SST Editor takes job at Law Commission
August 19th, 2008 at 5:18 pm by David FarrarSunday Star-Times Editor Cate Brett has resigned to take up a job as Senior Policy and Media Adviser to the Law Commission.
Fairfax have denied the rumour that they have appointed Nicky Hager as the new Editor 
Professionally, I’ll be very interested in Brett’s new work:
Ms Brett, who has a long-standing interest in media law, is currently researching the impact of new media on free speech, including suppression and contempt of court.
I have on my list of things to try and organise, when I have the time, is a seminar involving Internet, media and legal industries regarding exactly those issues. The existing laws seem very unworkable in the Internet age. I don’t mean that Internet sites are exempt – but that Internet publishers often breach supression orders because they don’t know the detail of the supression order. There is no mechanism for publishers to check if something is supressed.
Related posts:
- The 46 year old name suppression case
- Suppression Orders and the Internet
- Pankhurst retiring as Dom Post editor
- New media regulation
August 19th, 2008 at 5:29 pm
Resigned or pushed?
Vote:August 19th, 2008 at 5:30 pm
Pushed or jumped? Their ratings have been falling. I guess we could tell by how quickly they identify a replacement
Vote:August 19th, 2008 at 5:40 pm
Good riddance to bad rubbish. Hopefully they get someone who will turn it into something worth reading.
Vote:August 19th, 2008 at 5:42 pm
What ? your kidding me. The editor of the Sunday Times is going to work for a former Prime Minister; has she let the current Prime Minister know she won’t be working for her now…
Vote:August 19th, 2008 at 6:01 pm
The SST may as well emply Hager – then they could rename the paper The Standard – at least then they would open about their left-wing leanings!
Vote:August 19th, 2008 at 6:49 pm
so finally the fairfax group have identified one of the causes of their paper slowly dying – and as a good loyal socialist she is given a job in a politicised quango. Chalk another one up for cronywatch.
Vote:August 19th, 2008 at 7:08 pm
Yeah, DPF was just posting the figures the other day about declining readership, too. Here’s a suggestion to Fairfax re the SST: appoint Richard Long or someone like him, sack Trotter and Finlay MacDonald, bring Michael Bassett on board, and Amy Brooke and/or one or two other writers who are not an insult to the intelligence of the readers – and watch the circulation and readership climb.
Vote:August 19th, 2008 at 8:25 pm
The blogosphere, No Minister in particular, has well charted the decline of the Sunday Star-Times under Cate Brett.
Vote:I made two posts on the paper over the weekend.
I see Jim Tully made some interesting comments on the safety of Cate Brett’s job following the latest sales/circulation figures.
I wonder if the blogosphere can take credit for a scalp.
Or is it Fairfax realising that losing 35,000 or so sales over Brett’s 5 years is not a good look.
August 19th, 2008 at 9:48 pm
Good riddance Cate Brett – fuck off back into obscurity and take your dodgy politics with you.
Vote:August 19th, 2008 at 10:00 pm
Well appointing Nicky Hagar would at least be an honest move by Joan Withers, self confessed admirer of the Blessed st Helen.
Vote:August 20th, 2008 at 6:44 am
wonder if the labour lead law commission has any special projects they are keeping mum about aye?
that would never happen, would it?
Vote:August 20th, 2008 at 6:50 am
I just wanted to make a comment here, but frankly I haven’t got a clue what I am talking about.
Dementia onset.
I think I caught it off Winston?
Vote:August 20th, 2008 at 7:56 am
as opposed to fuck off you rancid bitch or comments thereabouts?
Vote:August 20th, 2008 at 8:07 am
Getting mellow in my old age. But I will keep taking the pills.
Vote:August 20th, 2008 at 8:55 am
aka buggerlugs comments re: cate.
incidentally: cate=penelope?
Why anyone would buy or read the SST is beyond me – it is just utter crap.
Vote:August 20th, 2008 at 10:17 am
You can go to http://www.hunterproductions.co.nz/news.htm and tab down to Cate Brett, Journalist, to get an idea of what the Law Commission is spending taxpayers’ money on. Brett’s collaboration with police on the Scott Watson inquiry will forever taint her.
Vote:August 21st, 2008 at 4:04 pm
I wonder what the Law Commission will make of this?
Editorial from the New Zealand Law Journal, August 2008.
“The Siemer saga.”
Did you know that you could be pursued by an agency of the state and
sentenced to imprisonment for six months or more when one has no legal
representation, no right to a jury, no right to cross-examine
witnesses, the possibility of a hefty costs award on top an with any
right of appeal potentially constrained by having to give security for
costs?
A proven murderer, rapist, or P manufacturer, caught in flagrantre
delicto, would not suffer from any of these limitations. In fact the
courts and numerous members of the profession would be vigorously
exercising themselves over whether the accused’s Bill of Rights Act
rights had been breached.
This is the position however, in which Mr Vince Siemer finds himself
(Solicitor-General for New Zealand v Siemer (HC, Auckland CIV
2008-404-472, 8 July 2008, Chisolm and Gendall JJ)). There can be no
doubt that Mr Siemer is in some measure the author of his own
misfortunes.
There is also no doubt that some of the wild stuff about corruption in
the system being thrown around by his supporters is nonsense, if by
corruption one means collusion between the judges, counsel, the
Solicitor-General and so on. Nonetheless, the case raises some issues
which are ripe for consideration, perhaps because they arise so
seldom. Rather than corruption, there may well be some human failings
at work and the contempt jurisdiction has none of the safeguards the
criminal jurisdiction has to prevent such failings having a
determinative effect. It also seems that there is room for complaint
that the serious issues which have been raised have got lost in the
confusion and been brushed aside by judges rather than given the
attention they deserved.
This may be partly because of the way Mr Siemer has conducted his
case, but then counsel will be familiar with other situations in which
judges have gone out of their way to help plaintiffs appearing in
person and Mr Siemer is a defendant.
Prior restraint
The ability of a plaintiff in a defamation action to obtain an
injunction preventing publication of the impugned work until trial has
long been a sore point.
The way it works in practice justifies a lot of complaints that those
who can afford to throw money at their litigation will win in
practical terms, even if they do not win the ultimate legal
determination. There is a clear incentive to obtain an injunction and
then sit on one’s hands, and the substantive defamation action in the
Siemer saga did not appear to have progressed far when Mr Siemer was
debarred from defending it, pending payment of a costs award against
him.
It has now dragged on for over four years. A “gagging order” is
obtained in an interlocutory hearing in which evidence might well be
by affidavit only and in which cross-examination might not be allowed.
Under s 14 of the New Zealand Bill of Rights Act 1990 we all, not
just Mr Siemer, have a right to impart and receive information. Scant
regard seems to have been paid to the argument that this provision
should be interpreted as preventing such orders or at least making
them very much harder to obtain. Technically, the order in the Siemer
case arises from a compromise, but that does not prevent discussion of
the issue of principle. It also raises the question of whether there
is a public interest in enforcing such a compromise or whether it
should be seen as contrary to public policy.
Juries in civil cases
Mr Siemer has argued that judges have been misinterpreting the
amendments to the Judicature Act 1908, which largely eliminated juries
from civil cases.
He argues that the judges have taken it upon themselves effectively to
abolish jury trial in civil actions, although that is not what 19A
says. What it says is that either party may “require” trial by jury.
Section 19A (5) then sets out grounds on which this can be refused by
a judge.
Most remarkably of all, s 19A(1) effectively excludes a trial for
contempt from the section, leaving the jury decision in a case which
can culminate in imprisonment to the discretionary provisions of s
19B. There seems to be some cogency in the argument that, especially
by analogy with the guarantee of trial by jury in a civil case should
be the subject of full reasons. There must be some distinction
between s 19A and s 19B for a start, but the actual practice of the
court seems to have eliminated any such distinction. This argument
seems to be worthy of some consideration but it has been given short
shrift.
The contempt jurisdiction
This is an area in which judges should tread carefully, as they can be
seen as being judges in their own cause. It is of course the case
that unless one is prepared to imprison people, one cannot in the end
enforce a court order.
This seems, however, to have escaped the drafters of the Sentencing
Act 2002, which contains no power to imprison for failure to pay fines
or complete other community-based sentences.
It is also interesting to note that our prison reformers are running
around trying to get imprisonment for disqualified driving stopped,
despite the fact that driving whilst disqualified constitutes the
flouting of a court order and an order made not in the interests of a
particular party but in the interest of us all, to boot.
There is no doubt that under the autonomous meaning of the words
“criminal proceeding” in art 6 of the European Convention on Human
Rights, the contempt jurisdiction would be classified as a criminal
proceeding. An accused would then have the right to trial by jury,
the right to cross-examine witnesses, and, under the peculiarities of
New Zealand law, no costs award against him and a free hit at appeal.
It is in substance, a criminal proceeding, whatever the form. In
Mafart v Television New Zealand [2006] 3 NZLR 18, the Supreme Court
held that the status of an application was to be determined by
reference to the substance of the application and the nature of the
order sought.
The underlying proceedings were not determinative. Applying this, it
seems that a contempt proceeding where imprisonment is sought
should be regarded as a criminal proceeding, even where in form it is
an interlocutory application in a civil proceeding. If necessary,
this should be cleared up by statute.
The role of the Solicitor-General
According to the Coase Theorem, part of the genius of the common law
is that it is a party-driven system. This means that once a court has
made an order, the parties can and ordinarily do, bargain over it,
thereby ensuring that a proper price is arrived at between the
parties. A court order is ordinarily only enforced if the relevant
party decides to shoulder the risks and costs of returning to court to
have the order enforced. Once the state becomes involved, all hope of
efficiency flies out of the window; there is simply no way of telling
whether the state coercive action is efficient, since the vital
guarantor of efficiency, voluntariness, has been removed. In this
case the action is now being financed by funds raised from us all
under coercion. The Solicitor-General has also asked for indemnity
costs.
The Solicitor-General made a decision to get involved in this case –
no one asked him to- and now the defendant is faced with the potential
for a substantial costs award against him. Many counsel will have had
the experience, especially when representing large companies or
government departments, of being pursued at length by nutters against
whom no meaningful costs award is ever made.
Nor are costs awards made against criminal defendants who have drawn
out their trial unnecessarily or launched fatuous appeals.
This is just another way in which the defendant is substantially worse
off than if he were a serial killer or P manufacturer.
There are a number of serious issues here that deserve attention
Vote:which they have so far not been given. Again, if this were a criminal
case it would be almost guaranteed to reach the Supreme Court. As it
is a civil proceeding, there might well be no appeal, even to the
Court of Appeal, as an order for security for costs would doubtless be
sought. Nor, in election year, is it likely to get much attention
from politicians. Furthermore, discussion of the issues tends to get
diverted into discussion of the actions of the well-known
personalities involved. Lawyers should be able to rise above this and
debate these serious issues in an abstract and dispassionate fashion.