THE LAW OF RULE
10 March 2010 (Continued from front page)
Not surprisingly, the Rules Committee considers its function is to protect the independence of the New Zealand judiciary from government and public influence. While judges swear an oath to the Queen, their lobby consider they do not have the legal obligations of other Crown employees. This includes exempting the Courts from laws passed by Parliament - such as the
Public Records Act 2005 - and endorsing wide discretionary powers by judges over court access and procedure.
The Courts of New Zealand website cleverly states of the role and powers of the Rules Committee:
"Past experience has been that rules proposed by the committee have been endorsed by Cabinet and made by the Executive Council." This obscures the unbridled power and sometimes brut force that the body wields. Since the loss of the Privy Council, the Rules Committee has lost any checks and balances to its power, as well as grown into a political powerhouse. The latter is a bit ironic, given their view that the judicial, legislative and executive branches are strictly autonomous, even to the point that the Ministry of Justice has no power over the judiciary.
The force of this political power was demonstrated in the passage of the
Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. The judges' forceful submissions on the Judicial Matters Bill were followed by a letter from the Chief Justice which was aimed at preventing the legislature from considering variances from the original legislative draft or mechanisms for disciplining judges short of removal from office (which requires a vote of parliament).
We see the effect of this now in the Judge Bill Wilson scandal. The final bill effectively gutted the powers of the Commissioner beyond recommending to the Attorney General the formation of an investigative panel. The statutory body was exempted from the Official Information Act and the Chief Justice was allowed to recommend the Commissioner and appoint judges to any panel which might eventuate. In the case of Judge Wilson, he is a friend of the Chief Justice and they have shared investments in race horses. There has been no recommendation to appoint a panel since Judge Wilson was shown to have overturned a ruling for a party represented by his business partner - a partner to whom Wilson was financially indebted.
The two Judicial Conduct Commissioners since enactment have both been senior law partners of New Zealand's largest law firms. None of the 500 formal complaints they have received against judges has been referred to the Attorney General for action. A handful have been referred back to the Head of Bench, where they fell down a black hole.
In one of its last New Zealand decisions
(R v Taito [2002]), the Privy Council was scathing in its criticism that the New Zealand Courts were systemically depriving criminal defendants elementary access to due process. Since those guilty judges (including Sian Elias CJ) successfully replaced the Privy Council and saw themselves appointed to the new Supreme Court, they have been unrelenting in enforcing new rules which prevent jury trials, limit discovery in court proceedings and create discretionary financial barriers which put most civil proceedings beyond the reach of even the middle class.
One local academic has said New Zealanders would like to believe some benevolent dictator free of outside influences can be trusted to act in the best interests of the citizenry - and that this might actually be preferred when it comes to the judiciary. When questioned as to the practicality, he conceded it is largely an illusion, even if the person bestowed with such power starts out benevolently.
But some think Sian Elias is that person. Those who do, prefer not to think how her and her husband's many business and horse racing interests in a country of only 4 million people reconcile with such power.
In every democracy it is ultimately up to the citizenry to prevent the officials of government from falling into error. None other than Machiavelli, the notorious proponent of the ends of power justifying any means, said;
"Men seldom rise from low condition to high rank without employing either force or fraud, unless that rank should be attained either by gift or inheritance". In the case of our Supreme Court judges who were so soundly reprimanded by the Privy Council for unlawful conduct as Court of Appeal Judges, it is a fair question for the New Zealand public to ask. This is particularly so now that they are in their $100 million palace to hear 50 cases a year. BACK TO FRONT PAGE
SUPERCITY HEIGHTENS CONCERNS OF CONTRACTOR FINANCIAL ABUSES
17 July 2009
Formation of the Auckland "SuperCity" is raising significant concerns whether this new entity will result in greater financial exploitation by contractors providing services to current local governments. Recent stories have highlighted contractors paid by Auckland City Council over $50,000 to pour (and then correct) seven slabs of footpath, to $500,000 dollars to build a beach toilet in Pt Chevalier. Moreover, in the current Auckland City government structure, bureaucrats are given authority to assign private contracts up to $1,000,000 without competitive bid.
The new SuperCity plan was rushed through by an act of Parliament earlier this year after the recommendation of a Royal Commission of Enquiry report last year. It is set to combine the organizational structures of Manukau, Waitakere, North Shore and Auckland cities with Rodney District into one centralized governing body.
Arguments in favour included economies of scale to be achieved through consolidation and a smaller bureaucracy through elimination of common services replicated in each locality. However, this proposal has been increasingly challenged by community groups as unrealistic and open to abuses. The concern has also been raised that "bigger" will result in more entrenched government which is less responsive to change and unique local requirements.
Despite election promises that the public would be consulted prior to any decision on the SuperCity, the National Party government has moved unilaterally toward implementation. New Minister of Local Government and Act Party leader Rodney Hide was an early advocate of the SuperCity proposal and has worked tirelessly toward implementation. Mr Hide has an extensive background as an economist. He quickly grasped the potential for savings from consolidation. As the new Minister, however, he appeared somewhat naïve initially regarding the current local council structures where even elected councilors find it difficult to get information on detailed city expenditures, and where local (unelected) Chief Executives often refuse to divulge such basics as their employment contracts or their governing decisions with our elected representatives.
Lack of transparency into local bureaucracy is a problem throughout New Zealand. Local council chief executives from Gore to The Big Smoke often operate Councils' business as if it were their private fiefdom, wielding tremendous power over the ratepayers' funds, regularly operating in secret. Such abuse was exemplified by Chief Executive Steve Parry of the Gore District Council overseeing the sell off of council real estate at discount prices in 2004. Local Councilors who sought transparency were actually alleged to have caused Mr Parry emotional distress and he never did provide the information. Gore is a district of 8,000. In the case of the Auckland SuperCity, it is unclear how a larger structure will instill financial accountability among those bureaucrats actually spending the ratepayers' money.
One irony in the SuperCity plan is the move toward centralization of government is occurring as many city services are being de-centralised - that is, farmed out to private contractors or run as "Council Controlled Organizations".
CCO's profess to give a degree of independence from political influence in daily operations, run as separate business models which are billed as more efficient - and therefore less costly to consumers. The reality is often quite different. In the case of Metrowater, Auckland City Council for years was effectively the absent landlord who showed up quarterly to demand extra "charitable contributions" to fund its other projects. Waste and inefficiencies were tolerated so long as charges could be raised to churn more dollars back to Council coffers.
The reasonable argument for private contractors seems to be that competitive bidding allows local government to get specialized expertise at market or below market prices without making a long-term investment in an infra-structure which lies outside the core business of local government - "governing". This reasoning also follows that by contracting out as needed local government is not encumbered by too little staff during peak demand periods and too many staff during periods of low demand.
This may be true, but there are limits. For example, pouring footpaths would seem to be a natural city service function of constant demand - and certainly one where the demand can easily be prioritized within staffing limitations. And it is no small service. Auckland City reportedly paid $100 million for footpaths since 2004. When you consider this, the recent revelation that Auckland City paid one footpath contractor $55,000 to lay - and then repair the same - seven slabs of footpath on Mountain Road in Epsom should raise reasonable concerns. To put this in perspective, seven slabs of footpath cost the City the amount it collected from 20 average homeowners last year.
The lack of fiscal transparency among councils is getting some notice in Wellington recently. A petition last year calling for a requirement across Local Councils to record contracts to private contractors in their annual reports was endorsed by the Local Government and Environment Committee in March of this year. The Government accepted the Committee's recommendation last month that the issues raised in this petition be considered in the context of the current review by the Department of Internal Affairs aimed at improving transparency, accountability and financial management of local government.
It is fine to look at the benefits of private contractors competitively bidding for City work but, as we get carried away by a SuperCity, should we not take time to fully consider whether we are creating a beast which will result in the waste of more ratepayers' money in these difficult economic times. BACK TO FRONT PAGE
Dr. Rob Moodie gains international notoriety for exposing judicial corruption as three NZ judges find him in contempt for doing so.
Protesters support Moodie in front of Auckland High Court.
NEW ZEALAND SOLICITOR GENERAL DAVID COLLINS BRINGS DIMINISHED RESPECT FOR NEW ZEALAND ABROAD
N.Z. SOLICITOR GENERAL SEEN BY OTHER NATIONS AS INEPT AND RECKLESS
14 February 2008
What happens when you are the highest legal official in the country and, in your first year in office, you create an international incident, file two Crown legal actions that ignore basic laws, submit a perjured affidavit to the Wellington High Court and use your public office to prosecute your political opponents? If you are the NZ Solicitor General David Collins, you get a pay raise.
Now that the
United Nations has launched an investigation into Human Rights abuses resulting from New Zealand's ill-fated terrorist raids last October (when more than a dozen NZ citizens were held without bail for a month), businesses, and even tourists, are choosing to stay away from New Zealand. Few Kiwis realise - as many of our allies abroad now do - what a disaster Mr Collins' appointment last year as Solicitor General has been for the rule of law in New Zealand. Growing numbers of Justice officials from Canada to Australia can do little but scratch their heads over what is occuring here, while wondering what could possibly happen next.
The serious threat to the rule of law which has occurred on Mr Collins' brief watch is not entirely his fault. Much of the current dilemma derives from an 'Old Boy' culture which effectively puts little value on meritorious appointments in judicial and quasi-judicial offices. Another problem is the Attorney General of New Zealand, Michael Cullen, is not a lawyer, but rather a history teacher and politician. The Minister of Justice for New Zealand, Annette King, is a dental nurse. That a history teacher is appointed "Attorney General" of an entire country and a dental nurse its Minister of Justice demonstrably shows how little regard New Zealand has for the administration of law. The legal expertise and the framework which prevent misconduct by high-placed lawyers in almost every other country simply do not exist in New Zealand.
Abraham Lincoln said
"Any man can handle adversity but, if you want to test a man's character, give him power". In a land where no judge has ever come close to being removed from office for misconduct and no Queen's Counsel has ever been sanctioned for serious misconduct, this is the appropriate litmus test to judge Mr Collins' character. We are talking about a current group of judges/QCs comprising over 300 individuals - all of whom we blindly accept act lawfully day-to-day. We are talking thousands in the last 25 years alone. Is it possible that not one of these individuals broke the law? It must be so: not one of them has ever been charged. With no effective boss (in addition to not being a lawyer, Attorney General Michael Collins is overwhelmed in his capacities as Deputy Prime Minister and Finance Minister) and no fear of accountability, Mr Collins wasted no time proving the wisdom of Mr Lincoln.
In or about September 2007, Mr Collins gave the go ahead to arrest 20 New Zealanders on terrorism charges and seek orders to hold them without bail. The evidence: a single police affidavit which declared undercover cops had witnessed 22 men, women and children, some in camouflage, with some dozen rifles being used in target shooting in a remote North Island woods. But there was more. Wire taps, car bugs and stealth surveillance caught a couple of the score of people surveilled expressing disgust with the police and some NZ government officials. Over the 13 month police operation, one suspect made off-colour comments about being a suicide bomber. Another had the misfortune of the undercover cop sitting next to him in a Café overhearing him angrily refer to "Fuckin' Cops". Although the undercover agent heard nothing other than the "Fuckin' Cops" comment, these two words became evidence of terrorism.
When 20 citizens are charged as terrorists and held without bail, some blunt talk is justified. It is fair to say that any first year law student reading the terrorist 'evidence' could have easily seen that these Kiwis were not terrorists. Some lacked the essential needs of life, such as shelter, while none where capable of committing acts of terrorism. That Mr Collins approved the laying of terrorist charges - backing down only after immense public pressure more than a month later - is nothing less than a national disgrace. That New Zealand must now face the shame of a United Nations Human Rights investigation as a result is appalling.
Collins was not deterred. In November 2007, in an unquestionably political move, he filed a bankruptcy petition against Barrister Rob Moodie (see related story). The trouble was Mr Collins failed to include the most basic information of the alleged debtor, including the debtor's address, in his petition. Call it poetic justice, but the highest legal officer in the Country's failure to meet the most basic legal requirements in his court filings is proving a huge embarrassment among competent NZ lawyers.
Even the editor of
kiwisfirst has come under legal assault from Mr Collins. In a High Court application apparently filed 28 January 2008, Mr Collins purports to seek an 'indefinite prison sentence' against Editor Vince Siemer (presumably because he does not like this website). True to his legal incompetence, the service copy was missing any Court registry number and was not accompanied by the required notice of proceedings. Moreover, the action Mr Collins has attempted to bring is a civil contempt charge related to the www.stiassny.org website which was adjudicated in July 2007 and is prevented by
Res Judicata from being reopened.
Few doubt that Mr Collins has the ambition, if not the legal knowledge, to leave his imprint on the Office of Solicitor General. From Collins' standpoint, to keep his job, all he needs to possess is more legal knowledge than the Attorney General (which is a slam dunk). The very real problem is that laws have a very real function and purpose. Lawlessness often gets recognised on the world stage long before it impacts the lives of ordinary citizens, in a way which then becomes extremely difficult to reverse. Perverse case law - particularly by the appelate courts - hamstrings a nation for generations. Businesses and tourists alike assess legal risks before acting. When dairy prices come down from their all time high, thereby focusing our attention on all the jobs we are otherwise losing because we have few effective laws, will we all look around and lament what we failed to notice? Or will we simply blame it all on Dr. Michael Cullen?
Return to front page
RELATED STORY- COLLINS MOVES TO BANKRUPT MOODIE (26 January 2008)
In what many in the legal profession consider a disgraceful abuse of power, New Zealand Solicitor General David Collins has filed bankruptcy proceedings last month against Feilding Barrister Dr. Rob Moodie in the Palmerston North High Court.
READ STORY
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