The Judicial Oath: an End to "Eff Off Jacinda"? - by Sharon Ritchie

The "scramble" between lawyers in the Trevor Mallard defamation case raises some very big questions about the way New Zealand is governed. Stuff reported it here.

The background to this is an employment investigation of sexual harassment at Parliament. Trevor Mallard, the Speaker of Parliament, said the harassment included a rape. He named the alleged rapist.

That man sued Trevor Mallard for defamation. He claimed publicly that people who knew him had identified him as the rapist in question and he felt like a "leper".

The lawyers settled the case. They agreed compensation, name suppression and the "sealing" of the court file, asked the court to make it into an order. That process will be familiar to anyone with experience of employment law in New Zealand.

The "scramble" was because Judge Peter Churchman said he wanted to hear argument about why "name suppression" should be ordered by the court. The lawyers had expected the judge to "rubber-stamp" their settlement contract and make it into a court order.

Courts do not have power to order just anything. The judicial oath is to administer the law of New Zealand, without fear or favour. Judges do not have power to order according to whim, whether it's their own or other people's..

What is legal depends on the will of Parliament, interpreted by the courts in accordance with their own established decisions. "Sealing" of court files is not part of New Zealand law, and in general neither is name suppression.

No orders should be made that are illegal, and orders that contravene the principles of open justice are illegal. Open justice is the guarantor of constitutionality and the rule of law. A country without open justice is a rogue state.

Parliament has legislated for name suppression in exceptional cases, namely criminal and family cases. The courts have limited powers to make suppression orders as a matter of "inherent jurisdiction" - to make the law work. The Supreme Court has been clear that only truly private, family information will be suppressed even if it is brought into a court case. There are similar rules about access to court files. It would not be legal to restrict access for any other reason. Even if that is what a court habitually does.

When a judge makes illegal orders, he is putting up two fingers, or possibly one, to the democratic system. It is a betrayal of the judicial oath. It is also more of a disaster the longer they get away with it.

What the parties in the Trevor Mallard case are asking the judge to do does not appear to be legal. They can agree that Trevor Mallard will not make the accusation of rape again, and it would be most unwise unless he had proof of it, but that is a matter of contract between the parties. People do not have to make accusations of rape. But for a court to order that reports of crimes could not be made, and proceedings could be conducted secretly about that, would compromise the justice system.

It is to Judge Churchman's credit that he has not "rubber-stamped" the request, particularly given his past as an employment lawyer, and his apparent "rubber-stamping" of the name-suppression of the name of the Russell McVeagh rapist when he was not facing due process and so had no right to name-suppression.

Illegal rubber-stamping of suppression of names and documents is how the Ministry fo Business, Innovation and Employment (MBIE) has wrecked New Zealand's legal system. It has also cast the shadow of doubt over innocent lawyers and officials - although Wellington lawyers know who the Russell McVeagh rapist was, for most people, any man who left the firm following the # Me Too scandal is suspect, and presumably the innocent men cannot defend themselves either, as the man is protected by a number of injunctions. What a tangled web ...

Where Judge Churchman referred to the risk of having one law for public officials and another for everyone else, Leighton Associates appreciates his analysis but disagrees with one aspect - judicial coverups are, or have been, available to anyone who can pay for them. They have led to harassment and fraud running unchecked especially in large institutions where the harassers and fraudsters have access to public money, but coverups from MBIE have become routine and cheap.

Once a legal system has gone wrong, it is very hard to put it back. Important men have got used to being able to do whatever they like and pay (generally with taxpayer money) for a coverup. They have got used to being able to destroy whistleblowers by the same means.

The rubber-stamping by MBIE officials of contracts will be a serious embarrassment for years or maybe decades to come, perhaps until the equivalent of a Harvey Weinstein conviction, where wealth and social influence are shown not to put a person above the law. Unfortunately with a number of judges in vulnerable positions, that may take some time.

We applaud Judge Churchman for taking a legal stance, hope he does not suffer too much at the hands of his less principled colleagues, and hope he keeps it up.

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