End Secret Courts

Speech to ACT Party Supporters, Tasca Café, Newmarket
10.30 am , 24 August 2014
Jamie Whyte, ACT Party Leader

"The ACT Party is campaigning to end secret courts" said Dr Jamie Whyte. Secret courts, where the name of the judge, the lawyers, the expert witness and all of the evidence and the sentence of the court are unknown by the public are the stuff of Police States. Yet they are now common in New Zealand. Sometimes there are good reasons for name suppression but there is never a good reason for the Fourth Estate not being able to tell us how the state is exercising power.

We know there are abuses of power but because it is secret we do not know what the abuse was.

One of the reasons that ACT was founded was to campaign for the rule of law – the principle that we should be governed by known and certain laws administered in the open by non-political courts.

The rule of law is an issue at this election. Political parties are putting forward proposals to weaken the rule of law. Indeed, it has already been weakened over recent years.

Voters need to send a message to parliament that we value our freedoms.

Being born in New Zealand in the 20th or 21st century is a great stroke of historical luck. We enjoy a degree of prosperity and personal freedom that people born in any previous period of history, and in many other parts of the world today, could hardly imagine.
Yet the prosperity and liberty we enjoy is not a matter of luck. They arise out of institutions absent from poor and violent societies. Among the most important of these institutions is the rule of law.
We cannot go about our business if we are subject to the arbitrary will of others – be they other private citizens or government officials. If a thug can beat you up and take your stuff, you are not free. Nor are you free if government officials can confiscate your property or imprison you at their discretion. Free people live under the rule of laws, not the rule of men.
The rule of law must be defended tenaciously. Any erosion of it is an erosion of the foundations of our free and prosperous society.

That is why ACT is tough on crime. The state’s first duty is to protect you from those who would use violence against you – by robbing you, raping you, assaulting you or murdering you.

Our 3-strikes for violent crime policy was made law 4 years ago. It is already helping to reduce violent crime, not by imprisoning people but by deterring violent crime. Of the 4,000 who have committed a first offence, only 41 have gone on to commit a second offence. None has committed a third strike offence.
Our new 3-Strikes for burglary policy will do much to protect the 115,000 families who are now burgled each year.

But there is more to the rule of law than effective law enforcement.
It also requires protections for citizens who find themselves embroiled with the legal system or interacting with the state. Today I want to discuss two protections that are under threat in New Zealand.

The first is the principle of open justice.

In a free society, the decisions of our courts must be open to scrutiny. Justice administered in secret will soon stop being justice at all. Secret courts are the stuff of communist dictatorships.

The general principle of open justice is rightly circumscribed in some special circumstances. For example, the sources of evidence used in the trial of terrorists are sometimes kept secret for fear of revealing the identity of secret agents or their evidence-gathering techniques.

But, even in these rare cases, elaborate measures are put in place to ensure that the process is open to scrutiny. And, even then, this small amount of secrecy is highly controversial.

The other common case in which the general principle of open justice is circumscribed is where there is reason to conceal the identity of the alleged culprit or of the victim. Sexual offences are sometimes thought to be such cases.

In such cases, however, nothing else about the process is concealed. Outsiders can easily discover the charges, the evidence presented, the verdict and the sentence. We can easily scrutinise the decisions of the courts. This transparency is crucially important if we are to remain confident that justice is being done.

When it comes to the youth and family courts, however, this safeguard is not being maintained.

As part of ACT’s law and order policy-making, I have had several meetings with experts on criminal sentencing in New Zealand. During a meeting convened to discuss the topic of youth crime, I asked what they could tell me about the sentencing of crimes committed by people under the age of 18 – “youths” for legal purposes. Was there any obvious problem that could be remedied by a change in the law?
They could not tell me.

This is because what goes on in the youth courts is kept secret – or, at least, very difficult to discover. It is right to conceal the names of the youths brought before the courts. But that is not all that is concealed.

Judgments of the youth court are not available to the public. We know nothing of the crime for which the court is convened, the charge the youth faces, the evidence that is submitted, the decision of the court and the sentence imposed, if any.

Nor are Judgments available to the media. The media do not report on youth court proceedings because they are not allowed to. Yet the media are the proxy of the public. If media scrutiny is prevented, public scrutiny is prevented.
Presently, all judgments of the High Court, the Court of Appeal and the Supreme Court are published within days of being made. With the passing of a Bill currently before Parliament, the District Courts will soon be subject to the same publishing rules. As they should be. Yet, the youth court, as well as the family court, are intended to remain closed courts, immune from scrutiny.
This secrecy is a bigger problem than any particular defect that the youth justice system may or may not have. It is a wholly unjustified violation of the principle of open justice. The public must have the ability to scrutinise the youth justice system. We need not know the identities of the youths involved. But we must know what they are accused of, what evidence was brought before the court and what verdict and sentence were handed out. We must be able to see how often the same youth is appearing before the court.

If we do not know such things, how can we know if the system is administering justice or if it is working to reduce crime? How can we know if it is helping those youths who have been drawn into crime or whether it is letting them down?
We know that there are abuses of power in the Youth Court that people feel powerless to do anything about. They cannot go to a journalist because the media cannot report. They cannot go to their MP because they cannot prove what they say because it is secret.

Over the last 5 years, more than 1,100 complaints have been lodged against judges or various courts. But not one has been lodged against the youth court. Either we can believe the Youth Court administers perfect justice – in which case you would expect the judges, lawyers and welfare officers to be in favour of the world knowing of this world first – or secrecy is being used to hide miscarriages of justice.

Even if the names of the youths are secret, why are the names of the Police officers, the expert witnesses and the details of the crime?
The same goes for the family courts, whose activities are also shrouded in undue secrecy. Despite the thousands of cases being heard and decided each year, no judgments of the family courts are published. Media cannot attend and report on the proceedings. Cases that may be of public interest or a cause of public concern cannot be reported on. There is no way of analysing and understanding what is going on in the family court.

There are disturbing stories that evidence in Family Court cases is unreliable. If you know that your friends, family and neighbours, people who really know you, will never hear of the evidence you give then what is to stop you from making any outrageous allegation to get custody?

In Britain, the secrecy of Family Court Cases has led to a number of scandals and terrible miscarriages of justice. This year the Chief Judge of Britain’s Family Court system has ruled that the press should have accesses to Family Court Cases, the names of officials should always be public and privacy be given only to the families and children.

Why should that not apply in New Zealand? You might say, there have been no gross injustices. How do you know? It is all secret.

Of course, the names of the families fighting out custody or property issues in the family court need not be known. But the other facts of the cases should be.
ACT wants the Youth Courts and the Family Courts opened to scrutiny. More specifically,

• All judgments of the youth and family courts should be routinely published
• Subject to reasonable reporting rules, the media should be able to attend and report on proceedings in the youth and family courts
• Access to formal court records in the youth and family courts should be subject to the same rules as the District Courts – a general right to access
• The names of judges, lawyers, government witnesses, expert witnesses and the like should always be public. We should always know the identity of those in power
• The names or identifying details of parties would remain suppressed.

The second important principle of the rule of law, now under threat in New Zealand, is the presumption of innocence.

What does this presumption amount to in the law?

For a start, it means that the authorities may not interfere with you going about your business unless they have some reason to believe you have broken the law: they must have “probable cause”, as it is known.

This principle is violated by the powers the New Zealand police have to stop drivers and test their levels of alcohol consumption even when their driving shows no sign of intoxication. Perhaps this is a justifiable violation of the principle – perhaps the gains in road safety are worth the small cost to law-abiding drivers. This is not the topic that concerns me today.

What I want to discuss today is another legal implication of the presumption of innocence – namely, that the burden of proof rests with the Crown, not with the accused. If you are accused of a crime, you do not need to prove that you are innocent – your innocence is the starting assumption. Rather, the Crown must prove that you are guilty.

This principle is now adhered to in the criminal courts. But it will not be if the Labour Party is elected either at this election or some future election.
In rape cases, the labour party wants to shift the burden of proof from the Crown to the accused. Specifically, once it is established that sex occurred, the accused will be deemed guilty of rape unless he can prove that the sex was consensual.

In many cases, this will be an impossible task, even when the sex was in fact consensual. How could a man who had a consensual one-night-stand in private possibly prove that the sex was consensual? What might he produce as evidence?
Andrew little, the Labour Party’s justice spokesman, argues that the presumption of innocence must be abandoned in rape cases because many do not result in a conviction. He is right, of course, that eliminating the presumption of innocence would increase the conviction rate. But that can hardly justify the policy.

The point of the presumption of innocence is to stop citizens being subject to the arbitrary will of other citizens and the authorities. If Labour’s policy were adopted, almost all sexual activity would expose those involved to malicious prosecution by the other party. The proposal is utterly outrageous, and ACT will fight it to the end.

Through a number of high profile court cases we know that, even with the presumption of innocence, a number of people subsequently proved innocent have been convicted. William Blackstone famously said that being taught about our justice system it was always said “it is better that ten guilty persons escape than that one innocent suffer”.

Make no mistake. Labour’s policy is that it is better ten innocent people be convicted than that one guilty person go free.
While Labour remains out of government, our criminal courts continue to adhere to the presumption of innocence. But in other interactions between the state and citizens it has already been abandoned.

In an effort to protect children, the Government has reversed the burden of proof in cases where Child, Youth and Family (CYF) applies to the court to remove a child from parents they believe to be a danger to that child. Instead of CYF having to prove the parents are a danger to their child, the parents now have to prove that they are not.

The aim of protecting children is admirable. But it should not and need not be achieved at the cost of age-old and well-founded principles of justice. CYF can know that parents are a danger to their child only if they have evidence of this fact. If they have such evidence, they can satisfy the burden of proof. If they do not have evidence and cannot make their case, they should not be able to remove children from their parents.

Shifting the burden of proof from state agencies to the people they accuse does not merely expose citizens to injustice. It reduces government agencies’ incentive to conduct their inquiries to a high standard. It is a licence for incompetence.

ACT is concerned that National seems to have little more respect for fundamental principles of justice than Labour does. ACT will hold any government it supports to a higher standard.

In a free society, you are permitted to do anything that is not expressly illegal. You do not need to seek permission from the authorities to do something that is lawful. This principle is a close relative of the presumption of innocence.

This principle is violated in the resource consenting process. Before you can modify your house or put your land to some new use, you must gain permission from your local council, even if what you seek to do is within the law.

Correcting this may be too difficult within the current “planning” regime imposed on councils by the Resource Management Act – that is the topic of a forthcoming speech.

But it is outrageous that people who seek to act within the law should not only have to obtain permission to do so but must also pay to receive that permission. It is like telling someone that, before they walk to the shops, they must call the council for permission and pay for the phone call and for the time of the council employee.

The idea behind the planning and consenting process is that our property rights must be constrained for the good of society. If the beneficiary of the process is “society”, then society should pay for it.

When a resource consent application is successful – that is, when the applicant sought to act within the law – the council should bear all the costs of the process, including the costs of the applicant. In other words, the cost should be borne by rate-payers, who are the supposed beneficiaries of the process.

Then there is the nightmare of getting involved in a dispute with the IRD.

With the IRD you are guilty until you prove your innocence. The IRD can and does make assessments which you cannot challenge until you pay the tax assessed. If you do not have the money, you never get a day in court.
The IRD bankrupts more people each year than all other bankruptcies put together.

Why do we have these Police State laws for tax? The obvious answer is that it helps the state to confiscate 40 percent of all the goods and services produced each year. If taxes were lower, the government might be able to do without Police State tax laws.

In the meantime, one measure that might help is allowing taxpayers to challenge tax assessments before having to pay them. Another is that when the taxpayer wins a case against the IRD, the Crown should pay all of the costs of fighting the ruling.

Paying tax is painful enough. No one should have to also incur costs convincing the IRD that the amount they have paid is in fact correct. There is no reason why taxpayers should bear the costs of errors or incompetence in the IRD. The IRD should bear the full cost – not only as a matter of justice but as a disincentive to sloppiness.

I think I have shown the rule of law is at risk in New Zealand.
This should be an issue in this year’s election.

The cost of freedom is eternal vigilance. In a democracy, we are free only so long as citizens are willing to vote for freedom.

The choice is clear this electio
n. All of the parties to one extent or another are promising you less freedom.
One party, ACT, is promising not only to uphold the rule of law but to extend it.

Dr Whyte said "Only ACT is promising New Zealanders more freedom."

ends

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