National Blog of New Zealand

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.

As it stands employees can bring a ‘personal grievance’ where they are unjustifiably dismissed, that is, dismissed outside of how a fair and reasonable employer as objectively assessed would act. This means that a reason for dismissal should be given as well as proper procedures followed, it’s a bit of a legal minefield for small business.

Dr Wayne Mapp’s Employment (Probation) Bill 2008 being passed under urgency proposes to abolish this protection where both employer and employee agree to do so. As we all know employment negotiations don’t always play out on an even pitch therefore it’s likely the probation period will become standard boilerplate given to employees from now on. Especially for unskilled labour who often benefit the most from union assistance (for which dismissal for association will no longer constitute a personal grievance in the probation period) as opposed to those capable of negotiating their own contracts.

To dispel some of the misinformation floating around, there will be no constant firing and rehiring of employees as the Bill will only allow one probabtion period per employer-employee relationship. Although in my opinion the hire-fire scenario would be unlikely given the negative impact this would have upon the employment relationship dynamic and the economic cost of the resultant high staff turnover. It is also only applicable to businesses which employ less than 20 staff, those likely to recognise the importance of good staff and to be most hurt by a less than suitable employee bringing a grievance. The Bill will remove access to employment mediation services, however employees can still avail themselves of the Human Rights Act 1993 if they feel they have been unfairly discriminated against.

I find little weight in the argument that this Bill needed to be passed under urgency, perhaps it’s only real function is to herald a change in the process of government. It may have already been assessed under the previous government but this does not mean any adjustments should be exempt from review. I for one can’t see the large impetus for passing this under urgency, it’s painted as a Bill to help employees by allowing employers to take a ‘risk-free’ chance on them, and by the same token assist employers by letting them vett potential employees for a lengthy period - what’s the big hurry?

No industry where it takes three months to assess employee suitability springs to mind, and therefore this seems to be an overly lengthy time period.  Job stability is a socially important goal allowing people to plan into the future, three months is but a pinprick in eternity but reducing the time period to one month (the usual maximum pay period) seems to strike a better balance.

Small business is an important part of our economy and does often run on very slim margins, so protections need to be afforded to those who choose to run such businesses - but only insofar as they do not erode the rights workers have fought tooth and nail for.

The real issue I take with this Bill is that it means employers can act in an unfair and unreasonable fashion, or at the very least not be required to act in a fair and reasonable one. Yet for many small businesses doing so and showing they have done so can be a tricky process that is perhaps slated against them from the beginning, let’s trial it - if it’s abused and the subject of well founded complaints then lets revert back. Given what I predict will be the minimal impact of this legislation it comes across as just a bit of tinkering, unless you like slippery slope argument.

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.

Continue reading »