Ministry of Justice enquiry a sham
Available for immediate use
9 November 2009
Ministry of Justice enquiry a sham
If you’ve ever felt that access to justice in New Zealand is based on the premise that who you are is more important than what you have to say, then you’ll be interested to know that an internal Ministry of Justice document recently released under the Official Information Act has revealed that you were dead right.
The embarrassing exposé came to light as a result of a complaint made in May 2008 by environmentalist Bruce Stuart-Menteath to the Minister of Justice about the alleged misconduct and inability of the Registrar of Private Investigators and Security Guards (PISG), Gary Harrison, for the manner in which he dismissed a complaint Stuart-Menteath had made about Provision Security Ltd.
Following his complaint about Harrison, Stuart-Menteath eventually received a letter from the then Associate Minister of Justice, Clayton Cosgrove, who informed him that his complaint on that matter had also been rejected. He didn’t provide any reasons for his decision, but merely referred to his acceptance of the Ministry’s advice and Harrison’s rebuttal. He also pointed out that Stuart-Menteath’s complaint was the first in the twelve years that Harrison had been on the job.
Unhappy at the outcome, especially given the supporting evidence he had provided, Stuart-Menteath made an Official Information Act request to Cosgrove for copies of the information or advice he had used to reach his decision. His response revealed that he had received only two documents. One was Harrison’s rebuttal, which, whilst it referred to Stuart-Menteath’s allegations as “scurrilous” and falsely claimed that he had been trying to use the objection procedure for improper purposes, its most notable characteristic was its abject failure to even mention the key legal and natural justice issues that had been raised.
It stood to reason that the second document, the advice from the Ministry of Justice, must have contained the crucial advice that influenced Cosgrove to reject the complaint, but he claimed that it was legally privileged, that its continued confidentiality outweighed any right of disclosure to the public and refused to release it.
However, Stuart-Menteath had raised serious legal issues, which included Harrison’s failure to apply non-discretionary provisions of the Private Investigators and Security Guards Act and proper procedure with regard to his award of costs to Provision Security. It thus appeared that the confidential advice Cosgrove had used to reject the complaint was contrary to the express wording of the PISG Act and the basic principles of natural justice.
A judicial review in the High Court was Stuart-Menteath’s only means of addressing Harrison’s dismissal of his original complaint. When the matter went to a hearing on 29 July 2009, Justice Fogarty found strongly in favour of Stuart-Menteath. Indeed, neither he nor the court appointed amicus (friend of the Court), could find anything to support Harrison’s decisions. He stated that he was satisfied that Harrison had not treated Stuart-Menteath “...fairly and reasonably...”, quashed his decisions and instructed that a new hearing on the original complaint must be held. (Stuart-Menteath has objected to Harrison’s intention to preside over the hearing and a date has yet to be set).
So how did Harrison get things so wrong, and why did the Ministry of Justice not find something wrong with his decisions? Stuart-Menteath knew the answer to the first question, but the answer he was about to discover about the second was quite unexpected.
When the Labour government lost power in 2008 Stuart-Menteath renewed his OIA request for the internal document to the new Associate Minister of Justice, Richard Worth, and this time was successful in acquiring a copy of the advice that Cosgrove had received from the Ministry of Justice. It revealed that no investigation into Stuart-Menteath’s complaint had actually been conducted, but somehow the Ministry’s chief legal counsel, Jeff Orr, had formed an opinion of the worth of the complaint, and Cosgrove had merely rubber stamped his approval of that opinion.
The document revealed that Orr had remained unaware of, or had just ignored, the legal and procedural issues that Stuart-Menteath had raised in his complaint, and that they had not been disproved by Harrison’s rebuttal. He nevertheless came to the conclusion that Harrison’s rebuttal was acceptable because...
“On the face of it Mr Harrison’s
account appears very thorough...”
However, the only thing that was apparent was that Orr had made such a superficial assessment of Stuart-Menteath’s 29 page complaint he may as well have not looked at it at all. Likewise his appraisal of Harrison’s “thorough” account had not acknowledged that it had failed to respond at all to the key legal points raised, much less rebut them.
One of those points, which Justice Fogarty found central to the matter, was section 56 of the PISG Act, which stated that the Registrar “shall fix a time and place...” and “shall give not less than 14 days’ notice...” of a hearing. Basic principles of natural justice. The wording of section 56 is clear and unambiguous.
First year law students are well aware that the use of the word “shall” in a statute specifies a binding requirement, but Harrison had circumvented its purpose by making up a new rule of his own that must have gone something like this. “If a notice of hearing carries advice that the hearing may be brought forward at short notice, then the requirement to provide 14 days’ notice will no longer be necessary.” And that is exactly what he did.
Furthermore, it is obvious that he made up that rule specifically to benefit Provision Security, should the need arise. Harrison knew that Provision’s director, Gavin Clark, would be in attendance at the Christchurch District Court on the two day’s before the notified hearing date defending his other company, Thompson & Clark Investigations Ltd, from a complaint by the Save Happy Valley Coalition about the use of a spy to infiltrate their organisation. And, as it turned out, that hearing had finished early and Clark wanted the Provision matter to start immediately in order to limit his attendance costs.
But Orr ignored this irregular conduct and instead placed emphasis on a recent review of Harrison’s position, in particular the opinions of the President of the New Zealand Institute of Professional Investigators, Trevor Morley, and the Chairperson of the New Zealand Security Association, Peter Freeman. Orr noted their praise for Harrison and considered it reasonable to use it to support his advice to Cosgrove that Stuart-Menteath’s complaint was without merit.
By using advice from those in the private investigation and security industry to help form an opinion about the complaint, Orr had adopted a procedure that no proper judicial system would accept. Firstly, since when was it acceptable practice for the Ministry of Justice to use such opinions, instead of facts, to clarify whether a complaint about one of its judicial officers should be accepted as valid? If one is found guilty of some indiscretion, one’s past behaviour may well be relevant when deciding on an appropriate penalty, but an enquiry cannot ignore the facts pointing to someone’s guilt and find them not guilty on the basis of their unblemished past behaviour. Furthermore, how does one decide who to ask about someone’s past behaviour? Maybe Orr should have also sought the opinions of past complainants or special interest groups that may have wanted to comment on Harrison’s performance, but he didn’t carry it that far.
It also appears that Orr gave no thought for the possibility that Morely and Freeman may have had a vested interest in Harrison remaining in his position. After all, the private investigation and security industry had had little trouble from him laying down the law, or disciplining operators for breaches of the PISG Act. Orr also thought it relevant that Harrison had not previously been complained about, as if that provided additional defence against Stuart-Menteath’s complaint, like a blemish free record should be taken into account when a motorist gets caught drunk driving.
Then, despite his failure to analyse Stuart-Menteath’s complaint, or Harrison’s rebuttal, Orr reached an astonishing conclusion, that...
“the matter rests largely on the
credibility of the parties.”
By that statement he was clearly not referring to the credibility of the facts and legal arguments Stuart-Menteath had raised, or Harrison’s rebuttal, because the “enquiry” had made no assessment of them. To the contrary, it is equally clear that what he was referring to was their personal credibility. Whether they were reliable, honest upstanding members of society. Whether they could be believed. It was evident that Orr had already determined that Harrison was of such a calibre by his acceptance of the opinions of Morely and Freeman, people who should know because they had a professional, if not personal, relationship with Harrison. And how could a Registrar of Private Investigators and Security Guards who had not been the subject of a complaint before be anything other than an upstanding citizen?
There is no indication in the document that Orr acquired any information to support his conclusion that Stuart-Menteath’s character was less reliable, less honest and less upstanding than Harrison’s, and therefore his complaint less credible than Harrison’s rebuttal. Perhaps he did a Google search of the internet and disapproved of the way Stuart-Menteath had publicised his criticism of Harrison. Perhaps he was influenced by some of the unverified comments that Harrison had made in his rebuttal, which suggested that Stuart-Menteath was less than honest. The fact that Orr had not bothered to verify anything beckons the question, how could he form an impartial opinion and be so convinced about the accuracy of his advice to Cosgrove? And yet somehow he felt compelled to state that...
“From the information available, I do not
consider that further enquiry is likely to alter my view Mr
Stuart-Menteath’s representations do not form grounds for
his [Harrison’s] removal from
Regardless, without being preceded by a proper investigation, Orr’s conclusion was somewhat vulnerable, and likewise Cosgrove’s acceptance of it, without being provided with even a shred evidence that an investigation had actually been conducted, exposed his shortcomings too. The fact that this all happened under the roof of the Ministry of Justice makes it all the more ominous.
A detailed complaint of misconduct or inability about any judicial officer must always be taken very seriously unless there is clear evidence that it is spurious. There was no such evidence in this case. Once accepted, a proper investigation should apply a structure and procedure consistent with the principles of natural justice, which can analyse the substance of the complaint and any denial. It should provide a clear synopsis of the evidence and reach conclusions based on facts, sound reasoning and legal precedents. Basic natural justice. To fail to pursue such a course would be an evasion of accountability that invites corruption and cronyism.
In 2006 Cosgrove spoke to members of the Organisation for Economic Co-operation and Development Anti Bribery Evaluation Team that had come on a fact finding mission to New Zealand, and stated that “New Zealand is strongly committed to fighting bribery and corruption in any form...” Later that year the OECD ranked New Zealand first equal with Iceland and Finland as one of the least corrupt nations in the world. Now that’s really comforting.
The matter is now before the Associate Minister of Justice.
The Registrar PISG is a sole position appointed by the Minister of Justice to administer the Private Investigators and Security Guards Act 1974. In effect he is required to act as watchdog over the conduct of the private investigation and security industry, including the vetting of applicants for an operator’s licence, ensuring that they are fit and proper persons, and holding hearings into complaints. He may impose penalties such as a fine, or cancel a licence for breaches of the Act. He may also penalise those who make complaints if they are not upheld.
The PISG Act intends that members of the public may make objections and complaints and the Registrar is obliged to allow for their lack of legal background when reaching his decisions. Indeed, to the layperson a complaint hearing may be an intimidating experience, not unlike a court hearing. Harrison has been a barrister since 1978 and Registrar PISG since 1996. He has acquired a reputation for allowing vigorous cross-examination of complainants on matters unrelated to their complaint.
Harrison accepted Stuart-Menteath’s complaint about Provision Security as valid and set it down for a hearing on 22 February 2008. His complaint included allegations of intimidation; covert surveillance on Department of Conservation land without authority; refusals by employees to provide ID and failure by employees to hold the required Certificate of Approval.
Before that date Provision produced evidential statements that actually confirmed the substance of the complaint. It seemed a fait accompli that the company would be found guilty and penalised, but in a surprising turn of events, after only consulting with Provision, Harrison brought the hearing forward to the day before the notified hearing date.
Stuart-Menteath first became aware of this change when he received a phone call from the Christchurch District Court and given only 2½ hours notice to attend. He objected to the short notice, stated that he could not attend and could not find his witnesses, but Harrison was inflexible and dismissed his complaint when he failed to appear, then awarded $1500 costs to Provision, which it sought to recover by initiating bankruptcy proceedings.
When the High Court heard Stuart-Menteath’s opposition to Provision Security’s bankruptcy notice, Justice Chisholm stated that he had never heard of such a situation before, where only 2½ hours notice of a hearing had been given. He refused to allow Provision Security to disassociate the costs award from the short notice and in an attempt at preventing the situation from escalating out of control and causing the parties to incur further expense he provided an opportunity for them to come to an out of court settlement, but Provision refused to mediate.
The principles of natural justice are a set of rules developed from common law, which ensure a just and fair decision making process, if followed. Essentially referred to as fairness writ large they are included in section 27 of the New Zealand Bill of Rights Act 1990 and apply to decisions of the courts, tribunals, council hearings and a wide range of other public administrative bodies, such as schools and health boards.
According to the principles there are three basic rules that a decision-making body must follow. The first, the nemo judex in causa sua rule, states that a person may not be a judge in his or her own case, where they may have some personal interest in the subject matter, obviously to prevent conflicts of interest interfering in the decision making process, or even a perception of a conflict of interest. The second, the audi alteram partem rule, states that the affected parties must always be fairly heard, which essentially means that they must be fully informed and have a fair opportunity to present their evidence. It follows that adequate preparation time must be allowed; a reasonable opportunity provided to present evidence, including being informed of the date, time, and venue of a hearing well in advance; and the adjudicator must have an open mind and listen to all relevant evidence, which means they cannot ignore evidence, and must reach a decision that is reasonable and consistent with it. The third principle states that the decision maker must give reasons for their decision.
In the early 1980s Harrison was counsel assisting the Royal Commissioner in the Erebus Air Crash Inquiry, which was the subject of the Privy Council decision Re Erebus Royal Commission  that became an important precedent for clarifying the principles of natural justice. The Privy Council noted two major rules of natural justice, the first being that the person making a decision “...must base his decision upon evidence that has some probative value...” and the second that he must “...listen fairly to any relevant evidence conflicting with the finding...”
The first and third principles were not at issue in this matter, but with regard to the second, when the High Court heard Stuart-Menteath’s opposition to Provision Security’s bankruptcy notice, Justice Chisholm stated that he had never heard of such a situation before, where only 2½ hours notice of a hearing had been given. He refused to allow Provision Security to disassociate the costs award from the short notice and in an attempt at preventing the situation from escalating out of control and causing the parties to incur further expense he provided an opportunity for them to come to an out of court settlement, but Provision refused to mediate.