New Zealand’s Latest Idealistic Kiwi

People who have been brought up in this system ought to know better.  But Gavin Ellis apparently let hisGavin-Ellis-UNESCO journalistic integrity get in the way of his knighthood path this month.

The facts are simple.  Gavin Ellis is a senior lecturer at the University of Auckland and former editor-in-chief of the NZ Herald.  He was also awarded the officer of the New Zealand Order of Merit – two steps away from a small-island-of-the-realm knighthood.  Two weeks ago he authored an op ed piece in the NZ Herald which advocated opposition to systemic oppression of the public right to know. There for the powers of the Middle earth universe to collide.

New Zealand could just be the most secretive democracy on earth.  In April of this year, the New Zealand chapter of Transparency International was presented with evidence of multiple off-the-record secret orders by Supreme Court of New Zealand judges.  TI-NZ directors voted to keep any mention of it off their board minutes so it could not be seen they were ignoring it.  Not that they need worry; their meeting minutes are kept private.  Residents with two eyes and half a brain know how secretive our officials and institutions are but we generally dare not speak it.  And exposing it is a sure way to get off the Queen’s year-end honours list.

But in his 15 August Herald editorial, Dr Ellis exposed institutional secrecy and pretence in a manner which is rarely if ever seen in the mainstream NZ press.  Moreover, the article heading – ‘Let’s Make Bill of Rights Supreme Law’ – was a call to action which defies government propaganda that the Bill of Rights is already being treated as supreme law.  By doing so Ellis likely put a target on his back, particularly if his numerous examples gain resonance in the public debate.

Dr Ellis focused on the right to know, which he observes is being eroded by bureaucratic mechanisms and legal exemptions which increasingly rely upon broad privacy and political ‘good reasons’ for withholding information we routinely take for granted as otherwise being made public.

Therein lies the insidious nature of the problem.  If insiders with a public voice are not exposing systemic erosion of the right to know how is it we can know what we don’t know.  This unconscious collective ignorance provides the underpinning for Ellis’ observation ‘Politicians know from experience that they can make inroads into our right to know without raising the ire of the public.’  It is difficult to raise the ire of people who are ignorant of the problem.

Dr Ellis is not exempt from this public ignorance.   He identified symptoms and catalysts as if he was issuing a warning of things to come rather than sounding the alarm about the murky Loch Ness we currently live in.  And his local conditioning was evident in his advocating ‘I argue for an over-arching safeguard by establishing the Bill of Rights Act 1990 as supreme law’ without realising section 6 of this Act already makes it supreme law, requiring judges to apply its rights above any other laws.  Like so many Kiwis his default position is that laws which government officials do not obey must not be binding law.  The ingrained belief is it cannot be that officials are merely evading compliance with the Bill of Rights – or, as the Supreme Court did in Attorney General v Chapman, officially exempting judges and their growing staffs from compliance with this supreme law.

It is faith in this greatest offender of legislation which binds its members that Dr Ellis pins our faith, stating that “the Supreme Court” will “review laws and regulations seen to be in breach” of the Bill of Rights if only they had the mandate to do so.

It was only last December that all five judges of the Supreme Court convened privately, without notice, ex parte, on their own motion, off the record and functus officio to decide an issue not before any court.  What prompted their unlawful actions was a request to the Supreme Court registrar to access public court records in a habeas corpus appeal.  It should not be surprising given this secret approach by the SC judges that the five justices unanimously concluded laws passed since 1973 do not bind them and that any member of their court can now issue a refusal for public access to the Supreme Court record, and that such a refusal is unappealable.  Not one dissenter.

The pace at which the Supreme Court of New Zealand and Court of Appeal are issuing secret orders is escalating at proportions no one outside the Court can fathom.  Yet issuing secret orders is no longer enough for our appellate judges.   In April of this year Court of Appeal Justice Mark Cooper issued a private ‘minute’ which directed hearing submissions before a full court of 3 judges be removed from the Registry and returned to the Appellant ahead of hearing.  Cooper J violated a central tenet of every court by not providing reasons for his extreme as well as seemingly unlawful order.  The Court of Appeal has refused to provide access to the public file or provide an answer as to why Judge Cooper’s unlawful breach of the Public Records Act 2005 requirement that the Court of Appeal maintain a full and accurate record was deemed necessary.    Like so many cases before our courts, the identity of the parties has been obfuscated with initials on court documents. No record of the ‘hearing’ has been released to the parties according to ‘NR’, one of the parties.  Considering Cooper J’s order that the ‘hearing submissions’ are to be expunged from the court record, it is doubtful the hearing itself could avoid a similar fate.