Que CERA, CERA?
April 7, 2011
A scenario: a staff-member at the new Canterbury Earthquake Recovery Authority leaks some information to the media. Maybe it’s about waste or inefficiency in the recovery effort. Maybe it’s about a raging personality conflict hampering operations. Maybe it’s about a contractor on the take.
The minister and the chief executive are furious about the leak. What can they do? They might decide to use their power to “require information from any source” to order the media to name their informant. The Cabinet paper (Proposed Government Arrangements: Paper 1) doesn’t suggest any exceptions for confidentiality, or even legal professional privilege.
The exercise of the power would have to be reasonably considered necessary for the purposes of the legislation – but these are wide indeed, and include “ensur[ing] Christchurch and its communities respond to and recover from the impact of the earthquakes”… and providing the Minister and CERA with “adequate powers to assist with the recovery” and restore “social and economic well-being” after the earthquakes. One could take the view that these purposes are wide enough to encompass the need to find the identity of a staff-member who was arguably acting unlawfully and hindering the recovery effort.
The policy papers don’t identify this as a potential rights issue.
The papers do mention (under “risk mitigation”) that the provisions could be similar to section 76, 77 and 82 of the Civil Defence Emergency Management Act. (Section 82 protects legal professional privilege. Section 77 contains an appeal right against “unreasonable” uses of the power).
In light of NBR’s experience with the Serious Fraud Office’s wide powers, I suggest the media take a close look at the CERA legislation when it emerges…
Topics: General | No Comments »
A rod for their own backs
April 7, 2011
In the past week or so, both Fran O’Sullivan and Brian Rudman have assailed the courts for removing the Urewera 18’s right to a jury trial. Both are troubled that the reasoning behind the decisions (from the High Court, and then the Court of Appeal) is suppressed. Both say it’s difficult to see how the issues can be so complex as to warrant removing such a fundamental protection.
I’m inclined to wait to see the judgments before slagging them off. I note that the trials are slated for 3 months, and that this is much more than the 6-week threshold at which the Law Commission said it’s quite an imposition to expect jurors to sit. I wonder whether there may indeed be some complexity in directing a jury to about which parts of the 3 months’ worth of evidence applies to which defendant(s). And the decisions may contain reference to evidence or arguments that jury would not be able to see, which may justify suppressing them, on the grounds that if there’s a further appeal, the Supreme Court may yet order a jury trial.
Still, I think these columns, both by thoughtful journalists, serve the judges right. I find it difficult to believe that the whole of the judgments needed to be suppressed. Surely much of the reasoning could create no prejudice in the minds of a future juror. And these are publicly significant decisions. Where’s the justification for suppressing the whole lot? How can this be compliant with the Bill of Rights?
Well, in the High Court anyway, no one asked. The judge simply suppressed the whole judgment, including the outcome. When the Crown suggested this went too far, the judge called a conference. Then she simply deferred to a defence request that the result of the decision was all that could be un-suppressed.
Two things here. Note that it’s the defendants who are asking for this suppression. And note that we shouldn’t be quick to criticise a judge in a high-profile and complicated case who errs on the side of caution to protect what the defendants regard as their interests.
Still. There’s also the public interest to consider. The media is being suppressed from conveying this information to the public. The public loses – right when it matters most – the ability to understand and debate the reasons for this landmark ruling. The judges are supposed to protect those interests too. Especially where the defendants did not seem to be required to come up with any particular justification for the suppression – at least, none that was recorded in the judge’s minute, and there wasn’t so much as a mention of the Bill of Rights and its requirement of a demonstrable justification for such suppressions.
I don’t know whether there was much argument on the point in the Court of Appeal. But judges lose the right to complain about unfair treatment when they deny us the right to properly evaluate their decisions for no good reason.
Topics: General | 49 Comments »
Worst defamation ever?
April 7, 2011
Dismissing Vince Siemer’s appeal against NZ’s highest ever defamation damages award, the Court of Appeal said:
We have not had our attention drawn to any worse case of defamation in the British Commonwealth, and our own researches have not disclosed one.
Really? It’s hard to imagine they looked very hard. What about the famous case of Lord Aldington, who was labelled a war criminal, responsible for 70,000 deaths, in 10,000 pamphlets distributed to politicians, the media, and his friends? (By contrast, Siemer criticised Michael Stiassny’s business practices and honesty. His criticisms were vehement and repeated, but were mostly made online; there was a billboard but it only referred to the website. Amazingly, the Court of Appeal referred to no evidence about the number of people who may actually have seen Siemer’s allegations).
Lord Aldington was awarded 1.5 million pounds, back in 1989. In the case I’ve linked to, the European Court of Human Rights found that the damages were so excessive as to be disproportionate, and therefore breached free speech rights under the European Convention on Human Rights.
As you may know, we’ve got a Bill of Rights too. It also protects free speech. Any restriction must be demonstrably justified in a free and democratic society. Somehow the Court of Appeal in this case, despite a fairly lengthy traversal of the principles applying to defamation damages, did not once mention the Bill of Rights Act.
Topics: General | 24,125 Comments »
Marshalling the facts?
March 31, 2011
You may recall that I blogged about a student who accused journalist Jonathan Marshall of trying to persuade him to lie to university staff to extract information from them. The Sunday Star-Times’ editor called it “complete fantasy”.
I’ve just had another long conversation with the student concerned. His memory of Jonathan’s approach is detailed. He says it happened after a tutorial at 2:30pm on Friday. He says a tall, lean, brown-haired man approached him as he left a university building. The man was wearing a dark suit without a tie, and was accompanied by another man, who was about 40, with brown hair and stubble. The first man looked familiar. The man introduced himself as “Jonathan from the Sunday Star-Times”. The student now recognises him as Jonathan Marshall.
He says Jonathan struck up a conversation about the Darren Hughes incident and asked him, among other things, where the complainant was likely to have his classes, whether there was a bar on campus, and which bars first-year students hang out in.
At one point, he says, Jonathan asked whether he would be prepared to go to the office and say he was a long-lost friend of the complainant, that he wanted to catch up with him, and find out where his classes were. (He refused, but didn’t say to Jonathan’s face that the idea was “morally bankrupt”: that was something he told me and I wrongly thought he’d said it to Jonathan, so I’ve deleted that from the original post).
The student has no reason to lie that is apparent to me. He says he discussed his experience with his father and flatmates before he told me. I found him convincing. I note that Jonathan was himself seen in a nearby university office shortly afterward, wearing a dark suit and no tie.
I don’t think it can really be said that there is “nothing to suggest this supposed incident ever took place” or that it is “complete fantasy”. I think there are good reasons to suspect that Marshall did try to encourage a student to lie for him to get information about the complainant for his story.
I might add that, even if it did happen, there is an interesting debate to be had about whether it’s wrong (or always wrong) for journalists to do that sort of thing.
Topics: Media ethics | 930 Comments »
18-year-old in Hughes incident awarded injunction
March 29, 2011
The student who made the complaint against Darren Hughes has obtained a High Court injunction preventing him from being identified.
The claim is made against Fairfax, APN, TVNZ, MediaWorks and bloggers Danyl McLauchlan and David Farrer. The injunction, however, applies to anyone with notice of it. It would be a contempt of court to breach it.
The application was made without notice to any of those defendants because of a fear that the name would be published before the case could be properly argued.
The court decision confirms that the complaint alleges sexual offending. This means that, if charges were laid, the 18-year-old would get automatic name suppression as an alleged sex crime victim.
But that does not apply unless and until charges are laid. So the injunction was based on the tort of privacy.
The judge describes it as “at least a holding injunction”, which suggests that it may be reconsidered after submissions from the defendants. The judge also says it may need to be reconsidered if charges aren’t laid or the information somehow gets out into the public domain anyway.
The privacy arguments are addressed very briefly. Dobson J makes the obvious point that once the name is out, privacy will be lost. He says the plaintiff argues that he has a reasonable expectation of privacy relating to the police complaint, at least while it is being investigated. He recognises that there is a public interest argument here, but says “the larger element of public interest is in the fact of a complaint against a person in Mr Hughes’ former position, rather than the identity of the complainant.” He also notes that publication now would destroy the protection of statutory suppression available to the 18-year-old if sex charges are laid.
He also dispenses with the usual requirement that the plaintiff give an undertaking as to damages. This seems to be significant, because there is conflicting authority about whether he has the power to do so.
The judge explicitly allows the defendants to come back to court to argue for a variation or rescission “at short notice”.
Comment
I think this is probably one of the very rare occasions on which such an injunction can be justified (especially as a holding measure) and when it is fair enough to proceed without notice. But although the Hosking case was cited to support the injunction, there is no mention of the majority judges’ comments on the need for a high threshold for injunctions [para 158]:
… usually an injunction to restrain publication in the face of an alleged interference with privacy will only be available where there is compelling evidence of most highly offensive intended publicising of private information and there is little legitimate public concern in the information. In most cases, damages will be considered an adequate remedy.
This threshold is not uncontroversial. The Chief Justice has suggested that it may need to be lowered. In addition, it might be argued that damages would not be an appropriate remedy in this case. Still, this issue should really have been addressed before the injunction was ordered. Also, it’s arguable that the judge is too dismissive of the public interest arguments. A complainant’s identity may have a bearing on his credibility, and this complaint has had very significant political ramifications.
On the other hand, it’s interesting and commendable that the media have refrained from publishing the name so far. Surely they know it. Perhaps they sense the harm that it could do; perhaps they fear a lawsuit; perhaps they accept that the public interest in the name is limited; perhaps they are worried about audience backlash; perhaps they’re just doing the decent thing.
It will be interesting to see whether the media apply to have the order overturned, and to what extent it may be subverted on the internet.
Topics: Privacy tort | 50 Comments »
Jonathan Marshall’s methods
March 29, 2011
I have been contacted by a student at Victoria University who said he was approached by the Sunday Star-Times’ Jonathan Marshall at university last week, on the hunt for information about the 18-year-old at the centre of the Darren Hughes incident.
He said Marshall asked him to go to a university office and pretend to be a long-lost friend of the 18-year-old and ask for his class timetable. The student said he refused, and good on him.
I note the Press Council’s principle on subterfuge states:
The use of deceit and subterfuge can only be condoned in cases when the information sought is in the public interest and cannot be obtained by any other means.
If the student’s account is accurate, I don’t think there can be much doubt that Marshall was trying to use deceit and subterfuge here, even if he was enlisting someone else to do the actual dirty work. Was it, then, really in the public interest? And mightn’t there be other ways of getting this information?
I think journalists and the public probably admire crafty resourcefulness in the pursuit of an important story. And Marshall certainly breaks a lot of prominent stories. He gets information that others can’t. I’m sure that’s partly due to his excellent contacts and his tenacity. But I suspect this little incident opens a window onto his less ethical methods.
UPDATE: Jonathan Marshall emailed to criticise me for not contacting him for comment before publishing this post. It’s a fair cop. So I asked him for his response to the allegation. So far, he hasn’t replied.
UPDATE 2: This just in from Sunday Star-Times editor David Kemeys:
I have had your post about the conduct of Jonathan Marshall brought to my attention. It is complete fantasy. I have checked with people who were actually there, and there is nothing to suggest this supposed incident ever took place. Pretty disappointing stuff from someone who purports to be a media lawyer.
UPDATE 3: The student insists his memory is accurate.
Topics: Media ethics, Press Council | 50 Comments »
Justice: A book so good that Garth McVicar plans to read it
March 28, 2011
A new book on the justice system has hit the bookshop shelves. It’s called “Justice: Speaking Up For Crime’s Silent Victims”. The cover features a staunch-looking Garth McVicar, whose name also appears in large letters at the bottom.
Guess who wrote this book. Hint: not Garth McVicar. I presume when you open it up you are told that the actual author is Michael Larson, who in fact also made big decisions about the content, such as which Sensible Sentencing Trust controversies to focus on.
But that’s okay, because Garth says he’s “checked the facts, made sure that things are right” , according to an interview with Victoria University student mag, Salient.
Except – and I almost fell out of my chair when I read this – Garth hasn’t finished reading it yet. But he plans to… because, he says, “I understand it’s a phenomenal read”.
UPDATE: Stuff has Garth’s explanation: he’s read it chapter by chapter during the drafting, but not all at once. (If he has read it all though, why does he merely “understand” it’s a phenomenal read?)
Topics: General | No Comments »
Paul Henry broadcasting complaint
March 27, 2011
The BSA has found that TVNZ’s actions in response to Paul Henry’s ill-judged comments about the Governor-General were sufficient. Good call, I think.
Along the way, though, they also found that the comments breached standards of good taste and decency, fairness and discrimination. Perhaps that’s not too surprising. TVNZ had upheld the complaint on all three grounds.
But I think it is a bit worrying. For the reasons I gave here, there are problems with all three grounds. Those problems are not discussed in the decision, and in fact none of the parties had any particular interest in raising them. But if we take the BSA’s decision at face value, it seems to have lowered the boom for successful complaints for all three of these standards, without explaining why the usual approaches to them don’t apply.
Topics: Broadcasting Standards Authority | No Comments »
Sunday Star-Times looks to be in contempt
March 27, 2011
Publishing interviews with jurors about the case they have decided is a contempt of court. Our courts have said that if jurors thought their deliberations may be made public, they’d be less willing to serve on a jury and less willing to be frank during deliberations. Revisiting cases may also upset the finality of jury verdicts.
These premises are not unchallengeable, and do not even seem to apply with great force here. What’s more, such interviews take place regularly in the US without the sky falling. But our courts have been (sometimes ridiculously) staunch about the rule.
So it’s hard to see how the SST gets away with this and this.
Topics: Contempt of Court | 328 Comments »
Er
March 18, 2011
Shouldn’t some journalists be asking the government, and Rodney Hide in particular, whether the Canterbury Earthquake Response and Recovery Act follows the principles in the Regulatory Standards Bill…?
Topics: General | 1 Comment »
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