Why the ‘public trust’ should be at the heart of an overhaul of NZ environmental rules

| Guest writer

May 22, 2017

The idea that we hold the atmosphere around us in trust, with a duty to protect it for future generations, is taking hold. And the debate is drawing on everything from an 18th century English jurist to contemporary activism by US peoples of colour, writes Claire Browning.

Nobody owns the sky, but all of our lives depend on it. A series of court challenges by youth to their governments have brought ideas of the “public trust” to the fore, claiming that we hold the atmosphere in trust, have a duty to protect and pass it on to coming generations, and therefore governments must act on climate change.

Independently, Auckland professors Dame Anne Salmond and Klaus Bosselmann are also working on the “public trust”. Bosselmann suggests a framework for global environmental stewardship, which he has taken to the United Nations. UN member states, he argues, aretrustees for the Earth. Salmond sees a case for a public trust in rivers and their water in NZ, joining Sir Eddie Durie and the NZ Māori Council in calling for an independent Waterways Commission to take over water matters from the government.

This kind of idea about the public trust goes back at least to 1970, and maybe a long way before that. It’s been called a “drumbeat” of academics and environmental groups. The gist is to extend, to the environment, and to governments and decision-makers, the kinds of duties over the environmental common that we would apply to administering property in a trust: not to damage it, to manage it in perpetuity, for its beneficiaries. The policy case for the public trust is the need for a reality check: the need for a balance on power, against the “self-interested and powerful minorities [which] often have an undue influence on the public resource decisions of legislative and administrative bodies and cause those bodies to ignore broadly based public interests”.

I agree with Anne Salmond about taking public trust ideas, the wisdom of kaitiakitanga, and a bit of good Kiwi no 8 wire, and doing something ingenious. As I’ll explain, though, I disagree with her on a couple of things as well. As part of a wider ecological idea of justice, supported by a grant from the New Zealand Law Foundation, I’ve been looking at the public trust, too.

That work takes as its starting point environmental justice in the United States. Peoples of colour joined in demanding recognition and reclaiming influence and control, from centuries of oppression, cultural dislocation, and discrimination against them in environmental decision-making. Within a decade their demands reached from grass roots activism to Bill Clinton in the Oval Office. They addressed both government and, significantly, the popular environmental groups. Most of the whites are concerned about the surface waters because it is recreation for them,” one of the organisers said. “It is life for us.”

For “recreation” in the quote above, we might say “profit for them”, as well. Environmental justice claims in the US are echoed here, and lived here, by Māori — and others, but at the heart of environmental justice are colonisation stories, about white people’s ideas. Through Waitangi Tribunal findings, Treaty settlements, and challenges put to the Crown and Pākehā by Māori, we are somewhere along a path that has us rethinking some of the environmental ideas in particular — most recently with Te Awa Tupua, the Whanganui River; and most memorably with the foreshore and seabed, now dealt with in NZ in the Marine and Coastal Area (Takutai Moana) Act. The original common law public trust evolved in disputes about the ownership of these lands under tidal waters, and access onto and over them.

Māori, through mātauranga Māori and their tireless, thankless work in calling out injustice, are leading us to an ecological idea of justice in New Zealand. We’re a long way from arriving there yet. There’s a famous photo of Dame Whina Cooper, slowly walking hand in hand with a little child on a winding, gravelled country road. In this story, I’m seeing Pākehā NZ as the child. Dame Whina led the land march or hikoi to parliament, that saw the Waitangi Tribunal established and started the Treaty settlement process on its aching slow steps towards justice.

In both her RNZ interview with Kathryn Ryan and recent opinion in the New Zealand Herald, Professor Salmond comments on what seems selective attention by our government to English common law jurist Sir William Blackstone. She argues that we need to give a new life, through the public trust, to duties “somehow forgotten” which Blackstone described, not to interfere with others’ enjoyment and use of water.


In his Commentaries on the Laws of England Blackstone called water “a moveable, wandering thing”, a “vague and fugitive” thing, that allowed use, but not an ownership right. To interfere with another’s use — for example, “to stop or divert water that uses to run to another’s meadow or mill; to corrupt or poison a water course”—was an actionable nuisance. His language does suggest actions, rather than, for example, downstream consequences of (criminally ignorant or wilfully blind) omissions by regional councils, and he goes on literally to say: “do any act”.

In the collective writings of Blackstone and others — Bracton, Justinian, who rewrote the Roman law Corpus Juris Civilis, another Roman emperor Marcian — there emerges a short list of other “moveable wandering things” that “by the law of nature … are common to mankind”: sunlight, the air, flowing water, the sea (and, therefore, the seashore), wild creatures.

We should pay careful, not selective, attention to Blackstone, and what we can learn about the public trust. Ironically, however, it points to the opposite conclusion from the one that is sought.

What is wanted, by public trust advocates, is a binding duty on those taking care of our place, that is, the government and regional councils, who are failing to act. But Blackstone describes a civil nuisance matter, between individuals — not a restraint on the government, let alone a positive, publicly enforceable duty on the government to act in a certain way. Some US cases do seem to show that a public trust-type interest, as in public parklands for example, might prompt heightened judicial scrutiny of a process or decision. And secondly: at common law, “in common” mostly meant “free to go and take” — just as users are used to expect with unpriced water and greenhouse gas emissions.

It might be subject to some regulation. But the common law authority for a positive obligation on government to defend any particular interest, or step in on behalf of people and place, is thin. The public trust in access to tidal waters and the shore — specifically for navigation, commerce, and fishing — conceived of a public good served through a very specific bundle of interests, that likely were not a million miles away from the interests of the sovereign at the time, although they incidentally served the public good as well. And so, in some ways, New Zealand governments have grasped all this quite well.

Only in the US has the public trust advanced to broader ideas. But in the US, federal government has had “continuing responsibility” and a fiduciary duty since 1970 to “use all practicable means” to “fulfil the responsibilities of each generation as trustee of the environment for succeeding generations”. Similar laws have trickled down to the laws and constitutions of some state governments. In Hawaii, based on the public trust, the Supreme Court has restored minimum river flows, upholding cultural and ecological purposes among others as true bottom lines. The court put commercial interests in second place to the environmental common good as a priority. But in Hawaii, as well as being supported by a constitutional amendment in 1978, water had been named as a common good in the specific terms of all land grants made.

All of this aside, I agree with Anne Salmond. The NZ parliament can do what it wants, just as the US Congress has done. In the end it therefore doesn’t matter much, if all that Blackstone carries with him down the centuries is the germ of an important idea about duties to others. We aren’t bound in what have been called the “historical shackles” of the common law. Recent Treaty settlements in NZ have seemed to show a new momentum and aptitude for really skilful balance and compromise around these kinds of questions, of ownership in particular, and kaitiakitanga.

I think there is a critical mass and momentum building around our environmental laws that, along with new constitution proposals, could see another overhaul of environmental management in this country to rival the 1980s. It might be the Key-led government’s crowning environmental legacy: the clean-up after the storm.

Because rethinking the public trust links with ideas about property rights and — depending on how it was framed — there is the potential that “any such notion strikes at the very essence of governmental power”, rethinking the public trust also relates to constitutional law reform. Philip Joseph recently said that it is the first task of a constitution to decide what values we want our government and our law to serve.  That is the question at the heart of reclaiming or establishing an idea of the “public trust”: it is a check, and a shift in the balance of power.

For the role of the public trust in this, I would also look at the Department of Conservation. Effectively, DOC is trustee of NZ taonga. Under section 5 of the Conservation Act it is also “under the control of the minister”. In a series of public trust cases relating to the management of parklands in the US, courts have taken a dim view of subordinating public parklands to promoting private profits and commercial interests. In what are just some recent examples, Forest & Bird recently exposed open cast coal mining plans for high value conservation landbeing done in secret by the government; proposals to take water for bottling from the Aspiring national park would see 3km of pipeline laid, by digger, through tokoeka / Haast kiwi “sanctuary”, including access road up to 8 metres wide.

There must come a point where the politicisation, underfunding and undermining of DOC’s role that has been ongoing demands change. DOC holds enormous reserves of public goodwill, in a trust which Māori and Pākehā have not necessarily shared. For tangata whenua, DOC is usurping the role of kaitiaki. Right now, it is tempting to contemplate removing or amending the minister’s statutory function. Instead, we might rethink the configuration and role of the New Zealand Conservation Authority, putting a differently constituted NZCA at the helm as trustee and kaitiaki. Less radical would be making express and binding in the Conservation Act what already ought to be implicit: the duty of the public trust.

Claire Browning is a policy analyst, former lawyer, and environmental advocate, who has worked for the Law Commission. Her work referred to above, due later in 2017, is supported by a grant from the New Zealand Law Foundation.


Karl du Fresne: Accountability the price of keeping the system honest

The tags of the 29 men killed in the Pike River mine disaster still sit on the tag board at the mine office.

Michael Wright

The tags of the 29 men killed in the Pike River mine disaster still sit on the tag board at the mine office.

OPINION: I‘ve been scratching my head trying to recall the number of times someone in a position of responsibility in New Zealand fell on their sword in atonement for things that went badly wrong.

Conservation Minister Denis Marshall did it after the Cave Creek viewing platform collapse in 1995 and Labour Minister Kate Wilkinson stepped down in 2012 over Pike River – in both cases, after commissions of inquiry released highly critical reports.

Those two aside, I struggle to remember any minister, department head or company boss taking the rap for tragedies or adverse events that involved human failure.

Accountability, the long-established principle that someone should be seen to take responsibility for serious mistakes, is frequently talked about but rarely practised.

When an inquiry panel released its report last week into the Havelock North water contamination scandal that caused 5000 people to get sick and was implicated in three deaths, Hastings  Mayor Lawrence Yule was quick to absolve himself of any fault.

“I didn’t personally cause this contamination,” he said, and of course that’s true. But it’s not the point.

Yule doesn’t seem to grasp that someone in charge has to carry the can, if only symbolically. People expect it. It’s the price that has to be paid for keeping the system honest.

If no one ends up accepting personal responsibility and incurring a penalty, there’s little incentive to make sure it doesn’t happen again. That’s why, in the Westminster parliamentary system, ministers bear ultimate responsibility for their departments and are expected to resign if their subordinates fail seriously in their duty.

This applies even though the minister may have had no idea that things were going pear-shaped. The rationale behind the principle is that it puts pressure on ministers to ensure everyone’s doing their job properly.

That creates a culture of rigour and discipline that filters down through the system and keeps everyone on their toes.

At least that’s the theory, and the same principle applies in local government – which is why a lot of people in Havelock North, including the man interviewed on television who spent weeks in hospital and lost 11kg as a result of bacterial infection, expected heads to roll following the e-coli outbreak. Faint hope, I’m afraid.

For Yule, the timing was unfortunate. My impression is that he has been a very good mayor, which is why voters have repeatedly returned him to office since he was first elected in 2001. But his attempt to distance himself from responsibility for the water contamination is unlikely to win him votes when he stands for National in the Tukituki electorate later this year.

To be fair, he’s not the only high-profile figure anxious to absolve himself of blame for things that have gone wrong on his watch. Former Ministry of Transport head Martin Matthews must be squirming as the media reveal acutely embarrassing details of the audacious $725,000 fraud perpetrated by his ex-employee Joanne Harrison.

Judging by what’s been reported, there were multiple signs that Harrison was ripping off the ministry. Short of wearing a flashing neon sign saying “I am a crook”, she could hardly have been more brazen.

Yet far from having his career prospects damaged by the scandal, Matthews was rewarded with a promotion to the position of auditor-general – a job in which he’s required to make sure no one misuses taxpayers’ money.

The irony is exquisite. Please, no one tell John Oliver, the irritatingly smug US-based TV host who loves nothing more than poking fun at quaint little New Zealand.

It’s not only in the public sector that bosses manage to evade responsibility for shocking failures. No one took the blame or paid a penalty for the tragic collapse of the CTV building in the 2011 Canterbury earthquake, despite damning evidence of professional dereliction.

Ditto the 2010 disaster at Pike River, where the families of the 29 dead miners still cry out for justice. Again there was clear evidence of multiple failures at multiple levels, but only token penalties were imposed.

Why does it seem so hard to establish culpability for catastrophic mistakes? One possible explanation is that as bureaucracies grow bigger and more amorphous, lines of accountability become blurred and blame becomes harder to sheet home.

Management structures sometimes seem designed to protect and insulate people. Responsibility gets diffused and the smoking gun, if there is one, is buried so deep that official inquiries never seem able to find it.

And in the meantime, public confidence in “the system” continues to be steadily eroded.

 – The Dominion Post

Victim advocates: Authorities ‘not open’ to Family Court issues

A new family violence advocacy group have slammed the Justice Minister and Family Court. Photo / John Borren
A new family violence advocacy group have slammed the Justice Minister and Family Court. Photo / John Borren


An new Family Court watchdog group say authorities are not open to the issues raised by victims who say the system is letting them down and putting them in more danger.

However Justice Minister Amy Adams has slammed their comments, saying she has made family violence her “number one priority”.

The Backbone Collective was established this year, positioned as an independent body “taking action to change New Zealand’s alarming violence-against-women statistics”.

The collective set out to examine the Family Court “through the eyes of its users”: women who have experienced violence and abuse.

In early April the group released their first watchdog report in a bid to highlight issues women were raising with them about the Family Court.

The report outlined 15 themes identified by collective members that purportedly showed how the Family Court was putting women and their children who had experienced violence and abuse in more danger.

The report was forwarded to the Principal Family Court Judge Laurence Ryan, Justice Minister Amy Adams and the New Zealand Law Society.

“We had imagined that the three people tasked with keeping women and children safe in New Zealand would be very concerned about what women were saying and would want to know if their system was making things worse not better,” said collective co-founder Deborah Mackenzie.

“The three bodies have now all responded to our report.

“Unfortunately none of them have been open to the issues women have raised and none have attempted to answer any of the women’s questions either.”

Mackenzie said the collective believed that the issues raised by members were “big red flags about what is going wrong in the Family Court”.

Backbone Collective founders Deborah MacKenzie (left) and Ruth Herbert. Photo / New Zealand Herald
Backbone Collective founders Deborah MacKenzie (left) and Ruth Herbert. Photo / New Zealand Herald


Co-founder Ruth Herbert said the responses from Adams and Judge Ryan were “outrageous” and “disappointing”.

“Minister Adams infers that the Family and Whanau Violence Bill currently before select committee will address issues raised in the Watchdog Report,” she said.

“Backbone members are saying it won’t even touch the sides.

“Women are telling us that the problems in the Family Court are about how the legislation is implemented, interpreted and decision-making around the legislation – not in the legislation itself.”

Mackenzie said members were telling the collective that through the Family Court they were “shut down, minimised and not believed”.

“Something is terribly wrong, when over 80 per cent of the survey participants tell us that they felt the abuser was viewed as’ safe’ by the Family Court even when their experience was that he is not.”

Adams rejected the collective’s claims.

“I take family violence and the devastating impact it has on our country extremely seriously,” she told the Herald.

“I have long been saying that the rate of family violence in New Zealand is unacceptable which is why I’ve made it my number one priority as Justice Minister to tackle this insidious issue.

“I do not accept that I am not open to the issues that women have raised with them, because I absolutely am and in fact, hearing from women and families who have experienced family violence has been a critical part of informing how we can build a better system for responding to family violence.”

Justice Minister Amy Adams has dismissed the group's concerns. Photo / Mark Mitchell
Justice Minister Amy Adams has dismissed the group’s concerns. Photo / Mark Mitchell


Adams said the hundreds of submissions and correspondence she has received on this issue has helped inform her Family and Whanau Violence Legislation Bill and many new initiatives aimed at tackling family violence, including the Integrated Safety Response pilot and the supervised handover of children pilot.

“I have always acknowledged that legislation on its own will not solve the problem, but they are a cornerstone element in how we respond to family violence,” she said.

“Although the Backbone Collective is a very new organisation, they still have the opportunity to provide submissions to the Family and Whanau Violence Legislation Bill, just as many other NGOs and independent organisations have.”

A spokesperson for Judge Ryan said he had no comment to add.

In April he issued a statement about the collective’s criticisms of the Family Court – an extremely rare move for a member of the judiciary – saying they were “erroneous or flawed interpretations” of how the system operates.

“For all these reasons, it is not appropriate for the judiciary to respond in the way the collective seeks,” Judge Ryan said at the time.

“Nor do I intend to make any further public comment on the collective’s campaign and allegations made therein.”

For Judge Ryan’s full statement click here.

NZ Herald

Push for prisoners’ voting rights continues

Radio NZ

A career criminal’s legal challenge to a ban on prisoner voting has begun in the Court of Appeal.

Arthur Taylor in the High Court at Auckland.

Arthur Taylor (left) during the prisoners’ voting case in the High Court at Auckland in 2015. Photo: RNZ / Kim Baker-Wilson

Arthur Taylor and six other inmates claim they were unlawfully barred from voting in the 2014 general election.

In 2010 Parliament passed a law preventing all sentenced prisoners from voting, regardless of the length of their sentence.

However earlier electoral legislation allowed prisoners serving a jail term of less than three years to vote.

At the time the legislation was being considered, the Attorney-General warned Parliament that a blanket ban contravened the Bill of Rights, but the law was passed anyway.

Under New Zealand law, Parliament can pass legislation that is inconsistent with the Bill of Rights if there are justifiable grounds for doing so.

At an earlier hearing, the High Court ruled against Taylor, saying while the ban was inconsistent with the Bill of Rights, it could not overturn the legislation because Parliament had passed it lawfully.

In a following case in 2016, Taylor and the other inmates claimed that the ban was not lawful, because changes to who could vote needed to be passed with a 75 percent majority.

However, the High Court ruled in its judgment that the 75 percent majority only applied to changing the voting age.

The group also tried to argue that Māori prisoners had their human rights breached, because the large number of Māori prisoners meant they were disproportionately affected by the ban.

The court also dismissed that claim.

Taylor is currently serving a 17-year cumulative sentence in the high-security A Block at Paremoremo and will be released in 2022, unless he is granted parole earlier.

NZDF admits it was wrong to say there were no photos from NZSAS raid


By David Fisher

NZSAS troopers leaving a Chinook helicopter while on operations in Afghanistan. Photo / NZDF
NZSAS troopers leaving a Chinook helicopter while on operations in Afghanistan. Photo / NZDF

The New Zealand Defence Force has admitted it was wrong to claim there were no photographs from the controversial 2010 raid in Afghanistan alleged to have left six civilians dead.

After 20 days checking and then asserting there were no photographs, it has now had to admit it was wrong and there were photographs taken during Operation Burnham.

NZDF has now conceded its claim there were no photographs is contrary to three images it published itself and additional unpublished images taken during the NZSAS raid.

The book Hit & Run alleged that the NZSAS had carried out a raid in Afghanistan to go after those responsible for the killing of Lieutenant Tim O’Donnell but inadvertently killed six civilians and wounded 15 others instead.

That was in contrast to the official line that nine combatants were killed – and directly contradicting NZDF’s position since 2011 that claims of civilian casualties were “unfounded”.

While the book – written by journalists Nicky Hager and Jon Stephenson – called for an inquiry, Prime Minister Bill English said there was no need to investigate further based on information he was supplied by NZDF.

NZDF also shifted its position on the claims of civilian deaths, saying that “unfounded” meant that it was possible civilians had been killed by coalition air support.

The Operation Burnham raid came after New Zealand’s first fatality in the Afghanistan deployment and targeted two villages about 50km from the base of our Provincial Reconstruction Team in the mountainous Bamyan region.

NZ Herald inquiries have found the amount of information held by NZDF about the aftermath of the raid is limited, raising questions over how well-placed it was to answer allegations civilians were killed.

Our military held only a “summary” copy of the only investigation done – an inquiry that was completed within weeks of the raid by the International Security Assistance Force and two Afghan government ministries, none of which never visited the area.

And the only video it has admitted to having was from United States air support, even though the Herald has confirmed the NZSAS regularly wore helmet cameras on missions in Afghanistan.

In an effort to see what information NZDF held, the Herald sought through the Official Information Act a range of details to better understand the NZSAS mission and its outcome.

One of three photographs supplied by NZDF in March in a briefing about Operation Burnham. It went on to deny any photographs existed. Photo / NZDF
One of three photographs supplied by NZDF in March in a briefing about Operation Burnham. It went on to deny any photographs existed. Photo / NZDF

The information was sought because there has been a lack of clarity about the NZSAS actions after the raid – if soldiers had checked the bodies of those killed to determine identity, age, gender or whether they were armed.

In response, NZDF chief of staff Commodore Ross Smith said: “No video or still imagery was taken by the NZDF during Operation Burnham.”

The NZDF then went on to refuse that aspect of the request quoting the section of the Official Information Act stating the information would not be provided because it “does not exist or, despite reasonable efforts to locate it, cannot be found”.

The response appeared to contradict information released by NZDF itself when Chief of Defence Lieutenant General Tim Keating fronted media to reject the claims in Hit & Run.

NZDF released at the same time a 17-page “briefing” document, which included photographs that purported to have been taken on the raid.

Three images were shown in the document released by NZDF showing weapons and ammunition said to have been recovered from one of the villages that was targeted by the NZSAS and US air support.

When the discrepancy was raised with NZDF, it responded in an emailed statement which said: “The photos to which you refer were overlooked in the OIA response provided to you on 21 April 2017, but they had already been made publicly available by the Chief of Defence Force in his briefing on 27 March 2017.

“In the 21 April 2017 response, it would have been more correct to say that the photos provided in the slide are the best of the few photos taken of the arms cache discovered during Operation Burnham.

“We are not aware of any other still imagery captured by the NZDF during Operation Burnham. We can reconfirm there was no video imagery captured by the NZDF during Operation Burnham.”

Intelligence analyst Dr Paul Buchanan, who oversaw similar counter insurgency-style raids while working for the US government, said it would be “standard practice” for the NZSAS troopers to have worn helmet cameras and to have taken photographs.

He said helmet or body cameras were standard kit for professional militaries. Along with training and intelligence reasons for doing so, “if they get accused of war crimes then the cameras will absolve them”.

One of three photographs supplied by NZDF in March in a briefing about Operation Burnham. It went on to deny any photographs existed. Photo / NZDF
One of three photographs supplied by NZDF in March in a briefing about Operation Burnham. It went on to deny any photographs existed. Photo / NZDF

“The photographs are forensic evidence. It would be standard procedure to photograph the dead guys to make positive IDs.

“In this case, they say they killed insurgents but provide no evidence other than their assertions.”

He said it was standard practice to photograph, fingerprint and take DNA or dental impressions from those killed to match up with intelligence reports.

Asked what he made of the claim there were no photographs, Buchanan said: “That may be because they didn’t kill any insurgents and the people they did kill, they didn’t want to photograph.”

NZ Herald

Bill for greater transparency in women’s pay discrimination voted down


It is time for women to gain economic equality says Green MP Jan Logie. Photo/ Supplied
It is time for women to gain economic equality says Green MP Jan Logie. Photo/ Supplied

A private member’s bill that would have provided greater evidence with which to fight gender pay discrimination in New Zealand was lost in Parliament tonight by 59 votes to 60.

Green MP Jan Logie, said the Equal Pay Amendment Bill had been supported by a large number of women and women’s organisations.

She said it was a continuum of the fight that began with women’s right to vote and she hoped the House realised how frustrated women were.

“This is a fight that has been going on for 124 years. It is time to step up with some solutions.

“It is time for women to get economic equality and that is going to take action.”

The bill would have required employers to tick a box on existing pay records to state whether the employee is male or female.

It would also have entitled employees or their representative access to the aggregated data of pay and gender for employees in their workplace doing the same kind of work.

The information could have been given to an independent reviewer if the employer believed it would compromise confidentiality.

The bill was designed to provide greater transparency of the gender pay gap in the interests of providing greater evidence to fight pay discrimination.

But it was opposed by National, Act, and United Future on the grounds it would add greater compliance to businesses and that it could compromise privacy.

Employers already have to keep pay records for six year recording their employees’ name, postal address, kind of work, type of agreement and expiry date, number of hours worked and pay for those hours in a pay period, method of calculation, and employment relations education leave taken.

Logie said New Zealand said it was unlawful in New Zealand to discriminate on the basis on of gender “and yet 45 years on from the Equal Pay Act women’s average hourly earnings are still 13.6 per cent less than men’s and that is 22.9 per cent for Maori women and 28.4 per cent for Pasifika women.”

There was some progress to redress the imbalance during the 1990s but since then, inequality had become entrenched.

“The way the gender pay imbalance has been tracking, it will take at least until 2062 before women finally get equal pay.”

She said the bill itself would not fix the problem but it would help address conscious and subconscious bias.

National MP Barbara Kuriger said the bill had merit and the Government was sympathetic to the aims of the bill.

She the bill posed “major privacy risks” especially for small business owners with a small number of employees.

“It could breach the most basic of privacy codes.”

Barbara Kuriger

She said the requirements in the bill would be “another layer of red tape.”

“People don’t mind complying with worthwhile issues,” she said.

Women’s Affairs Minister Paula Bennett in March challenged private sector employers to conduct voluntary gender pay audits and to declare the results. But she has not suggested it could become mandatory.

Logie said Norway, Sweden and Finland had similar provisions on their laws for income transparency and were in the top four countries in terms of income equality.

National, Act and United Future opposed it. Labour, the Greens, New Zealand First and the Maori Party supported it.

NZ Herald

Bryce Edwards: When, where and how to protest

Protest appears to be on the rise, and some of it can be highly provocative. The trial of National MP Chester Borrows over his actions towards protestors last year is just the latest example, raising questions about what is and isn’t appropriate in the arena of political protest.

We live in an era of escalating protest. Around the world, politics has become more radicalised and polarised, particularly since the global financial crisis, which has led to a decline in the authority of the Establishment and economic system, as well as the rise of new movements challenging racism and sexism. The increasing popularity of protest even led Pepsi to recently attempt to align their cola brand to youth revolt in a lame and badly received TV ad.

Elites everywhere are under challenge, and new political leaders have emerged who are often populists or radicals of the left and right. These leaders are sometimes at the forefront of protest movements, or indeed the subject of protests from citizens opposing their apparent extremism. 

And with the continued disillusionment of many with elections and electoral options, we might expect that militant forms of protest will become more common, raising questions about what sort of political protest is acceptable. How aggressive or physical can opposition be? This is sometimes a legal question, and sometimes simply a moral one. And how do authorities, or those offended by protesting, respond? 

I discussed some of these issues on TVNZ’s Breakfast this morning, suggesting New Zealand political culture is quite tolerant of and sympathetic to protest, but there also seems to be firm limits on what the public finds acceptable – especially in terms of physicality and aggression. Any violence is probably very counter-productive to the protestors’ cause.

The Chester Borrows trial

Yesterday, National MP Chester Borrows was declared not guilty of the charge of careless driving causing injury to two anti-Trans Pacific Partnership protesters. For the best coverage of the trial and outcome, see Andrea Vance’s National MP Chester Borrows cleared of careless driving causing injury charge, says he’s ‘pretty annoyed’ matter went to trial

According to this report, “Borrows today told the court he was worried a dildo being waved by another protester, Philip Rewiti, would be used to break the windscreen, or a protester would climb onto his car.” Furthermore, “A week before the protest, Mr Rewiti had posted a picture on Facebook of Ms Bennett crying, a dildo printed with her name and the message, ‘See you shortly, bitch’.”

The now Deputy Prime Minister, Paula Bennett, spoke in trial of how she and Borrows felt threatened, saying “It had only been weeks since fellow National Party MP Steven Joyce had a dildo thrown at him, so party members were aware something else may happen” – see Jono Galuszka’s Deputy PM found sex toy image ‘aggressive’

For more about the dildo incident, see Zaryd Wilson’s Protester posted message to Paula Bennett: ‘See you shortly, b****’. In this, Rewiti is quoted saying “The police had told me not to show it or anything. I think I left it in the car at the time, otherwise I’d be arrested”. The protestors’ point of view is also covered in RNZ’s Women describe ‘horror’ as MP’s vehicle struck

The women who tried to block Borrows and Bennett’s car were rather mild and “pathetic” in comparison to protest activity of an earlier era according to Barry Soper, who argues that not only should the case never have gone to court, but perhaps it’s the women in front of the car who should have been charged instead – see: The days when people knew how to protest

But the most interesting part of Soper’s argument is his comparison with more radical protest in the early 1990s: “Those were the days when people knew how to protest. Impeding the progress of ministerial limousines was common practice in anti Government rallies. The most celebrated case was back in 1991 when today’s prominent barrister, who continues to fight the establishment, Felix Geiringer laid down in front of the then Finance Minister Bill Birch’s limo at a protest in Dunedin and was dragged from beneath the car by the heavy police contingent. Geiringer suffered a few cracked ribs and bruising and was charged with disorderly behaviour. He unsuccessfully appealed to the High Court against his conviction, pleading his right to freedom of expression.”

Is it legitimate to protest on Anzac Day?

The other contentious protest recently was the presence of  anti-war protestors at Anzac Day events. This became a particularly interesting debate when Newshub broadcast video of a fascinating conflict between a 12-year-old boy, Jason Broome-Isa, and protestors – see Matt Burrows’ ‘Give me strength’: Anzac protest boy’s full barrage.

The news report states, “A poll on The AM Show on Wednesday shows two thirds of New Zealanders (67 percent) agreed with Jason, and believe protesting on Anzac Day is inappropriate.” See also, Mei Heron’s ‘I just tried to listen’ – Anzac Day protester on 12-year-old’s interruption.

Yet much of the published commentary has dissented from this view, with a number of editorials and columns backing the right to protest on Anzac Day. 

For example, Alison Mau found the issue fraught: “Whew, this is a tough one. I’ve never felt as conflicted about a column subject before. Free speech versus the right to a peaceful commemoration of our sacred day. Which one to choose?” – see: Anzac Day – a time for protest or quiet reflection?

But she concluded: “I don’t like the way it’s threatening to develop into a day-long muzzle for free speech. Here in New Zealand we’ve not got to that point yet, not as much as the Aussies. But lest we follow them along that road, I’m going to have to come down on the side of the protesters this time.”

Newshub’s Tony Wright expressed a similar concern about ‘Anzackery’, saying in Australia “it is now an anglo-saxon styled cult or religion. On occasion, it threatens to become this in New Zealand as well, and Jason Broome-Isa’s ‘shout down’ is a worrying symptom of it” – see: Anzac Day ‘shout down’ went against dignified remembrance

The problem is caused by a “rising nationalism in New Zealand” according to Heather du Plessis-Allan – see: The bad things about nationalism. She worries that nationalism is being used to close down protest and debate: “it shuts down dissenting views by demanding uniformity. Actually, some New Zealanders don’t participate in Anzac Day because they hate the way the war broke their grandfathers and they don’t want that war glorified. They welcome protest on Anzac Day to remind us never to go back to war.”

Barry Soper is in no doubt that Anzac Day should be a day for protest, and the 12-year-old-boy was out of line: “If it was my son, I would have taken him by the ear and led him away, although legally that’s not permissible these days. But at the very least his dad should have explained to him before his clearly designed-for-television rant that the day’s remembered for the freedoms we have and the part our soldiers played in ensuring that was the case. It’s a day that should be used to talk about what it means to be a New Zealander and the diversity that comes with that. Anzac Day was through the 60s and 70s seen as the ideal time to debate the issues, whether it was the Vietnam War, the peace movement or women’s rights, given the number of women who have been raped and killed during war” – see: The lesson we should be teaching our kids on Anzac Day

The Dominion Post was equally strong about the right to protest: “People have the right to protest, even on Anzac Day. Those who say the day is “sacred” and therefore that political protest action should not occur then are badly confused. The right to disagree does not take a forced vacation on our national day” – see the editorial: The right to protest doesn’t disappear on Anzac Day.

The newspaper also pointed out the changing way older New Zealanders are thinking about Anzac Day and politics: “For some, Anzac Day represents a thinly-disguised apologia for war and militarism. This is not a popular notion nowadays, but for many years baby-boomers saw the day that way and they did not like the official ceremonies. Some boycotted the ceremonies or disrupted them in various ways, such as by laying wreaths for the war dead of Vietnam. Nowadays the boomers have become more pious about Anzac Day, and some may even want to ban a new generation of protesters. That is a bad move and it would be a striking form of generational hypocrisy.”

But RNZ’s Colin Peacock highlights what much of the media seemed to miss about the politics of this year’s Anzac Day: “At the National Commemoration Service on Anzac day, Mr English read an extract from the book The Silent Division by First World War veteran Ormond Edward Burton. Burton became a resolute christian pacifist who was jailed for his beliefs. The day after the Second World War was declared, Burton condemned it before a crowd outside Parliament – a stone’s throw from the cenotaph where Wellington Peace Action made their point peacefully on Anzac Day” – see: Peaceful protest stirs ANZAC day dissent.

The article points out that English was supportive of the rights of peace protestors to participate in Anzac Day commemorations: “What we’re remembering on Anzac Day is people who gave their lives for freedom and part of that freedom is the ability to protest… As long as people are acting within the law, they’re allowed to express a point of view”

Other protesting this year

There have been plenty of other political issues highlighted by political activism so far this year. Environmental protests are again growing in prominence and RNZ’s Robert Smith surveys some different points of view about how to protest in the environmental arena – see: Do environmental protests actually work?

In this, environmental historian Graeme Wynn explains the “decades-old split in the environmental movement, between those who take direct protest action and those who work in the system to try to introduce regulations.” Greenpeace senior campaign advisor Steve Abel explains the need to use a variety of methods to affect change: “If you can achieve what you need by going through the government, then great, but if the message is falling on deaf ears of vested interests, you have to resort to other means available in a democratic and non-violent tradition.”

Of course, gender and sexual politics continue to be an important part of the resurgence of protest, and the most interesting and important example of this was March’s protest at Parliament organised by students from Wellington East Girl’s College against perceived rape culture in schools. This was best reported in Laura Dooney’s Protest at Parliament against rape culture in schools

Finally, for a good example of a humorous, and possibly offensive and boundary-pushing, political protest, see Charlie Gates’ Canterbury artist Sam Mahon takes on Nick Smith again

Interview with Nicky Hager: Critic

George Elliot: There’s been a lot of blowback from Hit & Run. What is your assessment from the response to that?

Nicky Hager: So far the book is going very well. It could seem like the goal was that the government announced the enquiry, and that was the test of whether it worked, but it was never likely that the government was going to agree to an enquiry. What we did was we laid out the story of what happened in Afghanistan and the catastrophe that went on there, and then we didn’t, say, send people off to the criminal courts, we just said have an enquiry into it. The reason we’re doing that is it saves us the trouble of pretending to be international criminal lawyers. But also, it was a really reasonable ask. The government will normally launch an inquiry on anything that’s controversial that they want to close down. SO asking for an inquiry was a perfectly reasonable ask, except that they were almost certainly not going to do it.

So you already thought that they wouldn’t?

Yeha, and the reason that we were going to do it, given that it is the most simple thing and for Bill English it would have been an easy thing to do because he wasn’t responsible for thing that happened. The reason they weren’t going to do it is because they don’t want an inquiry. Especially the SAS really badly doesn’t want an inquiry. If an inquiry is even faintly effective, it will confirm what’s in the book. So while we asked for something reasonable, it was because even that was going to be refused, probably. And that’s what happened. It creates a perfectly reasonable tension which still has to be dealt with. It’s a long way of saying, the book’s come out, which is great, lots of people are reading it, it’s been discussed enough so it’s put the issue on the map, and now there’s this powerful creative tension which is “what are they going to do” and they haven’t done it yet, which is all we can hope for at this stage.

Are you optimistic that anything could happen in the future, if this discussion plays out?

Yeah. Maybe it will all die and be forgotten and no one will ever think about this again, but war crimes are such a big thing – potential war crimes, I should say – that people are still uncomfortable about thing we did in WII a hundred years ago. It’s so big and so important and so impossible to push under the carpet, once there’s a whole book laying it out person by person and chapter by chapter. I have enough faith in this country that this is going to be faced up to. All they’re going to be doing with their evasion and their dodging is meaning it’s going to last for longer. But it’s still going to happen.

Politically and strategically, do you think it would have been easier for the government to have an inquiry?

Totally. Totally. It would have been routine for Bill English to say “I didn’t make the decisions, they were made by my predecessor, I very much doubt that our military has done anything wrong but there have been very serious allegations raised, and therefore, the proper thing to do is to have an enquiry just to reassure the public that there’s nothing any deeper. He could have done it in a way that didn’t show any sympathy for these “despicable” people who’ve raised these issues, or which is ostlie to his political tribe. but the really fascinating question is why they didn’t do that. And the reason why they didn’t do that is not because their polling told them it didn’t matter, I don’t think this is a political calculation. Not that they thought this was a really cunning way to get out of it to make those laughable excuses they made – “don’t worry, we’ve checked with a very independant person called the Chief of Defence force and there’s no problem. This isn’t a brilliant political strategy. The reason they didn’t have an inquiry is that the NZSAS has a lot of influence over what happens in the defence force, and they really really really don’t want to have an inquiry. Right from the beginning they decided that this was only going to be really bad news, so they wanted to cover it up. And now they’ve compounded it. They’ve got the original things that went wrong, and that they did, and that’s compounded with 12 and a half year of hiding and covering. Each time they raise the stakes of how much they don’t want it to come out, they’re just making it worse. we’ve just gone through another round of the cover up. They would have been better to just face up to it, but they didn’t.

Are there people who you know of close to the gov or close to the defence who are upset with this issue?

Yes. There would be no book, not even a long news story, without people on the inside who wanted us to tell it.

How do you approach those people?

Some approached us, which was why it happened. The fundamental reason why there’s a book called Hit & Run is that some of the people in here had consciences that were getting worse not better with the passage of time. What our job is, John S and me, is that we then find more people. A one source story or two source story on something so well hidden and so complicated isn’t going to do it. Because NZ is a very well connected society, and because we’ve worked on these subjects before, who knows who in Afghanistan in 2010. For example, I’ve got this from a bit before. I’ve got past different source . ..  I was able to head out and find more and more people. People’s memories are imperfect – you need them all to work out what’s going on.

What was it like working with John?

It’s actually harder working on a project with two people than one. For all sorts of practical reasons. I could not have done this without him. It was definitely the right thing to do. His special thing he’s done over the years is learning how to operate networks of contacts in countries where the rest of us wouldn’t survive for a week. He brought something essential and unique to the project which was that while I could have written about what the NZers have said they’ve done, he could find Afghan troops who were involved, and most importantly, he could talk to the locals and hear their side of it. Where did this person run, who was that person, who was the person who was shot on the hill. What kind of wounds did they have?

A fascinating part of the story was that it was clear that quite a lot of the injuries and deaths had been caused by the fact that they’d been using helicopter gunships under command of the SAS. A helicopter gunship in a tightly packed civilian area is just a recipe for catastrophe. Because John is in contact with the locals, we work out these questions, like where did this person die, and where were they found, and what were the circumstances. there were two of them who didn’t have helicopter weapon injuries – they had bullet holes. Which sounds really gory, but as we were kind of trying to , you know, be detectives at the scene of the crime, long distance in the past, as much as we could, indirectly, there were these two people who were not killed by helicopters, and one definitely not – he had three bullet holes in his front as he cried for help, a young school teacher – so the thing was, how do we figure out what these people were. In that case, it gradually came into focus because the SAS people were telling us how they would drop snipers at particular positions around the place, and then we put the sniper stuff to the locals and they said “Oh yeah, we found these strange things up on the hills, drink bottles and thing, in this position that overlooks it all. Then we could draw on a map where the possible sniper position was compared to this young man ran fearfully from his parents house where he was on holiday and ran up the back of the house, and it wasn’t proven but it looked more and more likely that he became an insurgent dangerously approaching the SAS position, because he ran from his house and there were bombs going off.

With the initially investigations from the ISIE, were there local authorities involved.

The government has repeatedly said there was an inquiry by ISIEF. They found this, they found that. It sound like a bit of a boring detail, but the most important to say about that review is the context in which it was happening, which was that there were large numbers of civilian casualties going on in different tacks around Afghanistan. It was starting to wear out the relationship between the foreign forces and the Afghan government. So for every one of them, every time there was a new allegation for civilian death, at that particular time when it was very sensitive politically, they would do a quick inquiry. In this case, in a matter of a few days which is a very short time for an inquiry, and without going to the area, and without interviewing the locals – in other words, without much of an inquiry at all – they knocked off a report and put out a press release saying “there may have been civilian deaths, we’re not quite sure, but if there were we apologise to the families of the people concerned.

Is this something that happened quite a lot?

They were doing one for every allegation of civilian deaths anywhere in the country by any country’s forces. The point of the story is that this was not worth;ess but a very rapid ticking of boxes. They never went to the area or collect much. So for the SAS to say six and half years later and then for Bill English to say “this was all investigated at the time and they didn’t find any death” – first of all that wasn’t what they found, and second of all it wasn’t the real review and thirdly, the SAS, I know from their own personnel, knew who was dead and what happened, they knew all that. They didn’t do their own review, they just hid behind this quick, token thing that was conducted by the foreign forces there and it really doesn’t answer the question at all.

What was the whole deal with the map thing? Cos the way I read it, someone is really wrong?

Yes, and the answer is, it was us. But, so when you reveal something that has been hidden and deliberately hidden, and they believe they can get away with hiding it because it’s based in a mountainous country where there aren’t even roads or maps, and no one goes there and there isn’t cell-phone coverage, they had good grounds to believe they could just hide the whole thing. It’s really hard to research. And when you’ve done something like that, and you finish it, there is always a chance that there is a small error in what you do, because the imperfection of time and space, and human memory…

And the whole naming of spaces is always a bit different presumably…

And the risk of making a small mistake is that someone goes, “oh look this thing has awful holes, for example they’ve got the wrong place, and it’s a completely different operation – which is what the Chief of Defence Force said, he said “it must just be a different operation” – he claimed they had the same named operation doing it on the same night. From the very beginning it was like, spare me, you cannot honestly be arguing this. But they were right, we had interview the locals, who had told us the names of their villages: [can’t make out the names] they had explained who was coming out of their houses, who was carrying their baby, and in immense detail, none of which has been disputed, and then when they were asked to place these two villages on a map – in this country with no maps  and no history of maps, it’s not the way they think as far as I can see, and no roads, and no general landmarks that anyone on the outside would know – they marked about 3 bends wrong on the river from where they actually were. So we made a mistake and the Defence Force said they got it wrong and it was a different raid and so I had this most uncomfortable, but necessary, job of reading their stuff and putting out a press release saying “yes, we’ve got the right villages, we’ve got the right operations, the right dates, but the Defence Force is correct; the map location of the villages is slightly wrong, which is of course a real gift, but it doesn’t change the story at all, and it was very disingenuous of them to claim that this was the end of the book. It was like “come on kids, that’s the type of argument that you think that the year 7 school debate might try”, but not the Chief of the Defence Force.

You’re used to it, but the smear that happens afterwards, or the internet comments, which i’m sure you don’t read, are you used to it now?

Yes. I advise my journalistic colleagues, and it’s one of the pieces of advice I give to people is, which they always ignore, is never read the comments. Never read anonymous comments, because it’s mad-dog, unrestrained land where you don’t want to let that nonsense into your head. But yeah, it’s fair to say that I’m always bewildered at the level of personal attack, when, I think, I’ve done a careful piece of work. But I also know that, because I wrote a book called Dirty Politics on this very subject is, that a lot of it is tactical. People are saying it not because they think it’s complete nonsense and that war crimes don’t matter, they’re doing it to shut it up, they’re doing it to create a diversion, to shoot the messenger, and if you understand that, it’s not personal. I can honestly say I felt virtually nothing.

It’s a lonely place to be if you’ve do some work and everyone believes that you’re wrong. I’ve been there and it’s a horrible place to be. It’s remarkable that the people in charge came up with. As long as they don’t get away with it, it feels fine.

Where do you see this book in your greater career, as opposed the most recent one,Dirty Politics?

I’ve done pieces of work that have been longer and harder and perhaps more important than this, but this one really matters to me a lot. I wrote this big fat book called ‘Other People’s Laws’ on the war in Afghanistan, which i think is the best thing I’ve ever done, which covered all sorts of issues. The value of Hit & Run is that there’s a power in telling a single story really carefully and I really like this whee you can take something which could just sound like another statistic in a war where everything is going wrong, and you take it and we could take it and humanise soldiers who actually care, and didn’t go into the army to hurt children, and humanise the locals who aren’t just mad, screaming, Taliban, weirdo people living in dusty, rocky, places, they’re real people who have a history and lives and also, very cautiously, humanising soldiers. Because only the most foolish person turns them into devils, when there is a reason they’re fighting, and they have their own reasons for why they’re fighting and dying and things like that. Being able to look at one story really closely and all the levels of it and what h means and not 1500 words in a newspaper, but actually chapter after chapter and then being able to roll it out to what does this say about NZ and where we’re going, and how our military works and how they could hide this it’s very satisfying to have the space to tell a story really well like that, so someone reads about this tiny little molecules worth of what actually happened over the whole war, they’ll actually get a better understanding of how war works, what we were doing there and whether we should join the next one of these, which is a big questions for NZ. From my POV, for someone who actually cares about war and what’s going on there it was a perfect opportunity.

I was wondering what your thoughts were on the whole internet damaging journalism thing?

So books do something that can’t be done in short form, but the internet does some things magnificently well. It has powerfully increased the amount of intelligent commentary nd the breadth of voices that get heard. There are some things that are fantastic about the internet, but there are also some things that are terrifying about it, because as everybody who has read this [Hit & Run], someone who wants to know more about the world has a greater opportunity than ever, but most people who use the internet just get consumed by junk, and less reality than ever before, and so there’s this huge contradiction in what’s going on, and it’s just a terrifying contradictory situation.

What do you think about NZ’s investigative journalism? Are there many other people like you who do this?

There are relatively few people who are doing full-time investigative journalism. There’s a small number who get paid for it, miraculously; Fairfax and NZ Herald and a few other places, but there’s very few. It could go down to zero quite easily with the merger [of Fairfax and NZME] so it’s precarious. So the main way that investigative journalism thrives in NZ, considering our population and resources, people just get on and do it anyway. Like, most investigative journalism is done by filmmakers who research, over years sometimes, investigative journalism. Or it’s done over decades, by generations, by somebody who gets a bee in their bonnet about something and they write a book about it, which is investigative journalism, when done well, with good research and things. And so, that’s my model for investigative journalism in NZ, not that we will get more and more resources or more and more people sat in offices on good salaries doing it, but that people will believe in it.

Because no one was going to pay me a liveable salary to do what I do, I worked my way into this by earning my money in one way and researching and writing in my spare time, and that’s more or less the way NZ does it. That’s the main reason we have actors, novelists, musicians, etc, is that we earn our money one way and do it in our spare time. That’s fine, it’s a small country and it’s a solution to an economic impossibility.

Do you see yourself among those people (musicians, artists) rather than the parliamentarians and the activists?

Yeah. I am economically! I got into this earning a living by being a builder, because you have to get money from somewhere. I’m not actually too sure where I’d place myself. I’d put it a slightly different way. There are people who are getting rich, looking after no. 1, focussing on careers etc, but then you see that there is always a group of people who have a sense of social service, that their point of life is to do things for other people. What is casually called ‘making a difference’ and I find there are people all over the place like that, and you kind of recognise each other across a crowded room. There are people in the military who are desperately trying to make a difference, not all of them, but they really do their best. That’s the difference. It’s not just that I am trying to be famous, important, or rich myself or whatever, but that I’ve been born on this planet with all of thee privileges in light of everything that could have or is going wrong, to do something decent with our time. I’d like to think of myself in that group, but they’re all over the place.

Before we finish, I’d like to know what  you think about Wikileaks? Their processes, their criticism that they just dump everything, and also their politics?

Well I have to make a declaration first. I’m friends with Julian Assange and i like him and I respect him, which colours my thinking. Ummm the essentially idea that Julian had for Wikileaks back in 2006 was born out of the War on Terror, at a time when the world was getting much more secretive and the US was closing down many govt website that previously had information on, they were claiming secrecy for everything about their wars in Iraq and Afghanistan, and there was a wave of secrecy going on in the midst of hugely important events that were destabilising the World, like the invasion of Iraq which have created the troubles with ISIS and in Syria, the refugee crisis, and it was getting harder and harder to even know what went on. Julian’s idea was that you needed something on a scale similar to that to tr and counter it and in a digital age, the leaking meant we had something that could be a legitimate counter to that. This was a funny, marginal idea he had for years and nobody took any advantage of him or it, but then they had enough successes that the idea started to be seen. This is a longer answer than you wanted probably but it’s very interesting. And then the example of that got in the head of this young person, Chelsea Manning who gave them the Embassy Cables in Afghanistan War and Iraq, which is really where Wikileaks became stellar. I think that was genuinely a proof of what Julian was thinking, which was that you really needed to shake things up on that scale. The information that came up on Afghanistan, which was mostly unchanged, is the most amazing resource for someone who wants to know what was happening with the CIA’s parallel war in Afghanistan. All of these things that came out of there was down to the work that Julian Assange and Wikileaks did, so I think they’ve completely justified their position in history for the rest of time as an amazing idea that worked. Edward Snowden, quite likely, would not have thought to do what he did without Chelsea Manning and Wikileaks. I’m a great fan. That’ doesn’t mean I agree with everything they do.

Although people love to say he’s a very difficult person, as if there aren’t other really difficult people all over the place, I think he’s done extremely well.

Lastly, for people who will actually read this in university, particularly young and up and coming journalists, do you have a message for them, or some advice?

Yeah I do. It’s very mixed advice. I think that like, medicine, social work, there are many roles that are particularly needed in society, and I think journalism is one of those…it’s right up there. It’s like people involved in political activism, I see journalism as being right up there, as one of the most essential, noblest, good careers you could do. That’s the good news. At the same time, as we go through the transition from the pre-digital news media to the situation after the digital age has come in, where news organisations are collapsing around us, this is a really difficult and unfair time to ask people to do a course, build up their student loan, and try and find some possibly frustrating job to do. And so my advice would be to understand the problems of the news media orgs and separate that from the amazing job they do. So people who do this, not to be tricked by the collapsing nature of the industry, should be wary of the complicated nature of becoming a successful journalist. Also be aware that, this is one of the most amazing ways to contribute to society, and society is not going to stop journalism, in fact it’s going to need it more and more and more.

This article first appeared in Issue 10, 2017.
Posted 11:43am Sunday 7th May 2017 by George Elliott.

The case for environmental rights


It’s time for the constitution to protect New Zealanders’ rights to a health environment, argues Sir Geoffrey Palmer

New Zealanders care about the country’s environment, and about environmental challenges.

The country markets itself as clean and green, but it’s track record doesn’t always match the rhetoric. Waterways are increasingly polluted. Water supplies have been contaminated. Climate change remains a pressing concern. The Resource Management Act, which aimed to protect the environment while also providing for sustainable development, has been so regularly amended that it has lost much of its original purpose.

It’s time to strengthen New Zealand’s environmental protections. In A Constitution for Aotearoa New Zealand, Dr Andrew Butler and I are proposing to add an environmental right to the New Zealand Bill of Rights Act 1990.


We are also proposing to make the Bill of Rights Act superior law. This would mean that other laws have to comply with it. The Supreme Court could find that other laws are inconsistent with New Zealanders’ right to a healthy environment, and could declare those laws inconsistent with the Constitution. The law would remain in force only if, within a year, 75 percent of MPs voted for that to happen.

This approach would give the last word to Parliament, but only if there was broad support. It would prevent governments from pushing through measures that were harmful to New Zealanders’ environmental rights and did not have the required support.

The specific environmental rights we propose are:

105 Environmental rights

Everyone has the right—

(a) to an environment that is not harmful to his or her health or wellbeing; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that—

(i) reduce pollution and ecological degradation:

(ii) promote conservation:

(iii) pursue ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

You can read more about our proposals in chapter 8 of A Constitution for Aotearoa New Zealand. And you can read how the superior law provisions would work inchapter 6.

Spies’ database of secrets about Kiwis ignored basic security rules and standards, report finds

By David Fisher

Cheryl Gwyn has headed New Zealand’s spy agencies during a time of controversy.

The intelligence agency databases holding some of the most personal information about New Zealanders breached basic standards for protecting those secrets, a new report has found.

An inquiry by the Inspector General of Intelligence and Security found the lack of basic security standards was well-known for years at the NZ Security Intelligence Service.

Even though it was well-known little was done, meaning there was no formal protection for the four databases containing information about those wanting security clearances.

That included personal information such as financial details, medical histories, relationship secrets, substance abuse or even sexual preferences that might emerge during the vetting process for those accessing classified information.

The report from the Inspector General Cheryl Gwyn is the latest in a series of reviews exposing the NZSIS and its partner agency, the Government Security Communications Bureau, as shambolic and operating outside expected standards – and even the law.

The reviews followed the revelation in 2012 that Kim Dotcom and a host of others were illegally spied on, and have led to wholesale change across the intelligence agencies.

Gwyn’s report released today shows the NZSIS brought in new systems to streamline vetting but had a requirement to get all four systems “accredited” by the GCSB before they went into operation in 2009.

If it couldn’t get the GCSB to sign off on the use of the systems, it was obliged to get a temporary waiver – and to make sure that each system logged who was using it and for what purpose.

Instead, nothing was done – and, aside from minor security tweaks, it stayed that way until Gwyn’s office started investigating two years ago.

Gwyn found the problem was known from the moment the systems were installed when the GCSB “raised a broad range of security concerns”.

Gwyn’s report said the concerns were such that they were discussed between the directors of the two intelligence agencies.

Rebecca Kitteridge, director of the NZSIS. Photo / Mark Mitchell
Rebecca Kitteridge, director of the NZSIS. Photo / Mark Mitchell

“The NZSIS did address some of those concerns but put the two systems into operation without certification or accreditation.”

An external review of the other two systems also recommended the NZSIS get the systems accredited “but that recommendation was not acted upon”.

Gwyn said it was difficult working out why the NZSIS had made decisions in a certain way because of the lack of proper record-keeping – a fault identified and corrected after an earlier review.

“The available records indicate that concerns were raised within the NZSIS, as well as by the GCSB, over potential security noncompliance and vulnerabilities and remedial steps were proposed, though these did not proceed.”

By 2010, the steps proposed to fix the security flaws had gone from “urgent” to “business as usual” and eventually were cancelled in 2014.

Since putting the programme of accreditation and accreditation into place in 2015, there have been significant security upgrades for the systems.

Gwyn also sought to discover what controls there were around accessing the information, in line with the requirement that access to the highly sensitive information be logged.

She found it was only possible to see who had looked at the records for one of the four systems.

Two of the systems had no way of showing who had accessed the information and it was technically challenging to extract data from the third system.

USA former NSA whistleblower Edward Snowden.
USA former NSA whistleblower Edward Snowden.

During this time, Gwyn noted, the leaks by NSA’s Edward Snowden and the hacking of 22 million personnel records from the United States’ Office of Personnel Management showed the heightened risk the agency faced.

NZSIS director Rebecca Kitteridge said improvements had been made and all four vetting systems were certified and accredited.

“There has been no indication to date of any breach or compromise of vetting information. NZSIS vetting staff take the responsibility of holding personal information seriously.”