Enforcing Iniquity in Australia: a reply to Michael S. - by Sharon Ritchie

Troy Stolz, pictured in a report by David Estcourt in the Sydney Morning Herald

I enjoyed Michael S.'s thoughtful article about suppression of evidence in high places, but I want to disagree with him on the special place of New Zealand.

I accept that, as far as we know, New Zealand is unique in the idea that Parliament legislated to give criminals the power to hide evidence against themselves by contract. As far as I know no other country has had judges that were prepared to say a contract to pervert the course of justice was legal.

I also accept that it looks as though Ms Cull could have started the whole idea off with her 1992 case where she got a court order suppressing reporting of the grievance against the Wellington university lecturer for sexual harassment. The next case we know about is Harvey Weinstein's lawyer suppressing reporting of his sexual harassment in 1998, and we only know about that because the person involved came forward to the UK Parliament in 2018.

I do not accept that New Zealand is unique in having a useless Protected Disclosures law and a court system that attacks whistleblowers for blowing the whistle.

The same has been happening in Australia.

A whistleblower who gave evidence by affidavit to an international court about crimes by the Australian military pleaded guilty to breaching national security laws last week. At least in national security law, speaking up is actually an offence. This case exposes that Australia's Parliament has either lost control of its military or is okay to breach international law, but it doesn't affect the average Australian directly. They have nothing to do with national security law.

But there was also public concern that the Australian government had spent $3,000,000 trying to destroy the lives of a whistleblower and lawyers who represented his case. It doesn't appear the international authorities said anything about that.

Then a whistleblower in Australia reported a private company to his MP for breaching anti-money laundering laws. He had been working for them when that was uncovered by auditor. He was sued under employment law for making that report because it was a breach of their rights to confidentiality.

There is no military law protecting private companies. Why would Australian courts be used again someone reporting serious wrongdoing? Even if he did it outside protected disclosures processes, so the whistleblower was not protected against being sacked for disclosing, that doesn't give the company any kind of right to do serious wrongdoing in private.

It hasn't gone very far yet and it's not as bad as the Tauranga City Council v Geoffrey Brown case, where it was public officials doing the thefts and money laundering, and funding the court attacks. It's not as bad as the BOP DHB v Ana Shaw case, where again it is public officials attacking someone who reported their frauds, or the Rangiura and Turuki cases where publicly funded organisations did the same thing to Allan Halse.

It's also not as bad as those New Zealand cases because the court's position isn't yet clear.

But I would say that the idea is the same. It is that, in employment law, you can get court orders for a coverup of "iniquity" or serious wrongdoing or crimes. Michael S. said that was unique to New Zealand.

If you can attack whistleblowers with employment law, you can defeat most whistleblowers by using the court system. Whistleblowers don't want publicity because it's dangerous to them, and most people are scared of costs orders. But most whistleblowers are employees.

Lawyers aren't scared of costs orders. They like them. In public sector cases, it justifies the use of public money, because the courts sanction it. They also like threatening whistleblowers, because the lawyers are at risk if there is ever any effective regulation of the lawyers. What the lawyers are doing is perverting the course of justice by drafting contracts that they admit - even claim - are contracts to hide evidence.

Now the evidence is in plain sight. Lawyers say they have drafted contracts to hide evidence and the courts don't send the police round. Instead they run cases against the whistleblowers for blowing the whistle.

It's an indictment of the employers, the lawyers and the regulators.

It's an indictment of the MPs and the judges who don't stand up to it.

It's obviously an indictment of the judges that actually actively support the employers and their lawyers. Why would a judge support perverting the course of justice?

I hate to say it but it's an indictment of New Zealand and Australia, in contrast to the UK and the USA.

But New Zealand certainly isn't alone.

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