Herald Diary on Finlayson

March 13th, 2010 at 10:55 am by David Farrar

The Herald’s Diary:

The New Zealand International Arts Festival rolls into its final week. Among the virtuoso performances has been one by Arts, Culture and Heritage Minister Chris Finlayson, although we are not sure he was supposed to have been the one performing. However, his chairing of an Arts Talk session with esteemed Russian-born conductor Vladimir Ashkenazy had the tongues wagging. To say the minister was well-briefed was an understatement. He had prepared no less than 25 erudite and highly detailed questions to put to Ashkenazy.

Here’s one example. “Once former British Prime Minister Ted Heath, an accomplished conductor, was asked whether he preferred conducting orchestras or chairing cabinet meetings. He answered ‘the former’ because orchestras have a unity of purpose, the players work toward a common goal, the output is excellent and they accept the leadership of the conductor. You have never been stuck in a Cabinet meeting but, thinking of all the orchestras you have worked with, is what he said about working with an orchestra been your experience? Did you know Ted Heath? Is it true of Italian orchestras that they are impossible to conduct?” And that was just the first question.

I’m surprised Chris only had 25 questions!

Finlayson on Auckland Treaty Settlements

February 1st, 2010 at 6:12 am by David Farrar

Chris Finalyson writes in the Herald:

An important election commitment made by the National Party in 2008 was to set a goal of concluding just and durable Treaty settlements by 2014.

The reasons were simple – by healing the grievances of the past, all New Zealanders could move forward.

It was not an option to forget the past and the legitimate claims of iwi, but nor did we want to be stuck there. Settlements ultimately benefit everyone.

Getting past grievance mode is a win-win.

It should be borne in mind when National became the Government in 2008, there were about 60 settlements outstanding. Fully 20 per cent of these are claims in the Auckland region.

Dr Cullen did a good job in making progress on settlements, but alas his Labour predecessors not so much.

Sometimes iwi ask for a say in how a natural resource can be looked after. Again, Ninety Mile Beach – Te Oneroa a Tohe – provides an example.

Not only is it of spiritual significance to Maori but it also was an ancient food-gathering area, for the famed toheroa and for mullet.

Those food stocks have deteriorated over the years and the iwi wants some say on how the beach can be restored. This seems reasonable given the historical connection they have with the beach and so the Government is prepared to involve those iwi in looking at ways in which environmental damage can be repaired for the good of all beach-goers.

Sounds reasonable.

These are exciting times. The opportunity exists for concluding just and durable settlements throughout the Auckland region, something that a few years ago would have been regarded as a pipe dream.

Iwi are keen to get on with the business, the Crown is keen, and everyone agrees that public access can never be compromised.

That is why this Government is moving with such determination to resolve historical Treaty issues. Settling historical Treaty claims by 2014 means just that – settlements have to take place.

Governments cannot just talk about settling – they actually have to do the deals. The Crown and Maori are determined to work together to undo the heavy burdens of the past and move on. It is a time for optimism and positive thinking.

The 2014 target is ambitious, maybe even aspirational. But it would be a massive achievement to have all major historic treaty claims achieve final settlement during this Government’s tenure.

R v the Internet

December 3rd, 2009 at 11:32 am by David Farrar

The seminar on the Internet and the Courts has been really good so far. You can follow it on Twitter here. It is also being filmed and will be viewable on the Internet.

Chris Finlayson gave a very amusing and interesting opening address. Referred to how someone once threw a cat at a Judge and the Judge said if you do it again, it will be contempt. It is indexed in law journals as “cat throwing-contempt-one cat allowed-two cats is contempt”.

He also said how relieved he was to find the room full of relatively normal people (ie lawyers) rather than Farrar-like hobbits 🙂

Professor Tony Smith had what I considered a good suggestion that the Courts have a staffer who proactively looks for material before a trial starts that may be pose a risk to a fair trial, and asks voluntarily for temporary removal.

Solictor-General David Collins talked about how Internet issues take up a large amount of his time, and the inability of getting Yahoo to remove material. Is seeking an agreement between governments to seek to enforce each other’s court orders to ISPs. There are some risks with this approach, as if publishers are deemed to be subject to the laws of every country they have readers, the lowest common denominator can apply.

Steven Price said that compulsory filtering only happens in repressive countries like China and Australia. Heh. Said genie was out of the bottle but not sure if it is a problem. Thinks there should be less use of contempt.

Robert Lithgow QC said he was probably only person in room who has prosecuted for contempt, defended people for contempt, has been charged with contempt himself and in fact appears shortly in the Supreme Court for Vince Seimer over his contempt issues.

He agreed with Steven Price largely and said the law of contempt is fundamentally buggered and only getting at the nutters now. He also said that there is no constitutional significance to modern commercial media as we don’t need them now, as bloggers are the public! Said the press are watchdogs and mongrels. They bark indiscriminately and only interested in food and biting!

Radio NZ Political Editor (and Chair of EPMU Media Committee) Brent Edwards said Internet got around censorship in even most sinister regime, so will do so in countries like NZ.

Robert Lithgow suggested all court cases should have a static camera so people can view over Internet, and not rely on the media so much. I agree entirely.

Justice Wilson

December 2nd, 2009 at 3:40 pm by David Farrar

The Attorney-General has announced:

Attorney-General Christopher Finlayson said he had confirmed today that the Judicial Conduct Commissioner has received a complaint relating to Justice  Wilson’s failure to recuse himself from a Court of Appeal case despite the nature and extent of his financial relationship with counsel in the case. …

“The matter is now with the Judicial Conduct Commissioner,” Mr Finlayson said. “The law requires that the Commissioner makes a preliminary examination, during which he may make any enquiries and look at any relevant court documents.”

“At the end of the preliminary examination, the Commissioner must either dismiss the complaint, or refer the complaint to the Chief Justice, or recommend that the Attorney-General appoint a Judicial Conduct Panel to inquire into any matter concerning the conduct of the Judge.”

This is no minor thing, as Justice Wilson sits on the Supreme Court.

The Press editorial also touches on him:

The Supreme Court’s decision last week to recall a decision it made earlier this year, and direct a new hearing of an important case because of concerns about the risk of the appearance of bias by one of its own judges, is unprecedented in New Zealand.

Which does show the system works.

It not only raises doubts about the judgment of the judge involved but it also re-ignites debate made at the time the Supreme Court was established about whether, with judges drawn entirely from New Zealand’s small legal talent pool, such problems are unavoidable. There is little question that, at the least, the episode is a serious embarrassment for the Supreme Court. …

At the time, the judge was a new appointee on the Court of Appeal. He was soon afterwards elevated to the Supreme Court, after an extremely short time on the Appeal Court and ahead of other more experienced and more intellectually distinguished Appeal Court judges. This lapse inevitably raises a question about whether he has sufficient sensitivity of judgment to entitle him to sit on the country’s highest court.

I will be interested to see the report of the Judicial Conduct Commissioner.

Mallard on Finlayson

October 29th, 2009 at 9:43 am by David Farrar

At Red Alert, there is a blog post saying:

Wilkinson wasn’t in the House today so Finlayson answered. I don’t know what the Chief Justice saw in him. He is [deleted after careful consideration – Clare]

Now when will Labour learn about Google and the Internet. I would have through the Mussolini debacle was lesson enough, but no. Here is what Google records Trevor as originally saying:

I don’t know what the Chief Justice saw in him. He is a nasty sarcastic man – so twisted that if he ate nails he would pass screws

What a wonderful reminder of the old Trevor, and the last Labour Government. Anyone recall “cancerous and corrosive”?

I mean this is what one of Labours most senior MPs think is appropriate to write on their parliamentary blog, about an opponent. The vitriol just drips.

Also featuring on the Labour blog, is this comment by a Jennifer:

By the way, I also was somewhat shocked to see the ‘mean and nasty’ side of Tinkerbell.

Now I of all people don’t believe a blog owner is responsible for comments made on their blog. But there is more to this, than meets the eye. You see Labour MPs – especially Trevor Mallard – yell out Tinkerbell at the Attorney-General constantly in the House. So Jennifer is just following the lead of her caucus.

Now I think everyone knows Chris is gay. He doesn’t make a big fuss about it, it is just the way things are. But Labour seem obsessed with the fact an openly gay politician is a front bench National Minister. The so called party of tolerance and equality call him Tinkerbell. Maybe Rainbow Labour would like to show some balls, and point out to their own Caucus why this is a bad and stupid thing to do.

Criticism of Ellis decision

October 15th, 2009 at 2:00 pm by David Farrar

The Press reports:

The decision was surprising given that Attorney-General Chris Finlayson and Police Minister Judith Collins had signed a 2003 petition calling for a commission of inquiry, he said.

As did many professors of law.

Rich said the decision was “sadly predictable”.

“It’s interesting we’re spending millions on a Supreme Court building but still directing people to the Privy Council, which I doubt Peter Ellis will be able to access because of the expense,” she said.


“In the court of public opinion, Peter Ellis has already been pardoned.”

On most controversial cases, there are different views on guilt vs innocence. The Ellis case is remarkable in the huge number of people who view his convictions as unsafe. I don’t think I know anyone at all who thinks the convictions should stand.

The case was a fundamental demonstration of the justice system failing to correct itself, she said. “Every country has found a way to deal with those injustices.”

And this is where I think the Minister made the wrong decision.  Of course the officials were always going to have dozens of reasons to say don’t upset the status quo. But the reason we have a Minister in charge, not officials, is for the ability to look at the wider picture.

Brash said he was surprised at the decision because the request was presented with such strong arguments and the 2003 petition had been signed by major figures.

“The New Zealand justice system has let Peter Ellis down and it should have been New Zealand that sorted it out.”

Had he won the 2005 general election, a commission of inquiry would have been ordered, he said.

I really recommend people interested in this case read the Lynley Hood book. If you do you will, like Don Brash, be convinced that the current convictions are very unsafe.

Dom Post on Lawyers

September 26th, 2009 at 9:25 am by David Farrar

Friday’s Dom Post:

Once upon a time, the National Party caucus principally comprised farmers and lawyers. Few cockies remain in the Key-led Government’s serried ranks but legal eagles sit at the Cabinet table. Justice Minister Simon Power is one; so, too, is Attorney-General Chris Finlayson.

And neither, it seems, is afraid to challenge one-time colleagues.

Earlier this month, Mr Power published a discussion document that, in part, criticises counsel who earn some of their income from the legal aid budget. Some defence lawyers are unimpressed.

Last week, it was the attorney-general’s turn, although he seemed to be gunning for lawyers who undertake civil cases as well as those practising in the criminal courts. The tragedy for all lawyers, he told the Bar Association, was that “some of our number let us all down … they cannot even get the basics right. We have tolerated them for too long”.

He didn’t stop there: “If litigation, both civil and criminal, has reached a crisis … in this country, it is at least partly because some in our ranks are simply not up to the job. Either they shape up or ship out.”

It is commonplace for a National-led administration to lambast parts of the trade union movement, for example, but rarer for ministers of a blue hue to challenge the professions, particularly lawyers and doctors. But Mr Power and Mr Finlayson are at one on this.

I think it is called governing in the national interest.

The justice minister is on record as saying that one of his priorities is for the justice system to be refocused on the participants who don’t earn their living from it. That removes from centre stage, but puts into a more uncomfortable spotlight, lawyers of every stripe, including those who practise civil law.

Anyone involved in civil litigation knows about the time it takes and the prohibitive expense. It is why some cases find resolution via arbitration, and the number of civil actions is falling.

At a seminar for civil litigators early last year, former Bar Association president Jim Farmer, QC, said no-one could sensibly argue that the cost of civil litigation was reasonable, blaming complex and prescriptive court rules, grinding “discovery” practices, too much paperwork, judges failing to rein in litigators, and a shift to lawyers billing by the hour. Chapman Tripp’s Jack Hodder backed him up: “…the mainstream civil justice system is profoundly flawed and offers depressingly little value to any litigant …”

No wonder ministers are speaking frankly. They know that, when courts take aeons to hear a case, justice is more than delayed. It undermines public confidence in the justice system.

Hopefully there will be some results in due time, in terms of shorter delays etc.

Finlayson on lawyer standards

September 20th, 2009 at 10:00 am by David Farrar

The SST reports:

Attorney-General Chris Finlayson has made a scathing attack on lawyers, saying he wants “incompetent” members of the profession to foot the bill for unjustified costs if they string out court cases.

Technically that is a scathing attack on incompetent lawyers, not all lawyers.

Finlayson, the country’s chief law officer and the government’s main legal adviser, said the community had tolerated for too long the gamesmanship of lawyers, to the detriment of clients, the courts and justice.

He is considering giving judges the power to impose financial penalties on bungling lawyers who waste time and create unwarranted court costs. Finlayson believes this was needed to compel lawyers to act in the interests of a “just, speedy and inexpensive” justice system.

Wow that will be as popular amongst some lawyers as pork at a Bar Mitzvah.

In a speech to the New Zealand Bar Association on September 12, Finlayson said most legal education courses in New Zealand were considered a joke and the time had come to lift standards. The audience of lawyers, at Wellington’s Holiday Inn, greeted with audible gasps his more frank comments.

Chris does not mince his words.

Finlayson said the courts were clogged because “the overall standard of the bar, and particularly the criminal bar, is not high enough in New Zealand”.

“Too many lawyers practising at the bar are incompetent, or worse, and there is no proper means of assessing their competence or requiring them to be properly educated.

“We’re breeding a class of barristers who don’t even know how to address the court, much less know how to cross-examine, write submissions and act in a professional manner.”

Finlayson said he wanted to change court rules to ensure lawyers did not use the “discovery” of documents and evidence to go on fishing expeditions and delay cases. He believes giving judges the power to order a lawyer to pay costs will ensure professional standards were upheld. He will consult the legal fraternity before taking a submission to cabinet, but he supports “some way where an associate judge or judge can impose a modest cost order on lawyers for wasting time and imposing unnecessary cost”.

Well I think the Judges will like it!

Finlayson said it was a tragedy some lawyers were letting down the entire profession. “Not only are they [lawyers] incapable of doing pro bono work, being law reformers and teachers, they can’t even get the basics right.

“We have tolerated them too long. Something needs to change. We cannot, as a profession, tolerate those who, whether wilfully or not, undermine the system and cannot co-operate in the just, speedy and inexpensive determination of proceedings. If litigation, both civil and criminal, has reached a crisis point in this country, it is at least partly because some in our ranks are simply not up to the job. Either they shape up or ship out.”

If Chris succeeds in implementing that in the legal profession, then I reckon we make him Minister of Education after that to do the same with the teaching profession!

High-profile criminal lawyer and QC Robert Lithgow said Finlayson was trying to boss lawyers around and that allowing judges to order lawyers to pay costs was itself a waste. “The parties and the lawyers will be arguing the fines and the `telling off’ when they should be focused on the real court case. You can’t impose penalties on someone without an appeal process.”

I suspect the extra time taken up by fines and appeals against fines, would be small compared to the reduction in delays due to this new incentive. It is all about having the right incentives in place.

John Marshall, QC, president of the New Zealand Law Society, representing 10,700 lawyers, said the society was developing a competency assurance programme, which was likely to include senior lawyers mentoring juniors.

As well as more training, from January 1, a barrister would need three years’ experience before practising under their own authority, or “sole”. A barrister now can practise sole immediately after graduating from law school.

Marshall said the issue of ordering lawyers to pay costs would be discussed when the law society next meets Finlayson in about 10 days, but it would affect only a small number of lawyers.

Interesting changes.

Parliament and the Courts

September 11th, 2009 at 2:00 pm by David Farrar

The Australasian Study of Parliament Group had a seminar in the Beehive on Wednesday on the issue of Parliament and the Courts.

The first speaker was Professor Philip Joseph, who is widely considered the leading constitutional scholar in New Zealand.

Professor Joseph discussed the issue of parliamentary sovereignty and whether or not it exists or is absolute.  There were references to musings from Lord Cooke and Chief Justice Elias that such sovereignty is not absolute.

This does not mean that the judiciary is sovereign either. In fact the theme pushed was neither institution was sovereign, and there is mutual respect for the roles of each, with boundaries between them.

There was a suggestion you could call this co-sovereignty, looking at it being the Crown through her Parliament and the Crown through her Courts being co-sovereign, but sovereignty tends not to be shared (the Roman Republic did effectively share it through having two Consuls but that didn’t work too well eventually).

The example by CJ Elias was whether the judiciary would uphold a law that (for example) said all blue eyed babies must be killed.  Of course that would never be passed (and if it was, the Governor-General might not assent to it) so it is an academic argument.

Professor Joseph said that the rule of law does exist outside of legislation and that it pre-dates the concept of parliament sovereignty by many hundreds of years.

An example would be in countries that have had a coup. Often the judiciary will adopt or refer to the doctrine of necessity to maintain the rule of law – even without legislative backing.

The second speaker was Labour MP Charles Chauvel, in his role as Chairman of the Privileges Committee. He had some interesting historical facts such as how Magistrates were not seen as Independent Judges until just a few decades ago, and how the Minister of Justice used to actually be accountable in the House for their decisions.

His main theme was respecting the boundaries between Parliament and the Judiciary, and how the Privileges Committee decision to recommend limitations on an MPs ability to breach a court suppression order, helps respect those boundaries – especially as it was initiated by Parliament voluntarily.

He took a swipe at both Justice Minister Simon Power and his colleague Trevor Mallard for their recent comments, plus also at Attorney-General Chris Finlayson for not publicly defending the Judges concerned. Power criticised CJ Elias’ call for prisoners to be released early and Mallard criticised the lack of jail in the Moses exorcism manslaughter case, saying they would have got jail time if they were not Maori.

Chauvel said he thought both Power’s and Mallard’s comments pushed against the boundary of mutual respect, or comity.

In fact he revealed the Opposition was concerned enough about Mallard’s comments they their Justice Spokesperson wrote officially to the Chief Justice disassociating themselves from the comments, and saying he was speaking as a local MP only and not on behalf of Labour. The letter and response from the CJ was shown briefly on the screen.

The seminar was well attended and ably chaired by Colin James, with extra chairs having to be found for everyone. Definitely only a topic for constitutional geeks, but it is a fascinating area for New Zealand as one of the few countries with no written constitution.

Nandor appointed to Arts Council

July 28th, 2009 at 5:25 pm by David Farrar

Chris Finlayson has announced:

Minister for Arts Culture and Heritage Christopher Finlayson announced today the appointment of former Member of Parliament Nandor Tanczos and the reappointments of Pele Walker and Michael Prentice to the Creative New Zealand Arts Board.

I can’t believe how many Labour and Green people are being appointed to positions. I’m not complaining (except about Cullen’s one) but it is such a change.

If this keeps up, I expect a future Labour/Green Government to appoint me to the Board of the Reserve Bank!

Ngata Memorial Lecture

July 15th, 2009 at 12:00 pm by David Farrar

If you have a spare quarter hour, you may find this public lecture by Chris Finlayson on Treaty Settlements interesting. The intro etc takes around three minutes, but then gets into the substance.

Hat Tip: Tumeke

HoS on Peter Jackson

June 21st, 2009 at 9:26 am by David Farrar

The HoS approves of Chris Finlayson’s appointment of Peter Jackson to review the Film Commission:

It’s impossible to imagine anyone better qualified to undertake a review of the New Zealand Film Commission than the country’s most prodigiously successful filmmaker, Peter Jackson. The Minister for Arts Culture and Heritage, Chris Finlayson, announced this week that the maestro from Miramar will lead a ministerial review “to ensure it is best able to serve the needs of the local industry and community”.

In an ideal world, the commission would long ago have sought advice from one of the most successful filmmakers in history, especially since he is just round the corner. But that would have required some pride-swallowing – and a corporate decision to feed the hand that had bitten it.

Jackson, it will be remembered, has occasionally been a trenchant critic of the commission. He even publicly “disinvited” its then chief executive Ruth Harley and chairman Barrie Everard to the Wellington premiere of part two of the Lord of the Rings trilogy, calling them “self-serving bureaucrats”.

Jackson is not a diplomat.

The terms of reference are a mixture of bureaucratspeak (“facilitative role”; “cultural content objectives”) and noble-sounding phraseology, which are unlikely to bog down Jackson, who is a plain speaker and a man of action. The fact that he is charged with working out how “active industry professionals” can be more involved in setting the commission’s direction is heartening. And it is something he has plainly taken on board: pointedly, he has said he will consult local filmmakers, “so the review reflects the thoughts and opinions of the writers, producers and directors the commission was created to support”.

Bottom up consultation – always good.

Assuming that the review is sincerely motivated and that the Government is not looking for findings that will justify later funding cuts, Jackson’s presence is encouraging. The prolific moviemaker is not notably short of things to do, so he plainly thinks he has something to offer and will tackle the review with the passion and vision that are his trademarks.

The commission is now more than 30 years old: as John Barnett remarked this week, when it was established movies screened with intermissions and no one used the word “digital”. It is high time for a rethink – and there is no better man to be doing the rethinking.

The good thing about having Jackson do the review, is it will be almost impossible for the Government to ignore.

QCs are back

June 18th, 2009 at 11:00 am by David Farrar

Chris Finlayson announced:

The government has responded to concerns from the legal profession and will restore the title of Queen’s Counsel to recognise outstanding members of the independent bar, Attorney-General Christopher Finlayson announced today.

Can’t say I’m too bothered either way. When or if we become a republic, the name will have to change – but any change should be part of an informed public debate and decision.

When QEII dies, all the QCS will then become KCs – that will be a lot of reprinting!

The title of KC/QC started in 1603 with Sir Francis Bacon.

Finlayson on Treaty settlements

April 22nd, 2009 at 11:00 am by David Farrar

A must read article by Treaty Negotiations Minister Chris Finalyson in the Herald:

Treaty settlements are not about one group of people being unequal under the law. This country has one law for all – the Treaty guaranteed that. The settlements process is about recognising those instances – regrettably common – where the Crown did not treat all the people of New Zealand equally – where people in New Zealand under the Crown’s protection were stripped of land they owned, or deprived of the right to be treated fairly, despite its undertaking to stop that from happening.

And an example:

Anyone who thinks the Treaty settlement process is about securing privileges for Maori need only familiarise themselves with the recent Waitangi Tribunal report on the history of the Urewera region. It does not make pleasant reading.

It presents the detailed history of the Urewera region for the first time. The tribunal describes the Crown’s confiscation of 24,280ha of Tuhoe land on its first real contact with that tribe.

It details the attacks on the tribe in the Bay of Plenty to apprehend Te Kooti – raids that started as justified military action, but led to the intentional slaughter of civilians and prisoners, and were described by one senior military officer at the time as “extermination”.

Tame Iti may be an attention seeking idiot, but Tuhoe do have some legitimate grievances.

Within days of signing the Treaty in 1840, the Crown bought 1214ha of downtown Auckland for 281.

Within six months it resold just 36ha of that for 24,500. It is pointless to feel guilt about this. For one thing, none of us alive today was responsible for what happened then. However, those who hold the levers of power in the Crown must take action to redress these wrongs, because it was the Crown that caused these grievances.

So purchase price was 23c (converting to dollars) a hectare and sale price six months later was $681 a hectare.

We cannot give back all that was taken, and to their credit no claimants have demanded that the Crown do so. The cost of settlements is around 5 per cent of the value of what iwi lost. According to some estimates, it is much less.

There is no way of knowing what the real figure is, and it does not matter. The Treaty settlement process is as much about recognition and healing as it is about recompense.

Sir Douglas Graham often made the same point.

It’s why other parts of settlements – like restoring traditional names, or co-management of culturally significant land with the Government – may not have any monetary value. They are important to iwi and the way they relate to the country.


Treaty settlements are good for the whole country. There has been much talk of economic stimulus recently. Treaty settlements help unlock the economic development potential which exists in the regions and in the Maori community.

This is true, and Ngai Tahu are good examples of this. However it is worth remembering what Don Brash said – the gains for Maori from lifting educational and economic achievement are a magnitude higher than any gain from Treaty settlements. The settlements are at best a catalyst.

Settlements address our past and invest in a common future. The wrongs of history are real. Failure to address genuine grievance creates a new grievance.

But by providing an end point for the injustices and reaching durable and just settlements, we can move forward as a country – together.

I’m looking forward to most of the outstandinghistorical  claims being settled in the next six years.

Foreshore & Seabed Act may be toast

March 4th, 2009 at 3:24 pm by David Farrar

Attorney-General Chris Finlayson has announced the members of the panel to review the Foreshore & Seabed Act. They are:

  • former High Court judge and Waitangi Tribunal chair Justice Edward Taihakurei Durie
  • barrister Richard Boast, an Associate Professor at Victoria University specialising in property law and Maori legal issues
  • Hana O’Regan, an educationalist specialising in Maori culture and identity

The panel’s job TOR is to determine:

a) What were the nature and extent of the mana whenua and public interests in the coastal marine area prior to Attorney-General v Ngati Apa [2003] 3 NZLR 643

b) What options were available to the government to respond to the Court of Appeal decision in Attorney-General v Ngati Apa [2003] 3 NZLR 643

c) Whether the Foreshore and Seabed Act 2004 effectively recognises and provides for customary or aboriginal title and public interests (including Maori, local government and business) in the coastal marine area and maintains and allows for the enhancement of mana whenua

d) If the Panel has reservations that the Foreshore and Seabed Act does not provide for the above, outline options on what could be the most workable and efficient methods by which both customary and public interests in the coastal marine area could be recognised and provided for; and in particular,
how processes of recognising and providing for such interests could be streamlined

Now without in any way suggesting the three panelists will pre-judge the issue, and not do a thorough job, I would be amazed if a panel including Judge Durie and Hana O’Regan came back at the end of the day and said “Yes we agree the best thing for the Government to have done was to legislate away the rights of Maori to test claims to title in court”.  That is highly unlikely.

The panel is to report by 30 June 2009, and the Government has said they will make decisions by the 31 December 2009.

I will not be surprised if we see a Foreshore & Seabed Repeal Act in 2010, and a very happy Maori Party.

Of course agreeing to repeal it is the easy part. What you replace it with, is considerably harder.

Having a lawyer as Attorney-General

March 4th, 2009 at 10:00 am by David Farrar

An interesting interview with Chris Finlayson about his role as Attorney-General, with regards to the Bill of Rights Act:

Attorney-General Chris Finlayson says he is simply “doing his duty” by raising concerns about possible breaches of human rights by his own Government’s law and order regime.

Mr Finlayson has found that the plans to give police unfettered power to take DNA from those they arrest and the “three strike and you’re out” law both have apparent inconsistencies with the Bill of Rights.  …

But when performing the function of Attorney-General – sometimes called “the Government’s lawyer” – he said it was important he acted independently.

“The Attorney-General must not be swayed by party political considerations but must objectively come to certain conclusions.”

Absolutely. The AG is generally exempt for collective Cabinet responsibility when it comes to the performance of the legal side of his job.

He said this independence was missing during the “failure of the system” when the Electoral Finance Act was introduced by the previous Labour Government and the Attorney-General – Michael Cullen – did not report its apparent inconsistencies with the Bill of Rights section on freedom of expression.

Mr Finlayson believed this failure was “political”.

“I just thought the freedom of expression issues were so obvious that a first-year law student would be able to identify them. And history has proved that completely right.”

I of course agree, as did the NZ Law Society and the Human Rights Commission.

The Attorney-General bases his opinion on whether a proposed law would breach the Bill of Rights on advice from the Ministry of Justice or, when it it is justice-related legislation, the Crown Law Office.

In the case of the Electoral Finance Act, the Crown Law Office concluded that it was consistent with the Bill of Rights.

Mr Finlayson, a leading lawyer before becoming an MP, said he was prepared to dissent from the advice he received.

“I don’t take the view that I’m some kind of automaton and just sign off on what is given to me. I will examine the matter carefully.”

This is fascinating. A non lawyer as Attorney-General (such as Dr Cullen was) would feel compelled not to second guess the advice from officials. But Finlayson has clearly stated that if thinks the legal opinion is not up to scratch, he will substitute his own opinion.

This is, in my opinion, quite correct. The role is indeed not of an automaton. Of course one would expect the AG to reveal both his advice and the officials advice, if they differ.


February 23rd, 2009 at 4:40 pm by David Farrar

I understand the Attorney-General, Chris Finlayson, Prime Minister, John Key has announced that S92A of the Copyright has been delayed by Order in Council until 27 March.

If agreement on the TCF code can’t be reached by then (presumably between the TCF and the three main rights holders groups), then it may remain suspended.

Great to see National take action on this issue, after listening to concerns. And also well done to all those involved in highlighting the problems with S92A, especially the positions being taken by certain rights holders groups that they should be allowed to both make the complaints, and adjudicate on its validity.

Attorney-General Finlayson

November 20th, 2008 at 10:12 am by David Farrar

The Herald profiles the new Attorney-General Christopher Finlayson:

“I’ve always thought it was a really interesting job. As I’ve got involved in law more and more, you see that the poor old Attorney-General is the most-sued person in the realm and you see the sort of responsibilities he or she has.

“It’s an ancient office and it has huge responsibilities. I regard it as, frankly, the highlight of my career to get the job.”

Chris will be a very popular choice within the legal fraternity. He is or was a member of the High Court’s Rules Committee and has appeared before the Privy Council close to a dozen times.

An advocate for constitutional convention, Mr Finlayson says he has a “pragmatic rather than an emotional view” on republicanism. His own view is that “the time will come” for New Zealand, especially given Australia’s move in that direction under the Rudd Government.

“I’m very loyal to the current monarch but I’d be in the camp that says on the demise of the Queen there will be a number of countries in the Commonwealth that will be reviewing their constitutional arrangements and that’s probably a good thing. If so, it won’t be an anti-British thing. It’s just New Zealand’s evolution as a country.”

Sounds sensible.

Mr Finlayson is also likely to be involved in any review of electoral finance laws after his party repeals the Electoral Finance Act, although the exact plans are “something the Cabinet will have to look at”.

“What I really disliked about that act was this notion of third parties, that the public and representatives of the public were some kind of interlopers into the political game which was really for the politicians.

“I found that profoundly offensive. We are the servants. It’s the public’s electoral system.”

Absolutely. Labour and its allies tried to hijack it for their own gain.

It was also “atrociously drafted”. For the law reform fanatic who has worked for 30 years to become the Attorney-General, that is perhaps its worst sin of all.

Is there a word beyond atricious?

Vic Election Debate 2008

October 1st, 2008 at 3:00 pm by David Farrar
The Victoria University Debating Society Election Debate 2008
That we need a centre-right government
Stephen Franks – National candidate for Wellington Central
Christopher Finlayson MP – National List MP and Rongotai candidate
Stephen Whittington – champion Victoria student debater
Grant Robertson – Labour candidate for Wellington Central
Sue Kedgley MP – Green candidate for Wellington Central
Polly Higbee – champion Victoria student debater
Chair: Sean Plunket
Monday 6 October, 6.30pm – 8pm
Lecture Theatre One, Rutherford House, Victoria University of Wellington
Gold coin entry. Questions after the debate, then tea and cofffee.
Also debating fans may wish to check out this footage of Jen Savage on Breakfast. Savage was judged best speaker at the Secondary School World Champs, and you get some idea why with her performance on Breakfast. Someone to watch out for – she has declared she wants Paul Henry’s job 🙂

Historical treaty claims due in by midnight

September 1st, 2008 at 8:00 am by David Farrar

The deadline for filing historical (prior to 1992) Treaty of Waitangi claims is at midnight tonight.

Claimants have had over 20 years to file their claims, so the deadline is far from hasty as the Maori Party claim. Indeed as Chris Finlayson says, there needs to be an end to litigation at some stage.

The Waitangi Tribunal has been publicising the deadline and has generated several hundred claims. I honestly doubt a single genuine claim has not managed to be filed.

The good thing about today, is that from tomorrow on the number of unresolved historical grievance claims can only start reducing. God knows how long it will take to consider and hopefully resolve them all, but we will have a known number of claims for the Tribunal and Government to work through.

Dr Cullen has done a sterling job in advancing Treaty settlements since he took over from Mark Burton. If National win the election, they should aim to match Dr Cullen’s pace. Luckily they have considerable resources to call on:

  • Chris Finlayson, who speny many years as Ngai Tahu’s lawyer and is very knowledgable in this area
  • Tim Groser, one of NZ’s top negotiators (and the settlements are very much a negotiation)
  • Georgina te Heuheu, a former member of the Waitangi Tribunal

Of course premature to speculate on what portfolios, MPs may get, but just wanting to show that the work of resolving historical grievances should continue, and settling such grievances in fair, full and final settlements is a win-win.

Feelings of inadequacy

August 27th, 2008 at 8:33 am by David Farrar

Later this morning is a final panel session on MMP. One of the panelists, Chris Finlayson, can’t make it due to select committees – so I was asked last night if I would be a replacement.

I stupidly said yes, before checking who else was on the panel.

Sir Kenneth Keith is on the panel. Not only is Sir Kenneth arguably our most emiment jurist (he now sits on the International Court of Justice), he was on the original Royal Commission on the Electoral System. Great I get to look stupid in front of NZ’s most emiment jurist!

Now don’t get me wrong. I like to think a know a fair bit about electoral law and MMP. Possibly more than 99% of the population. But everyone in the room is in the other 1%!

Treaty Settlements Ministers

June 16th, 2008 at 10:31 am by David Farrar

Grant Robertson comments on the suggestion by Te Pumautanga o Te Arawa that all future Finance Ministers should also be Treaty Negotiation Ministers also.

Dr Cullen has made admirable progress, and should be congratulated for it. I suspect his job was made easier by the fact that he got to replace Mark Burton who showed the same skills at Treaty Negotiations as he did with Electoral Finance.

I would not tie the job into the Finance Minister job (even though Bill English would do a fine job) but I agree with Grant you do want Ministers who are motivated to do the job and have some mana. National has at least three people who could contribute very well to the portfolio.

Chris Finlayson is the current spokesperson and has worked in the Treaty area professionally before he entered Parliament, and has good relations with many prominent Iwi leaders. Georgina te Heuheu is a former member of the Waitangi Tribunal, and was NZ’s first female Maori lawyer. The other person whom I would advocate should be included (I think the portfolio is important enough one should have one or maybe two associate Ministers) is Tim Groser. Tim is a highly experienced negotiator in the trade field, and at the end of the day a large component of Treaty settlements is a commercial negotiation.

Electoral Commission seeking advice on websites

February 28th, 2008 at 7:57 am by David Farrar

The NZ Herald reports:

The Electoral Commission is seeking advice on whether personal websites that carry political opinions should be treated the same as blogs under the Electoral Finance Act.

The law exempts from election rules “the publication by an individual, on a non-commercial basis on the internet of his or her personal political views (being the kind of publication commonly known as a blog).”

Electoral Commission chief executive Helena Catt said it was unclear how wide the exemption was and whether it included personal websites that did not necessarily take the blog format…

Dr Catt said the commission hoped to clarify the law soon and would meet in early April to discuss advice on a range of online areas, including whether political parties’ websites had to abide by the rules for election advertisements.

It does indeed seem ludicrous that the law discriminates based on the type of technology a website uses.  But sadly this is not some drafting error, but a deliberate decision supported by Labour, NZ First and the Greens.

The Departmental Report (Para 306) advises not to broaden the exemption:

The aim of this provision is to make it clear that the publication by an individual of their personal political views on the internet in the form of  “blog” or “weblog” (which is a form of online diary) does not amount o an election advertisement. The provision is broad enough to cover all such blogs, including generic online diaries on particular websites, such as (for example) www.blogspot.com; www.myspace.com; www.facebook.com.

So the officials’ advice was very much that this applies only for views published in the form of a blog.

And National MP Chris Finlayson put up an amendment which would have widened the exemption to:

the publication by an individual, on a non-commercial basis, on the Internet of his or her personal political views

And this was rejected by Labour, Greens and NZ First.

So the problem for the Electoral Commission, and Crown Law who presumably are advising them, is that they probably agree it is ridicolous that the law defining an election ad should vary depending on the type of technology used, but if they choose to interpret the law more liberally then they are flying in the face of what Parliament explicitly voted not to do.