Updated: Jul 12
New Zealand’s suppression laws created controversy in the UK when name suppression was granted to the killer of Grace Millane, the British backpacker, in 2019. Andrew Little, Minister of Justice, made a well-publicised speech warning the world, especially the UK, not to breach New Zealand suppression orders.
But Andrew Little had something else going on. He was being advised on giving suppression powers to MBIE officials, by someone who needed to reclassify and suppress his own offences, and even a part in New Zealand’s disgrace in the #MeToo debacle.
Mr X had been a professor in the UK but had to leave his job. This was quite some time ago.
He had purchased his PhD quite legally in the 1980s and held several genuine academic posts. Twenty years later he returned to New Zealand and obtained a similar position, based on what he said his skills and experience were.
The position was much more powerful than his previous position in the UK. The names of the posts were similar, but the UK one he had left had been more nominal, and it had not been a government post.
Mr X’s actual skills and experience were a large part of his problem in the UK, but in New Zealand the titles carried the day.
The New Zealand post made him second-in-command in a huge and influential government organisation. He had access to taxpayer funds and to people in the top ranks of power. He had direct political influence as a trusted adviser of policy-makers and politicians. But within a short time, his most urgent project was to change New Zealand law so that no-one reported that he had faked his cv.
That seems to have been surprisingly easy.
Mr X worked on the image of a successful influencer. He bought a substantial house in town. He dressed the part of a commercial barrister, though his experience as a lawyer in the UK was minimal and in New Zealand was nil. He joined a smart barristers’ chambers and bought a lawyer’s practising certificate each year. That gave him access to Law Society committees and so another route of official access to central government and the judiciary.
He continued to maintain a virtual presence in a barristers’ chambers in London.
Mr X was successful for several years, and indeed still is. He advised his government employers that his friends and relations should get contracts, or promotions, or grants. The process of awarding those was always “confidential”, and so were the rates of pay, and they could be most irregular. He has compromised academics, officials and judges and, eventually, the House of Representatives itself. Leighton Associates would have no quick answer should we be asked how to deal with his legacy.
Publicity and public questioning was the danger for Mr X. The danger became real about ten years ago.
Mr X had padded out his cv with exaggerated and repeated versions of his achievements. Amongst them were several fibs, but also a large, solid, public claim that was completely and obviously fabricated. He made the claim in conversation, on his government body’s website, and in the preface to a printed book.
Inevitably, he was caught.
His assistant had the same longing for power and money, and also for the sexual opportunities those could bring. Both men were facing the end of the term of their appointments. Neither man had the qualifications to find any comparable post. It was an opportunity for blackmail, or for mutual assistance.
The process began of reinterpreting the employment legislation, hand in hand with strategic decisions by the Chief Judge of the Employment Court, Graeme Colgan, and with a number of other lawyers dedicated to power and profit and maybe those other opportunities. Instead of focusing on “good faith”, they were looking for entitlement.
The Employment Relations Act 2000 had set up a separate, specialist employment jurisdiction, with a very narrow remit, but it offered the opportunity to take over the rest of the New Zealand legal jurisdiction because, unlike any other part of the everyday court and tribunal system, it had something reserved specifically to it that no other part of that system could deal with, but which affected almost everyone.
Section 161 of the Employment Relations Act 2000 says the only public venue for an employment relations dispute is the Employment Relations Authority. Its members are officials appointed by the Minister, and they go in and out of private jobs in HR or employment law. They were given power to choose their own procedures and to use contract law to interpret employment agreements. They could impose costs orders as they chose to reinforce their determinations. The officials had judicial immunity, without any obligation to follow due process and without any obligation, as judges have, to implement New Zealand law.
The ring-fencing of the employment law process meant that the law would develop solely through the Employment Relations Authority and the Employment Court. The appeal system set up by the Act is internal to the Court, and access to judicial review from an external court is in the Court of Appeal and was restricted long ago to cases where the Employment Court had taken a decision outside its own jurisdiction. That means the Employment Court can be as unreasonable or as procedurally wrong as it likes and there is nothing to be done.
All the powers of the MBIE officials are given in the context of their sole role of informally investigating employment relationship problems. But by interpreting their free choice of procedure as an opportunity to make any orders they like, MBIE and the Court have turned New Zealand law upside-down.
Mr X, Mr Y, and a coterie of employment lawyers and MBIE officials set about making the employment jurisdiction get what they wanted. Mr X and Mr Y were in a position to pay lawyers with employers’ money to ensure that employees were used as experimental material, to find out how far they could push the boundaries and claim the right to do things that are illegal, such as stalking and fraud.
The same year that Mr X made his public mistake, Judge Colgan began his law changes to initiate the takeover. Karen Davis here on Leighton Associates has explained how he enabled MBIE to expand the employment jurisdiction to cover everyone (“Reviewing a Decade of Colgan’s Law” 16 June 2020). Judge Colgan claimed the importance of that was to ensure that “settlement” contracts were kept secret. He appears to have made up some statute to achieve that.
The statutory power to anonymise case reports was expanded to a power to suppress documents and prohibit the identification of parties. That meant sums of public money could be paid out without accountability and without trace, if it was arranged and signed off in a mediation.
The same year, Judge Colgan also reinterpreted statute to say that an employee who had been blackmailed in mediation could not bring evidence to set aside the mediated “settlement” contract because mediation was too secret. In normal contract law, a contract obtained by blackmail is ineffective because it is illegal. It appeared that normal contract law did not apply and the employment jurisdiction had given itself a power to run a new and different law of New Zealand.
This let the current situation develop, where mediation is used by employers’ lawyers to threaten employees that they will “destroy your entire career”, or that they will drag out any Authority process and obtain costs orders so that “we will bankrupt you” (“Before You Go Into Employment Mediation, Read This” Karen Davis, 2 July 2020). Rather than draw matters to a close if things turned nasty, citing the requirements of good faith, MBIE officials began warning employees that if they did not settle with the employer as required, that would be their fate.
The obvious academic to report about the abandonment of legality did not. Like his old friend and colleague from his student days, Mr X, that person was in no position to obtain another job. And Mr X and Mr Y, who controlled his job, needed him to support their plans.
Gradually a few hardy people queried whether such illegal processes could be allowed, but MBIE and the judges appeared to be enjoying their powers to ban and suppress people.
Suppression and free speech were being debated hotly elsewhere. Vincent Siemer had a long-running battle over defamation and breach of a “settlement” contract, and he turned his battle on to the courts who ordered him to stop.
Crown Law, who act for tribunals and courts, engaged Mr X to advise on how to change the law to suppress those attacks on the courts. They do not appear to have engaged any advice on whether the employment jurisdiction could invent a new contract law.
Mr X and Mr Y engaged the help of their employer’s external lawyer. They rolled over Mr Y’s contract and Mr X delegated his own roles and titles to Mr Y, so they could both use them. But Mr X’s appointment, with its dual role, was itself coming to an end. It was quietly rolled over. Mr Y’s temporary contract as Mr X’s deputy in one role was rolled over and he was awarded a new form of permanent contract as deputy to Mr X’s other role. Mr X’s delegation to Mr Y meant they both had free access to public money through a discretionary account.
Mr X and Mr Y came close to unmasking in 2014. They had falsified a junior employee’s records, and needed to engage and pay a range of outside lawyers, including the employee’s own lawyers, to suppress and remove the evidence. Large sums were paid to a range of ambitious lawyers to run the show. The removal of evidence was only partially successful, though, and the lawyers, fearing discovery, began incriminating each other as having perverted the course of justice, in what eventually became clear as a joint operation.
The next huge step forward came in 2015 when Judge Colgan claimed the right to enforce a contract suppressing the reporting of offences.
In normal law, illegal contracts cannot be enforced, and enforcing them would usually be a crime. Parliament has confirmed that in statute, both before and after the Employment Relations Act 2000. But Judge Colgan and Mr X, as well as the lawyers they had by then recruited, had reinterpreted statute so they had jurisdiction to enforce illegal contracts, such as contracts to conceal evidence or to carry out fraud. Some men could also not resist having the right to pester women with impunity.
If the employment jurisdiction had set out on the road to perdition in 2010, it reached it five years later.
In late 2014, an MBIE official, Anna Fitzgibbon, said that sexual assault in the workplace could be “fun” for the employer and an employee should not complain about it. She ordered a victim to pay her abuser for reporting the assault (Karen Davis “Two types of SLAPPing: Anna we need to talk” 11 November 2019). Authority determinations are binding unless challenged.
In 2015 a case began in the Authority to effect the destruction of a whistleblower who had been betrayed by his own lawyer (see also Leighton Associates “Well Worth the Money!” article of 21 May 2020 https://www.leightonassociates.co.nz/post/well-worth-the-money). Again the lawyers had “advised” signing a contract to remove the evidence of the managers’ wrongdoing and to force the employee into silence – a story one hears over and over again. MBIE official Robin Arthur and then Judge Christina Inglis upheld the contract so the employer could bankrupt the whistleblower, and Judge Bruce Corkill then sent him to prison. As Karen Davis has said “Reviewing a decade of Colgan’s law” 16 June 2020, the offences being reported by the whistleblower and suppressed by the judges were eventually investigated “confidentially” by none other than Judge Colgan, in 2019.
It can hardly surprise to find that as employers and managers realised they could not only get away with fraud, bullying and sexual harassment but that they could also use MBIE and the court system to “destroy” and “bankrupt” anyone who might report it, the rates of workplace bullying exploded.
The Employment Relations Authority and Employment Court were apparently enjoying their powers to suppress whistleblowing as much as the fraudsters were enjoying their extra money, power, and other benefits.
By 2017, MBIE was running processes based on no legal point at all, ordering payments to fraudsters, such as Mr X and Mr Y, for reporting their frauds, and ordering third parties to pay employers and their lawyers for reporting the employers’ misdeeds. In 2018 MBIE ordered an advocate to pay an employer for criticising it in a letter to the employer’s lawyer. By 2019 the Authority had ordered a third party to pay an employer’s lawyer direct for allegedly breaching orders based, again, on an MBIE signature.
Outside New Zealand, this would be instantly recognisable as state-sponsored corruption, a non-functioning legal system or a failing state.
Following Judge Colgan’s decisions and the pressure from Mr X and his well-connected friends, the New Zealand press is generally silent. Judges all the way up to the Court of Appeal support the suppression, and now Ministers of state. It is still very obviously a failure of the rule of law.
There is some reasoned resistance though, and Mr X may be in a sticky situation.
The rationale for enforcing illegality in the employment jurisdiction was an interpretation of section 149 of the Employment Relations Act 2000 to mean that illegal and criminal contracts could be implemented, as discussed here on Leighton Associates before. Judge Christina Inglis dealt with that in 2017, saying the interpretation was wrong.
The judgment was not suppressed, but it was not talked about, even by Judge Inglis.
Mr X, Mr Y, and other men (and sometimes women) persuaded the State Services Commission, the police and the Serious Fraud Office that they were not allowed to investigate reports. Even government Ministers believed them and fell silent before the holy, glorious “record-of-settlement”.
The next step was for the employment jurisdiction to implement similar provisions in basic employment contracts, so as to interfere with and overrule statute and the High Court on an everyday basis. That was embedded in 2019.
It is not yet clear whether the rule of law in New Zealand died at the hands of fraud and corruption that had everyone terrified, or whether those who pretended to be completely fooled really were, or whether the whole state function just became paralysed with apathy.
Ironically, Mr X was nearly taken down by the #MeToo movement. It took down Harvey Weinstein for sexual assault and rape, despite the “Non-Disclosure Agreements” his London lawyers drafted that were supposed to suppress any reporting. Harvey Weinstein paid his victims off. In New Zealand, the same effect could be achieved by blackmailing people with fakes.
If New Zealand had followed the UK and the USA, Mr X and Mr Y and their lawyers would have been for the high jump when the #MeToo movement put the spotlight on “NDAs” and sexual harassment and assault in the workplace.
In New Zealand, the #MeToo scandal focused on sexual abuses and assaults on law student interns by lawyers. Mr X and Mr Y had overseen the arrangements for sending young women to be sexually abused by lawyers. The story nearly broke the men.
But the Authority had condoned sexual assault in the workplace in 2014. The men, and their lawyers, who included some women who made their name with campaigns against bullying and sexual harassment, were saved by the Law Society, which focused on suppressing reports of who the abusers were.
Mr X and Mr Y also got a nasty scare in 2017 when their faking came to light again in court proceedings, but the concealment of the evidence was itself concealed by Judge Smith in the Employment Court. The men’s lawyers were also scared of their part in an illegal game. The victim was threatened by friends and colleagues of Mr X and Mr Y’s lawyer, who was by then a Judge. High Court judges supported their sister, and then so did brothers in the Court of Appeal, saying Judge Smith could decide whatever he liked.
And so having established that the rule of law had been tried, condemned and strangled, we return to the engagement of Mr X to advise on suppression.
Mr X advised Crown Law and Chris Finlayson, the former Attorney-General, who had appointed Mr X’s lawyer to the High Court, how to protect judges from criticism, and incidentally to suppress reports of Mr X’s faking. Andrew Little as Minister of Justice adopted the Bill for the Government.
It included a provision making it an offence to say anything about a judge that would undermine confidence in the judiciary. There was no privilege for things said in legal proceedings and it covered things a judge might have done before she was appointed to the Bench.
There was too much public and professional disgust at such a provision, and in the end Andrew Little could only enable MBIE officials able to prosecute someone for “contempt” for disobeying any order. Of course, Mr X’s identity was protected by a direction of Ms Fitzgibbon, although non-identification powers are not in statute, as was Mr Y’s. Their lawyers were however not.
Andrew Little’s actions, as New Zealand’s international representative on anti-corruption bodies, are still somewhat remarkable. Though if corruption has been made legal, perhaps it is no longer called corruption, especially not in New Zealand.
And so to the developing political problem.
During the Grace Millane killer trial, while he was still pressing Mr X’s advice on suppression, Mr Little announced to the British press that New Zealand suppression orders would be enforced in the UK.
The sort of suppression Mr X had obtained made him able to sue on the basis of his own offences. He had already obtained substantial sums for himself, Mr Y and – from his employer – several lawyers for removing the evidence of his faking of records by an illegal contract.
Mr X of course removed the obviously false claim from his government body webpage, and the employer’s lawyers allowed both men to continue in the posts they had faked for themselves. The Authority and the Court continued to exercise and enforce new powers of suppression.
That suppression, at that level and on that scale, would normally make New Zealand a failed state in anyone’s book, but it is ... suppressed.
However, Mr X still maintains his position in the London chambers, where he registered in order to be called to the UK Bar, a step to obtaining another honorary title. His webpage there still contains that false claim, and a few others. Questions are being raised.
If Mr X is exposed in the UK, and especially if his New Zealand legal and judicial supporters are pilloried, will Andrew Little enforce the suppression orders against the British press, as threatened?
The overall scam is bound to collapse eventually, but this could be the catalyst. If Andrew Little enforces the suppression orders in the UK, he will expose the focus and extent of corruption in New Zealand. But if he doesn’t, he will allow the career of Mr X to be laid bare, and show them both dismantling the legality of the New Zealand legal system.