Blog No 124.
Part I to this blog can be found at https://khakispecs.com/?p=3130
The New Zealand constitution differs from the Westminster model in that it no longer has a counter-balancing, second parliamentary chamber. Recent societal changes include the decline of investigative journalism and the rapid decline in grass-roots party membership. Associated with these, is a decline in the public’s sensitivity to constitutional matters and the dumbing down of political debate. Consequently, New Zealand is faced with a seemingly continuous and relentless accumulation of political power into the hands of a cabal of cabinet ministers.
A recently published book, ‘Democracy in New Zealand,’ by Professor Raymond Miller, records this steady withering of the grass-roots that support New Zealand’s democracy and the seepage of power away from parliament and into the hands of the Cabinet Office. Governments seem safe to assume that provided the economy continues to grow, the larger portion of the electorate will be sufficiently fed and entertained to allow the cabinet to act with impunity in doing much as it wishes.
The role of Investigative Journalism.
The recent exposure of government lies and attempted cover up of war crimes in Afghanistan, as revealed in Stephenson and Hager’s ‘Hit and Run,’ is illuminating. The unfortunate Lieutenant General Tim Keating, Chief of Defence Staff, who originally enlisted in the knowledge that he might be called upon to die for his country, has found himself embarrassingly expected to lie for it. (Having both served as a military intelligence officer in a mountainous Moslem country and also having served alongside British special forces, I feel myself justified in expressing a judgement as to which party is telling the truth.)
One could not help but share the anguish of the clearly discomforted Keating as he told his porkies in front of the TV News cameras. As the official version offered by the Prime Minister and his collaborators changed for the worse in newsreel after newsreel, one could not help but wonder what other inconvenient truths have been deliberately kept from the public. Even though John Key personally gave the go-ahead to the disastrous mission, both he and Bill English, as his successor, will always be able to claim that their minions had not given them a truthful account of the action itself and of the civilian deaths and injuries inflicted.
The same is not true of the government’s chosen military spokesman. Keating, as fall guy and a long term member of the inner circle of senior SAS officers, most certainly will have known the truth ever since the Regiment’s internal inquiry, which, as routine operating procedure, would have followed immediately on the failed operation in August 2010. The steadfast refusal of the Prime Minister to allow an official and independent inquiry into the incident and the failure of the SAS band of brothers to insist on one to clear the honour attached to their regiment’s name, serve to underline the truth behind the journalists’ allegations.
Accessory After The Fact | Wex Legal Dictionary / Encyclopedia “Someone who assists another 1) who has committed a felony, 2) after the person has committed the felony, 3) with knowledge that the person committed the felony, and 4) with the intent to help the person avoid arrest or punishment. An accessory after the fact may be held liable for, inter alia, obstruction of justice.”
The stir caused by this singular act of investigative journalism draws attention to the lack of such in- depth reporting and the crying need for much more of it. Next to ‘Hit and Run,’ the most recent example of the benefits of such thorough work has been the Panama Papers – in which Hager himself, was one of the international journalists commissioned to do the work.
How it is done in the USA.
The release of the Panama Papers was the result of work by the ICIJ – the International Consortium of Investigative Journalists. https://www.icij.org/about The ICIJ is a US institution and, as such, cannot be expected to concern itself with matters of particularly New Zealand concern. New Zealand has to fund and look after its own interests in this field, which is crucial to the preservation of its democracy and the efficient working of its constitution.
On the basis of whoever pays the piper, calls the tune, it is instructive to look at the funding of the ICIJ. Until February this year, when it was spun off from its parent, the ICIJ was funded directly from the USA’s Center for Public Integrity https://en.wikipedia.org/wiki/Center_for_Public_Integrity One then has to ask, from where did the CPI obtain its funding? (One can assume that the ICIJ will continue to derive its funding from the same or similar sources.) https://www.publicintegrity.org/about/our-work/supporters
Among the many donor foundations and high-wealth individuals listed, there will be several with axes to grind and an interest in which investigations are to be pursued (and more significantly, not pursued.) The key to the integrity of the whole process is the impermeability of the firewall between the funders and the decision making process by which subjects are selected for investigation.
New Zealand needs its own institute of investigative journalism.
The ICIJ claims to be international is its scope and certainly, in its Panama Papers investigation revealed much of direct interest to the New Zealand electorate and embarrassment to their government. However, New Zealand cannot expect such a foreign-centred institution to meet all its needs in regard to investigative journalism.
The NZ media’s near unanimous blind acceptance (with hardly a single ‘alleged’ preceding the dubious allegations) of the Trump administration’s unproven and improbable claims that the Syrian government was responsible for the Khan Sheikhoun sarin attack, underlines the decline in the country’s journalistic competence. In this case, the media’s incompetence and lack of investigative savoir faire has to be held responsible for New Zealand’s Prime Minister coming out in support of Trump’s subsequent armed assault on Syria. This act of unjustified aggression, so eagerly supported by New Zealand, was a blatant breach of the international law on the enhancement and preservation of which New Zealand’s long-term security depends. If New Zealand’s media is full of nonsense, so too are likely to be the heads of its decision makers.
In New Zealand, the time might be appropriate for a serious look at a bit of constitutional amendment – though achieving such amendments, when they are designed to curtail the power of those holding it, is not likely to be easy.
However, the foundations of such a constitutional readjustment already exist. My Blog No 120. https://khakispecs.com/?p=3046 dealt with the office of the New Zealand Ombudsman (and some of its shortcomings.) More general information about such offices internationally, is available at https://www.ombudsmanassociation.org/about-the-role-of-an-ombudsman.php
This is what the NZ Ombudsman currently claims to be the function of his office. https://www.ombudsman.parliament.nz/what-we-do In summary:
Protecting your rights
Monitoring places of detention
Complaints about state sector agencies
Complaints about access to official information
Wider administrative improvement investigations
Improve fairness for all
Advice and guidance
Outreach activities and speaking engagements
Training and education
All of the above is currently achieved, or attempted, on a budget of around $15 million. In fact, as revealed in my Blog No. 120, the funding is marginally insufficient to keep abreast of the case load. This is evidenced by Harmon Wilfred’s urgent plea not yet having been dealt with after more than a three year wait. Wilfred’s special circumstance (in which considerations of ‘national security’ might have been raised) could have meant that the delay was due to government interference, rather than to budget shortfalls. However, there are several others of the Ombudsman’s case load still outstanding after comparable delays, in which the government would have had little reason to interfere.
The three major failings of the current Ombudsman structure are encapsulated above. Firstly, the Ombudsman’s budget is insufficient to enable his office to meet its current workloads. Secondly, there is a major conflict of interest between the Ombudsman’s dependency on the government’s annual budget allocation, which ensures that his office ‘keeps on side’ with the government, while at the same time, the Ombudsman is meant to be acting as the official watchdog over its misdemeanours. Thirdly, because communications between the Ombudsman and the Government have been specifically excluded from the Official Information Act 1982, the public can never feel fully confident in the Ombudsman’s independence and integrity.
Recently, the NZ government has squandered tens of millions of dollars on such matters as not changing the nation’s flag, donating to the collapsed Clinton Foundation and donating troops to the clearing up of the mess that has followed American wars of aggression against Iraq and Afghanistan. Budget sufficiency for the Ombudsman could be achieved were say, ten million dollars of that money far better spent, on an annual basis, by being diverted to put the Ombudsman’s Office on a more secure footing.
Alternatively, it would not be beyond the wit of constitutional lawyers to devise a system in which the Ombudsman’s office was guaranteed an adequate budget out of tax-payer generated funds that were totally insulated from the policies of the parties controlling the cabinet of the day. To help see things in proportion, though it might not be an appropriate solution to a matter of such national importance, an alternative route to total financial independence of the Ombudsman’s office could be achieved with just a fraction of the $200 million of Lotto ‘s annual charitable disbursements.
Finally, it would be relatively easy to increase the public’s confidence in, and respect for, the Ombudsman’s office by opening up its communications with the government to public scrutiny by removing its current immunity under the Official Information Act of 1982.
None of the above measures represent a novel constitutional demarche, but all would have the potential to greatly increase the constitutional value of the Ombudsman’s office. That office is the nearest thing that New Zealand has to the safety-valve function, which in other countries is usually performed by a second chamber. It is not hard to justify that such an important office be adequately funded and its operations opened to public viewing.
The constitution must adjust to changing circumstances. The most dramatic change, over the past two decades, has been the retreat of the fourth estate as discussed in Part I of this blog. A democracy, which relies for its proper functioning on the participation of well-informed electors, becomes increasingly dysfunctional as the electorate becomes less well-informed and, being so, either loses interest in political proceedings, or starts viewing them simply as a spectator sport and not a matter of personal concern.
Already, on the list of functions the under-funded Ombudsman is attempting to fulfil is ‘Complaints about state-sector agencies.’ This responsibility should be expanded to include ‘Complaints about the media.’ The Ombudsman’s Office’s additional $10 or so million of funding, should allow it to take over responsibility for the operation of the three, nominally independent media watchdog organisations (the Broadcasting Standards Authority, the Advertising Standards Authority and the Press Council.) In future, their funding should cease to be dependent on either the government, or the media entities being watched over. Instead, it should come from the Ombudsman’s office, which, with its independent budget, should be fire-walled from both undue media and cabinet office influence.
Another of the Ombudsman’s listed functions is the conduct of ‘Self-initiated investigations.’ Given current budget constraints, this responsibility is taken fairly lightly. It would be no great leap to see this function greatly enhanced. Given that this function is no longer able to be effectively funded out of the Main Stream Media’s declining revenues, the Ombudsman’s Office should take on the lead responsibility for investigative journalism in New Zealand and then for distributing the results of their efforts, free of charge, to the MSM. Investigative journalism is an essential constitutional function and it is right that it should be funded by the tax-payer, rather than its decline determined by purely commercial profit motives.
It would be no great deal for the Ombudsman’s Office to run a New Zealand–centric equivalent of the USA’s ICIJ. Such an institution that would combine both probe and probity, while insulated from commercial and political pressures, would serve the nation well. In America, Joe Goldman, the President of the Democracy Fund https://www.democracyfund.org/about-us recently announced a three million dollar gift over three years to the Center for Public integrity with the words “A healthy democracy cannot exist without a vibrant public square in which hard-hitting, independent media inform the public and hold power accountable. Investigative journalists play a crucial role in our political system.”
In the absence of such well-heeled funds in New Zealand, it is no big ask that the tax-payer should take up the relatively modest burden – with the added benefit that such donations should be only intended for the public good. (Whereas, who has certain knowledge of whose ultimate good, the probably, utterly worthy, Pierre and Pam Omidyar, who founded both eBay and the Democracy Fund, have in the back of their minds?)
Restoring and establishing public trust in the content of the media has to be a major priority for those interested in the well-being of New Zealand’s democracy.
Structure of the Ombudsman’s office.
As envisaged here, such responsibilities and matters calling for fine and unbiased judgement, should not be entrusted to a single person. Though the organisation can be administered by an experienced CEO, no single individual can be free of bias. Operational and judicial decisions, in regard to complaints received and investigations to be instigated, are of a nature that calls for a panel of a diversity of wise heads. The mechanism by which such a well-balanced and diversified group of officers should be selected is again, not beyond the wit of constitutional lawyers.