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The NDA-protected pedo: Could it happen here? - by Tristam Price

Updated: Jun 28



British sex offender Jimmy Savile was known to threaten people with defamation proceedings whenever his conduct was exposed, and as early as 1978 Sex Pistols frontman John Lydon was blacklisted by the BBC for his comments on Savile.


The legal culture in the UK did change, however, in the wake of Savile's death in 2011. Operation Yewtree saw several other celebrities jailed, including Rolf Harris. Hard evidence of cover-ups of sex offending came to the attention of Leighton Associates via the Harvey Weinstein matter. A 1998 NDA between Weinstein and Zelda Perkins had been brought before the UK Parliament and therefore into the public domain in 2018. Perkins had lived in fear of potential consequences of breaching it for nearly 20 years.


Could this happen in New Zealand?


Associate Judge Kenneth Johnston made, in our opinion, an excellent decision in 2014 which he probably didn’t realise the significance of at the time – he partially declined a non-publication order in a matter where sex offending had been confirmed.


Back then he was a barrister, who eventually became a QC for a few years before his 2020 judicial appointment.

In 2014 Johnston chaired a disciplinary hearing at the Teaching Council. A Principal of a lower North Island primary school had had to deal with allegations of sexually inappropriate conduct by one of his male teachers, and the allegations were strong enough to have the teacher quickly removed from the school. The teacher was eventually jailed for about a year for his offending, then formally struck off by the Teaching Council, in a brief hearing also chaired by Johnston.


There happened to be an employment lawyer on the school’s Board of Trustees, who had facilitated the offender’s quick departure in a way that avoided the risk of the teacher bringing a personal grievance claim. Maybe in the short term that saved the school the expense of having to hire a lawyer from a local firm at commercial rates, but in the long term it was a disastrous outcome not only for the Principal, but for the victims and their whanau.


A mediated Record of Settlement (RoS) was drafted, under the terms of which the teacher would resign “for health reasons”. Under Section 149 of the Employment Relations Act 2000 the terms of the RoS are final, binding and enforceable as far as the law allows. So far, so good. But unfortunately there was also a confidentiality clause that clearly overreached, hence the disciplinary hearing and finding of serious misconduct by the Principal (who had already resigned). Chairman Johnston stated:


On the afternoon of 24 June 2014, the mediation was held attended by [the Principal]. A settlement was reached with [the offender]. Following that, an announcement was made by the school to parents advising that for health reasons [the offender] was leaving the school.


and:


[Victim’s mother] went on to tell us that on the day that {the offender] was arrested she learned of the mediation, the negotiated exit and that [the Principal] had been involved in the process. She said that at no time had she or the school community been told about this. She said she felt that she had been lied to about the circumstances of [the offender’s] departure from the school, and expressed anger about this.


The mediation and the terms of the negotiated exit would have been in a RoS and it is the most egregious use of Section 149 we have ever seen. Its short term effect was to stonewall the parents of the victims, and contractually prevent the Principal from notifying Police and/or the Teaching Council about the allegations. That was aggravated by the fact that he was aware of the offender having secondary employment providing music lessons to children at his home. Subsequently, the offending continued at his home, during lessons.


Mediation, if applied correctly, might still be an acceptable method to urgently exit an employee who had been inappropriately touching children. But regardless of what was in the Record of Settlement, the Teaching Council and police should have been notified before the ink was dry. If that had happened, the Principal might still have his job and reputation.


The main purpose of this article is to explain the employment law mechanism for covering up serious wrongdoing, including child sex offending. To avoid distraction, we have not named the school, Principal or the employment lawyer who was on the Board of Trustees up to this point. But Kenneth Johnston did name them in his 56 page determination. We commend him for his decision not to anonymise those parties, thus making this article possible. Here’s the determination:


https://teachingcouncil.nz/assets/Uploads/CAC-v-Bremer-NZDT-2015-17.pdf


Back to Jimmy Savile – we have no knowledge of any Non-Disclosure Agreements (similar to RoS) attributed to the late British “entertainer” and sex offender, but as we see from the matter Johnston was called upon to resolve, this sort of thing has happened in Aotearoa. And that speaks for itself.

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