Thanks for writing this, I've been struggling for a long time to figure out why events I witness in Wellington keep getting 'hushed up' in most media reports. I don't follow the courts especially closely, as they generally have little bearing on my roles in media production, but have become increasingly concerned by how both the judiciary and the police have acted in relation to many cases I have personal knowledge of.
Indeed, what happened to Jenny Ruth was shocking and unfathomable. How can they ban a serious journalist from the court just because she happens to be publishing online?
Thanks Halfling, a nice summary of how the three arms & Police weave together. As outlined, the whole system requires public support & trust. Politicians we can throw out. Public Sector employees can be moved on. The Police are (…eventually…) held to account. But it seems to this layman, that there are not nearly enough checks & balances on the Judiciary. Once upon a time judges were conservative, the Rule of Law & the Law itself were honoured. Nowadays it seems the Law is seen as a tool for achieving political goals. Activist Judges, mostly from the left, appear to be out of control. Our highest Court has blatantly & arrogantly ignored the will of Parliament. And often judges hand out sentences that do not reflect the will of the people. (eg Intentionally discounting sentences to just below that required for prison). Your thoughts on how we might rein in said renegades?
I can understand your concerns about the alignment of Judges, the Supreme Court and sentencing.
I wrote an explainer about sentencing and submitted it to Stuff but they haven't published it.
The Supremes - well Fitzgerald (avoiding the language of the then 3 strikes regime) was a blatant example of judges driving outside their lane. But you must remember that if Judges go off piste the legislature can put things right. The recent case involving Uber drivers (which was legally sound) introduces problems fopr contracting arragngements and there is legislation before the House to clarify that.
Yes there has been a "shift" in emphasis by the judiciary. Judge Fred McElrea in the 1990's advocated for a restorative justice element. That was picked up by Parliament and is part of the Sentencing Act. Therapeutic justice initiatives like the Alcohol and Other Drugs Court and the New Beginnings Court were advocated for and set up by judges that some may desctibe as activitst and other would consider to be enlightened.
Reining in the "renegades" - you run into a problem with the concept of judicial independence. The Judicial Conduct Commissioner can only look at behaviour by a Judge and not decisions. Decisions can be reviewed on appeal or by judicial review.
You query has given me an idea for an essay although I don't want to "lift the robe" as it were - not that there is anything to see.
Thanks & I look forward to more informed thoughts on this. I appreciate the need for an ‘independent judiciary’ but we need a way to stop the politically left activism that seems to be increasing (eg MACA, Tikanga decisions) as appeals cost us all a fortune & when the top court is clearly woke & we ditched the basically free Privy Council, what then to do? Glazebrook & Williams do not seem at all fairly balanced on things Maori… And that interim judgement after Edwards looked like a purely political play to my untrained eye!
Wonderful piece thanks Halfling. Is there any reason why you didn’t name Linda Clark as McSkimming’s “original defence lawyer”? - public information, after all. Another aspect is why generous employment contracts should overlay Police Commissioners’ (including Coster’s) appointments, when by law they simply serve at the pleasure of the Minister of Police
It baffles me how these people (mostly men, I fear) continue to believe they are fire-proof and will never get exposed. Pun intended! From policemen to MPs and doctors these abuses of power continue and I can only postulate that when they get appointed/elected they undergo a small brain implant that blinds them to basic consequences of not keeping it zipped.
As regards the Police in particular, I think we need a test for Integrity, but there isn't such a test is there?
As for the Justice system, what has happened to the Judge and her hubby who barged into a NZ First function and abused Winston?
I presume you're aware there is still an ongoing case against Ms Z, for sending offensive emails to a detective and his wife. In cases like this, where a police officer is the "victim", is it still Police that lay the charges? If so, should that be changed, because it seems to be another avenue for corruption....
Can I observe how slowly the wheels of Justice move, with 2 weeks (!!) for the substantive hearing next Feby, with a decision nearly 2 months later.....
And how can it be so complicated that it requires such a high-powered panel to sit for up to 2 weeks?
"The three-person panel – comprising retired Court of Appeal Judge Brendan Brown KC, former Governor-General Sir Jerry Mateparae and Justice Jillian Mallon of the Court of Appeal"
And finally, who is likely to pay them; surely not the taxpayer?
The article suggests that it may not take the full 2 weeks. I imagine there will be arguments about procedure and evidence admissibility. I am not sure who is representing the Judge but Paul Rishworth KC argued her case on judicial review of the Conduct Commissioner decision. It all depends on the issues to be argued.
I know the delay in getting a hearing results from availability of counsel and the Tribunal.
As to funding, of course the taxpayer foot’s the bill as part of the social contract. You want to live in a society governed by the Rule of Law then the State foot’s the bill. And this process is part of ensuring a proper enquiry into a Judges Conduct. How else would you have it.
I guess I could never convince you that there may be situations where a "Peoples Panel" could be appropriate?
I just have a sense of frustration, that we have a $9Bn debt, and we're borrowing more to pay the interest on that debt, while no-one seems to look for ways to reduce imbedded cost structures.
Take the 4 people who went "all the way" and were able to get the Supreme Court to change previously accepted interpretations around who's a contractor, despite the fact one of the 4 was actually a union person, not an Uber driver.
When you think of all the disruptions caused to businesses by that decision, extra costs and diversions from their raison d'être, surely people need to question who's helping whom with these super-expensive processes.
Also take another example; the gravy train Linda Clark seems to have created for herself....
I don't want to rave on, or take too much of your time David.
But I've just read a post from Dr Eric Crampton about the Uber driver decision.
The disruptions caused by that decision extend beyond what I'd realised.
Would it have been possible for the Sup Court to make enquiries to consider the impact of their decision, prior to finalisation, or are the consequence of no interest to them?
We know NZ has issues with low productivity.
The diversions to businesses extend way beyond what I had anticipated, and must add a massive (totally unnecessary) unproductive cost.
I hope Eric won't mind me quoting him:
"The Court’s ruling opens no end of messes.
Most obviously……...
But there are more problems.
Deloitte tax expert Robyn Walker wonders what Inland Revenue will do.
You see, Uber drivers run their own businesses, driving for Uber and other companies. Their vehicles are business expenses – along with running costs and road user charges. They may have taken a GST credit on the car purchase.
Employees cannot claim deductions for costs associated with earning income nor be GST-registered for services provided to their employer. Inland Revenue will have to decide whether drivers are employees for tax purposes and, if so, how to unwind years of now-incorrect tax filings.
I do feel concerned for our country's future, given the level of debt, and our supposedly most fiscally-responsible Govt seemingly unable to reverse the growth in debt, while some other parties are apparently willing to emulate what's happened in Venezuela.
I do feel our Legal system needs some form of cost-constraint, along with faster justice and an end to judicial activism.
I think the lady Judge acted irresponsibly, given her role.
It seems the question is "does she keep her job with a reprimand, or does she lose her job"?
IMHO we're (the taxpayers) investing an extremely excessive amount of resources and time to answer that question....
The Judge at the Northern Club is Judge Ema Aitken. Her case was referred to the Judicial Conduct Commissioner who recommended that a panel be convened to determine her future. The JCC decision was challenged by upheld in the High Court. Paul Goldsmith has convened a panel which will sit and determine the matter early next year.
Can I suggest name suppression seems to me to be quite a quandary.
While some might suggest, in this case, a lawyer could be getting favourable treatment, others would say 'innocent until proven guilty" means his reputation and career shouldn't be put at risk, given he might not be guilty.
But it gets more complex with accusations of sexual abuse, because I think we have seen that other victims can "come out of the woodwork" if the accused is named.
Is NZ doing a good job of balancing the rights of an accused against the possibility the case against that person might be enhanced (by other victims) if the accused is named?
You have suggested other countries that have name suppression rights use them more selectively than we do.
Who ultimately makes the decision about whether Justice is best served with more or less name suppression ahead of trial?
Thanks for writing this, I've been struggling for a long time to figure out why events I witness in Wellington keep getting 'hushed up' in most media reports. I don't follow the courts especially closely, as they generally have little bearing on my roles in media production, but have become increasingly concerned by how both the judiciary and the police have acted in relation to many cases I have personal knowledge of.
Such as the judiciary applying a very tight definition of 'accredited journalist' in the LAVA case?
Indeed, what happened to Jenny Ruth was shocking and unfathomable. How can they ban a serious journalist from the court just because she happens to be publishing online?
Two things.
The first is that the HRRT gave reasons for their decision. I think that the reasoning was wrong but at least they went that far.
Second I didn't want to get too deep into Tribunals and the way they operate (e.g. the BSA) - rather the article takes a wider view of the issues
Thanks Halfling, a nice summary of how the three arms & Police weave together. As outlined, the whole system requires public support & trust. Politicians we can throw out. Public Sector employees can be moved on. The Police are (…eventually…) held to account. But it seems to this layman, that there are not nearly enough checks & balances on the Judiciary. Once upon a time judges were conservative, the Rule of Law & the Law itself were honoured. Nowadays it seems the Law is seen as a tool for achieving political goals. Activist Judges, mostly from the left, appear to be out of control. Our highest Court has blatantly & arrogantly ignored the will of Parliament. And often judges hand out sentences that do not reflect the will of the people. (eg Intentionally discounting sentences to just below that required for prison). Your thoughts on how we might rein in said renegades?
Boris
I can understand your concerns about the alignment of Judges, the Supreme Court and sentencing.
I wrote an explainer about sentencing and submitted it to Stuff but they haven't published it.
The Supremes - well Fitzgerald (avoiding the language of the then 3 strikes regime) was a blatant example of judges driving outside their lane. But you must remember that if Judges go off piste the legislature can put things right. The recent case involving Uber drivers (which was legally sound) introduces problems fopr contracting arragngements and there is legislation before the House to clarify that.
Yes there has been a "shift" in emphasis by the judiciary. Judge Fred McElrea in the 1990's advocated for a restorative justice element. That was picked up by Parliament and is part of the Sentencing Act. Therapeutic justice initiatives like the Alcohol and Other Drugs Court and the New Beginnings Court were advocated for and set up by judges that some may desctibe as activitst and other would consider to be enlightened.
Reining in the "renegades" - you run into a problem with the concept of judicial independence. The Judicial Conduct Commissioner can only look at behaviour by a Judge and not decisions. Decisions can be reviewed on appeal or by judicial review.
You query has given me an idea for an essay although I don't want to "lift the robe" as it were - not that there is anything to see.
Thanks & I look forward to more informed thoughts on this. I appreciate the need for an ‘independent judiciary’ but we need a way to stop the politically left activism that seems to be increasing (eg MACA, Tikanga decisions) as appeals cost us all a fortune & when the top court is clearly woke & we ditched the basically free Privy Council, what then to do? Glazebrook & Williams do not seem at all fairly balanced on things Maori… And that interim judgement after Edwards looked like a purely political play to my untrained eye!
Wonderful piece thanks Halfling. Is there any reason why you didn’t name Linda Clark as McSkimming’s “original defence lawyer”? - public information, after all. Another aspect is why generous employment contracts should overlay Police Commissioners’ (including Coster’s) appointments, when by law they simply serve at the pleasure of the Minister of Police
I was not aware of the original representation. Not surprising though. Perhaps she should be renamed Ms Suppression.
It baffles me how these people (mostly men, I fear) continue to believe they are fire-proof and will never get exposed. Pun intended! From policemen to MPs and doctors these abuses of power continue and I can only postulate that when they get appointed/elected they undergo a small brain implant that blinds them to basic consequences of not keeping it zipped.
As regards the Police in particular, I think we need a test for Integrity, but there isn't such a test is there?
As for the Justice system, what has happened to the Judge and her hubby who barged into a NZ First function and abused Winston?
I presume you're aware there is still an ongoing case against Ms Z, for sending offensive emails to a detective and his wife. In cases like this, where a police officer is the "victim", is it still Police that lay the charges? If so, should that be changed, because it seems to be another avenue for corruption....
Noel - an update on the Northern Club incident
https://lawnews.nz/courts/judicial-conduct-panel-convenes-for-preliminary-hearing-on-judge-ema-aitken-debacle/#msdynmkt_trackingcontext=65ee5be4-e17d-48c6-9563-aea885b20200&msdynmkt_prefill=mktprf65d7ce093c134fa9b93e35d122f9597feoprf
The hearing will be public
Thanks David
Can I observe how slowly the wheels of Justice move, with 2 weeks (!!) for the substantive hearing next Feby, with a decision nearly 2 months later.....
And how can it be so complicated that it requires such a high-powered panel to sit for up to 2 weeks?
"The three-person panel – comprising retired Court of Appeal Judge Brendan Brown KC, former Governor-General Sir Jerry Mateparae and Justice Jillian Mallon of the Court of Appeal"
And finally, who is likely to pay them; surely not the taxpayer?
The article suggests that it may not take the full 2 weeks. I imagine there will be arguments about procedure and evidence admissibility. I am not sure who is representing the Judge but Paul Rishworth KC argued her case on judicial review of the Conduct Commissioner decision. It all depends on the issues to be argued.
I know the delay in getting a hearing results from availability of counsel and the Tribunal.
As to funding, of course the taxpayer foot’s the bill as part of the social contract. You want to live in a society governed by the Rule of Law then the State foot’s the bill. And this process is part of ensuring a proper enquiry into a Judges Conduct. How else would you have it.
I guess I could never convince you that there may be situations where a "Peoples Panel" could be appropriate?
I just have a sense of frustration, that we have a $9Bn debt, and we're borrowing more to pay the interest on that debt, while no-one seems to look for ways to reduce imbedded cost structures.
Take the 4 people who went "all the way" and were able to get the Supreme Court to change previously accepted interpretations around who's a contractor, despite the fact one of the 4 was actually a union person, not an Uber driver.
When you think of all the disruptions caused to businesses by that decision, extra costs and diversions from their raison d'être, surely people need to question who's helping whom with these super-expensive processes.
Also take another example; the gravy train Linda Clark seems to have created for herself....
Depends on how much you are prepared to pay to live in a society under the Rule of Law.
Peoples Panels were used under Mao Zedong during the Cultural Revolution as I recall. That ended badly for many.
I may be biassed or so embedded in the system that I would rather have it than the anarchy that might otherwise follow.
I don't want to rave on, or take too much of your time David.
But I've just read a post from Dr Eric Crampton about the Uber driver decision.
The disruptions caused by that decision extend beyond what I'd realised.
Would it have been possible for the Sup Court to make enquiries to consider the impact of their decision, prior to finalisation, or are the consequence of no interest to them?
We know NZ has issues with low productivity.
The diversions to businesses extend way beyond what I had anticipated, and must add a massive (totally unnecessary) unproductive cost.
I hope Eric won't mind me quoting him:
"The Court’s ruling opens no end of messes.
Most obviously……...
But there are more problems.
Deloitte tax expert Robyn Walker wonders what Inland Revenue will do.
You see, Uber drivers run their own businesses, driving for Uber and other companies. Their vehicles are business expenses – along with running costs and road user charges. They may have taken a GST credit on the car purchase.
Employees cannot claim deductions for costs associated with earning income nor be GST-registered for services provided to their employer. Inland Revenue will have to decide whether drivers are employees for tax purposes and, if so, how to unwind years of now-incorrect tax filings.
It risks being a terrible, terrible mess."
Thanks David
I do feel concerned for our country's future, given the level of debt, and our supposedly most fiscally-responsible Govt seemingly unable to reverse the growth in debt, while some other parties are apparently willing to emulate what's happened in Venezuela.
I do feel our Legal system needs some form of cost-constraint, along with faster justice and an end to judicial activism.
I think the lady Judge acted irresponsibly, given her role.
It seems the question is "does she keep her job with a reprimand, or does she lose her job"?
IMHO we're (the taxpayers) investing an extremely excessive amount of resources and time to answer that question....
Noel
The Judge at the Northern Club is Judge Ema Aitken. Her case was referred to the Judicial Conduct Commissioner who recommended that a panel be convened to determine her future. The JCC decision was challenged by upheld in the High Court. Paul Goldsmith has convened a panel which will sit and determine the matter early next year.
David, do you have a view on this current case of name suppression?
It would seem no reason was provided for the suppression....
https://www.nzherald.co.nz/nz/porn-addicted-law-firm-boss-facing-tribunal-for-viewing-explicit-content-at-work/Y4ONGTFXLFDUVIFAK4IHISGLPU/?lid=knbhd6xp7rb2
Sorry Noel - I don’t know enough about the case to comment in an informed manner. Often names are suppressed pending an outcome hearing.
Thanks David
Can I suggest name suppression seems to me to be quite a quandary.
While some might suggest, in this case, a lawyer could be getting favourable treatment, others would say 'innocent until proven guilty" means his reputation and career shouldn't be put at risk, given he might not be guilty.
But it gets more complex with accusations of sexual abuse, because I think we have seen that other victims can "come out of the woodwork" if the accused is named.
Is NZ doing a good job of balancing the rights of an accused against the possibility the case against that person might be enhanced (by other victims) if the accused is named?
You have suggested other countries that have name suppression rights use them more selectively than we do.
Who ultimately makes the decision about whether Justice is best served with more or less name suppression ahead of trial?
The test is prescribed in the Criminal Procedure Act. Judges apply the test based on statutory language and guidance from appellate Courts.