National Blog of New Zealand

Public funding for tertiary education comes from a limited pool, as do the academics and multitude of other resources that comprise a good tertiary qualification. The Tertiary Education Commission report to the incoming Minister stated that one of the key challenges facing tertiary education planning in New Zealand is how, “a university system featuring more differentiation between institutions can make best use of scarce resources.”

In the face of this statement the curiously branded AUTU (”Auckland University of Technology University”) will now offer the LLb (”Legum Baccalaureus”) or what’s commonly known as a law degree. AUT ‘differentiate’ their law degree by suggesting it will have a strong commercial focus by;

“Adopting themes (such as ideas of property); by using cases involving crime in a business context (rather than the murder/manslaughter type of offence commonly used in other law schools) to illustrate relevant principles in the Criminal Law paper; by using examples of business enterprises challenging decisions of government and local bodies in the Judicial Review paper.”

In a press statement made by the New Zealand Law Students Association concern was raised about the proposed curriculum, noting that AUT seem to have confused their experience in teaching limited commercial law subjects to Commerce Students with providing the widely balanced, well resourced, comprehensive curriculum that is necessary for offering a viable law degree.

The Council of Legal Education is required to moderate entry level examinations between law schools. However, it will be interesting to see how a Criminal Law paper can disregard the classical curriculum in favour of more simple regulatory offences and the like yet still remain as challenging to students as traditionally covered material.

Many institutions including the University of Auckland and AUT already offer ‘Commercial Law’ majors under their Bachelors of Commerce and Business respectively. There is no reason why then that the traditional Llb needs to be revised from it’s role of training fully versed legal professionals. Those with a penchant for commercial law may pursue such a course under an alternate degree or as a follow on specialisation from their Llb should they wish to practise. The existing law schools all offer commercial and business law papers which build upon a general legal education provided in the initial years of the Llb. The reasoning for which is that as the concepts learnt in the initial years are the central tenets of the operation of law in all spheres.

AUT states that, “Law graduates consistently have one of the highest employability rates of any groups of graduates with only 50 per cent going on to practise law.” It is well recognised that the market for law graduates is reaching saturation, particularly in these strained economic times and it is in the interest of existing institutions and students to oppose AUT’s new ‘commercial law degree’. If AUT plans to run a programme without the intention of its graduates practising law then such demand is already well catered for in existing business programmes.

The reason law has high employability rates is that employers recognise the holistic nature of the education provided by the Llb and the intellectual rigour it demands of students. Maintaining the value of the LLb is as much in the interest of students as it is in the publics. Being awarded an Llb is a prerequisite for admission as a Barrister & Solicitor of the High Court, a profession with duties to the justice system, one another, the public and the rule of law. It is everyone’s interest to ensure our society is well served by competent lawyers who are able to competently defend citizen’s rights and coordinate the framework of morality and commerce that is the legal system.

The perception of a foreign degree in most countries is based upon the perception of all graduates from that foreign nation awarded said degree. If one institution lets down the degree it will damage the international reputation worked hard for by the existing faculties.

AUT believe that the Auckland ‘market’ is currently, “underserved compared to other New Zealand major centres and Australian cities”. Entry into the University of Auckland’s law programme is competitive with typically over 1000 applicants applying and only 300 being accepted based upon their grades in the first year program. This entry requirement reflects the current strains on teaching resources, the need to ensure that applicants possess a sufficient standard of intellect and ability and in recognition of the limited demand for law graduates. It would appear that AUT’s target market will be students who don’t cut the mustard for the limited places in the University of Auckland’s Law School. University of Auckland lecturers apparently told first-year students who might not get into its shrunken second-year intake, to take a look at AUT - who seem excited at the prospect of having those who were not of the callibre considered suitable by UoA.

AUT is better off remaining focused as a technical institute and avoiding the more academic subject of law. New Zealand is well served by the existing law schools. It doesn’t need another law school targeting those who perhaps ought not be pursuing a profession which prides itself on the skills of reason and advocacy combined with academic merit, duty and integrity.

Lest the next Auckland University Law Students Society tshirt read, “If you go to AUT and study law, you’re a bloody idiot.”

Fiji has a history of civil unrest over the divisive issue of how political power is to be distributed between ‘Fijian-Indians’ and the ethnic or indigenous Fijian population. 

The Fijian-Indian population is the legacy of the British attempt to establish an economic base for the ex-colony. Between 1879 and 1916 Indians were bought to Fiji as indentured labour for the sugar cane plantations, by 1987 they comprised an estimated 46% of the population. Given the increase in Fijian-Indian numbers a multiracial government was elected in April 1987, which was promptly overthrown in May of that year by Colonel Rabuka. Fiji eventually declared itself a Republic having been suspended from the Commonwealth and introduced its 1990 constitution. This constitution favoured indigenous Fijians, reserving for them two thirds of the Senate, much of the House and banning any Fijian-Indian from holding Prime Ministerial Office.

In 1997 a Constitutional Review Commission returned its recommendations for a multi-racial constitution founded upon the protection of basic human rights which was passed in the House on 3rd of July 1997.

On May 19, 2000 George Speight took Prime Minister Chaudhry hostage and attempted to abandon the 1997 constitution to institute indigenous-Fijian supremacy. However, as the security situation worsened Colonel Bainimarama imposed martial law fully abrogating the 1997 constitution effective 29th May 2000. Following this Bainimarama vested in himself complete executive authority with the military might to enforce this.

Mr. Prasad a farmer exiled from his land took a case to the High Court in order to establish that the 1997 constitution was unlawfully suspended, and was successful. Curiously the the Interim Civilian Government appealed to the Court of Appeal vesting the judiciary with the extraordinary authority to determine the status of the constitution. They found it to have been unlawfully abrogated and such it was subsequently reinstated with Parliamentary elections taking place in September 2001.

Then in 2006 as a response to the leniency to be shown to the perpetrators of the previous coup d’état, and his dislike at government policy; which he feared would return the country to, “paganism and cannibalism” Bainimarama decided to topple the government. He unconstitutionally installed himself as Prime Minister, a post which he has now enjoyed since January 2007.

Bainimarama declared High Commissioner Mr. Michael Green persona non-grata shortly after citing his, “persistent interference in Fiji’s domestic affairs”. 

“The practice of quiet diplomacy was foremost given all the chances to prevail by Fiji authorities in our efforts to seek understanding and co-operation of H.E Mr. Green to stop interfering in Fiji’s domestic affairs given our status as a sovereign nation.”

More recently the Fijian Government has repeated this action with our subsequent High Commissioner Mrs. Caroline McDonald. Although Article 23 of the Vienna Convention on Diplomatic Relations 1961 does not require a state to give reasons as to why consular staff are to be declared persona non-grata the imposition of travel sanctions seems to the the likely reason behind this move. As stated by Fiji the sanctions are “one of the clearer indicators of the state of our current relations”.

At present there is a ban on all members of the Fijian Military Force, certain individuals associated with supporting the coup as deemed by the NZ Minister of Immigration and their close associates, sectaries of Fijian government departments, and the immediate family members (partners, children and children’s partners) of all those banned. Our sanctions primarily inconvenience the Fijian ruling elite. Any new aid initiatives that involved partnership with the Fijian government have been suspended. Our 2008/2009 aid allocation to Fiji is $5M for NGO projects.

The balance of political power in Fiji is contentious, and it appears as though there was some corruption in the Fijian government prior to it’s dissolution. However, nothing on the scale of what we’ve seen after the coup. Bainimarama’s undermining of the electoral system to seize power for himself is in no way legitimate, using force claiming to uphold the constitution is nonsensical. The correct process for reform is to be made by the voters, with free universal suffrage. A coup is the antithesis of the rule of law.

Expelling our High Commissioner on grounds of claimed domestic political interference seems to be a front for the fact that the Fijian elite are upset by the travel sanctions imposed upon them by NZ. Do they expect us to turn a blind eye to the treatment of citizens and foreign journalists post coup.  Perhaps showing some movement toward a fair and just elected government of the people would’ve gone some way toward lifting these sanctions. However, Bainimarama appears happy to continue his dictatorship of what is aptly being termed Bainimarama’s banana republic. Fiji’s economic decline is likely to highlight the disparities between Fijians and make the process of moving forward that much more difficult.

Upon reading my local paper I noticed an editorial by Pat Booth suggesting that we ought to review the ‘right to silence’ afforded to defendants in criminal trials.

Nemo tenetur seipsum accusare, that no man is bound to accuse himself, does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance as promulgated by Lord Mustill in R. v. Director of Serious Fraud Office, ex parte Smith (1992). The contemporary form of these rights stems from Judges Rules 1912 issued by the Kings Bench to the Police force concerning how they conducted criminal procedure, ending beating and torture. Its historical origins are a little more confused, it is believed initially to have come in response to the practices of the Court of Star Chamber where the accused were required to answer questions without knowing what they were accused of. It acts to protect defendants from torture and compulsion and the system from false confession.

Upon his retirement the late Kevin Ryan QC suggested to the surprise of the legal community that the right was designed for an illiterate populous quite different from contemporary society. His comments seemed to stem from the recent number of high profile child abuse cases, in particular the Kahui debacle in which the family closed ranks and refused to answer questions. My thoughts on this one were that both Mr. Kahui and Ms. King ought to have been committed to trial as co-defendants meaning you’d likely ensure at least one conviction preventing them from pointing the finger at one another. As we know hard cases make for bad law and one can only hope Justice Minister Simon Power keeps this in mind with his upcoming review into the right.

Sensible Sentencing suggests the removal of this protection, but then I’ve never really had much time for an organisation which advocates for the removal of the ‘cab rank rule’ but sees the reinstatement of the death penalty in New Zealand as a viable option for combating crime. Removing protections for competent and adequate representation while attempting to reinstate the death penalty is a little sickening.

I think they real issue is that the invocation of the right to silence by a defendant cannot itself be bought as evidence at trial from which a jury may infer guilt. You may ask if one has nothing to hide why would one need to avail themselves of such a protection – and perhaps rightly – this fact should be admissible. However, a jury must still be satisfied beyond a reasonable doubt and in my mind drawing inference from such a confession is dangerous and may threaten to erode the cornerstone of criminal justice that “it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer.”
I would not support granting Police powers to question akin to those given to the SFO under ss 5, 9, 45 of the Serious Fraud Office Act 1990.

If an individual refuses to answer, do we torture them, imprison them or just fine them. Do we want a state where you can be punished for simply failing to answer questions to the standard set by and demanded by investigators . What questioning is appropriate? Vesting such powers to the police poses much scope for abuse.

We mustn’t forget the criminal defendant is pitted against what Gary Gotlieb terms the “might of the state” – the job of prosecuting criminals can and has been done for over 100 years with this liberty intact. I can’t see how a system which requires an admission of guilt to ensure a conviction as being sufficiently robust to be vested with the power to imprison, fine and otherwise restrict individual freedom.

Vince Siemer is a name seldom discussed beyond the walled garden of New Zealand’s legal community. Behind the name however is a man who loudly expounds what he believes to be the injustice done to him by the judiciary. Or perhaps just a man who has no concept of, or simply no respect for the rule of law in NZ.

In 2005, Seimer an American businessman, had a significant (to say the least) falling out with Mr Michael Stiassny, an Auckland insolvency expert. Stiassny was appointed as receiver for Paragon Oil Systems Ltd, a firm in which Seimer was a significant shareholder. Seimer then chose, in true American style to go public with his claims of improper personal enrichment against Stiassny. He rented a car park billboard which directed viewers to his website populated with what has since been described by the Supreme Court as material highly critical of Stiassny. Stiassny then sued Siemer for defamation and applied for an injunction. All rather straight forward stuff.

Now, ordinarily the courts will not provide interim injuctive relief in cases of defamation where the defamatory material has some ground of justification. However, as a result of a 1992 Court of Appeal judgment interim injunctions for defamation can be awarded where there is in the Court’s view no reasonable possibility of a legal defence. This is tempered by the right to freedom of expression in the NZBoRA thus the jurisdiction to award injunctions is only available for clear and compelling reasons.

The High Court took the view that this was such a case. Hence Stiassny was awarded a rare interim injunction ordering Seimer to remove anything about Stiassny from his website. This injunction was perhaps unduly wide and was later recast on appeal. Ordinarily this would be where the ride stops, Seimer complies and if he wishes may push for a trial where the truth can be uncovered in his defence.

Seimer however, chose not to comply and as a result in early July 2007 upon returning from the United States, he was picked up by police and taken to the cells underneath the High Court in Auckland to be tried for contempt. There he remained until Justice Potter ordered his incarceration behind the formidable stone walls of Mt Eden prison for six weeks which he served out, complete with hunger strike.

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