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www.mccully.co.nz 30 June 2006

www.mccully.co.nz 30 June 2006

A Weekly Report from the Keyboard of Murray McCully MP for East Coast Bays

A Genuine and Proper Interest?

There was some sense of humour failure around the legal profession recently when the humble Member for East Coast Bays rendered a selfless public service by identifying the sheer folly of elevating former Solicitor-General Terence Arnold to the Court of Appeal bench. And to allow the disconcerted to regain their jurisprudential composures the humble member had every intention of being kind to judges. For a little while anyway. And then along came High Court Justice John Wild this week with a judgment that deserves assertive, if not brutal rejection. And so it must be.

The story hinges on the decision of Conservation Minister Chris Carter to reject the Whangamata Marina proposal - a decision now challenged in the High Court by the Whangamata Marina Society. Papers filed in the Court, challenge the credibility of certain statements made by the Minister in the House - a matter of some public interest. So various media outlets made application to the Registrar to view and copy the file. On review, Justice Wild ordered said media outlets to be granted access, and permission to copy the papers.

Having more than a mild interest in both the wider conservation issues involved, and the credibility of the Minister, the National Party Research Unit sought access to the file. Turned down by the Registrar, Justice Wild was again called upon for a review. And this week he released a most extra-ordinary decision. The Court file, to which he had granted media outlets the right to view and to copy, was not available to the National Party. The National Party, according to His Honour, is does not have a "genuine and proper interest " in the proceedings.

Hang on. A Judge of the High Court ruling that members of the media may have access to Court files that are not to be available to the elected representatives of the people. How so?

It works like this: If a person has a "genuine and proper interest" in proceedings, they are entitled, as of right, to view the Court file. If they do not, then it is over to the Registrar, or on review, the Judge. But follow the reasoning of Wild J:

"I cannot rule out that the applicant’s request is so that it can use documents on the Court file, or their contents, for political purposes, whether inside or outside Parliament. This would run roughshod over the principle that Parliament and its members should refrain from commenting on matters before the Courts, which are sub judice."

The judge then rehearses the "well established and wise principle that Parliament and the Courts strive to respect each others role in the conduct of public affairs. Parliament for its part refrains from commenting on matters before the Courts under the sub judice rule. The Courts, in turn, are careful not to interfere with the workings of Parliament."

However, "In this area, as Solicitor-General v Smith painfully demonstrated to all involved, prevention is better than cure……….Holding that Members of Parliament as well as the political parties into which they are organised, do not have a "genuine and proper interest" in access to Court files in cases which are undecided before the Courts will best ensure that Parliament and the Courts perform their respective tasks."

And finally: "even if the applicant obtained controversial information from the Court file, it would be unlikely that National Members of Parliament would be able to raise such information in the House. But that, of course, is absolutely not the business of the Courts."

But therein lies the problem. Because THAT is exactly what the good judge has done. He has placed his Court in the position of enforcing a Standing Order of the Parliament by denying Members of Parliament access to information on a Court file - information readily available to journalists.

The result, of course, is a farce. Members of Parliament will be able to raise matters from the Court files in Parliament, so long as they read about them in a newspaper, and not directly from the Court file. So long, of course, as they are not breaching Standing Orders by debating a particular case which is before the Courts thereby prejudicing the outcome. And it is the job of the Speaker to ensure that that rule is strictly enforced. Well, it used to be. Until Justice Wild’s decision this week.

Winning the Terrorism War?

For many months, the humble Member for East Coast Bays has battled to alert New Zealanders to the fragility of our counter-terrorism defences. The recent expulsion of September 11 hijack associate Rayed Mohammed Abdullah Ali provided an opportunity to focus media attention on the paucity of our preparedness. And this week, there was the first flicker of official recognition that further action would be required.

An obscure and little-reported speech by our Prime Minister to the Australian and New Zealand Society of International Law was the venue. The content of the speech suggested that Clark had finally started to understand the extent of her exposure.

To date, the warnings of the humble Member for East Coast Bays have been met by staunch denials. The public bumbling of both Police counter-terrorism boss Jon White, and Police Minister Annette provided the first indication the Government’s position was unsustainable. And Clark began to realise just how exposed she would be in the event of a terrorist incident. So her speech to the international lawyers provided the perfect opportunity for the manoeuvre required: A huge back-pedal.

Suddenly, we here in New Zealand are "in the process of updating and significantly revising the Terrorism Suppression Act 2002." Indeed "a separate and wider policy initiative is now under preparation to enable New Zealand to implement the full range of FATF recommendations." It has apparently now "become clear that in some respects the legislation does not allow New Zealand to be as responsive as we would wish to be in implementing the changing requirements of the UN counter-terrorism arrangements." As a consequence "Parliamentary counsel are currently preparing amendments to the TSA to be brought to Parliament this year."

How very, very interesting. Until now, the humble Member for East Coast Bays has been deemed to be a shameless scare-merchant, irresponsibly fuelling public concerns about terrorism. But now, these apparently baseless concerns have become sufficiently important that our government has plans to actually change the law of the land. So we can all relax then.

Well, not quite. The problem, of course, is that changes to the law will not fix the key exposure we have to international troublemakers: the failure of our Prime Minister to designate a single terrorist entity under the TSA on top of the UN list. Despite Australia designating another 88.

Helen Clark has a rather different view of what the problem is here. Her concern is not the risk to the security of New Zealanders of slack counter-terrorism arrangements. Her worry is the political problem of New Zealanders thinking their government is soft on terrorism. And she fondly imagines that New Zealanders will be fooled by her tinkering around with the legislation. But the worldwide headquarters of mccully.co has very bad news for her on that front. We will not be going away until we see some serious Prime Ministerial action. Like the designation of a few terrorists perhaps.

King Bungles Therapeutic Goods Regime

Regular readers will be aware of the huge hole being dug by former Health Minister Annette King over the trans-Tasman Therapeutic Goods Regime. The proposal for a massively expensive, grossly bureaucratic structure to administer the process attracted vocal condemnation when the original treaty was assessed by Parliament’s Health select committee two years ago. Other parties stated their specific objections in minority reports. And it became clear that there was no Parliamentary majority for King’s pet project.

Government attempts to blackmail the National Party into supporting the regime (this is a key piece of CER etc etc) were met with a firm response. National Leader Don Brash wrote to the Prime Minister to tell her that changes would be required to make the proposal acceptable. And consultation with the National Party would be essential to achieve a positive outcome.

But King refused to consult. And after the 2005 election, shuffled out of Health, she kept responsibility for the negotiations - almost certainly because the incoming Ministers of Trade (Goff) and Health (Hodgson) could see the process could only end in tears.

Until recent weeks, King has blundered on, refusing to consult with representatives of the National Party. So inexplicable was her behaviour, in light of the select committee outcome, that it was widely assumed she had cut a deal with one of the smaller parties and no longer needed National Party support. The King approach stands in stark contrast to that of Trade Minister Goff, who, despite not generally being dependent upon National Parliamentary support for deals negotiated, invests time in briefing and consulting his political foes. Now King is unveiling the full TTTG package negotiated with Australia, telling the National Party, again, they must support it or risk damaging CER.

The response, of course, has been to tell King to do what she should have done two years ago: to note the objections of the public, as conveyed through the select committee report, discuss the proposals with other parties, and negotiate changes with the Australians. But it may well be too late for that. The next few weeks will tell. The moral of the story, of course folks, is not to leave one of your stupidest, most arrogant (always a dangerous combination) ministers in charge of a really serious negotiation.


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