Scoop Election 08: edited by Gordon Campbell

On legal aid, and the definitive account of the Hobbit saga

April 13th, 2011

legal aidFor a party that made the Nanny State such a big part of its 2008 election campaign, today’s cutbacks to legal aid are merely National’s latest extension of state power.

So far, the Key government has reduced the right to a jury trial, extended the powers of search and surveillance by state agencies, restricted the rights against self incrimination, sought the ability to conduct trials in the absence of the accused, and ended the independence of the agency dispensing legal aid – and that’s even before we got to today’s changes.

Now, Justice Minister Simon Power has confirmed the earlier fears expressed about the vulnerability of the legal aid process to political meddling by
(a) tightening the eligibility to legal aid funding
(b) virtually removing the ability of the accused in legal aid cases to choose their own lawyer and
(c) further fostering the growth of a state monolith called the Public Defence Service that will, over time, eventually conduct the defence of some 50% of cases passing through our justice system.

As one legal practitioner told RNZ this morning, cost cutting has already seen young, relatively inexperienced lawyers being hired by the legal aid agency, a trend likely to increase as the PDS expands its workload.

The common denominator to these changes is that they are all occurring on one side of the scales of justice – they increase the powers of the state, and/or reduce the rights of the accused. The justification for this latest erosion of legal aid is the prospect of a cost blowout of $400 million over the next five years. This is exactly what one would expect when more police are being employed in a tough-on-crime social environment of major income inequality. In 2009, Chief Justice Sian Elias gave a courageous and eloquent speech that warned about the social and economic un-affordability of the punitive forms of justice being pursued in New Zealand, which already has the second highest rate of imprisonment in the developed world.

In response, Justiuce Minisater Simon Power expressed shock that she would even raise the matter for debate. The skewing of the justice system that has occurred under his tenure as Minister is enough to make one yearn for the good old days, when the expression of state power was more about light bulbs and shower fittings.

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The art of plundering the shire

A few months ago, a Russian writer made freely available online an English translation of his rewrite of The Lord of the Rings, as told from the vantage point of the losers in Mordor. In this account, Mordor was actually a realm of human reason and secular science, until it came under attack by forces who had a vested interest in perpetuating a static theocracy run by elves, wizards and cynical opportunists like Aragorn.

History is, in other words, usually written by the winners. Last year, the CTU and unions were vilified as virtual agents of Mordor during during the Hobbit saga. That’s why it is so valuable to finally have CTU president Helen Kelly’s meticulously detailed account of how that conflict developed and got resolved, such that Warners, Sir Peter Jackson and the government got the outcome they appear to have wanted all along. In future years, this will become the definitive version of what really happened – and, as the OIA papers released late last year also indicated, the public were played like a violin throughout, when it came to the union dispute.

As Scoop consistently argued, the dispute was always about getting Warners more money, and the union dispute was being used as a diversion to that end. Simultaneously, the climate of anti-union hysteria did no harm to the ability of the government to get its rewrite of some key elements in our industrial legislation framework through Parliament.

Certainly, every person who participated in the infamous march in Wellington on October 22 should read Kelly’s article. Far from stoutly defending jobs and job security within their industry, the marchers were being used as extras in a fictional drama. It is now a matter of historical record that the people who cynically organised the march were well aware that a resolution of the conflict had been reached between the parties, and the marchers were being deliberately misled about the state of the dispute. The reason for perpetuating the illusion of ongoing conflict? Essentially, it seems to have been to provide a smokescreen (a) for giving Warners more money, and (b) for stripping away worker rights, to the benefit of local and foreign producers.

Without the bogey of the demonic union threat, this process would have been exposed for what it was – a giveaway to a foreign multinational and a cave-in to employer muscle. One major outcome of the Hobbit saga for instance, was the overturning of the 2005 Bryson decision that – as Kelly explains – had not been a problem for other major foreign film productions such as Avatar, and which had never been part of the core dispute over the rights to negotiate remuneration and working conditions.

As Kelly points out, there were double standards in play all along. Given the penetration of the New Zealand economy by Australian businesses and banks, it seems incredible that trans-Tasman union co-operation – which had been democratically endorsed by the membership – could be successfully demonized by Jackson last year. The canard that workers in the film industry could not negotiate in any collective fashion under New Zealand law does not bear scrutiny. And, as Kelly points out, Attorney General Chris Finlayson still refuses to release the Crown Law opinion to the contrary and thus expose the government’s argument to scrutiny – despite the tactical uses made of his partisan legal involvement at the height of the dispute.

At critical points during the dispute, the CTU seem to have been snookered by their decision to respect their commitments to good faith bargaining. At the same time, the players on the other side of the table appear to have been agreeing one thing in private negotiations, and asserting almost the opposite in public. At least now we have the chapter and verse on how the union side of the dispute was misled and outmaneouvred.

In their defence, it has to be acknowledged that the CTU’s opponents always enjoyed the tactical advantage of being able to whip up a froth of anti-union sentiment amongst the film industry work force and the public at large. Ironically, this was happening even as public money was being given away unnecessarily, and as some of the remnants of worker rights in one of the least regulated parts of the New Zealand economy were being scrapped.

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Scoop update(s):
South Pacific Pictures’ John Barnett Responds to Helen Kelly.
SPADA Statement in Relation to Re-negotiation of Pink Book

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