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Democracy under attack

Written By: - Date published: 7:20 am, June 17th, 2013 - 37 comments
Categories: democracy under attack, Media, national, newspapers - Tags: ,

This National government has an unprecedented contempt for democracy. The media keeps noticing pieces of the picture, but never seems to put them all together. Here’s a sample:

Bulldozed rush of legislation makes mockery of democracy
Deny power to Super City’s faceless panels
Black day for democracy in Christchurch
SkyCity deal ‘selling’ exemption from law
Secrecy in investment talks mocks democracy
Tea tape: TVNZ, RNZ to be searched
Naked self-interest rules
Bill undemocratic, council CEO warns
PM sign off to enable domestic spying
US spy device ‘tested on NZ public’

This piece from the Herald on Sunday however, starts to connect at least some of the dots – bravo Susan Edmunds. Below are several extracts from her long and detailed article:

Govt slams door on Kiwi rights to appeal

The Government has declared war on judges, and regular Kiwis are caught in the crossfire. Family caregivers, Christchurch homeowners, Auckland neighbourhoods under the shadow of high-rise apartment blocks have all lost the chance to argue against decisions they feel are unfair. Susan Edmunds reports.

Most of us assume the right to judicial review is a basic tenet of democracy. The Bill of Rights Act enshrines it in law when it says every person has the right to bring civil proceedings against the Crown – and to have those proceedings heard according to law.

And we exercise that right: the Criminal Bar Association took on the Government and won over its legal aid policy. Salisbury School in Richmond successfully challenged a decision to close it. Being able to challenge a government is one of the things that sets democracies apart from dictatorships.

But it’s an “ouster clause” that Walker [a family caregiver] has to blame for that route being blocked to her and other carers – and experts say they are becoming more common as legislators try to wrest back control from courts that have become a little too fond of picking apart their decisions.

There are many cases where the rights to appeal have been removed, especially when it comes to building and development.

The Resource Management Reform Bill, designed to speed up subdivision and regional infrastructure projects and to grease the progress of the Auckland Unitary Plan, was reported back from select committee on Tuesday and is expected to be passed before the end of this year.

A second stage of reforms is still coming – submissions closed in April – on a discussion document aiming to “limit the scope of participation in consent submissions and in appeals”. … Environment lawyer Philip Milne says there has been a slow move from a regime where there had always been a right to appeal to the Environment Court, to less opportunity for review. …

The John Key Government’s enthusiasm to emasculate the courts started, arguably, on the wide flood plains of Canterbury about three years ago.

Dairy farmers needed better irrigation, Key said, and the best way to get it to them was through a water-storage scheme. He wanted an irrigation-led boom for farmers and there seemed to be evidence the region’s elected councillors were not up to the job of overseeing it.

A review recommended Environment Canterbury (ECan) be handed to Government-appointed commissioners – the 14 elected councillors were out and the seven commissioners, referred to as “Dad’s army” by the departing deputy chairwoman, were in.

Laws were passed to turn on its head legislation that required ECan to consider protection of a waterway ahead of its economic potential, and it removed rights of appeal to the Environment Court and effectively allowed the Minister for the Environment to decide where and when New Zealand environmental law should be applied in Canterbury.

The commissioners were meant to be temporary – ECan elections were to be held this year. But earthquakes got in the way and they now won’t be held until 2016. That is despite the commissioners themselves saying the quakes should not be used as an excuse to suspend democracy for a further three years.

Since then, the implementation of the 90-day employment trial has allowed new workers to be laid off without appeal, unless they can prove discrimination has occurred.

The SkyCity convention centre agreement imposes hefty financial penalties on any future government that might dare review the approval of extra pokie machines to the casino, and the Immigration Act still allows anyone convicted of holding a visa under a false identity to be deported without appeal or review.

The new Housing Accords and Special Housing Areas Bill removes rights of appeal on developments of up to three storeys anywhere in the country where accords are signed.

And after the Christchurch earthquake, the Recovery Act offered no right to appeal decisions made by Earthquake Recovery Minister Gerry Brownlee and the Canterbury Earthquake Recovery Authority, except in very limited circumstances. …

Constitutional lawyer Stephen Franks, a former Act MP, says ouster clauses are becoming more common as a response to judges’ increased willingness to second-guess political decisions.

“I’m surprised it’s taken this long for legislature and Government to strike back at the courts. Courts have been claiming more and more rights to reverse decisions.” …

Professor Andrew Geddis, of the University of Otago, agrees: “If there’s one thing governments hate, it’s being told they have to spend money in certain ways. In order to stop courts doing that in future, they’ve just told them to butt out. The law might still require them to do something but if the courts can’t get involved, there’s nothing that will force them,”Geddis says.

It seems that powerful governments are steamrolling those who cannot afford to fight back: “Governments are big and strong. Poor little caregivers at home looking after relatives – what can they do? There are lots of people who take on government in court and win: people like the fishing industry who can hire lawyers, there’s no way government would do this to them.

“The precedent is that this has been done to people like these caregivers because the Government can get away with it.”

So what do you reckon, Granny Herald. I know it’s not as much fun putting the boot into your own team, but in the interests of journalistic integrity and balance, don’t you think it’s that time again?

37 comments on “Democracy under attack”

  1. Paul 1

    They had an article on RNZ this morning mentioning the government might be closing down the environmental court. Further undemocratic action from our corporate closet fascist government.

    • Agreed and concerning if this is to happen. Collins gave a typically disingenuous response in saying that the proposal was not under active consideration. This just means that the report has not been finalised asset.

      The Government’s attitude to the Courts was summed up by a statement made by Chris Finlayson a week ago about a Privileges Committee report into a Supreme Court decision on Parliamentary Privilege which the Government disagrees with.

      The report said:

      “It is unfortunate that the Parliament now finds itself in the position of needing to clarify for the courts the nature of Parliament’s privilege.”

      “We consider that the Parliament has been put in a position where its relationship of trust and confidence with the courts has become strained because comity [respecting each other’s roles] has not been recognised.”

      It is clear that the Government has an attitude that with regards to legal matters its view is right and the Court’s view is wrong and the Court disagreeing with the Government is somehow disrespectful.

      The report recommended that absolute privilege be given to officials who are preparing advice for ministers who are under an obligation to answer questions in Parliament, that is they or their departments cannot be sued if they get it wrong, even if their advice was wrong and motivated by malice.

      The report is at http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10889965

      • tracey 1.1.1

        Not under active consideration means farrar’s polling results arent in yet.

        • nzlemming 1.1.1.1

          You actually think Farrar runs real polls on this stuff, rather than just make up numbers that suit the Nationalistas?

    • fambo 1.2

      Yes, basically they appear to want to remove decision making from the Environment Court to councils, with changes to the Local Government Act giving the government more opportunity to intervene where it wants.
      The amended Act will set a very low threshold for ministerial interference – anywhere there is a “significant problem.”
      In other words, instead of having an Environment Court whose decisions trump the Government, the Government will be able to trump council decision making.

  2. tracey 2

    Stephen franks has forgotten that the judiciary is the counter balance to govt power. To suggest,as he does, that somehow the courts, have brought this dictatorial law making by govt ignores the point. If the judiciary cant restrain misuse of power by a govt who will. Oh sure he started off moderate in his response but quickly used the opportunity to attack the judiciary.

  3. Veutoviper 3

    Thank you, R0b, for this post as the extent of what is going on in undermining democratic rights and checks and balances is extremely worrying.

    I read Susan’s article yesterday – after finding it rather hidden on the Herald site – and was impressed with it for starting to join the dots. We see too little of this these days in the MSM.

    I had no time to post the article here yesterday but intended to bring it to notice here on TS today. So great to see your post.

  4. Rogue Trooper 4

    Taking care of business and working overtime.

  5. Rosetinted 5

    “The Government has declared war on judges”

    Because judges may disagree with government’s behaviour finding it illegal or not consistent with the Bill of Rights etc. Our country is being taken over by a group of elected anti-democrats. They will change everything to suit themselves, ruining our hard-won legal rights and controls and thus our lifestyle and culture.

    • muzza 5.1

      Indeed, and it is allowed to happen, because of ignorance, apathy etc.

      • Arfamo 5.1.1

        The compliance and support of the MSM owners is the reason for the ignorance and apathy. Even when courageous and principled individuals leak or hack & show what is going on, the MSM buries it in fluff and moves on to Kate Middleton as the story of the day.

        • tracey 5.1.1.1

          Who is going to step in and buy mediaworks????

          • Arfamo 5.1.1.1.1

            Friends of the current administration. With their blessing and possibly taxpayers assistance. As usual. Look for a change in editorial direction. That Campbell chap’s been a bit of a pain for the current administration. Julie Christie is a reality show queen. More fluff and Kate Middleton to be interspersed between the advertising that now appears to be the main purpose of MSM.

  6. The so-called separation of powers was always a ruse of the ruling class.
    The concentration of power in the executive is inherent in bourgeois parliaments as the concentration of capital reaches its apex.
    Those with such massive wealth can buy their politicians and therefore their ‘laws’ and don’t tolerate their laws being challenged by ordinary citizens via the judiciary.
    NZ politicians are bought by international finance capital and merely rubber stamp its interests into law.
    The NZ judiciary however, is still not totally corralled by cabinet. The so-called lack of ‘comity’ complained of by Finlayson is bullshit language for ‘subservience’ to a bought parliament.
    Fortunately for us dopey kiwis the Dotcom case is being appealed to the Supreme Court and continues to be a running sore in the side of the executive. But this is against the trend since Dotcom’s rights are being defended by his $millions. But gift horse and all that.
    It proves that the only counter-power to the concentrated finance capital executive for the rest of us is mass civil disobedience, leaking, hacking, street protests and occupations.

    • xtasy 6.1

      red rattler – apart from you political interpretation of the realities of power at play in this area, it shows itself very crystal clear in the example and case of a “Mr Dotcom”, who manages to get the law interpreted as it probably should be in his case, and as it should indeed be to all.

      But had it not been for “Dotcom” and his accessible wealth and other resources, we would still today not know that the GCSB was involved in activities that at least many legal experts would describe as “illegal”. Also would we not know that the state agencies broke the law in many aspects while investigating and prosecuting him.

      There is abuse of power every day, every week, month and year, by not only powerful business people and their “servants”, but also by the state.

      Because the average citizen has little or no leverage, she or he are indeed practically rather “powerless”. Most only have rare dealings with “the law”, so they comply and shrug their shoulders. Others bear the brunt, and if ended up on the wrong side, are at least labelled for life.

      It took New Zealand many years to even bring in a “clean slate” Act in 2004, while most other developed and law applying countries already had such for a long time earlier.

      If only people would wake up to realities and take a stand, that is the biggest challenge here in New Zealand.

  7. QoT 7

    Let’s be fair, they might have misplaced the original design files for the Democracy Under Attack banner, and even as we speak some lowly intern is desperately searching their archives for it …

    • karol 7.1

      Do we need a new banner, coloured National-brighter-future-blue, rather than red?

  8. xtasy 8

    For once a NZ Herald article does give a comprehensive run-down on what is already at stake, and being implemented under this National (Natzi) Party led government. Thanks for putting this up, I had not read it before.

    Even where there are reasons for a judicial review, which only offers legal remedies in cases where statute law was not followed or not followed correctly, it is a major exercise to start such proceedings. Also have court fees been increased over recent years, and for simply filing an application $ 1,100 in fees will be payable from 01 July 2013. That is unless a person may qualify for a waiver, for which the conditions also tend to get tightened again and again (e.g. low income due to unemployment, no assets to cash in and the likes).

    http://www.justice.govt.nz/services/court-fees/court-fees-and-charges

    Lawyers will know how to do this, and judicial reviews must be applied for at the High Courts.

    http://www.courtsofnz.govt.nz/about/high/cases-to-court

    The Judicature Amendment Act 1972 provides for when and how reviews can be sought:
    http://www.legislation.govt.nz/act/public/1972/0130/latest/DLM408360.html
    http://www.legislation.govt.nz/act/public/1972/0130/latest/DLM408370.html

    For a layperson the challenge starts already there, and without legal representation it is an immense uphill battle and challenge. So it is recommended to consult and commission a lawyer with relevant experience. That person will charge fees of a few hundred dollars an hour, of course, and those without sufficient income or funds will need to apply for legal aid. Naturally also it must be provable that there was a breach of law or misapplication of statute law by an administrative body, so simply not being happy with a decision may not meet that requirement.

    Judicial reviews are civil matters, to a lawyer must present a report to Legal Aid at the Ministry of Justice proving reasonably the prospect of success. Present legal aid barely covers costs, so even if legal aid is granted, a lawyer may not be keen to spend too much time and efforts on the matter.

    Those sick or disabled beneficiaries that have perhaps faced WINZ designated doctors and felt that the recommendation of such a doctor, which is the basis of a Regional Health Advisor’s and ultimately case manager’s decision about benefit entitlement due to health grounds, they only have one appeal allowed to a Medical Appeal Board. As usually at least 2 MSD picked and trained “designated doctors” sit on such 3-member panels of that board, a decision may be not much more favourable, fair and objective than the one appealed against.

    After that a person has no more rights under the Social Security Act 1964 to appeal a M.A.B. decision (see section 53A), but a right to judicial review.

    Now imagine a poor beneficiary, stressed out, with little legal understanding “exercising” her or his “right” to judicial review granted under the NZ Bill of Rights Act, trying to go for judicial review! Few will even bother, given the hurdles.

    The same applies in some other similar legal situations under other legislation.

    What I mean to make clear with this is, the law and citizen’s rights are and have already been “shat on” for many years!

    Access to justice is a sick joke for most, and this government wants to block it even more.

    It stinks like a giant stench to the sky, what is going on, and it also stinks what has already been happening to so many for so many years!

    • xtasy 8.1

      Correction – High Court fees for filing for proceedings:

      a) in the case of a concession rate proceeding: $483.40
      (b) in the case of any other proceeding: $1,329.20

      • tracey 8.1.1

        Judicial review is hellishly expensive. Govt depts and councils know this. The ombudsmen system is a joke and so the depts and councils stymie at every turn knowing josephine average hasnt the money to jr

      • tracey 8.1.2

        Judicial review is hellishly expensive. Govt depts and councils know this. The ombudsmen system is a joke and so the depts and councils stymie at every turn knowing josephine average hasnt the money to jr

  9. aerobubble 9

    Forgive Dunne Week. The media has gone soft. National Security oversight, what left of it, is under threat when a member of the oversight committee will not allow inspection of some of his emails. What! This is no joke. In order to oversee the National Secrets they need to see some! Or may at-least inadvertently see such secrets before they have been removed from the official public dis-closer. So Dunne even if he has not actually leaked should be getting the red card, not the soft yellow. But wait there’s more! Dunne used the electoral loophole to get many trinkets of office, the one seat party, its pathetic. And now we hear he de-registored his party, not as the Speaker seemed to have us all believe the electoral commission. What was he hiding in those emails, what was he hiding when he deregistored! Is it true, is there a serial leaker in the oversight of National Security.

    Forgive Dunne week, you’d gotta be kidding. The man went to the electorate on not selling assets, and after inspection the 500 members needed to make a party was found wanting, how many of them dropped off out of frustration? Will we ever know?

  10. Michael 10

    NACT has also taken away access to justice for a huge number of New Zealanders, who are about to be shafted by WINZ and its “independent” doctors. At present, most beneficiaries who are unhappy with WINZ’s decisions have the statutory right to apply for “review” (to WINZ’s rubber-stamp “Benefit Review Committee” – decisions in favour of beneficiaries <2%), followed by "appeal" (to Ministry of "Justice" [sic]'s Social Security Appeal Authority – decisions in favour of beneficiaries 5%). Currently, decisions by WINZ on Invalids Benefit and Child Disability Allowance are only able to be appealed to a “Medical Appeal Board” (comprised of WINZ medical toadies), with rights of review or appeal through the legal system expressly excluded. From 15 July this year, this exclusion applies to a much wider range of WINZ decisions and beneficiaries, as Invalid Benefit becomes Supported Living Allowance, with recipients required to either look for paid employment (part time), prepare for it, or undertake whatever forms of activities WINZ demands of them. No rights of review or appeal. The new regime is a copy and paste job from the UK Department of Work and Pensions Work Capacity Assessment regime, which has led to deaths and suicides galore (thus achieving fiscal savings), amid the involvement of multinational companies employing the doctors who conduct the assessments (and are all richly rewarded for it, too). One difference: people shafted in the UK have the right of appeal through its legal system and, ultimately, the European Court of Human Rights. Currently, over half the people who challenge these decisions (a small proportion of the total number of shaftees, as most lack the stamina and resources to fight the system) succeed. None of that nonsense in NZ, though, where the members of the Welfare Working Group (now feeding from the public troughs at ACC and WINZ) know all about the UK regime, thanks to rogue insurance company UNUM Provident, which funds a university department from which the “research” that paid employment makes people well, while the mere possibility of state-funded benefits for sickness and disability makes them very unwell, emanates. Evidently, our benevolent welfare bosses do not wish to be troubled with the remote possibility that the NZ judiciary, renowned for its fearless commitment to fundamental human rights, might, just possibly, object to their plans to kick thousands of vulnerable New Zealanders off the welfare rolls and into the brave “new” world of arbeit macht frei.

    • xtasy 10.1

      Michael – your are right that the new “regime” will bring in new “assessment tools”, that have not been disclosed yet. These are likely to include some forms of “pre-designed” and “structured” self-assessments that sick and disabled will be asked to do. Loaded questions are already asked once a year now, when sickness beneficiaries face annual “reviews”, and where they have to answer about a range of questions about their preparedness, ability and motivation to work.

      They are likely to also have separate interviews in future, to check out “motivation”, to work on the clients of WINZ to give answers that will trick and “trap” them to show (expected) willingness to try work.

      And if that does not “convince” a sick or disabled beneficiary, they will still have “independent” assessments similar to the ATOS ones in the UK, which will though not just be of a “medical” type.

      The “medical” examination will in future be compromised, and only be part of a more complex assessment system, so work expectations will be pushed for many sick and disabled, yet MAB appeals can only be made on medical grounds.

      It will be very tricky territory, for clients that is. “Justice” and “democracy” will get a whole new “meaning”, most certainly if this governing lot get another term.

      • Adrian 10.1.1

        Reports that the “gunman” at Westpac Penrose tonight looked “depressed” and not well ( TV1) and in a wheelchair may be connected to this arsehole Government appalling treatment of those less fortunate.

      • aerobubble 10.1.2

        Access to paid work is a right. Living on a benefit isn’t realistic, choosing between heating and eating is not a life. When there’s a roof over ones head, square meals, in jail, its not cost effective for govt to remove people from welfare rolls. Now that said, the incentives for staff may make it temporarily expedient to do so, and the churn will lower long term beneficiaries stats (and while off benefit welfare payouts). But I reminded of Bennetts’ attacks on sole mums, and how she stopped, when the possibility that young women might actually be incentivized to get pregnant because of all the help WINZ would provide them, because surely she Bennett wasn’t actually be nasty.

        The situation for Kiwis in OZ is far starker, without welfare access the pressure to take up crime is increased, and so the blowout of numbers in jail in OZ, which is shocking when you think about the economics. Kiwis in work pay taxes that support Australian benefitaries, but not themselves, then NZ saves money because they won’t let Kiwis in jail serve out their term here. Do you notice what is happening, Kiwis pay taxes in OZ and the NZ govt saves money, all to
        make it hard for free movement of citizens, i.e. anti-free trade between NZ and OZ.
        A policy of Howard and Clark, both free traders, that’s the joke. However when you cost the real price of locking Kiwis up to the Australian govt, it makes a joke of the whole poor governance turn into stupid exercise in unmerited vengeance on Kiwis in Australia. Howard’s nasty politics of division again, easily done in the good times of cheap oil and cheap credit.

  11. AmaKiwi 11

    Our parliamentary rotating dictatorship was acceptable while people felt richer (because of borrowed money) and we had representative local government.

    Legally, our parliament is “sovereign”, which means it can do anything it wants. No holds barred. Anything. This government is doing precisely that, but the pattern began decades ago.

    When Parliament is sovereign, it is not a democracy.

    Democracy is when the people are sovereign. When the people can veto the actions of parliament and recall (fire) corrupt elected officials (MPs). The people, NOT parliament, must have the final say.

    My local Labour MP says the solution is to vote Labour. B.S. The solution is to castrate Parliament.

    I support constitutionally guaranteed binding referendums and constitutionally protected local bodies.

    • Colonial Viper 11.1

      And politician/legislation recall votes.

    • Arfamo 11.2

      +1

    • UglyTruth 11.3

      “Legally, our parliament is “sovereign”, which means it can do anything it wants.”

      NZ Sovereignty is a legal fiction. Tuhoi and some smaller tribes never signed Te Tiriti so the Crown’s assertion of sovereignty was based on a lie. Parliament can do anything it wants in the same sense that people can do anything they want. Anarchy does not mean that there are no consequences for actions.The law of nature determines these consequences, not legislation or popular opinion.

      Democracy is often held up as some kind of sacred ideal, but democracy fails to count the cost of its actions because the rule of law is nothing but a hollow shell in pretty much all representative democracies. De jure government is based on reason, not on popularity, necessity, or political expediency.

      The NZ parliament is basically organised mob rule where the mob is under the thumb of offshore interests. The solution is the rejection of the fraudulent and hollow law of parliament in favour of the law of the land.

  12. Michael 13

    Xtasy – I think your first post is better than mine but we ended up saying the same thing anyway. At least the Labour party types who read this blog have no excuse for pleading ignorance when the brown stuff hits the fan in a few weeks as the new shafting regime gets underway. The Greens, too, might like to reflect on whether they really want to go into government next year with a party that (a) started this “future focus” bollocks and (b) won’t speak out against its latest manifestations for fear of alienating the middle classes.

  13. tanz 14

    Government does want it wants, they know best, and everyone else needs re-education.
    Don’t bother voting, they’re all the same.

  14. Mal 15

    @tanz. By not voting you help National win.

    • UglyTruth 15.1

      @Mal,
      By voting, you endorse a system which is fundamentally fraudulent. The ideological differences between Labour and National are nothing compared to the ideological differences between the Crown and the common law.

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