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www.mccully.co.nz - 7 July 2006

www.mccully.co.nz - 7 July 2006

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

Appeal Court Challenge for Wild Ruling

The decision of Justice Wild in the Whangamata Marina Society case to allow media representatives to view and copy the Court files, but prohibit Members of Parliament and political parties from doing so, caused great puzzlement at the worldwide headquarters of mccully.co - as readers of last week’s epistle will be aware. The ensuing days saw deep introspection as to the longer term consequences of this incursion by the Courts into the operational freedoms of Members of Parliament. And a decision was made that the humble Member for East Coast Bays, retired several years ago from litigation in the High Court with a 100% track record, would be pressed back into service, and the track record put on the line.

Readers of sound memory may recall the case of the Race Relations Commissioner, Labour Party activist Joris de Bres, who, having made some inflammatory public remarks, was taken to his own body (the Human Rights Tribunal). De Bres and the Human Rights Commission, of which he is a member, claimed immunity from the very legislation which they routinely enforce on other New Zealanders. And the humble Member for East Coast Bays was taken all the way to a full bench of the High Court to secure a decision that the claimed immunity did not exist. One law for all.

Armed with a hard-won High Court victory, the humble Member required no persuasion as to the benefits of quietly slipping into jurisprudential obscurity. A 100% success rate was always going to be hard to improve upon. And then along came Hon Justice Wild.

The original application to see and copy the Court files was made by the National Party Research Unit. In order to remove any doubt as to the nature of the Parliamentary interest, a new application to view the file was made last week by the humble Member for East Coast Bays, wearing his hat as National Party Spokesman on Conservation.

So now we have a simple equation on our hands: the Opposition Spokesman on Conservation is asking to see a Court file involving proceedings against the Minister of Conservation, in order that he might undertake his proper constitutional duties.

The Registrar, early this week declined that request, citing the existing ruling of Justice Wild. An immediate application was made to Justice Wild to review the Registrar’s decision - a formality which will no doubt see the good Judge merely refer to his earlier ruling. And any day now the National Party Spokesman on Conservation will be off to ask the Court of Appeal to overturn the Wild decision.

A Matter of Principle

Justice Wild, in a written decision, has ruled that "Members of Parliament, and 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". This, he says, "will best ensure that Parliament and the Courts perform their respective tasks." Yet the very same Judge has ruled that representatives of the news media do have a "genuine and proper interest" in the Whangamata proceedings, and has given them access to the files. How can this be?

At the heart of the matter is a belief on the part of the Judge that National Party MPs can’t be trusted to follow the rules. And he has therefore appointed himself as the enforcer of Parliament’s Standing Orders on the basis that "prevention is better than cure."

Justice Wild quotes that great constitutional luminary, Jonathan Hunt, who, when Speaker, asserted that "Parliament sets higher standards for itself than does the news media," and that "the House is not in the same position as the media when reporting cases." All of which may be true. That is why Standing Orders prevent Members from debating particular cases before the Courts where such debate might prejudice the outcome of that case. That is why Members of Parliament are generally very respectful of that Standing Order. And that is why Speakers are rigorous in policing it when Members are not.

But none of the above establishes a case for identifying Members of Parliament and political parties as some new form of second class citizen, to be denied access to information readily available to the media. The decision is bordering on offensive because it is based on a presumption that National Members of Parliament cannot be trusted to follow Parliament’s rules, which Justice Wild has now decided it is the business of the Courts to police.

Justice Wild’s decision is a very very bad decision indeed, based upon a flawed notion of the respective roles of Parliament and the Courts, and which is devoid of the appropriate regard for the rights of Members of Parliament to carry out their constitutional duties without undue interference. It must not be allowed to stand.

Cruising for a Bruising

Regular readers may recall a recent focus on the report of the Auditor-General (A-G) into the nation’s largest landowner, the Department of Conservation (DOC). The A-G found DOC had no central data base of the properties it owned, or how or why it owned them. Nor was there any central control of the purchase or disposal of properties. And, guess what? As a consequence, DOC rules for the sale and purchase of properties appear to have been so routinely flouted that the A-G directed that all recent transactions be reviewed, and loose ends tidied. How very very interesting.

But what, we hear you ask, did the A-G see that made him direct a review of all recent land transactions by DOC? The A-G chose just two recent transactions to be case studies for his report - one sale and one purchase. The purchase involved the acquisition of 150 ha at Waikawau Bay on the Coromandel for the tidy sum of $3.54 million. And when he looked at the paperwork it appears the A-G had a mild heart attack.

“The Department’s documentation for the 2 land transactions was not complete or clear in terms of the decisions that were made for either transaction, and the documentation highlighted significant non compliance with the Department’s standard operating procedures,” the Auditor-General found.

The Waikawau Bay purchase, regardless of the merits of the acquisition, appears to have broken every rule in the book. The $3.54 million purchase was funded by $1 million from the Department of Conservation’s Land Acquisition Fund (LAF), and $2.54 million from the Nature Heritage Fund and the Government’s discretionary budget. The A-G examined only the $1 million LAF grant. Because this is taxpayers’ money, the Department has a standard set of rules for spending it. And, according to the A-G, just about every one of them was broken.

First, it was not clear from the file whether the Land Acquisition Committee had assessed the application against the Fund criteria at all. Then a series of other minor blemishes: no records to show how the Committee decided to double it’s recommended funding from $500,000 to $1 million. No records for the expenditure of the money, no record of the date of the purchase, no copy of the post-acquisition property title, and none of the obligatory reports from the local conservancy to the Fund manager.

But then, the A-G makes it clear just who is to be held responsible for this shambolic state of affairs: the application was made “at the request of the Minister of Conservation.” And here’s betting that Chris Carter’s grubby, overbearing fingerprints are all over the heavily criticised file. And that’s just the $1 million LAF grant. The Nature Heritage Fund and Government “discretionary” funding should be even better.

The most excellent researchers from the worldwide headquarters have been dispatched. The Official Information Act has been engaged. The truth will be laid bare. And you know where you will read about it first.

Decision Time for Commissioner Broad

The accession of Howard Broad to the Police Commissioner's role brought the hope of a new and better culture at Police Headquarters following the regrettable lapses of recent years. Paintergate, speedgate and the recent Police bungling of the investigation into the Labour Party's campaign budget overspend (either a corrupt practice or an illegal practice) have given the strong impression of Police leadership that lacked independence and impartiality.

Not to mention the Shane Ardern prosecution, which Police prosecutors correctly assessed would be thrown out by the Judge, but which Police bosses decided to pursue anyway. There was a need for a new culture at the top of the Police - one which demonstrated independence, impartiality, professionalism. One which turned it's back on the slavish desire to accommodate the political needs of the Government we have seen in recent years.

How disappointing it was, therefore, to hear of the spectacle of Commissioner Broad being wheeled into a media conference with his Minister (in response to leaked Police memos released by National’s Simon Power), to argue that Police speeding ticket quotas are targets, not quotas. And that the distinction was significant. The fact that our top Policeman appeared wearing a suit, not in uniform, led to speculation that the media conference was a political initiative, for which he was not prepared.

Members of the public are rightly concerned when unable to secure prompt Police attendance at burglaries, but are promptly nabbed for being marginally over the speed limit. There is a legitimate debate to be had about Police priority-setting. And questions to be asked about the extent to which the Police fixation with traffic offences is the result of political direction, carried through the annual purchase agreement with the Minister. So long as the Police brass and the Minister continue to fudge in this area, public cynicism will remain.

The restoration of public confidence in the Police after the battering it has received in recent times will be a significant challenge. It will require straight talking from the Commissioner, the banishment of the slippery Police PR men who have played a significant role in the decline of recent years, the appearance and the actuality of absolute impartiality, and displays of fearless Police independence from the Minister. On those counts it was a most inauspicious start from our new Police Commissioner this week.


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