Naming, Suppression and MBIE - by Sharon Ritchie

New Zealanders are allowed to know who killed Grace Millane and assaulted and raped at least two other women. When are we going to be allowed to know who is getting away with other offences?

Jesse Kempson’s name wasn’t really suppressed overseas. New Zealand criminal law requires reasons to be given for suppression, and none were. The overseas press actually carried on reporting his name as well as that it was suppressed without reason in New Zealand. Kiwis just couldn't talk about it or the Kiwi police would prosecute them.

Suppression – of bullying, names, documents, evidence and offences – is at the centre of the New Zealand employment law system as it has been developed over the past ten years. That too is now coming out into the open. It will come out overseas if it doesn't here.

If MBIE had not brought in secrecy and suppression, through authorising agreements and "settlements" to hide offences and evidence, and got the courts to enforce that, New Zealand employers and managers would not have been able to avoid accountability, or publicity.

But with a get-out clause for financial accountability as well as sex offences, questions are now being asked about whether New Zealand can sustain its international business status. There was a bit of fuss about sex offences, especially those committed by lawyers, but there are more serious signs of concern about the economic effects of hiding, rather than prosecuting, corruption and financial offences.

Perhaps ironically, given the publicity about sex offences and money claims especially by lawyers, the employment coverup system may be brought down by a case about safety regulations.

In 2010, a mine run by Pike River Mines Ltd at Greymouth exploded. 29 men were killed. The only director questioned was the recently-appointed Chief Executive, Peter Whittall. He was charged with breaches of safety regulations in 2012.

In December 2013 the prosecution was dropped. It took until November 2017 to establish that this was an illegal agreement between Worksafe, MBIE’s new safety department, and Peter Whittall, who by then had run away to Australia and refused to come back.

Another former director, Stuart Nattrass, said in 2018 that he thought questions should be asked why no other directors were even questioned, let alone prosecuted. Leighton Associates queries whether they were all protected by similar illegal arrangements that MBIE would call “Records of Settlement”.

But now there is open concern about "legal" agreements to get away with offences.

Peter Whittall didn’t buy himself out of prosecution. Lawyers, including lawyers paid by the government, organised it for him. The Supreme Court confirms it was always illegal.

A former lawyer, Christopher Harder, reported the Pike River affair lawyers to the Law Society for bringing the New Zealand legal system into its current disrepute. The New Zealand Herald reported on 23 11 2020 that the Law Society is considering whether to bring an “own motion” disciplinary action against Peter Whittall’s QC, Stuart Grieve, and Brent Stanaway, then Crown Solicitor for Christchurch and Greymouth. (Contrary to that report, which you can read here, the deal was not between Peter Whittall and the “families”. It was between Peter Whittall and MBIE.)

Whatever the Law Society does, the question is out in the open now. And it's huge.

If it’s illegal to obstruct prosecutions or hide evidence - as the Crimes Act 1961 and the Supreme Court say - then all of those employment lawyers and judges are guilty. But if the Law Society decides lawyers can do that without being disciplined, the New Zealand legal system is visibly not fit for business.

In a final twist, there has as yet been no suggestion of disciplining the Crown Law lawyer who defended MBIE’s illegal coverup contract with Peter Whittall in the High Court and the Court of Appeal. In fact, Joanna Holden is now an Employment Court judge.

Nor of disciplining the Law Society President who famously assisted the coverup of sexual assault and rape within the profession by getting injunctions from a High Court judge who, like her, was an employment lawyer. Kathryn Beck is also now an Employment Court judge. Peter Churchman is a High Court judge.

How awkward, especially for the Law Society’s Nikki De La Mare, who now has to decide between the devil and the deep blue sea.

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