may state reasons briefly, and these may be stated in general terms only.”
The publishers of www.newzealandsupremecourt.co.nz intend to judicially review the Registrar’s decision on the grounds no law expressly providing for access to public records at the Supreme Court does not support a refusal to allow public access to public court documents which underpin the legal fabric which governs our democracy and individual rights at the highest level. That every other court in New Zealand provides access to filed documents underscores the errors in the Registrar’s refusal to do so at the Supreme Court.
NEED BETTER WORK STORIES?
8 October 2013
A 7-day trial in the Auckland High Court begins Monday, 14 October, against 14 men in blue concerning the dawn 2008 raid on the offices of Spartan News Limited (this website) and home of Vince and Jane Siemer. A fifteenth defendant is the deputy registrar of the District Court who signed the undated police search warrant.
No one was charged as a result of the raid, which was postulated on Vince Siemer publishing the suppressed police affidavit used to hold, without bail, 18 New Zealand citizens in the infamous October 2007 Tuhoe raids (4 of the 18 were eventually convicted of various weapons charges; charges were dropped on the other 14).
The case has been five years in the offing.
Defence Counsel Austin Powell, of the "Constitutional and Human Rights Team" within Crown Law, will first cross-examine Vince and Jane and their daughter of the events of 21 February 2008 before the 14 police defendants tell their work stories. Two weeks ago that was expected to concern the twelve pages of items they seized but never accounted for on the day. However, the week before trial, the police conceded they have been withholding evidence of examination reports on the 5 cell phones they seized, had taken 183 photos inside the home not previously accounted for and cannot find the data the police cloned from three computers they seized.
Crown counsel Powell could only reply in a 7 October email,
"I am not able to give priority to any more questions about discovery of documents. We are now a week out from the fixture and there is a great deal of preparation to do. I will attend to this and any other requests if time permits."
Then-Solicitor General David Collins approved the raids on Tuhoe in 2007 and the Siemers in 2008 but the Court of Appeal ruled in 2011 he could not be sued by Siemers and Spartan News. Mr Collins was appointed a High Court judge in 2012.
In addition to all phones and computers, the police seized tax and business accounts, cameras and even printers. The police claim their active investigation ceased three years ago but admit to still holding unspecified property. The biggest return of items to date was more than 4 years after the raid, on 21 September 2012.
The claim pleads eight causes of action, including unlawful detention and trespass, malice and conversion. The plaintiffs are represented by Yale educated barrister Colin Henry of Albany.
YOU CAN'T HANDLE THE TRUTH
23 September 2013
The last month has been an active one.
Former police prosecutor Grace Haden was again in the District Court this week seeking to hold barrister Neil Wells at bay. Ms Haden was found guilty without trial in 2008 of defamation; the proceeding heard as "quantum only" after Ms Haden was debarred from defending. The most important court step of the substantive proceeding was skipped (in other law-based democracies plaintiff's still have to prove their case even if the defendant is barred from defending). Five years, three lawyers and at least eight court appearances have since failed to get one judge to look at the certain evidence Mr Wells had set up a sham charitable trust to personally siphon animal control fees off Waitakere District Council six years ago (the 'defamatory lie' Haden was convicted of telling). Last year Haden filed an originating claim alleging the 2008 judgment was obtained by fraud, with new evidence from the Ministry of Agriculture and Forestry confirming the trust was a sham. This time District Judge Gibson did the shuffle, albeit less than gracefully, when ruling,
"I do not accept the documents obtained by the plaintiffs after the determination of the earlier proceeding could not have been obtained through the discovery procedure, and further even if the plaintiffs had
the documents before the earlier hearing that would not have availed them as their statement of defence was struck out and they were debarred from defending the proceeding. They could only be heard on quantum." In short, even evidence proving the claim was a fraud is irrelevant.
Meanwhile, Marc Krieger and family, the consultant who this year blew the whistle on systemic corruption within the Earthquake Commission, is leaving New Zealand for the sanity of Europe, after being attacked by the government, then looking around and recognising New Zealand leads the world in shooting the truthful messenger. Crown Law may have had their funding cut for criminal prosecutions, but the Attorney General is digging deep to go after Mr Krieger, although Crown Law have yet to figure out how to lawfully accomplish the mission. (Former-Solicitor-General-now-'His Honour') David Collins has so far refused to clarify his suppression order Collins' former office is seeking to prosecute.
Lawyers also are being pursued with regularity for justly criticising the system. Last month, the most senior Queen's Counsel in New Zealand, Dr Anthony Molloy QC, was fined $1,000 by the Law Society for stating in a press interview last year that judicial ineptitude born of a lack of specialisation was too often resulting in judgments which would be considered fraudulent anywhere else. The sycophantic Law Society strategically imposed a fine small enough to avoid the busy barrister challenging it. Any other lawyer would have been struck off for such candour, but the Law Society had a problem beyond Dr Molloy's eminent status. Molloy let it be known he was prepared to rely on a prior phone call he received from Attorney General Chris Finlayson in which Finlayson expressed agreement with Molloy's assessment, even if he took exception to his choice of word.
Publicly, however, Finlayson lambasted Molloy, virtually demanding he relinquish his QC title for criticising our exemplary system.
It is these "two faces of Chris" that set public policy and tolerance in New Zealand. Truth is admired so long as it remains in the smoke-filled back room among the good ol' boys and does not expose misfeasance. Whistleblowers are free to blow the whistle but not if it tarnishes the image of those in power. And, significantly for our culture, it is the role of the Attorney General to crack the whip on the poor schmuck who violates this policy, to remind the public of our priorities.
Fortunately for Chris, the lawyers get it and the public remain too apathetic to care.
SELLING JUSTICE GOES ON TRIAL
5 September 2013
After years of New Zealand courts preventing hundreds if not thousands of similar appeals on "well-established" legal principles, the Supreme Court has granted leave to a prisoner who claims his right of appeal to the Court of Appeal has been unduly prevented by imposition of unaffordable security for costs.
'Security for costs' is a regime which requires poor litigants pay into court the anticipated legal costs of their adversary before the New Zealand courts will consider their legal claim. Most countries prohibit the practice as a draconian restraint on access to justice. Ironically, the NZ Court of Appeal which imposed the order in this case, and against many others who then sought challenge to the Supreme Court, has "
To no one will we sell, to no one will we refuse or delay, right or justice" emblazoned on its building.
On 25 July, the Supreme Court agreed to hear the appeal
SC47/2013 Reekie v Attorney General on the ground "Whether a waiver of security for costs should have been granted?" This agreement to consider an appeal against a security for costs order on a factual ground created consternation in the legal community given the Supreme Court's recent refusals to consider no less than six challenges to the security for costs regime on legal grounds. Each previous refusal curtly stated the process governing imposition of security for costs in New Zealand was well-settled law.
Queen Street lawyer Gregory Thwaite earlier this year filed a formal complaint with the United Nations Human Rights Committee attacking the New Zealand security for costs regime as a discriminatory constraint on access to justice based upon 'lack of property'. The UNHRC would likely have asked the NZ government for a formal response to this complaint just prior to the Supreme Court granting Reekie leave to appeal. Erstwhile lawyer Barry Hart has let it be known recently he is preparing a similar UN challenge.
Nicholas Reekie (pictured), currently serving time in Paremoremo Prison in Auckland, sought to appeal a judgment of Edwin Wylie J which found 'no evidence' of unlawful detention and torture after a substantive hearing in the High Court. Reekie's appeal asserts the judge might find the evidence inadequate but that it was a self-evident error to declare no evidence existed.
The Court of Appeal Registrar imposed a $5,880 order of security impediment to an appeal hearing. Upon application by Reekie, the Court of Appeal Registrar refused to waive security, accepting his inability to pay the $5,880 but stating she did not consider the appeal held any significant public importance. Save for the name and case number, the 'decision' Mr Reekie received from the Registrar is the same form letter sent out to every appellant seeking a waiver of security.
Justice Douglas White issued a two page dismissal of Reekie's application for judicial review of the Registrar's refusal. Parcel to the 'well-settled' law governing security for costs in New Zealand, the Registrar's refusal counts as a judicial decision and the judge's review the only appeal available by right.
Given the open-ended approved ground, the Supreme Court will be hard-pressed to keep the lid on this scheme which it has long held to meet all Rule of Law requirements, as well as consistently applied, fair and reliable. Relevantly, Mr Reekie has raised the same issues previously rejected by the Supreme Court, including the ground that security for costs impediments to insulate Crown respondents with a legal duty of care violates the Bill of Rights Act and amounts to unlawful State protection.
LAWYER LYNCHING LABELLED "SHOW TRIAL"
25 August 2013
Political oppression against those who exercise their freedom to express critical views of judges is set to play out in Auckland District Courtroom 5.3 on 2 September 2013, where the New Zealand Law Society is seeking to have human rights barrister EvgenyOrlov debarred for privately criticising Court of Appeal Judge Rhys Harrison (pictured).
The prosecution has been five years in the making, has cost Society members almost $200,000 and is largely unknown to the public despite procedural appeals having gone to the Court of Appeal and Supreme Court.
The saga began when Mr Orlov made a private complaint to the Judicial Conduct Commissioner concerning what he considered to be racially tainted views of Maoris and foreigners by then-High Court Judge Rhys Harrison. Though similar complaints have been made by others against Harrison, Mr Orlov's complaint prompted then-Chief High Court Judge Anthony Randerson to write the Law Society on Court letterhead asking it to investigate Mr Orlov's fitness as a lawyer.
The Law Society struggled but eventually came up with nine charges to levy against Mr Orlov. They all centre on "false and scandalous charges" Orlov allegedly made about Harrison in his JCC complaint.
Harrison and Randerson JJ both currently both sit on the New Zealand Court of Appeal.
In a mocking and meandering press release this week, Mr Orlov called the debacle a 'show trial', noting the Law Society intends to call no witnesses, while preventing him from calling Harrison or either of the two Judicial Conduct Commissioners as witnesses. Orlov draws a comparison with the 1899 Privy Council judgment of
McLeod v St Aubyn which found; "
Contempt of Court may be committed by publication of scandalous matter respecting the Court after adjudication as well as pending a case before it. In England committals for such contempts have become obsolete: in small colonies consisting principally of coloured populations they may still be necessary in proper cases".
Even for a colonial backwater, no witnesses and allowing no cross-examination seem a strange court process to prove 'false and scandalous' criticisms sufficient for a legal lynching.
Pertinently, Mr Orlov included a link in his press release to a New Zealand Law Society press release which publicly criticised a conviction in Fiji for quoting a report critical of its courts as "a serious restriction on the right to free speech". In contrast, NZ Society members' criticisms in Orlov's prosecution have been few; generally directed at the financial costs being incurred despite few members knowing what the 'false and scandalous' allegations are at the core of the prosecution conducted in their names.
Another lawyer similarly attacked by the New Zealand Law Society sees the current policies of the Law Society being representative of broad apathy in the legal community which has turned to fear. He intoned, '
everything, do nothing and, above all, be quiet' is the adopted credo of lawyers in New Zealand.
The Orlov trial raises broader natural justice concerns by preventing inquiry (as scandalous) into the validity of a complaint he has made against a powerful State actor - a complaint which is not unique. Mr Orlov alleged Harrison J sanctioned Maori children being removed from their parents without hearing - oppressively awarding costs against him personally in violation of UN conventions for representing the parents in a claim alleging the Crown acted without due process. In another case, Harrison J ordered a known paedophile to be the custodial parent where the mother was a Russian bride being deported as a result of her marriage breakup.
Investigate Magazine earlier on this misconduct, "
The most stunning aspect of the whole story, however, is why on earth a man with Paul Copeland's psychiatric history, a man who raped his own sister and tried to murder his wife with a bow and arrow, a man who enjoyed killing cats in the cruellest possible ways - why such a man would be allowed anywhere near a child".
Judge Harrison's brother Geoff Harrison was lawyer for that child.
Judge Harrison also criticised Mr Orlov for not being trained as a lawyer in New Zealand, seemingly justifying his complaint Harrison is xenophobic without any explanation from the Judge for this worrisome judicial comment.
Dr Frank Deliu, a U.S. and N.Z. trained lawyer, expresses similar views of Harrison and has provided the Judicial Conduct Commissioner seven sentencing decisions of Harrison J which cite their "host country" and crimes against "people of New Zealand" as factors in sentencing foreign-born New Zealanders. Dr Deliu is also being prosecuted by the NZ Law Society on the recommendation of Judge Randerson, although the charges are still being determined.
Mr Orlov's press release invites interested parties to attend the "show trial" which is set to begin at 10 am. With no witnesses and a charge of making false allegations, he has billed it as colonial justice at its finest and asked attendees to accordingly wear black tie and evening dress.
CLEAN GREEN PROPAGANDA
16 August 2013
Some forms of propaganda are more obvious than others. At the height of New Zealand's 'clean green' image campaign 14 years ago, tourists were astonished to see cars billowing thick exhaust, people burning rubbish in their yards and waterways clogged with inorganic and animal waste. It was not only the old cars shipped to New Zealand because they no longer met emission standards in Japan, it was also the statistic that New Zealanders led the world in per capita boat and car ownership. The clean green image was reality only to the extent the population was sparse across the landscape.
Helpfully, once Kiwis accepted the reality the community came together to effect change to live up to the image.
Currently, corruption in New Zealand is the common currency and the lack of any need to prevent or curtail it our pride and joy. Judges routinely make submissions to Parliament claiming corruption does not exist in the judiciary (including the current Pecuniary Interest of Judges Bill), the Auditor General gives speeches abroad on how corruption does not exist here and Transparency International New Zealand tells the public - with government funding - that it is not in the business of exposing corruption, will not expose corruption and, most of all, corruption does not exist in New Zealand.
We love it! We may be at odds with the United Nations by not adopting anti-corruption laws, but that is only because this organisation does not understand one nation exists that does not need to waste its time and resources in this area.
The problem with corruption is, unlike most State propaganda, you cannot look out your window and see government-funded claims corruption does not exist are farcical.
Then there is the public apathy. While Transparency International New Zealand has been publicly exposed as a State-funded club of 52 feather-nesting bureaucrats that turns down members who do not take the loyalty oath to tow the clean green line, we simply do not care. The reality is we still love this corrupt organisation telling us how corrupt-free NZ is.
We conveniently forget about the internal emails which exposed a judicial scandal that "would likely bring down (the Chief Justice) if probed" in the prelude to Supreme Court Justice Bill Wilson's resignation. Of course, it was not probed because (a) it was considered to be an imprudent focus of our energies, or (b) we could not afford to replace all our judges. The answer must be (a) because we are corruption free.
We rationalise there must be a margin of error in the survey that found Kiwis twice as likely as Australians to have paid a bribe. If not, we could adopt Transparency Intl New Zealand Director Suzanne Snively's opinion that the survey is skewed by Australian's ignorance about existence of corruption in their country!
Does any of this head-in-the-sand approach assist us in the end?
Only when we become embarrassed by the 'perception index' and choose to improve our reality index will there be any real hope to weed out the endemic corruption which exacts an untold cost on all of our lives.
WILL THE LAST INDEPENDENT JUDGE IN NEW ZEALAND PLEASE TURN OUT THE LIGHTS
20 July 2013
Kiwis often make excuses for parochialism. Where we find a bureaucrat has given a lucrative construction contract to her brother-in-law or a judge rules in favour of his business partner we rationalise it as something to be expected in New Zealand because we are only 4 million people. When apparent conflicts occur, bureaucrats and judges tell us it is merely coincidence - that they are professional enough to put such conflicts aside in reaching the proper decision. We believe them or simply do not care. Inevitably, the envelope gets pushed futher and further, until the law itself favours what is unlawful almost anywhere else in the world.
The "impartial and informed observer" no longer exists in New Zealand as a standard for analysing judicial conflicts of interest. In a 2007 case, Justice Paul Heath dismissed his extensive financial conflict with a party he ruled in favour of by stating "
I have never been to his house, nor has he been to mine". Sir Hugh Williams used to brag to his mistress that he dealt with parties challenging his conflicts by claiming ignorance of the alleged relationship and then punishing them in his judgment for having the audacity to raise the issue. In one such case, according to his former mistress, Sir Hugh - current president of the Electoral Commission - had a robust laugh out of ruling in favour of the maid of honour at his wedding after stating he did not know the woman when asked by opposing counsel of any conflict the judge had (something few lawyers in New Zealand have the backbone to ask).
Recently, in a judicial review of the Judicial Conduct Commissioner brought by lawyers Clive Bradbury and Greg Muir for dismissing a conflict of interest complaint against Judge Geoffrey Venning, Justice Lowell Goddard dismissed the review as an "abuse of process" even though Venning had admitted to being an active director of a competing forestry scheme to the one at issue before him.
Judges are appointed in New Zealand with the expressed understanding that they conceal each others conflicts on the perverse belief that to not do so could weaken public confidence in the judiciary. In short, we are not hurt by what we do not know. One problem with this is it acts as an encouragement for all judges to break the law.
This perhaps explains why NZ judges are a tighter group than the Mongrel Mob. Appeals which challenge judicial bias or conflict are universally dismissed, commonly with harsh criticism against the party bringing the challenge. And if the judiciary is not a gang in the common sense of the word, how can it be explained that judges never abstain let alone dissent when it comes to lobbying Parliament to pass or not pass laws. More than 200 judges are currently behind submissions to the Justice and Electoral Select Committee demanding Parliament not pass the Pecuniary Register of Interests of Judges Bill - a bill, if passed, which would require judges to register their business and financial interests. Ten years ago all the judges made submissions challenging the Judicial Matters Bill, stating,
"The protection for judicial independence, which underpins the rule of law and which has been a feature of our legal tradition since 1701, must not be undermined."
Apparently, 'judicial independence' does not include independence from each other.
We have a new meaning for 'independent' in New Zealand and, while this meaning conflicts with the legal definition, it is the constant rallying cry of our 205 judges. According to our judges, they are being abused by Parliament and the public. The only allies helping to preserve their independence is the powerful Rules Committee and the New Zealand Law Society. The truth is most judicial appointments emanate from the Law Society proving ground where lawyers demonstrate first their commitment to judicial discretion and secrecy, as well as actively target and then prosecute lawyers who criticise court corruption. This explains a lot.
The public are increasingly standing up against such nonsense, even where lawyers are fearful to do so. The University of Otago is currently conducting a study to determine why there has been an explosion in recent years of lay litigants. The answer could be as obvious as why pay a lawyer to argue law which does not matter when it is more important to have a relationship with a judge. What is certain is the Courts' response has been to issue increasing numbers of secret judgments and suppression orders when common sense suggests public rulings would be the best way to put these lay litigants in their place if they are truly wrong.
SILENCE OF THE LAMBS
13 July 2013
First they came for the trade unionists...
I, Vince Siemer, am going to prison tomorrow after the Supreme Court upheld the Court of Appeal ruling which in turn upheld two judges of the High Court decreeing I am in contempt of the Courts. I consider I can show no better respect for the rule of law than contempt for judges who pervert it. My 'crime' is publishing the secret December 2010 judgment of Justice Helen Winkelmann which denied the Urewera 18 defendants their statutory right to trial by jury on the basis a jury
"would likely use improper reasoning processes". The Chief Justice strongly dissented, recognising I disobeyed an unlawful order yet was denied the lawful right to challenge it in order to preserve my liberty.
I am believed to be the first person in the free world to be sentenced to prison for reporting a criminal court judgment. (Who says New Zealand does not lead the world?!) One reason I am the first is secret criminal court judgments are unlawful. In my case, the Courts roundly protected the unlawfulness of Winkelmann's order by asserting they need not determine the lawfulness on the ground even unlawful orders need to be obeyed until overturned - the Crown claiming a message needed to be sent to the larger community of this. Interestingly, I invited the Attorney General to make submissions in the public interest regarding the lawfulness of Winkelmann's orders and he responded that, if he made submissions at all, he would seek an increased order of costs against me.
Where Winkelmann's order gave no reasons for the secrecy, the High Court Judges tripped over each other to retrofit the reason that justice required the secrecy. The Crown conceded at my trial no prejudice or harm was alleged as a result of my publication, but they still wanted me imprisoned. In a page out of a George Orwell novel, the Court of Appeal censored Winkelmann's reason for negating the statutory right of trial when upholding my conviction out of fear the public would not take kindly to being called stupid in a secret judgment.
First they steal the words; stealing the meanings only when required.
New Zealand judges are out of control. We no longer have the instilling discipline of the Privy Council in England. The NZ Court of Appeal judges trounced by the Privy Council as law-breakers in Taito v R now comprise the Supreme Court which replaced the Privy Council.
Do you see any mainstream media reporting any of this?
We get what we deserve with our judges. The incestuous nature of judicial appointments being what it is, every judge in New Zealand signed on to submissions to Parliament opposing the passage of the pecuniary interest of judges bill currently before Parliament. Really? Not one judge in the whole of New Zealand not actively opposed to this bill which requires them to register their financial and business interests? While it seems impossible at times to get more than two Members of Parliament to completely agree, our 205 judges are in lock step with their independent view. It is evident 'independent judge' is an oxymoron in New Zealand.
We have forfeited much with the loss of the independent Privy Council. This should come as no surprise. Former Attorney General Margaret Wilson was undeterred when 82 percent of Auckland law practitioners voted against her new Supreme Court. When everyone's back was turned it still happened. We built a $100 million palace for five elevated judges, most of whom were known to engage in breaches of due process. And, like sheep, this 82% fell into the fold even as this new court made mince out of established principles on judicial bias and essential legal rights, rolling over established legislation with all the finesse of a blitzkrieg. It is the law today that the "New Zealand independent and informed observer" is an endangered species and, where it does exist, does not consider a judge has a conflict of interest where he/she is business adversary or sibling to those who appear before him/her. You now have to be rich to get to a hearing in the courts - the Supreme Court ruling the requirement that plaintiffs pay the defendants' anticipated legal costs into the Court as a condition to obtaining a hearing is "well-settled law" in New Zealand. Two years ago, in Att
y General v Chapman, the Supreme Court ruled judges are exempt from the New Zealand Bill of Rights Act 1990 on the ground this statute that expressly bound them threatens their 'independence' we all know so well.
Maybe the diminishing numbers allowed to be heard in the courtrooms no longer care. But we could possibly survive without the legal necessity of independent judges if these judges had any respect for the rule of law and the courts they serve. But they have no respect for laws where their mates and critics are concerned, and the most powerful sheep lawyers in New Zealand, while silent about it publicly, make no secret about it privately. As retired Judge Sir Edward Thomas said in a 2007 email to the president of the New Zealand Bar,
"I am not a keeper of the court's conscience and am of the view that my primary obligation is to Alan, not just as a matter of professional obligation but by virtue of my deep friendship for him. There is a limit to how far I will go to uphold the integrity of the court if the judges themselves won't."
Where is the 'independent bar' on this? Flocking behind the independent judges, either cowering in fear or cloaked in protective partisanship. This silent flock is hoping the perverse court judgments in my cases do not generally denigrate the rule of law in New Zealand. History finds this the safest place for lawyers to be. Look at Fiji.
Those who see little comparison with Fiji fail to realise that Fijians do not feel oppressed. That is the insidious thing with erosion of the rule of law. It is frighteningly uneventful until the tipping point. In the Earthquake Commission contempt the Solicitor General filed against Marc Krieger this week, it was not the Bill of Rights or due process legislation which even featured in the SG's application. The SG largely relies upon three of my court decisions to eventually bankrupt this poor citizen who had the audacity to expose the EQC's attempt to write off $100 million which evaporated from the public coffers.
Anyone who doesn't believe a "deep friendship for Alan" is a more valuable commodity in a New Zealand Court than truth and law chooses to ignore the reality. For whistleblowers, one obvious problem is they do not have deep friendships with the perpetrators whose power and influence is the currency of the New Zealand courts. Partisanship and secrecy is endemic, and it is laying ruin to the rule of law in black robe and white collar New Zealand. It would be better if it was blood in the streets, if only to wake people up to the huge corruption occuring behind closed court doors. No one should need to go to prison to protect the rule of law but the sad reality is sitting in prison is often the best way to stand up for legal rights. While it is unfortunate this price must be paid, I consider my imprisonment a demonstration of my highest respect for the law.