Fictional Record Taints New Zealand Supreme Court

The practice of inaccurate and incomplete public records at the New Zealand Supreme Court is going unchallenged and unreported.  Some lawyers express quietly that the simmering scandal is nothing new.Judicial.Hobbit

Most Kiwis are unaware the New Zealand Supreme Court does not record some judgments and does not allow  public access to filings and submissions in appeals where the Court dismisses the applications.  Of the “official” 199 applications determined last year, the Supreme Court allowed 22 to be determined on merits or question of law.  The 199 does not include “off record” rulings.  Nonetheless, only 11% of filings are accessible by custom.  However, some filings and/or submissions in in this minority are often suppressed.

Of the remaining 89%, the only “public record” is the Supreme Court judgment which rejected each application.  Aside from the proposed Trans-Pacific Partnership Agreement legislation, it is difficult to find an example of government appropriation with so little transparency.  One opaque bill in Parliament; 89% opaque rulings in New Zealand’s highest court.

To the unexperienced and uninformed, evidence of the New Zealand Supreme Court’s integrity is the absence of evidence to the contrary.   For the learned lawyers who must bow to the Court on occasion and live with its caprices, patronage and fear preside.  Neither exists by happenstance.  Considerable effort is required for selective record keeping and those in the loop know the risks of exposing the practice.

This lack of transparency is facilitating greater transgressions.  Chief among these is the use of Supreme Court rulings to misrepresent law or facts being raised.  As one recurrent example, twice in its young existence (Gregory v Gollan [2009] and Wenzel v R [2009]) the New Zealand Supreme Court rejected challenges to denial of jury trials on grounds some unidentified legislation only allows for judge-alone trials “unless the Court exercises its discretion to order trial by jury” and that any argument judges are not as fair as juries is untenable.   However, when one reads the sequestered submissions it becomes apparent no such legislation exists and “fairness” was not a ground of appeal in either application.  Both appeals had relied upon statutory guarantees provided by the NZ Bill of Rights Act 1990, and the Crimes Act 1961 in Wenzel’s appeal – relevant facts supplanted by red herrings in each judgment.  Because the Supreme Court prevents access to filings, the Judges are keenly aware they can claim applications say virtually anything without scrutiny.  The sheer knowledge no one can “fact check” your rulings is a huge temptation for abuse.

Of equal concern, rulings of New Zealand’s highest court are being issued by unrecorded, unreasoned and anonymous email … replete with a claim of legal privilege attached to the emails.

The Supreme Court recently dismissed three challenges to their Registrar’s decision the Supreme Court is exempt from legislation such as the Access to Court Document Rules 2009 – without any judge addressing merits of the challenges.  In April, Justice David Collins ruled the Supreme Court Registrar is immune from judicial review, before concluding no remedy in law may be available to challenge Registrar decisions. Collins added, “This may be a matter for Parliament or the Executive to visit.  It is not a matter that is within (a Court’s) power to address.”  

Although it is evidently important to any democracy when judges claim a lay registrar’s unlawful decisions are beyond their authority to correct, NZ mega-media conglomerate NZME. twice falsely reported these challenges for court transparency to be a relationship property fight over a first division lotto prize winning, complete with a close-up photograph of a lotto ticket.  No provenance was given to the false reporting.  A call to the Editor by the Court Applicant Malcolm Rabson produced an apology and a claim their reporting was government sourced, as well as correct if one went back to Rabson’s first experience with the NZ courts.

NZME. (New Zealand Media & Entertainment – don’t forget the ‘full stop’) no longer pretends by its name to safeguard the public’s interest in this democracy.  It is all media and entertainment.

Still, NZME. purports to shield 52 ‘news’ companies under its corporate umbrella in this country of 4 million.  These cash-strapped shells cannot afford to cover in-depth news, cannot afford to be wrong and cannot afford to take on the NZ government.   They increasingly spend what little money they have on lawyers who tell them what not to publish – not because the information is incorrect but because retribution for doing so will be fierce.  If you doubt this, ask yourself one question: “Name one investigative news journalist in New Zealand?”.

Then consider ever-smiling John Campbell.  Hardly an investigative journalist, when his liberal bent graduated to John unwittingly asking too many embarrassing questions to a vengeful government, bye-bye John.

It is no secret that the health of any democracy rests on an informed and engaged citizenry.  This is why an independent and intrepid press is regarded as the best safeguard against autocracy and tyranny.  Yet no ‘mainstream’ organisation is reporting these important facts.  Note the word ‘news’ is not mentioned in describing NZ media.   Therein lies the problem for New Zealand.

Powerful players in New Zealand do not tolerate criticism and are accustomed to taking liberties.  Unfortunately for the rest of us, geographical remoteness helps their ilk.  Cash strapped ‘media’ companies are not sued by beached whales and it is these considerations that dictate ‘news’ reporting in New Zealand today.   Bureaucratic whales do sue – and they quickly obtain injunctions prohibiting the media from reporting on the lawsuit as well.  It is all one black hole.  Sadly, because the death grip of the black hole extends beyond our shores and our closest neighbour Australia cannot be bothered reporting news within New Zealand, there is a huge obstacle to our collective fate improving in accessing important news.  The singing cat and toast with an image of Jesus stories which replace investigations into government deception and corruption gradually undermine an informed democracy.