Kiwiblog

The Herald reports:

The New Zealand Law Society is welcoming a Government review of the defence used in the Waihopai spy base case, where three activists were acquitted of damaging property because their actions were based on a belief that what they did was lawful.

Yesterday Justice Minister Simon Power announced the review of the “claim of right” defence, including looking at whether there needed to be a “reasonableness element” to it. …

The Law Society’s convener of the criminal law subcommittee, Jonathan Krebs, said a review was timely.

“The defence of a ‘claim of right’ certainly has a place, and it’s an important and fundamental defence to have.

“But if the defence allows someone to be acquitted where there was criminal intent, however well-principled they thought it to be, then there is something wrong with the criminal law and it may need to be adjusted slightly.

If the Government does not change the law, I suspect we will have a rash of property vandalism against various government buildings and embassies, with vandals using the same defence.

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.

The New Zealand Law Society has done a submission on the electoral finance review. I will do extracts below but it very strongly makes the point that the review assumes regulation is needed too oftne, when it has not defined what the problem is. This is a theme several submitters have made – any restriction on the right of citizens to get involved in the political process must be justified by pointing to actual harm done by not restricting those rights. Potential or imagined problems are not enough.

Their primary submission is:

that electoral finance law should not restrict the communication of political views nor engagement in political debate (including the opportunity to persuade others of the merits or otherwise of policy or candidate) unless there is an identified reason to do so; and the first step should be to identify the mischief that gives rise to the need to have electoral finance law. The next step is to design laws, including related structures or institutions, that effectively address the identified mischief. Laws that are ineffective or inappropriate (whether because they are too easily avoided or cast too wide) do not enhance the electoral system or the law.

They criticise the issue paper:

The Society considers that the Issues Paper and the wider debate around electoral finance law suffer from an inadequate definition of the problems or potential problems that the regulation of political activity seeks to remedy. Responses to questions about the content of regulation of political activity should be based on a comprehensive discussion and understanding of what the problems and potential problems of unregulated political activity are. A clear need to regulate should be identified.

They raise issues with the “fairness” principle:

Principle 1 is rather loaded. Fairness and equality are not the same. Some candidates will be better public speakers than others; that does not entitle some to presentation lessons, though they can buy them themselves if they wish. Independent candidates, or single issue parties may not get the same opportunities to explain policies and influence voters. Not every leader may be invited to a televised leaders debate?

This is similiar to the point I made in my submission. My example was it is proven in US presidential elections that shorter candidates do not get elected often. There are dozens of factors that can be regarded as unfair. It is trite to assume that money is the only factor that can cause “unfairness”, let alone that it must be regulated. My suggestion was the threshold for intervention should be “manifestly unfair” rather than just “unfair”.

Unidentified donations up to a total of $10,000 p.a. for each group of related persons or entities should be permitted but disclosure of the fact of them should be very soon after receipt.

They are saying the current disclosure threshold of $10,000 is adequate, but that disclosure should happen faster and related persons or entities be treated as one person. I agree with all of that. I advocate monthly disclosure of donations, and some sort of related persons and entities rule would prevent the scams we saw with NZ First where they got up multiple $10,000 donations from the same donor, but disclosed none of them as they were paid through different companies.

Should there be a prohibition on donations from certain sources (for example, overseas individuals, or corporate, or unincorporated entities)?

No. There are many anomalies at both corporate and individual level and it would be so easy to use local branches of overseas entities that the appropriate course is to allow the donations and publish if over the threshold.

I agree. Transparency is the key.

in addition to the rule that Parliamentary Service funding cannot be used for electioneering, funding for all communication services could be suspended during a period before an election. This period could begin the day after
the day that Parliament sits for the last time before polling day. Arguably, MPs do not need communication services funding during this time because almost all of their communication will be electioneering, paid for from their own campaign funds.

This is also in line with what I advocate. I actually think you suspend funding of communication services for the entire regulated period, but if that is too long, then at least for the period after the House last sits.

Moreover, this suspension of funding would better accord with the principle of equity by not giving incumbent MPs an advantage over other candidates for election. Incumbent MPs have an advantage as they can use public funding to communicate with their constituents. Even communication that is not electioneering helps to raise a candidate’s profile. Levelling the playing field for all candidates in the period immediately before polling day is desirable.

Agreed. But will the MPs? It is up to us to pressure them to do so.

If campaign broadcasting continues to be regulated in a similar way to how it is currently regulated, then parties who receive an allocation of time and money should be able to spend their own money on campaign broadcasting. The State should not determine a party’s ability to campaign using broadcasting through a government decision on how much time and money the party can use for broadcasting.

Absolutely. It is sad Labour is backing a regime that prevents smaller parties from using their own funds to get as much airtime as the larger parties get from the taxpayer.

The focus of electoral finance law should be on regulating the conduct of politicians (which is a reason why reform should be initiated by an inquiry that is independent of the political process), not the conduct of voters.

Excellent way of putting it.

There should not be regulation of negative or attack advertising, other than the requirement that advertising material disclose the identity of the person disseminating it and the law that regulates all forms of expression, such as the law of defamation. The law of defamation will often be able to deal with the spreading of false information.

However, there is still the potential for false information about candidates for election to be disseminated. False information in political debate can be damaging as it may adversely affect voters’ choice. Knowing the identity of the person disseminating material containing false information will allow candidates for election to deal with situations where false information is spread about them (Issues Paper, para 4.26). It can also be argued that the best test of truth is to allow different claims to be circulated in the free market place of ideas. Transparency is a necessary and sufficient requirement on negative or attack advertising.

The free market of idea is one I like.

The NZ Law Society has granted Clint Rickards a certificate of character, allowing him to become a lawyer.

I think this was the right decision, even though the instinctive reaction is against it.

Rickards at the end of the day was never found guilty in a courtroom. His behaviour did lead to him having to abandon his Police career – no mean thing for an Assistant Commissioner.

I doubt many people will want to use Rickards as their lawyer. And almost everyone will be aware of his past. But f he wants to practice law, and there are people willing to hire him, then the Law Society is correct not to stop that happening.

What is the Rule of Law Committee? It is a committee of the NZ Law Society and it’s TOR include:

• To promote the continued separation of the legislative, executive and judicial functions of government and, in particular, to promote and protect judicial independence;
• To monitor and respond to rule of law issues arising from proposals, decisions or actions of the New Zealand Government or government agencies;
• To monitor the mechanisms of government, including constitutional conventions;
• To maintain a neutral apolitical position;

It is chaired by Austin Forbes QC, a former President of the NZ Law Society.

Another member is Cheryl Gwyn. She is the Deputy Solictor-General for Constitutional Affairs. Incidentially Cheryl has her own Trevor Loudon profile and nothing wrong with that, but it indicates she can’t be written off as a nasty right winger by those who believe in shooting the messenger).

Anyway this Rule of Law Committee has published a summary paper on the Electoral Finance Act. Some useful extracts:

The third party regime, related eligibility and regulated period provisions of the Act together
constitute a clear prima facie breach of the right to freedom of expression under section 14 of
BORA.

No disagreements there.

They then look at justification for any breach:

In the present context, a Court would need to consider whether the regime pursues a sufficiently important social objective to warrant overriding a protected right and, if so, whether the chosen means to that end bear a rational connection and are not disproportionate or excessive.

The onus for meeting those tests lies with the Government. It is a substantial one. The right to political free speech is fundamental to the operation of a representative democracy and intrusions upon that right must be supported by strong and compelling reasons.

However, the Government proffered no evidence to substantiate the need for the legislation at any point during the Act’s passage through its legislative stages. Broad assertions were made about the effect of electoral advertising, but none of the supporting materials that accompanied the Act’s passage (the Explanatory Note and select committee majority report) provided reliable empirical or statistical evidence to back up those assertions.

Nice phrases – the right to political free speech is fundamental to the operation of a representative democracy. And the Government proffered no evidence on the need for the legislation – just broad assertions.

Even assuming a case had been made for legislative intervention, the regime does not appear to
satisfy the proportionality test for establishing a justifiable limit on the right of freedom of
expression. The regulated period seems excessive and disproportionate to the objectives it is
purported to address.

In other words even if (and that is a big if) some sort of law change was needed along these lines, this change was over the top.

Given the issues at stake, it would clearly serve the public interest to have the Act tested in court. Relief might take the form of a declaration of inconsistency, which would not affect the validity or operation of the Act. But a declaration would have immense ‘moral’ force in bringing to the public’s attention the unwarranted intrusion on the right to freedom of political expression. The media and public attention associated with any challenge would be significant.

Now this is a big story. The Right of Law Committee of the Law Society thinks the EFA is so bad, there should be a judicial declaration that it is inconsistent with the Bill of Rights Act, to draw to the public’s attention how repressive the law is.

The rule of law requires, as a minimum, certain, stable and predictable rules of laws that commend themselves to the sense of fairness of the people. However, the uncertainties that beleaguer the Act are seriously confounding the political process. No one is able to say with confidence whether some forms of political spending constitute election advertising and are subject to the Act’s prescriptive requirements. Given the uncertainties, the rule of law has descended into what an electoral official says is the law (does this or does this not constitute election advertising?). So much, then, for certain, stable and predicable rules of law. The Act is fundamentally flawed and misconceived, and ought to be repealed.

And they call for its total repeal, not just amendment.

A stated objective of the legislation was to encourage participation in the electoral system, but indications are that it is having the reverse effect.

I think the term in vogue is “a chilling effect”

It would be interesting to hear from the Minister of Justice on how this common sense law is deemed by the Rule of Law Committee of the Law Society to be so bad it breaches the Bill of Rights and should be repealed.

The Government’s Criminal Procedure Bill would allow a Judge to decide whether or not there is evidence for a case to go to trial, based solely on written evidence – unless the Judge specifically calls for a depositions hearing.

National and the Law Society are opposed to this. I think it is actually a very laudable idea and worth supporting.

First of all, how often does a case not go to trial because of lack of proof at a depositions hearing? Almost never. Take for example the Sophie Elliott case – the accused was witnessed stabbing her, and was alone in the room with her. There was never ever even a 0.1% chance the case would not go to trial.

I am very mindful of the impact on victims having to sit through both a depositions hearing and a full trial.

The argument against getting rid of depositions hearings (and I welcome lawyers especially to comment) seems to be that they often lead to the accused them pleading guilty and/or doing a plea deal. I’m not convinced these might not happen anyway as there will still be depositions – just written instead of oral.

I’m also comforted by the fact the Judge could have discretion to call for oral depositions if the case was “borderline”. But it appears to me 95% of the cases are not borderline, will clearly go to trial and spending days in court just traumatises the family further, costs money, takes up scarce court time and does little to advance rather than delay justice.

The Law Society submission on the Bill is here. Page 40 has the arguments on this issue. They seem to be against almost every suggested change, and my suspicion is that the defence lawyers wrote the submission

So I’m puzzled by National’s opposition to the Criminal Procedure Bill. National positions itself as pro-victim and anti-waste. The Press editorial calls for the Bill to be passed, as do I.