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Forget worm farms the Health and Safety Reform Bill proposes secret trials

Written By: - Date published: 8:54 am, August 26th, 2015 - 23 comments
Categories: Abuse of power, Deep stuff, national, Politics, same old national - Tags:

GCSB Maxwell Smart

The way that lawmaking should occur is that a bill is introduced, it is sent to a select committee for consideration, submissions from the public and professional bodies are carefully considered, meaningful changes are then made and the bill is then returned to our parliament for our elected representatives to debate and enact if it is considered appropriate.

An important part of the process is for the Attorney General to consider the bill to measure it against the New Zealand Bill of Rights Act 1990 so that at least comment can be made if our rights are not being respected.

News released yesterday suggests multiple breaches of these constitutional understandings have occurred in the handling of the Health and Safety Reform Bill.  A new section have been introduced following the hearing of submissions which has the appearance of filling in an oversight.  It introduces the ability of the Director of Security to declare that some provisions of the bill do not apply to some workers carrying out work for the SIS or the GCSB.  No Bill of Rights review now occurs.  And a new schedule allows for classified security information being hidden from a Court.  Big brother here we come.

The Law Society is not impressed and 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.

The Law Society’s proposal that there be consideration of the Law Commission’s review of the use of national information in proceedings seems eminently sensible.  Putting this sort of provision into individual bills as they come up is draining and piecemeal and does not allow a proper debate on whether there should be trials with secret evidence at all.

Putting to one side the question of whether or not the provision is actually needed you have to wonder why it was not in the original bill.  Was this an oversight or is this an attempt to sneak it through?

There are similar provisions in other Acts.  There is power in the Passports Act 1992 for the Court to receive classified security information without the parties to the case having access to the information.  There are similar provisions in the Terrorism Suppression Act 2002 and the Telecommunications (Interception Capability and Security) Act 2013.  Generally these provisions give the Court access to classified information but the parties and their representatives are not.

Because of the shortness of time I am unable to say if the changes to the Health and Safety Reform Bill go any further than these other provisions.  But you have to wonder why the provision was not included earlier.  As can be seen by the other Acts there is a precedent for this sort of rule.

You also have to wonder why an act of general application needs the same extreme provision that is found in Acts dealing directly with potential terrorist threats.  As the Law Society points out surely it would be better for this particular provision to be codified so that it is of general application.

There has been some criticism of Labour and the Greens for not appreciating the implication of this change.  This is harsh.  The bill has had a number of changes made and the handling of it is an utter mess.  The Government should wear this, not the opposition.

23 comments on “Forget worm farms the Health and Safety Reform Bill proposes secret trials ”

  1. tracey 1

    I can see why, say, the military might need exemptions…

    BUT of most import is HOW this has been done. Peter Dunne? Seymour (on behalf of libertarians everywhere)? Maori Party?

    Perhaps National wants its Bill voted down…

  2. Ad 2

    Which idiot official forgot to spell out what this would look like in the court of public opinion?

    Consider a good set of media stories where someone found guilty in a secret court gets to explain their side of things, and the Crown, bound by secrecy, can’t defend itself. Such a lovely tv series that would make.

    The government would be massively damaged. BORA defends the government and citizens together. And all of this in the 700th anniversary of the Magna Carta.

  3. amy 3

    I am at a loss to see quite what the problem is here, other than sloppy or neglent legal drafting in the original bill.

    Employees and contractors in defense or security must, by the nature of their employment, be subject to different sets of rules.

    700 th aniversery of Magna Carta. How does that relate to this topic? It gave no freedoms to the vast majority and only limited and extremely short lived freedoms to a small elite.

    • mickysavage 3.1

      It has not been vetted for bill of rights issues. No one has been able to submit on it because it was added late. This sort of provision has only previously been added to legislation dealing specifically with security threats and not in a general Act. The provision allowing the Director of Security to state that certain provisions of the law do not apply to employees is as far as I can tell unique. These sorts of changes should be subject to full analysis and debate and not rammed through at the last minute.

    • greywarshark 3.2

      @amy
      Sounds like you are an apologist for wonky legislation, and willing to delve back centuries for the examples of some that didn’t work properly so as to excuse the same recurring after all these years of experience with the principles. When the Magna Carta is quoted it will be referring both to new principles to be adopted in new legislation and to the spirit and direction of the document which had to be a living document like the Treaty of Waitangi.

      • amy 3.2.1

        Ok so because I have a different opinion to you, it follows that I am ‘an apologist’? Pathetic argument.

    • tracey 3.3

      Then shouldn’t have been overlooked, and then quietly added. Let’s do that open and transparent thing when discussing the need for some exceptions.

      “other than sloppy or neglent legal drafting in the original bill.”

      Hmmm sloppy or negligent drafting? Been plenty of time for those who want this legislation to get it right without blaming the drafters. Drafters write for what they are told. If they are not told to draft a section excluding secret services, they don’t draft it. Not their job.

    • RedBaronCV 3.4

      Like no come back against the sexual harrassment – there have been planty of cases of that in the armed forces-

  4. tc 4

    Watching Marama Fox on Te Karere would make the nats very happy with their lapdog coalition party toeing the line soothing the sheeple.

    Reminded me of Parata at her arrogant best and this show is looking like it’s put together by high school media students now.

    • save NZ 4.1

      +1 TC – in the interests of cost cutting current affairs probably is put together by high school media students as part of their NCEA – or at least that is in the pipe line….

  5. Anne 5

    Was this an oversight or is this an attempt to sneak it through?

    It smacks of the former to me. A hastily cobbled together Bill full of loopholes and outrageous inconsistencies and now various arms of government are screaming… “ya can’t do that! How are we supposed to do our job with that kinda stuff hanging over our heads. You gotta be joking”.

    So, this government in typical haphazard manner, thinks it can just tag things on the end of a piece of legislation and get away with it. A mickey mouse outfit to be sure!

    • dukeofurl 5.1

      You just know they will take this little rushed amendment ( seemingly carefully and comprehensively worded) and use it to avoid scrutiny in any circumstances totally outside ‘health and safety’.

      • Anne 5.1.1

        Yes.

        We’ve got an inquiry at the moment into John Key’s Office’s OIA refusals re- Rachel Glucina. Doubt Mr Key and his lackeys want too much light shed on that little tete a tete…

      • Tautoko Mangō Mata 5.1.2

        If the Māori Party agreed to back the H & S bill BEFORE this amendment plus the withdrawal of beef and lamb farming, then surely they should have every right to withdraw their support now that it has been significantly changed.
        It is about time that the Māori Party stood up against this disrespectful, underhand National Party.

    • save NZ 5.2

      They are worse than mickey mouse – they are criminals.

      It is beyond a cartoon, it is a dirty scam to pervert democracy and process.

  6. Ad 6

    Woodhouse is having his very own Celebrity Roast in the House.
    The MSM media is on side with this one. Trade publications will be next, then Institute of Directors.

    Bet the first Director held liable takes it all the way to the Supreme Court, where those parts of it are held as unworkable.

    Plus government are now getting it wrong the other way with schools reacting.
    Rush something through without good time for submissions, this is what you get.

  7. Draco T Bastard 7

    News released yesterday suggests multiple breaches of these constitutional understandings have occurred in the handling of the Health and Safety Reform Bill.

    That would be National. If some thing’s not specifically illegal but has the force of tradition and morality behind it they’ll ignore it to put in place policies that suit their ideology.

    Was this an oversight or is this an attempt to sneak it through?

    This government is National in it’s full immoral glory so it’s most likely the latter.

    As the Law Society points out surely it would be better for this particular provision to be codified so that it is of general application.

    And doing so would make the law simpler and thus help to close any loopholes in the law.

  8. sirpat 8

    am i waaaaayyyy out on a limb suggesting that with its late inclusion etc etc that this would suit something to do with the TPPA?

  9. Macro 9

    No Right Turn has an excellent summary of this Bill here and some of the potential ways it might be used by govt to cover up.
    http://norightturn.blogspot.co.nz/2015/08/what-trials-does-national-want-to-keep.html
    It is bad law and we must make sure that it is removed at the first opportunity.

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