The New Zealand Parliament and State Services Commission's concern for whistleblowers appears to be aimed at the wrong target. They are looking at the wording of the old Protected Disclosures Act, which is not relevant. The employment tribunals have accepted a new way of dealing with disclosures about wrongdoing.
Officials, lawyers and judges may have wrongdoing, including their own, suppressed. In its origins this new method comes out of the US habit of offenders paying off women victims of sexual offences. The method itself is however similar to New Zealand's statutory regime for protecting defendants or convicted criminals, but it can be arranged in advance, so there is no criminal case. It does not require offenders to make any payments to victims and it can be arranged by the prospective defendants themselves, especially if they are lawyers. It gives them a free pass for offences of all kinds.
It is claimed to be part of the common law relating to confidentiality, but the connection is tenuous. The most relevant parts of it are the opposite of common law and are unique to New Zealand. As a product of law lords and ladies, it's very clever, of course, and it has their names on it.
The method itself is also technically a criminal offence by the lawyers. By hiding the evidence of what their offending clients had done, the lawyers became implicated for perverting the course of justice. The plan was for everything to be covered up so that no-one would ever have any evidence of anything.
Things went wrong, leading to layers and layers of coverups of coverups, and the need for judges to override Parliament and abandon the rule of law in order to cover up for their mates.
The first step was taken in 1991, when Helen Cull got an order against the press. It gagged reporting of sexual harassment by a certain lecturer in a certain Wellington university. The reason was that the sexual events were "confidential".
Before that, you could legally only get suppression of a confidence, or secret, if it wasn't an "iniquity" - wrongdoing. But after that, anything could be suppressed if the perpetrator said it was "confidential". He therefore could not be held to account.
So the New Zealand rules about "confidence" are not part of the common law, which is about justice and equity. By an apparently small tweak, they are the opposite. They pervert justice and are an iniquity.
These orders are not something every worried offender would have access to. It required paying a lawyer like Ms Cull, with family connections to the judiciary, and charging about a thousand dollars an hour. The client would need to be rich or to have access to public funds. Most New Zealand cases are about offenders high up in the public service, such as Wellington university lecturers and lawyers.
Ms Cull's move silenced the New Zealand press on workplace sexual harassment, and she was promoted to Queen's Counsel.
Any court process carries a risk of publicity, especially if it changes the law and others will use it as a precedent. Ms Cull would always be identified with altering the legal process to help her client hide his sex offences. It would mess up her attempts to claim to be a supporter of women lawyers. What was needed for both lawyers and clients was a form of private legal coverup without the publicity risks of a court case.
This came to fruition in 2014, and again Ms Cull was central. By "statutory interpretation", she and her friends successfully claimed that in employment law Parliament had said people could make a valid contract to commit crimes, such as hiding evidence, including the agreement to hide evidence. This is the famous "Record of Settlement".
That was the biggest confidence trick ever successfully pulled by lawyers in a developed nation that supposedly has an education system and a justice system, however basic.
This time, over twenty years on, Ms Cull's Wellington university clients had lied on their resumes, made false invoices, granted illegal promotions, stolen public money and faked email correspondence over several years. They had also faked themselves into high ranked jobs where they could pay lawyers a lot of money to buy them another free pass.
Ms Cull and Karen Radich, another ambitious Wellington employment lawyer, ran a highly complex fake investigation, using the fake records as real and paying myriad other lawyers to play minor roles. It still had a sexual element, in Gordon Stewart's fake "email relationship" - actually with himself. Created to damage the direct victim whose identity was stolen, instead it gradually became the way in which he and Tony Smith would bring about the wreckage of themselves and the other lawyers as well, and would bring the judiciary into disrepute.
Ms Cull was trying to get promoted to a judge post. Her clients at Wellington University promised to keep her own serious wrongdoing "confidential", especially the fake investigation, and destroy the evidence of it. So did the other lawyers.
Unfortunately for Ms Cull, her clients and colleagues betrayed her.
The solicitors removed evidence of their own wrongdoing but gave the victim evidence incriminating Ms Cull and Ms Radich. Ms Cull received her judicial promotion and became "Justice" Cull in 2016. Just after that, her own "confidential" wrongdoing started to go public.
It brought with it exposure of the lecturers' forgeries and frauds, as well as, later, the sexual activities exposed by Gordon Stewart's fake emails.
Leighton Associates are very interested in the press, public, judicial and government response.
The Victoria staff's new Dean, fresh from the Department of Prime Minister and Cabinet, acknowledged the offences of Justice Cull in perverting the course of justice, but agreed to support her and keep his job. The fraud offenders were allowed to keep the money they had defrauded the taxpayer of and to keep the jobs they had faked themselves into.
Over the next few years, more and more of Justice Cull's legal and judicial mates compromised themselves to protect her. Two Attorney Generals and a Minister of Justice publicly compromised themselves trying to cover up for her. They even tried to make extra suppression an international issue. Members and judges of the employment tribunals attacked the victim with their own fraudulent behaviour. A High Court colleague specifically allowed the Victoria staff and their lawyer a free pass for fraud. Three judges of the Court of Appeal said perverting justice was all good in New Zealand and approved the further perversions of the employment tribunals.
Other judges did the same to other victims. Banning orders were made. With a few exceptions - such as Newsroom, now being attacked directly by judges - the press obediently remained silent. Ms Cull's original banning still worked.
This set New Zealand well apart from the rest of the world ... maybe not Russia or China or Belarus ... . Its lawyers covered up fraud as well as sex offences, and managers, lawyers and judges successfully gagged the press as well as their victims.
In 2019, private suppression powers were extended from "Records of Settlement" to the "confidentiality" clause in any employment agreement. For example, this meant an employer could have a former employee banned from giving evidence against them in High Court proceedings, and the employee would also be ordered to pay for being banned. The power had been extended to third parties, so it became a universal banning power.
It also meant that the legal system for coverups was operating quite differently even from the US and UK, and changing law and policy entirely. Politicians supported the removal of human rights by just having judges who would refuse to acknowledge them. New judges were appointed whose records show they have legalised sexual assault, advised regulators on an illegal insurance deal with an arrested offender, and got orders to keep sex offending by a lawyer "confidential".
But as regards these "confidential" secrets - they are not very secret, are they?
Everyone who takes an interest knows who the lawyers and judges are and what they have done, just as people always know who supposedly suppressed defendants and convicts are.
If the coverups of coverups started to crumble, it would be like the downfall of Harvey Weinstein. Who would have expected him to go to prison? Not him. But there was public anger and there was a reckoning.
We feel there may be a similar reckoning in New Zealand. If it were government-led, it would assist the politicians, who otherwise risk losing international status for being at best weak and, some of them, obviously complicit. However it seems more likely that either a more honest judge will break ranks, perhaps considering the leniency they might get for what would be an effective guilty plea on behalf of the judiciary, or the international press will do some homework.
It may take only one ridiculous case to break it open, such as the one where a manager used public money to pay another private lawyer to launch proceedings against non-employees for exposing his stalking.
The advice of Leighton Associates is to purchase popcorn.