Law Society drops action against Catriona MacLennan

The Law Society advised today that they would be taking no further action against lawyer Catriona MacLennan, who criticised a judge for discharging a man guilty of violence, saying it was an understandable reaction.


Standards Committee issues decision on lawyer who said Judge wasn’t fit to sit on the bench

A Lawyers Standards Committee has decided to take no further action against a lawyer who said it was inappropriate for a District Court Judge to continue to serve on the bench.

Auckland Barrister, Catriona MacLennan’s statements were the subject of an investigation following her public criticism of Judge John Brandts-Giesen.

Judge Brandts-Giesen discharged a Queenstown man without conviction in a domestic violence case last year. The man had assaulted his wife, a male friend and his daughter.

The judge said, ‘This is a situation that does your wife no credit and does the [male] no credit’ and ‘there would be many people who would have done exactly what you did, even though it may be against the law to do so.’

A member of the public complained about Ms MacLennan’s criticism of the judge, prompting the committee to investigate.

Acting Executive Director of the New Zealand Law Society Mary Ollivier says the Standards Committee considered the explanation Ms MacLennan provided for her comments.

“It accepted that lawyers can express their views on the performance of judges but that those comments must be considered and not cross a line that could cause the public to lose confidence in the role of the judiciary and the role judges play in the administration of justice. The committee did not consider that Ms MacLennan’s comments had crossed that line. Her experience as an advocate for victims of domestic violence and the sentiment in which the comments were made were factors in the decision,” Mrs Ollivier says.

Mrs Ollivier says the high level of interest in this investigation by the public and the profession warranted the rare move of releasing the full decision by the Standards Committee.


Newsroom covers McLennan’s response in Law Society ends inquiry over judge criticism

MacLennan wrote about the complaint for Newsroom in a powerful defence of her right to speak out.

“I am pleased the investigation has been ended. It should never have been started.

“I will be writing to Justice Minister Andrew Little to put my concerns before him and ask him to take action. The fact that a Law Society body would fail to follow natural justice and other basic principles of our legal system is deeply concerning.

“I am also alarmed that the Law Society appears to place so little importance on freedom of speech, which is guaranteed to every New Zealander under section 14 of the New Zealand Bill of Rights Act 1990.

“The case highlights the vital role of the media. I could not have fought the investigation without making it public and having the media scrutinising what was happening.

“My view is that the role of lawyers is to stand up for the vulnerable and disadvantaged and to speak out about injustice. My opinion is that the Law Society itself should have spoken publicly to criticise Judge Brandts-Giesen’s remarks and his decision to grant a discharge without conviction.

“Upholding the rule of law and the dignity of the judiciary does not mean unquestioningly supporting the judiciary even when they err.”

Newsroom also has comments from former Supreme Court judge Sir Edmund (Ted) Thomas…

…the decision completely vindicates MacLennan “but it is otherwise a treatise in self-justification”.

“The committee seeks to justify a decision that should never have been made in the first place. The committee advances seven reasons for taking no further action. All those reasons would have been known to, or easily ascertained by, the committee at the time it launched its own complaint.”

Justice Thomas said the committee did not express regret “let alone proffer an apology” for the decision. “Yet it must know that an ‘own-complaint’ can have a devastating impact on the recipient.”

He said the MacLennan comments had been temperate, measured and responsible and the committee had been unduly precious.

“With respect, the committee needs training in the meaning of free speech.”

He planned to write to the Law Society president and council urging a review of the membership and procedures of its standards committee and whether it accorded with natural justice.

“Domestic violence is a serious problem in New Zealand. Ms MacLennan served the public interest in taking the Judge to task. It is the committee that is out of step. This is confirmed by the massive support Ms MacLennan has received from the profession.”

Andrew Geddis (@acgeddis):

Having now seen the Law Society’s National Standards Committee’s (NSC’s) report in full, here’s what I think happened.

Catriona made her remarks about the judge, which (most) everyone now says are OK (including the NSC). But some member of the public didn’t like them – so they complained to the Law Society, alleging the remarks called the justice system and the court into disrepute.

The NSC asked Catriona for a response, so she told it that the complainant did not have the legislatively required personal connection to what she said. The NSC agreed with this, so dismissed the member of the public’s complaint as they had no standing to bring it.

BUT, the NSC then decided to hold an inquiry into Catriona’s remarks on its “own motion” (i.e. off its own bat). Why? If we’re charitable, it wanted to avoid a lawyer escaping a breach of standards finding on what could be described as a technicality.

BUT, should we be charitable? The NSC can only commence an “own motion” investigation regarding “any act, omission, allegation, practice, or other matter that appears to indicate that there may have been misconduct or unsatisfactory conduct on the part of a practitioner.”

Could Catriona’s criticism of the judge in question, even given that it involved saying the judge was not fit to continue sitting, be thought to reach that level of seriousness?

Of course, the NSC stands by its decision, saying that it has a job to help protect the dignity of the judiciary from being undermined by lawyers because judges cannot protect itself (I guess contempt of court isn’t a thing any more?)

It also takes a snide swipe at Catriona, suggesting: “Had [she] provided the NSC with the contents of her written submissions dated 11 April 2018 in response to the NSC’s letter of 7 March 2018, it is likely that the NSC would not have set this matter down for a hearing.”

But given that Catriona’s submissions didn’t really say anything more than “the judge’s comments were manifestly terrible given NZ’s record of domestic violence and so he shouldn’t be a judge”, it’s not clear to me what they told the NSC that it didn’t already know.

SO … overall conclusion? The NSC overreached here, taking on an issue that it really ought to have left alone. Having done so, it’s now scrabbling to justify its initial decision to investigate given that everyone says there’s no way it ever could have punished Catriona.

 

 

 

The heart of Catriona MacLennan criticism – “freedom of speech itself”

At the heart of all three Judgments was what Lord Denning said was “freedom of speech itself” by

This is also at the heart of criticism of a judge by  lawyer Catriona MacLennan, and an inquiry into that by the National Standards Committee of the New Zealand Law Society into her criticism.

James Farmer Q.C. from Auckland does an occasional ‘legal commentary’. He has written on lawyers criticising judges, on MacLennan’s criticism of a judge who discharged a man who had assaulted his wife, daughter and (probably ex) friend and excused his violent reaction after finding out about an extra-marital relationship, and on the inquiry.

There is some useful context given here – Q+A: Lawyer Catriona MacLennan interviewed

In that MacLennan makes a number of good points. In particular:

‘I’ve been saying for a long time that I think judges need a lot more training in domestic violence, and this Court of Appeal decision last year certainly confirmed what I and other domestic violence advocates have been saying, that Domestic Violence Act is excellent law; it’s not being interpreted and applied properly by judges.’

However she made one contentious claim:

The other thing that we need is for male lawyers to speak out. There’s been, pretty much, a deafening silence from them. Sexual assault and sexual harassment are not women’s issues. It’s men that are the perpetrators, and we need male lawyers to step up and engage with this, and they need to make it culturally unacceptable to behave like that.

Males are the worse perpetrators, but not the only ones at fault in domestic violence, especially when verbal violence and abuse is taken into account. And while there may not have been many male lawyers speaking out Farmer Q.C. and others have.

First in CRITICISING JUDGES James farmer Q.C. summarises MacLennan:

Catriona MacLennan is an Auckand barrister and journalist who has distinguished herself for many years now by her perceptive articles in both legal and news media publications.  She has made a name for herself for her authoritative writings on family violence and related issues and is the spokesperson for the Auckland Coalition for the Safety of Women and Children.  She presumably knows quite a lot about the evils of domestic violence.  We need more lawyers like her willing to use the media to draw attention to deficiencies in the legal system and to expose injustice wherever it occurs.

Next he summarises the case and the initial criticism.

Recently, she wrote vigorously in her condemnation of a District Court Judge who discharged a man without conviction who had been charged with assaulting his wife and daughter quite viciously and also a friend who had exchanged texts with his wife declaring their love for each other.  Of course, one would not have expected the defendant to have learned that last fact with equanimity.  But the Judge went somewhat further and, in discharging him, said this:

Really, this is a situation that does your wife no credit and does [the friend] no credit.  There would be many people who would have done exactly what you did, even though it may be against the law to do so.  I consider that the consequences of a conviction are out of all proportion to what happened on this occasion.

Ms MacLennan’s commented vigorously on this to the NZ Herald, using strong language (“abhorrent”), said that the Judge displayed “a complete lack of understanding of domestic violence” and that such judicial attitudes and the lack of penalty “are part of the reason why women do not come forward to report domestic violence”.  She also said:

It is inappropriate for [the Judge] to continue sitting on the bench.

That certainly didn’t sound like an unreasonable opinion.  Making gratuitous comments that could be interpreted by many as condonation or even approval of domestic violence if the offender was aggrieved does not seem to possess a judicial character.  Nor does a discharge without conviction – reversed as it turned out on appeal by the Police – in those circumstances appear as a prime illustration of upholding the law.

Others might argue that the impropriety of the Judge’s comments did not warrant his resignation but certainly a good telling off and compulsory re-education on the evils of domestic violence.

So far so good.

But “Now we venture into fantasy land, a land where freedom of speech and observance of judicial process apparently do not exist.”

Following the publication of Ms MacLennan’s comments, the National Standards Committee of the New Zealand Law Society, which Society exercises statutory disciplinary powers (including the power to censure, the power to fine and the power to strike off), initiated of its own motion an investigation into her conduct in making those comments.  It has asked her to address a number of questions upon which they would rule on the papers i.e. without a hearing and, presumably without a right to have counsel address the Committee on her behalf or without the right for her to state in person her position.  Truly.

Poor legal process.

Those questions included:

(1) whether she undermined the dignity of the Judiciary?

(2) whether she failed to comply with a lawyer’s fundamental obligation to uphold the rule of law and facilitate the administration of justice in New Zealand?

In case, you think you may have misread this, these questions were addressed to Ms MacLennan, not to the District Court Judge.

He points out another male lawyer who has condemned the Law Society:

This turn of events has attracted strong condemnation of the National Standards Committee.  First, there was a gutsy letter written to the President of the New Zealand Law Society by a young Auckland barrister, Benedict Tompkins, who is himself the son of a District Court Judge and the grandson of a former High Court Judge and who is currently practising at the English Bar.

He deplored the actions of the Committee, called for the removal of its members by the New Zealand Law Society and then expressly adopted as his own Ms MacLennan’s views. He also referred to a recent instance in England where senior members of the Bar (including Lord Pannick QC) had publicly called for the resignation of a High Court Judge, without facing the wrath of the equivalent of our National Standards Committee.

Mr Tompkins also advised that his letter and, within it, his alignment with Ms MacLennan’s opinion, was being distributed by him to the media, to the legal profession and on social media.  That might be called throwing down the gauntlet.

It would have been good if MacLennan had acknowledged this support. However there has been more open support from female lawyers.

That has been followed by a letter from the Auckland Women Lawyers’ Association to the President of the New Zealand Law Society along the same lines.  Its letter affirmed Ms MacLennan’s qualifications to make the comments that she did.  It went on to condemn the fact that the Committee had determined that its hearing would be on the papers and characterised this as raising “serious questions in relation to due process and natural justice”.   Indeed.

I was myself more than troubled by all this.

Farmer Q.C. then gets very lawyery, quoting from a London case in that got to the Court of Appeal, which was strongly criticised by prominent Member of Parliament and Queen’s Counsel, the Rt. Hon. Quintin Hogg, who wrote a very forceful article in Punch.

The original plaintiff then moved the Court of Appeal for an order that Mr Hogg was guilty of contempt of court.

They dismissed the application…

At the heart of all three Judgments was what Lord Denning said was “freedom of speech itself”:

It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest.   Those who comment can deal faithfully with all that is done in a court of justice.  They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not….

So it comes to this: Mr Quintin Hogg has criticised the court, but in so doing he is exercising his undoubted right.  The article contains an error, no doubt, but errors do not make it a contempt of court.  We must uphold his right to the uttermost.

Salmon LJ began his Judgment thus:

The authority and reputation of our courts are not so frail that their judgments are not to be shielded from criticism, even from the criticism of Mr Quintin Hogg….

It is the inalienable right of everyone to comment fairly upon any matter of public importance.  This right is one of the pillars of individual liberty – freedom of speech, which our courts have always unfailing upheld.

And Edmund Davies LJ:

The right to fair criticism is part of the birthright of all subjects of Her Majesty.  Though it has its boundaries, that right covers a wide expanse, and its curtailment must be jealously guarded against.  It applies to the judgments of the courts as to all other topics of public importance.

All three Judges expressed the view that criticism of the Courts’ Judgments should be accurate and fair because Judges normally do not have the ability to respond publicly.

But I think the implication here is that MacLennan’s criticism was accurate and fair enough.

It is to be earnestly hoped that the New Zealand Law Society will quickly rein in its National Standards Committee.

7 May 2018

James Farmer QC

Where the National Standards Committee inquiry into MacLennan’s criticism will be watched with interest by the legal profession, and by those with an interest in how justice is done in domestic violence cases.

The heart of this action by the Committee may be free speech itself, but dealing with a society that remains rife with violence is also a big deal.

Men are the main perpetrators (that shouldn’t diminish the problems with female instigated violence), and male judges have in part allowed a culture of violence to persist. The District Court Judge was symbolic of this, and deserved strong and fair criticism from MacLennan and the many others who spoke up condemning the outcome of the case.

It was good to see the Police also in effect criticise the judge in the means available to them, by appealing. They succeeded in overturning a poor judicial decision and unfortunate and unwise comments by the judge.

Q&A – Catriona MacLennan facing Law Society inquiry

This should be interesting, but with a Law Society inquiry into Catriona MacLennan’s criticism of a judge’s decision (that was subsequently overturned on appeal) it may limit what she can say about that.

Some background from Newsroom – Lawyer: I will not be silenced

Under inquiry by the Law Society for criticising a male judge’s comments on a domestic violence case, Catriona MacLennan wonders when the targeting of women in the law will ever stop.

Last December, The New Zealand Herald asked me to comment on a Queenstown case in which a judge had granted a discharge without conviction to a man who had assaulted his wife, a male friend and his daughter.

The judge said that “Really, this is a situation that does your wife no credit and does the [male] no credit” and “There would be many people who would have done exactly what you did, even though it may be against the law to do so.”

The judge’s comments and sentence in my experience are almost unprecedented.

The nearest analogy I can think of is the public criticism following the exculpatory remarks made by the sentencing judge in the case of David Minnitt, who killed his wife Leigh in 1980 and said afterwards he had been provoked by her criticism of his sexual prowess.

I told the Herald that I thought the Queenstown judge’s comments and sentence displayed a complete lack of understanding of domestic violence, victim blamed, and minimised assaults on three people.

I said that it was inappropriate that a discharge without conviction had been granted, and the result in the case was out of line with other decisions.

I also said that it was the role of the judiciary to uphold the law and foster respect for the law. Stating that “many people would have done exactly what you did” condones and excuses domestic violence. I do not consider it appropriate for a judge publicly to condone breaking the law.

I said I did not believe that the judge should continue sitting on the Bench.

This is the first time I have said that in 21 years of commentary on domestic violence.

The Police subsequently reviewed the judge’s decision and referred the matter to the Crown to consider an appeal against the discharge without conviction.
That appeal was granted by the High Court in March 2018.

The Chief District Court Judge, the Police, the Crown and the High Court accordingly all agreed that the Queenstown judge’s comments and/or sentence were inappropriate.

On March 7, I received a letter from the National Standards Committee of the Law Society, advising me that the committee had commenced an investigation against me in relation to the comments I made to the Herald.

Whether I failed to comply with a lawyer’s fundamental obligation to uphold the rule of law and facilitate the administration of justice in New Zealand?

The National Standards Committee asked me to provide a response to its questions. The committee has decided to deal with the matter on the papers, rather than holding a hearing. It can decide to make a finding of unsatisfactory conduct and impose a penalty; or escalate the matter to the Lawyers and Conveyancers Disciplinary Tribunal by laying a charge against me.

The penalties the committee can impose include censuring me; ordering me to apologise; fining me up to $15,000; and ordering me to pay the costs of the committee’s investigation.

My comments to the Herald were based on my 21 years’ experience relating to domestic violence: both as a lawyer in the Family and Criminal Courts, and as a researcher and anti-domestic violence advocate.

I made my remarks based on this experience and I still believe my comments.

Domestic violence victims, in particular, are almost never in a position to speak out about their experiences. As has been widely reported, Aotearoa has the highest reported rate of intimate partner violence in the developed world.

Neither the law society nor anyone else will ever silence me about domestic violence – or about any of my other causes.

If I have to choose between being a lawyer and freedom of speech, I will not hesitate to choose my freedom of speech.

She has chosen to make a stand. Time will tell how the Law Society deals with this, but in the meantime her interview should be interesting.

Law Society “to fix sexual harassment and misconduct in the profession”

The Law Society acknowledges there are problems within the profession regarding sexual harassment and misconduct.

RNZ – ‘We know that there is an issue with the system’

Justice Minister Andrew Little has said he would consider a ministerial inquiry if the Society’s work to fix sexual harassment and misconduct in the profession was not up to scratch.

Mr Little said yesterday he had heard reports that the society had ignored serious allegations of this nature in the past.

He said he had no problem intervening if the Society wasn’t up to the job.

“The option I would have would really be a ministerial inquiry, something of that sort of nature, to represent a public interest in ensuring that the Law Society does its job of making sure that the profession is one that has standards, including standards of conduct towards its own employees, that’s what’s in question at the moment.”

The Law Society is trying to address the issue. They have set up a ‘working group’.

The move comes after law firm Russell McVeagh was put in the spotlight over allegations of sexual misconduct, sexual harassment and an alleged incident of sexual assault.

President Kathryn Beck said she understood why the minister was concerned but the organisation – which regulates lawyers – was ready to make a change.

“We know that there is an issue with the system if we’re not hearing about these things, either because people don’t know that that’s where they should go or they are not comfortable going there, either way we need to fix that.”

The Law Society on their working group:

Law Society announces working group to focus on sexual harassment reporting

The New Zealand Law Society is establishing a working group to consider what improvements can be made to enable better reporting of harassment in the legal profession to the Law Society.

“There is no place for a culture of sexual harassment in our profession. It must stop. The Law Society is determined to do all it can to tackle a complex issue in an innovative and practical manner,” Law Society President Kathryn Beck says.

“As regulator of the practice of law the Law Society fully appreciates that it must always assess whether the regulatory framework in place is flexible enough to meet current needs.”

“It is essential that all lawyers are able to practise in a workplace environment in which they are free from any harassment. The working group will look at whether the Lawyers and Conveyancers Act 2006 and its associated rules and regulations allow us to take effective action.”

Ms Beck says the members of the working group, their terms of reference and the timeframe will be announced shortly.

“This is one of a number of actions the Law Society is taking to address a matter which impacts on all lawyers and their clients. The public discussion has been sobering but it has also highlighted matters that we need to resolve so we can be more proactive without re-victimising victims.

“Alongside our processes, we have looked at the practical actions which are needed to openly and fully address the issue of sexual harassment in the legal profession. This includes providing support for people who are affected by it.

“Over 2017 the Law Society’s Women’s Advisory Panel looked at harassment as well as other matters blocking the advancement of women in the profession. It decided that the issue of harassment required its own project and focus, to be further progressed after launch of the Gender Equality Charter in April. This work has been brought forward. Clearly action is needed now.

“What are we aiming for? We must focus on the culture and underlying assumptions which exist in some law firms and legal workplaces. As with the Gender Equality Charter, the change has to come from inside, driven and assisted from outside.”

Ms Beck says the Law Society’s plan of action includes:

  • Development of an online portal and dedicated helpline which enables reporting of concerns related to workplace harassment. The objective is to make it easier for people to raise and discuss sensitive matters arising in their workplace.
  • A free webinar on harassment which will be available to all lawyers. This will be a similar format to the very successful unconscious bias webinar delivered last year.
  • Completion of a review of the National Friends Panel and identifying or recruiting members who are particularly well placed to provide support and advice on sensitive matters.
  • The Law Society will organise and facilitate meetings of key interest groups such as those for women lawyers and young lawyers to look at the issues, what needs to be done and to develop appropriate resources.
  • A national survey of all lawyers which looks at the current workplace environment for legal practice is being scoped. As well as seeking information on harassment, this will also include questions on stress and wellbeing.
  • Development of more local branch and national events which address how to deal with difficult people, bullying and harassment.
  • Provision of more information and practical guidance through Law Society publications, beginning with the April issue of LawTalk.
  • Inclusion of information which addresses harassment and bullying in Law Society publications for young lawyers.
  • Development and maintenance of centralised information resources and support available from organisations both within and outside the legal profession. This will draw upon the Practising Well initiative.

It looks like a lot of work involved there, to review all those issues, and to implement the suggested measures.

Criticism of defence lawyers unacceptable

There’s been some fair questions asked of Golriz Ghahraman over what was involved in her international work as a lawyer, and how that was described by her and by the Green Party.

And there has been a lot of over the top and at times ridiculous claims and accusations.

The Law Society has come out in defence of defence lawyers – criticism of what Ghahraman

 


Implied criticism of defence lawyers unacceptable

Implied criticism of defence lawyers unacceptable

The right to a lawyer is a fundamental part of our justice system and any criticism of lawyers for defending people charged with heinous crimes is not acceptable, the New Zealand Law Society says.

“The current comments on Green MP Golriz Ghahraman appear to be over her alleged failure to state that she had both defended and prosecuted people charged with war crimes,” Law Society President Kathryn Beck says.

“Some coverage has, however, also seemed to imply that there is something wrong in a lawyer acting for a person who is being tried for serious crimes.

“It is natural that people might be angry and distressed by such cases and the perpetrators, but it is totally wrong to identify the lawyer with the client’s actions.”

Defence lawyer and convenor of the Law Society’s Criminal Law Committee, Steve Bonnar QC, says there is often misunderstanding of the role of a lawyer.

“Our law requires lawyers to uphold the rule of law and to facilitate the administration of justice in New Zealand. The general rule is that lawyers must be available to act for the public and must not, without good cause, refuse to accept instructions from any client or prospective client for services within that lawyer’s fields of practice.

“Therefore, often a lawyer does not have a choice as to what cases to accept. The personal attributes of the prospective client and the merits of the matter upon which the lawyer is consulted are not considered good cause for refusing to accept instructions.”

Mr Bonnar says the rules of Conduct and Client Care which bind all lawyers say that as far as possible, the defence lawyer must protect the client from being convicted.

“The defence lawyer is required to put the prosecution to proof in obtaining a conviction, regardless of any personal belief or opinion of the lawyer as to the client’s guilt or innocence. It is not the role of the lawyer to determine a client’s guilt or innocence – that is the role of the Tribunal, Judge or jury hearing the case,” he says.

“New Zealand is fortunate to have a strong and dedicated community of lawyers who are available to defend anyone, no matter what they are accused of. It would be of great concern if the essential job they do came under attack.”

Finlayson versus the Law Society

The Law Society has campaigned strongly against the GCSB Bill. Yesterday the Society released a statement saying GCSB Bill remains flawed despite proposed changes.

Proposed changes to the GCSB Bill represent minor improvements but do not address the fundamental flaws in the bill and the legislation should not proceed, the New Zealand Law Society says.

Austin Forbes QC, convenor of the New Zealand Law Society’s Rule of Law Committee, says the Law Society has looked at the amendments proposed by the majority of the Intelligence and Security Committee, and has a number of concerns about the wording and scope of the changes.

The concerns the Law Society expressed in its submission on the bill have not been significantly mitigated by the proposed changes.

But some of the most significant changes have been proposed by Peter Dunne and the Prime Minister.

Further changes by way of a proposed Supplementary Order Paper have been announced by the Prime Minister and the Hon Peter Dunne, but that SOP has only just been made publicly available.

“The proposed use of the SOP procedure to make still further changes, but without making the detail of those changes available to the public, reflects the unnecessary urgency which has accompanied the GCSB Bill itself.

The Law Society is also concerned about the use of the SOP procedure to introduce significant amendments to bills after completion of the select committee process.

There’s a valid complaint about the SOP amendments not being made public in time to examine then thoroughly, they were only posted online about midday yesterday, and the bill was due for it’s committee debate later in the afternoon (delays put the start time back to 7.30 pm).

But headlining GCSB Bill remains flawed despite proposed changes without giving consideration to all the proposed changes implies their mind is made up regardless of the amendments.

And it should be noted that Peter Dunne’s amendments were publicly notified two weeks ago, the SOP was the legal version of something that was already known. It would have been better for the SOP to have been available sooner, but what Dunne was proposing was well signalled.

In a speech during the debate last night Attorney General Chris Finlayson criticised how the Law Society had handled their input.

I am sorry but the New Zealand Law Society is wrong—the Law Society is wrong.

What is more, more than a few members of the profession—more than a few members—have expressed their concerns to me about the way their submissions were given, by someone who then went to the Mount Albert Memorial Hall and was making all sorts of extravagant comments—someone who used to act for Mr Zaoui—and at the same time was purporting to represent the Law Society.

The thing about the Law Society, to quote a former United States judge, is that it is the bar that makes the statutes, and it is a very important function the Law Society fulfils, to come down to this place to give Governments of all persuasion a good swift kick from time to time, but do so in an impartial and professional way.

Regrettably, the standards were not applied in the case of the submissions on this legislation. There will be more about that later.

If ‘later’ means during further debate speeches we may have to wait until next week to hear more on this.

We may also hear more from the Law Society.

Finlayson practised law before becoming a list MP. From his party biography:

Chris was born in Wellington in 1956 and attended Victoria University, graduating with a Bachelor of Arts in French and Latin and a Masters of Law. He practised law in Wellington for 25 years, where he was a partner at Bell Gully from 1990 – 2002 and thereafter a barrister sole.

 

National should address remaining GCSB flaws

Internet NZ have responded to the changes to the GCSB Amendment Bill that were announced by John Key and Peter Dunne.

Spy bill changes an improvement, but further change needed

InternetNZ (Internet New Zealand Inc) has considered the outcomes of discussions between Hon Peter Dunne and the Government in respect of the GCSB legislation currently being considered by the Intelligence and Security Committee.

InternetNZ supports the changes as far as they go, but believes they do not go far enough to assuage the concerns identified in a wide range of submissions on the Bill.

The GCSB Bill would expand the powers of the government in intercepting the private communications of Internet users in order to protect New Zealand’s national security, international relations, and economic well-being.

InternetNZ awaits the report and the SOP, and will scrutinise the amendments as swiftly as possible once they are available. Further comment will be made at that time.

And Rodney Harrison QC, who  led the Law Society’s submission on the bill, made comments yesterday in a personal capacity:

GCSB changes ‘do not address flaws’ – QC

Changes to the GCSB bill negotiated by United Future leader Peter Dunne do no address the main flaws of the bill, says Rodney Harrison, QC, who says it is still “rushed, ill-conceived and downright dangerous legislation.”

“The bill unnecessarily broadens the functions and powers of the GCSB,” he said. “The need to do so has not been demonstrated.”

He also said the promise of a review of the GCSB and SIS in 2015 “merely holds out false hope.”

“History demonstrates that intrusive powers once conferred on security agencies are never curtailed, only ever increased when the opportunity arises.”

Dr Harrison said the changes to the bill essentially related to what Mr Dunne termed as “increased oversight, and a future “independent review of the operations and performance of the GCSB and NZSIS and their governing legislation”.

“However, none of these measures addresses the substantive flaws in the GCSB Bill, which have been repeatedly pointed out to the Government during the select committee process. “

“Increased oversight after the event, whether real or ultimately illusory, cannot prevent excessive surveillance and gross abuses of individual privacy, if that is what the empowering legislation itself permits.

“Equally, periodic future review of the legislation is no comfort, if flawed legislation is to be permitted to operate in the meantime.”

The Law Society itself will wait until the bill is reported back later in the week before commenting on the changes.

But this indicates that National need to do more to address concerns about leaving the potential in the bill for easy widening of the spying powers, even if they are not currently intended.

John Key has given assurances in interviews that the GCSB won’t engage in mas collection of data as the Herald reports:

Mr Key said today that he did not believe that the GCSB had engaged in the mass collection of metadata and he confirmed that it should be treated the same as communication and any collection of it would require a warrant.

He planned to make a clear statement about it in the bill’s second reading.

But unless this is defined clearly in the legislation it invites vigorous opposition to the bill as it progresses.

And worse, it may make it easy for future governments to excessively expand the scopy of GCSB spying on New Zealanders.

Key says the bill will probably return to Parliament next week, but to allay growing fears he should detail what he will do before the second reading.

Kim Dotcom to confront John Key tomorrow

The Intelligence Security Committee will start hearing submissions on the GCSB Amendment Bill today. The first submission will be from the Law Society, whose written submission was critical of the proposed law – Law Society “stinging attack” on GCSB bill.

Tomorrow Kim Dotcom is scheduled to make his submission – summary and link for his written submission here Dotcom/van der Kolk GCSB Amendment submission.

John Key has advised that he will be chairing the committee, and John Banks will also be sitting on the committee, which has raised interest in the confrontation.

@MutchJessica

I asked how John Key felt about chairing a committee when @KimDotcom submits and he said he is “more than happy to do so”.

And Dotcom is promising a confrontation. He has been talking it up on Twitter over the last week. Here are his tweets from yesterday.

@KimDotcom 

Dear Kiwis, #FightForPrivacy & STOP the GCSB / TICS spying laws! Say NO to US spy tech in New Zealand.

Important Questions to John Key about spying in New Zealand. Stop the #GCSB bill. Stop the N(Z)SA.
http://www.nbr.co.nz/article/open-letter-john-key-right-know-ck-142221

Kim Dotcom Case threatens New Zealand Government.
http://dnews.co.nz/node/2

I’m in Parliament July 3 telling the Security & Intelligence committee why the new GCSB bill is wrong. I bet Key & Banks won’t show 🙂

If you want to witness John Key and the #GCSB getting exposed join me in Parliament this Wednesday. It’s a public hearing!!!

Prime Minister John Key confirmed he is chairing the committee to which I’m presenting my opposition to the new GCSB bill on July 3. It’s ON

John Key vs Encryption Key
This Wednesday, July 3
A public hearing in Parliament
Please come. You’ll love it

So Dotcom is talking up expectations of what he can achieve. Will it just be more of the same (strong opposition to the bill) – or has he been keeping something up his sleeve?

Dotcom knows how to drive up media interest, and they have already been giving a lot of coverage to the buildup.

There will be interesting tensions with Dotcom facing Key and Banks and with maximum media.

We will have ample opportunity to see what Dotcom delivers tomorrow.

 

 

Law Society “stinging attack” on GCSB bill

A “stinging attack” from the Law Society on the proposed spying changes proposed in the GCSB Amendment Bill, reports Audrey Young reports at NZ Herald in Law Society slams spy agency bill.

The Law Society has made a stinging attack on proposed law changes governing the GCSB spy agency, saying they effectively transform it from a foreign intelligence agency to a domestic one without any justification being given.

The Law Society submission, written by Rodney Harrison, QC, says: “It is difficult to identify the pressing and substantial concerns that the bill purports to remedy or address.”

The society recognised the critical role intelligence gathering played in ensuring the security of New Zealand but “extensive and pervasive amendments to the state’s power of surveillance should not be passed by Parliament lightly nor without the fullest extent of debate possible. The Law Society does not consider that sufficient justification has been provided for the proposed reforms”.

That repeats common complaints about the bill. Too rushed, insufficient justification.

The bill allows for greater spying by the agency on New Zealanders in its beefed-up role in cyber security of both government and private sectors.

It lets the GCSB spy on Kiwis when it is helping agencies such as the Security Intelligence Service (SIS) and the police to perform authorised surveillance activities.

But it also gives the GCSB legal authority to do anything the entity it is helping is legally authorised to do.

And this was raised by Peter Dunne in an inteview on The Nation where he voiced concerns about blurred lines between the SIS and the CGCSB – “I think there needs to be a much clearer delineation and a much clearer statement between where one’s role ends and the other begins”.

Dr Harrison says that could give a protected legal status to some activities that might not otherwise receive it. “This outcome is unacceptable and inconsistent with the rule of law.”

He says the bill effectively transforms the GCSB from a foreign intelligence-gathering agency into an additional domestic spy agency.

“It seems that the underlying objective of the legislation is to give the GCSB powers it lacked previously: the power to conduct surveillance on New Zealand citizens and residents. No explanation or justification for the conferral of this power is given.”

There is not enough information on or justification for the bill, and not enough time to debate it properly.