I have no idea how the David Bain compensation bid is now going to turn out. But I don't see why that should stop me telling you about it

So, it appears my preparedness to reverse my earlier doubts about David Bain's chances of gaining compensation for wrongful conviction were slightly premature, and that I should have taken the advice of the ever wise and never intemperate Steven Price to "wait and see how convincing [Binnie's] reasoning is before we accept or reject his conclusions." My one sole comfort is that David Farrar took much the same line that I did - meaning that if I'm a mug, at least I'm in the finest and noblest of company.

Given this experience, you'd think the wise thing to do would be to learn from it and refrain from further comment on the issue of Bain's compensation claim until all the relevant information has been released to public scrutiny. But that would be to assume a wisdom that I patently fail to demonstrate on an almost daily basis. And, what is more, this is not a forum for wise activity. It is the internet, and I am blogging ... not doing Really Serious Journalism of a Very Important Nature.

So, without knowing anything more about this issue than has been reported in the media, I'm jumping straight back in boots and all.

Judith Collins' pretty remarkable dissing of Binnie's report on Bain's claim, as dramatically recounted by Tim here, makes me think that it must be really riddled with problems. If it were simply a matter of Binnie making some line-calls in a way that she personally disagrees with, then I don't think that she'd have taken this path. For one thing, it's creating a story where she doesn't need to. For another, as I'll get to later in the post, it's opening up the issue to the risk of litigation. That's why I tend to believe her when she says that:

[Binnie's] report appeared to contain assumptions based on incorrect facts, and showed a misunderstanding of New Zealand law. It lacked a robustness of reasoning used to justify its conclusions.

So, assuming the worst about Binnie's report (which, I accept, may be entirely the wrong thing to do ... but see my earlier comments regarding this not being Really Serious Journalism of a Very Important Nature), I'm also going to assume that Robert Fisher (who has been tasked with "peer reviewing" it) will decide that it simply is not fit for purpose as it stands. I note that Judith Collins has been at pains to state that this is Fisher's only role - he hasn't been brought in to provide her with an alternative assessment of Bain's guilt or innocence. Rather, he's simply meant to tell Collins whether or not Binnie's report on that matter is up to generally accepted standards of legal analysis and reasoning. And I think there's a pretty high chance that if Collins (and, assumedly, her MoJ advisers) thinks that the report is error-riddled enough to need review, then the reviewer is going to find sufficient errors to say the report is not to be relied on.

(Please note - that last paragraph was not a claim that there is some sort of conspiracy afoot, or an allegation that Fisher will just tell the Minister what she wants to hear. Instead, it's no more than a claim that the existence of a review in the first place is pretty strong evidence for believing that there really is a problem that the reviewer will find.)

Now, having made two largish assumptions that may very well turn out to be wrong - that Binnie's report is so flawed as to make his conclusions unreliable, and that Fisher will find this to be the case - what then? Well, in her press release, Collins states:

I will receive Mr Fisher’s peer review in the next day or so, which will be forwarded to Justice Binnie for his comment. When I hear back from Justice Binnie, I will take a recommendation to Cabinet on the next steps.

Taking into account the previously mentioned (and quite possibly wrong) assumptions, I can only see four possible outcomes emerging from this process.

  • First, Binnie might accept Fisher's criticism/comments and withdraw his report altogether - in effect, admitting he stuffed the whole thing up and that he wasn't up to the job.
  • Second, Binnie might revise his report in line with any criticisms/comments made by Fisher ... but retain his original conclusion that Bain is innocent on the balance of probabilities. (I assume we're all accepting that this is what Binnie concluded.) 
  • Third, Binnie might revise his report in line with any criticisms/comments made by Fisher ... and reverse his original conclusion on Bain's innocence.
  • Fourth, Binnie might reject Fisher's criticisms/comments (whether in a measured fashion, or an all out, toy-throwing fit of pique) and tell the Minister that his report stands as it is. 

Of these outcomes, I think the first is much the least likely. Judicial egos do not lend themselves to admissions of complete failure. The fourth is more likely - it seems perfectly possible to me that Binnie would effectively say to Collins "I've told you what I think about this and I don't really care what another ex-judge thinks, now you do with my report what you want". But if Binnie did say this, then I suspect it would have much the same outcome as him pulling his report altogether; Collins would recommend to Cabinet that Binnie's report simply can't be relied on and they should ignore what he has to say.

At that point, of course, Bain and his supporters would be back at square one of their compensation bid. Because if Binnie's report is taken off the table - either at his request, or at Collins' recommendation - then there is nothing for Cabinet to consider. Which means, I assume, that the whole compensation claim process has to begin again at the beginning ... with a new person appointed to study the case and provide advice to the Minister. Which then opens up some pretty thorny questions as to who is going to take up this particular poisoned chalice, and where they will come from. Would an overseas figure want the job, given Binnie's fate? What odds that Collins decides that as Fisher already has looked at the issues, he is the ideal person to take on the job of assessing Bain's innocence? 

So it may well be that the upshot of the peer review of Binnie's report is to dump us back where we were over a year ago, with the small difference of there being a different person sitting in the Minister of Justice's chair and deciding how to handle the compensation bid. Which may not make that much of a difference to the issue ... but I suspect probably will.

However, what happens if the second or third options eventuate, and Binnie amends his report to accommodate Fisher's criticisms/comments?

Well, if Binnie were to amend it to say that (having now considered the issues raised in Fisher's review) Bain is probably not innocent, we know Bain's team will be apoplectic with anger. And I'd imagine they'd be very keen to have this revised report quashed before Cabinet can make a compensation decision based upon it. Which then raises some pretty tasty administrative law issues. Most immediately, is the report reviewable at all by the courts? After all, the payment of compensation for wrongful imprisonment is meant to be a purely discretionary matter of prerogative, not a legal right that can be enforced. So what business does a court have with a report recommending that this purely discretionary power be exercised one way or another, no matter the procedural flaws that may have occured in the report's completion? 

Finally, there is the prospect of Binnie purporting to amend his report to take into account any criticisms/comments by Fisher, but sticking with his original assessment of Bain's innocence. What could Collins do then? Could she really send this revised report out for a second round of peer review? And what would happen if that review came back and said "Binnie has still got it wrong"? At what point would she just have to pull the plug on him altogether?

There we go. I think I've successfully covered all the bases so that whatever happens next, I can claim to have (sort of) predicted it. But just in case none of the above happens, you lot should not believe anything you read on the internet. Except for Tim's posts. He's a Real Journalist.

Comments (39)

by Scott Chris on December 11, 2012
Scott Chris

Of these outcomes, I think the first is much the least likely. Judicial egos do not lend themselves to admissions of complete failure.

Assuming that the flaws in Binnie's reasoning and knowledge of our law are clear enough, my money's on this scenario being the most likely outcome. Perhaps you are being a little too cynical Andrew.

One can only speculate as to why Binnie got it so wrong: Aside from the possibility of some form of diminished mental capacity, perhaps working in isolation is not the best method of reviewing such a mountain of evidence - especially for one whose memory mightn't be what it once was. 

by Andrew Geddis on December 12, 2012
Andrew Geddis

@Scott,

Perhaps you are being a little too cynical Andrew.

Maybe so ... I am quite a bitter and twisted person, stemming from some deep primal wound in my childhood. But that's a topic for another post.

However, I'd just note that Binnie's press release in response to Collins' indicates that Binnie is digging in on this. I think she's pissed him off!

by Ross on December 12, 2012
Ross

Option 4 is definitely the most likely. I don't think Collins has handled this well at all. Dissing Binnie publicly was never a great strategy. You have to feel sorry for the local lawyer who assisted Binnie because he or she has been embarrassed with no right of reply.

by Andrew Geddis on December 12, 2012
Andrew Geddis

People also might be interested in listening to Binnie talking to Mike Hosking here. For one thing, it counteracts some of the suggestions that Binnie is suffering "some form of diminished mental capacity" or that his "memory mightn't be what it once was" ... he certainly sounds reasonably sharp and on to it.

To which I might add this "exit interview" he gave to the Globe and Mail upon stepping down from the Supreme Court a year ago.

by Dean Knight on December 12, 2012
Dean Knight

Wow. That is all. 

by Steven Price on December 12, 2012
Steven Price

Is there any reason why the government can't release Binnie's reports (including the two updated ones), Fisher's comments, and Binnie's response (if any) before making a decision about compensation? Why not open it up to debate? It'll be a doozie. The government and the judges don't have a monopoly on information and analysis about the case. We could effectively crowd-source the peer review! Isn't this the best guarantee that any errors of fact or law come to light? Or any material that supports Binnie's conclusion that has been left out? Or anything flaws in the criticism of Binnie? Added advantage: government gets to test the political wind.

by onsos on December 12, 2012
onsos

I have a lot of respect for Collins's abilities as a politician, but one of her weaknesses is her arrogance around legal matters. I think it is rash to assume that she has not overstepped the mark and got it wrong, for two clear reasons:

  1. She has a track record of getting the law wrong when she is upset, as evidenced by the debacle with Mallard and Little, out of which process she came out covered in egg.
  2. She has clearly over-stepped herself already, in her public statements. Whatever the rights or wrongs of the case, the way she has spoken about it is way out of line.

If she has overstepped herself, there are two possible outcomes. Either Fisher supports her, and there's a shitstorm of legal malarkey and Collins will end up talking about nothing else until the election, or Fisher will back Binnie, leaving Collins dangerously exposed.

Collins should have been much more circumspect. She has turned this into a bad business.

Whatever the rights and wrongs of the Binnie report, and whatever Fisher decides, there will be massive discussions about the independence of the process, the Bain case has been re-energised just when it should have finally slipped into oblivion (which is what everyone wanted, really), and the NZ justice system looks a little more kangaroo than it did last week.

by John Norman on December 12, 2012
John Norman
Tks for this AG, pertinent the globepiece, and mebbe helpful the Minister's response here-on-in Judge Binnie sure worked over the Volkwagen/Rolls parallel.
by Steven Price on December 12, 2012
Steven Price

Isn't the most likely outcome of Fisher's peer-review that Binnie's report contains some errors but that they don't necessarily undermine Binnie's conclusions, given that FIsher is not actually asked to revisit those conclusions? Where are we then?

by Flat Eric on December 12, 2012
Flat Eric

onsos, as AG has noted this is a discretionary issue and therefore a political one. I don't see this making the New Zealand legal system 'more kangaroo'. After all, Bain was convicted, appealed, got a retrial and was acquitted. That's the legal system doing what it should. We are now talking about discretionary compensation and that is political. Collins is rightly in my view reflecting the reluctance of a large number of people to grant any compensation until its quite clearly defensible in the court of public opinion.

by Andrew Geddis on December 12, 2012
Andrew Geddis

@Dean

No, "wow" is not all. I expect more from a commentator of your standing and ability.

@Steven,

Is there any reason why the government can't release Binnie's reports (including the two updated ones), Fisher's comments, and Binnie's response (if any) before making a decision about compensation?

I don't know. If only we had an expert on Official Information we could ask that question of ... . 

Isn't the most likely outcome of Fisher's peer-review that Binnie's report contains some errors but that they don't necessarily undermine Binnie's conclusions, given that FIsher is not actually asked to revisit those conclusions?

Is that one of the 4 outcomes I listed? No? Then stop trying to complicate things ... .

Seriously, though, do you think Fisher will say anything about Binnie's conclusion? I'd imagine it'll be more along the lines of "there's this problem, and this problem, and this is wrong, and you can't say X based on fact A, B and C."

by Ross on December 12, 2012
Ross

The latest news is that Collins may release Binnie's reports by the end of the week. It's quite apparent that she reads this blog.

by Ross on December 12, 2012
Ross

Collins has said it was "very demeaning" for Binnie to make disparaging comments about her. Jeez talk about a thin skin. 

by Andrew Geddis on December 12, 2012
Andrew Geddis

Collins has said it was "very demeaning" for Binnie to make disparaging comments about her.

She should sue him for defamation. Anyway, what is so demeaning about being called "a former Auckland tax lawyer"?

by Steven Price on December 12, 2012
Steven Price

Well, there's nothing in the OIA that prevents release. In fact, there's a serious issue about whether the OIA permits withholding. But I'm really asking whether there's anything else in public or constitutional law that prevents it. If only we had an expert we could ask that question of...

Because if not, wouldn't it be a good idea tactically?

As for Fisher, I'm not sure it's going to be easy for him to duck any assessment of the significance of any errors he identifies. Isn't it part of the job to say "botch A seems trivial in the scheme of things and doesn't have any material effect upon the recommendation; botch B is central to the reasoning and undermines the conclusion"?

by Andrew Geddis on December 12, 2012
Andrew Geddis

@Steven,

I thought the point of the OIA was that if it doesn't allow witholding of information, then there's no other "public or constitutional law" grounds that do so? Anyway, as Ross notes above, it looks like Collins is going to put it all out once Fisher's review has been recieved.

On Fisher's review - yes. I guess there is potential outcome 5, which is a peer review that says "despite some problems with Binnie's report, there's nothing that fatally undermines his conclusions." Although, according to this news report, that outcome looks unlikely.

by Ross on December 12, 2012
Ross

I recently asked Collins for the questions that Binnie asked Bain. Collins refused to supply the info on the basis "that it is necessary to maintain the constitutional conventions which protect the confidentiality of advice tendered by Ministers of the Crown and officials" and on the basis that it is "necessary to maintain legal professional privilege". The first part of her answer seems redundant as I wasn't seeking advice tendered by Ministers or officials. Given that Collins has this afternoon divulged details of Binnie's report, it seems the second part of her answer is incorrect as well. 

by Deborah Coddington on December 12, 2012
Deborah Coddington

Why should Collins release Binnie's report to Reed QC, Karam, Bain, and the public before Cabinet see it, as Reed et al are clamouring? It's a report to the Minister. She has to advise Cabinet, and to get that advice correct, she is perfectly entitled to seek independent advice elsewhere, if she sees 'incorrect facts' in the report, and misunderstandings of the New Zealand system.

Binnie's subsequent press statement demonstrates a misunderstanding of the constitutional role of the Solicitor General, the next most senior law office ofter the Attorney General. He accuses the office of the Solicitor General of not being independent, yet the office is obliged to advise Government in a dispassionate manner, regardless of whatever role it has played previously. We have had two previous Solicitor Generals while the Bain case has played out, and the present one had absolutely nothing to do with the case. So Binnie is constitutionally wrong.

His reaction demonstrates why it is desirable for Collins to seek independent advice. It is an extraordinary reaction from a Supreme Court judge.

by Steven Price on December 12, 2012
Steven Price

If there's at least an arguable OIA ground to withhold (say, legal professional privilege, or maybe advice to ministers), then the OIA doesn't stop them releasing anyway if they like. So my question is: is there anything that would stop that? Can they (or ought they) to say: "it would be constitutionally inappropriate to release this before Cabinet makes its decision"? I'm not aware of anything, but smarter minds than mine might be.

As for that news report: haven't they buried the lead? Binnie thinks Bain is not guilty beyond reasonable doubt! That's extraordinary.

Anyway, it's tanties all round, and it's making for gobsmacking political theatre. I think you need to order some more beer and popcorn. And Dean: you'll need to come up with a better word than "wow" now.

by Andrew Geddis on December 12, 2012
Andrew Geddis

Just heard Binnie interviewed on Checkpoint ... I think Collins may have chosen the wrong person to demonstrate her crushing credentials on!

by Andrew Geddis on December 12, 2012
Andrew Geddis

@Deborah,

He accuses the office of the Solicitor General of not being independent, yet the office is obliged to advise Government in a dispassionate manner, regardless of whatever role it has played previously.

That's the theory. But I guess the question is whether this it is reasonable to believe the Solicitor General can do this given the other hat he has worn throughout the Bain litigation (even if it is a different individual in place now, the institutional role (and perhaps interest in protecting the institution he heads from criticism) remains the same). 

[Binnie's] reaction demonstrates why it is desirable for Collins to seek independent advice. It is an extraordinary reaction from a Supreme Court judge.

Sure - but the whole thing is pretty extraordinary! If Collins didn't want Binnie slamming her for how she is handling what is, in the end, a political process then Collins probably shouldn't have tried to front foot the political optics of the situation by bagging Binnie's work. That was a pretty extraordinary thing to do, no?

by Mike Osborne on December 12, 2012
Mike Osborne

Yes - it is extraordinary. And she appears to be striding forward marking out a very clear path from what I can see - deferring to the concerns of Bain supporters but not resiling from any comments about the report/compensation/justice.

http://www.newstalkzb.co.nz/auckland/news/nbnat/568732012-minister-consi...

http://www.stuff.co.nz/national/politics/8070186/Bain-report-author-went...

She's walking a tightrope - it's compelling to watch.

by BeShakey on December 12, 2012
BeShakey

@Ross - the information can be withheld for that reason (probably by an official) and the Minister can subsequently choose to release the informaiton anyway, it looks bad, but doesn't mean the initial position was wrong.

I suspect one reason that she wouldn't want to release to the public is that she may have a difficult job managing Cabinet, the more that this turns into a shitstorm the more I imagine there'll be a risk that some in Cabinet argue against her. I'm sure she'd have (at least) Key on side, but hes shown a willingness to drop Ministers in it if he thinks they've found themselves on the wrong side of public opinion. If she maintains control of the information she can at least try to spin whatever decision Cabinet makes so she doesn't look too bad.

by Deborah Coddington on December 12, 2012
Deborah Coddington

If it was me in Collins' shoes, I'd willingly toss compensation to Bain just to stop the endless whining from Reed QC, and Karam. It's worse than tinnitus. That would be the easy thing to do: here, have a prezzie from Santa, you've been such good boys, now run away and play trains.

But it's taxpayers' money, and Bain, despite the three stooges' ad nauseum claims, has never been found innocent.

Andrew I disagree with you about this:

That's the theory. But I guess the question is whether this it is reasonable to believe the Solicitor General can do this given the other hat he has worn throughout the Bain litigation (even if it is a different individual in place now, the institutional role (and perhaps interest in protecting the institution he heads from criticism) remains the same).

by Deborah Coddington on December 12, 2012
Deborah Coddington

(Sorry, for some reason I lost the rest of my post)

Mike Heron wasn't even wearing another hat throughout the Bain litigation. And as for the office of the S-G, that's like saying a senior lawyer who works at somewhere like, say Meredith Connell, prosecuting on behalf of the Crown major commercial fraud cases, goes out on his or her own as a barrister then becomes a QC, can't be briefed for the defence by those same firms, further down the line. In fact that often happens because those firms know how effective that lawyer was as a prosecutor. That's why QCs don't have clients, to protect the independence. That's why Labour fucked up when it allowed lawyers to remain in firms and become SCs.

Yes it is extraordinary, and I agree Collins could have been more temperate and not come out punching. But Binnie responding in kind, with interest, demeans his position as an independent member of the judiciary. When judges decisions are criticised they just have to suck it up.

by BeShakey on December 12, 2012
BeShakey

But it's taxpayers' money, and Bain, despite the three stooges' ad nauseum claims, has never been found innocent.

Not being a lawyer I may be wrong, but I didn't think the courts or legal system generally are in the business of finding people innocent, rather than simply not guilty. And that isn't the question posed to Binnie or that Cabinet needs to consider.

I also doubt that this would be the first time a Minister does something with taxpayer money simply to make a problem go away (not that I'm saying she will, but if she did it wouldn't be without precedent). I'd love to know whether National is polling on this (they may already have done it). I'm sure they'd want to know where public opinion is, but there'd be hell to pay if it came out they were polling on the reaction to a payment.

by Keir on December 12, 2012
Keir

But he's not really acting as a judge, is he? He's doing something else.

Apart from anything else, judges are salaried employees of the Crown. Binnie's not, and he's got his own commercial practice as a lawyer/arbitrator to worry about. He has to be able to defend his competence.

by Bruce Carruthers on December 12, 2012
Bruce Carruthers

I think the Minister has already indicated where this will go. When she intimated that it was not simply a matter of innocence or not proven, compensation would be predicated on there being Crown culpability for flaws in the process. And I suspect that if this would mean in practice, even should he be deemed to be innocent if there was no culpability then there would be no compensation. 

by Andrew Geddis on December 12, 2012
Andrew Geddis

Deborah,

I'd be tempted to agree with you about paying simply to make this go away, if I weren't having so much fun watching our Minister of Justice and an ex-Supreme Court Judge from Canada go after each other like a couple of prop-forwards having a stoush in a 3rd grade club rugby match. Like Steven said, beer and popcorn all round!

But I don't quite buy your analogy regarding Heron's position. The fact is that Crown Law were directly involved in presenting the Crown's case before not only the Courts, but Binnie himself. So they continued to have a direct adverserial role ... right up to the point they were asked to switch into advisor mode and tell the Minister what to do with a report that rejected their view of the matter (as well as (possibly) containing criticisms of them as an institution). That at the least looks like one side is being favoured over the other - and if we are going to approach this legalistically, the appearance of favouritism matters as much as the reality. But of course, we don't have to approach this legalistically ... if we're prepared to accept that Collins is just acting out of political expediancy.

I hasten to note that none of the above is to say that Heron hasn't acted professionally and in an "objective" fasion (whatever this means). But let's be honest ... if Judith Collins had approached Michael Reed and asked him "could you give me a professional and "objective" opinion on what I ought to do now" without asking Heron/Crown Law the same thing, would you buy a claim that Reed is capable of setting aside any beliefs he may have about the case and provide a purely fact-based assessment of Binnie's work?

Finally, we shouldn't conflate Binnie's role in providing this advice (a role he got because he is an ex-judge) with that of a serving judge. The rules of conduct that apply to the latter don't apply to him. [edit: like Keir said.]

by John Norman on December 12, 2012
John Norman
Deborah and Bruce, Insofar as what I heard Judge Binnie on Checkpoint mention the Minister's "political" path.. and also insofar as flawed process.. allow me to ask whether either of you, or both, recognise the feature of instilled preference that political minds have and exhibit or express from time to time.. I recognise twas Minister Powers decision to bring in the Judge, but I am wondering y'see whether the political preference that both of these politicians have over-rides apparently independent persons in this regard. If so, then it would be very difficult indeed for any of the major parties in process todate to reach a thoroughgoing authority in this matter. Which has me inclined agree with Deborah and opt 'easy out', put up and shut up. Yes, I know this not what she was saying, but this thing looks pretty loaded now with no winners in sight..
by Ross on December 12, 2012
Ross

I agree with Andrew re the role of Crown Law. Of course this issue brings up why we need a Criminal Cases Review Commission, an independent body to examine potential miscarriages of justice. At the moment, anyone wrongly convicted has to approach the Justice Ministry. Peter Ellis has applied for the Royal Prerogative of Mercy three times and each time his application has been rejected. Some of the advice from the ministry has been appalling. Nevertheless, if he wants a pardon, he will have to approach officials again! I'm sure, Deborah, you can see the absurdity of such an approach.

I recall that prior to the ministerial inquiry into the Ellis case being established, then Attorney General Margaret Wilson was opposed to an inquiry, on the grounds that it might raise doubts about the effectiveness of the justice system. “There is a risk that the government will be seen to be casting doubt on the [criminal justice] system,” she said. What a strange response. It is apparent there are problems with the justice system, and the answer is not to bury them under the carpet. Maybe the Bain case will be the catalyst for an independent body to examine possible miscarriages of justice. I hope so.

by Jane Beezle on December 12, 2012
Jane Beezle

Deborah --

"If it was me in Collins' shoes ..."

I wish you were.  Tell the boys to run away and play trains.  Revoke the SC title and tell Labour they "fucked it up" in a speech in Parliament.

I laughed and laughed.  Actually you and Judith might have something in common.

I agree with Steven and Andrew, this Bain mud slinging thing is the best legal telly since Dame Elias was appointed Chief Justice.

by Dean Knight on December 13, 2012
Dean Knight

Wowser! [FN1]

[FN1] PhD chapter overdue. And the info vacuum means i want to wait until I see the reports before I form a view... I now bet Key wishes that he hadn't (off the cuff?) let slip about the peer review?

by Brent Jackson on December 13, 2012
Brent Jackson

Mike Osbourne wrote :

She's walking a tightrope - it's compelling to watch.

It looks more to me as though she is boldly striding around inside a china shop ...

by onsos on December 13, 2012
onsos

SPM:Whether or not this this makes the NZ legal system more kangaroo is a secondary concern--it makes it look more kangaroo, and that is a major problem with this case. When the government appoints an independent counsel, and then slags off his response in public (without giving access to the response), that looks like a bouncy thing with big feet

Discretionary compensation is political, as everything is, but is is supposed to be an issue of justice. In that sense, the process is important, and the public are not the proper arbiters of ths. In principle, this is an issue that should transcend public judgement. That's what we appoint experts for.

Collins is not in her position to 'reflect the reluctance of a large number of people to grant any compensation until its quite clearly defensible in the court of public opinion', rightly or otherwise, she is there to ensure that justice is done--hence her ministerial title (which, last I saw, was not the Minister of Reflecting Public Opinion).

By rampaging around, publicly passing her own judgements (prior to her own process of review), and withholding the documents in discussion she is not simply reflecting an opinion, she is inciting those opinions and inflaming the discussion again. Whether or not she is right about the report, her behaviour has undermined the process and the perception of independence.

Put simply, whatever the new report she has commissioned says, it can no longer appear independent; it can only look like it plays Rugby League in a green and yellow jersey, regularly making a mockery of the Kiwis.

by Mike Osborne on December 13, 2012
Mike Osborne

Yes - seems she cracked a delicate vase (or was it a crock?) that's full of something. Presumably we find out what the contents are later today.

by Mike Osborne on December 13, 2012
Mike Osborne

@onsos How would you have preferred she handled it? Or, how would you have handled it?

by Mike Osborne on December 13, 2012
Mike Osborne

Based on Fisher's report - Andrew's "really riddled" looks apt.

Of the four options:

2 & 3 are gone - no possibility, not even close

4 - stand by it - he could, but Fisher seems to have decimated it in my view

1 - best option - say he misinterpreted the ToR or took a Canadian approach or similar and withdraw - especially as some of it borders defamatory

... and it's not looking like a vase.

by onsos on December 14, 2012
onsos

@Mike Osborne: At a simple political level, to preserve the semblance of an unbiased process, I would have expected her to keep her powder dry.

This would have meant withholding public judgement of Binnie's report, based on her own opinion, and simply stating that she had decided to put Binnie's report to peer review, and that Fisher was going to conduct that peer review.

When the peer review came out, as it has done, it would have much more credibility in the public sphere.

This is not rocket science. Collins's interference means that this fails the whiff test.

Disclaimer: I am not a lawyer, and I don't know enough about the case to form an opinion (worth anything) on whether or not Bain is innocent, Maybe there should have been a review. But I have more doubts as a result of Collins's cavalier approach to process.

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