Editorials 3 May 2010
May 3rd, 2010 at 11:00 am by David FarrarThe Herald is on judicial transparency:
The legal profession, at least in its upper echelons, is so small that there are bound to be close and long-standing relationships between senior lawyers and judges which may create the appearance of conflicts of interest.
The possibilities have been amply demonstrated by the case of Supreme Court Justice Bill Wilson, who finds himself facing the Judicial Complaints Commissioner because, when he was a Court of Appeal judge, he failed to fully disclose the extent of his indebtedness to a lawyer appearing before him.
And that is the problem – the lack of disclosure. The debt, by itself, does not mean the Judge could not sit on the case, and be impartial. In fact Justice Wilson ruled against the lawyer’s clients in a number of cases.
But the matter does not end there because now the Judicial Complaints Commissioner must decide whether the judge’s conduct in failing to promptly and fully disclose the nature of the relationship needs to be referred to either the Chief Justice or the Attorney-General. Unfortunately, either course of action may also raise questions of the kind mentioned by the Supreme Court because Justice Wilson has had close associations with both office holders.
He and Mr Galbraith have been in a racehorse-owning partnership with Chief Justice Dame Sian Elias. On the other side of the equation, Justice Wilson and Attorney-General Chris Finlayson were partners at the law firm Bell Gully and Mr Finlayson is on record as calling him a friend. So whichever way this case may turn, it gives rise to the very kinds of doubts that the courts, quite rightly, are at pains to avoid.
The Attorney-General is friends, I am sure, with a large number of Judges. I think we have to be careful about not having unrealistic expectations that Judges and lawyers have no dealings with each other at all, except in court.
But whatever the outcome of this particular case, the courts should reconsider the old policy of secrecy and remoteness as a means of preserving confidence in the system generally. More openness in the form of a public register of judges’ pecuniary interests – much like that which applies to MPs – would be much more effective.
Compulsory listing of such things as business interests, partnerships, trusts and, importantly, debts would make any possible appearance of conflicts of interest immediately apparent and therefore defuse any controversy such as the one engulfing Justice Wilson before it had a chance to arise.
The idea of a register is worth considering.
The Press suggests the winner of the UK elections will inherit a poisoned chalice:
When the British deliver their electoral verdict on Thursday, the winning party will be presented with a poisoned chalice. The huge cuts the new government will have to make to spending ensure it will be hounded into deep unpopularity and be long branded as the Scrooge that ended a decade of prosperity.
The reality that the golden economy has been dead for two years and has been sustained by massive borrowing will not ease the predicament of the incoming administration. In the cause of weathering the economic storm, spending and borrowing was maintained; only now do the bills have to be paid.
Yet the Lib Dems and Labour keep insisting one should go on borrowing and spending more for a wee bit longer.
The Dominion Post marks World Press Freedom Day:
For most New Zealanders, today is just another working day to be endured before the next long weekend heaves into view. To journalists, however, it means more than that. May 3 is the annual date that Unesco has set aside as World Press Freedom Day, an occasion to celebrate the value of a free media.
It is a prize worth winning, but comes at a price. New Zealand journalists don’t get killed for doing their jobs in this country, but that is not true elsewhere. In 1975, Kiwi Gary Cunningham was one of five journalists murdered by Indonesian forces in East Timor wanting to prevent the world knowing of their invasion. And already this year, at least 12 journalists have been slain for following a vocation with attendant dangers.
Here, the risk normally involves being called a “little creep” by an angry prime minister, being ejected from the team bus by an irate sports coach, or being sued for defamation for – perhaps – wrongly criticising someone with a reputation to defend.
True.
Thus it is harder in a modern democracy to persuade a cynical populace that to do away with a free press is to do enormous damage to the body politic and civic discourse. In the West, it is more common for the public to dismiss the work of reporters as sensationalism, trivia, and “lies”. Sometimes, they are right.
More usually, they are wrong. People often forget that everyone errs and that their errors are rarely exposed for others to judge. Chefs’ mistakes are buried in the rubbish; doctors’ mistakes are in a graveyard.
In the media business, mistakes can be of fact, emphasis or omission – and are usually inadvertent. Unlike the mistakes of others, however, journalists’ errors are published or broadcast for everyone to see, and – in the best of the breed – corrected publicly.
Alas the public correction is all too rare.
The ODT calls for no delay to the ETS:
Having once claimed to be a “follower” of our trading partners in such legislation, New Zealand, the critics claim, now looks likely to be an international leader – out on a limb with a feigned carbon tax that may in time come to be regarded as either innovative or foolish.
Businesses, for one, have not been slow to remind the Government of this risk, arguing that the policy will make it even more difficult to trade successfully with other countries which have yet to implement climate-change responses, or plan to defer them.
They have asked for New Zealand’s policies to be “aligned” with those of our major trading partners – a request that on the surface appears reasonable but is realistically impracticable. …
Yet, if the world has so much to lose from climate change, then it behoves countries to take whatever steps they can to minimise the effects – as a matter of urgency.
A global solution is obviously required and Western nations, including New Zealand, must lead it, since they are in the best possible position to afford the costs and provide the technology and innovation to achieve it.
Here the ODT is wrong. If China is not part of a deal to reduce emissions, then the efforts of the rest of the world will be futile. China by 2020, will be producing more greenhouse gas emissions than the rest of the world does today – even if they live up to their Copenhagen pledge.
For New Zealand to now delay further what has already been a slow, step-by-step procedure, would deny pragmatism in favour of the changing winds of political fortune.
I don’t support a change to the ETS legislation being done under urgency. If however there is no post Kyoto agreement, which includes commitments from China, then the rationale for an ETS is greatly reduced.
May 3rd, 2010 at 11:45 am
Didn’t The Press make the same statement before Helen Key was elected?
Vote:May 3rd, 2010 at 12:01 pm
Anyone checked if the ODT editorial writer has shares in one of those phoney carbon trading ventures??
Vote:May 3rd, 2010 at 12:03 pm
I doubt it Red, he must be a socialist if he is involved in the media, mustn’t he? You keep saying they have taken over.
Vote:May 3rd, 2010 at 12:36 pm
DPF makes the point: “I don’t support a change to the ETS legislation being done under urgency. If however there is no post Kyoto agreement, which includes commitments from China, then the rationale for an ETS is greatly reduced.”
The problem is that once a sector is in the ETS it becomes very difficult to remove it because property rights and liabilities get established which would then need to be unravelled.
So, once liquid fuels and electricity are in, they will have to stay in, along with forestry.
Nick Smith understands this – and he is probably the only one in the Cabinet who does.
This is why he is so desparete for the the ETS to come into force on 1 July. He knows that once it is in place, his vision will be in place permanently, even if – as DPF correctly argues – the rationale for it continues to reduce over time.
Vote:May 3rd, 2010 at 12:49 pm
The other problem is that, by agreeing that the ETS should proceed as it stands, you are saying that it is ok to lumber an additional $3000 tax on each person per annum, for no better reason than “because we should”.
There will be no measurable change in anything global, whatsoever, as the result of a NZ ETS. All we are buying is “indulgences” from high priest Al Gore.
It is robbery.
Vote:May 3rd, 2010 at 12:54 pm
Disagree. Even if China is part of any ‘deal’, our efforts to save the world from Catastrophic Anthropologic Global Warming(‘CAGW’) are futile because no such threat exists. The ETS is simply an on-ramp to new, perpetual taxation instrument which will become a mechanism for the poor in rich countries to involuntarily transfer their wealth to the rich in poor countries.
Vote:May 3rd, 2010 at 1:24 pm
I think few would worry about personal relationships existing around Lawyers and the Judiciary, but a 250 k debt raises substantial areas for disquiet.
Vote:With all recourse to appeal now totally under the confines of our small nation and nearly all concentrated in The capital and Auckland, “seen to be done” is tenuous at best. I know that a debt of this size is pocket money among the “elite” but among the peasantry it is large enough to be seen as a potential cause of possible bias. If it is true that Wilson “forgot ” or “deemed it to be of no consequence” and therefore not needing to be disclosed, then his fitness to judge me is totally demolished in my eyes.
May 3rd, 2010 at 1:29 pm
DPF on Justice Wilson: “And that is the problem – the lack of disclosure. The debt, by itself, does not mean the Judge could not sit on the case, and be impartial. In fact Justice Wilson ruled against the lawyer’s clients in a number of cases.”
Actually, the Supreme Court found that the very existence of the debt meant that Justice Wilson failed the test for “apparent bias”, so should not have sat on the Saxmere case even if he had fully disclosed it. There’s a difference between “apparent bias” and “actual bias” – you can have the former even in the absence of the latter.
What, however, is raising real problems for Justice Wilson is not just that he failed to disclose, but that it is alleged that he subsequently tried to hide the full extent of his relationship with Alaister Galbraith. As with so much, it’s not the original act that hangs you, but the attempt to cover it up.
As for concerns about Finlayson’s and Wilson’s friendship – these are overblown. There is a conduct commissioner and (maybe) conduct panel that will investigate and advise on what should happen … you can be the A-G will do whatever it says.
Vote:May 3rd, 2010 at 1:33 pm
I think The Press under estimates the electors understanding of the worldwide economic mess who would be disinclined to punish a government that successfully implemented change to resolve the issues. The real problem is having politicians who are not only prepared to address the real issues but map out the future methods and timescale for the fixes and adhere to them. Partial success and credibility of not being diverted from a stated course after re election will allow those politicians sufficient time in office to achieve a successful outcome – the world is clearly very short of such politicians.
Vote:May 3rd, 2010 at 2:00 pm
Professor Bob Carter put the arguments of the Climate Scientologists brilliantly at his recent book launch.
He reminded us that the IPCC’s entire case is based on computer models, and that the modelling process is like playing on a giant X-Box or PlayStation 4 that can pump out billions of scenarios according to your taste.
The IPCC models have been tweaked by the pseudo-scientific gamers to produce the answer their political sponsors want.
On that basis, our ‘believer’ government is punishing its people with a tax on carbon dioxide, while the country it claims to be committed to catching is not.
Presumably the 50,000 lunatics who marched up Queen Street opposing the idea of us increasing our wealth with a bit of judicious mining, think this pointless, punishing tax is just dandy.
And who’ll be the first with their hands out at the next wage round or welfare review?
Join the dots guys.
Vote:May 3rd, 2010 at 2:12 pm
I think the Herald’s idea of a register for judges is an excellent one. I hope people will write Letters to the Editor etc supporting it, so the Herald might take it up as something of a mini-campaign.
I wonder, though, whether anyone has a bright idea for dealing with judicial bias in a criminal court? For instance a judge whose daughter was killed by a drink driver and who now sentences anyone who appears before him for any driving offence to be remanded in custody. That results in, say, a woman caught driving on a suspended licence (over here your licence can be suspended for unpaid parking tickets, so don’t assume she’s a dangerous driver) being sent to jail for three months till she can get a trial.
The judiciary knows this, has apparently had a quiet word etc but the guy is, I think, borderline insane. In terms of the way he conducts his court, he often insists that counsel not question witnesses and that they extemporise their evidence for instance.
He’s being shifted from one court to another, each one a little further out into the country, so one day I expectto find him adjudicating on who owns a sheep whilst sat beside a Billabong.
But coming back to my question… clearly if you’ve been the victim of a crime – whether it’s losing a family member to drink driving or being the victim of a swindler – you’re going to have a bias against a defendant accused of a similar crime. So should judges not also have to declare such matters?
Vote:May 3rd, 2010 at 2:32 pm
I think this set up was far too cosy. The Chief Justice should remain aloof from her subordinates and not have business or sporting dealings with them and she should keep them in line. Likewise the Judge shouldn’t be engaged with lawyers in the same manner, and the Attorney General shouldn’t be passing judgement on his former Senior Counsel. There is no way that a fair impartial decision could appear to have been arrived at in the case under question.
Vote:May 3rd, 2010 at 7:15 pm
Given the weather in Otago I would have thought the editor would be all for Global warming. There’s just no pleasing lefty tosspots.
Vote:May 3rd, 2010 at 7:55 pm
EMISSIONS TRADING SCHEME
Vote:I went to hear John Boscawen speak on this subject at 11.00 a.m. today. It was the biggest political meeting in our town for the 33 years I have been here. What got me was the number of dyed in the wool National Party people who are very angry with their party over this matter. Indeed, I doubt whether I have seen such anger from those sorts of people since Piggy ran amuck in 1982 – 1983.
I am concerned that the government’s principal proponent of this totally stupid legislation, the member for Nelson, has a history of mental illness. The big worry is what irrational behaviour will he exhibit when his caucus colleagues finally see sense and ditch Nick’s favourite subject.
May 3rd, 2010 at 10:06 pm
Don’t look at China as the nasty one here.
Per capita emissions in China are pretty low. Problem with China, is they have the largest population so of course the total emissions is high.
The 3 largest carbon polluters per capita, are the USA, Saudi Arabia, and Australia.
Vote:May 4th, 2010 at 9:23 am
What, however, is raising real problems for Justice Wilson is not just that he failed to disclose, but that it is alleged that he subsequently tried to hide the full extent of his relationship with Alaister Galbraith. As with so much, it’s not the original act that hangs you, but the attempt to cover it up.
What about Alistair Galbraith for appearing before the Judge whilst chasing him for the debt, doesn’t that warrant attention from the ethics committee?
Vote:He is an officer of the court and as such has a role and responsibility to ensure the impartiality and integrity of the court is upheld. as does every other officer of the court.
To my mind any officer of the court knowing the facts about thesituation should have objected both to Wilson judging and Galbraith appearing before him without disclosing to the court the particulars of the matter.