Notions of Criminality in Employment Law - an interview with Professor Achilles Tottle-Hoaxha

Updated: Mar 13

Leighton Associates are delighted to invite a learned Professor from Europe to explain how employment law has changed criminal law in New Zealand. Using employment law, victims of crime and their supporters can be punished as criminals instead and employees can be ordered to make payments to employers without the inconvenience of normal legal contractual principles.

So, Professor, how did you get interested in this question?

My interest is the law. Law is power. I also became interested in how the common law jurisdictions work when I looked at those.

In a democracy we give the power of the people to our elected representatives at Parliament. Parliament is supreme.

Parliament tells us what we can or cannot do. That is democracy. Parliament makes laws which give everyday power to the executive, which means the government officials who carry it out. That is public law. Parliament makes laws telling individuals what they cannot do. That is the criminal law.

The judiciary interprets and enforces the laws. Real power lies with the judiciary. They have real control of what the executive does.

Or, real power lies with the executive. They can do whatever they like, if the judiciary will let them.

Parliament is not necessarily supreme, in fact. I find that very interesting. It means anyone can become supreme.

Why did you choose to research your question in New Zealand?

New Zealand was ideal for the experiment.

New Zealand took back control in 2004, when it finally broke with the UK and established its own Supreme Court.

What New Zealand judges say will be the law. No more interference from the UK. New Zealand became sovereign.

And Kiwis are suitably deferential to their betters.

We had already seen how the judiciary in the UK had changed the criminal law in the UK by suppressing evidence by court order. That meant it was impossible to bring a prosecution.

We decided to see if the judiciary would change the law generally so that evidence could be routinely suppressed, cheaply and easily, without the risk of the "Stresand Effect".

And so that the person brought before the courts was not the person in breach of the criminal law as such, but the person reporting the crimes. So the criminals could use the law to suppress their victims.

Then the victims became the criminals. [Professor laughs] New Zealand judges were very happy to find such a clever trick at their disposal.

What is the "Streisand effect", Professor?

That is when someone sues about a breach of their privacy, for enforcement of their right to privacy. Court proceedings and privacy are the opposite of each other, because of the principle of open justice. Ms Streisand, a singer, tried to suppress a photograph on the internet. The attempt at suppression alerted the whole world, and there were thousands of hits.

We were looking to enforce privacy and close down justice. We needed a low-level solution.

How did you go about setting up your experiment?

We needed the judiciary to be willing to transfer power to the individual, away from Parliament.

Of course their duty as judges is to interpret the will of Parliament. Of course some judges might have committed crimes themselves, or as lawyers might have been paid to suppress evidence of someone else's crimes, and want a way to make that secret as well.

Social connections are still the most important route to the judiciary in New Zealand. But their social group is not a very critical group. We were able to join them for drinks, so to speak, and gain their confidence over dinner.

One needs only a suit and some titles, which really is a small investment. We obtained government appointments to give us the titles required.

We also needed Parliament not to object. The most important route for suggestions to Parliament was the Law Commission.

In 2006 Sir Geoffrey Palmer addressed the Victoria University Centre for Public Law and identified our era as one in which the law itself became "word games", and lawmaking was increasingly delegated by Parliament to the executive. It was a perfect opportunity.

New Zealand's MPs simply had to be told it was unconstitutional to consider what the judiciary was doing in the courts, and to be told that their own words, the words of Parliament in their statutes, meant what we wanted them to men. They believed us. It was perfect ! And really very amusing.

Of course it was helpful that their advisors told them the same thing. The MPs believe their advisors. The advisors can effectively control Parliament if the MPs don't ask too many questions. Well, thankfully, they don't.

Then we saw there was an executive body which dealt with employment agreements and minimum employment standards - and the advisors at the Ministry of Business, Innovation and Employment had complete control of its rules. Those rules include a rule that evidence of crimes can be excluded just because it is evidence of crime. Then, overall, you can get a suppression order anyway.

The adjudicators in that body, the Employment Relations Authority, were not required to be lawyers. Some of them are, like our friends Anna Fitzgibbon, or Rachel Larmer or Vicki Campbell. The lawyers and judges were happy enough to engage with our experiment anyway. It was really quite simple.

Public law requires that a public body has authority from Parliament for all of its actions. We proposed that, instead, the adjudicators regarded themselves as having authority to do anything Parliament did not prohibit.

Since this body was called the Employment Relations Authority, to make it look plausible, they would need to find a connection with an employment agreement. They were happy to say that anything an employer wrote into an employment agreement was part of a "contract for services". So really, anything an employer wanted someone to agree to, to get a job.

A small tweak, but a vital one!

We were ready to move.

Professor, are you sure that the Employment Court allows people to claim evidence of their own crimes has to be excluded in case it gets them into trouble?

Yes, I think you'll find that Employment Court Regulation 44 (3) (b) says exactly that.

It means that if you can bring a case in the Employment Relations Authority, you can have evidence of your own crimes suppressed, say by enforcing a confidentiality agreement against an employee.

Of course you have to get the Employment Relations Authority to adopt the power to hear cases about confidentiality agreements, which are really property actions to protect trade secrets. You have to get them to regard the boss' criminal practices as a trade secret, and to regard a contract to protect trade secrets as a contract for services.

It wasn't difficult though. The adjudicators were very happy to extend their own powers to "trade secrets" about sexual matters. And matters of, say, procurement, or promotions, or what have you. Plenty of "trade secrets" out there!

Where do you get your ideas from?

What people care about is sex and money, and power. Those give people ideas about how to get them.

In the 1970s, the idea was quite simply to legalise whatever you wanted to do. Lawyers are used to being paid for working in the law but they thought it would be rather good if they could get paid for changing the law as well.

For example, in France a number of literary types petitioned the government to legalise sex with children, which is always a popular idea with some people, but it was managed better in the UK. The "Paedophile Information Exchange" group received grant funding from the Home Office and had an input into Criminal Law Reform.

Then I am afraid the wind of public opinion changed. The public turned against adults loving children. So the judiciary rather than the legislature became the target. They could not change the law to allow such love, but they could suppress the evidence of it. That meant there could be no prosecutions.

That is where the judiciary came in. They could make suppression orders and it was much more effective than the old ways of having to sue for libel, which was always somewhat risky. You had to rely on a preliminary injunction being enough to frighten everyone, and the proceedings never being conducted fully.

Once a judge has made an order, even a preliminary order, it is contempt of court to breach it. If the order is to suppress evidence, no-one can challenge it without breaching it.

It's really quite simple to do. You just need the judiciary on board.

Now as regards child love, that caused some disputes in the UK.

Can you tell us more about that background, Professor?

Certainly. Journalists and the BBC will obey suppression orders obtained in private proceedings. It was always very easy to obtain an injunction during libel proceedings, and then just never pursue the actual proceedings. Robert Maxwell did the same about his theft of his employees' money. The suppression of any supposed crime is the same from the legal point of view.

Now, publications are libellous even if they are true. It is a defence that they are true, but difficult and expensive to prove, especially where the allegations are about private matters such as sex.

The BBC insisted everyone kept quiet about the sexual behaviour of Mr Jimmy Savile, for example. Rather amusingly, it was Mr "Johnny Rotten", a self-proclaimed Sex Pistol, who objected to that.

It worked until after Mr Savile's death. Of course libel proceedings do not work after death, so an interlocutory injunction loses its power at that point. The whole process collapses. Look at how the journalists poured out their woes about their missing pension money when Mr Maxwell died.

One needs a final order.

All the judges will respect and enforce a final order. They really are delightful.

Is there no way round a court order that suppresses evidence?

Not in general. The judges have control of their own proceedings and they have powers to enforce their own orders. If you have a high enough judge, they can order anything. They can suppress information about what they are suppressing. It really is excellent.

We were fortunate to have the support of high enough judges. Only Parliament is a higher court.

MPs in the UK would use parliamentary privilege - which is the right of Parliament to hear whatever evidence it likes - to reveal information they consider to be in the public interest. A Mr Geoffrey Dickens MP used parliamentary privilege that way against a diplomat who was part of the Paedophile Information Exchange. In 1981 he exposed him in Parliament.

We raised some protest that it was an improper use of parliamentary privilege, but it kept happening. It damaged the suppression of all sorts of trade secrets, such as pollution dumping reports. If MPs are vigilant, getting round the law really is a problem.

But there is no such problem in New Zealand. Members of Parliament are very ready to obey suppression orders. You just have to make sure their advisers tell them they have to do it. They will believe anything.

They believe they gave the Employment Relations Authority power to suppress "publication" of anything, and that that means whatever they order suppressed cannot be shown or spoken to anyone.

They even believe they gave the Employment Relations Authority adjudicators power to hear property cases, about enforcing "confidentiality" about trade secrets, and they believe they gave the adjudicators power to define them as including managers' sexual secrets as the sort of trade secrets an employment "confidentiality clause" will cover. And then they believe they cannot question what they are doing, because the adjudicators are judges.

Quite wonderful, I tell you.

Aren't the Employment Relations Authority adjudicators judges?

They perform judicial functions. They are given judicial immunities, so they cannot be sued for their decisions. Provided of course they had a power to take those decisions. But, usefully, they straddle the divide with the executive. They are government employees, "members" of the Ministry. The masters in the Ministry have complete control of the employment rules and procedures.

That was another useful move in 2004. Parliament also said that the only criticism to be made of employment decisions by any external court was that there was no "original jurisdiction". That means the adjudicators could be as unreasonable or procedurally improper as they liked. The same for the judges in the Employment Court.

The issue of power is different, but once the adjudicator has decided they have power, who is going to stop them using it?

Of course adjudicators and judges cannot decide for Parliament that they can suppress evidence of managers' criminality. But if they say Parliament gave them that power, it would be very unlikely that an employee could tackle them all the way to an external jurisdiction.

In any case, we already had the judges on side in case that happened. Really, managers should not be put in a position where their sexual proclivities can be exposed to the world by insubordinate employees, and judges would be able to identify with that.

Anyway, Judge Corkill has said the adjudicators are conducting judicial proceedings. So I think that must be enough and now that must be the law. Isn't it wonderful?

But you said New Zealand was an experiment? How is it different from the UK experience?

Yes, in the UK it became routine to obtain "non-disclosure agreements" about managers' sexual proclivities. Rich men would pay victims of their proclivities to be silenced. They could also be threatened with loss of their job or career, or being sued for libel, if say they reported a rape. So that was quite effective.

It also established a link with employment and employers' rights, which of course was what we needed to make it work routinely in the Employment Relations Authority without anyone noticing.

It was risky though. Those "non-disclosure agreements" were not enforceable if they suppressed evidence of crime. In fact, suppressing evidence of a crime is a criminal act, according to Parliament. We had to make sure Parliament didn't make sure that part of the law was actually used.

In the UK the lawyers to begin with simply suppressed the evidence of the criminal "non-disclosure agreements" by telling the victims everything was so secret they could not have a copy.

So that was another layer of criminality, by the lawyers, because they were suppressing the evidence of their own criminality. All really quite inconveniently complicated!

[Professor laughs] We had the right people on board for a simpler process in New Zealand. Look at the arguments over the suppression agreement with Mr Peter Whittall, the mining company manager. The Ministry defended that, obviously at public expense, advised by Counsel Joanna Holden from Crown Law. The judges supported it all the way up to the Court of Appeal.

[Professor stops laughing] Always a risk, though. The Supreme Court overturned that deal. But the insurance company has not asked for its money back and Mr Whittall has not been prosecuted, and Ms Holden now has a judicial position, so all good we still think.

Didn't you think there was a risk in turning the law round to suppression, and away from the democratic principle of open justice?

Risk of what? We are not trying to uphold democratic principles or the rule of law, remember!

But you are right that the common people and MPs like to think that is what their judges do, and the common people and their MPs must be appeased.

In the UK we developed "privacy" laws instead. It meant we did not have to claim that the managers' sexual behaviour was a trade secret. Though [Professor laughs] of course it rather was the biggest trade secret of all!

In the UK, we claimed secrecy it was a "human right", which meant getting a court order to make that into a weapon against a victim. And the court process is risky, in case a journalist attends.

In New Zealand we had other weapons.

We said that Parliament had allowed contracts to commit crimes, if the Ministry signed them off. We said it with a perfectly straight face. Some of the judges believed us, I think. Others of course found it quite useful.

Luckily the Attorney-General was also happy to go along with all that, which meant Crown Law and the judges were not put in any difficult position.

We also said that Parliament had allowed such contracts to be made in secret, if the Ministry held a secret "mediation" meeting. We said the contracts were then secret themselves. And that the court could enforce that secrecy.

We told everyone that when Parliament said there was a "penalty" for something, the adjudicator did not need a provision saying what the "penalty" was, from the statute or the general law. We said it could be anything the adjudicator wanted. We also said that as it was in the nature of contempt, the principles in our contempt review for the Law Commission meant each individual breach could attract a penalty.

As you know, this worked perfectly, even though of course it is arrant nonsense.

Ms Larmer found she had power to "fine" a man nearly half a million dollars for criticising a Rest Home. Gave the Rest Home's lawyer a chunk of it for his own beer money.

Professor, I am not sure that lawyer is a drinking man.

Of course, excuse me, I was a little carried away there ...

Our greatest breakthrough was Judge Corkill sending that whistleblower to prison, rather a wholesome matter, just fraud and no sex at all, to show that we meant business. I think you have reported on that at Leighton Associates? Geoffrey Brown? Yes, brilliant move by the learned Judge, wasn't it? [Professor laughing his head off]

Then sex attackers and a rapist in Wellington - lawyers in fact - obtained not just a secret contract to suppress investigation of the rape, but injunctions suppressing the contract and even an injunction suppressing the injunction. They did not even have to pay for it as we understand it.

We understand the firm paid for victim to be "advised" to sign the initial contract. [Professor laughs] That is the usual way. The victim can then have her lawyer paid off for her as well. It would be tax-deductible.

We understand in fact that the firm then paid for the Employment Relations Authority to make an order suppressing the contract, although as that is suppressed, well ... More arrant nonsense, of course, but most effective. Then Kathryn Beck as President of the Law Society took over after that, so the Law Society enforced the arrant nonsense against a young man who was sent some details by mistake. Justice Peter Churchman suppressed the enforcement. Employment lawyers all of them.

Nearly entirely excellent.

Very bad luck that it ever came to public attention, but also useful, because it makes us stronger when nobody thinks to say anything.

Except Olivia Wensley, bit of a fuss, but her legal career is over and nobody takes any notice of her any more.

So perks of the job, professional courtesies, lawyers and judges clubbing together to protect themselves from being accused of perverting the course of justice. Which of course is just what everybody does. [Professor laughs]

Speaking of Olivia Wensley, did the # Me Too movement affect you at all?

Each challenge makes us stronger, as I say.

The reputational risk to the judges meant we asked Parliament to pass a law against saying anything about a judge that would undermine confidence in the judiciary. [Professor laughs] So they could never be criticised at all, certainly not for anything serious.

[Professor stops laughing] Unfortunately the MPs actually did spot that.

But then we were able to put our UK experience to good use.

You will remember that there, the judges suppressed the "trade secrets" [Professor laughs again] by court order, so they could prosecute the victims for contempt if they revealed the "trade secrets".

We simply argued that the Employment Relations Authority could make suppression orders, as wide as they liked. And then that Parliament should give the lawyers power to enforce adjudicator's determinations by contempt proceedings, as though the adjudicators were judges.

Which they would like to be, and as we see the Attorney-General has fulfilled Anna Fitzgibbon's fantasies for her, which is so lovely of him. And her most famous judicial creativity was of course the "Fun Bum Slap" which employers are now entitled to.

So we suggested that the managers' lawyers could "register" any order of the Employment Relations Authority in the District Court, and get an injunction, and prosecute anyone who said anything for contempt.

I am delighted to say that all the judges believed us. Or pretended to. It really is excellent.

And Joanna Holden and Kathryn Beck are both employment judges in the upper tribunal, the Employment Court, and we see the external courts deferring to them about everything. Including the extent of their powers and the ability to suppress evidence of anything, anything!

So in the New Zealand experiment, I would say if anything the # MeToo movement allowed us to reinforce secrecy, because lawyers were allowed to suppress evidence from their own victims about their own .... [Professor laughs a lot] ... "trade secrets". Their firms or their Ministries would pay for the suppression.

You have reported, I think, on Anna Fitzgibbon bringing in a "Fun Bum Slap" law?

Yes, that's right, Professor. That would be the Ellie Newman case back in 2014.

Well, I think you have also reported on the Employment Relations Authority bringing in a power to enforce "trade secrets", through calling it a "breach of trust and confidence"?

That would be the Rooney case, in 2009.

That's right. You see this has really been a very longitudinal experiment.

It was ten years from Rooney before trade secrets were enforced as such, in the Tradestaff case, rather than a case being brought under a heading in the Employment Relations Act.

I think you have also recently commented on the use of the Tradestaff case as a precedent in the Bananaworks case that is current in the Employment Relations Authority, with property lawyers and commercial lawyers all [Professor laughs] putting in their bills?

Yes, we have. But that all now seems quite complicated, Professor. Are you continuing your experiment?

Yes, of course. We would be in a very bad way if we could not. All these "banana works" - we are actually doing very well.

The suppression provisions have to be brought into any inquiry about suppression, protected disclosures, that sort of thing. But that's quite amusing too.

Parliament promises to reject submissions to it that are in breach of orders for suppression, so we are actually seeing Parliament kneel to the Ministry and the Employment Relations Authority and reinforce them. It really is most excellent.

All we had to do was tell the MPs it was unconstitutional to criticise judges' ... well, the adjudicators' ... decisions on contract law. And we made them think they are helping with "human rights" and "privacy". They like to hear that.

So far it has gone very well. I don't think any MP has dared to suggest that suppression is a bad thing!

There was a lawyer suggesting that last year, but he met with a freak accident, I'm afraid.

We mostly have our lawyers and judiciary completely on board.

In the UK, we saw human rights emphasised with the inclusion of Mr Ben Emmerson QC as the top lawyer in an inquiry about suppression of adult - child relationships, adults loving children as I said earlier ...[Professor laughs] ... important men in Westminster, the Houses of Parliament. Mr Emmerson is very famous for his involvement in international war crimes. Or he was, anyway. It was an unfortunate series of events ... ... He is still an Honorary Bencher of the Middle Temple.

We sent our own Dame Lowell Goddard to chair the inquiry. She became the highest-paid civil servant in the UK. On her appointment, criticism of her in New Zealand was raised, and she told the UK Parliament that defamation of her had been suppressed by court orders, and her defamer had been imprisoned for contempt. Just excellent.

After her resignation of course she was accused of suppressing evidence and not pursuing [Professor laughs] "trade secrets". She was told to attend Parliament to explain.

Defamation proceedings were suggested by her own QCs, Geoffrey Palmer, now a Professor at Victoria University, where he gave his 2006 lecture that inspired us so much, and Hugh Rennie, a colleague of Professor Palmer, whose wife is an employment lawyer. They said she was certainly not going to submit to Parliament and risk the abuse of parliamentary privilege against her.

Weren't there suggestions of contempt of Parliament?

It's all satisfactorily quiet now. Absolutely silent.

Thankfully nobody in New Zealand has mentioned contempt of Parliament, even when it was brought up in Scotland recently. I do think we will be all right.

We have someone giving a very nice lecture with drinks and nibbles about this, if I could just have a little ad break? 16 March at Victoria University.

Professor, thank you.

Not all, Leighton Associates. Really, thank YOU.

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