NZ tops OIA study
October 4, 2011
A new international study ranks NZ number one for freedom of information. Countries around the world were sent information requests relating to their budgets. We passed with flying colours. A depressing number of other countries flunked.
Topics: Official Information Act | Comments Off on NZ tops OIA study
Submission on the Video Camera Surveillance Bill
September 29, 2011
Felix Geiringer and I drafted a submission on the Bill, and got it in with 5 minutes to spare before the midnight deadline. (Hope you enjoyed your opportunity for public input, people.)
Here it is:
Submission to the Justice and Electoral Select Committee
SUMMARY OF VIEWS
We oppose the Bill in its entirety.
The Bill is unnecessary. Section 30 of the Evidence Act enables the courts to admit unlawfully obtained evidence where the seriousness of the offending justifies it.
The Bill is too broad. We ought not to be giving the every public official blanket immunity for unlawfully installing hidden cameras on private property during a search.
The Bill is undesirable. It violates the rule of law and fundamental liberties. It breaches constitutional norms. If the Police have been behaving in a flagrant or unjustifiable manner then there ought to be repercussions.
The Bill is partially ineffective. The only impact that the Supreme Court’s decision in Hamed has on “over-the-fence” surveillance is in relation to Bill of Rights considerations. However, the Attorney-General twice stated in the house that surveillance will not affect human rights challenges under the Bill of Rights.
If the Bill is to be passed notwithstanding these objections, the following amendments are imperative:
- Make it certain that s 21 New Zealand Bill of Rights Act 1990 considerations are preserved. The Attorney-General twice assured the house that this was what is intended, but it is not unambiguous on the wording of the Bill.
- Remove any doubt that the location of a camera is relevant to its lawfulness. The courts need to be able to distinguish between cameras in hallways and cameras in bedrooms.
- Eliminate the retrospectivity. This is the element of the Bill that is an affront to the rule of law and violates constitutional norms. This element is also unnecessary.
- Limit the Bill to its stated purpose, namely preserving prosecution evidence. To achieve this purpose it is unnecessary to insulate the Government from all civil or criminal liability for any unlawful surveillance.
- Limit the Bill to the Police. These broad powers and immunities ought not to be conferred on every single person conducting a public function.
RECOMMENDATIONS
Do not pass this Bill.
If our primary recommendation is not followed then, in the alternative, amend the Bill as follows:
- Expressly preserve the jurisdiction of the courts to consider the legality of a search (including the use of video surveillance cameras) in accordance with the New Zealand Bill of Rights Act 1990, by inserting a new clause 4(2) to read as follows: “Nothing in this Act limits the rights contained in s 21 of the New Zealand Bill of Rights Act 1990.”;
- Clarify that the use of a video surveillance camera can be unreasonable and therefore unlawful by virtue of the manner of its use, by removing the words “(without limitation)” and “positioning” from the definition of “use” in clause 4;
- Make the Bill prospective only and not retrospective, by removing clause 5(1)(a) (which would also remove the need for paragraph 3(a) and clause 6);
- Make it clear that the Bill is not intended to include warrantless searches of private land by inserting a subparagraph (a)(iii) in the definition of search in clause 4 to read as follows “does not include a warrantless search of private land, and”, replace the word “and” with the word “but” in subparagraph (a)(ii) of the definition of search in clause 4, and replace the word “includes” with the word “is” in paragraph (b) of the definition of search in clause 4;
- Preserve the state of the law outside the question of evidence in criminal trials, by removing subclause 5(2) (and therefore removing the need for the words “without limiting subsection (2)” in subclause 5(3)); and
- Limit the scope of the Bill to the Police, by replacing the words “a person or body referred to in section 3(b) of the New Zealand Bill of Rights Act 1990” with the words “a constable of the New Zealand Police as defined in the Policing Act 2008”.
The truth about Hamed
New powers not justified by Court of Appeal cases
The Attorney-General in the First Reading Speech states that “[o]n two very recent occasions, the Court of Appeal ruled the use of covert filming to be a legitimate component of a power to search pursuant to a warrant.” He therefore concludes that “the police were accordingly fully justified in their belief that the use of covert video surveillance in connection with a search warrant was not unlawful.” It is understood that the Attorney-General is referring to the cases Hodgkinson v R CA221/2010, 7 October 2010 and the Court of Appeal’s decision in Hamed. In fact, a review of those cases does not support the Attorney-General’s contention.
In Hodgkinson, a case argued in September last year, the Crown conceded that a search warrant could not lawfully authorise the trespassory planting of a camera. In its decision, the Court of Appeal expressed “some doubt about that conclusion” and considered that “it is strongly arguable”. However, the Court also acknowledged that there were arguments the other way and went on to reach its judgment on the assumption that the camera’s use was unlawful.
In Hamed, argued before the Court of Appeal last June, again the proposition that the search warrants did not authorise the surveillance operations “was not really challenged” by the Crown (para [36], CA decision). Even so, the Court of Appeal found that the wording of the warrant in question was sufficiently broad to include the capturing of video images by planting surveillance cameras. This turned on the Court’s view that the warrant was able to able to extend to anticipatory evidence. This ruling was in November of 2010. This could not give rise to long standing belief in the legality of such surveillance.
It is difficult to accept the proposition that the Government had a reasonable belief that trespassory searches were lawful without express authority. The contrary principle was established in the case of Entick v Carrington in 1765. That decision has been consistently followed around the common law world in the intervening 246 years, including expressly in New Zealand.
The fact that the Government was aware of this limitation on police powers is also apparent from the discussions surrounding the Search and Surveillance Bill (2009) and the associated Law Commission report in 2007.
Section 30 already solves the problem for past searches
A suggestion used to justify the Bill is that without it serious criminals may escape justice. Many people have pointed out the problem with this claim. Section 30 of the Evidence Act allows courts to admit evidence even if it has been illegally or improperly obtained. Essentially the courts must balance the extent of the impropriety against seriousness of the crime and make a decision that protects an “effective and credible system of justice.” Indeed, the Supreme Court in Hamed admitted all of the evidence against the defendants in that case who had been charged with serious offences.
The Attorney-General expressed his concern in paragraph 6 of his 21 September 2011 letter to Charles Chauvel that the Bill was necessary notwithstanding s 30. This was because “in cases where there was a high degree of expected privacy and other investigative techniques were available (however difficult to deploy) the risk of exclusion is much higher than it was in respect of Operation 8.” In short, the Bill of Rights balance might favour defendants in other cases.
There are several objections to this. First, the courts in the past have not been slow to admit improperly obtained evidence. Second, the Attorney-General omits to mention the trespass element, which weighed heavily in the Hamed balance, but may not be present in other cases. Third, the “however difficult” bit is an overstatement because actually the courts have never required the police to show that other methods were impossible, just impractical.
Finally, and most significantly, if the police have seriously infringed privacy rights without good justification during a search, it is right and proper that they should be penalised.
The Attorney-General tells us that the government has listened to these reasonable criticisms and undertaken to preserve s 21 of the Bill of Rights. Therefore there is now no need for this Bill to deem all past uses of surveillance cameras during searches to be lawful.
Constitutional impact
As drafted, the Bill violates the rule of law and constitutional norms. There is nothing wrong with Parliament prospectively overturning the effect of a court decision. However, the retrospective nature of this Bill and the way it has been expressly presented as a preference for the views of the New Zealand Court of Appeal over the views of the New Zealand Supreme Court risk undermining the constitutional relationship between those courts and parliament.
It is not the case, as has been suggested, that this Bill merely returns the law to the ‘common law position’ before the Supreme Court’s decision. Instead, it retrospectively validates illegal actions by the Executive branch of government. The Supreme Court did not make new law, but merely applied existing law, passed by Parliament, but which had previously been wrongly interpreted by the Court of Appeal. The Supreme Court decision therefore determined that the Police had for some time been acting illegally. To retrospectively validate such behaviour by the Executive is highly dangerous and sets a most undesirable precedent.
It is common to distinguish considerations of unreasonableness under s 21 of the Bill of Rights from other forms of unlawfulness. The courts will usually consider other forms of unlawfulness first, and their conclusion will be a factor in considering unreasonableness. However, ultimately it is also unlawful to breach s 21. A finding that a search was in breach of s 21 is a finding that that breach was “unlawful.”
Clauses 5(2) and 5(3) of the Bill are therefore ambiguous as drafted. If it is genuinely intended that this Bill not affect Bill of Rights considerations it needs to say so expressly. Otherwise there is a danger that arguments about unreasonableness under the Bill of Rights will be fatally undermined by the fact that the behaviour is deemed lawful.
Positioning should be considered by the Courts
The Bill expressly deems the use of video surveillance as part of a search to be lawful. “Use” is defined in the Bill to include a number of things “(without limitation)” including “positioning”. It therefore appears that the courts are being prohibited from considering the lawfulness of cameras based on how they were positioned.
It is paramount that the positioning of the cameras remains something that the courts can consider in each case. A camera that is lawful in a P-lab should not necessarily be lawful in the lab’s shower. A camera that is lawful at the front desk of a brothel should not necessarily be lawful in the bedrooms. A camera that is lawful at the front gate of a high school should not necessarily be lawful in the changing rooms.
The Bill should not cover warrantless searches of private land
The Police have the power to undertake searches of private land without a warrant in certain circumstances. For example under s 18(2) of the Misuse of Drugs Act the police can enter and search premises without a warrant where the police have reasonable grounds to believe that illegal substances are on the premises in breach of the Act.
If warrantless searches of private land are covered, then if the police believe on reasonable grounds that you have so much as a joint of marijuana in your house then it will be deemed lawful for them to come into your house and install hidden video cameras. This is too broad a power.
Topics: General | Comments Off on Submission on the Video Camera Surveillance Bill
Video camera surveillance and the Urewera defendants
September 23, 2011
I’ve been spending spare moments in the last few days trying to get my head around the Supreme Court’s decision (available here; it’s R v Hamed).
I’m not sure I really understand it. But then, that puts me in good company: Attorney-General Chris Finlayson and the Police Association’s Greg O’Connor don’t seem to understand it either.
What I’m really interested in is whether the decision changes the law in such an unexpected and adverse way that the police need a quick-fix law to ensure that they can operate effectively (and then, whether the quick-fix law National is proposing (a) solves the problem and (b) doesn’t grant police too wide a licence to invade our privacy).
I don’t know the answer to those questions. But here’s the thing I keep coming back to. Here’s the power the police are after. It’s the power National wants to give them. It’s the power they thought they had under the old law. It’s the power they’ve apparently been using for years. It’s the power they think the Supreme Court has stripped them of. It’s the power they say they are using in 50 current operations and relying on in 40 prosecutions. It’s a power, as Greg O’Connor keeps saying, for police to do what anybody else could do, since everybody is allowed to do what isn’t specifically prohibited by law.
Here’s that power: it’s the power to go on to someone’s land without telling them and instal a hidden camera, pursuant to a warrant that doesn’t actually authorise the camera to be installed. That’s because our search warrant laws, as the Law Commission has pointed out, let police apply to be given permission to search for things, but not to instal cameras.
Why did police think they could do something that invasive without specific provision in the warrant? Because the warrant allowed them to be on the land. It meant they weren’t trespassers. And once on the land, they could do what the warrant allowed them to do (search and seize particular evidence) and anything else reasonably incidental (look around, take photos, and, um, install video cameras). Back to O’Connor: the police can do anything that anyone else is allowed to do. And the law doesn’t say anyone needs a warrant to install cameras. Is this starting to sound like he’s on another planet? It does to me.
A couple of Supreme Court judges seemed astonished that the police didn’t even take legal advice on this issue before dealing with the Urewera warrants. I’m guessing that’s because it had simply become standard practice. We should note that the police did disclose to the warrant-issuer that they planned to put up cameras. That’s admirable. But it really makes you wonder why more questions weren’t asked about their power to do so.
O’Connor is fond of citing the cases of R v Fraser and R v Gardiner, as if those cases authorised installation of hidden cameras on someone’s private land during the execution of a warrant, and as if the Supreme Court has – shockingly – overturned them. But those cases didn’t say that. Both involved video surveillance of land from outside, with the consent of a neighbour. It makes a bit more sense, in that context, to say that the police don’t need special authorisation to do what other people can do. (The courts in those cases left open the question of whether that sort of behaviour amounted to a search, saying that if it was, it wasn’t an unreasonable one and therefore didn’t breach the Bill of Rights).
That strikes me as thin gruel for a proposition that I think many people would find surprising: that the police had power to instal hidden cameras in our houses, just because they may have had the right to be there for some other purpose.
National’s fix would retrospectively validate this, and more. It apparently renders all uses of hidden cameras associated with a search – very broadly defined, and not limited to searches with warrants – lawful. The fix also says such use of hidden cameras (including their positioning – in your bedroom, for example), would not by itself be grounds to argue that any search was unreasonable under the Bill of Rights Act.
Like pretty much everyone else, I’m not opposed to the police being given the powers they need to catch the bad guys. Like pretty much everyone else (I hope), I’m a bit suspicious of wide and invasive powers and want to be sure that they’re properly justified and adequately supervised. I’m not reassured here.
Like I say, I’m still coming to grips with the decision. Perhaps I’m missing something.
For what it’s worth, I think the decision to read is Blanchard J’s. Three other judges for the most part accept his analysis on the issues I’m talking about. I think some of the discussion of this case has got sidetracked by a focus on the Chief Justice’s decision, which is first, but which hasn’t carried the court.
PS. I recommend that you read Dean Knight (and here) and Andrew Geddis (and here and here) rather than listening to Greg O’Connor and Chris Finlayson.
Topics: NZ Bill of Rights Act | Comments Off on Video camera surveillance and the Urewera defendants
Did the Crown breach the suppression order in the Ureweras case?
September 7, 2011
The Crown tells us that as a result of the Supreme Court’s recent decision in the Urewera case,
there is no longer sufficient evidence to justify the continuation of the proceedings against a number of those charged solely under the Arms Act…
That is, the Crown has revealed that the Supreme Court has ruled some evidence inadmissible. That’s a breach of the suppression order imposed by the Supreme Court. But it’s worse than that. The impression we are left with is that evidence was excluded concerning the remaining four defendants (although there’s still enough admissible evidence against them to continue the prosecution).
In fact, that’s very misleading.
The Supreme Court is yet to rule on whether this case will go a jury. In the light of the dropped prosecutions, we might suppose that the forthcoming trial is likely to be shorter and less complicated, which may dissolve many of the old objections to a jury trial. It can only be assumed that a jury trial is a real possibility now. If there is one, hasn’t the Crown just created a danger that jurors will roll up wrongly thinking that some information suggesting the defendants’ guilt is being kept from them?
Topics: Contempt of Court, Suppression orders | Comments Off on Did the Crown breach the suppression order in the Ureweras case?
A thought
September 5, 2011
It’s worth pausing to reflect that Valerie Morse went to the lengths of burning a flag at an Anzac Day dawn ceremony to shake us out of our complacency and start questioning our involvement in foreign conflicts (the banner she was trying to draw attention to specifically mentioned Afghanistan).
Nicky Hager’s book suggests that we would have done well to take heed. Instead, her reward was a prosecution for offensive behaviour.
Topics: General | Comments Off on A thought
Getting it right
September 5, 2011
Nicky Hager’s surname is pronounced HAR-ger. You’d think people would know that by now.
Topics: General | Comments Off on Getting it right
Other People’s Wars
September 1, 2011
As a few of you know, I vetted Nicky Hager’s new book, Other People’s Wars. It’s on sale now. I recommend it.
Just as I found his last book, The Hollow Men, to be an education in the dark arts of political marketing, for me this one is an education our sickening suck-up to the United States, the chilling technology of killing, and the unsettling role of PR (externally and internally) in modern NZ warfare.
The NZ Herald’s John Armstrong has written a good account of the book at short notice. I hope others bear in mind his point that:
While it is expected that attempts will be made to discredit the book and its author, the veracity of the findings of Hager’s previous investigations, which include a landmark expose of New Zealand’s security and intelligence organisations in the 1990s, has never come under serious challenge.
Armstrong leads with Hager’s suggestion that NZ’s Bamiyan camp is home to intelligence officers, probably from the CIA. It’s a significant point, but for me, not the most important thing in the book. But it’s been fascinating to see the rest of the media fall into line. Stuff even changed its initial headline to pick up on the CIA claim. Radio NZ has followed suit.
At Hager’s press conference this afternoon, TVNZ’s Guyon Espiner suggested that it wasn’t surprising to find intelligence officers in a warzone, saying that when he was there, people were open about it. To which Keith Ng has responded:
It’s jawdropping that a reporter like Espiner could have been there, known about this, and just flat out considered it not worth reporting.
I gather that Hager will be interviewed by Kim Hill on Saturday morning. Should be well worth a listen.
You can check out Hager’s own description of the book on Scoop.
[Update. Just heard John Key discussing the book on Checkpoint. He said (a) there was no evidence for Hager’s claims; and (b) he hadn’t read the book. I hope other people find that as breathtaking as I do, given that the book contains more than 1300 footnotes, most of them referring to documentary sources.]
[Second update: The line on the CIA seems to be, simultaneously, that (a) they were not there, and (b) if they were, it was obvious to everyone.
I wonder if it’s too much trouble to ask the media to put a few questions from the book:
— Is it true that our personnel were under the control of the British and American forces?
— Did we have signals officers helping to locate targets for bombing? Did one of them fix targets in Pakistan?
— Did our own review find that our reconstruction efforts were “not sustainable in any way” and we were “not an effective aid provider” (and if so, then why were these conclusions redacted from the version of the review officially released to Hager?) How is this consistent with what we’ve been told?
— Didn’t Bruce Ferguson just admit on Morning Report this morning that, in response to concerns that we were taking a role in escorting US ships for the Iraq invasion, that he fixed things up? Wasn’t this an admission that we’d crossed the line and disobeyed government instructions? How did he get away with treating that as a denial?
— Does the government deny that any of the documents cited in the book exist (and if so which)? Does it say that material from those documents has been misquoted (and if so, where)?
— Given that the military and government have in recent times (I’m thinking of Jon Stephenson’s work) denied things and have subsequently been forced to admit that they happened, why should be believe their blanket assurances now?
— Who is “supporting the troops”? The military brass defending their conduct, or a journalist who’s interviewed many of them and is expressing their concerns?
— The big underlying issue: to what extent was there in fact a desire within the top levels of our defence and foreign affairs staff to return to closer relations with the United States, and a frustration with government and public attitudes that NZ should be more independent? How did that frustration manifest itself?]
Topics: General | Comments Off on Other People’s Wars
Taking rights seriously
August 4, 2011
So I am sitting in the public gallery of courtroom 9 in the Wellington District Court building, watching a Human Rights Review Tribunal case. Beside me is Dr Rayner Thwaites, who teaches at
This is a scene that is often repeated in the Wellington District Court. No doubt judges and tribunal chairs have the right to control what goes on in their courtrooms, but I think this blanket practice is unlawful. I think it’s inconsistent with the principle of open justice, which must surely include the right of anyone to take notes. I also think it breaches the NZ Bill of Rights Act, which protects the right to seek, receive and impart information and opinions of any kind and in any form. That’s subject to demonstrably justified limitations, but I can’t see how that might apply here. What harm can be done by taking notes that is not also being done by journalists who are scribbling away on the bench in front? Yes, permission could be sought, but who knows that? Most people just put down their pen, looking bemused.
No big deal, you think? I think it is. I think it demonstrates how insensitive our legal system can be to free speech issues. Let me give you some more examples. Let’s say I want to advertise my house for rent during the Rugby World Cup. Let’s say my advertisement says: “Want to stay in Wellington during the Rugby World Cup? Rent my house for $1000 a week.” In short order, I am likely to get an official cease and desist letter. My offence? Using the magic words “Rugby World Cup” without permission. But no-one would think I was connected with the RWC organisation just by reading my ad, you think? I agree. But the Major Events Management Act may not. It presumes that ads using key phrases, including “Rugby World Cup”, are unlawfully associating themselves with the RWC administration. It’s not clear how easily that presumption can be rebutted. There’s a potential fine of $150,000. Is this provision seriously a demonstrably justified restriction on my rights to free speech?
And what about the Department of Corrections’ recent decision to ban the Truth Weekender from some inmates at Auckland Prison? Under section 43(2) of the Corrections Act 2004, they can refuse permission for possession of items that “may interfere with the effective management of the prison”. Corrections argues that the paper contains “sensationalised and often inaccurate” news stories about the prison and is “detrimental to rehabilitation and reduced reoffending” in that it “normalises and supports criminal beliefs and attitudes”. I don’t read the Truth, but it is difficult to believe that this ban is consistent with the Bill of Rights. Properly understood, free speech guarantees are particularly suspicious of attempts to ban information based on supposedly pernicious viewpoints or because it’s perceived to be inaccurate.
Want more? The Court of Appeal was recently called on to review the highest defamation award in New Zealand’s history: $900,000. It was against businessman Vince Siemer, who has waged a campaign against the business practices of Michael Stiassny that has involved a website, a billboard drawing attention to the website, pamphlets, complaints to professional organisations and repeated flouting of court orders that he desist. It’s not clear how many people have accessed the website. Is this really the worst defamation in the history of the British Commonwealth, as the Court of Appeal described it? Is $900,000 really a proportionate penalty? In making a broad assessment of the courts’ powers to award damages in defamation cases, surely a mention of the Bill of Rights would have been in order.
Topics: NZ Bill of Rights Act | Comments Off on Taking rights seriously
Courts hold the line against name suppression!
July 7, 2011
The Supreme Court has just denied leave to appeal in a name suppression case. David Ingram Rowley and Barrie James Skinner have been charged with dishonest use of a document and perverting the course of justice. The trial is set for February next year. They were granted name suppression in the District Court. This was overturned in the High Court. The Court of Appeal agreed. The Supreme Court agreed. The Supreme Court even refused to allow them to make a new application on fresh grounds. Whale Oil, where are you?
Topics: Name suppression | Comments Off on Courts hold the line against name suppression!
Siemer in contempt
July 7, 2011
Vince Siemer has been found in contempt of Court again for, well, for being in contempt of Court.
In brazen defiance of a suppression order plastered all over the front of Winkelman J’s decision denying the Urewera defendants a jury trial, Vince posted the judgment on his website. The suppression order said:
THIS JUDGMENT IS NOT TO BE PUBLISHED (INCLUDING ANY COMMENTARY, SUMMARY OR DESCRIPTION OF IT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE OR OTHERWISE DISSEMINATED TO THE PUBLIC UNTIL FINAL DISPOSITION OF TRIAL OR FURTHER ORDER OF THIS COURT. PUBLICATION IN LAW REPORT OR LAW DIGEST IS PERMITTED.
Adding insult to injury, Siemer tooled around with the last sentence in that order so that it read (on his website, Kiwisfirst):
PUBLICATION IN LAW REPORT OR kiwisfirST IS PERMITTED
Adding further insult, he still hasn’t taken it down. Looks like another jail stretch for Vince, though thanks to the way the law of contempt has been reshaped during one of Vince’s earlier trips to the Supreme Court, it can’t be longer than 3 months.
What may be most surprising is that a breach of a court order this flagrant needs to be the subject of a lengthy court hearing and a 71-paragraph ruling. Partly it’s because he ran some dopey arguments. It wasn’t published on the internet, he contended. The internet is the wires connecting the actual computers where things are published. Anyway, his website is a “Law Report”. And the order was on the front of the decision so it doesn’t count. There was more in this vein, readily dispatched by the full bench of the High Court (Simon France and Mackenzie JJ).
Much more interesting was his argument that judges have no inherent power to issue blanket suppression orders like this. It’s an argument that has the backing of the Privy Council in Independent Publishing Co v Attorney-General of Trinidad and Tobago [2005] 1 AC 190. It also seems consistent with section 138 of the Criminal Justice Act 1985 (take a look at subsection (5):
138 Power to clear court and forbid report of proceedings
(1) Subject to the provisions of subsections (2) and (3) of this section and of any other enactment, every sitting of any court dealing with any proceedings in respect of an offence shall be open to the public.
(2) Where a court is of the opinion that the interests of justice, or of public morality, or of the reputation of any victim of any alleged sexual offence or offence of extortion, or of the security or defence of New Zealand so require, it may make any one or more of the following orders:
(a) An order forbidding publication of any report or account of the whole or any part of –
(i) The evidence adduced; or
(ii) The submissions made:
(b) An order forbidding the publication of the name of any witness or witnesses, or any name or particulars likely to lead to the identification of the witness or witnesses:
(c) Subject to subsection (3) of this section, an order excluding all or any persons other than the informant, any member of the Police, the defendant, any counsel engaged in the proceedings, and any officer of the court from the whole or any part of the proceedings.
(3) The power conferred by paragraph (c) of subsection (2) of this section shall not, except where the interests of security or defence so require, be exercised so as to exclude any accredited news media reporter.
(4) An order made under paragraph (a) or paragraph (b) of subsection (2) of this section—
(a) May be made for a limited period or permanently; and
(b) If it is made for a limited period, may be renewed for a further period or periods by the court; and
(c) If it is made permanently, may be reviewed by the court at any time.
(5) The powers conferred by this section to make orders of any kind described in subsection (2) of this section are in substitution for any such powers that a court may have had under any inherent jurisdiction or any rule of law; and no court shall have power to make any order of any such kind except in accordance with this section or any other enactment.
Read literally, subsection (5) seems to cull back courts’ rights to suppress anything except evidence and submissions. And yet they routinely suppress whole judgments. There’s a pretty decent argument that this clause does away with any inherent powers judges might have to do this.
Well, there used to be. But the full court has held that judges do have this residual power. They based this on a narrow reading of subsection (5), a case from 1975, line from a recent Court of Appeal decision, and the fact that the Court of Appeal and Supreme Court have exercised this power themselves, and therefore must believe they have it. As authority goes, that’s rather thin gruel. Of course, the alternative would be that hundreds of suppression orders were unlawful, an unappealing conclusion for the two judges hearing this case, both of whom had probably made many such orders themselves.
Still, as a matter of policy, it seems right that judges should have inherent powers to make any orders necessary to ensure fairness to the parties. The judges emphasised this point.
It’s a fair point, as far as it goes. But it doesn’t seem to go as far as this case. The suppression order we’re talking about, remember, suppressed the reasons for denying 15 Urewera defendants a jury trial. In fact, it even originally suppressed the fact that they’d been denied a jury trial. The Crown itself had argued before Justice Winkelmann that this was far too broad and wasn’t necessary to ensure the defendants got a fair trial. Justice Winkelmann changed her mind a bit and allowed publication of the fact that the defendants had been denied a jury trial, though not of any other part of the judgment. It seems clear from court records that she did so because some defence lawyers asked her to. She never provided any reasons for a conclusion that suppression of the entire judgment was necessary to avoid unfairness. It seems hard to imagine that it was.
Did Justices France and McKenzie agree with her? They didn’t go there. They said as long as the order was within her powers and exercised for a proper purpose (fairness of trial), it wasn’t their job to look any further. If anyone wanted to challenge the order, they could do so:
If in disagreement with it, a person may test it in Court or apply for it to be varied.
That, they said, was how Vince should have challenged the order.
So yet again, Vince Siemer is being punished for disobeying an order that may not have been lawful in the first place. I don’t think we should weep for him, though. It may well be that some of the material in the judgment might prejudice the upcoming trial, and Siemer was happy to publish the lot. What’s more, there was a proper way to challenge the order, and Vince didn’t follow it. At the heart of this case is a man who simply decided he didn’t want to follow a court order (or thought he knew better about its legality than the judges) and so breached it.
I suppose we can expect an appeal. I doubt we can expect a different result though.
Topics: Contempt of Court | Comments Off on Siemer in contempt
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