The C word is “constitution”.  Sorry.

On 10 August 2018 Chief Justice Dame Sian Elias gave Maxim Institute’s annual Sir John Graham Lecture.  Her Honour has given speeches in the past that have attracted controversy, and with less than a year to go in her tenure my main motivation for attending was hoping for Dame Sian to give the speech equivalent of the ending of Butch Cassidy and the Sundance Kid.

Alas, in that respect the speech did not contain anything truly controversial, although her Honour indicated she would not resile from earlier comments.  Early on she said that she had reviewed her 2009 Dame Shirley Smith address – the “Blameless Babes” speech – and on reflection while “talking about penal policy is one of those things that a sensible Chief Justice would avoid … everything I said in 2009 is what I would want to say today.”

So, no entry into the fray of politics.  The closest things came was a quote from TS Eliot that tradition “cannot be inherited, and if you want it, you must obtain it by great labour.”  By using that as a motif in the speech the Chief Justice got to repeat the words “great labour” several times to a room full of Maxim Institute types.  Fantastic!

Speaking of which, the Maxim Institute people were… strange.  References to God in their greetings, but with an intensity that tended towards the Scientological.  The speakers there rattled off abstract nouns like they were trying to name the Seven Dwarfs.  Maxim Institute, we were told, stands for freedom, justice, compassion, truth, dignity, Sneezy and Doc.  As for the audience that the event attracted, well, there was more privilege in the room than Part Two, Subpart Eight of the Evidence Act 2006.

The text of the address, and the video, will be publicly available soon, so it’s not my intention to rehearse it all.  I’ve put some soundbites to topics below,which mainly come from the Q + A.

The main theme was on the need for work (great labour) to preserve our unwritten constitution and the rule of law.  Her Honour attributed calls for a formalised written constitution as the product of people who feel our current constitution as not working for them.  Small changes to our constitution work like a cat’s cradle and risk pulling other parts of it out of shape.  A classic Elias-ism and one that underpins her judicial philosophy, I think – so many times her dissents are born of conservatism rather than radicalism.  The fact that she dissents masking a Canute-like stand.  Her speech last year on managerialism in criminal justice was good at revealing a lot of that.

She also spoke about the dignity of a hearing and drew on Jeremy Waldron’s work a lot.  It is incumbent on judges to bring their A-game to the Dog Control Act cases, in the same way they bring it to the cases that are constitutional moments.  Constitutional moments, she explained, are the hearings that judges would rather avoid given the risk of damage to the constitution at critical junctures.

I’ve been thinking a lot about the speech over the weekend and my lasting reaction is just how sad it is that mandatory retirement will mean that we lose the Chief Justice next March.  She has been in her role and heading the Supreme Court long since before I started studying law.  Her speech was lively and reflective and she seemed a long way from retirement by choice or necessity.  Her departure will be our loss.

Selected quotes (not made up)

The Chief Justice on:

The Foreshore and Seabed decision: It was “inevitable that it would take time for that case to be absorbed” but I would have thought “a little more time could have been taken for it to be absorbed”.  It was the type of case that as a judge you simply don’t want to have to decide and “if there was anywhere to hide, you would”.

The capacity for civic engagement/a personal attack on the author of this blog: Today, people’s “attention span for engagement seems Twitter-cised.”

The fact that 50% of Maori men born in 1988 have a criminal record: It’s “not something we can continue to live with”.

Whether a supreme, codified constitution is desirable: “I don’t think so, if we are prepared to understand our constitution and prepared to work at it.”

Sexism in law: “I thought we’d come a lot further”.  I’m “dismayed” at the recent stories.  It is “a cultural impediment that we need to face up to”.  The fact there aren’t more women in seniro positions is “something that bothers me a great deal”.  “I personally think it’s time for women to get really angry”.

The law having to come to grips with AI: “I’m retiring in March.”

The establishment of the Supreme Court: “It was overtime”. “It will be the work of generations”. “It gives us the opportunity to develop our own voice”.

Good news everybody

The New Zealand Law Society is setting up a new National Standards Committee (it has one already but the legislation provides for two) (and see pedantic legalism at the end of this post).  You may remember the original and current National Standards Committee from when it broke the land speed record for backpedaling.

NZLS is advertising for lawyer members for the new NSC here.  The focus of the new NSC is “to deal specifically with complaints about harassment and bullying in the legal profession.”

This is a no-brainer from NZLS’ perspective:

• First, and perhaps most importantly, it is another way in which NZLS can be seen to be Doing Something.  In terms of concrete steps it certainly rates more highly than “we made a poster“.
• Second, and I mean this genuinely, this has the potential to be really good.  The current NSC deals with serious complaints (as befitting the national body).  This is an important symbolic step.  But more than that, it will collate these types of complaints into one body.  That body, through its membership and the experience it will gain, has the potential to be half decent at dealing with these complaints.  It could also lead to better, and more consistent practice in dealing with what will be vulnerable complainants.  There will be opportunities to adapt and improve the current administrative practice to make the complaints process more responsive to these types of complaints.
• Third, as with all Committee processes, Committee decisions are independent.  NZLS gets the benefit of being seen to be doing something, while gaining the ability to say that any individual decision by the new NSC is not something it has (direct) control over.

If all of this sounds slightly cynical I don’t mean it to be.  I don’t know if this has been in the works for a while but there has been publicity about this since mid-February with the Newsroom story.  And as has been pointed out articulately by people like Steph Dyhrberg in this article, and someone a lot dumber in this nonsense, lawyers have known about this for a long time.  Perhaps NZLS have been considering this for a long time, I’m not sure, but if the Newsroom story pulled the rug out from under NZLS then this new NSC is the equivalent of at least getting around to placing a call to Carpet Court.

Get to the point

So far, so background.  The purpose of this short post is to argue why NZLS should consider seriously appointing a lawyer member that is as junior as the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008 (Regulations) will permit.  I think it is an important aspect of representation that will enhance the legitimacy of the new NSC.

Regulation 15(1) requires the lawyer members to have not less than five years experience as a lawyer.  Lawyers will be familiar with those types of experience clauses for appointment of judicial officers.  In theory, one could become a High Court judge after seven years of practice but that is exceedingly unlikely to happen.  The practical reality so far is that persons with a lot more experience than five years are appointed.  NZLS itself describes the lawyers appointed to Standards Committees as “senior practitioners“.

For the new NSC, NZLS should read the five year requirement literally.  Appoint a lawyer still in their twenties to the NSC.  There are a bunch of people that have practiced from age 23 or so.

I understand the traditional thinking on appointing senior persons to Standards Committees.  If we are going to ping each other for unsatisfactory conduct or refer each other to the Tribunal for misconduct then we want those decisions to be made by persons with perspective, experience, and who are respected in the profession.  But to my mind, a wider account of legitimacy-through-representation is required.  A body tasked with dealing with the problem should represent both complainants and respondents.  Furthermore, I am not saying the entire new NSC needs to be lawyers fresh from Profs.  Indeed, the current Regulations make that impossible.  All I am saying is that ensuring an appropriate age-mix will be an important consideration when deciding membership.

It is not tokenism to say that I would be more willing to complain knowing that the NSC wasn’t full of people who were practising when Sir Ronald Davison was Chief Justice.    Many complainants will find it difficult enough to complain about these matters as it is.  In addition, the new NSC itself will be assisted by membership that can identify more easily with persons who are, statistically, more likely to be affected by this conduct.  Finally, younger members of the profession will have greater confidence in the new NSC’s decisions if they know that its decisions were made, in part, by persons who have the same lived experiences in the profession as they do.

NZLS also wants the following qualities for members of the new NSC:

Experience in dealing with unacceptable conduct in the workplace, either directly or through the delivery of support or guidance, is required. Previous experience on a regulatory committee is also an advantage.

There will, I hope, be many young lawyers in positions of mentoring or support programmes within their firms.  Official experience should not be the only thing that counts here.  The Bazley Report highlighted the story of a young solicitor who went above and beyond to support the summer clerks at the centre of the incidents.  No HR training can beat that sort of practical experience gained from being placed in such an invidious situation.  As for experience on a regulatory committee, well, let the other members of the Committee bring that experience.

As the results of NZLS’ Harassment Survey made clear, negative workplace behaviour (what a euphemism!) is borne disproportionately by women, by minorities, and by young persons.  I am hopeful (confident, even) that the appointment of the NSC will reflect a demographic mix reflecting both the make up of the profession and those persons affected by the conduct the Committee is aimed at addressing.  The purpose of this post is not to elevate the concerns for young lawyers above those of anyone else affected by this type of conduct.  Rather, it is motivated by the risk that the traditional thinking about appointing “senior practitioners”, combined with the five year experience requirement (which usually means far more than five years) means that the Committee will lack representation for young lawyers.

All members of the profession are needed to address these issues.  Young people should not be overlooked because of traditional conceptions that Standards Committees should be senior practitioners.  Appoint someone in their goddamn twenties.

Pedantic legalism

Technically, the second National Standards Committee already exists.  It was brought into existence under reg 12(1)(t) of the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008 (Regulations). Currently it is not “operational” but can be made so under reg 12(2) of the Regulations.  The “operational/not operational” distinction permits states of dormancy meaning NZLS doesn’t have to run more Committees than it needs, while allowing capacity in case the number of complaints increases.  A complaint may only be referred to an operational Standards Committee: reg 13(2) of the Regulations.

Introduction

In November 2017, the Supreme Court released its decision in Osborne v Worksafe New Zealand [2017] NZSC 175 (2017) 15 ELRNZ 365 (Osborne SC). The agreement between Worksafe and Mr Peter Whittall for the withdrawal of charges in exchange for a voluntary payment of $3.41 million to victims of the Pike River disaster was an agreement to stifle the prosecution and was unlawful.

The Supreme Court’s decision presents challenges to the legality of the Police’s Adult Diversion Scheme (diversion) – a scheme where often charges are withdrawn against defendants in exchange for the payment of money to victims or charities.

Osborne

Mr Whittall had faced charges under the Health and Safety in Employment Act 1992 as a director of Pike River Coal Limited (PRCL). As a result of the Pike River disaster that claimed 29 lives, PRCL was found guilty of health and safety charges and ordered to pay $3.41 million in reparations to the survivors and families of the Pike River disaster.  PRCL was in receivership and could not pay.

Mr Whittall (through his counsel) offered to pay the $3.41 million to the survivors and families if the prosecuting agency, Worksafe, did not proceed with the charges against him. Mr Whittall was also willing to meet with the families and survivors and express his sympathies.  There was a period of negotiation.  Worksafe sought legal advice.  Ultimately, Worksafe accepted the agreement and offered no evidence on the charges.

Two family members of the disaster victims sought judicial review of Worksafe’s decision.

All courts and all parties agreed that a payment that was solely in exchange for the withdrawal of charges is unlawful (Osborne SC at [70] and see the cases cited at footnote 69). A person cannot buy their way out of criminal charges.  The issue was whether Mr Whittall’s agreement was an agreement to stifle prosecution (and therefore unlawful) or involved a permissible exercise of prosecutorial discretion.

The Court of Appeal held that there was no agreement to stifle the prosecution (Osborne v Worksafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513 (Osborne CA)). The Court’s conclusion was based on a number of contextual factors.  These included that it was Mr Whittall (and not Worksafe) who suggested the payment; that the Worksafe official who approved the agreement had not taken part in the negotiations and made the decision with a “fair and honest mind” (Osborne CA at [71] citing Jones v Merionethshire Permanent Benefit Building Society [1892] 1 Ch 173 (CA) at 183); that the decision was taken in light of an assessment of a low likelihood of success at trial; reparation was unlikely to be ordered against Mr Whittall; and that simply because there had been a negotiation did not mean that a bargain had been struck (at [68]). A “conditional reparation undertaking” could be a legitimate factor in the final decision to prosecute (at [68]).

The Supreme Court disagreed. It found that none of these factors could mitigate what was at its heart a payment of money in exchange for the withdrawal of charges.  As Elias CJ (writing for herself, William Young, Glazebrook and O’Regan JJ) stated:

[93] The payment to be used for reparations was conditional on the withdrawal of the charges. This “central arrangement” had been acknowledged by and known to WorkSafe and its advisers throughout. It was the essence of the payment arrangement, treated as such in the 7 December exchange of correspondence … Offering no evidence was understood to be “the essential feature” on which the proposal to pay reparation was based. No formal offer was presented on behalf of Mr Whittall until WorkSafe had indicated through its counsel that the essential exchange would not be rejected out of hand. It was immaterial that it was Mr Whittall who put forward the conditional reparation payment in the first place. …

For the majority, the presence of the withdrawal of charges on one side, and the payment of money on the other, meant the arrangement was an impermissible bargain (at [94]).

Writing separately, Ellen France J agreed that there had been an agreement to stifle prosecution but added that she “would not want to foreclose for consideration where it arises the place of reparation in prosecution decisions. In other cases the approach may not always be as clear cut as this one” (at [106]).  It is unclear whether her Honour was referring to diversion, though the comments seem prescient.

Diversion

Diversion is a Police initiative. The purpose of the scheme is described in the Adult Diversion Scheme Policy (Policy) at 3 (accessed 22 January 2018):

The Police Adult Diversion Scheme (diversion) is a lawful way to exercise prosecutorial discretion instead of full prosecution through the court system. It is an alternative means of processing some offences and/or offenders through the courts. …

Diversion enables eligible offenders to complete diversion activities within a given timeframe to avoid both a full prosecution and the possibility of receiving a conviction. This means that judicial time is able to be reserved for more serious offences and offenders.

The Policy describes the primary purposes of the diversion as rehabilitation and reparation (Policy at 4). The Policy gives examples of reparation as the payment of money to compensate a victim, making good damage done to property, and writing an apology letter (Policy at 4).

Diversion is offered to (usually) first time offenders who have been charged with low level crimes. A defendant must be willing to accept responsibility for their actions before diversion will be granted.  The Police will also seek victim input.

If a diversion officer deems an offence and offender suitable for diversion then the officer draws up a “diversion agreement”. Among other things the diversion agreement must include (Policy at 18):

• the offender’s acceptance of responsibility;
• the agreed diversion conditions;
• a recognition that if the diversion conditions are completed then the diversion officer will withdraw the charge.

One of the possible diversion conditions is payment of money (either to the victim directly as compensation, or as a donation to a relevant charitable organisation). Diversion conditions are selected by the diversion officer.  That is, they are presented by the prosecuting organisation as the conditions that, if fulfilled, will result in a prosecution being withdrawn.  A defendant signs the written diversion agreement if they agree with it and then fulfils the conditions.  In the 2016/2017 financial year, 4,589 defendants were granted diversion (Police Annual Report 2016/2017, at 60).  The benefits of diversion include “the avoidance of stigmatising processes such as prosecution and formal court orders [and] an expedient and low level response” (N Lynch Youth Justice In New Zealand (2^nd ed, Thomson Reuters, Wellington, 2016) at [5.8] in the context of diversion for youth but applicable to adult diversion).

Not every diversion arrangement will involve the payment of reparation. For example, the offence may not have an identifiable victim to whom money could be paid.  However, given that reparation is a primary purpose of diversion, it is reasonable to think that many diversion agreements will have as a condition the payment of money.  Osborne raises questions regarding the legality of those diversion agreements that have the payment of money as a condition.

Application of Osborne

Diversion involving payment would appear to be directly at odds with the principles underpinning the majority judgment in Osborne. Diversion agreements are just that: agreements.  The parties have bargained for the withdrawal of a prosecution.  On the Supreme Court’s reasoning, the presence of a payment condition makes that agreement unlawful.

In Hayes v Logan [2005] NZAR 150 (HC) Miller J characterised diversion agreements that involve the payment of money as agreements bargained for in order to bring about the end of a prosecution. While diversion agreements that do not involve money may be seen as “indulgences” from Police (at [30]):

[30] … the scheme also envisages that commitments may be made on both sides. The offender may make reparation or undertake community service on the strength of a police promise to take steps to have the information withdrawn. The scheme emphasises restorative justice which involves the victim in the decision to offer diversion. The element of bargain is even stronger when the offender agrees to pay reparation to the victim, as in this case.

[31] Mr Powell resisted the description of diversion as an agreement. But in The Wealth of Nations Adam Smith said (at page 13) that man possesses an innate “propensity to barter, truck and exchange one thing for another”. I conclude that diversion in this case is aptly described as an agreement, in that the elements of a simple bargain were clearly present. Mr Hayes agreed to pay $2,000 to [the complainant], and on payment and the giving of an official warning police agreed to withdraw all charges against him in relation to the incident.

Such a conclusion is reinforced by the terms of the Policy itself. The Policy records that “All reparation must be paid before the prosecution agree to withdraw a charge. If this is not done … then prosecution against the offender will be continued.” (Policy at 20).  The fact that a payment condition is non-negotiable in this way emphasises the centrality of the payment condition to the withdrawal of the charge.

Diversion agreements take into account a range of other factors. These include victims’ views, the seriousness of the charge, and the need for reparation.  They may also include other non-negotiable conditions such as an apology to a complainant.  Under the Court of Appeal’s approach these factors had the potential to contextualise (and perhaps salvage) a payment of money as part of a wider, principled agreement.  However, the Supreme Court majority will seemingly not look past a payment condition at least where it is a central or dominant feature.  The presence of a payment condition in exchange for withdrawal of a prosecution would make a diversion agreement unlawful.  Even the Court of Appeal might struggle with the expressly conditional nature of a diversion payment.  It is difficult to characterise the requirement for payment as a “conditional reparation undertaking” rather than the price of withdrawal of a charge.

Distinguishing diversion agreements from Osborne?

One possible point of distinction is that a diversion agreement requires a person to admit responsibility (if not guilt) for the conduct with which they are charged. In this way, a diversion agreement could be seen not as a payment of money in exchange for escaping a charge, but rather as a legitimate, non-judicial means of holding someone to account in a meaningful way.  Put another way, if a diversion agreement is an end in itself, rather than a means to end, the proceedings then the inclusion of a payment may not be a hallmark of stifling prosecution.

However, s 148 of the Criminal Procedure Act 2011 requires a court to dismiss a charge when informed that a defendant has successfully completed a programme of diversion. The dismissal is made under s 147 of the Act, which is deemed an acquittal (s 147(6)).  If a completed diversion agreement necessarily results in an acquittal then what the parties bargain for assumes even greater importance.  Payment does not result in a withdrawal of charges.  Payment buys an acquittal.  That is more serious than in Osborne.

Nor is s 148 a Parliamentary lifering thrown to diversion agreements. Section 148 is silent on the permissible content of diversion agreements.  Osborne still guides what may be included lawfully in those agreements.

Furthermore, although diversion is restricted to low level criminal offences, this does not change the fundamental character of what the Supreme Court would say is being bargained for. Obviously, more people may be able to afford $500 reparation rather than $3.41 million.  In that sense, the prospect of payment for diversion is less inequitable than in Osborne.  However, the focus is on whether justice has been purchased, not the price tag.

Finally, Osborne cannot be distinguished on the basis that it is the Police that propose the diversion agreement. Indeed, Osborne implicitly considers that this would be worse as it is the public body actively suggesting that a prosecution would be withdrawn in exchange for a payment (see discussion of this point in Osborne SC at [93]).

Conclusion

Osborne raises real questions over the legality of diversion agreements that involve the payment of money. Given that one of the two key purposes of diversion is reparation, the judgment appears to strike at the heart of the popular scheme as it is currently conceived.  The Supreme Court’s decision would appear to seriously challenge any diversion agreement that includes the payment of money.

Reflection is called for. If diversion fails the test in Osborne but is a principled, beneficial, and well-regarded programme, then the issue may lie not with diversion but with the absolutist quality of the Supreme Court’s majority decision.  Ellen France J’s minority decision (or possibly the Court of Appeal decision) may, in time, be vindicated as the basis by which the lawfulness of these types of agreements should be assessed.