So the Law Society raises concerns at the prospect of trials relying on suppressed evidence which may result in the incarceration of Kiwis and the Attorney General then chooses to attack it.
I posted on this earlier. Basically a late change to the Health and Safety Reform Bill introduced after submissions had been considered introduced the possibility of trials where the defendant does not get to see all of the evidence.
The New Zealand Law Society has expressed its concern at what has occurred. It released this statement:
The New Zealand Law Society has expressed its significant concerns at the last-minute addition to the Health and Safety Reform Bill of provisions for a closed material procedure for court proceedings where national security is involved.
The Law Society has written to the Minister of Workplace Relations and Safety, saying the provisions should not have been inserted at this late stage of the legislative process.
The provisions will allow a person to be tried and convicted of a criminal offence without seeing all the information relied on by the Crown and without the right to be present (or to have their representative present) during all the proceedings. This is inconsistent with the fundamental right to a fair trial, the Law Society says.
“We recommend removal of the provisions from the Bill, to await the outcome of an inquiry the Law Commission is carrying out on National Security Information in Proceedings,” Law Society President Chris Moore says.
How did the Attorney General respond? By insulting the Law Society. He said this:
I saw some article in the Dominion Post that suggested I was some sort of crypto-fascist behind this particular secret court. But it was nothing of the sort.
“It was a [Supplementary Order Paper] that was introduced to deal with the circumstances in which you would deal with a hearing behind closed doors. Where did the [Law Society] go wrong? Well, probably, what they did is that they didn’t really understand the legislative history and hadn’t picked up on the most recent SOP.”
He also released this more formal press statement where he petulantly claimed that the Law Society’s press release had been released seven days after SOP 108 has been introduced. He should check his maths as it was actually released six days (25-19) after.
He was referring to SOP 108 which was introduced on August 19. The letter from the Law Society was sent on August 21. The failure to pick up on the further changes is in my view completely understandable. The need to get committee agreement to the letter meant there was always going to be a lag between writing the letter and sending it. And not anticipating that a late amendment will itself be subject to further significant changes is hardly a hanging offence.
The Law Society has chosen to release the letter publicly. Finlayson should be afraid. The Law Society is by far the strongest Trade Union in the country. You insult the society at your peril.
And Finlayson’s criticism is, how do I say this, misplaced. The Society’s criticism as to process is reinforced by what has happened here. A bill has been introduced, a change is made AFTER submissions have been heard that affect human rights, and then further amendments to the amendments are introduced. All without proper public scrutiny. The bill was reported back on July 24, 2015 and the further SOP tabled on August 19, 2015.
And the main concern the Law Society has, that individuals may be tried and convicted on the basis of evidence they have not seen, remains. The language of the SOP is very obtuse and it is not easy to immediately understand how it will be applied but it still allows for someone to be convicted on the basis of evidence that he or she has not seen. And the explanatory note to the SOP describes the changes in this way:
[A]mendments to Schedule 2A, which contains provisions relating to classified security information used in proceedings in relation to the Health and Safety at Work Bill. The amendments limit the application of the schedule to proceedings in which all parties have access to the classified security information or the defendant seeks to produce or refer to classified security information“.
The provision is now more restrictive. But there remains the power for appointment of a Special Advocate so clearly the provision anticipates a defendant not being aware of all evidence that may be led against them.
The Law Society’s concerns remain valid. And Finlayson’s petulant criticism because the Law Society was not aware there were late changes to late changes to the bill is unwarranted.
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