Category Archives: In the News

Rawshark – Is She Maori or Pakeha?

In the News, Rawshark

The search for the elusive Rawshark

Five cops spent ten hours turning over Nicky Hager’s place looking for the identity of the person who gave him the emails that were published in “Dirty Politics“. They took away all of his paperwork and electronics. They won’t find Rawshark in amongst all of that. But they knew that anyway, before they turned his place over.

They were actually achieving three things:

  • Showing their political masters that they were doing something to try to track down the elusive Rawshark;
  • Using it as an excuse to gain a treasure trove of unrelated but interesting information for Police Intelligence to pour over, cross reference and store away in their database for future reference under the new Intelligence mantra “Collect Everything”; and
  • Making a very public and somewhat intimidating statement to all would-be investigative journalists and writers.

Given that Police Intelligence are into both criminal intelligence and political intelligence that must have wet themselves when they dreamed up the excuse to spend ten hours trawling through his stuff and to cart it all off. Be interesting to know the names and designations of the five police officers involved.

For the moment Nicky’s stuff is sealed by court order until the courts finally decide on the legality of the search and seizure.

In the meantime Cameron Slater has blamed someone for being behind the hacking of his emails. And we believe that he has named someone he thought was Rawshark.

And John Key says someone told him who Rawshark is but he ain’t telling who that someone was and who he thinks Rawshark is. Was that someone his mate Whaleoil?

This tweet might be pretty near the mark:

Alastair Thompson @althecat – “Reasons @johnkeypm isn’t ratting out rawshark to the feds. (1) He doesn’t really know, but wants Raw Shark to think [he] does”

So is John Key just trying to play mind games with Rawshark? Emphasis on the “trying”.

Others are speculating all over the Twitterverse – see some online speculation – and I hear that @patrickgowernz thinks he knows too.

They seek him here
They seek him there
Those DirtyPolitics seek him everywhere
Is he Maori
Or Pakeha
That damned elusive Rawshark.

Who has long gone, folded her tent and stolen away into the night.

None of them really has a clue about Rawshark‘s identity. Give you a hint fellas. She’s Pakeha.

UPDATE 2 November 2014:

Cameron Slater is now talking up a big conspiracy to take him down, a conspiracy that includes Nicky Hager, Rawshark and a cast of many others. He claims to know who they are. See here. He’s also asking for donations to fund his legal battle.

There are others who claim to know the name given to John Key. And many others in the Twitterverse who are speculating about the same person.

They’re all wrong. None of them has come close yet.

This is what Rawshark herself said:

“I’m not your run-of-the-mill hacker,” Rawshark insisted last week. “Which means there aren’t many like me out there. Which means that as soon as people understand my motivations, the list of suspects narrows down to one.”

Update 4 December 2014

It seems now that Matt McCarten has been accused of organising the hack, funded by Kim Dotcom, paid through an intermediary and friend of Rawshark known as @endarken, and Slater still claims to know the identity of Rawshark. It’s probably the same person that John Key thinks is Rawshark. I can categorically say they’ve got the wrong person and that the whole chain from Rawshark to McCarten is pure fantasy.

After the Kohanga Reo Scandal – Some Observations on Trust Law, Tikanga and Democracy

In the News, Maori Development, Te Kohanga Reo

Throughout the whole affair involving Te Kohanga Reo National Trust there have been a few things said about what TKRNT should and should not do that seemed to me to be a bit strange in relation to trust law for TKRNT is a very specific type of organisation; it is a trust governed by trust law.

A few examples. The collective of kohanga reo whanau from Mataatua and Tauranga-Moana held that the dismissal of Titoki Black as CEO of TKRNT was not done in accordance with tikanga and that was why they were aggrieved. Minister of Education Hekia Parata was reported in the NZ Herald saying the trust “was not democratic enough”. Hone Harawira was reported saying that the board should comprise two representatives, one male and one female, from each of the ten kohanga reo regions.

Each of those raises an issue in trust law, namely tikanga and trust law, democracy and trust law, and representation and trust law.

In this post I will look at trust law in some detail, at the tension between trust law and Tikanga Maori, and at the end examine the issue of Te Kohanga Reo National Trust, democracy and representation.

I’m not an expert in trust law but I have been a trustee and managed trusts for over four decades. In that time I have consulted with and been advised by several specialist trust lawyers and in the end bought and read the legal texts for myself. In my experience, with both Maori and non-Maori trusts, I have found that few trustees understand trust law and that many are ignorant of their legal powers (and the restrictions on those powers), their obligations, duties, responsibilities and liabilities. Given that there are thousands of trusts operating throughout Te Ao Maori the lack of knowledge of trust law is a major deficiency in the governance of the affairs of Maori.

I  have often been dismayed by the appointment of trustees who had little or no understanding of their legal powers, obligations, duties, responsibilities and liabilities. And even more dismayed if and when they have shown no inclination whatsoever to acquaint themselves with trust law, or even to acknowledge that it exists.

And in some cases I have been appalled to witness the appointment of people wholly unsuited to the position of trustee. I have also known proven thieves to be appointed (even as treasurer) and when they have embezzled funds been exasperated that nothing was done about it.

The Attributes of a Trustee

In my opinion there are three important attributes of a trustee; namely integrity, competence and maturity. By maturity I do not mean age but experience and wisdom.

Integrity speaks for itself. Competence includes an understanding of trust law as well as understanding investment, financial governance and financial management among other things. In the case of TKRNT there is also a requirement for competence in Te Reo Maori because the Trust’s purpose is entirely about Te Reo. I have found that a modicum of wisdom is always important, the wisdom of maturity and experience. The appointment of trustees having regard for these attributes is a serious matter that should not be taken lightly yet too often trustees are appointed according to other criteria without any consideration of those three attributes.

In recent public discourse about Te Kohanga Reo National Trust there was much crticism of trustees being appointed for life and an assumption that elderly trustees might be too out of touch. Age however does not preclude the attributes of integrity, competence and maturity and should be no barrier to trusteeship provided that provision is made for smooth transitions of trusteeship in the event of the incapacity or demise of elderly trustees.

E hoa ma, as an elderly trustee myself I would think like that wouldn’t I.

There are estimated to be between 300,000 and 500,000 trusts in New Zealand and I would think that a surprisingly large number of those have trustees appointed for life.

Tikanga Equity – The Origins of Trust Law

Trust law is its own tikanga, a tikanga rooted in roughly 700 years of the development of an aspect of English law called Equity. Equity is that body of law developed by the English Court of Chancery before 1873 and it is a set of legal doctrines that reflect general notions of good conscience and fairness. A trust is one form of Equity in which the trustees have a legal interest in the trust and the beneficiaries have an equitable interest. That is that the trustees are the legal owners of the assets in trust but only insofar as those assets may only be used for the purposes of the trust and for the benefit of the “beneficiaries” and not for their own benefit.

Trusteeship over assets that benefit other people and not yourself requires a high level of integrity and over the centuries the law has developed doctrines or tikanga to codify that requirement.

I have read that this tikanga developed from the time of the Crusades when knights would leave their lands and families for years of crusading in the Holy Land from which they might never return. It developed to protect the lands and other property of the knights “in trust” for the benefit of their families or “beneficiaries” against the predation and dishonesty of some people who would take advantage of the absence or death of a crusader to acquire his lands for themselves. That is a much simplified explanation but it does convey the essence of trust law.

It is important to understand this simple concept and to understand that trust law is its own tikanga.

Common Law was developed in the English common law courts over many centuries. Equity was developed in the English Court of Chancery. They are two separate tikanga both part of the concept and codification of the law we all now live by in Aotearoa New Zealand.

Common law now forms the basis of much New Zealand statutory or parliament-made law but there is still a body of common law that has not been transformed into statutory law and common law is still relevant in the courts. Much of the tikanga of Equity has also been transformed into statutory law primarily in the Trustee Act 1956 and also in the case of Maori lands in Te Ture Whenua Maori Act 1993. However the tikanga of Equity still prevails and all statutory trust law is interpreted according to that tikanga and in consideration of case law. Case law is that law developed in the courts based on interpretation of Tikanga Equity. Case law sets precedents that influence future decisions in the courts.

Where the relevant statutory legislation is silent Tikanga Equity and case law prevail. The Rules of Equity are to be found in case law and in numerous authoritative legal texts which also explain that case law.

This may appear complicated and convoluted but an understanding of statutory trust law is not enough. To be competent a trustee must also understand Tikanga Equity. I will try to explain Tikanga Equity as simply as I can.

Powers of Trustees

The powers of trustees are established in Tikanga Equity and in statutory law. In Tikanga Equity “equitable relationships” are created. We must remember that equity is about good conscience and fairness. These equitable relationships include:

  • Fiduciary relationships;
  • Relationships of confidence; and
  • Relationships of influence.

A trust, established as a creature of Tikanga Equity is a fiduciary relationship subject to fiduciary rules and principles, or obligations. At the core of those obligations a trustee must:

  • Avoid personal profit or benefit;
  • Avoid conflict of interest; and
  • Avoid divided loyalties (the loyalty is to the trust and not to any external persons or organisations).

The avoidance of conflicts of interest is of particular relevance in Maori trusts and is a rule often breached. I think the main reason is that a conflict of interest in Tikanga Equity is generally not considered a conflict of interest in Tikanga Maori. In a later section I will discuss the relationship of Tikanga Maori to Tikanga Equity. A trustee must also:

  • Act in good faith;
  • Use his or her powers for their proper purpose; and
  • Exercise care (i.e. a duty of care). The duty of care requires a trustee to administer a trust in good faith, exercising its powers as a prudent person would with “reasonable care, skill and caution”. There is a whole body of law around this duty alone, including definitions and descriptions of a prudent person. In managing trusts I have sometimes needed to consult a trust lawyer to seek an expert opinion on whether a contemplated course of action would be prudent or not. It may seem a simple matter of judgement but it is not always so.

Other aspects of the law of fiduciary obligation under Tikanga Equity include:

  • Duty of loyalty;
  • Duty of impartiality;
  • Duty to act personally;
  • Duty to keep full and accurate accounts; and
  • Duty to preserve trust property.

Duties of Trustees

The first duty of a trustee is to be fully acquainted with the terms of the trust as specified in the trust instrument or instruments, such as deeds of trusts and constitutions. The trust instrument is paramount.

The second duty is to adhere totally to the trust’s terms regardless of any other considerations (including Tikanga Maori if Tikanga Maori is in conflict with Tikanga Equity). The trustee’s only duty and loyalty is to the trust and to the terms of the trust, and therefore to its beneficiaries.

In this sense the trustee represents only the trust, and not any other person or organisation even if the terms of the trust provide for the appointment of that trustee by an external person or organisation. A trustee acts alone in the service of the trust. A trustee is not a representative and a trust is not a democratic institution. It is a legal and equitable institution.

In relation to the beneficiaries trustees must:

  • Act in the beneficiaries’ best interests;
  • Maintain impartiality between beneficiaries;
  • Pay the correct beneficiaries (if they are to be paid under the terms of the trust).

The trustees themselves must:

  • Not profit from trusteeship;
  • Act gratuitously (i.e. without payment of sitting fees or other fees, wages or salaries unless payment is specifically authorised by the terms of the trust, but they may be paid actual and reasonable expenses such as for travel and accommodation);
  • Invest;
  • Not delegate their obligations, duties and responsibilities;
  • Be active in their trusteeship;
  • Act unanimously (unless the terms of the trust allow for voting and for majority decision making). Additionally a trustee, including a chairperson of a board of trustees, may not act alone for decisions may only be made by all trustees acting together unless the trustees have specifically authorised one of their number to act alone on a specific matter; and
  • Keep proper accounts and provide that information to those entitled to receive it.

Investment of trust assets is a huge and complex area of trust law. Every trustee of a trust that is required to invest assets must be or become knowlegable about investment. Similarly every trustee must be financially literate in order to perform his or her duties to a high standard. A lack of knowledge of trust law and a lack of financial literacy are the two major deficiencies in trusteeship that I have witnessed in my 40+ years of trusteeship.

These deficiencies often lead to breaches of trust.

Breach of Trust and the Removal of Trustees

Any trustee who breaches the terms of the trust, or the obligations of a trustee, or exceeds the powers of the trustee may be held in breach of trust by the courts and dismissed. A breach of trust is therefore any act which is in violation of the duties of a trustee or of the terms of a trust, or any act or omission on the part of a trustee which is inconsistent with the terms of the triust agreement or the law of trusts.

Such a breach need not be intentional or with malice, but can be due to negligence alone.

Additionally under Section 229 of the Crimes Act 1961 every one is guilty of a criminal breach of trust who, as a trustee of any trust, dishonestly and contrary to the terms of that trust, converts anything to any use not authorised by the trust. Anyone so doing is liable to imprisonment for a term not exceeding seven years.

I have seen instances of this in cases where trustees have given favourable consideration when disposing of some assets of a trust by selling them at a discount to themselves or to their own whanau or to another organisation in which they are involved. The duty of the trustee is to sell at the most favourable price and to do otherwise is an act of criminality.

Trusteeship is therefore a position requiring high levels of integrity and competence, and the wisdom and maturity to fulfil those requirements.

The law provides for the removal of trustees through breach of trust. Trustees may also be removed if they become physically or mentally incapacitated, or if a trustee is convicted of dishonest or criminal behaviour. That last reason was perhaps part of the intent of the leaking of financial information to Maori TV.

The law does not provide for the removal of trustees by government ministers, as a few people have advocated in the case of TKRNT.

The Burden of Trusteeship

Trusteeship is not to be taken lightly for it is an onerous responsibility and trustees are individually liable for any breach of trust or imprudent decision making by the trust.

It requires an even higher standard of prudence than one might exercise over one’s own affairs and trustees are held personally accountable to the higher standard. Most trustees do not understand that personal liability.

As I have come to understand trusteeship in greater depth over the years I have become more wary of accepting trusteeship. I now consider the integrity, competence and maturity of those who will be my fellow trustees and also those who may be employed by the trust as managers, for in accepting appointment one is to some extent placing one’s reputation in the hands and integrity of others.

Too often trustees are appointed and trusteeships acccepted as just another committee membership without any understanding of the obligations, duties, responsibilities and liabilities of trusteeship. In the present discussion and consultation over the structure of TKRNT I am sure that few who aspire to be trustees really understand all of that.

Tikanga Maori vs Tikanga Equity

I mentioned earlier that conflicts of interest often arise because of differences between the two tikanga. In my experience the tension between Tikanga Maori and Tikanga Eqjuity has been the cause of much misunderstanding about the powers, obligations, duties, responsibilities and liabilities of trustees.

In Maori trusts it is of course appropriate that trustees conduct themselves and their business in accordance with Tikanga Maori. However, and it is a big and often painful however, without exception and unless provided for in the trust’s terms, Tikanga Equity has precedence over Tikanga Maori in all mattters of trusteeship.

A trust is a creation in Tikanga Equity, not a creation in Tikanga Maori. And although trusteeship is defined as kaitiakitanga in its translation from one to the other the two are not always the same thing and in the case of legal and equitable trust they are not the same thing.

Koha is a case in point and an issue of common misunderstanding. Trustees will often feel obliged to give koha from the funds of the trust but unless the trust’s terms specifically authorise koha in specific instances, or in the promotion of the purpose of a purpose trust (see later), it is not lawful. From my personal experience I have known of trustees who give koha from trust funds at tangihanga of persons not directly involved in the trust, in the mistaken belief that they are representing the trust. I have always assumed that I represent only myself in those circumstances and have given koha from my own pocket. In Tikanga Equity it is the safest option.

In Tikanga Maori matters are often but not always decided in hui and by consensus of those with an interest in the matter. Many people assume that consensus decision making by those with an interest applies to trusts as well. It does not for trustees are required to act personally and only in the interests of the trust as stated in the trust’s terms, and not in anyone else’s interests. And trustees have the sole power to make those decisions.

This is a matter that causes much confused thinking in relation to Te Kohanga Reo National Trust for at least half of Te Ao Maori has an interest in the Kohanga Reo Movement. But the lead organisation in the Movement is a trust in Tikanga Equity.

That is the cross we bear if we are to establish ourselves in legal entities in order to receive public funding or to operate in the regulatory environment established by New Zealand law. The legal entities whether trusts, incorporated societies or limited liability companies are all established, defined and governed in the other tikanga. Even Maori Land Incorporations are established, defined and governed in the other tikanga.

Types of Trust

There are various types of trust such as family trusts and pension trusts, and the putea trusts, whanau trusts, ahuwhenua trusts, whenua topu trusts and kaitiaki trusts that are established through the Maori Land Court. Trusts that do not have specific or named beneficiaries are called purpose trusts and are often charitable trusts with either narrow or broadly defined purposes.

Purpose of Te Kohanga Reo National Triust

Te Kohanga Reo National Trust is a charitable trust. It does not have specific or named beneficiaries but does have a very clear purpose. It was incorporated in 1983 under the Charitable Trusts Act 1957. The Trust’s Deed sets out its objectives which are to promote, support and encourage:

  • The use and retention of Te Reo.
  • The Kaupapa of Te Kōhanga Reo, and in particular the goal of total immersion in Te Reo Māori.
  • The establishment and maintenance within New Zealand of Te Kōhanga Reo.
  • The provision of financial, advisory, and administrative assistance and support for the whānau of Te Kōhanga Reo.

Despite what many people may think about the role of TKRNT, or what the role should be, that is its purpose. And as readers will know by now that purpose as stated in the trust deed is paramount.

As laws change and as society and circumstances change there may be a need to update trust deeds. The method of changing a deed may be specified in the deed and in some cases it may require application to the High Court (or Maori Land Court), and even the assent of the Attorney General. Unless ordered by the court amendments to trust deeds are the responsibilty of its trustees.

Structure of the Trust Board

The number of trustees and their method and term of appointment are matters specified in the trust deed. A change in structure will require amendments to the deed.

At the national hui held at Turangawaewae in April four proposals for the structure of the Trust were put forward and the working party is presently seeking feedback about those proposals. Before the national hui Hone Harawira called for the resignation and replacement of the TKRNT trustees, to be replaced by a younger generation, and on 13 June he was reported calling for a board of 20 trustees, one female and one male from each of the ten kohanga reo regions.

For a start I think 20 trustees would be way over the top and would turn the trust into more of a parliamentary and political caucus than a trust established in Equity.

I said caucus not circus!

Then I think that the criteria of integrity, competence and maturity should be paramount regardless of region and the very best should be sought from whatever region.

At the moment according to the TKRNT website there are nine trustees and I personally think that is too many and that seven who meet the criteria of integrity, competence and maturity would be about right. Decisions such as this should be made in the best interests of the trust and the workings of the trust, not in the interests of representation which is not a concept in trust law.

However in deference to calls for greater input from kohanga whanau to the decision making of the trustees I would employ the mechanism of advisory trustees. Advisory trustees are provided for in the Trustee Act 1956 and are widely used by the Maori Trustee in the management of Maori lands. Advisory Trustees are not decision makers but are present and can participate in deliberations. The decision making power rests with the Responsible Trustees.

Ten advisory trustees could be appointed, one from each region, against the criteria of integrity, competence and maturity. They would also serve as a pool of potential Responsible Trustees where they would become acquainted with the Trust and be evaluated for suitability for appointment as Responsible Trustees in their turn.

That may be one of the proposals put to the national hui. I wasn’t there.

Whatever course the Trust decides upon I would employ the very best trust lawyer I could find, whether Maori or Pakeha. I would think the best place to look would be in the big legal partnerships. This is a tricky time for the Trust caught between disaffected and crusading whanau, the media, opinionated commentators, and the Minister and Ministry of Education. I have found that the best trust lawyers are worth their weight in gold in finding ways through such demanding situations.

And in the end trust law is all there is in defining the governance of trusts in Tikanga Equity. We need to abide by it and we need to be good at it.

Democracy and Te Kohanga Reo National Trust

I have already observed that there is nothing democratic about trust law. So moving on from trust law let’s look at democracy.

The Kohanga Reo Movement is not a democracy and never has been. The Kohanga Reo Movement is a kaupapa.

Within that kaupapa each kohanga is locally focused on its own mokopuna and is managed by the whanau within the funding provided by Ministry of Education through Te Kohanga Reo National Trust. With that funding comes the obligations and regulations that accompany all government funding. As providers for pre-school aged children each kohanga is also required to abide by a strict regulatory framework designed to ensure the care, health and safety of mokopuna.

There is not much room for deviation and nothing democratic about the funding, care, health and safety regime imposed by government. And just like the government the Trust imposes its own regulatory regime.

What is this talk about democracy and about representation?

If the Minister for Education and others insist on the Movement becoming more democratic the question needs to be asked whether the network of early childhood centres answering directly to the Ministry will be made more democratic as well. As the primary provider to that network will the Ministry itself become a more democratic organisation? I think not.

And if the Kohanga Reo Movement were to come under the direct jurisdiction of the Ministry would the Ministry make it more democratic? I think not. I think it would be less democratic.

So what is this talk about democracy and about representation?

If you look at schools and early childhood centres in the Ministry network they are all self governing and managing within the legislation and regulatory framework and within their allocated budgets but they have no say whatsoever in anything that happens beyond their own boundary fence. If you look at kohanga reo they are all self governing and managing within the legislation and regulatory framework and within their allocated budgets and they don’t have much say in what happens beyond their boundary fence.

In both cases what is important to them happens almost entirely inside the boundary fence and not in Wellington. The difference between them is that one is a mandatory government curriculum and the other is a kaupapa not designed, developed and dictated by government. The Kohanga Reo Movement is a kaupapa, and one that the Trust has fiercely defended and protected for 32 years.

So now some in the Movement and some outside the Movement think it should now be about democracy and representation. In whose interest would that be? In the interest of the kaupapa? In the interest of Te Reo? In the interests of the mokopuna? In the interests of the whanau? Whose interests?

I’m looking for the rationale here. Is this talk of democracy and representation about the kaupapa or is it about something else?

I think it would be a good thing for the Movement to move into a new phase in its evolution and to make provision for more formal input into Trust decision making and more transparency of that decision making. But we don’t need to tear the Trust apart to achieve that. Nor do we need to open trusteeship up to elections or something similar. There are other ways to achieve that.

In my time with the Movement I remember Dame Te Atairangikaahu and Dame Iritana being constantly on the move throughout the Movement meeting, talking and listening to the whanau, letting them know what was happening and listening to their concerns, coming back  to Wellington and lighting fires under the staff to fix things that needed fixing. Well, it was just Iritana who lit the fires. And it was Iritana who did most of the talking and the Lady who did most of the listening. It was a great double act. That’s how it was achieved then. I was with them occasionally.

How times have changed.

The author is not an expert in trust law but has picked up a bit of knowledge here and there. This article is intended as a guide to trust law as it affects Te Kohanga Reo National Trust (and all trusts) as well as further commentary on the continuing debate about the Trust.

Postscript

I notice that Dame Iritana Tawhiwhirangi and Maori TV CEO Paora Maxwell have just (18 June) “Friended” each other on Facebook. Now isn’t THAT interesting.

Postscript 20th June 2014

Maori TVs Native Affairs team has won two international awards from the World Indigenous Television Broadcasters Network for their investigative journalism, one of them for the programme “Feathering the Nest” about Te Kohanga Reo National Trust and Te Pataka Ohanga Ltd. See “Anatomy of a Scandal” below for the alternative story to “Feathering the Nest”.

Related Articles:

The Origins of Corporate Iwi
TKRNT and Credit Card Usage at Te Pataka Ohanga Ltd
Anatomy of a Scandal- Te Kohanga Reo National Trust

Minister Parata Interview

Native Affairs

Anatomy of a Scandal – Te Kohanga Reo National Trust

In the News, Te Kohanga Reo

In October 2013 I wrote commentary on an unfolding story about alleged financial mismanagement and corruption in Te Kohanga Reo National Trust (TKRNT) and its business subsidiary Te Pataka Ohanga Ltd (TPO Ltd). The accusers had attempted to link alleged irregularities in credit card use in TPO Ltd to alleged impropriety and misuse of public funds by TKRNT itself. I proposed that we wait for due process to find out the truth of the matter sensationally presented by the Native Affairs programme of the Maori Television Service. Subsequently two investigations were commissioned.

In March this year Minister of Education Hekia Parata released an Ernst & Young report into the financial governance and management of public funds by TKRNT. The report exonerated the Trust from allegations of financial impropriety. It did not convince those who had mounted the initial crusade against TKRNT or those who joined the crusade after the story broke in the media.

The report did not examine the activities of its business subsidiary TPO LTD because as Hekia rightly pointed out she did not have the executive power or responsibility to inquire into a privately owned entity. Nevertheless as a result of an outcry amongst those who were calling for drastic action against both entities and accusations of a cover up Hekia then asked the Serious Fraud Office (SFO) to investigate TPO Ltd. This week the Serious Fraud Office announced that it found no evidence of criminality in the activities of TPO Ltd.

The Department of Internal Affairs simultaneously announced that there were some irregularities in TPO Ltd’s compliance with some requirements of its charitable status and that TPO Ltd would be required to attend to those matters to prevent having its charitable status removed. That was seen by some as some vindication of their crusade against TKRNT and TPO Ltd. However based on my own involvement in charitable trusts for over 45 years I would say that is a minor matter easily remedied. A great many other charitable trusts and other charitable entities would also be in breach of the regulations one way or another. In my time as a voluntary trustee I have come across few trustees in community trusts, whether Maori or Pakeha, who actually understand trust law and few trusts that are fully compliant. They must first come to the attention of Internal Affairs before they are investigated and most but not all non-compliance is quite minor.

The reports on TKRNT and TPO Ltd, and the quite mild admonishment by Internal Affairs have still not of course quelled the unrest.

While all of that investigation was in progress TKRNT initiated and held a national hui at Ngaruawahia in April to chart the future of the Trust and the Movement. It came to a number of resolutions and set up a working group to report back later in the year. It was an exercise in damage limitation and damage control as well as, I’m sure, genuine intent to address many of the issues raised by disaffected whanau about the governance and direction of TKRNT and the TKR Movement, and to address concerns raised by the Minister.

In my previous article I wrote in part about the back story which was to my mind the real story behind the story, and still is. The media has in the main ignored the real story in favour of the sensational allegations and expose on Maori TV. In Maori terms the machinations, collusion and intrigue that constitutes the back story was, and ought to be still, by far the more interesting aspect of the whole saga.

The subsequent actions by TKR National Trust and Minister of Education Hekia Parata are also part of the back story and represent a master class in damage limitation and damage control through which the crusaders against the Trust were outflanked and neutralised, but not before they had inflicted considerable damage, at least in public perception. Having said that I’m sure that the crusade has not yet run out of steam and that there will continue to be an ongoing campaign against TKRNT.

This back story is about how a few disaffected kohanga whanau supported by some TKRNT staff and a few in the media pursued a narrow political objective in a way that almost brought down the whole of the autonomous kohanga reo movement and handed it over in pieces to Ministry of Education.

The Crusade

From time to time there have been disaffected whanau in the TKR Movement for as long as the movement has been in existence although in the beginning in 1982 the cohesion was much greater than it is at present. Much of the disaffection has been about the centralisation of power and authority in TKRNT, its sometimes autocratic decision making, and a belief that it wrongly consumes resources meant for kohanga reo. Some of it is fuelled by those who are involved with corporate iwi who want those neo-tribal entities to take over the functions of TKRNT. As the TKR Movement was founded first and foremost as a whanau empowerment and development programme (at the same time as most other development policy focused on “iwi”) that has been fiercely resisted by TKRNT (see The Origins of Corporate Iwi).

I suppose disaffection is to be expected as part of the evolution of any movement, and a natural outcome of the aging of the early leaders. After all there have been about three generations of mokopuna and their whanau involved in the movement and as always in the affairs of the generations the oldest generation is always seen to be past its use-by date and needing to be replaced. In most Maori organisations established during the “Maori Renaissance” there have been gradual retirements of the founding generation; not always willingly retired.

The present outbreak of disaffection started with the dismissal of the then CEO of TKRNT Titoki Black for reasons that are now in the public domain. There may have been underlying rumblings before that but her dismissal sparked a public outcry from her whanau and supporters in Mataatua and Tauranga-Moana. That went on for some months and developed into an orchestrated private and public campaign to have Titoki restored as CEO and to have the trustees of TKRNT removed. One Maori news organisation with links to the Mataatua Tauranga-Moana Collective openly sided with the campaign, or seemed to do so.

There was no legal way that could have the trustees removed except by proving to the High Court that they were in breach of trust, and absolutely no way to force them to reinstate Titoki except through the Employment Court. Neither was a viable course of action. Whether they knew it or not the only alternative was to have Government (i.e. Hekia Parata) defund TKRNT and provide TKR funding through another channel. Probably the only alternative channel acceptable to the government would be Ministry of Education, through its existing early childhood education programme, and that would defeat the original kaupapa of the 32 year old movement that has been fiercely defended by TKRNT especially by Dame Iritana Tawhiwhirangi for the whole of those 32 years. I’m sure the anti-TKRNT crusaders didn’t think that far forward into political reality; a takeover by the Ministry.

I’m sure the Trust itself is fully aware of that possibility and has been fighting on two fronts; firstly to stave off the allegations of corruption and misuse of public funding made through Native Affairs and secondly to prevent the TKR Movement falling into the lap of Ministry of Education.

Would government hand the TKR Movement over to corporate iwi instead? I very much doubt it because the regulatory structure governing kohanga reo is much the same as that governing early childhood providers. It provides for the care, health and safety of mokopuna. It is a very very strict regulatory regime and is tightly monitored. It would be almost impossible to enforce if a plethora of corporate iwi became the providers. At least with TKRNT it has just the one provider to oversee.

The crusade against TKRNT then ramped up with the leaking of financial information about credit card spending at TPO Ltd to Native Affairs. There ensued a legal battle between Maori TV and TKRNT, eventually won by Maori TV and the allegations were aired by Native Affairs and reported in most media outlets. The collective at Mataatua Tauranga-Moana were clearly involved in leaking information to Native Affairs as they were later quoted by Maori TV:

“However the collective of Kōhanga Reo from Mataatua Tauranga-Moana stand by their decision to go public and say that if Māori protocol was followed in the case of dismissing its former CEO Titoki Black, the issues thereafter would never have been made public”.

That was of course long before both TKRNT and TPO Ltd were cleared by two investigations.

The disaffected collective of Kohanga Reo has achieved neither of its aims but has seriously damaged the public perception of TKRNT, for the time being at least. Whether or not they have caused the TKR Movement to be handed over to Ministry of Education remains to be seen but I doubt that will be the case. They will have provided some impetus for TKRNT to re-evaluate itself and its continuing relevance to the kaupapa and to the movement and that is perhaps the one positive to emerge from the whole rather taudry public affair in which a collective of kohanga reo attempted to subvert the governance of TKRNT because they were aggrieved by a legitimate staffing decision.

The expose alleging financial impropriety was a means to a political end and not the main story at all.

Was there some irregularity in credit card use at TPO Ltd? Probably but not serious enough to warrant prosecution by the SFO, and certainly not indicative of financial impropriety in TKRNT itself.

The second part of the back story concerns the involvement of the Native Affairs team at Maori Television.

I followed the unfolding of the expose by watching Native Affairs broadcasts, by following most of the reportage and commentary in other media, but most importantly by following it in the Twitterverse. There were hundreds of tweets about the issue over a period of many weeks but the most interesting and revealing were those from three Twitter accounts associated with Native Affairs itself; one from the Native Affairs account and two from the personal accounts of two of the Native Affairs team. There was some commentary from the Maori TV corporate account. I also followed commentary in Facebook.

Whilst the public broadcasting face of Native Affairs was presented as that of an objective investigative team the fairly intense activity in Twitter revealed a subjective and personal face; the two faces of Native Affairs.

It became obvious in the Twitterverse that the Native Affairs team had taken personally the legitimate legal attempt by TKRNT to shut down the broadcast and it seemed that Native Affairs then joined the crusade against TKRNT as participants rather than objective observers. That personal involvement became more and more obvious after the allegations were broadcast and as TKRNT attempted to minimise the damage through the media. In the aftermath there was some public antagonism towards the Native Affairs team and they complained that they had wrongly become the story. That was disingenous because the twittering and tweeting couple on the Native Affairs team had already made themselves part of the story.

The tone of the Native Affairs response on Twitter was self righteous and triumphalist. It clearly showed that the Native Affairs team had gone beyond the bounds of objective investigative journalism and had joined the crusade. The Native Affairs team was conducting its own crusade through Twitter. It was a display of immaturity and a lack of professionalism. It wasn’t very smart either.

I have to admit that Te Putatara cannot abide righteousness and triumphalism whether in priest, politician or pundit.

The other thing that Native Affairs did not do was to tell the complete story in its total context, although it was well aware of the context. It withheld important information from its viewers in order to present just a single aspect of the dispute. That was unprofessional. Julian Wilcox and Jim Mather did the right thing in publicly and loyally defending their Native Affairs staff. In private one would hope they delivered a swift kick to the collective arse but perhaps they were not watching the antics on Twitter.

TKRNT itself could have taken a different course and participated in the Native Affairs report to present its own perspective although there was always the risk that its perspective would end up on the editing room floor.

The third part of the back story concerns the damage limitation and damage control measures taken by TKRNT and by Minister Hekia Parata.

The actions taken to limit and control the damage were bog standard and completely predictable. Although I didn’t write it at the time it happened exactly as I thought it would. Referring these matters to independent investigators is exactly the right thing to do especially if you know the outcome in advance and that the allegations will not be proven. If you know you’re guilty then you need to do something else. It also takes time and time will often take the heat out of any dispute or scandal.

The finding of the Ernst & Young report also gave Hekia Parata an opportuntiy to warn TKRNT to smarten its act lest it be defunded, probably intending that TKRNT smarten its act and keep its funding, although I couldn’t possibly claim to know the mind of the Honourable Minister of Education from Ngati Porou.

TKRNT itself embarked upon the obvious course by calling a national hui. It has been calling national hui to chart the progress of the movement (and dampen disaffection) for all the years of its existence. This one was perhaps the most crucial but it was just another one in a long succession. The hui in the domain of TKR patron Kingi Tuheitia was in exactly the right location to ensure a minimum of disruption and dispute and to rally support for the Trust. Standard Maori political stuff.

The appointment of a working party (Sir Toby Curtis, Ruka Boughton, Dr Tania Simpson, Dr Kathie Irwin, Dr Kathie Dewes, Dr Rawinia Higgins and Ropata Hepi) to progress the resolutions of the hui brought undisputed mana and expertise to the kaupapa and added valuable time to the process, especially to allow time for the SFO investigation to be completed.

I would confidently predict that after the report of the working group TKRNT will continue its role with perhaps some structural and procedural modification.

The amusing sideline to the hui was that Native Affairs was excluded, complained about it long and loud, and received support from other media. They should not have been at all surprised as they had openly joined the crusade against TKRNT and were no longer objective observers and reporters.

And although TKRNT through its media advisor Derek Fox has called for apologies perhaps it will be enough for two talented but momentarily misguided young women to call on Dame Iritana. I’m sure she will be her usual forgiving self. She’s forgiven Te Putatara often enough.

The whanau from Mataatua and Tauranga-Moana will have to be satisfied with the outcome of the working party and subsequent decisions by the Minister. Here is  their press release issued after the national hui at Turangawaewae.

Next Post

After the Kohanga Reo Scandal – Some Observations on Trust Law, Tikanga and Democracy

Postscript

Maori TVs Native Affairs team has won two international awards from the World Indigenous Television Broadcasters Network for their investigative journalism, one of them for the programme “Feathering the Nest” about Te Kohanga Reo National Trust and Te Pataka Ohanga Ltd.

Operation 8: Human Rights Commission Report

In the News, Operation 8, Spooks & Maori

Read the complete analysis of alleged Maori terrorism in the Urewera

The Human Rights Commission has finally released its report into Operation 8 and the human rights violations associated with the armed paramilitary operation at Ruatoki and elsewhere on 15th October 2007. It should be read in conjunction with the Independent Police Conduct Authority report published in May 2013. Both reports can be downloaded at the following links.

HRC Report
IPCA Report

Both reports focus on the actions of the armed paramilitary police on the day of their operation on 15th October 2007. The IPCA report addresses unlawful behaviour by the police and the HRC report addresses human rights violations. Neither looks any deeper at the justification for Operation 8. That will only be achieved through a full and independent inquiry into the conduct of Operation 8 from beginning to end. The activities on 15th October 2007 were just the visible tip of the iceberg.

Now I don’t know myself but The Kumara Vine reports that the first draft of the HRC report was so weak they were told to rewrite it.

Media Release

Commission releases Operation Eight human rights analysis

Today the Human Rights Commission released a report on Police actions during Operation Eight concluding that innocent people were exposed to unnecessary trauma and had their human rights negatively impacted.

The Commission received 31 complaints about Police actions covering a range of concerns including being stopped at the roadblock at Ruatoki and photographed without consent, the negative implications of using the Terrorism Suppression Act, and the impact on children confined for several hours, some without food.

“Our report focuses on the innocent people affected by the operation. These people had done nothing wrong and did not break any laws but had their basic rights trampled. The report does not deal with those people arrested or charged,”  says Chief Commissioner David Rutherford.

“The report also concludes that no comprehensive assessment of the impact on innocent people was carried out; and insufficient support was provided to innocent people.

“It’s very clear more should have been done in the immediate aftermath to support innocent people. We make five recommendations to help ensure negative impacts are minimised in the future.

“On the positive side, much progress has been made since 2007. We’re pleased to see Police have made changes to their processes and policies to ensure this doesn’t happen again. For example, we welcome the completion of a review of Police policy for dealing with children and vulnerable people when executing search warrants.

“It is also worth noting that new search and surveillance legislation has been introduced since Operation Eight that addresses much of the behaviour complained about.

“The Commission’s report follows the conclusion of related court cases and the release of the IPCA report earlier this year. We considered it inappropriate to release our analysis before the completion of these two matters.

“Over recent months the Commission has been consulting with both Police and Tūhoe leadership and we understand that substantial progress has been made in repairing the relationship. My hope is that this report will help further that endeavour,” says Mr Rutherford.

Links: The Operation 8 Series

Operation 8: Commissioner Marshall at the Maori Affairs Select Committee

In the News, Operation 8, Politics, Spooks & Maori

Read the complete analysis of alleged Maori terrorism in the Urewera

On 4 December 2013 Police Commissioner Peter Marshall appeared before the Maori Affairs select committee to answer questions relating to Operation 8 surveillance of several people who were not involved in the activities in the Urewera and about the ongoing surveillance activities for several years after the armed paramilitary operation on 15th October 2007. The questions were put by Maori Party co-leader Te Ururoa Flavell and related to a document he produced.

After the session as he spoke to reporters at Parliament Commissioner Marshall was his usual dismissive self and said he would take the document and look into the matter. He also continued the process of spinning his way out of any serious and in-depth investigation into police conduct during Operation 8 by talking about his relationship with Tamati Kruger and their ongoing discussions about repairing the relationship between Ngai Tuhoe and the NZ Police. He disclosed that he would be visiting Ngai Tuhoe before his present contract ends in April 2014.

A day later Shane Jones weighed into the issue by challenging Flavell to “put up or shut up”. The select committee hearing was closed to the media and the document in question has not been released to the media. Jones called for it to be tabled in Parliament. Flavell has declined.

Commissioner Marshall will come back and he will say that the document is not a police document. He will then spin another story about how it cannot be relied upon or somesuch. Jones will crow about how Flavell got it wrong or something like that.

Marshall will be right. Jones wrong. The document is not a police document. It is however a spreadsheet that was circulated among some of the original Operation 8 co-accused. It was compiled, as far as I can ascertain, by one or two of the co-accused from over 60,000 pages of police evidence that were dumped on all of the defence lawyers following the suppressed depositions hearing in the Auckland High Court in August and September 2008. The court had ordered the police to hand over that evidence. The co-accused and defence teams spent hundreds of hours reading it, cataloguing it, and in some cases building their own indexes.

The document that found its way to Te Ururoa Flavell’s office was one of those indexes. Although it is not a police document it is a very accurate and complete record of all of the Operation 8 evidence including references to several documents that were withheld from the defence.

The police and politicians might then use the fact that it is not a NZ Police document to rubbish the claims made by Te Ururoa based on the document.

However it is not the document itself that contains the evidence Te Ururoa Flavell is referring to. The document refers to the evidence. The evidence itself is real, it comprises over 60,000 pages of real police documents, and it is in the hands of all of the defence teams. If Commissioner Marshall is to honestly reply to the questions at the select committee he will need to put a team onto the job to delve into that huge evidence dump for themselves.

Spin will not suffice.

And I’ll give you a hint Commissioner as to why Operation 8 surveillance went wider and deeper than it should have. It was because your predecessor deliberately excluded Superintendent Wallace Haumaha and any Maori from the intelligence management and analysis process. Your Northern SIG team were therefore flying blind into Te Ao Maori and casting about and profiling whoever they could find to put into their network of suspects. You can spin the exclusion of the principal Maori advisor any way you want but it comes down to nothing more than a stupid unprofessional decision based in ignorance, racism and paranoia. We also know that no matter which way you spin it Superintendent Haumaha was deeply offended by that racist decision.

Links: The Operation 8 Series

TKR National Trust & Credit Card Usage at Te Pataka Ohanga Ltd

In the News, Te Kohanga Reo

Maori TV recently screened an Part 1 of an expose “Feathering the Nest” (and Part 2 here) on credit card usage at Te Pataka Ohanga Ltd, a company wholly owned by Te Kohanga Reo National Trust. They have specifically targeted the credit card spending of TPO Ltd manager Lynda Tawhiwhirangi and her mother-in-law Dame Iritana Tawhiwhirangi who is the former long serving CEO of the Trust, now a lifetime trustee, and also a director of TPO Ltd.

For seven weeks the Trust tried to prevent the story from being screened. It has received a lot of attention in the media and by bloggers, including Morgan Godfery and Graham Cameron. No Right Turn commented on John Key’s remarks and on the different standard John Key applied to his own MPs. Predictably the Pee Party’s Cameron Slater has written a piece Dodgy Maori Ratbags on the Take. TKR National Trust has belatedly mounted a media response here (and here) that has largely been drowned out by the adverse coverage. There has been a spirited defence by Johnny Nepe Apatu on Facebook. Professor Ranginui Walker says the Board needs new blood. David Cunliffe has commented that an independent inquiry is needed. Hekia Parata and Pita Sharples met with the trustees and they have between them agreed to an independent audit. It has also been announced by TPO Ltd that a “staff member” has been suspended and an internal investigation is underway.

E hika ma, now it’s my turn.

I know a bit about Te Kohanga Reo. My marae was an early participant in the movement, I am on the board of a trust that established a kohanga reo in Hastings and my daughter has run a kohanga reo in Hawke’s Bay for decades. Most of my mokopuna and great-moko are kohanga kids. Not that I’ve been intimately involved in running a kohanga reo myself. TKR National Trust was one of my clients in the 1990s when Dame Iritana was CEO and the late Sir John Bennett was Chairman. I got to know the larger movement at close quarters. For a short time I acted as manager of TPO Ltd until they appointed a permanent manager. At that time Lynda Tawhiwhirangi was my assistant. I know a bit about the internal workings.

Ironically, in view of this present standoff between Te Kohanga Reo National Trust and the Maori Television Service, I also represented TKR National Trust on the panel that negotiated the establishment of Maori Television with Cabinet (Tau Henare and Maurice Williamson). The Trust is part of the whakapapa of MTS. Just one of life’s ever present little ironies. Dame Iritana was a staunch supporter of that kaupapa too.

Dame Iritana is also a good friend of some 25 years standing. She can be infuriating at times but she is always a staunchly supportive friend. Before she became CEO of Te Kohanga Reo National Trust she was a senior officer in the Department of Maori Affairs. We were on opposite sides then but she impressed me with her ability to set aside what divided us and to focus on creating a good relationship based on mutual respect. She has been the most fierce advocate for the Kohanga Reo Movement since it started in 1982, a force to be reckoned with, respected as a successful lobbyist and negotiator for the Movement by successive governments. Whatever the outcome of this affair she will retain my  respect and friendship and her legacy will remain.

Would that the rest of us had made a comparable contribution to Maori advancement. We would be streets ahead of where we are today. The present generation of Maori leadership and her critics would do well to emulate her selfless dedication to the cause over more than five decades. And who among us is without fault.

Now, before any of you accuse me of bias let me state right at the beginning that I do not condone the free and easy use of corporate credit cards. In my company before I (semi)retired I did not issue credit cards to my staff, not because I didn’t trust them but because I knew that there was always the temptation to use the card, fully and honestly intending to pay back the expenditure. Politicians in New Zealand and Australia have been guilty of the same indiscretions time and time again. There is sometimes also a blurred line between what is or is not a legitimate business expense. And there is also the risk of illegal or irregular use of the cards. So I never issued credit cards, except to myself of course. Well I do own the company so I can make an exception. I have also never accepted any other corporate credit cards, although they have been offered, not because I don’t trust myself but because credit card spending is so often the target of muck rakers.

And I am not offering a defence of credit card spending at TPO Ltd. I’m going to wait and see the result of the audit. It does on the surface look bad for Lynda but I’ll reserve judgement until all the facts are known. The media case against Dame Iritana looks less certain but again I’ll reserve judgement.

Whilst the media has conflated an allegation against a director and the manager of TPO Ltd into an allegation against the shareholder as well (TKR National Trust) I will again reserve judgement until the facts are known. But they are two separate entities and there is a difference in law if not in public perception. The fact that the company and the shareholder are located in the same building and share facilities and services does not alter that legal separation. The fact that the three directors of TPO Ltd are also trustees of TKR National Trust does not alter the fact that the two are separate legal entities. The Trust is subject to trust law and the company to corporate law, two separate but similar legal regimes.

The media has also confused in the public mind the $80 million public funding that is granted to the Trust itself, and the Trust’s financial management, with the financial affairs of TPO Ltd. The two are separate accounting entities and any wrongful use of TPO Ltd funds (if proven) cannot be used to infer wrongful or negligent use of Trust funds, unless and until that is also proven. I don’t expect those who are baying for blood to acknowledge the difference.

So what is Te Pataka Ohanga Ltd.

Te Pataka Ohanga Ltd was established to transact business primarily aimed at gaining wholesale or discounted prices for purchases by individual kohanga reo. These purchases included motor vehicles, fuel, whiteware, technology, playground equipment, and insurance. In my time we also managed a scheme where we contracted specialist ear, nose and throat surgeons to perform grommet operations on thousands of mokopuna to deal with a widespread glue ear problem. We maintained a register of approved wholesale or discount suppliers of almost everything a kohanga reo needed. I made myself unpopular with Maori suppliers who thought they should have been on the register simply because they were Maori, instead of because of the quality of their product or service and the size of the discount. TPO Ltd has probably saved the TKR Movement several million dollars of that public funding over the nearly 30 years that it has operated.

These business activities do not sit well inside trust law and are best performed in a company structure. I can’t recall exactly how much commission or fee TPO Ltd charged for that service but the company does need to make some income to cover staff, office and operating expenses. In my time at least it was not a highly profitable enterprise but it focused on the service and savings it could deliver to kohanga reo. I would imagine that with the shrinking of the number of kohanga reo over the decades it too has reduced its activity.

As I wrote above I’m prepared to wait for the evidence before I pass judgement on the allegations. What does intrigue me however is the background story, or lack of it.

But first. On 13th September 2013 I commented on the mini furore around the non-appointment of a new CEO at Maori TV. That story had obviously been made public in the media by leaks from within Maori TV itself. This TKR story has also been kicked off by leaks from within TKR National Trust. So there’s another story in there somewhere – “MTV & TKR – Leaker & Leakee, Leakee & Leaker“. Sounds like a Chinese volleyball team. Maybe the Native Affairs team were also involved in the MTV leaks. Wouldn’t that make a good storyline for a Maori sitcom. A bunch of righteous Maori disguised as a Chinese volleyball team. I bet some of them are Mataatua Chinese. E Pio?

Sorry about the diversion. My wierd sense of humour often gets the better of me.

So what is the background story. I’m prepared to bet that Dame Iritana and the TKR National Trustees are the real targets of the leakers, and that TPO Ltd and Lynda Tawhiwhirangi are the means to that end. It would serve their purposes to paint any irregularities in TPO Ltd’s financial management as irregularities in the overall governance of the Trust. If that is the case they have achieved their aim through Maori TV and other media. Whether or not they are ultimately successful will depend on the independent audit and any other interventions that might or might not be triggered by that audit.

This all seems to be related to the dismissal of another friend Titoki Black as CEO of the Trust. That caused a great deal of protest from within the TKR movement especially in Mataatua and Tauranga Moana. But the Trust stood firm. The real story is that this leaking of information to Native Affairs is part of the campaign to restore Titoki as CEO, or at least to exact utu for her dismissal. The campaign is obviously supported by at least one staff member within TKR National Trust and according to trustee Tony Waho:

“Someone has gone into the trust records, we have this under investigation, and stolen credit card records. They were passed on to Maori Television who no doubt tonight [Monday 14th] are going to try to make links to dots that don’t exist”.

Folllow the whakapapa trail Tony, from TKR Trust to Native Affairs. Should be  a simple investigation.

It seems to be a fairly simple background story too and perhaps Maori TV might do a follow up to share the whole story with us. Perhaps not. But while the TPO Ltd story does involve some substantive issues as well as the obviously sensational benefits to would-be investigative journalists, the background story is by far the most intriguing. Misuse of credit cards is so commonplace it only has real news value when it involves politicians or Maori, or Maori politicians.

So. Now that the Native Affairs people have blooded themselves as investigative journalists in this small scale trial run on an easy target I’m looking forward to the full blossoming of their investigative talents as they take on the real villains, Pakeha and Maori – million dollar corporate fraudsters, crooked or hypocritical politicians, corrupt public servants, unlawful police activity against Maori, the serious erosion of democracy by governments, the blind refusal of governments to seriously tackle Maori poverty, the big stuff. Talk to Winston Peters. He knows where a lot of the skeletons are hidden.  Aim high e hoa ma, aim high.

I’m also prepared to bet that Lynda Tawhiwhirangi will be the only casualty of this trial run, if there are any casualties. But I could be wrong. Perhaps, like Winston, Native Affairs is holding back the rest of the story for a follow up revelation.

Postscript 23rd October 2013

Yesterday on Radio Waatea Tariana Turia expressed her concerns about Maori TV. Her comments were released by Waatea “Minister Turia loses heart in Maori Television“.

Following that Maori TV published an article by Maiki Sherman titled “Minister’s mis-step in Parliament“. The article is about Pita Sharples retracting and correcting a statement he made in Parliament. The attitude of the Maori Party, including Tariana Turia’s comments about Maori TV, is described. This paragraph says much about the real story:

“However the collective of Kōhanga Reo from Mataatua Tauranga-Moana stand by their decision to go public and say that if Māori protocol was followed in the case of dismissing its former CEO Titoki Black, the issues thereafter would never have been made public”.

Maori TV has now revealed that it was working with the Mataatua Tauranga-Moana group and that the dismissal of Titoki was the underlying reason for the publication of the credit card usage at TPO Ltd.

Today Julian Wilcox, head of News and Current Affairs at Maori TV spoke on Radio Waatea in defence of Native Affairs. He expresses his concern that Maori TV has become the story. He confirms that the Mataatua Tauranga whanau approached Maori TV in the first instance. It’s a small world. I knew Julian when he was head boy at Te Aute College and I was a member of the board of trustees. He was an outstanding pupil and incidentally one of the first generation of kohanga kids to graduate from Te Aute.

Postscript 20th June 2014

Maori TVs Native Affairs team has won two international awards from the World Indigenous Television Broadcasters Network for their investigative journalism, one of them for the programme “Feathering the Nest” about Te Kohanga Reo National Trust and Te Pataka Ohanga Ltd. See “Anatomy of a Scandal” below for the alternative story to “Feathering the Nest”.

See also

Anatomy of a Scandal – Te Kohanga Reo National Trust (12 June 2014)

Maori TV – finding a new CEO

In the News

It’s difficult to know what the real story is at Maori TV.

The media campaign seems to be led by John Drinnan at the NZ Herald and it has been politicised in Parliament by Clare Curran, MP for Dunedin South, with Shane Jones weighing in as well. Some “iwi” interests that want to divert funding from the TV Service to “iwi” TV might be mixed up in the saga as well.

Crown appointed Board member Ian Taylor has resigned over the issue. There’s nothing unusual about that. When you disagree with board process or decisions you either win your argument, gracefully accept defeat, or resign. Happens all the time.

On the other hand Maori TV staff have joined the public fray, or perhaps caused it  by petitioning to block the appointment of Paora Maxwell. It seems obvious that members of the staff have been feeding the media and perhaps the Labour Party.

It is reported that Carol Hirschfeld, Mike Rehu, Paora Maxwell and Richard Jefferies applied and that Maxwell and Jefferies were the two finalists. The Board was divided between the two. That’s not an unusual situation, except that the mischief makers have muddied the waters by implying that the process was somehow invalid because of a mentoring-type relationship between Maxwell and Board chair Georgina Te Heuheu, who took him under her “Aunty Georgy” wing a long time ago. The board itself has said that all conflicts of interest were declared as part of the process. The shortlisting proccess was overseen by the deputy chair so Georgina’s declared interest should not have influenced Maxwell’s selection to the final list.

The conflict of interest of one board member, even if that is the chairperson, is easily dealt with according to standard procedures. It should not be a problem at all. There were six other members of the board before Taylor’s resignation.

The Maori TV board members are Georgina Te Heuheu (Chair), Cathy Dewes, Piripi Walker, Rikirangi Gage, Tahu Potiki (Deputy Chair), Donna Gardiner and Ian Taylor (up to his resignation). Georgina, Donna and Taylor are Crown appointees. That’s a fairly impressive lineup well able to make the right decision. So if they were unable there must have been good reasons for that. One good reason is that it seems they were trying to reach a unanimous decision. Well anyone who has done anything in Te Ao Maori (and in Te Ao Pakeha) knows that unanimity is very very difficult. Good luck.

On the surface it looks like a choice between a broadcaster (Maxwell) with limited management experience and a manager (Jefferies) with no broadcasting experience. The outgoing CEO was certainly not a broadcaster and under his stewardship MTS flourished. If a broadcaster is appointed he or she must have strong management credentials, or must have a strong management team around him or her. No doubt there are also considerations about Te Reo revitalisation and promotion.

What usually happens when a board cannot decide on an appointment is that you start the process again and interview the other applicants and/or call for new applications. It is better to start again than to compromise on an appointment. After all the whole board has to be able to work with the CEO. So whatever the reasons for the standoff the proper process is to start again.

No doubt the media and politicians are not revealing all that they know, or think they know, but who cares. There are often issues with senior appointments particularly in a small country like New Zealand where everyone in a certain field knows everyone else.

Board conflict over senior appointments is commonplace and is usually resolved out of the glare of the media and free of political interference. What we need is for the best possible person to be appointed CEO of Maori TV to take it through the next phase of its journey. The board were unable to decide so they should start again. There’s nothing unusual about that despite what we are being told.

Shane Jones and the Labour Leadership

In the News, Politics

I could be wrong, but …..

Politics is tribal. National is a tribe. Labour is a tribe. And they are not Maori tribes or anything remotely resembling Maori tribes, they are mainstream mostly Pakeha political tribes. And that distinction seems to be lost on all those Maori rooting for Shane Jones to become Labour leader. He hasn’t got a hope. Deputy leader perhaps if Labour thinks that might bring back all the Maori seats without losing Pakeha support in its electoral base.

You get to the top of Labour’s greasy pole firstly by building your own hapu within the hapu matua so that your hapu outnumbers all of the others. Some do it over whiskeys during late night male bonding sessions, some do it by trading favours and making promises they might or might not keep, some just by being nice guys, some by being bastards, some through their ability to attack and inflict damage on the opposing tribe, some through superior intelligence and competence, and a thousand other ways of manipulating the numbers. The ones who usually make it to the top of the pile use all or most of the above. Those who make it to the top without putting in the hard yards usually don’t stay there for long. Shane hasn’t put in enough of the hard yards.

Koro Wetere was a master. In his day Koro commanded the largest vote in the caucus when Cabinets were elected and was the first into Cabinet. But even with that huge support he was never a contender for leader or deputy leader. It took more than popularity. Parekura Horomia was a master, personable and hugely popular. Yet he was never a contender for leader or deputy leader. But popularity is a good place to start.

Shane Jones will never be as popular in a Labour caucus as those two. He starts behind the eight ball and like Cunliffe will have to get there despite his limited popularity. Which means he will have to work even harder and demonstrate superior political ability to get the numbers.

You don’t get to the top of Labour’s greasy pole because you’re Maori, and because heaps of Maori think it’s time a Maori did lead Labour after generations of loyal Maori support at the ballot box.. You get to the top of the pole because your caucus colleagues think you are the best electable potential prime minister they have, and if you lead them to victory you will keep them in power. You get to the top also because you promise to put your supporters on the front bench and that comes back to the numbers.

The traditional voting Labour support base was in the working class and their trade unions. That traditional base has eroded and much of it has gravitated to NZ First and National. It always had a large very conservative element. Much of it was and remains racist and anti-Maori. The modern support base now includes the educated liberal and progressive elites who vacillate between Labour and the Greens. To win elections Labour must somehow appeal to both sides of its constituency.

Political parties mostly win elections because the electorate gets fed up or bored with the other lot but they still have to appeal to the voting constitutency by presenting a credible and electable leader.

Shane is up against it. The conservative Pakeha base will never vote for a Maori prime minister, not yet they won’t, and the liberal Pakeha (and female) base will never vote for someone who presents himself as blokey, and is rightly or wrongly thought to be just a bit sexist. And you have to ask why some of the Maori women in caucus aren’t supporting him.

Shane Jones is in the wrong Pakeha tribe if he wants to be prime minister. He would probably do better in National.

Terrorism: A Grownup Threat Analysis

Democracy, In the News, Politics

This essay looks at the security and economic absurdities of the anti-terrorism crusade, a crusade that despite its high economic cost has had a negligible effect on mortality. If the policy objective is to save lives the money should be spent elsewhere.

The thing that strikes me about the focus of politicians and of  law enforcement, intelligence and security agencies on the threat of “terrorism”, and the need for a whole raft of new legislation designed to combat “terrorism”, is the total lack of a grownup public threat analysis. We are asked instead to trust those who lay claim to having the secret information necessary to quantify the threat, and to trust entirely in their secret threat analysis. That’s not good enough. And more to the point, it’s total humbug.

Security should be based entirely on threat or risk analysis, and the response to perceived and actual threat should be in relative proportion to the total level of threat to the safety and wellbeing of the society. The response to threat in a liberal democracy should also be balanced against the principles of democracy and against the level of threat or risk a liberal democracy should be able to accept without compromising or eroding the democracy itself.

It is a principle of democracy that governments, law enforcement agencies, and security and intelligence agencies should have their powers curtailed to the extent that those powers do not unnecessarily encroach upon the freedoms, liberties and rights of citizens. That’s supposedly why we have the New Zealand Bill of Rights. Unlawful police encroachment does occur, for instance in the Kim Dotcom case which has caused the present public outcry against the GCSB Bill. What is necessary or unnecessary encroachment should be determined by grownup public analysis of the threat or risk.

In threat analysis we should look at the balance between threat and security, and the level of threat that can be and is presently acceptable and accepted. Criminality in society is matched by a fairly large police presence enforcing the Crimes Act and other criminal legislation. The society accepts that level of encroachment as necessary except when the police exceed their lawful powers as they sometimes do. Even so the society accepts also that the police cannot prevent all crime and that we must all accept a level of criminality and risk to person and property. We must all also take primary responsibility for our own security, for the security of our families and for the security of our businesses. We live with a level of risk and threat without demanding that Government protect us from every possible risk and threat.

That approach forms the basis of the following outline threat analysis.

What is Terrorism?

Terror is not an enemy. Terror is a weapon. There can be no such thing as a “war on terrorism”.

Terror is a weapon used by the weak against the strong. By definition terror should not be able to prevail against the strong but in recent times it has. That is because less that 1% of terror represents a physical threat to the western liberal democracies and more than 99% of the threat is psychological. It has succeeded against the West because terror is primarily a psychological weapon and the western liberal democracies have succumbed to the psychological threat in trying to protect against a relatively minor physical threat. “Relativity” is the key word that will be expanded upon later.

The West has grossly over-estimated the relative threat to their own societies and they have introduced anti-terrorism and mass surveillance legislation and regulation that far outweighs the real relative threat to society. That was the strategy of Osama bin Laden in September 2001 and he succeeded beyond his own dreams, on a worldwide basis. His killing by Seal Team 6 has done nothing whatsoever to limit the success of his strategy.

The primary target of those who employ terror in the modern context is not the western liberal democracies at all. Their targets are their own people in their own countries. They aim to demonise secular and liberal Western society and to convince their own countrymen and women of the social and moral threat those societies and their systems of governance represent. They aim to corral the minds of their own people in order to impose their preferred version of religious governance, usually under Sharia Law, in their own countries.

They demonstrate their superior political power and morality to their own people by provoking the liberal democracies to go to war against them, to drag those democracies into unwinnable wars in foreign places, and in doing so to cause mass disruption, and civilian casualties. They are then able to convince their own people that the liberal and secular democracies are waging war against the civilians in the warzones and against Islam in general. They drag the armed forces of those liberal democracies into conflicts they cannot win and they demonstrate to their own people the vulnerability of those supposedly superior forces to the tactics of the weak, such as improvised explosive devices (IEDs), suicide bombers, and the hit and run tactics of the guerilla and insurgent.

They join their highly mobile legions of international fighters into the wars of others in order to hijack those wars to serve their own cause, such as in Libya, Egypt, Iraq, Afghanistan and Syria. To achieve their aims they sacrifice countless thousands of their own heavily indoctrinated and religiously brainwashed foot soldiers. They know they are not going to defeat the West. But they know with complete certainty that they are going to win the war for the hearts and minds of their own people. “Allahu akbar” they cry all over the world. And behind every chant lies another captive mind.

The proper and mature response to psychological warfare is to ignore it. To have trust and confidence that our own liberal democratic and secular societies are strong and robust and well able to withstand the minimal physical threat the wielders of terror actually pose. The immature response is to succumb to the psychological threat and to vastly inflate the physical threat.

Who are these so-called “terrorists”

Who are the people who wield the weapon of terror?

The Terrorism Suppression Act empowers the Prime Minister to declare persons and organisations as terrorist. That latest list of “terrorist designated entities” can be downloaded here.

They are overwhelmingly Taliban and Al-Qaeda entities throughout Afghanistan, Pakistan, the Middle East and Africa. They are also United Nations designated entities in Iran, Peru, Turkey, Bangladesh, Palestine, Columbia, Philippines, India, Pakistan, Lebanon, Ireland, Somalia, Spain and France (the Basques). They are all overseas, far from New Zealand’s shores.

What is obvious from the list of “terrorist designated entities” is that the real targets or enemies are Islamic extremists around the world, except that we cloak them in the mystique of “terrorism”. In doing so we magnify in the public mind the real threat that Islamic extremism poses to New Zealand, and broaden our security response far beyond what is necessary to combat the actual threat level of Islamic extremism. It is the immature response to psychological warfare.

Perhaps by focusing on “terrorism” we also seek to alleviate the concerns of the majority of peaceful Muslim people by not actually naming the threat as Islamic extremism. But in naming it as “terrorism” we achieve the opposite by creating in the public mind a belief that all Muslims are potential terrorists. We might all be better off calling a spade a spade. And by changing the language we would change the nature of the security debate as well.

How many Islamic extremists are there in New Zealand? Less than 1000? Less than 100? We don’t know because that’s a secret. Perhaps we can infer from Prime Minister John Key’s public statements that there are less than 10 a year. Whatever the number, real or imagined, in a population of 4 million plus it is a very low threat level.

We can safely assume that the SIS has infiltrated Muslim communities and has many Muslim informants. We can safely assume that the SIS has the names of real or potential Islamic extremists in New Zealand and has them under surveillance. Why therefore do we need to enact legislation that has the potential to bring the whole population under surveillance, whether intended or not. Why therefore do we impose security legislation and restrictions on the whole population? In the face of that level of threat why do we enact legislation that erodes democracy?

I know, they going to tell us that the level of threat is much much greater but they can’t tell us about it and publicly prove it. Humbug.

What are acts of terror?

“Terrorist Acts” are defined in the Suppression of Terrorism Act 2002.

(1) An act is a terrorist act for the purposes of this Act if—

(a) the act falls within subsection (2); or
(b) the act is an act against a specified terrorism convention (as defined in section 4(1)); or
(c) the act is a terrorist act in armed conflict (as defined in section 4(1)).

(2) An act falls within this subsection if it is intended to cause, in any 1 or more countries, 1 or more of the outcomes specified in subsection (3), and is carried out for the purpose of advancing an ideological, political, or religious cause, and with the following intention:

(a) to induce terror in a civilian population; or
(b) to unduly compel or to force a government or an international organisation to do or abstain from doing any act.

[Subsection (3) below contains the actual definition of terrorist acts].

(3) The outcomes referred to in subsection (2) are—

(a) the death of, or other serious bodily injury to, 1 or more persons (other than a person carrying out the act):
(b) a serious risk to the health or safety of a population:
(c) destruction of, or serious damage to, property of great value or importance, or major economic loss, or major environmental damage, if likely to result in 1 or more outcomes specified in paragraphs (a), (b), and (d):
(d) serious interference with, or serious disruption to, an infrastructure facility, if likely to endanger human life:
(e) introduction or release of a disease-bearing organism, if likely to devastate the national economy of a country.

(4) However, an act does not fall within subsection (2) if it occurs in a situation of armed conflict and is, at the time and in the place that it occurs, in accordance with rules of international law applicable to the conflict.

(5) To avoid doubt, the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that the person—

(a) is carrying out an act for a purpose, or with an intention, specified in subsection (2); or
(b) intends to cause an outcome specified in subsection (3).

The Act then goes on to detail a number of those offences including:

  • Bombing
  • Financing designated entities
  • Belonging to or dealing with designated entities
  • Recruiting
  • Participating
  • Harbouring or concealing
  • Plastic explosives and nuclear material
  • Radioactive material

That is a relatively small range of offences in relation to the criminal law in New Zealand. All of them are already contained in or could be added to the Crimes Act 1961 and other relevant legislation without the need for a separate terrorism act.

What seems to be obvious is that the criminal acts that are defined as “terrorist acts” in the Suppression of Terrorism Act are not that much different from the normal everyday criminality that we live with. What is different is the response, and the much greater powers the Act confers upon the Prime Minister, the Parliament and the response agencies. And that seems to be the real purpose of the Act.

If a comparison is made between those “terrorist” threats to society and the real everyday threat from the transnational criminal bikie gangs, and other transnational gangs and crime syndicates in the illegal drugs, weapons and slave prostitution markets, the threat is small. They don’t tell us much about those real threats either, from behind the veil of secrecy, security and intelligence.

The relativity of threat

We look now at the crime statistics reported by the NZ Police for the year ending 31st December 2012. A copy can be downloaded here. I summarise the statistics below in broad outline. The detail is in the downloadable file.

  • Murder – 42
  • Manslaughter – 14
  • Assault etc – 40,851
  • Sexual assault etc – 3,512
  • Dangerous or negligent acts endangering persons – 1,022
  • Various offence against the person – 12,476
  • Robbery etc – 2,199
  • Unlawful entry etc – 52,031
  • Theft etc – 119,476
  • Fraud etc – 8.013
  • Drugs – 20,792
  • Weapons & explosives – 6,063
  • Property damage – 48,901
  • Public order – 42,522
  • Justice process, government security (5), government operations – 15,797
  • Miscellaneous – 1,384
  • Total – 376,013

I would add:

  • Acts of terror – NIL

What do we New Zealanders die of?

These are the major causes extracted from the Ministry of Health morbidity statistics for 2009.

  • Cancers – 8,437
  • Heart disease – 5,553
  • Strokes – 2,488
  • Diabetes – 869
  • Motor vehicle accidents – 420
  • Suicide – 510
  • Assault and murder – less than 100

To which I would add:

  • Acts of terror – NIL

So I conclude that:

From the crime and morbidity statistics it would seem that the chances of dying at the hands of Islamic extremists, or of being the victim of their criminality, are extremely remote. The likelihood of suffering at the hands of our own home grown criminals is much greater than at the hands of Islamic extremists yet it is still not so great that we cannot and do not accept and live with the threat of criminality on a daily basis.

At the age of 70 I am greatly assured that I will most likely die from one of the common medically defined conditions or simply of old age at some time within the next 30 years. I am greatly assured that I will probably not die at the hands of Islamic extremists. Although I stand a greater chance of being murdered or the victim of manslaughter at the hands of our own criminal class (or at the hands of my own family) I am assured that that too is only a remote possibility.

In fact if you were to analyse the detail of murder, manslaughter and assault in its various forms you would probably find that you are at much greater risk from members of your own family than you are from Islamic extremists. Just to put things into perspective.

I suspect that the Terrorism Suppression Act and the raft of other terrorism related and surveillance legislation does not and will not affect the level of risk and threat I face on a daily basis as a free citizen in a democratic society. For I suspect that the perception of threat from Islamic extremism in New Zealand is immature and inflated in response to psychological warfare launched from far away places, rather than in response to a real physical threat in New Zealand.

What New Zealand needs is a grownup risk and threat analysis conducted in public, and not conducted from within the secrecy confined, limited worldviews of gullible politicians and the law enforcement, security and intelligence establishment.

Jon Stephenson, Journalist’s Rights, NZ Defence Force

In the News, Politics

A disclosure:

  • I’m a former army officer who served in Borneo and Vietnam.
  • 30 years after retirement I remain loyal to the NZ Army and those who serve.
  • However I will absolutely condemn any serving officer or soldier who illegally conducted surveillance operations against Jon Stephenson.
  • But I will need proof, and I will need more than irrelevant moralising by the commentariat about journalists’ non-existent rights in a warzone.

There is so much rubbish being written and spoken about the allegations of NZ Defence Force interception of a journalist’s communications in Afghanistan. The allegations were first made in the Sunday Star Times. The allegations were denied by NZ Defence. Kiwipolitico offered a balanced view here. Commentary since then has repeated and inflated the allegations. Many commentators, including Maori politicians, have confused spying in Afghanistan with the multiple spying debacles at home in New Zealand.

I’m the first to decry the post 9/11 incarnation of the surveillance state and to proclaim the rights and freedoms of the democratic ideal. I’ve written essays on democracy here and here, and on the GCSB Bill here.

However.

Afghanistan is a warzone. Human rights are completely or partially suspended in warzones. Beginning with the right to life. And at the lower end of the scale the right to privacy. No-one is exempt, not even journalists. You can argue about whether or not we should have been committed to Afghanistan. But Afghanistan is a warzone and all who venture into Afghanistan, whether soldier, spook, civilian, politician or journalist, ought to be aware that it is not a human rights zone; it is a warzone.

Let’s start with the right to life.

A soldier’s mission is to kill and not be killed. As stark as that. To take life. In some recognition of the right to life soldiers in our own forces are forbidden from killing non-combatants. However it is the ugly reality of war that some civilians do get killed. Always. Mass killing, which is what war is, is not a precise art always able to differentiate soldier from civilian and friend from foe despite the development of more precise weaponry. Mistakes happen. Soldiers also get killed by friendly fire, another ugly reality of war.

Much as we try to honour the right to life of non-combatants many of our opponents in war do not have the same respect for civilian lives and deliberately target civil leadership, families of opposing soldiers, and those they suspect of assisting their enemies. Lots of people die, forfeit their right to life.

Warfare is the conscious political act of unleashing the beast within and authorising it to kill deliberately and legally. It is the suspension of all that we hold to be essential in civilised society, including human rights. Even journalists forego their right to life in a warzone. And many have indeed died on the job.

Now to the right to privacy.

The suspension of the right to life has nothing to do with the Jon Stephenson case but it illustrates what many these days seem to conveniently forget; that in warfare human rights are completely or partially suspended. And that includes the rights of journalists who venture into warzones. There is no special journalist zone in a warzone. There is no privacy in a warzone. There is no such thing as privacy in a warzone. Get real.

The Geneva Convention and International Human Rights law provide protections for journalists in warzones. They cannot be deliberately killed just for doing their jobs or deliberately targeted for surveillance just for doing their jobs, But they do get caught up in the fog of war. They sometimes die, and they will be caught up in mass surveillance operations.

All communications in a warzone, both military and civil, are intercepted by both sides of the conflict. Use a military radio, or a mobile phone or send an email and it will be intercepted. For very good reasons.

On the one hand to find out where the enemy is, who he is, who he is talking to, what he is doing, and hopefully what he intends to do. On the other hand to ensure that our own side is not inadvertently or incompetently transmitting information in clear about our own identities, dispositions and intentions. And to make sure that no-one on our own side is communicating with the enemy but if they are, to know what they are saying. That includes journalists, some of whom do try and sometimes succeed in talking to both sides of a conflict. They will be monitored by both sides.

As soldiers we understand that we are being intercepted by both friend and foe. In Vietnam we were, and we sometimes received warnings from our own interception people to pay more attention to our communications security. They gave us verbatim examples of our transgressions. It was just part of war, being listened to. And it still is.

In Afghanistan one of the primary means of communication used by the Taliban is the mobile phone. All mobile communications in Afghanistan are intercepted in a massive technological operation. Not just the Taliban but everyone. What are the Taliban saying? Who are they saying it to? Who in government is talking to the Taliban? Who in the Afghan Army? Who in the Afghan Police? Which journalists are talking to the Taliban? What are they saying and being told? Are politicians, officials, journalists and others giving out information that might assist the Taliban in their operations, or might put friendly soldiers at risk? Inadvertently or otherwise.

If Jon Stephenson had made a phone call to a known Taliban or Taliban sympahiser his call would have been immediately flagged and he would have been investigated. Otherwise it would just disappear into the Intelligence Cloud. As John Stephenson was most probably not talking to Taliban or Taliban sympathisers that is most probably what happened to the records of his phone calls (or emails). They would have disappeared into the Intelligence Cloud.

In reply to the NZ Defence denial:

“Hager said that was not his understanding of how Stephenson’s phone records were accessed”.

“From what I had described to me, this was focused on Jon and particular Afghan Government people who were also on the chart of who’d been ringing whom, who he was in contact with.”

Which is network analysis and which usually analyses those networks to about the third node from the targeted individuals. That raises some questions.

  • Were any of Jon Stephenson’s Afghan contacts communicating with the Taliban, or were any of their contacts communicating with the Taliban? To the extent that they and their contacts would automatically be flagged? We don’t know. Jon Stephenson probably doesn’t know either.
  • If Stephenson’s communications did get flagged through network analysis would that be drawn to the attention of the New Zealand spooks? Probably.
  • Would that necessarily put him under suspicion of espionage or aiding the enemy or anything silly like that? Not unless he was up to something silly like that.

If I were an officer in Afghanistan I would want the spooks to be watching my back and the backs of my soldiers. I would want them to monitor all communications in the warzone to detect any possible risk to the precious lives of my soldiers. A serious problem in Vietnam was that some trusted South Vietnamese soldiers and officials were actually spies. Out of deference to the South Vietnamese allies they were not properly monitored and many allied soldiers died as a result. It takes only a few well placed spies to cause a lot of deaths. One must presume that that mistake has not been repeated in Afghanistan.

From all of that.

  • Do journalists have special dispensation in a warzone, any special rights to privacy? No. Like the right to life they forego the right to privacy the moment they step into a warzone.

So.

  • Were Jon Stephenson’s communications intercepted? Probably.
  • Were they of interest to the Intelligence gatherers? Depends who he was talking to and what he was saying, who they were talking to and what they were saying.
  • How do you find out who he was talking to and what he was saying, who they were talking to and what they were saying? By listening in.
  • Was he singled out for special attention? Probably not. There are hundreds of thousands of mobile phones and computers in Afghanistan, probably millions.
  • Were records of his communications stored in the Intelligence Cloud available to those who had the authority and clearance to search the Intelligence Cloud? Probably but because of the vast amounts of intercepted data probably only for a limited time.
  • Did some NZ Defence personnel have the authority and clearance to search the Intelligence Cloud or specified parts of it? Probably.
  • Did any NZ Defence personnel search the Intelligence Cloud for information about Jon Stephenson? You’d have to ask them.

And.

  • Were any NZ Defence personnel, or GCSB and SIS personnel, involved in the overall interception operations in Afghanistan? I hope so because we need to keep that capability current as part of our own military and intelligence offensive skillset, along with the actual killing stuff of course.
  • Were NZ Defence or intelligence personnel specifically involved in monitoring Jon Stephenson? Doubt it, unless he was up to no good in the warzone. They’ve got bigger fish to fry in that warzone.
  • Did any NZ Defence or intellgence personnel search the Intelligence Cloud for information about Jon Stephenson? You’d have to ask them.

And finally, almost.

  • Who are John Stephenson’s sources? And are they reliable? We don’t know. Not from the news article we don’t.

The final set of questions is about NZ Defence Force operational policy. To quote from Kiwipolitico:

“Mr. Hager also revealed the existence of an NZDF operations manual, apparently drafted in 2003 and revised in 2005, that included at least “certain investigative journalists” along with hackers, foreign spy agencies, ideological extremists, disloyal employees, interest groups, and criminal organizations in the category of “subversive” threats (although it remains unclear as to when that particular passage was added to the text and who authored and authorized it). The definition of subversion was stretched to include those whose activities could undermine public morale or confidence in the government and NZDF. This included “political” activities deemed inimical to the NZDF image or reputation”.

If that information is correct it is indeed clumsy to say the least, and paranoid at worst. Given that NZSIS is primarily responsible for security in New Zealand what is not clear is whether or not this manual applies only to operations in Afghanistan or to all NZ Defence Force activity including in New Zealand. That crucial context would significantly clarify the debate.

To add further context and clarity we would need to know:

  • Why were “certain investigative journalists” added to the list and what does NZ Defence know about their activities that is not being revealed?
  • Why were “disloyal employees” added to the list and does NZ Defence have specific names and evidence of subversive activity by those “disloyal employees”?
  • Were those “disloyal employees” passing information to “certain investigative journalists”? If so was it information that might have jeopardised NZ Defence Force operations in Afghanistan? Or was it information whether true or false designed to embarrass the NZ Defence Force?
  • Were those “disloyal employees” military or civilian? Why were they “disloyal”?
  • Does NZ Defence have specific information about Jon Stephenson’s activities in Afghanistan that it is not revealing? For reasons of source protection perhaps?

Afghanistan is one matter and we need a lot more information before we pass judgement on what happened there. Spying on our own citizens at home in New Zealand is a different matter entirely and shouldn’t be confused with Afghanistan or any other warzone.

In the wake of the Jon Stephenson allegations and the proven breach of democratic principle in the sordid case of spying on Andrea Vance the media are loud in their condemnation of attacks on the freedom of the media. Rightly so. But where were you from 2002 onwards when everyone else’s democratic freedoms and rights were being eroded in the name of counter terrorism and national security. You were mute, compliant. apathetic like the rest of the country, most of you.