Updated: Oct 4, 2020
There are many Kiwis who truly believe that Aotearoa New Zealand is corruption free.
Transparency International’s index puts New Zealand at the top of the list of corruption-free countries. That index is about the perception of corruption. It’s about what Kiwis say they see.
What if you could make sure nobody ever said they saw corruption? What if you could could get people to believe that it was wrong to speak up if you thought you saw it, and you could make an example of whistleblowers to show you meant business?
The lawyers and judges of the Employment Court show us how you can get that done. They have put it all on their websites to make sure we understand.
Geoffrey Brown, an IT Expert from A Local Authority, Tauranga City Council, alleged he found corruption. He downloaded the evidence and talked about it.
The Council said the Protected Disclosures Act did not apply.
Allegations were produced by the Council. The employee and his family suffered. He got lawyered up with local lawyer Bill Nabney, and an end was brought to it in mediation. On Bill Nabney’s advice, he signed a settlement agreement with the Council.
The IT Expert resigned from his job and agreed to give back the evidence, and not to disparage the council, and to indemnify the Council for their costs in implementing the settlement agreement. The MBIE mediator signed it off for the government. The whole story all set out in the legal case reports.
We don’t know whether the Council paid off its employee or Bill Nabney, but that would be usual. The Council officials weren’t using their own money anyway.
Geoffrey Brown continued with his disclosures.
The Council enforced the settlement agreement, which was mostly about keeping quiet.
Geoffrey Brown did not keep quiet.
First of all Mike Loftus of the Employment Relations Authority enforced it by injunctions not to talk about what the Council had been doing. Then he fined the employee for speaking up anyway.
Then the case went to the Employment Court.
First Judge Christina Inglis confirmed high claims for costs from the Council. They wanted the IT Expert to give them indemnity for the costs of the legal cases against him and for the cost of psychological treatment for the poor officials who had been very upset by almost being exposed.
The Council used Judge Inglis' orders to bankrupt him.
Then Judge Bruce Corkill reinforced the injunctions of Mike Loftus by also ordering the IT Expert to keep quiet. Judge Corkill made court orders against him but Geoffrey Brown kept blowing that whistle.
Judge Corkill sent the IT Expert to prison, technically for contempt of a court order, which was an order to comply with a settlement agreement, but really it was for whistleblowing.
Tracing the power to send someone to prison for reporting allegations of corruption, it comes from the law that, if an MBIE mediator signs a “record of settlement”, that means it is enforced without question, or as Judge Corkill said “to the letter”.
That’s not usually the law with agreements. Usually they will not be enforced by a court if they are agreements to commit a crime. If the courts enforced criminal acts that would be corruption.
Hiding evidence is a crime. Interfering with witnesses to a crime is a crime. Usually an agreement to hide evidence or not to give evidence of a crime is an “illegal contract”. The law says those are “ineffective”.
But Mike Loftus and Judge Corkill said that employment law says that a “record of settlement”, as well as an employment agreement, is enforceable if it is signed off by MBIE.
The law says a settlement agreement signed off by MBIE is enforceable if it can be enforced by the parties.
Can an agreement to pay someone off with public money, to hide evidence of corruption, be enforced by the parties in New Zealand? Judge Corkill says so. And since Judge Corkill is a judge, if he will enforce a contract to hide evidence of corruption if a party applies – that means an agreement to hide evidence, if it is signed off by MBIE, is enforceable by the parties.
Since the Judge does it, obviously it cannot be corruption, because it is in fact legal and the law says so.
And the Court of Appeal said Judge Inglis and Judge Corkill were allowed to do what they did to Geoffrey Brown and the Court of Appeal would not ask them to reconsider.
Luckily none of this is perceived as corruption because Judge Corkill would probably also send someone who said what judges do is corrupt to prison as well.