The Exact Point Where Our Democracy Fails

When a judge or politician is able to unilaterally exercise discretion and supremacy to affect the legal and practical interests of someone who has entrusted them with their care – then without laws to hold those in power to account, it provides the person in authority a wide-ranging ability to act corruptly or negligently without any consequence for breaching their fiduciary obligations including their duty of loyalty and oath of public office.

Abuse of Power

Most people don’t understand power. They think the system runs on honesty and that if any wrong were being committed then reports would be written and those doing the wrong would be held to scrutiny and their wrongs corrected. A former policemen best explained the system of “cover-ups and promotion”- saying the two work together. He said in Police College you would learn all the good things- “about justice, honesty, doing the right thing”. Then after a few years in the job you make a serious mistake and it gets covered up. Just as others around you cover up for you, it’s expected you do the same. And that by participating in the cover-up actually gets you in the line for promotion because others know you can be relied on. If you don’t play that game your career is over and you will be ostracised and there are thousands upon thousands of whistle blower stories that have come to light that prove that. That same mentality operates throughout government. People who become Ombudsmen’s, Police Commissioners, Judges and Barristers, Commissioners of Inquiry, Cabinet Ministers, Department Heads, are all subject to that same unspoken rule and pretending the systems of government work with perfection even if by feeding the public lies. They operate this scam without any permission from the public who have conferred fiduciary power to their leaders on the basis they will act with honesty in the management of government and it’s that type of dishonesty that gave rise to the Trump backlash.Without fiduciary legislation all activism is actually futile because leaders aren’t accountable. 

It's not a huge debate it's simply a question of accountability isn’t it? Either politicians are prepared, as trustees, to account for that management, or, they are telling the public they have no intention to be accountable apart from elections which doesn’t deal with any actual breaches of that duty. The interesting thing about the law is that it actually supports liability because power dependent relationships require controls.

The Former High Court chief justice Sir Gerard Brennan explained:

"It has long been an established legal principle that a Member of Parliament holds ‘a fiduciary relation towards the public’ and ‘undertakes and has imposed upon him a public duty and a public trust’. The duties of a public trustee are not identical with the duties of a private trustee but there is an analogous limitation imposed on the conduct of the trustee in both categories. The limitation demands that all decisions and exercises of power be taken in the interests of the beneficiaries and that duty cannot be subordinated to, or qualified by, the interests of the trustee.”

Justice and Electoral Select Committee

New Zealand House of Representatives

This is a draft list of questions I have put to New Zealand politicians and justice officials and to date have never had a reply from any in power. Just 3 of any of these questions would prove major corruption which is why there has been silence. That is how corruption occurs; they refuse to answer the questions put to them, we see that every time politicians are questioned.

THE INQUIRY INTO THE MATAKANA ISLAND LITIGATION

“That the House of Representatives inquire into, with a view to overturning, the Privy Council’s decision in Arklow Investments Limited v MacLean [2000] 2 NZLR 1, and provide suitable remedies to the plaintiff.”

Background

Mr Wingate was the main plaintiff in Arklow v Maclean. He has applied to the New Zealand House of Representatives Justice and Electoral Select Committee to investigate a claimed miscarriage of justice.

In order for that to be determined these questions will need to be addressed:

A) The Correctness of the Written Judgements

1. Did the Court of Appeal and Privy Council get any facts wrong?
2. Did the Court of Appeal and Privy Council get any law wrong?

B) Perverting the Course of Justice

1. Did the defendants misuse the discovery process by concealing documents?
2. Did the defendant’s lawyers pervert the course of justice by claiming damaging documents had legal privilege?
3. Did barrister John Eichelbaum have a business partnership with Far Financial?
4. Did John Eichelbaum mislead the Court of Appeal in 1998 with false submissions?
5. Did lawyer Jock Fanselow attempt to pervert the course of justice by holding in trust Far Financial directors personal assets?
6. Did the Court of Appeal and Privy Council engineer false judgements in order to ensure the Matakana Island land remained with Maori defendants?
7. In 1994 in lifting Mr Wingate’s caveats protecting his interests in Matakana Island did Justice Grieg pervert the course of justice?
8. The NZ Herald investigation reported Carrus Corporation paying Tauranga MP Simon Bridges $20,000 to help with his election. Simon Bridges has refused to discuss, investigate anything in relation to my Matakana Island complaints. Carrus are trying to develop Matakana. What rules deal with this type of conflict of interest?
9. On a separate matter but on a similar vein of conflicts and perverting the course of justice, the Lombard prosecution as we know ended in a flop despite clear evidence of guilt that the directors misled shareholders. Former MP Deborah Coddington wrote to me telling me her husband who was prosecuting that case was under pressure from outside influences. In NZ, if you are prosecuting a case against a group of defendants on criminal charges and you are approached to "go hard , go soft/ back down", is that approach illegal and is that not attempting to pervert the course of justice?

C) Special Maori Policy

1. Did the Resource Management Act section requiring Arklow to consult with local iwi as directed by the Tauranga / Western Bay of Plenty mayors expose Arklow to extortion and vulnerability?
2. Has the judiciary been operating a special “Assist Maori” policy?
3. Was the Crown blinded by the Maori claim the Matakana Island land was sacred without doing any serious inquiries?
4. Did the Minister of Land and Minister of Finance knowingly assist the Maori defendants at Arklow’s expense?
5. Did the Maori defendants use threats and violence to obtain their contracts from ITT Rayonier, Ernslaw One and Far Financial in 1993?
6. Did the Maori defendants interfere with Mr Wingate’s relationship with timber buyer Kanematsu Japan by threatening them with “Maori problems”?
7. Did the defendants use the millions of dollars they had defrauded at Arklow/Wingate’s expense then use that to pay for lawyers to defend their fraud?
8. Did Sonny Tawhiao’s complaints about iwi leadership corruption offer a problem to iwi leadership who were also the personal shareholders of Te Kotukutuku Corporation?
9. Did the Tauranga police fail to adequately investigate Waitangi manager (WAI 215) Sonny Tawhiao’s death?
10. Did the tribal leadership of Ngai Te Rangi breach their fiduciary duty by directing tribal assets into their own personal names? (Theft by a person in special relationship)
11. Did the Maori group submit to Court the Matakana Island land was going to be jointly owned on a 50/50 basis with a charitable entity known as Matakana Island Trust and was it not correct that the trustees then transferred that benefit into their own names?
12. Did the tribal leadership of Ngai Te Rangi, namely its Chairman Howard Palmer, accountant Graeme Ingham, Tauranga Moana Trust Board Chairman Enoka Ngatai, iwi Resource Management Act manager Don Shaw, Matakana Island Trust Chairman John Neill provide the High Court affidavits claiming the Matakana Island was sacred and subject to a Waitangi claim but perverted the course of justice by failing to tell the court they were personally shareholders set to gain real estate worth more than $100m should the court assist them gain ownership at Arklow’s expense?
13. Despite the claims which the Crown supported that the Matakana island land was sacred; did the Maori group involved, namely Te Kotukutuku Corporation, sell that land to developers in 2007 resulting in none of the $100m plus going to Ngai Te Rangi iwi or charity Matakana Island Trust, but instead going into the pockets of the Maori leadership, their accountant and lawyers who misled the court?
14. Did Arklow’s confidential valuations by forestry consultant John Cawston for the Kanematsu /Arklow deal which was provided in confidence to stockbroker Neil Craig in August 1992 get used by Neil Craig in putting a bid to the receivers on 30 September 1992? When that bid failed did Neil Craig then provide those valuations to Te Kotukutuku and forestry consultant Paul Robinson 4 December 1992? Did iwi accountant Graeme Ingham and iwi RMA manager Don Shaw then use that information to threaten Kanematsu on 7 December 1992?

D) Inside Connections

1. Did Justice Henry predetermine his Privy Council decision prior to trial?
2. Was the author of the Privy Council judgement Justice Henry in a business relationship with Alan Galbraith QC defence counsel for the defendants?
3. Did the Brendan Mulholland the Commissioner of Crown Lands misuse his office to defeat Arklow’s rights?
4. Did New Zealand police create a "criminal conviction recording" after Arklow Wingate’s High Court win on the national online database against Christopher Wingate that was completely false?
5. Was a senior tax officer who issued a false tax payable demand for $1.4m against Christopher Wingate, a former lawyer for defendants Far Financial?
6. After the Privy Council win did Far Financial set up Lombard Finance with Michael Reeves and appoints former Attorney General Sir Douglas Graham and Minister of Justice Bill Jeffries to the board of directors?
7. Was Far Financial business partner and legal counsel John Eichelbaum partners with former Attorney-General and Minister of Justice and Prime Minister Sir Geoffrey Palmer and what was his relationship with the judges of the Court of Appeal?
8. Did the defendants know in advance of the Court Appeal decision they had won from an inside source?
9. Did David Baragwanath QC mislead the High Court at the 1994 Justice Grieg hearing?
10. Did Arklow/Wingate’s barrister Gary Judd fail to protect Arklow’s legal rights at the 1994 Justice Grieg hearing?
11. Was Mr Wingate’s barrister Gary Judd QC in a business relationship with David Baragwanath QC? (Mr Baragwanath acted for the Maori defendants 1993-1994.)
12. Did police use a search warrant to uplift confidential files from Mr Wingate’s residence and then invited the defendant’s lawyer Ray Annan to take copies of those files which he did on that very day?
13. Was Justice Baragwanath’s daughter Natalie present at a meeting held by a businessman whose grandfather was involved with the Maori defendants Te Kotukutuku in March 2000 in which Wingate was offered $18,000 a month in exchange for remaining silent and to stop any complaints about the Matakana court process?
14. When those payments stopped in August 2000 immediately after Wingate filed a complaint to the United Nation’s Commission on Human Rights, did the defendants within 48hrs then file for costs against Wingate in the High Court?
15. Were the actions by Tauranga MP Simon Bridges corrupt for ignoring Wingate’s complaints as outlined above given his loyalty has been compromised by accepting substantial donations to boost his election campaign fund from Carrus Corporation ‘s Paul Adams who are wanting to develop Matakana Island.

E) Perjury

1. Did any of the defendants perjure their evidence?
2. Did other TKC Corporation witnesses perjure their evidence and pervert the course of justice?
3. Did Ernslaw One lawyer and company secretary Jack Porus perjure his evidence?
4. Did ITT CEO Charles Margiotta perjure his evidence?
5. Did Don Shaw perjure his evidence?
6. Did Far Financial directors perjure their evidence including backdating diary entries?
7. Did Far Financial steal confidential information from Arklow Investments?

F) Fiduciary Law

1. Did Far Financial owe Arklow a fiduciary duty?
2. Was Far Financial broke when Arklow approached it to borrow money therefore saw the Arklow business plans as opportunity to get rich by stealing the Arklow deal?
3. Did Far Financial clearly state in a letter dated 1 September 1992 to CML/Joseph Banks that Far Financial was purchasing for themselves the Matakana Island land, selling off the 1-16 year forest and the 17 to 34 year forest therefore were actively copying the Arklow deal? Then did the Court of Appeal majority claim that at no time did Far Financial copy the Arklow deal?
4. Was the Court of Appeal wrong when they stated: “At no stage was Arklow vulnerable to the action of Far Financial” Despite the fact Far Financial were broke and now had the confidential business blueprint plans of Arklow that if implemented had the potential to earn a minimum of $3m right through to the Arklow aim of securing the 10,000 acres of land which according to reports by George E.Lipp Inc, concept analysts and financial consultants of Singapore together with international architects Klages Carter Vail and Partners of California and NZ engineers Duffill Watts and King - calculated Arklow’s turnover of $17.82 billion, with development costs of $6.40 billion, operating costs of $7.99 billion to produce a net cash flow of $3.43 billion.

G) Is Professor Flannigan correct with this assessment of the Privy Council decision?

“One notable [and flawed] exception is the Privy Council decision in Arklow Investments Ltd v MacLean.'92

Although Justice Henry cited Lord Millett's remarks, he added some curious propositions of his own. He described the duty of loyalty as a "concept [that] encaptures a situation where one person is in a relationship with another which gives rise to a legitimate expectation, which equity will recognize, that the fiduciary will not utilize his or her position in such a way which is adverse to the interests of the principal".'93

He offered no authority for this "legitimate expectation" test, nor did he employ the idea in his subsequent analysis. The more curious proposition, however, was his apparent requirement for mutuality: "Put shortly, there was no mutuality giving rise to the undertaking or imposition of a duty of loyalty."'194 The suggestion seems to be that some sort of relationship above and beyond the receipt of confidential information was required for fiduciary responsibility. The acceptance of confidential information, however, is a sufficient basis for fiduciary accountability. Recipients have a limited access.

It is not necessary that negotiating parties ultimately agree that one will act on behalf of the other in the course of any proposed use of the information. In this case, the negotiations in which the information was disclosed in fact failed to produce an agreement. The recipient, however, did not subsequently use the information (no benefit). Accordingly, there was fiduciary accountability, but no fiduciary breach. In conventional terms, it was straightforward. A "mutuality" requirement only truncates and misdirects the analysis. Another observation may be made. The issue in Arklow was whether the defendants had (1) breached a fiduciary obligation, or (2) misused confidential information. The Court stated that it was not necessary to consider "[w]hether or not the obligation not to misuse confidential information is properly classed as a fiduciary duty". 95

The Court went on, however, to insist that: "Characterising the duty to respect confidential information as fiduciary does not create particular duties of loyalty, which are imposed as a result of the nature of the particular relationship and the circumstances giving rise to it. It is not the label which defines the duty."1'96

The point appears to be that asserting fiduciary character for the duty to respect confidences does not by itself define or establish fiduciary content. But that would be incorrect. A proper finding of fiduciary status or accountability (limited access) attracts a singular default duty to forgo self-interest. That duty is associated with a set of generic rules that have individual application as the circumstances dictate.

Those rules, however, are only derivative manifestations of the singular proscription against self-regard.

In cases of breach of confidence, that proscription produces the "rule" that fiduciaries must not exploit confidential information. Accordingly, once the label is properly attached (accountability imposed), the associated proscription does automatically define the default duty.”

Robert Flannigan, “The Boundaries of Fiduciary Accountability” (2004) New Zealand Law Review, 215

I) Media

1. Is it correct that New Zealand media has never published correct information about the Matakana Island litigation?

Comments

"We need to fight against organised crimes of fraud and corruption in the New Zealand Government. The problem is that litigants are isolated and likely vulnerable in the Court where secrecy is strictly observed, further disempowering those who are already at disadvantage. I must wonder why there is such a high level of regulatory failure in the justice system. What we are facing is a systemic corruption of grand scale, enabling organised crimes, using the justice system for fraud, with impunity, due to the lack of effective monitoring and accountability in the Judiciary and legal profession. Apparently, no politician nor journalist can challenge the entrenched system of corruption. This matter requires international pressure; no one can go against the Government when organised crimes of fraud are sponsored and protected by the Government.”                            

New Zealand / Japanese, Barrister / Scientist, Tatsuhiko Koyama - December 2016  

 “There is not much point in discussing the mechanism and detail unless there is agreement on the basic core issue which, in a nutshell, is that the long run tendency to protect politicos and the bureaucratic apparatus of state from any and all accountability with creeping laws conferring assorted immunities and privileges should be balanced out, if not actually pared back with a statutory regime which codifies various fiduciary obligations properly associated with civil servants and creates a civil cause of action for their breach. The question Christopher was posing is not a trick question Mr Tabuleau and the broad underlying policy issue is not one which requires a much debate. Either one supports the now dominant notion that all civil servants and the government departments which employ them should be entirely unaccountable for malfeasance, or one supports the notion that, as a matter of principle, they must be accountable to a legal process based on a standard no less onerous than your average fund manager or investment adviser is expect to meet. The absurd claim that civil accountability would equate with imposing a heavy financial burden on tax payers simply does not stand up to scrutiny, let alone the tacit underlying policy which dictates that, instead of deterring malfeasance through accountability and compensating victims for certain kinds of clear pecuniary losses flowing from such malfeasance, the burden of those losses should be shifted from the state - which can of course buy insurance - to those individuals who are randomly victimized by official malfeasance. That is to say, quite apart from the clear injustice of this existing position, it actually encourages malfeasance, inefficiency and, in the long run, massive losses both to the public purse and t those victimised by official malfeasance. In other words, Mr. Tabuleau. what Christopher was asking is not whether you agree with everything he says and all the minutiae of a proposed, ground breaking legislative initiative which remains to be settled, but rather whether you support , as a matter of principle, the broad notion that civil servants and their employers should be accountable to their constituents for provable instances, not of mere negligence, but rather official malfeasance which involves a violation of the position of public trust conferred on politicians and/or civil servants by the public? How about a simple yes or no answer? No one is going to misrepresent your answer or claim that you somehow speak for the New Zealand First Party as a whole. “

Barry Grossman- retired corporate lawyer- Freehills Sydney- debating with NZ MP

"Thanks for sending this to me; it makes disturbing reading"

Professor Peter Spiller -BA LLB PhD Natal LLM MPhil Camb PhD Cant PGCTT Waikato Dip RS Dip SS (CIANZ) now a judge

“Chris, I have read your submission from cover to cover and I agree with you completely. You have formulated a cohesive and articulate argument and backed it up. I cannot believe the government has not done something about it, it’s appalling.” 

Sir Peter Tapsell - Former Speaker KNZM MBE FRCS FRCSEd- an orthopaedic surgeon before entering politics

 

Latimer House Principles Questioned

‘Latimer House Principles’ are the rules for Commonwealth membership countries are bound by yet all refuse to abide by them.

(b) Judicial Accountability 

• Judges are accountable to the Constitution and to the law which they must apply honestly, independently and with integrity.
• VII) Accountability Mechanisms Parliaments and governments should maintain high standards of accountability, transparency and responsibility in the conduct of all public business. Parliamentary procedures should provide adequate mechanisms to enforce the accountability of the executive to Parliament.
• Executive Accountability to Parliament
• Judicial AccountabilityIn addition to providing proper procedures for the removal of judges on grounds of incapacity or misbehaviour that are required to support the principle of independence of the judiciary, any disciplinary procedures should be fairly and objectively administered. Disciplinary proceedings which might lead to the removal of a judicial officer should include appropriate safeguards to ensure fairness.
• Judges are accountable to the Constitution and to the law which they must apply honestly, independently and with integrity. The principles of judicial accountability and independence underpin public confidence in the judicial system and the importance of the judiciary as one of the three pillars upon which a responsible government relies.
• VI) Ethical Governance
• Ministers, Members of Parliament, judicial officers and public office holders in each jurisdiction should respectively develop, adopt and periodically review appropriate guidelines for ethical conduct. These should address the issue of conflict of interest, whether actual or perceived, with a view to enhancing transparency, accountability and public confidence.

Separation of Power and Basic Human Rights in a Democracy

If a judge breaks rule (b) of the Latimer House Principles, then it’s only logical that the separation of powers doctrine must be suspended and parliament have the ability to review the judicial action.

The Latimer Principles was drafted by the Commonwealth Lawyers Association, Commonwealth Law Ministers, Legal Education Association, Magistrates and Judges Association. The legal industry prepared a critical part of our democratic structure and passed ready to sign to political leaders. It has allowed the law industry to separate their cash flow monopoly industry from review by any outside controlling power in government.

It's worth noting the courts have judicial review over the actions by crown ministers and agencies, yet there is no mention of parliament having the ability of reviewing the judiciary for wrongdoing.

I have long suggested the basic problem in dealing with ongoing Human Rights and government corruption violations, is the lack of understanding of fiduciary control. International equity expert, now Australian Federal Court judge Professor Paul Finn has underlined, “the most fundamental fiduciary relationship in our society is manifestly that which exists between the community (the people) and the state, its agencies and [[officials].”

In equity a politician's fiduciary obligations not only comprise duties of good faith and loyalty, but also include duties of skill and competence in managing a country and its people.

Government is a trust structure created by people to manage the needs of society and politicians are purely employees of that trust. The relationship between government and the governed is clearly a fiduciary one. Yet rules such as Crown and Judicial Immunity which I have been targeting since 1999, are the very tools of oppression that are preventing those being abused from taking action against the people controlling government.

Originating from within the Courts of Equity, the fiduciary concept was designed to prevent those holding positions of power from abusing their authority. Yet judges have been suffocating fiduciary law because by giving it true life would paint them into the corner of accountability and transparency.

I have suggested that anyone accepting any judicial, political or government control over the interests of people requires moral obligations of the highest responsibility and trust with their conduct judged by the most exacting fiduciary standards.

The fiduciary relationship arises from the government’s ability to control people with the exercise of that power and so in effect, if anyone in government blocks an applicant’s rights to an inquiry alleging corruption, then they must be stood aside because they are burdened with the fiduciary duty to protect the applicant’s rights. Perhaps of more importance, by blocking inquiry they benefit from the exercise of their own discretion to extinguish lawful rights that exposes their dishonesty.

For a corrupt government structure to survive those in power knows they must never allow people access to true democracy. Aristotle the father of democracy suggested and later adopted by James Madison that no nation could ever have true democracy because the majority who are poor and often starving would make laws to take the wealth of the rich for themselves. Therefore democracies needed to appear honest, fair and reasonable or face slaughtered by an angry mass.

Since Aristotle and Madison that stability has controlled by a stick and carrot approach. The stick with its strict rules supported by armies and police ensures orders are complied with. Then the carrot people have has been finance, security, welfare, government jobs, affordable housing, health services and occasionally but pitifully, better labour conditions and wages.

But the most important tool apart from immunity has been to control the narrative of what the people hear to ensure they don’t get any information that will anger and encourage people to assemble on mass to protest the actions of their government which is why WikiLeaks has been such a critical target.

From 1850’s until then end of the 1960’s people demanded various “rights” loud enough to shake the true masters of wealth to redesign a variety of laws to achieve two things- a fooled public and more wealth for the top 1% and more power to the politicians.

The repealing in 1998 of the Glass Steagall Act was a critical tool to keep the masses enslaved in a policy of debt capture that from 2001 onwards has seen banks all over the western world offered an almost endless access to trillions to hand around to the masses even when they couldn’t afford it.

The purpose was to make the entire societies feel as if they are getting some of the spoils of capitalism by creating millionaires by just the increasing value of their family home giving them the false confidence to spend more freely thinking their property values could support such a lifestyle.

The laws this plan targeted related to immunity, justice, intelligence, official secrets, social welfare, health, finance, media, free-trade and labour conditions.

Since the early laws of the 19th century when in most countries laws were openly drafted by the wealthy for their exclusive the game of regulatory capture has become more sophisticated and well hidden by a workforce of lobbyists, lawyers, judges, politicians and media.

It’s the immunity and control of the narrative that has allowed corruption like what I have raised in this paper to flourish. However with the rise of social media and voter frustration democracy must be modernised otherwise tyranny, fascism and war will replace something that has the potential to work. 

We've tried the "honour" system, it doesn't work. We need far reaching innovative fiduciary legislation that allows people to hold those judges and politicians fully accountable. After all, if the fiduciaries fail, society fails.  

Christopher Wingate

IPA Founder