A leading Wellington employment lawyer who is now a High Court judge is reported to be apparently rethinking the widespread New Zealand practice of using the legal process and even courts and tribunals to hide evidence. This has previously been discussed on Leighton Associates through considering Non-Disclosure Agreements (NDAs) which lawyers use to cover up disputes and sometimes crimes.
Judge Peter Churchman specialised in employment law before he became a High Court judge. As a judge he became well known for granting a "super injunction" to the Law Society to suppress the names of the Russell McVeagh lawyers who were accused of sexual harassment and rape on their student interns. If you cannot name a person, you cannot hold them to account, and they are effectively then above the law.
During a similar investigation about sexual harassment at Parliament, the Speaker, Trevor Mallard, said that a man who worked there had been accused of rape. The man was allowed to bring defamation proceedings anonymously as "PQW" and Judge Churchman heard the case. Anonymous proceedings will be very familiar to anyone who follows New Zealand employment law.
In the end the defamation proceedings were resolved by consent, which included an agreement to "suppress" the man's name. Anyone who follows New Zealand employment law will know that "agreements" are routinely used to suppress evidence. including evidence in other proceedings such as in the High Court, and to prevent police investigation of offences.
The consent agreement was made into a court order. That's also routine in the employment Authority and Court because in New Zealand they will suppress evidence. The Authority is part of the Ministry of Business, Innovation and Employment (MBIE), so that damages the position of the Court, but the Court co-operates in that and the other Courts go along with it, which means there is no rule of law.
The Authority routinely "suppresses" agreements for less than $72, which could be very useful if you agree you have something you need to get away with!
At the end of last year, Trevor Mallard then spoke to a Select Committee of Parliament about the defamation case.
It was reported here that there was a "scramble" by the lawyers involved in the Parliament investigation to get a stronger and more permanent suppression ordered by Judge Churchman. The original order was taken down.
Newspaper reports earlier said that Geoff Davenport was involved in the case at Parliament. He is a Wellington employment lawyer known for having successfully claimed in the High Court, in a case also involving High Court judges Helen Cull and Christine Grice, that they were entitled under employment law to get away with fraud and perverting the course of justice.
Geoff Davenport is also known for his relationship with the disgraced London City lawyer Mark Mansell, who is being prosecuted by the UK Solicitors' Regulation Authority for perverting the course of justice - by a consent agreement.
Mark Mansell is famous for being named as one of the lawyers who obtained NDAs from victims of Harvey Weinstein, tricking them into believing they could be bankrupted or sent to prison for reporting his crimes. In reality, it was the lawyers who were the criminals, because buying off witnesses is perverting the course of justice. That was why they needed to suppress the NDA agreements - it was evidence of the lawyers' crimes.
Mark Mansell's crimes only came to light because many women in the # Me Too movement stood up to Harvey Weinstein and other predatory men together and, in the UK, Parliament held a Select Committee inquiry about sexual harassment in the workplace.
Parliament is the highest court and in the UK is recognised as such. Mark Mansell was called to give evidence to the UK Select Committee and so was his victim Zelda Perkins. She had to get her NDA through Privacy channels because she hadn't been allowed to keep a copy, but she gave it to the Select Committee as evidence. It has Mark Mansell's name on, but her own lawyer's name is blanked out.
No other lawyers were named in the Select Committee, and only Mark Mansell was prosecuted. The prosecution has been dragging on for years.
Just recently, Mark Mansell claimed he should be let off prosecution for perverting the course of justice by the Solicitors Regulation Authority because, his lawyers said, the NDA agreement was suggested by Zelda Perkins' own lawyer, and because someone else in his firm did most of the work on her NDA.
What they were really saying was that conspiracy to pervert the course of justice was done by lawyers all the time.
The difference between the UK and New Zealand is that in the UK the lawyers hid the contracts because they knew they were evidence of the lawyers committing the offence of concealing evidence or perverting the course of justice, but in New Zealand the crime was enforced.
It sounds strange to put it like that, but it is a very strange thing for a court to do.
However it is less strange when you remember that the courts are staffed by judges who were previously lawyers. It is also less strange when you remember this method of enabling frauds was developed by employment lawyers who became judges and need to hide what they have done before. They are probably the only people who can make fraud or money-laundering legal, if Parliament doesn't. Parliament has made it illegal, but the courts accept the Authority (MBIE) saying it has a workaround.
In the UK there is more of a history of lawyers hiding sexual offences than money-laundering, but Mark Mansell was the only lawyer named in the UK Select Committee and by the Solicitors Regulation Authority. It appears that he was prosecuted because he was named in Parliament
It must have looked quite frightening for any New Zealand lawyers who were trying to suppress evidence about what really happened at Parliament.
In England, naming in Parliament by principled MPs has a long history of being the way to deal with judges who are felt to be overstepping the mark in hiding evidence.
The first time was in 1981, when one of the "Westminster paedophiles" was named by Geoffrey Dickens MP as Sir Peter Hayman. He was part of a pressure group for legalising sex with children, and was not being prosecuted for paedophile offences. After he was named in Parliament, he was convicted.
Later a combination of naming in Parliament, media reports of suppression orders and material circulating outside the jurisdiction meant that judges could not suppress information about toxic waste dumping in Africa (the Trafigura affair in 2009) and the man involved in an extra-marital affair (Ryan Giggs, a footballer) where the woman was publicly named but told she could not defend herself because of a "gagging" order by Judge David Eady.
Judge David Eady, was central to developing these suppression orders. He seems to have hoped they would become the rule. The Prime Minister, David Cameron, ordered a parliamentary inquiry about his behaviour because he said he was trying to make laws that only Parliament, in a democracy, should be in charge of.
In one of his anonymised orders, Judge David Eady claimed power to suppress information identifying a man who had been blackmailed apparently with sex photographs. Judge Eady said the suppression applied anywhere in the world.Trying to suppress evidence globally was a new idea. He might even have been trying to control evidence in New Zealand.
As was also pointed out in the Wellington Parliament case, suppression of a person's name, rather than specific allegations about them, is claimed by lawyers to mean that the person then cannot be held to account before the courts for offences.
Anyone looking at the NDA Mark Mansell was prosecuted for, most of which can be read here, can see that was what Harvey Weinstein paid him and Zelda Perkins' lawyer to do. It is obvious from the wording of the agreement that they thought they were buying Zelda Perkins off reporting crimes by Harvey Weinstein, and it is obvious from the subsequent conviction of Harvey Weinstein that that was exactly what they did.
It is no surprise to learn that Geoff Davenport worked with Mark Mansell at his firm of Allen and Overy.
According to Mark Mansell's lawyers recently, many lawyers habitually obtained illegal agreements to cover up criminal offences. That argument did not get the prosecution withdrawn. But they did succeed in getting a stay of the prosecution because Mark Mansell now feared for his life if it went ahead.
So the difference is that Mark Mansell is being prosecuted for the illegal NDA, and is in danger of either suicide or fatal attack related to the case - but in New Zealand, Geoff Davenport and other New Zealanders, including judges, can enforce the illegal NDAs in to obstruct and escape justice. Lawyers like Geoff Davenport can also submit bills to the taxpayer and get the judges to approve them.
This practice became routine in employment law because employment lawyers and employment Authority members, who are employed by MBIE, and then Employment Court judges, claimed that illegal agreements overrode Parliament if MBIE signed them off. MBI routinely signed off agreements to suppress evidence which lawyers had advised their clients to sign, and the lawyers billed the government departments, also not telling them they were being billed for something illegal, so what the rest of the world would call serious corruption was just normalised in New Zealand.
This is just the same as the employment Authority routinely making "super injunctions" to cover up the reporting of crimes by suppressing documents illegally. That may explain why Judge Churchman was so ready to "super injunct" the victim at Russell McVeagh and why the lawyers for PQW and Trevor Mallard thought they would also get suppression "rubber stamped" by him.
The problem of suppressing evidence of crimes has become New Zealand's ticking time bomb. As Leighton Associates has discussed, as well as making sexual offending easy and safe (which the employment Authority, at least Member Fitzgibbon, has also done openly with her 'Fun Bum' case in 2014), it makes fraud and money-laundering very easy, and gives it State support.
That State support has become even easier to obtain since the employment Authority started suppressing evidence if the "consent" was in an ordinary employment agreement, not requiring it to be signed off by MBIE. Public bodies began adding clauses to employment contracts explicitly excluding rights of free expression that Parliament had given. Anyone wanting a job had to sign up to it - even if it was illegal.
It seems that Parliament may be going through a charade addressing Protected Disclosures legislation when the lawyers and judges have already institutionalised a workaround. It is less clear that MPs have been properly advised as to what they are supporting. The problem when corruption is so strongly rooted is that it is very hard to deal with, because the usual way to deal with it is through the courts and judges. That has not worked in these cases. It must be easier for everyone including MPs to look the other way.
Although Transparency International has again recorded New Zealand as top of the corruption perception index, it does not comment on the judges suppressing information about corruption. That might have been put forward as the ultimate in State corruption itself. Nevertheless the judges, by going along with it are making the story so big, they are putting themselves at risk.
It looks as though at last a High Court judge is at least asking whether it is a good idea for judges to "rubber stamp" agreements to suppress information and evidence. Leighton Associates say that the courts should not make orders that overturn the intentions of Parliament. It is good to see some questioning about actions that put the rule of law and the reputation of New Zealand in danger.