Decision of Human Rights Review Tribunal:

Behold - the decision of the Human Rights Review Tribunal.

Curious in many ways.  Not least the assertion that the McKenzie Friend was required to turn up and speak on behalf of the Plaintiff and provide a 'proper' medical certificate.  How ridiculous.  And what an outrageous breach of natural justice, on top of the existing miscarriage of justice.

Mr Mihaka is appealing this decision to the High Court.

Maori Agents - challenging flawed laws:

"Justice the seed, peace the flower."  T-shirt of the day.

The Human Rights Review Tribunal recently cited two interesting precedents in the matter of Mihaka v Housing New Zealand Corporation.  The first one is cited in the Minute dated 13 October 2016 (copied below for ease of reference) - the Tribunal cites Mihaka v Police 1981 1 NZLR 54.

 

 What's interesting here is that the Tribunal didn't have any problem addressing Mrs Raue as Maori Agent in its Minute dated 9 June 2016, as evidenced below:

The Minute of the HRRT dated 9 June 2016 clearly states "REPRESENTATION:  Mr TRMN Mihaka in person assisted by Ms K Raue, Maori Agent" -

Mr Mihaka, as a descendant of the original inhabitants of this land, he uri o nga tangata whenua, has the sovereignty, te tino rangitiratanga, to appoint a person of his own choosing to speak for him.

Tangata whenua have always had the right to appoint a kaikorero of their own choosing, and it is ridiculous to assert that the quasi colonial 'government' acting on the questionable and ultra vires authority of a treaty claimed by the English to grant them all our mana and all our tino rangitiratanga by some sleight of hand smoke and mirrors.

Mr and Mrs Mihaka cite the Law Practitioners Act 1955, which refers to the role of Maori Agents but does not define the role.  In fact the 'Maori Agents' who claimed authority under this Act were infamous for cheating Maori out of their land - which is likely why attempts are being made to expunge all evidence from the historical record and pretend it didn't happen.

So let's have a closer look at Mihaka v Police 1981 - did the Crown attempt to trick Mr and Mrs Mihaka by the use of clever legal language?  Here are the relevant paragraphs, the problem's not that hard to spot - there's a question of law here:

Mrs Mihaka's trial was not in the High Court, it was in the District Court - she was charged with Wilful Damage.  Barristers don't normally bother with District Court work, they stick to High Court work, and they are required to be instructed by solicitors normally.


This decision cites sections 13 and 14 of the Law Practitioners Act 1955 - it completely ignores the infamous section 17 - which relates to solicitors and Maori Agents:

The role of McKenzie Friend is rather misunderstood - the original McKenzie Friend is Ian Hangar QC - an Australian barrister, and a qualified barrister at the time of his involvement in the McKenzie case.  Not a layman at all.  It seems there are currently moves underway to 'reform' the role of McKenzie Friends in NZ Courts.

Why this is important is because Dun was royally ripped off by the two pettifoggers assigned by Legal Aid to conduct his appeals - neither noticed he'd not been provided with Disclosure - let alone what that Disclosure contained.

And then just when you think you've got it sussed you find the Hardie Boys decision.

Ken Shirley and his golden shower of money on all things 'Maori':

Ken Shirley wrote a rather racist rant published in the NZ Herald - who were only too happy to publish it of course.


In a snide aside to 'Washday at the pa', Ken attempts to cast an allegory with the introduction: "Graduation day at Te Wananga.  Soon after the Labour Government came to office it started showering money on all things Maori."

What follows can only be described as the racist rant of a person with little insight into the history of this country, the relevance of Te Tiriti o Waitangi, among other things.

So who is Ken Shirley?

Party positions held:

• Labour Party MP 1984- 1990
• Ranked third on ACT Party List for 1996 elections
• ACT Party MP 1996- 2006

Government appointments:

• Appointed to Human Rights Review Tribunal by Justice Minister Simon Power, in December 2009.

Statements on Maori:

“Graduation day at Te Wananga. Soon after the Labour Government came to office it started showering money on all things Maori. ” – NZ Herald

“Soon after the Labour Government came to office, ushering in its flagship ‘Closing the Gaps’ programmes. It started showering money on all things Maori. ” – Ibid

“Out of this Te Wananga o Aotearoa pocketed $5.8 million and said that would go a long way towards providing for its growth. ” – Ibid

“But the Government went further. Closing the Gaps demanded even more taxpayer money be thrown at Maori. ” – Ibid

“Despite its apparent concern, it has continued to shovel huge sums of taxpayer money to this institution – all in the name of the treaty. ” – Ibid

“The Treaty of Waitangi Fisheries Commissioners have foreshadowed that the decision to allow the Maori Land Court to hear iwi claims to the foreshore and seabed of the Marlborough Sounds opens the way for similar claims around the country” ACT New Zealand Deputy Leader Ken Shirley said today.

I now call upon Prime Minister Helen Clark to act consistently, and to declare such claims off limits -as she recently did in the case of the claim for oil and gas reserves. In this instance, it was made quite clear that oil, gas and mineral reserves were vested in the Crown by legislation in 1937.” – Press releases on Court of Appeal decision on foreshores and seabed, Recreation Access

“I am again calling on the Labour Government to act decisively. It must spell out the bounds to claims – in order to prevent undue anxiety for tens of thousands of New Zealanders, and to ensure that iwi don’t waste any more time and money pursuing claims that should be off limits.” – Ibid

Hopefully Mr Shirley’s anti-Treaty and knee-jerk anti-Maori  beliefs will not be carried over to the Human Rights Review Tribunal.  I'm not holding my breath.

Most folk won’t remember who Ken Shirley was, prior to his current ‘gig’ as  CEO of the Road Transport Forum (RTF), representing road transport interests since July 2010.
From 1984 to 1990, Shirley was nominally a Labour Party MP. He was closely aligned with the likes of Roger Douglas, Richard Prebble, and other right-wingers who had seized control of the party during the 1980s.
From 1996 to 2005, Shirley was an ACT Party MP. As such, he was an acolyte of  the neo-liberal school of economics and a strong adherent of free market forces. Part of ACT’s policies is to scrap the minimum wage.
Indeed, to under-score ACT’s abhorrence of the minimum wage, ACT’s current leader (and sole MP), David Seymour, condemned a recent rise in minimum wage levels. On 26 February this year, Seymour was scathing;

“The new $15.25 minimum wage will hit regional employers especially hard… In Auckland, $15.25 might not sound like much, but small businesses in the regions who generally charge less will struggle to bear the cost. Hikes to the minimum wage will discourage new employment, and lead to more lay-offs and business failures.
The first employees to suffer will be young, low-skilled workers who won’t be offered a chance to prove their worth. Pulling up the jobs ladder will only add to poverty in low-income areas.
This is a wage set for the distorted Auckland economy. Why should the rest of the country have to bear the same costs?”

[Fun Fact: As a Parliamentary Under-Secretary, Seymour is currently a taxpayer-funded beneficiary on a salary of $185,098 p.a. – which equates to nearly $89 per hour. One wonders if “small businesses in the regions who generally charge less will struggle to bear the cost” of Seymour’s salary?]
But returning to Ken Shirley; as an ex-ACT member of Parliament he is still most likely an  advocate for the abolition of the minimum wage.
On 5 May, Shirley was invited to be a commentator on Radio NZ’s afternoon Panel, hosted by Jim Mora;

 “Ken Shirley of the Road Transport Forum discusses what’s behind logging truck crashes and what needs to be done.”

At one point in the discussion, a suggestion was made that low wages in the trucking industry is not attracting the most highly-skilled and experienced workers;
@ 7.50

Jim Mora: “How bad do you think, Ken, is this situation with truck driving?”
Ken Shirley: “Oh, the spate we’ve had in Northland is just unacceptable. There’s no excuse for roll-over[s]. We know we have some difficult roads in New Zealand with topography, Northland’s is particularly difficult.
But there’s an obligation on the drivers and the forestry companies who hire the drivers to make sure they drive to the conditions. That’s the obligation on all drivers, and the spate we’ve had is just unacceptable, and I think inevitably it seems it’s not mechanical failure, it is driver error.
Whether it’s speed, inattention, or fatigue.”
Jim Mora: “So, it’s a…what, is it a hiring of drivers problem, hiring the wrong drivers, or is it a keeping-costs down problem, Ken? What do you think?”
Ken Shirley: “Well, the two are related of course. We have a chronic shortage of H5 drivers in New Zealand. That’s the heavy combination driver, the truck and trailer. It’s a global problem, but it’s particularly severe in New Zealand at this time. We’ve had it for many years, but with the activity in the economy now, that we are currently having, there is a chronic shortage of drivers.
Many of our members throughout the country are just saying they simply cannot get drivers. And I guess inevitably, you can, in that situation, such a tight situation, out of desperation, you can perhaps hire someone who’s not as skilled as you would like or need, out of sheer necessity. But at the end of the day, there’s no excuse. This should not be happening. We’re taking it very seriously.
We’ve actually instigated a series of roll-over prevention seminars in conjunction with NZTA around the country. They started some six weeks back. And these are actually very good seminars. But we have to educate the drivers, the loaders, the dispatchers, the transport operators themselves, but we must not have this level of roll-over.”
Jim Mora: “Ken, is it the… what is it deep down? Is it the meager wages paid, as some people are saying? You’re just not attracting the skills to the industry?”
Ken Shirley: “Ah, no, you do, it’s, you know, you can have a driver error. But it’s, it’s… you have to have better training, better awareness, that has to be the answer.”
Jim Mora: “So, there was this work-force development strategy, wasn’t there, ah, put into place a wee while back to try and try to entice more people to become truck drivers because of that shortage. But what is the point of a work-force development strategy if we know what the problem basically is, which I’m interpreting as maybe a lack of training and a lack of procedures put in place in the industry – [garbled].”

After a further exchange between Jim More, Peter Elliot (one of the panelists), and Ken Shirley, the host returned the discussion to the matter of wage rates;

Jim Mora: “It does seem though, with the wage rates that we see talked about, that you might not be getting the optimum recruits for the job? Is that a fair criticism, or not?”
Ken Shirley: “Well we know that the skilled labour market across the economy, whether it’s a diesel mechanic, a skilled driver, all of of those industries are, are, reporting severe chronic shortages. And because they are so highly skilled, reliant on a high level of, of, of, experience, when there is a chronic shortage, there is a temptation to often, out of desperation [to] take what you can get. And, and, that’s, that’s when you start to get into issues that like we are seeing and that’s when you start introducing potential road safety problems.”
Jim Mora: “I understand, but would you solve your chronic shortage if you paid higher wage rates?”
Ken Shirley: “Well, indeed, and all the members I speak to want to, but there’s been a race to the bottom, it’s –
[panelist scoffing (?) noise]
… such a fiercely competive industry…”

Shirley’s admissions are astounding.
His comments appear to be a frank admission that the free market has experienced a spectacular  failure on a key point in the Northland logging industry;  that if there is a shortage of  skilled labour, the price of that labour (heavy-truck drivers in this case) should rise – not fall – to attract skilled labour. That is a basic tenet of supply and demand in the free market system.
As the guru of free market economics, Milton Friedman put it;

“But when workers get higher wages and better working conditions through the free market, when they get raises by firm[s] competing with one another for the best workers, by workers competing with one another for the best jobs, those higher wages are at nobody’s expense. “

And Investopedia described a free labour market thusly;

Assuming there are a large number of employers in a region, or that workers are highly mobile geographically, the wages that a company will pay workers is dependent on the competitive market wage for a given skill set. This means that any company is a wage taker, which is simply another way of saying companies must pay competitive wages in order to obtain workers.

None of which seems to be happening in Northland at present.
To the contrary, logging companies – according to their own spokesperson, Ken Shirley – are engaged in a “a race to the bottom” with drivers’ wages.

To compound the problem, in April of this year, Shirley specifically opposed and condemned outright any attempt to increase the wages of drivers;

“The link between remuneration and road safety is highly questionable and as a recent PWC report highlights, the system will result in a net cost to the Australian economy of more than A$2 billion over 15 years.
It is therefore very concerning that the Labour Party here advocated for the same policy and campaigned on it during the last election.”
National awards and government-imposed orders are not the way to lift industry wage rates or make the industry safer. All they do is saddle the industry with inflexible and time-consuming obligations and additional costs.
Let’s not repeat Australia’s mistake in New Zealand. It has been proven that national awards burden the economy and cost jobs and I hope that Labour and other political parties here will accept that reality and ditch the concept once and for all.”

Shirley’s comments last month are in stark contrast to his public lamentations on Radio NZ.
Not only has the free market failed in one of it’s key tenets – but Shirley is actively opposed to raising wages by any means necessary, to attract skilled, experienced truck drivers.

This should serve as a clear lesson that the innate contradictions of the free market ideology – many of which are little more than articles of faith – will eventually become more and more apparent.


Unfortunately, knowing how the system operates  in this country,  it will takes catastrophic events with several tragic deaths, before the government acts on this growing problem.
That’s how we roll in New Zealand.

Over bodies.

.

.


(Acknowledgement: Frankly Speaking, David M. and Tumeke)

References
Wikipedia: Ken Shirley
ACT NZ: Welfare and family
ACT NZ: Minimum wage hike whacks regional employers
Parliament: Current MPs – David Seymour
Parliament: Salaries payable under section 8 of Members of Parliament
Radio NZ: The Panel with Peter Elliott and Susan Guthrie
Good Reads: Milton Friedman
Investopedia: Breaking down ‘Demand For Labor’
Scoop media: Government imposed remuneration orders have no place in NZ
NZ Herald: Tourist dies in logging truck crash near Matamata
Additional
Road Safety Remuneration Tribunal: About road safety remuneration orders

Ken Shirley is not a judge, he's a former Act Party list MP now working as a paid lobbyist for corporate interests in the transport industry - as if we haven't got enough carnage on the roads in the muriwhenua with all the logging truck crashes etc.

Dun Mihaka is a former candidate for the Aotearoa Legalise Cannabis Party, who are at the opposite end of the political spectrum to the Act Party,
.
We are issuing a wero for the recusal of Ken Shirley for the third time, citing the comments published in the Herald (above).  This time it's indisputable that Ken Shirley must be recused!

Transcript of Human Rights Review Tribunal hearing on 3 August 2016, Office of Human Rights Proceedings:

Dear Ms Raue

Thank you for your email message and attached letter received today.

As discussed with you in our telephone conversation on Wednesday 17 August, the Commission recently undertook an electronic migration to the ‘cloud’. 

Regrettably, during that process our OHRP mailbox went offline for two weeks due to matters completely beyond our control.  The contractors have still not been able to restore emails sent to our OHRP mailbox during that time.  Consequently we have not been able to access the Application for Legal Representation which you indicated you sent by email to the OHRP mailbox on Friday 12 August.  However, as the mailbox is now working again it would be appreciated if you would re-send the application to ohrp@ohrp.org.nz.

We very much apologise for this considerable inconvenience.

Thank you.
Pam Rowe

The link to the transcript of the first part of the hearing held in the Human Rights Review Tribunal on 3 August 2016 is at this link, click to view.

The transcript of the second part of the hearing is at this link.

Readers will note that an adjournment was granted for the purposes of Mr Mihaka making application to the Office of Human Rights Proceedings for representation in the proceedings before the Human Rights Review Tribunal.

Mr Mihaka's Maori Agent emailed the application form as instructed promptly, however the response from the Office of Human Rights Proceedings was less than inspiring, and is copied below, apparently, since they 'moved to the cloud' they've been - and still are - unable to access ten days worth of emails, which is a very unfortunate state of affairs, but par for the course as far as government agencies information sharing policies and procedures, such as the information sharing between Housing NZ Corporation and NZ Police:

 26 August 2016:

Tena koutou katoa

Attached is the letter referred to in our application for assistance and supporting correspondence regarding Mr Mihaka's medical appointment in support of his application for an adjournment because the nominated dates are unsuitable as he cannot reschedule his appointment and the stress of having a two day hearing condensed into one day, starting earlier is not conducive to Mr Mihaka's health or the concept of fair justice.  Housing NZ Corporation was granted an adjournment when their witness requested one on medical grounds and it is only fair that Mr Mihaka is treated in the same manner - HNZC were not simply told to attend on the other day and we'd squeeze it in, and it is not fair on Mr Mihaka, whose health was already compromised by Police who are also a party to these proceedings, a letter from Mr Mihaka's doctor regarding that recent incident, which is relevant to this matter, contains the following statement:
    "This gentleman is seventy four years old and had a number of medical problems.
    I am unclear of the recent circumstances surrounding the night he spent on a road in his car near National Park village, but regard it as inappropriate that any person of seventy four years old should, of necessity, sleep in a car on that stretch of road at that time of year."
Nga mihi
Katherine Raue
Maori Agent for Te Ringa Mangu Mihaka

. ~~~~~~~~~~~~~~~~~~

 "Dear Ms Raue

Thank you for your email message and attached letter received today.

As discussed with you in our telephone conversation on Wednesday 17 August, the Commission recently undertook an electronic migration to the ‘cloud’. Regrettably, during that process our OHRP mailbox went offline for two weeks due to matters completely beyond our control. The contractors have still not been able to restore emails sent to our OHRP mailbox during that time. Consequently we have not been able to access the Application for Legal Representation which you indicated you sent by email to the OHRP mailbox on Friday 12 August. However, as the mailbox is now working again it would be appreciated if you would re-send the application to ohrp@ohrp.org.nz.

We very much apologise for this considerable inconvenience.

Thank you.

Pam Rowe
Registered Legal Executive/EA to the Director
Office of Human Rights Proceedings
PO Box 6751
Wellesley Street
AUCKLAND"

The application was mailed through NZ Post immediately we became aware of the inability of the Office of Human Rights Proceedings to access their emails, there has been no response to date, or any acknowledgement of receipt of the application.

The following email was sent to the Human Rights Review Tribunal and Meredith Connell (Housing NZ Corporation's taxpayer funded legal team) today:

Tena koutou katoa,

Regarding the transcript of the Tenancy Tribunal hearing on 24 September 2014 before Adjudicator Janet Robertshawe.  On page 9 of the transcript of proceedings the Adjudicator questions Meredith Connell representative, saying "there's a feeling . . . that there's been something unjustified about that decision [to evict Mr Mihaka], . . . Are you aware of that?"

Ms Smith responded "I am, the 90-day notice was issued prior to us breaching the tenant for the alleged assault."  This would appear to be blatantly untrue and Ms Smith should have been well aware that it was untrue.

This untruth certainly influenced the Tribunal, and it is a serious matter to which we would appreciate an immediate response.

Secondly, the information provided by HNZC contains an email exchange involving Karaka Tuhakaraina of Housing NZ Corporation, in which Karaka Tuhakaraina claims that "Mr Mihaka has assaulted another resident, admits it and continues to antagonise others."

This is outrageous - Mr Mihaka has NEVER admitted assaulting another resident - the 'other resident', presumably Mr Dickie - has admitted assaulting Mr Mihaka - several times!  There is NO information to suggest that Mr Mihaka"continues to antagonise others" whatsoever!  In fact here is no evidence that there were any complaints against Mr Mihaka from any resident other than Mr Dickie!

Thirdly, NZ Police have now confirmed in writing that they hold no information such as that allegedly told to Housing NZ Corporation staff regarding Mr Mihaka's alleged drug use, etc, we have provided a copy of the letter from Police saying so and we insist that either Housing NZ reveal the identity of the Police office who allegedly told staff that, or correct the information in the face of the EVIDENCE provided by NZ Police!

We insist that this information is corrected immediately, and an explanation provided regarding the statements of Ms Smith - evidence shows that Housing New Zealand Corporation wrote to Mr Mihaka informing him of the breach WELL PRIOR to the issuing of the 90 day notice!

Fourtlhy, regarding the claim that Mr Mihaka's previous lawyer agreed to this matter being heard under urgency - Mr Mihaka states that he most certainly never agreed to any such thing, the need to evict him was certainly NOT urgent - Mr Dickie was relocated thereby ending the problem created by his unwanted and uninvited touching of Mr Mihaka!  We strongly oppose the decision to limit the hearing to one day starting earlier instead of a two day hearing as originally set down - Housing NZ Corporation was granted an adjournment to another 2 day hearing on their application regarding a medical appointment for their witness and we insist on equal treatment!

Furthermore, we received advice from the Office of Human Rights Proceedings that they have "recently moved to the cloud" or something and as a result of this they are still unable to access their emails for a certain period of time, including the email we sent.  This is not Mr Mihaka's fault!  We mailed the application as well as emailed it, but have to date received no response - this also is NOT Mr Mihaka's fault!  We request an adjournment pending the Office of Human Rights Proceedings finding a way to access their emails, as well as Mr Mihaka's medical appointment - his doctors have expressed disquiet regarding the proximity of the dates of the hearing and Mr Mihaka's medical procedure and this rush is unnecessary, unseemly and totally unwarranted!

Nga mihi
Katherine Raue
Maori Agent for Te Ringa Mangu Mihaka