Human Rights Commission folds under Crown Law pressure

The Soviet dissident Alexandre Solzenitsyn once spoke of the Russian people “We did not care enough about freedom.  In the end we got what we deserved.”  It is an ominous warning for New Zealanders since we lost the right to appeal to the Privy Council.  This was made all the more evident last week after the New Zealand Human Rights Commission bowed to Crown Law and Supreme Court pressure.  The HRC reversed their position on the issue of criminally convicting participants at public meetings whose expressed opinions are deemed offensive by the designated “legal occupier” of the public building.

This was one of two human rights cases dismissed last week by the New Zealand Supreme Court.  Both have huge negative implications for New Zealanders and New Zealand’s image as a rights-respecting democracy in the world.  Nonetheless, the rulings have received no mention in the New Zealand media.

In Easton v the Broadcasting Commission SC 55/2009 [2009] NZSC 84, the Supreme Court validated the use of discretionary security costs orders by Judges to prevent claims by impecunious litigants from proceeding to a hearing.  This reversed well-established law that Courts cannot raise financial impediments to litigants which would singularly result in the bonafide claim not being allowed a hearing.

As alarming as this precedent is to reasonable court access, the case of Bright v NZ Police SC51/2009 [2009] NZSC85 stands as far worse testament of the dangerous erosion of human rights occurring in New Zealand.  This case demonstrates how the very organizations mandated to protect against civil rights abuses kowtow to Court proclivities to curtail human rights.  Consider last week’s case which the New Zealand Human Rights Commission wrote the legal grounds for, then claimed an opposite position after Crown Law shook their finger.

Penelope Bright was charged and convicted of criminal trespass during an Auckland Town Hall public meeting in 2006 for holding up a banner against the back wall which stated “Mayor Hubbard’s DICKtatorship is a cereal matter, don’t buy it”.  The obvious pun to Dick Hubbard’s cereal company sought to drive home the strident push by the former Mayor to get a planned – and since scuttled – waterfront stadium approved by excluding opposing views from the public debate.  The video of the meeting showed Ms Bright was quiet until the Mayor threatened her.  The Mayor ordered her arrested and charged with criminal trespass when she refused his order to leave the Town Hall for being disruptive.  Ms Bright was never warned of the criminal charge as the Trespass Act required.  This would be but a minor legal point on her conviction.

The legislation covering such public meetings is the Local Government Official Information and Meetings Act (LGOIMA).  It specifically allows for removal without criminal charge from public meetings and claims supremacy over all other legislation in relation to the conduct of public meetings.   The New Zealand District Court, High Court and Court of Appeal all stated that LGOIMA did not exclude the use of criminal prosecution when an attendee refused a request by the “rightful occupier” to leave.  All the lower court judges ignored the video evidence which showed Ms Bright had put the banner away before the Police approached her, was not warned for trespass and did not attempt to re-enter the building.  Bluntly speaking, all the judges agreed she was rightfully convicted of criminal charge because of her “offensive” banner, even though she put the banner away before being removed.

According to the Supreme Court ruling, the Trespass Act legislation co-exists with LGOIMA.  The upshot is all attendees need to be wary of offending the “rightful occupier” where the public meeting is conducted lest they end up criminally convicted and sent to prison.

This is dangerous to any democracy, but there is a deeper, more troubling story.  New Zealand Human Rights Commission lawyer Michael White wrote the submissions for Ms Bright to the New Zealand Supreme Court.  But Chief Human Rights Commissioner for New Zealand stated the Human Rights Commission could not intervene in the public interest unless the Supreme Court agreed to hear the matter.  Perplexingly, Ms Noonan stated a leave application to the Supreme Court was “not a proceeding”.  This proved to be a ruse by Ms Noonan.

It quickly became apparent that the close-knit judges on the Supreme Court wanted to avoid the nettlesome legal issue, and the Human Rights Commission potentially stood in the way of a clean brush off.  However this played out behind the scenes, the result was truly shocking.  Human Rights Commission “Principal Legal and Policy Analyst” Sylvia Bell wrote a letter to Crown Law stating the written submissions were not the position of the Human Rights Commission.  Worse, Ms Bell’s letter claimed Chief Commissioner Noonan “declined to intervene” in the public interest but would “reconsider” if the Supreme Court agreed to hear the matter.  This contradicted Ms Noonan’s (patently false) claim that the HRC were somehow prevented in law from intervening in an application for leave to appeal before the Court.  Ms Bell concluded by adding that the New Zealand HRC gave no undertaking to raise the issue before any international forum if the Supreme Court declined to hear the appeal (wink, wink).