Freeman v Associate Minister of Justice
[2020] NZHC 1070
•21 May 2020
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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2019-485-284
[2020] NZHC 1070
UNDER The Judicial Review Procedure Act 2016 IN THE MATTER
of a decision to make a recommendation under s 5 of the Justices of the Peace Act 1957
BETWEEN
GORDON LESLIE FREEMAN
Applicant
AND
THE ASSOCIATE MINISTER OF JUSTICE
Respondent
Hearing: 25 November 2019 Appearances:
S J Shamy for Appellant D Harris for Respondent
Judgment:
21 May 2020
JUDGMENT OF CLARK J
Introduction
[1] Mr Freeman had been a Justice of the Peace for over two decades when the Associate Minister of Justice decided that he should be removed from office for misconduct arising from Mr Freeman’s use of controversial “forfeiture clauses” in employment agreements with his employees.
[2] In this application for judicial review Mr Freeman challenges the Associate Minister’s decision to remove him from office. The proceeding is apparently the first of its kind under the Justices of the Peace Act 1957 (the Act).
FREEMAN v THE ASSOCIATE MINISTER OF JUSTICE [2020] NZHC 1070 [21 May 2020]
[3]Mr Freeman says:
(a)his use of a “forfeiture clause” in contracts of employment did not constitute “misconduct” justifying his removal under the Act; and
(b)the Associate Minister breached natural justice by predetermining the question of “misconduct” and the appropriate sanction under the Act. Aligned to this ground of review, although not pleaded, is a contention that the Associate Minister failed to give reasons for his decision.
[4] The arguments themselves tended to focus on the quality of the decision- making process and hence natural justice. These questions, and Mr Freeman’s entitlement to natural justice, have become the principal focus of this judgment.
Background
Proceedings relating to forfeiture clause in Mr Freeman’s employment agreements
[5] Mr Freeman, and companies associated with him, have employed staff for many decades. For some fifteen years prior to 1 April 2016, when an amendment to the Employment Relations Act 2000 came into force, staff were employed under an employment contract that contained the following clause:
12.1 Employment may be terminated by either employer or employee on 6 weeks notice of termination being given in writing. The employer may elect to pay six weeks wages in lieu of notice, and in the event that the employee fails to give the required notice then equivalent wages shall be forfeited and deducted from any final pay including holiday pay.
[6] This clause is referred to in the various proceedings as the “forfeiture clause” or “clause 12.1”. I use the same terminology.
[7] Between 2013 and 2015, in several proceedings involving Mr Freeman (or his companies), the Employment Relations Authority (ERA) held the forfeiture provision
was not enforceable because it was in the nature of a penalty to compel performance.1 In upholding the determination of the ERA in Livingstone v G L Freeman Holdings Ltd,2 the Employment Court explained that because the purpose of cl 12.1 was to compel Ms Livingston to give six weeks’ notice by holding over her the threat of losing wages if she did not comply “… it was a penalty provision which, in equity and good conscience, the Court ought not to allow the plaintiff to enforce”.3
[8] On 1 April 2016, Part 9A of the Employment Relations Act came into force. The object of Part 9A was to provide additional enforcement measures to promote more effective enforcement of employment standards (especially minimum entitlement provisions).4 A labour inspector could apply to the court for a range of orders including banning orders based on persistent breach of employment standards.
[9] When his employees breached the notice obligations in their employment agreements Mr Freeman, relying on cl 12.1, withheld holiday pay. A labour inspector instituted proceedings in the Employment Court against Watershed Bar and Restaurant (Victoria 88) and its director, Mr Freeman, seeking declarations of breach, pecuniary penalties and banning orders for breaching the minimum entitlement provisions.
[10] Shortly before the application was to be heard, counsel filed a joint memorandum stating the parties had agreed certain facts supporting declarations of breach, which declarations they agreed the Court should make, and had reached agreement as to the imposition of banning orders. As a result of the parties’ agreed position a defended hearing was avoided. Judge Corkill concluded it was appropriate to make the orders sought. Nevertheless, he delivered a full judgment.5
1 Livingstone v G L Freeman Holdings Ltd [2013] NZERA Christchurch 900 at [33]; Paengkam v GL Freeman Holdings Ltd [2013] NZERA Christchurch 235 at [29]; McDonald v G L Freeman Holdings Ltd [2015] NZERA Christchurch 52 at [10]; Eva Belley v G L Freeman Holdings Ltd [2015] NZERA Christchurch 119 at [62].
2 Livingstone v G L Freeman Holdings Ltd, above n 1.
3 G L Freeman Holdings Ltd v Livingstone [2015] NZEmpC 120 at [36].
4 Employment Relations Act 2000, s 142A.
5 A Labour Inspector v Victoria 88 Ltd T/A Watershed Bar and Restaurant [2018] NZEmpC at [4] [the 2018 Employment Court decision].
[11] Because the 2018 Employment Court decision was the catalyst for the advice to the Associate Minister, and the apparent basis for his recommendation to remove Mr Freeman from office, it is necessary to refer to some of Judge Corkill’s findings and conclusions.
[12] Judge Corkill said the background circumstances were to be found in the four determinations of the ERA and the decision of the Employment Court (each of which is referenced above at [7]).
[13] In agreeing with the parties that the breaches were serious and that declarations of breach should be made Judge Corkill stated:
[28] The parties agreed that these breaches were serious taking into account that the background of the subject breaches comprised a series of instances involving a number of different employees, that the first and second defendants’ actions were intentional, and that those breaches followed decisions of the Employment Relations Authority, and the Court, involving Mr Freeman.
[14] Paragraph [28] of Judge Corkill’s judgment became a particular focus in the advice stream to the Associate Minister.
[15] The terms of the banning orders on which the parties agreed prevented Victoria 88 and Mr Freeman being involved in the hiring or employment of employees for a period of three years. Judge Corkill observed a banning order should only be made in cases of serious breach of minimum standards and they were justified in that case.6
[16] Turning to pecuniary penalties Judge Corkill considered the process by which counsel had reached their “recommendation” and agreed that, having regard to the serious breaches that occurred, and that no compensation orders were to be made, penalties totalling $20,000 would have to be paid by Mr Freeman since Victoria 88 could not. Judge Corkill was satisfied the penalties would have a “deterrent effect, specific and general”, and that the orders would appropriately express the community’s disapproval of the serious breaches of minimum employment standards in that case.7
6 At [39].
7 At [52].
The Associate Minister of Justice receives advice
[17] Events began with an email on 6 March 2019 from Tony Pugh of the Royal Federation of New Zealand Justices’ Association Inc (the Association) to Jeffrey Orr, Chief Legal Counsel in the Ministry of Justice. Mr Pugh stated the Association had held concerns about Mr Freeman for some time. He referred to “a series of complaints about behaviour” and an Employment Court matter that had “raised questions within the association” [sic]. Mr Pugh referenced a report on Stuff’s website to which he provided a link.
[18] The Association’s further concern was that Mr Freeman had indicated he was seeking a judicial review of processes in relation to the manner in which the Canterbury Association had handled a complaint against him. Mr Pugh provided a timeline of complaints received by the Canterbury Association during 2018 and February to March 2019. From the record before the Court, those complaints formed no part of the advice to the Associate Minister and no part of the reasons for the decision to remove Mr Freeman from office. Therefore, I say no more about them.
[19] Mr Orr has assisted the Court by providing an affidavit. Mr Orr’s evidence is that, on receipt of Mr Pugh’s email, Mr Orr reviewed the article in Stuff and the 2018 Employment Court decision noting in particular Judge Corkill’s para [28] (set out above at [13]). Mr Orr also reviewed the four ERA determinations and the Employment Court decision that comprised the background to the proceeding before Judge Corkill.8
[20] On 8 March 2019, Mr Orr wrote to Mr Freeman. Mr Orr’s opening paragraph referred to the power of removal in s 5 of the Act. He then advised that he had become aware of the 2018 Employment Court decision and, after noting in particular paragraph [28] of that decision, continued:
I consider your admitted breaches of employment laws, which resulted in your banning and the pecuniary penalties imposed, to be misconduct which appears incompatible with the office of Justice of the Peace.
To enable a decision to be made as to whether you should be considered for removal from office I offer you the opportunity to make submissions on that
8 See [7] and [12] above.
issue. Alternatively you may wish to submit a letter of resignation as a Justice of the Peace.
Please provide me with a response by 22 March 2019.
[21] By letter dated 19 March 2019 Mr Freeman replied via his counsel, Mr Shamy. Mr Freeman “strongly dispute[d]” he was guilty of misconduct for two reasons:
(a)The contracts that gave rise to the Employment Court proceedings were drafted by and on the advice of Tim McGinn, an employment specialist in whose opinion the clauses were legal.
(b)The settlement in the Employment Court was based on a risk assessment namely, the cost of proceeding through a defended hearing being likely to exceed the agreed amount of penalty. Mr Shamy wrote: “The term ‘misconduct’ implies some sort of moral culpability or otherwise very bad behaviour, neither of which are present in this case”.
[22] Mr Shamy requested that any cases or precedents relevant to an employment case being the basis of a misconduct finding be “urgently” forwarded to him. A letter from Mr McGinn, also dated 19 March 2019, accompanied Mr Shamy’s letter. Mr McGinn had represented Mr Freeman in the 2018 Employment Court proceeding. In his opinion it was important that the Ministry have a “proper understanding of the context of the judgment [relied upon] before taking such an adverse view of Mr Freeman’s conduct”.
[23] On 21 March 2019, in response to the Ministry’s request, Mr Shamy forwarded the joint memorandum of counsel and joint memorandum for consent orders which Mr McGinn had referenced in his letter.
[24] On 2 April 2019 Mr Orr provided a briefing paper to the Associate Minister of Justice seeking his decision as to whether he wished to recommend Mr Freeman’s removal or disciplinary action against him. As the briefing paper is the focus of discussion under both grounds of review, it is reproduced in the annexure to this judgment.
[25] On 4 April 2019 the Associate Minister confirmed he wished to recommend Mr Freeman’s removal from office. Mr Orr was directed to advise Mr Freeman of the Associate Minister’s intention and to offer a final opportunity to resign.
[26] Mr Orr wrote to Mr Shamy on 5 April 2019 advising of the Associate Minister’s intention and of the Associate Minister’s willingness to allow Mr Freeman a final opportunity to resign. Mr Orr’s letter concluded:
If I have not received such notice by Friday 26 April 2019 Minister Sio will proceed to recommend your client’s removal to the Governor-General. His removal will then be published in the New Zealand Gazette.
[27] On 17 April 2019 Mr Shamy replied to Mr Orr. Mr Shamy made the following main points and requests:
(a)Mr Freeman disputed that his use of the forfeiture clause amounted to misconduct in terms of s 5 of the Act, primarily because he relied on legal advice and the clause was drafted by an employment specialist.
(b)Three additional matters impacted on any assessment of the character of Mr Freeman’s involvement in the Employment Court proceeding. The first was that the new pt 9A of Employment Relations Act came into force on 1 April 2016 and the contract, at the time it was drafted, would not have led to banning orders. The second and third matters related to legal defences “possibly available” to Mr Freeman but which he did not rely on for pragmatic reasons of costs and his retirement as an employer.
(c)By way of additional background Mr Shamy expanded on the advice of the specialist who remained of the view “that the categorisation of the clause at issue as being ‘a penalty’, which brings into play the banning provision of the Act, is wrong at law”.
(d)Mr Shamy made the following requests:
Please advise by return —
(a) whether the Minister is willing to take account of the above further submissions;
(b) whether the Minister is willing to consider further submissions on the issue of “penalty”, particularly in relation to s 5D of the Act; and
(c) if the Minister is not willing to consider further submissions, please advise if the Minister is willing to undertake to withhold proffering any advice to the Governor-General on removal pending Mr Freeman filing an application for judicial review … Mr Freeman undertakes that the application for judicial review would be filed in a timely manner. He is presently overseas, returning in three weeks. The application will be drafted in his absence and filed once he returns;
(d) if not, will the Minister withhold the advice for four weeks to enable an application for injunction to be filed on Mr Freeman’s return to the country.
20 Finally, please provide me with all and any information the Ministry has received in relation to Mr Freeman. I request that this material is provided to me as a matter of urgency. If the Ministry wishes to rely on the timeframe set out in the Privacy Act, please advise.
[28] Mr Orr did not respond to Mr Shamy’s query about whether the Minister was willing to consider further submissions on the issue of penalty. In his evidence Mr Orr explained that he did not respond to Mr Shamy’s request because, on 4 April 2019, the Associate Minister made his decision to recommend Mr Freeman’s removal.
[29] On the morning of 23 April 2019 Mr Orr replied to Mr Shamy’s letter of 17 April. After acknowledging that Mr Freeman considered the Employment Court’s legal analysis to be wrong, Mr Orr continued:
Mr Freeman has been using the same clause (clause 12.1) in his employment agreements since at least 2011. He has been advised by the Employment Relations Authority and the Employment Court twice in 2013, three times in 2015, and once in 2018 that the clause, with the type of staff he employs, is an illegal penalty clause. Nevertheless he continued to use the clause. Mr Freeman is essentially a scofflaw. I understand he disagrees with the Authority’s and the Court’s interpretation of the law. However, as a Justice of the Peace, Mr Freeman is supposed to exhibit an exemplary standard of conduct. The Minister has determined that a person who disobeys lawful authority, repeatedly, is not suitable to be a Justice of the Peace. He reasonably considers repeated violations of the employment laws to be misconduct of the sort that would justify his removal from office as a Justice of the Peace.
I quote from the latest judgment of the Employment Court (paragraph 28): ‘The parties agreed that these breaches were serious, taking into account that the background of the subject breaches comprised a series of instances involving a number of different employees, that [Mr Freeman’s] actions were intentional, and that those breaches followed decisions of the Employment Relations Authority, and the Court, involving Mr Freeman.’
Justices of the Peace are expected to follow and uphold the law as it is, not as they think it should be.
During the week of 29 April 2019, the Minister will be advising the Governor- General to remove Mr Freeman from office as a Justice of the Peace.
As requested, I attach the documentation that drew the Ministry’s attention to Mr Freeman’s conduct. We note that only Mr Freeman’s employment related misconduct formed the basis for the Minister’s decision to remove Mr Freeman from office.
[30] Mr Shamy replied a few minutes later to request that the Associate Minister’s advice to the Governor-General be withheld for four weeks. Ultimately, Mr Orr agreed that no further steps would be taken to remove Mr Freeman pending the outcome of the judicial review application that was to be filed.
Justices of the Peace Act 1957
[31] Justices of the Peace are statutory officers appointed by the Governor-General under s 3 of the Act. There are no statutory criteria for appointment beyond that a person may not be appointed unless “he or she has completed training, approved by the Secretary, in the exercise and performance of the powers and functions of a Justice”.9 Once appointed, a Justice must not exercise or perform any judicial power or function unless training has been completed “in the exercise and performance of judicial powers and functions to the satisfaction of the Chief District Court Judge”.10
[32] A Justice continues in office until retirement, resignation or removal from office.11
9 Justices of the Peace Act 1957, s 3(2).
10 Section 3B.
11 Section 3A. A Justice who fails to attend the District Court on successive occasions may also cease to hold office by operation of s 8 which I discuss no further as it has no bearing on this case.
[33]The functions and powers of Justices are set out in s 4:
4Functions and powers of Justices
The functions and powers of Justices shall be—
(a)to take oaths and declarations under the provisions of the Oaths and Declarations Act 1957 or any other enactment:
(b)to carry out such functions and exercise such powers as are conferred on Justices by the Criminal Procedure Act 2011 or by any other enactment.
[34] A Justice may be removed or suspended from office in the manner, and on the grounds, set out in s 5:
5Removal or suspension of Justice from office
(1)The Governor-General may, on the recommendation of the Minister, by notice in the Gazette, remove a Justice from office, or suspend a Justice from office for a period, stated in the notice, of not more than 65 working days—
(a)for misconduct; or
(b)if the Justice—
(i) is unable to perform his or her functions as a Justice; or
(ii) has neglected or refused to perform his or her functions as a Justice; or
(iii) has, while a Justice, been convicted of an offence punishable by imprisonment; or
(iv) has, while a Justice, been adjudged bankrupt; or
(v) has failed or refused to comply with a requirement under section 5D(1); or
(c)in the case of a removal, if the Justice has purported to exercise or perform a power or function of a Justice, knowing that he or she was suspended from office.
(2)Subsection (1) does not apply to a person who is a Justice by virtue of being a District Court Judge or a Judge of the Maori Land Court.
[35] Mr Freeman was not exercising or performing judicial powers or functions. Consultation with the Chief District Court Judge was therefore not required.12
12 Section 5A.
[36] Of particular relevance to Mr Freeman are the options available to a Minister beyond removal or suspension, and the process to be followed if the Minister decides to recommend one of these “other actions”:
5D Other action in respect of Justices
(1)The Governor-General may, on the recommendation of the Minister, direct the Minister to take in respect of a Justice (other than a person who is a Justice by virtue of being a District Court Judge or a Judge of the Maori Land Court) 1 or more of the following actions:
(a)give the Justice an official written rebuke:
(b)by written notice to the Justice, require the Justice to apologise to a person or people stated in the notice, in writing, for behaviour stated in the notice:
(c)by written notice to the Justice, require the Justice to undertake training (or further training), provided by a provider stated in the notice, in an aspect of the performance of the Justice’s functions as a Justice stated in the notice:
(d)by written notice to the Justice, require the Justice to receive counselling (or further counselling), provided by a provider stated in the notice, of a kind stated in the notice.
(2)The Minister must not recommend the giving of a direction under subsection (1) in respect of a Justice unless the Minister is satisfied that the Justice—
(a)has, since appointment as a Justice, behaved in a way that is inappropriate or undesirable for a Justice (otherwise than in relation to the exercise or performance of judicial powers or functions); or
(b)has performed a function of a Justice while suspended from office; or
(c)has neglected his or her functions as a Justice.
(3)The Minister may take 2 or more of the actions stated in subsection
(1) by means of a single notice.
[37] The s 5D actions that a Minister may be directed to take are “disciplinary”. The Minister must not recommend disciplinary action in relation to a Justice unless the prerequisites in s 5E are satisfied.
5E Justices to be given particulars and opportunity to respond
(1)In this section, disciplinary action, in relation to a Justice, means the giving of a direction under section 5D(1) in respect of the Justice.
(2)The Minister must not recommend disciplinary action against a Justice, unless—
(a)the Minister has earlier reached a preliminary view that grounds may exist for recommending disciplinary action against the Justice; and
(b)the Minister is satisfied that the Secretary has given the Justice written notice—
(i) stating that grounds may exist for recommending disciplinary action; and
(ii) stating the grounds on which the Minister reached his or her preliminary view; and
(iii) stating that the Justice may, within 20 working days of receiving the notice, respond to the Secretary in writing in respect of the matters contained in the notice; and
(c)either—
(i) the Secretary has received from the Justice a written response in respect of the matters contained in the notice, and the Minister has considered the response and any written comments on it from the Secretary; or
(ii) the Minister is satisfied that the Secretary has not, within
20 working days of the Justice receiving the notice, received from the Justice a written response in respect of the matters contained in the notice.
Misconduct
Applicant’s position
[38] Mr Freeman’s position is that his use of the forfeiture clause in employment agreements did not involve dishonesty or any intention to harm in any criminal or “immoral sense”. Mr Shamy submitted that, at its highest, Mr Freeman’s conduct could be regarded as an infringement in a civil matter which could lead to the imposition of a penalty and “consequently, the use of the clause was not an absolute misconduct in the sense of moral turpitude or criminal behaviour”.
[39] Mr Shamy referred to the first letter written on Mr Freeman’s behalf asking the Ministry for relevant cases or precedents on the meaning of “misconduct”. There had been no response. Nor had the Ministry responded to the extract from the Laws of
New Zealand to which Mr Shamy drew the Ministry’s attention. At para 8, “Removal of Justices of the Peace”, the commentary states:13
The most usual grounds for removal are conviction for offences punishable by imprisonment and bankruptcy.
[40] Mr Shamy submitted neither limb was remotely analogous to Mr Freeman’s use of the forfeiture clause in an employment contract. The use of the forfeiture clause “had to be assessed on its own facts and then the issue of penalty decided.”
Respondent’s position
[41] The respondent’s position is that Mr Freeman’s demonstrated disregard for the law is “misconduct” for the purposes of s 5 of the Act.
[42] In comprehensive written submissions on the point Ms Harris confirmed there was no case law under s 5 of the Justices of the Peace Act to assist the interpretation of ‘misconduct’ but assistance might be drawn from the definition of misconduct in Corpus Juris Secundum:14
… an act done wilfully with a wrong intention, and conveys the idea of intentional wrongdoing. The term implies fault beyond the error of judgment; a wrongful intention, and not a mere error of judgment; ... whether a particular course of conduct will be regarded as misconduct is to be determined from the nature of the misconduct and not from its consequences.
[43] Ms Harris referred to two High Court decisions in which this definition had been adopted: Re: A (Barrister and Solicitor of Auckland) and Tan v Accident Rehabilitation and Compensation Insurance Commission.15 In Re: A a partner in a law firm accepted instructions that involved a likely or potential conflict of interest. The New Zealand Law Practitioners Disciplinary Tribunal found the partner guilty of professional misconduct. The Tribunal’s determination was quashed on appeal, the Court finding that a mere lack of judgment is not within the scope of “professional misconduct” under the Law Practitioners Act 1982. Rather, there must be a deliberate
13 Gail Jansen Laws of New Zealand Justices of the Peace (online ed) at [8].
14 Corpus Juris Secundum (Vol 58, 1948) at 818.
15 Re: A (Barrister and Solicitor of Auckland) [2002] NZAR 452 at [50]; Tan v Accident Rehabilitation and Compensation Insurance Commission [1999] NZAR 369 at 376.
departure from accepted standards or serious negligence as would portray indifference to and an abuse of the privileges and responsibilities of a legal practitioner.
[44] Tan concerned a radiologist who had claimed ACC payments for services she did not provide. She unsuccessfully appealed the professional body’s finding of professional misconduct. The radiologist’s conduct was “seriously deficient” conduct and “substantially below” that which is required of a reasonable, prudent, radiologist.
[45] Ms Harris submitted some insight into “misconduct” is also provided by the grounds for removal of judges of the senior courts for misbehaviour or incapacity under s 23 of the Constitution Act 1986. Ms Harris submitted that, at least for the purposes of s 23 of the Constitution Act, there appeared to be a spectrum of misconduct against which allegations of judicial misconduct must be examined.
[46] In the end, Ms Harris submitted the test for misconduct in relation to lawyers appeared to have more affinity with the test for the removal of a Justice of the Peace. In that regard Ms Harris submitted assistance may be drawn from Orlov v New Zealand Lawyers and conveyancers Disciplinary Tribunal in which the High Court discussed the distinction between professional and personal misconduct in the context of the Lawyers and Conveyancers Act 2006.16
Discussion
[47] Following the hearing Ms Harris obliged my request for a copy of the Justice of the Peace Best Practice Manual. The Manual was apparently developed from research conducted in 2007 by the Ministry of Justice and Royal Federation of New Zealand Justices’ Inc, into the customs, processes and practices of Justices of the Peace throughout New Zealand. An amended version of the Manual was published in July 2016. The Manual contains best practice guidelines for Justices recommended by the Federation and approved by the then Associate Minister of Justice.
[48] While the Act is silent on the qualities that make an individual eligible for appointment as a Justice, the Manual is more revealing. I summarise below,
16 Orlov v New Zealand Lawyers and conveyancers Disciplinary Tribunal [2014] NZHC 1987, [2015] 2 NZLR 606 at [106].
commentary from the Manual that I take to have a bearing on the appointment and expectations of a Justice.
(a)A nominee is required to provide in support of her or his nomination, at least two letters from community organisations supporting the nomination.
(b)In the statutory declaration to be completed by the nominee for office, the nominee is asked to declare any convictions, including traffic offences. Importantly, the Criminal Records (Clean Slate) Act 2004 does not apply to nominees.
(c)In the section providing guidance for Members of Parliament who nominate Justices, the Manual states that the office of Justice of the Peace is not an “honour but one involving serious duties and responsibilities. Justices have the important responsibility of assisting to preserve the rule of law”.
(d)Persons nominated must not only have an adequate standard of education but be “well-regarded in their community” and “be respected as a person of good sense and integrity”.
(e)In terms of the commitment expected of a Justice of the Peace, the Manual states:
To retain public confidence in the office Justices of the Peace must maintain the highest standards in their personal affairs and working lives.
(f)Justices of the Peace swear or affirm two oaths before a District Court Judge: the judicial oath and oath of allegiance. Having taken the judicial oath, every Justice of the Peace becomes a ‘judicial officer’ (although only a “very small percentage” actually sit in court).
(g)The confidential report for the Minister of Justice must state not only the nominee’s conviction and bankruptcy status but whether he or she
has any civil matters pending in a court.
(h)“Low level” complaints, complaints not sufficiently serious to justify removal or suspension, or that cannot be appropriately resolved, and more serious complaints such as charging for services, breach of confidence or incompetence will be referred to the Ministry of Justice. A distinction is drawn between complaints against a Justice in relation to ministerial duties and complaints in relation to ‘judicial duties’. A complaint in relation to judicial duties will be addressed to the Chief District Court Judge in the first instance rather than the Ministry of Justice. The Manual states:
If the complaint is considered justified the Minister of Justice may recommend to the Governor-General to direct the Minister to either reprimand, direct the Justice of the Peace to apologise, request the Justice of the Peace undertake further training, or suspend or remove the Justice of the Peace from office.
[49] It may confidently be concluded that the expectation of nominees for appointment to the office of Justice of the Peace is that they will be well regarded in their communities, and their good sense and integrity will be firmly established. Once appointed, Justices will be expected to maintain the highest standards in their personal affairs and working lives and, by so doing, safeguard public confidence in the office of Justice of the Peace. An individual with these attributes will be a fit and proper person to hold office. What, then, constitutes ‘misconduct’ by such a person?
[50] It is not desirable, and may not be possible, to attempt a comprehensive definition of “misconduct” for the purposes of the s 5 Act. At the least, the following factors will be relevant to a consideration of a Justice’s conduct and whether it constitutes misconduct under the Act.
(a)The conduct is to be assessed in the light of the expectations of the office holder.
(b)There is nothing in s 5 to suggest misconduct has other than its ordinary meaning. “Misconduct” is defined in the shorter Oxford
English Dictionary:
misconduct
1Bad management, mismanagement; esp. culpable neglect of duties.
2Improper or wrong behaviour
…
(c)Although the Act makes no distinction between personal and professional misconduct, given the attributes for holding office, it can reasonably be assumed Parliament intended the sanctions for misconduct to apply whether the misconduct was personal or professional. That seems an obvious proposition when one considers that the more frequent bases for removal are bankruptcy and criminal convictions.
[51] Bearing in mind the qualities that a nominee or an incumbent Justice must possess it seems safe to say that, for the purpose of s 5, misconduct will be conduct that renders a nominee ineligible for appointment in the first place, or conduct that makes an incumbent Justice unfit to retain appointment because the conduct complained of raises a serious question as to the Justice’s good sense and integrity and therefore fitness to hold office.
[52] In this case the conduct at issue is the conduct in relation to which Mr Freeman was invited to resign in the first letter to him raising the issue. In his letter of 8 March 2019 Mr Orr considered Mr Freeman’s “… admitted breaches of employment laws, which resulted in [Mr Freeman’s] banning …” and imposition of pecuniary penalties to be “misconduct” appearing to be “incompatible with the office of Justice of the Peace”.17
[53] Ms Harris submitted that if, for any reason, Mr Freeman had not relied on a defence or exercised appeal rights the 2018 Employment Court decision must stand. I accept that submission. I mention also s 142C(2) of the Employment Relations Act 2000 which provides that a declaration of breach against a person is “conclusive evidence in relation to the person” of the matters stated in the declaration.
17 Letter dated 8 March 2019 from Mr Orr to Mr Freeman set out above at [20].
Mr Freeman’s quarrel is not, however, with the 2018 Employment Court decision. His argument is that the Employment Court decision does not constitute a basis for removing him from office.
[54] I think there can be little doubt that, if a person who holds office as a Justice is declared to have committed “serious breaches of minimum employment standards”, on the face of things, the declarations are capable of supporting a finding of misconduct. But the issue is not simply whether Mr Freeman’s “admitted breaches of employment laws” constituted misconduct. The related question is whether Mr Freeman’s admitted breaches of employment laws constituted misconduct justifying his removal. When actions other than removal were available to the Associate Minister, Mr Freeman is entitled to know why the most serious sanction of removal was chosen.
[55] Whether or not a Justice of the Peace is to be removed from office on the grounds of misconduct is a decision for the Minister of Justice, not the courts. The court’s supervisory jurisdiction is invoked when it is invited to assess the lawfulness of the decision. In this case, the lack of reasoning as to the Associate Minister’s decision-making makes the task of assessing the lawfulness of his decision more difficult. This point is developed in the discussion of the breach of natural justice ground that Mr Freeman also advances.
[56] What can be said at this stage is that, as against the 2018 Employment Court findings, there were matters for the Associate Minister to consider and weigh in the balance in deciding whether those findings constituted misconduct warranting removal. Those matters included at least the following:
(a)the fact Mr Freeman acted on legal advice in his use of, and reliance on, the forfeiture clause;
(b)the fact most of the breaches occurred prior to the employment law changes that came into effect on 1 April 2016;18
18 A Labour Inspector v Victoria 88 Ltd T/A Watershed Bar and Restaurant, above n 5, at [51].
(c)Judge Corkill’s characterisation of the breaches as falling “at the lower end of the seriousness scale” (having regard to the sums of money involved and that they were owed to only two employees);19
(d)Mr McGinn’s legal analysis of the threshold legal issue in the 2018 Employment Court decision; the fact the issue had not (as at March 2019) been before the Court of Appeal; the acknowledgment by the labour inspectorate that the point was arguable and that it significantly compromised its claim as a result; that the agreed penalty ($20,000) represented approximately two-thirds of Mr Freeman’s costs exposure regardless of outcome; that Mr Freeman readily agreed to the banning order as he had, at that stage, retired from his employment roles due to health issues; and that Mr Freeman relied on the forfeiture clause in the employment agreements in an attempt to address breaches of the agreement by his employees.
(e)In that regard Mr Shamy argued that Mr Freeman’s moral culpability must be relevant to the decision to remove him and the reasons why Mr Freeman agreed to the declarations, orders and penalties are therefore relevant. Mr Shamy submitted Mr Freeman has been in his role for decades and his conduct has been exemplary. Mr Freeman has no understanding of why the Associate Minister decided to recommend removal. Pointing to examples of traffic offences, which are contraventions of an enactment but do not involve moral turpitude, Mr Shamy submitted it cannot be enough that contravening an enactment justifies removal. Misconduct must involve more than error of judgment and in Mr Freeman’s case Mr Shamy had an employment lawyer encouraging him to act as he did.
(f)Mr Orr’s original assessment which was that the Employment Court findings were “incompatible” with the office of a Justice.
19 At [51].
[57] Of further concern is the fact that Mr Shamy’s detailed submissions dated 17 April 2019 were not provided or communicated to the Associate Minister. The Associate Minister should have been made aware of the content of Mr Shamy’s letter dated 17 April 201 and the additional background matters he advanced in his letter, as well as the three additional background matters he raised as being relevant to the assessment of the nature of Mr Freeman’s activities, which were the subject of the 2018 Employment Court decision.
[58] Mr Orr’s reply to Mr Shamy’s letter of 17 April 2019, restated the Associate Minister’s determination made on 4 April 2019.20 Two aspects of Mr Orr’s reply are troubling. The first is the description of the forfeiture clause as “an illegal penalty clause”. The description seems to be tied to Mr Orr’s reference to Mr Freeman as one “who disobeys lawful authority”. But an illegal clause is not the same as an unenforceable clause. And the determinations of the ERA were that the forfeiture clause was unenforceable. Until the introduction of pt 9A of the Employment Act in April 2016, employers included such clauses in employment agreements. Whether or not such a clause could be enforced depended on whether, in the circumstances, the provision was a “genuine and reasonable liquidated damages provision [which] may be enforceable according to its terms.21 If it was a provision used to force an employee to perform the agreement it was in the nature of a penalty and not enforceable.22
[59] The point is that the Chief Legal Counsel’s description of Mr Freeman as a person who disobeys lawful authority repeatedly was unfounded. There may very well be serious doubts as to Mr Freeman’s judgment in persisting in his reliance on the unenforceable penalty clauses when they had been criticised by the ERA and the Employment Court. Furthermore, even if some of Mr Freeman’s employment agreements predated the 2016 amendments to the Employment Relations Act, Mr Freeman’s attempt to rely on the discredited forfeiture clause did not.
[60] The second troubling aspect is that where Mr Shamy asked the Ministry to “advise by return” whether the Associate Minister was willing to take account of the
20 Mr Orr’s reply is set out at [29] above.
21 G L Freeman Holdings Ltd v Livingston [2015] NZEmpC 120, above n 3, at [20].
22 McDonald v G L Freeman Holdings Ltd [2015] NZERA Christchurch 52 at [10].
further submissions, or further submissions on the issue of penalty under s 5D, the response was that the Minister would be advising the Governor-General during the week of 29 April, to remove Mr Freeman from office.
[61] I see the unwitting effect of Mr Orr’s letter as isolating both the Associate Minister and Mr Freeman from the decision-making loop at this point. Mr Shamy was not told whether or not his further submissions on Mr Freeman’s behalf would be brought to the Associate Minister's attention and the Associate Minister, it seems, remained in ignorance of the further arguments made in Mr Freeman’s defence.
[62] There may have been a sound basis for determining that Mr Freeman lacked the integrity, judgment and good sense expected of a Justice but the Associate Minister seems not to have been briefed on the countervailing arguments and there is no indication he weighed them in the balance. Decision-makers are expected to have before them all information relevant to the decision to be made in order that the decision-making process is sound. In this case, where the Associate Minister’s particular attention was being drawn to the grounds for removing Mr Freeman, it was necessary for the Associate Minister to be made aware of Mr Shamy’s particular submissions as to why misconduct justifying removal was not made out on the facts.
[63] The Associate Minister was required to decide whether, in light of (at least) the considerations in the preceding paragraphs, the 2018 Employment Court decision revealed:
(a)misconduct justifying removal;23 or
(b)misconduct justifying suspension;24 or
(c)that Mr Freeman had behaved in a way that was “inappropriate or undesirable for a Justice” and that one of the “other actions” was warranted.25
23 Justices of the Peace Act, s 5(1).
24 Section 5(1).
25 Section 5D.
[64] As the High Court observed in Yuen Kwok Fung v Superintendent, Auckland Central Remand Prison:26
The fact the Minister is likely to rely on the advice makes it important that it correctly identifies … the relevant factual considerations and advises the Minister on the criteria to be applied in making the decision.
[65]The Judge added:27
It would seem advisable for the Ministry to structure its advice to the Minister
… setting out the relevant statutory provision …, identifying the factual considerations the Ministry thinks are relevant to that provision, summarising any submissions on this point and explaining to the Minister the criteria to be followed in coming to a decision. This may help to ensure that the Minister has a clear picture of the specific matters requiring decision and the criteria he or she should take into account in making the decision on each of those matters.
[66] Although Yuen Kwok Fung was a case about extradition, where any Minister acting on advice is required to make a decision having the potential to be adverse to a person’s interests and reputation, it would be prudent for advisers to adopt the approach set out in Yuen Kwok Fung.
[67] In this case, the briefing paper was silent as to what constitutes misconduct in the context of the Justices of the Peace Act, and as to the threshold for removal. It was silent also as to the sanctions for misconduct and offered no guidance as to why removal was appropriate and suspension was not. Further, having brought the Associate Minister’s attention to the availability of “other actions” under s 5D, and included those actions as possible recommendations, the briefing paper failed to advise the Associate Minister that before considering giving a direction under s 5D(1) he first had to be satisfied that since appointment as a Justice, Mr Freeman had behaved in a way that was “inappropriate or undesirable for a Justice (otherwise than in relation to the exercise or performance of judicial powers or functions).28
[68] Although this point was not argued, I have misgivings about whether the s 5D disciplinary actions are available if misconduct is established. The Act seems to provide two sanctions for misconduct: removal or suspension. The disciplinary
26 Yuen Kwok Fung v Superintendent, Auckland Central Remand Prison [2002] NZAR 49.
27 At [50].
28 Section 5D(2)(a).
responses in s 5D seem to be available only where a Justice, since appointment, has behaved in a way that is “inappropriate or undesirable”. As I read the provisions, the “other actions” in s 5D are inapplicable to a Justice in relation to whom misconduct is established.
[69] While it seems unarguable that, on its face, the 2018 Employment Court decision provides a Minister with a prima facie basis for concluding that a Justice has engaged in “misconduct”, the Associate Minister’s decision as to what consequence should follow, was a necessary next step. And, as I have stated, it is apparent that the Associate Minister did not engage in that two-step process.
[70] On the basis of the material before the Court, it is apparent that the Associate Minister was not fully and properly informed, and that he did not take into account the factors I have identified as being relevant and necessary to the decision- making process leading to the recommendation to remove Mr Freeman from office
Breach of natural justice?
[71] Section 27 of the New Zealand Bill of Rights Act 1990 affirms the common law right to the observance of the principles of natural justice.
[72] It is well-settled that the requirements of natural justice depend on the subject- matter under consideration and the circumstances of the particular case. Of relevance to this proceeding is Richardson J’s statement in Fraser v State Services Commission:29
… it is a mistake to view the implied obligation to afford an opportunity to be heard as being intended simply for the protection of the individual affected by the decision that will be made and as having to be balanced against the needs of efficient decision-making. The decision-maker is more likely to reach a sound decision if he is better informed about the issues through having heard both sides; and in that way the existence of the implied obligation should be seen as contributing to the soundness as well as to the fairness of the decision- making process.
[73] That observation was made in the context of a statutory setting that did not expressly provide for natural justice procedures. The Court of Appeal considered that
29 Fraser v State Services Commission [1984] 1 NZLR 116 at 124.
where, as in the case before it, officials were charged with misconduct resulting in possible dismissal, the importance of natural justice warranted supplementing the statute. In cases where it is alleged that someone in office should be dismissed because that person has done something to warrant dismissal “[t]here is what Lord Reid described as ‘an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without telling him what is alleged against him and hearing his defence and explanation.’”30
[74] Further, “the more significant the decision the higher the standards of disclosure and fair treatment”. In cases having potentially profound implications for the lives of those affected “high standards of fairness are required”.31
[75] Against the backdrop of the principles governing the soundness of a decision- making process such as the process Mr Freeman challenges, I turn to further aspects of the advice to the Associate Minister and the basis upon which he made his decision.
[76] The briefing paper did not explain why Mr Freeman’s conduct might be thought to constitute misconduct warranting removal. How was the Associate Minister to make this assessment unguided and unadvised? And without advice, how was the Associate Minister to determine the appropriateness of removal over suspension?
[77] As I have discussed, the Associate Minister was bound to take into account Mr Freeman’s explanations. While the briefing paper advised the Associate Minister that Mr Freeman’s lawyers had made submissions opposing his removal from office, and the initial submissions were attached, no further comment or observation was made by the Ministry’s advisers. This relative silence contrasted with the way in which the Associate Minister’s attention was drawn to the adverse findings at [28] of the Employment Court decision and led Mr Shamy to observe the Associate Minister was corralled into recommending removal.
30 At 124, citing Ridge v Baldwin [1964] AC 40; [1963] 2 All ER 66.
31 Ali v Deportation Review Tribunal [1997] NZAR 208 at 220.
[78] The briefing paper contained no comment on Mr Freeman’s defence of his position, or guidance on the threshold for removal of a Justice from office or the circumstances in which suspension or the disciplinary measures might be preferred. Had the briefing paper contained any such comment or guidance it may have been possible to infer the Associate Minister’s reasoning. But there is nothing to indicate why the Associate Minister decided as he did. When I put these concerns to Ms Harris she submitted it was “self-evident” and that Mr Freeman had not sought reasons nor pleaded a lack of reasons as a ground of review. Ms Harris submitted “common sense could enable Mr Freeman to know why the decision was made”.
[79] I do not agree with the respondent’s position that the Associate Minister’s reasoning was self-evident.
[80] There are useful analogies in the judgment of Lang J, an appeal from a decision of the Dentists Disciplinary Tribunal.32 Mr Patel had pleaded guilty to charges laid as a result of complaints made by three patients. He accepted the charges amounted to professional misconduct in terms of the Dental Act 1988 but he contested the removal of his name from the dental register. One of the grounds of appeal was that the Tribunal failed to give reasons. Lang J found it “somewhat surprising” that the Tribunal did not explain why it considered Dr Patel should be removed from the register rather than suspended for a short period or why it would be inappropriate for him to be permitted to practise subject to strict conditions.33
[81] I tend to agree with Mr Shamy’s assessment of the position. One of the problems with the lack of response from, or on behalf of, the Associate Minister to the matters raised by Mr Freeman in defending his position is that it raises an inference the Associate Minister did not have all the information necessary to make a fair decision. More fundamentally, the lack of response means the Court has no ability to understand the Associate Minister’s reasons for finding misconduct justifying removal as distinct from misconduct justifying another of the statutory responses.
32 Patel v The Complaints Assessment Committee HC Auckland CIV-2007-404-1818, 31 October 2007.
33 At [24].
[82] Mr Shamy’s suggestion of pre-determination gains traction from the fact that the first letter to Mr Freeman contained an invitation to resign. In other words, Mr Freeman was confronted in that first letter with the spectre of the termination of his role by removal or resignation, yet the Associate Minister had not at that stage been briefed and was presumably unaware of the issue. Removal is a decision for the exercise of the Minister’s discretion. While officials are expected to assist the decision-making process by providing advice and guidance as to the process, and possible outcomes, the discretion is the Minister’s to exercise. As I suggested to counsel during the hearing, Mr Freeman would have assumed from the letter of 8 March 2019 that his time was up. The only matter seemingly at issue, was whether he was to be removed or whether he would accept the invitation to resign.
[83] Mr Freeman is entitled to know, and Justices of the Peace have a legitimate interest in knowing, the nature of the circumstances that may make them vulnerable to being removed from office for “misconduct”.
[84] As was held in Secretary for Justice v Simes, natural justice requires the disclosure of information that is relevant and material to a decision-maker’s decision in order to give the person affected an opportunity to rebut material that may be adverse.34 In Simes the Court held that other decisions used by the Legal Services Agency as support for its decision to cancel the plaintiff’s listing should have been disclosed to the plaintiff. Similarly, Mr Freeman was entitled to disclosure of the criteria, or the test, that the Minister would apply in determining whether his conduct amounted to “misconduct” for the purposes of the Act.
[85] Mr Shamy cited Lewis v Wilson & Horton Ltd as authority for the proposition that the failure to give Mr Freeman any reasons constituted an error of law.35 Lewis v Wilson & Horton Ltd concerned the obligation on courts to give reasons for their decisions. The Court of Appeal was concerned with the requirements of open justice in a criminal setting and with whether the good judicial practice of providing a reasoned decision should be regarded as an inflexible requirement. Notwithstanding
34 Secretary for Justice v Simes [2012] NZAR 1044 (CA) at [80].
35 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546.
that context some of the principles which the Court of Appeal articulated have been applied beyond the criminal law setting.
[86] Addressing the rationales for the provision of reasons, the Court observed that the principle of open justice serves a wider purpose than the interests in the particular case. The Court stated:36
Those who exercise power must keep within the limits imposed by law. They must address the right questions and they must correctly apply the law. The assurance that they will do so is provided by the supervisory and appellate Courts. … It is important that sufficient reasons are given to enable someone affected to know why the decision was made and to be able to be satisfied that it was lawful. Without such obligation, the right to seek judicial review of a determination will in many cases be undermined.37
[87] Three years earlier, in the context of a challenge to a decision by the Minister of Immigration on the grounds of an alleged failure to give reasons, the Court of Appeal recalled the value in requiring reasons:38
1.the discipline on the decisionmaker itself: it is commonplace that preliminary views can be changed when the process of thinking through the reasons and writing them down is undertaken
2.assurance to those affected that their evidence and arguments have been assessed in accordance with the law, a matter relating to the next two points
3.assistance to those affected in deciding whether to challenge the decision, for instance by appeal, review or other complaint mechanism - since the statement of reasons may satisfy them that they have no real prospect of a successful challenge
4.if a review is mounted, assistance to the parties, counsel and deciders engaged in the review
5.the establishment, where appropriate, of a body of precedent or at least of guidance, governing or affecting the exercise of the particular power
6.assurance to the wider public of the legitimacy, openness and accessibility of the exercise of the power - an aspect of accountability
[88] Similarly, in Discount Brands Ltd v Westfield (New Zealand) Ltd, and on the basis of the authorities and academic commentary he cited, Keith J referred to “the
36 At [79]–[80].
37 At [80].
38 Singh, Chief Executive Officer, Department of Labour & Anor [1999] NZAR 258 at 262.
growing recognition of the obligation on public authorities to give reasons”.39 Some judges have associated the giving of reasons with “procedural fairness in appropriate cases, particularly where there is a right of appeal”.40
[89] Given the High Court’s constitutional responsibility for ensuring that those who exercise statutory powers do so lawfully and that judicial review is the common law means by which the courts hold officials to account,41 I take the view reasons have significance beyond the criminal law context, beyond judicial decision-making and beyond appeals. In the public law domain reasons will assist the quality of decision- making and assist courts in their understanding of the basis for decisions and the manner by which they have been reached.
[90] Ms Harris submitted that Mr Orr’s letter to Mr Shamy on 23 April 2019 rejecting his further submissions was frank as to the reasons for the rejection and “clear in its emphasis that the Associate Minister had determined that a person who disobeys lawful authority, repeatedly, is not a suitable person to be a Justice of the Peace”. Counsel also offered the suggestion that it was “unlikely the additional points would have influenced the respondent to have made a different decision which Mr Orr’s email of 23 April 2019 [made] clear”.
[91] Mr Freeman was entitled to have the Associate Minister, not just the Ministry, consider his reasons for resisting removal. He was also entitled to know the basis upon which the Associate Minister decided to recommend removal rather than suspension. In the absence of affidavit evidence from a decision-maker it may be possible to infer the reasons for a decision from written advice to the decision-maker. I have enumerated the respects in which the briefing paper was lacking in this regard. It is not possible to know from the briefing paper how the Associate Minister viewed the submissions made on Mr Freeman’s behalf or discern the reasons why he decided to recommend Mr Freeman’s removal rather than his suspension.
39 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597 at [56].
40 Naden v Auckland Racing Club (Inc) HC Auckland M72/95, 21 May 1996 at 16.
41 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153.
[92] Without any sense of the basis upon which the Associate Minister acted, beyond that the outcome accorded with the view taken at the outset by the Chief Legal Counsel, it is not possible to say that the decision-making process gave effect to Mr Freeman’s entitlement to be properly heard. In the absence of evidence to the contrary, the only tenable inference to be drawn is that the Associate Minister was not fully informed of all relevant matters when he decided to recommend Mr Freeman’s removal. As a consequence I conclude that Mr Freeman’s natural justice entitlement to be heard was breached.
[93] I return briefly to Ms Harris’ submission that Mr Freeman did not plead a lack of reasons. I entertained the argument, however, because counsel for the respondent did not suggest prejudice. That was a responsible position. While Ms Harris accurately observed that Mr Freeman did not plead a failure to give reasons, she was able to, and did, respond to Mr Shammy’s written submissions on the requirement to give reasons and the inference to be drawn in this case from the lack of reasons.
Relief
[94] Mr Freeman seeks an order quashing the Associate Minister's decision and a further order preventing the Associate Minister from removing him on the basis of the 2018 Employment Court decision.
[95] I decline to make an order staying the Minister’s hand in this way. There may very well be a proper basis for Mr Freeman’s removal. I have found there were significant deficiencies in the process and that, because of an absence of reasons, the Court is not in a position to be confident Mr Freeman was properly heard. I have not found that the Employment Court decision is incapable of constituting a basis for a decision to remove Mr Freeman for misconduct. It may very well be that, having considered all matters relevant to his exercise of discretion, and having been properly advised, the Minister concludes there are grounds warranting Mr Freeman’s removal. It is not for the Court to inhibit that process.
Result
[96]The applicant is entitled to relief.
[97] The Associate Minister’s decision to recommend to the Governor-General that Mr Freeman be removed from office, is set aside. The matter is referred back so that the Minister may reconsider, in accordance with the guidance and findings in this judgment, whether there are grounds for recommending the removal of Mr Freeman from office for “misconduct”.
[98] Having succeeded in his application for judicial review, the applicant is entitled to costs which I award on a 2B basis.
Karen Clark J
Solicitors:
St Martins Law Ltd, Christchurch for Appellant Crown Law Office, Wellington for Respondent
Annexure
Briefing Paper to Associate Minister of Justice
2 April 2019
Hon Aupito William Sio, Associate Minister of Justice
JUSTICE OF THE PEACE: Gordon Leslie FREEMAN
Purpose
1.This paper seeks your decision on whether you wish to recommend to the Governor-General the removal of Gordon Leslie FREEMAN as a Justice of the Peace, or recommend disciplinary action against him.
Background
2.Section 5(1)(a) of the Justices of the Peace Act 1957 (the Act) provides that the Governor-General may, on the recommendation of the Minister responsible for Justice of the Peace, remove or suspend from office, for up to 65 working days, a Justice for misconduct.
3.Section 5D of the Act provides for the Governor-General to direct the Minister to take one or more of the following actions:
…
(d) by written notice to the Justice, require the Justice to receive counselling (or further counselling), provided by a provider stated in the notice, of a kind stated in the notice. This provision appears to be irrelevant under the circumstances.
4.Mr Freeman was appointed a Justice of the Peace on 8 May 1996. On 26 March 2018, in the Employment Court at Christchurch, he was banned from employing or hiring staff for a period of three years and ordered to pay pecuniary penalties. This followed him and his company, of which he was sole director and shareholder, deliberately withholding holiday pay from numerous employees. This was despite several adverse rulings against him or his company by the Employment Relations Authority and the Employment Court. Full details are set out in the attached Employment court judgment marked appendix 1. I draw your attention particularly to paragraph 28 which indicates he acknowledged the breaches were serious and intentional.
5.On 8 March 2019 I wrote to Mr Freeman giving him an opportunity to make submissions on whether or not he should be removed from office of Justice of the Peace.
6.His lawyers have provided submissions opposing Mr Freeman’s removal from office. Those submissions are attached marked appendix 2.
7.The decision as to whether or not you wish to recommend to the Governor- General that Mr Freeman be removed from office as a Justice of the Peace or recommend action as set out in paragraph 3 above is discretionary.
Next steps
8.If you decide to recommend to the Governor-General that Mr Freeman should be removed as a Justice of the Peace you may wish to direct that I write to him again indicating your intention and offering a final opportunity to resign.
9.Alternatively, if you decide to recommend to the Governor-General that some of the actions in section 5D of the Act should be invoked I will prepare the necessary paper work.
Recommendations
10It is recommended that you:
10.1indicate whether you wish to recommend the removal of Gordon Leslie FREEMAN as a Justice of the Peace YES/
NO
If Yes
10.2direct that I write to Mr Freeman advising him of your intention and offering a final opportunity to resign YES/NO
OR
10.3indicate your preliminary view on which of the actions you propose to recommend the Governor-General directs you take:
a)given the Justice an official written rebuke
YES/NO
b)by written notice to the Justice, require the Justice to
apologise to a person or people stated in the notice, in writing, for behaviour stated in the noticeYES/NO
c)by written notice to the Justice, require the Justice to undertake training (or further training), provided by a provider stated in the notice, in an aspect of the performance of the Justice’s functions as a Justice stated in the notice
YES/NO
OR
10.4indicate whether you wish to recommend a term of suspension of(up to 65) working days.
YES/NO
[Signed: Chief Legal Counsel] APPROVED/SEEN/NOT AGREED
[Signed: Hon Aupito William Sio
Associate Minister of Justice]
0
2
0