LawNews - Issue 35

Tracking down the principles of

THE TREATY

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Editor: Jenni McManus

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Reweti Kohere 09 306 3997 Reweti.Kohere@thelawassociation.nz

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The principles of te Tiriti o Waitangi: where it all started

While there is no consensus on what the principles are, a common throughline does exist in te Tiriti jurisprudence: that the treaty forms a partnership based on a duty to act reasonably, honestly and in the utmost good faith – or you don’t trick each other, you don’t try to con each other. You listen to each other but you don’t always agree

Reweti Kohere

Imagine this: some time has passed since New Zealand went to the polls. With a bare majority, and barring a loss of confidence in the House, a National-Act coalition government is leading Aotearoa New Zealand for the next three years.

In the run-up to the election, Act has announced a bottom line in any post-election coalition negotiation: a new statute defining for the first time the principles of te Tiriti o Waitangi, subject to voters approving it in a referendum. New Prime Minister Christopher Luxon’s response? “That is something that’s not our policy and we don’t support it.”

Except National ends up agreeing to it. The new government’s coalition agreement reveals National will help pass Act’s Treaty Principles Bill. Act leader David Seymour, in comments echoing the party’s race relations policy document, says an open debate about the treaty and its place in “our

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Tracking down the principles of the treaty

Alongside the debate on whether lawyers require an independent regulator, the most controversial proposition put forward by the three-person panel reviewing the legal profession was that the principles of the Treaty of Waitangi should be incorporated into the Lawyers and Conveyancers Act 2006.

Problem is, most New Zealanders have few clues about what these principles might be. In a three-part series beginning today, LawNews investigates the origin of principles, whether consensus can ever be achieved on what they are and whether it is realistic to try to incorporate them into the Act that lays out lawyers’ fundamental professional obligations.

Cooke P summarised the principles as requiring ‘the Pākehā and Māori treaty partners to act towards each other reasonably and with the utmost good faith’

Photo: Phil Walter Getty Images

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constitutional future” will be legitimised. With his trademark chief executive enthusiasm, Luxon states the obvious: the New Zealand people will decide.

With just over a week left in the 2023 election campaign, this hypothetical is a strong possibility if National and Act can form the next government. What does this mean for Aotearoa New Zealand? Much like Australia is grappling with the significance of constitutionally guaranteeing an Aboriginal and Torres Strait Islander voice to the Commonwealth government, New Zealand could find itself wrestling with the significance of its foundational constitutional document.

The principles of the treaty might exist but there are different levels of understanding among New Zealanders. Some don’t know their meaning and are confused by their relevance; others know them off-by-heart. Some express concern that co-governance arrangements with Māori conflict with and undermine New Zealand’s “one person, one vote” democracy, while some are less worried about abstract principles when faced with rising mortgage repayments and food prices.

In this three-part series, LawNews will aim to answer basic questions about the principles of the treaty, such as what are they? Where can they be found? What do they mean? What purpose do they serve and are they still relevant today? The series will also set out a wide range of views on the way forward for everyday New Zealanders, the legal profession and our nation.

In less than 20 years, our country will reach the 200th anniversary of the treaty’s signing. Will the country be able to appreciate and celebrate this milestone in our relatively young history? Will the national conversation have evolved into something more mature, respectful and constructive? What will New Zealand look like in 2040? And where will the treaty fit in with our constitution?

These questions are best answered by looking at where the principles come from.

An election promise

The phrase “the principles of the Treaty of Waitangi” first appeared in legislation with the Treaty of Waitangi Act 1975, which established the Waitangi Tribunal, the permanent commission of inquiry that makes recommendations on claims brought by Māori about Crown actions that breach the treaty principles.

The statute’s preamble emphasises Parliament’s desire for a tribunal to recommend how best to apply the principles of the treaty and, “for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles”. The statute does not define the principles.

Norman Kirk’s Labour Party appears to have inadvertently kickstarted the principles controversy. In The Constitution of New Zealand: A Contextual Analysis, Justice Matthew Palmer and Professor Dean Knight recount how the Act came into being. In November 1972, Labour was elected and one of its four

Māori seat MPs, Matiu Rata, as Māori Affairs Minister, was asked by Cabinet to consider how to make good the party’s election promise to “examine a practical means of legally acknowledging the principles” set out in the treaty.

Rata did so by chairing the government’s caucus committee on Māori Affairs. Its first report recommended setting up a permanent standing committee of the House of Representatives to consider alleged treaty breaches. However, Cabinet preferred a legislative solution, which resulted in the committee’s second report. Cabinet effectively adopted the revised proposal, accepting in principle a preliminary draft Treaty of Waitangi Bill – subject to amending the operative clause to refer to “the principles” of the treaty, which reflected Labour’s election manifesto commitment. The Bill received royal assent on 10 October 1975.

The tribunal’s early days were fraught, Palmer and Knight write. Elected in 1975, National didn’t set up the tribunal until the end of 1976 and seems to have acted only because of legal risk and once a complaint had been received by the tribunal. Its early reports were “conservative and legalistic”. But from 1980, under the leadership of Sir Edward Taihakurei Durie (Rangitāne, Ngāti Kauwhata and Ngāti Raukawa), the tribunal developed “an inquisitorial, non-legalistic, relational approach, responsive to both Māori and Pākehā concerns and aiming to find pragmatic solutions”.

‘The most dramatic case’

The tribunal issued four seminal reports in the mid-1980s that interpreted the meaning of te Tiriti in a contemporary context: a “comforting relational compromise”, Palmer and Knight say. While careful, the four reports were “increasingly assertive” in

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Given the lack of a legislated definition, the authority to interpret te Tiriti was given to the courts, which were empowered by the “prompt for litigation” contained in s 9

Photo: Cam McLaren Getty Images

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formulating an approach to interpreting te Tiriti.

For the first decade of its existence, the tribunal was limited to making recommendations on contemporary breaches. But a re-elected Labour government in 1985 changed that, retrospectively extending the tribunal’s jurisdiction to examine alleged historical breaches.

At the same time, the government was working on embedding an understanding of the treaty within the public service. Sir Geoffrey Palmer, in his memoir Reform, writes that Cabinet in June 1986 agreed that all future legislation should draw attention to any implications for the recognition of the treaty. “It was quite a battle to get officials to stop ignoring the treaty. The whole culture of the public service had to be sensitised to Māori and treaty issues, and our position was that they could not be left only to the Ministry of Māori Affairs,” Sir Geoffrey writes.

Consequently, Labour started including treaty clauses in legislation, such as s 4 of the Conservation Act 1987, which states the statute’s interpretation and administration will “give effect to” the principles. Of the most consequence was s 9 of the State-Owned Enterprises Act 1986: “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.”

The fourth Labour government’s policy agenda was radical. One was a fundamental restructuring of the organisation of government over forestry, electricity generation, mines, tracts of Crown land and the post office. In an urgent interim report on the government’s plans to transfer resources from the Crown to separate state-owned enterprises (SOEs), the tribunal suggested the honour of the Crown was at stake and recommended the Crown shouldn’t dispose of lands that were the subject of tribunal claims.

With some help, Sir Geoffrey devised what became s 9 of the SOE Act. Section 27 was also amended to explicitly protect tribunal claims filed before the Act received royal assent and recognise any tribunal recommendations after that date.

After the SOE Act was passed, but before land was

Leading Your Career

transferred to SOEs, the New Zealand Māori Council – a statutory body that represents and consults Māori – and its chair, Sir Graham Latimer (Ngāti Kahu), brought proceedings for a declaration to stop the transfer until arrangements were made to deal with Māori claims of those assets.

What followed has been described by Sir Geoffrey as “the most dramatic case on Māori issues ever decided by a New Zealand court up to that point”; by Palmer and Knight as “simply the most constitutionally significant court judgment in New Zealand’s history” and by Professor Jacinta Ruru as a landmark, unanimous decision comparable in its “ground-breaking aura” to other breakthrough indigenous rights decisions in Australia and Canada.

Tribunal influence

The significance of the 1987 case of New Zealand Māori Council v Attorney-General, commonly known as the Lands case, wasn’t lost on the Court of Appeal. Its president, Justice Robin Cooke (later Lord Cooke of Thorndon), was explicit: “This case is perhaps as important for the future of our country as any that has come before a New Zealand court.”

Echoing those words, Justice Ivor Richardson said the case was “of the greatest public importance” in its social impact on race relations. Together with Justices Edward Somers, Maurice Casey and Gordon Bisson, the court handed down a unanimous decision expressed in five judgments: transferring the assets to SOEs would be unlawful, on the basis of s 9, without a system to consider whether the transfer would be inconsistent with the treaty principles.

What were those principles in 1987? Given the lack of a legislated definition, the authority to interpret te Tiriti was given to the courts, which were empowered by the “prompt for litigation” contained in s 9, Palmer and Knight write. In doing so, Cooke P said the court should give “much weight” to the tribunal’s four cornerstone reports issued from 1983 to 1986. While the reports were not binding, they were “of great value”.

In the 1983 Motunui-Waitara report, the tribunal described

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This case is perhaps as important for the future of our country as any that has come before a New Zealand court

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the treaty as representing “the gift of the right to make laws in return for the promise to do so as to acknowledge and protect the interests of the indigenous inhabitants”.

Two years later, in response to the Manukau claim, the tribunal for the first time described “an interest in partnership” that iwi had in the harbour: “Certainly something more than that of a minority section of the general public, more than just a particular interest in particular fishing grounds, but less than that of exclusive ownership. It is in the nature of an interest in partnership the precise terms of which have yet to be worked out.”

By 1986, a year before the Lands decision, the tribunal made a broad observation in the WAI 11 claim that recommended te reo Māori should be made an official language of New Zealand: “In its widest sense, the treaty promotes a partnership in the development of the country and a sharing of all resources.”

The treaty partnership

Cooke P summarised the principles as requiring “the Pākehā and Māori treaty partners to act towards each other reasonably and with the utmost good faith. That duty is no light one. It is infinitely more than a formality. If a breach of the duty is demonstrated at any time, the duty of the court will be to insist that it be honoured.”

The principles were to be applied, not the literal words of the treaty. As was well known, the two texts were not translations of one another and didn’t necessarily convey precisely the same meaning, Cooke P said. Their differences and the shades of meaning didn’t matter for the purposes of the case. “What matters is the spirit…The treaty has to be seen as an embryo rather than a fully developed integrated set of ideas. The treaty signified a partnership between the races, and it is in this concept that the answer to the present case has to be found.”

Later, Cooke P describes the partnership as creating responsibilities “analogous to fiduciary duties”. The duty to act reasonably and in the utmost good faith is not one-sided, he said, as Māori had sworn a duty of loyalty to the Queen, fully accepted her government and agreed to cooperate reasonably.

Justice Somers said te Tiriti must be viewed as a “solemn compact” between the Crown and Māori, and Casey J said inferring “something in the nature of a partnership” between the Crown and Māori in 1840 wasn’t difficult. Justice Bisson described the principles as “the foundation for the future relationship between the Crown and the Māori race”.

However, the court recognised that putting “such broad propositions into more concrete forms” was challenging. The New Zealand Māori Council advocated for 10 principles implicit in the terms of the treaty, including the duty to actively protect the Māori interest to the fullest extent practicable, the duty to consult, the duty to make good past breaches and the honour of the Crown.

The Attorney-General rejected the concept of implied

principles and identified five of his own, including that the Crown should exercise the power of government, which also included the power to legislate for all matters relating to peace and good order and that Māori “chieftainship” over their lands, forests, fisheries and other treasures was not extinguished and would be protected and guaranteed.

There was “little similarity” between the parties’ proposed principles. On the duty to consult, for example, Cooke P said it was “elusive and unworkable” and questioned “exactly who should be consulted”. Richardson J had trouble accepting the Māori Council’s submission that the obligation to consult and be consulted stemmed from the obligation of good faith. “In truth, the notion of an absolute open-ended and formless duty to consult is incapable of practical fulfilment and cannot be regarded as implicit in the treaty,” the judge said. Somers J said while each side was entitled to the other’s fullest good faith, “I would not go so far as to hold that each must consult with the other. Good faith does not require consultation although it is an obvious way of demonstrating its existence.”

‘Crisp’ principles

Guided by the court’s landmark decision, the parties negotiated a regime to protect Māori claims to the tribunal. The resultant Treaty of Waitangi (State Enterprises) Act 1988 enabled transfers of land to the SOEs to proceed on the condition the tribunal was empowered to mandate the land be returned, at market value, to the Crown to settle any treaty claim. Further challenges were issued by Māori over Crown proposals to transfer coal, forestry and broadcasting assets to SOEs, and new forms of property rights in fisheries and radio frequencies were created. As Professor Ruru explains in In Good Faith, an article summarising a symposium in 2007 that marked the 20th anniversary of the Lands case, subsequent judicial decisions confirmed the underlying tenor of the Court of Appeal’s approach in 1987, “including respectfully not construing a finite list of treaty principles”. The approach was ultimately approved in the 1993 Broadcasting Assets case by the Privy Council.

Amid a flurry of court cases, Cabinet in the late 1980s adopted and published Principles for Crown Action on the Treaty of Waitangi, a clear statement of where the government stood so departments and agencies could have clarity. The five principles are:

■ kāwanatanga (government), which recognises the cession of sovereignty and the government’s right to govern and make laws in exchange for protection of rangatiratanga;

■ rangatiratanga (self-management). The second article of the treaty guarantees to iwi the control and enjoyment of taonga that they wish to retain. “This is the price the Crown paid for what it obtained in the first article”;

■ equality, which recognises the guarantee in the third article

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Norman Kirk’s Labour Party appears to have inadvertently kickstarted the principles controversy

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of legal equality and the actual enjoyment of social benefits between Māori and other citizens of New Zealand. Legal equality means that “all New Zealand citizens are equal before the law” while the enjoyment of social benefits recognises that “where serious and persistent imbalances exist between groups in their actual enjoyment of social benefits, then government will consider particular measures to assist in redressing the balance”;

■ reasonable co-operation, which states that the treaty is regarded by the Crown as establishing a fair basis for two peoples in one country. “Duality implies distinctive cultural development and unity implies common purpose and community”; and

■ redress, in which the Crown ensures a process is provided for resolution of grievances arising from the treaty, be that through the courts, the tribunal or direct negotiation.

Each principle was developed “crisply”, Sir Geoffrey writes, and was designed to give one treaty partner – the government – a place upon which to stand. “These principles are aimed to dispel doubt and remove confusion.”

Over the past 36 years, the tribunal and the courts have articulated an approach that emphasises the principles as important and developing. While there is no consensus on what the principles are, a common throughline does exist in te Tiriti jurisprudence: that the treaty forms a partnership based on a duty to act reasonably, honestly and in the utmost good faith – or you don’t trick each other, you don’t try to con each other. “You listen to each other but you don’t always agree,” says David Cochrane, a former partner at Chapman Tripp and Waitangi Tribunal member from 2014 to 2021. “And it [goes] each way, so it’s not just a case of the Crown has got to do all this. Māori have got to too.”

A 2001 guidebook from Te Puni Kōkiri entitled He Tirohanga ō Kawa ki te Tiriti o Waitangi outlines what the two bodies have said about partnership as well as the principles of reciprocity, mutual benefit, active protection, redress and the

duty to make informed decisions.

‘Simply about respect’

There’s an acceptance that the lack of consensus is because the treaty is seen as still developing, “so the ‘principles’ are not constant and cannot be exhaustively identified”, Chapman Tripp states in a 2005 Counsel document (which Cochrane helped write). “Can it, therefore, be said that the principles of the treaty are undefined and ambiguous? If so, is there a problem that needs fixing? The principles are not, by their nature, capable of fixed definition and certainty. Should they therefore be denied the status of giving rise to enforceable rights?”

At the 20th anniversary symposium, Treaty Negotiations Minister Mark Burton reiterated the principles are not set in stone and that they may change as the treaty relationship evolves. “While there has been much debate and angst (particularly political) about the principles of the treaty, I suggest that it is not difficult to come to grips with what is meant by the principles of the treaty,” he said. “At their heart, I suggest they are quite simply about respect.”

Burton recognised the Lands judgment sat behind the creation of the very ministerial portfolio he then held. The decision gave the Crown and Māori the “ground rules” for their relationship, but its future would not lie in the courts. The future Crown-Māori relationship would be worked out “in face to face dialogue, in conversation and debate, and constructive engagement,” he said. This is true: the people LawNews has spoken to don’t all agree.

“This relationship will not stop when all historical claims have been settled. On the countrary, it will take on a new face and new strength, as Māori are better resourced to engage in this dialogue and can increasingly focus their energies on building their social, cultural and economic future,” Burton said.

“This is the future we are committed to. This is the future, in no small way, underscored by the Court of Appeal’s landmark decision of June 29, 1987.” ■

Next week: What do the treaty principles mean in practice and are they still relevant? ■

In its widest sense, the treaty promotes a partnership in the development of the country and a sharing of all resources

The cost of the rule of law: unpacking the $900k bill for the ‘Mama Hooch’ defendants

Looking at the reported hours spent by the lawyers for one of the accused, a back-of-the-envelope calculation of the hourly rate was $184.52 and for the other $160 – hardly obscene charge-out rates in today’s climate

David Harvey

A piece in the NZ Herald on 27 September 2023 reported that the legal aid bill incurred for the defence of the “Mama Hooch” rapists was almost $900,000, and climbing.

The article pointed out the gulf in public funding for the defence compared with the financial compensation and assistance for the victims. It quotes victim advocate Ruth Money who acknowledges that everyone is entitled to a fair defence, as she was bound to do, but turned that around by suggesting the bill was “absolutely obscene”.

Although the article focusses upon the lack of financial support for victims, the clear subtext is that the legal costs of the defence, funded by legal aid, were excessive. It is highly likely that there would be public concern that nearly $900,000 of public money had been expended defending two prolific and predatory offenders who were charged with serious sexual offending. But that initial concern overlooks some important factors.

The first is that whatever the outcome of the trial for the offenders, they were, as is everyone charged by the State with criminal offending, entitled to the presumption of innocence. That is a given but that fundamental proposition is often misunderstood by a large segment of the population who consider those found not guilty after trial “got off” or had a “smart lawyer”. The implication of those statements is clear.

The second issue relates to another fundamental principle of the criminal law: that the prosecution must prove the charge – every element of it –beyond a reasonable doubt. The State points the finger. The State has to prove the charge. Beyond a

reasonable doubt.

There were a large number of charges in the “Mama Hooch” case. It took some years to get to trial. There were several preliminary hearings. The trial went on for weeks. Each of the defendants had a defence team. They were obliged to take every available point and strenuously challenge the prosecution evidence. They had a duty to do the best by their clients and it seems from the disbursements that were incurred and listed in the article that they did just that. Private investigators were briefed, as were toxicologists, psychiatrists and social media analysts.

Putting to one side the disbursements and looking at the reported hours spent by the lawyers for one of the accused, a back-of-the-envelope calculation of the hourly rate was $184.52 and for the other was $160 –hardly obscene charge-out rates in today’s climate.

Sense of duty

It is not well known by the public that the rate of remuneration on legal aid is not high. There have been constant concerns expressed by the profession and by the Criminal Bar Association at the level of legal aid remuneration. Those lawyers who do criminal legal aid work, along with those who work at the Public Defence Service, do so out of a sense of duty and commitment to the principles of the presumption of innocence and the guarantee in s 24(f) of the New Zealand Bill of Rights Act that a person charged has a right to receive legal assistance without cost.

It is inconceivable that a person charged with a crime should be tried without a lawyer because he or she could not afford one. Our legal aid system, flawed as it might be, coupled with the provisions of the New Zealand Bill of Rights Act, ensure that those who

cannot afford a lawyer will have representation.

The fact that the costs of representation of the “Mama Hooch” rapists were approaching $900,000 is immaterial to the principles that underly the right to a competent defence. The Herald article provided details of other high-profile cases where legal aid had been granted. The inference to be drawn from those cases was that either they were more complex and therefore more expensive or that they were not and came in under the amount incurred in the “Mama Hooch” case.

In addition, in a snide aside, it is pointed out that a further $20,000 of public money was expended because the “Mama Hooch” brothers changed their election from trial by jury to trial by judge alone. The inference in that aside is that these remorseless villains were cynically gaming the system and costing the taxpayer a fortune.

However, that ignores the fact that s 53 of the Criminal Procedure Act 2011 states that a defendant may not withdraw an election of jury trial without the leave of the court. It wasn’t as though they asked and therefore received. The judge had to consider whether or not the application should be granted.

The “Mama Hooch” rapists have been tried and sentenced. The Crown proved its case beyond a reasonable doubt and thereby rebutted the presumption of innocence. We may deplore what they did. We may feel sympathy for the victims.

But in so doing we should never forget that people are not automatically guilty because they are charged, no matter what offences are alleged, that they have a right to be presumed innocent until proven guilty, that they are entitled to a competent and vigorous defence and representation by a lawyer without cost if they can’t afford one and that they have a right to a fair trial according to law.

If we put those fundamentals to one side because we think it costs too much, the rule of law is in trouble. ■

David Harvey is a retired District Court Judge and a member of Sangro Chambers in Auckland ■

Landlord evicts tenant for meth contamination, despite no pre-tenancy drug testing

Sally Lindsay

A Christchurch landlord who failed to do a methamphetamine test before his tenant moved in has been permitted to evict her on grounds of meth contamination because a brand-new front door he installed after the tenancy began subsequently tested positive for methamphetamine.

The Tenancy Tribunal will not usually terminate a tenancy on the grounds of methamphetamine contamination unless there has been a pre-tenancy test, but adjudicator J Greene said the replacement front door installed a week after the tenancy started was then shown to be contaminated “and is proof of probable methamphetamine contamination during the tenancy”.

The old door had to be replaced because a circular saw had been used to cut through it.

Tenant Bridget Quartermain was represented at the Tenancy Tribunal hearing by her mother, who said in the absence of a pretenancy methamphetamine report, landlord Barry Gamble could not prove her daughter caused the contamination at the Linwood flat.

While Gamble says he did not have the premises tested before the tenancy, he produced evidence that methamphetamine had been used and possibly manufactured at the premises, resulting in the contamination in six rooms to levels well in excess of 15 μg/100cm2. That is above the level considered dangerous to health. Only two rooms and the garage were below 15 μg/100cm2 –the level considered by the tribunal to endanger health.

“At levels of 32, 35, 48, 49, 73 and 95μg/100cm2, the contamination meant the premises were so seriously damaged as to be uninhabitable,” Greene said.

Gamble says he also found a meth pipe, a quantity of meth and cannabis offcuts at the flat, which he referred to the police.

Quartermain’s mother also claimed her daughter was not given a property inspection report at the start of the one-year fixed term tenancy but Gamble showed a report signed by both him and the

tenant at the beginning of the tenancy, recording various damage and defects.

Quartermain’s mother also said the landlord wrongly terminated the tenancy because it was fixed term. However, Greene says Gamble could issue a seven-day notice to terminate the tenancy, whether a fixed term or periodic tenancy, if the premises had been destroyed or were so seriously damaged as to be uninhabitable.

“The methamphetamine contamination arose as an intentional act. Using drugs – the report suggests possible manufacture to produce such high levels of contamination – is not a careless act, it is an intentional act. While the landlord’s claim is not limited to the insurance excess or four weeks’ rent, he has just claimed the excess of $2,500 and the tribunal awards that.”

After receiving the methamphetamine test report, the landlord on March 23 gave Quartermain seven days to get out of the flat but she did not leave until 7 May. After she left, Gamble applied to the tribunal for rent arrears, compensation and the bond.

At the end of July, Greene issued timetabling directions for the filing of evidence and submissions for the rest of Gamble’s claim, but neither Gamble nor Quartermain took any notice. A further hearing had to be scheduled for August.

At 11.41pm on the night before the hearing, Quartermain’s mother emailed a substantial document to Greene, saying it was her daughter’s defence. Included was a counter-claim for $77,780.50. There was no mention in the application of a claim against the landlord. She was told (repeatedly) that it could not be heard as it had not been filed with the tribunal and a filing fee had not been paid.

“Her intransigence on this point was discourteous to the tribunal,” Greene says. “She would not be guided. Filing the counterclaim a few hours before the scheduled hearing is an abuse of process.”

The tribunal told Quartermain’s mother that as she was not the tenant, she could not file a claim against the landlord, but her daughter could make an application and pay the filing fee. Any claim for costs could not be heard until she did that.

The remainder of Gamble’s claims against Quartermain were successful. She has to pay him $5484.93 for rent arrears and for repairing damage to the kitchen floor caused by a dog, holes in the master bedroom and front door frame after Quartermain installed a digital front lock for protection without the landlord’s consent, skip hire, replacing a council rubbish bin, lock and key replacement, cleaning oil off the driveway, the landlord’s labour for removing rubbish and a structure built for cats in the backyard, replacing meth-contaminated smoke alarms and the insurance excess for meth contamination. ■

Sally Lindsay is an Auckland journalist specialising in property ■

Using drugs – the report suggests possible manufacture to produce such high levels of contamination – is not a careless act, it is an intentional act

Taking back their country

For the Greens, the present trend of corporations ‘going woke’ is only the beginning of a fundamental social, economic and, ultimately, species transformation

Chris Trotter

The encounter between Winston Peters and Jack Tame was emblematic of the entire 2023 election campaign. On one hand, the politician, striving to deliver his message to the voters. On the other, the state-funded journalist, striving to discredit both the politician and his message in the eyes of the voters.

What’s wrong with this picture? That’s right, the journalist isn’t standing for election. What makes the picture even more disturbing, however, is the journalist’s attempt to dictate what the election should stand for.

What has become of the democratic hierarchy? The one that places the people’s elected representatives at the top? The one that shows power flowing down from Parliament to animate the vast machinery of government and administration? The one that shows that same power returning to and uplifting its ultimate source – the people? How has New Zealand ended up with a hierarchy in which power circulates continuously between Parliament, the state apparatus and back again? A technocratic hierarchy which, every three years, in order to keep the machinery of government running, siphons power from the people – but does not give it back.

Parliamentary candidates reporting from the electoral front lines describe an electorate seething with anger and frustration. The message from the voting public, delivered in poll after poll, is clear. They intend to reclaim their power by electing a Parliament committed to dismantling the technocratic hierarchy and returning the power to its rightful owners – them. Or, more simply, by throwing Labour out on its ear.

Policy paralysis

Not that Labour has yet worked out what the hell is going on. The veteran political activist, John Minto, described their predicament succinctly in a recent posting on The Daily Blog: “Labour are being punished for failure – a party in policy paralysis – unable to get out of its own way and get anything meaningful done.”

At the heart of that paralysis is Labour’s inability to

acknowledge the fact of its own surrender to the technicians who run the machinery of government. In the process of transitioning from the democratic to the technocratic hierarchy, Labour’s relationship with its electoral base has become almost entirely extractive. Every three years, the party sucks up power from the poorest New Zealanders and then fails to return it.

The most important advantage National has over Labour (especially now that the private sector trade unions which formerly connected Labour to, and successfully mediated its relationship with, the party’s working-class base have become mere shadows of their former selves) is that the farming sector and the business community, twin foundations of National’s electoral success, operate outside the technocratic parameters of the state. Unlike Labour, which has essentially become the political handmaiden of the state apparatus and from whose ranks the party overwhelmingly draws its membership, National answers to economic and social forces operating outside the state.

The Greens and Act are simply more extreme iterations of Labour and National. The looming threat of anthropogenic global warming plays neatly into the Greens’ preference for a society in which the state not only takes the lead in managing climate change, but also just about every other aspect of human existence. In the Green utopia, the public and private sectors will gradually become indistinguishable. For the Greens, the present trend of corporations “going woke” is only the beginning of a fundamental social, economic and, ultimately, species transformation.

Act, by contrast, takes a militant stance against any further encroachment by the state and, if given the chance, will roll back most of the encroachments that have already taken place. In Act’s utopia, the ultimate goal of its sovereign, utilitymaximising citizens and non-taxpayers will be, in the words of the late Grover Norquist, “to shrink government to the size where we can drown it in a bathtub”. Act’s promise to slash

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Winston Peters

Continued from page 10

15,000 public sector jobs and a swathe of ministries is only the beginning of its wholesale slaughter of collectivist sacred cows.

NZ First’s mission in 2023 is to put a stop to the gradual dissolution of New Zealand as a distinct national and cultural entity. Initially a party dedicated to combatting what it saw as the twin evils of economic globalisation and mass immigration, NZ First has resolved itself into a political bulwark against any further “Maorification” of New Zealand society – most particularly the present government’s policy of co-governance.

One suspects NZ First’s utopia would very closely resemble the late Austin Mitchell’s 1972 paean to Keith Holyoake’s New Zealand, The Half-Gallon, Quarter-Acre, Pavlova Paradise

Te Pāti Māori’s goals are radically different from those of all the other parties. It favours neither the technocratic state apparatus, nor the market-driven private economy. Its goal is nothing less than the forging of a new Māori state, a federation of tribes and sub-tribes co-existing alongside an increasingly attenuated colonial state. This bifurcated, bi-cultural New Zealand would gradually grow into itself, steadily abandoning its dual institutions until its people, and the world, recognised simply, “Aotearoa”.

State-sponsored authoritarianism

Labour’s effective merger with the state apparatus and its embrace of the technocratic hierarchy explains why so many New Zealanders are so angry with it. The extraordinary contrast between the Labour Party that championed the “team of five million” during covid – and was duly rewarded with 50.01% of the party vote in 2020 – and the Labour Party which suddenly clothed itself in the armour of state-sponsored authoritarianism in the months immediately following its extraordinary victory, could hardly have been sharper.

The fate of the tatterdemalion posse of protesters occupying Parliament grounds in March 2022, while in the view of many was well-deserved, nevertheless produced the sort of imagery which, 18 months later and having passed through the hands of skilful videographers and editors, is packing movie theatres

in the run-up to election day. It spoke to a growing fear that the phone had been taken off the hook – not by the people, but by Jacinda Ardern’s Labour government and the state apparatus whose outré ideological predilections it was increasingly echoing.

And so we return to the angry encounter last Sunday between Winston Peters and Jack Tame. The old New Zealand nationalist, with his populist prescriptions and his point-blank refusal to countenance co-governance, was confronted by a young man who, ideologically and culturally, personifies the antithesis of the nation Peters prioritises.

Irrespective of whether they are paid by the state or the private sector, Tame’s generation of journalists has imbibed the worldview of their state-funded educators to such a degree that those subscribing to Peters’ views are journalistically prosecuted as enemies of the “progressive” people the state now seems determined to manufacture. Indeed, it is worth noting that these younger journalists’ bosses, by signing-up to the extraordinary conditions of the state-provided Public Interest Journalism Fund, proved themselves equally willing to swallow the ideological Kool-Aid.

“Objectively” – as the Soviet-era Stalinists were fond of saying – this makes journalists like Tame and programs like the private sector’s Newshub Nation and the state’s Q+A, mouthpieces for a common political, economic and cultural program – a program more-or-less indistinguishable from that of the Labour and Green parties.

As that program bleeds into more and more of the nation’s institutions, including its private businesses, the frustration and anger of the majority who do not accept its propositions are already reaching dangerous levels.

There was a time when Peters’ threat to the editorial independence of TVNZ would have struck most New Zealanders as appalling. Today, far too many Kiwis will have watched the old campaigner menace the young progressive and muttered: “Good on you, Winston!” ■

Chris Trotter has more than 30 years’ experience as a political commentator and is the author of the Bowalley Road blog ■

Jack Tame

Labour’s relationship with its electoral base has become almost entirely extractive

Photo: Hannah Peters / Getty Images

FINAL NOTICE

Starting and ending a franchise

Webinar 1.5 CPD hours

WEBINAR ALL LEVELS CIVIL LITIGATION

Tuesday 10 October 4pm – 5.30pm

Price from $140 + GST

Presenters Deirdre Watson, barrister and Paul Dalkie, barrister

Digesting Auckland Council’s diversion policy

WEBINAR ALL LEVELS CRIMINAL

Estate and family feuds

SEMINAR ALL LEVELS FAMILY/ESTATES

Online | In Person 1.5 CPD hours

Monday 16 October 1pm – 2.30pm

Price from $140 + GST

Presenters Margaret Casey KC, Mills Lane Chambers and Vivienne Crawshaw KC, Hobson Chambers  Chair Alissa Bell, partner, McVeagh Fleming

Presented by barristers experienced in franchise matters, this webinar will address basic due diligence, renewals and exiting a franchise.

FINAL NOTICE

Webinar 1 CPD hour

Wednesday 11 October

1pm – 2pm

Price from $95 + GST

Presenters John Kang, principal solicitor and prosecutions team leader, Auckland Council and Steven Boon, prosecutor and diversion officer, Auckland Council

On 1 December 2022, Auckland Council’s diversion policy was implemented, bringing crucial changes to the way criminal cases can be handled. It could enable your clients to avoid conviction. This webinar offers a unique opportunity to gain firsthand knowledge from Auckland Council’s prosecution team.

Chair Jo Murdoch, Assistant Public Defender, Public Defence Service | Manukau

With the delays in getting to a hearing for family and estate disputes and the high financial and personal cost involved, mediation is emerging as an attractive option. But what does a “dream” mediation look like?

Mastering the art of negotiation

WORKSHOP INTERMEDIATE LITIGATION

Workshop Wellington

3 CPD hours

Thursday 19 October 9am – 12.15pm

Price from $375 + GST Facilitator Dr Grant Morris, Associate Professor, Faculty of Law – Victoria University of Wellington

Assessing capacity workshop

WORKSHOP ALL LEVELS CAPACITY

Workshop Auckland

3.25 CPD hours

Thursday 26 October 9am – 12.30pm

Price from $375 + GST

Presenters Alison Douglass, barrister, Barristers Chambers Dunedin and Dr Greg Young, consultant psychiatrist, Te Whatu Ora Hawke’s Bay

Defence against tenant defaults

WEBINAR ALL LEVELS PROPERTY

Grant Morris will equip you with a powerful toolkit designed to uncover new strategies and elevate your negotiating skills.

Assessing capacity has many applications – for health care, finances, making a will, personal relationships and even liberty and placement in care. In this workshop, two developers of the popular Toolkit for Assessing Capacity and the book, Assessment of Mental Capacity: A New Zealand Guide for Doctors and Lawyers, will offer insights into the legal tests, the method of assessing capacity, when to refer for a clinical assessment, how to use forms and templates, the lawyer’s role in supportive decisionmaking and cultural considerations. Attendees will get to tackle some realistic capacity scenarios.

Webinar 1.5 CPD hours

Tuesday 31 October

12.30pm – 2pm

Price from $140 + GST

Presenters Andrea Shepherd, special counsel, Chapman Tripp and Janko Marcetic, senior associate, Chapman Tripp

Landlords must know how to best protect their position if their tenants stop meeting their obligations. As trusted advisers to landlords, the presenters of this webinar will offer tools to provide landlords with robust and practical guidance about their options.

Committee thank-you function

We extend our gratitude to all committee members who joined us at The Churchill Auckland for the committee thank-you function.

Moira Macnab and Tony Herring

Mark Robinson, Tim Jones and Bob Roche

Amy Kingston-Turner, Astrid Sandberg, Hannah King, Simon Schofield, Stuart Cummings, Ben Cleland, Catherine Stewart, John Hickey, Fiona Hall and Joanna Pidgeon

John Millar, Tina Hwang, Hannah Kim and Shannon Sue

Emma Priest and Hannah Hellyer

Fiona Hall, Rachel Oldham-Ormiston and Amy KingstonTurner

Annelise Chan, Daniel Conway and Julie-Anne Kincade KC

Featured events

Connecting New Zealand lawyers

Wellington After 5 with John Allen

Wednesday 25 October

5.30pm – 7.30pm

Flamingo Joe’s, 1/10 Waterloo Quay, Pipitea, Wellington

Hamilton After 5

Wednesday 8 November 5.30pm – 7.30pm

Gothenburg Restaurant, 17 Grantham Street, Hamilton Central

Sponsored by MAS

Christchurch After 5

Thursday 9 November

5.30pm – 7.30pm

Botanic, 126 Oxford Terrace, Christchurch Central City

Sponsored by MAS

Inside the in-house experience

Wednesday 15 November

5.30pm – 7.30pm

Duncan Cotterill, Level 1, Australis Nathan Building, 37 Galway Street, Auckland CBD

Sponsored by MAS

The Trustee’s Handbook, 6th edition

Author Vicki Ammundsen

The Trustee’s Handbook is a must-have for trustees, trust advisers and anyone involved with administering trusts.

This 6th edition includes 120 precedent minutes and resolutions. The precedents reflect day-today decisions trustees make and matters that trustees need to take into consideration.

As well as references to contemporary case law, the book includes comprehensive and practical checklists to guide trustees as they go about the everyday business of being a trustee.

Price for The Law Association members $86.40 plus GST*

Price for non-members $96 plus GST*

(* + Postage and packaging)

To purchase this book please visit https://thelawassociation.nz/ bookstore/ or contact The Law Association bookstore by phone: 09 306 5740, or email: the.store@thelawassociation.nz

Workplace Investigator Margaret Robins

• Association of Workplace Investigators Certificate Holder

• Member Association of Workplace Investigators (USA)

• Member Australasian Association of Workplace Investigators

Visit my website to learn more about my experience and my approach: www.workplaceinvestigator.co.nz

Or contact me on (027) 270 1057 or mrobins@workplaceinvestigator.co.nz

Offices Available

Following some barristers retiring, we have three offices of varying sizes available for rent.

The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom with video conferencing facilities and a less formal meeting room), and communal entrance and client waiting area.

Telephones, internet connection, printing and secretarial services also available and some furniture available.

Cost depends on office size and range from $150 – $300 per week plus gst. No long-term commitment required.

Photographs of the Chambers can be viewed at www.hco.co.nz/gallery.

Contact: Shane Hussey for further details, Shane@hco.co.nz 09 300 5481

WILL INQUIRIES

Please refer to deeds clerk. Please check your records and advise The Law Association Inc. if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document

LawNews: The no-hassle way to source missing wills for $80.50 (GST Included)

reception@thelawassociation.nz The Law Association Inc. PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Fax: (09) 309 3726

Ph: (09) 303 5270

JACOBSEN

Charles Ivan

• Late of 60 Robinson Road, Whitianga

• Married

• Retired roof tiler

• Aged 99 / Died 20’01’23

RAYMOND

Lesley Estelle

• Late of 10 Stedman Place, Avondale, Auckland

• Aged 69 / Died 11’09’23

SHAW

Peter Matthew

• Late of 251 St Johns Road, St Johns, Auckland

• Psychologist

• Aged 65 / Died 08’04’23

TAULAGI

Fa’amalu

• Late of 48 Felton Mathew Avenue, St Johns, Auckland

• Quality Controller

• Aged 65 / Died 14’04’23

VUKULA

Salesia Teresia

• Late of 36 Morgan Avenue, Marewa, Napier, previous resident of Auckland including 3 Allison St, Wesley

• Caregiver

• Aged 60 / Died 01’09’23