The Employment Relations Authority (ERA) has knocked-back an attempt by one of Aotearoa New Zealand’s largest universities to axe more than 100 staff.

The Auckland University of Technology planned to make 170 academic staff redundant, but the ERA has now ruled that its process was flawed and breached the collective agreement.

Now the school may need to walk back its dismissals, and start all over again.

ERA said AUT had called for voluntary redundancies too early, before the institution had even decided which positions to cull.

The Tertiary Education Union (TEU) is celebrating the ruling as a win. However, AUT says the union and the university have interpreted the decision differently and it would be seeking clarification.

Lawyer Peter Cranney, in an email to members of the TEU yesterday, said the ERA was considering a compliance order that would require AUT to withdraw all the notices it had already issued.

“Although a compliance order is discretionary, the [ERA] authority has indicated it will not decline the granting of the order it needed,” he wrote.

“The parties will now have three days to consider the matter; and if a compliance order is necessary, the AUT will need to comply within five days.”

Cranney said any compliance order would be issued by Friday.

Trust difficult to rebuild, says union organiser
TEU organiser Jill Jones said the decision meant people at risk of losing their jobs no longer were.

“It’s great because what it does show is our collective agreement has been respected by the Employment Relations Authority,” Jones told RNZ Morning Report.

But although staff members were “absolutely” thrilled with the decision of the ERA, there was a breakdown of trust with their employer and it would be difficult to rebuild it.

“Its been a long, hard road for these staff members. They’ve paid a very large price.

“These are members that really, really care about their students and the high price that they’ve paid for this bungled redundancy is that lots of things have happened.

“It’s felt as if, to them, it’s been a very callous and uncaring process and it’s going to be difficult to come back from that.”

With issues of trust and many staff feeling targeted and bullied, AUT had a “very big job” ahead to rebuild that trust, she said.

Frances* was one of the unlucky 170 to receive a redundancy letter.

“This level of disruption and instability in our lives is just crippling,” she said.

The ERA decision had not brought much comfort.

“It’s kind of a double-edged sword,” she said. “I’m really happy that we’ve seen some justice be recognised through the court system, but I don’t know what’s going to happen next.”

Frances expected AUT to withdraw her notice of dismissal, but did not expect a happy ending.

“I’m not deluded, they’re still going to come for me I’m sure, but they’ll have to start from scratch and do it properly,” she said.

“That’s all we ask, that this is done properly.”

Poor handling of the situation had destroyed staff morale, she said.

“For three months, I’ve been feeling disengaged, demotivated, angry, upset, waiting, waiting, waiting for this letter,” she said.

“This whole process has been about targeting, humiliating, and bullying people.”

AUT seeks clarification of ‘complex findings’
An AUT spokesperson said the findings were legally complex and it regretted that a “procedural issue” highlighted had made staff more uncertain.

“Although the ERA has published its findings, it has not issued orders.

“AUT’s view of these findings differs from that of the TEU. AUT is endeavouring to clarify and resolve the issue promptly.

“Given the differing views between the parties it will therefore be necessary to return to the ERA tomorrow for clarification on some aspects.”

AUT said ERA’s findings found no bad faith in how it had acted — and AUT had formed a differing view of the collective agreement.

“The ERA has noted that AUT should have identified the specific positions potentially declared surplus and, at this point, written to offer voluntary redundancy to the people in these specified positions.

“Following clarification of the procedural issue we will write to those impacted by the decision to confirm the way forward.”

* Name changed to protect identity. This article is republished under a community partnership agreement with RNZ. 

Article by AsiaPacificReport.nz

The government’s latest scheme is a form of government unemployment insurance. Interestingly, both the anti-poverty groups and the neoliberal New Zealand Initiative think tank see this scheme as problematic, very much as a ‘solution looking for a problem’. In other words, its ideology. In this case it’s not capitalist ideology; it’s labourist ideology. Indeed the scheme has been cooked up with the collaboration of the CTU (Council of Trade Unions) and is fully supported by the E tū union.

Some history.

New Zealand and Australia both played key roles in the formation of ‘the twentieth century welfare state’. But different roles. In Australia, with a longer and more entrenched unionised labour movement, and with Labour Governments a generation before New Zealand, the dominant cry was for a workers’ welfare state. In New Zealand, on the other hand, where the debate was more informed by the realities of the Great Depression (1930-35), the call from the electorate in 1935 – and answered by Michael Joseph Savage – was for a citizens’ welfare state (universal ‘social security’). Hence the key phrase associated with Savage: ‘from the cradle to the grave‘. The citizens’ welfare state explicitly included women, all older people, the self-employed (many of whom were unemployed in all but name, in the Depression), and all others who for whatever reason were neither capitalists nor principally attached to the labour market.

Essentially, in the first half of last century, Australia got its workers’ welfare state, and New Zealand got its (universal) citizens’ welfare state. But the Labour Party in Aotearoa New Zealand always struggled with the concept of a universal welfare state, Savage notwithstanding.

In the years in which Robert Muldoon was Minister of Finance, 1967 to 1972, two major – but divergent – welfare reports were published: the Woodhouse Commission on workers’ compensation and the McCarthy Report on social security. The McCarthy Report was in tune with the times, in fully recognising the full citizenship of women; ie independent of their then secondary status in the workforce. In 1972, equal pay laws were passed. And, as a result of the McCarthy Report, the Domestic Purposes Benefit gave dignity to single parents.

The Labour Government (Dec 1972 to Nov 1975) was most interested in the earlier Woodhouse Report; the result was ACC (Accident Compensation) that explicitly provided benefits to workers, with higher-earning workers getting the lions’ share of those benefits. ACC conformed with a worldview full of masculinist assumptions about labour market roles. The major champion of such workers’ welfare was the then junior minister, Roger Douglas. Following in the same vein, Douglas introduced a contributions-based New Zealand Superannuation scheme (became effective, 1975) which fully followed this already outdated masculinist labourist world view, as a government supported workers’ retirement scheme.

Fortunately for the upholders of the citizens’ welfare state – of whom Robert Muldoon was prominent – this legacy project of the Third Labour Government was immediately abandoned in 1976, and replaced by the citizen-welfare-based National Superannuation (now called New Zealand Superannuation). Contributions to the Douglas workers’ scheme were refunded.

The Helen Clark led Labour government of the 2000s continued the labourist line that workers (and capitalists) were superior kinds of citizens to everyone else. This was fulfilled – for workers – in extended the Working for Families targeted income support, which built upon an earlier 1980s’ Labour Government policy (means-tested ‘Family Care’) to replace the universal (ie citizens’) ‘family benefit’. The universally-minded Child Poverty Action Group has always railed against Working for Families as a form of family income support that largely excludes beneficiaries.

The proposed Unemployment Insurance is simply this Labour Government’s tilt at this labourist ideological windmill; the workers’ welfare state.

The Workforce as it Actually Is

For a brief period from the 1950s to the 1980s, the predominant model of work (in New Zealand and in the world) was that of fulltime employment. The feminist solution to this initially masculine reality had been for women to join what they couldn’t beat, and this century a typical salaried worker may indeed be a white collar working woman, a demographic that the CTU and the Labour Party now strongly represents. The workers’ state only became inclusive to women once they took the Hobson’s choice to embrace it.

In Guy Standing’s seminal work on the twentyfirst century labour force, the key distinction is between ‘the salariat’ and ‘the precariat’. The present Labour government makes policy for the salariat, just as the second (late 1950s) and third (early 1970s) Labour governments made policy for a male unionised labour force.

In history – and not according to Marx – labour has always been dominated by either a precariat (not a proletariat), or (as in pre-modern times) a forced-labour workforce (slaves). We still don’t understand the Great Depression of the 1930s, because we still want to know what the ‘unemployment rate’ was; this concept cannot be applied, meaningfully, to the precariat. (In an important sense, and following today’s definition, the unemployment rate in the depression was zero. Many people – especially ‘married women’ – were deemed unavailable for work; other demographics were precariously self-employed in huge numbers.) The middle-middle-class salariat is largely a product of the twentieth century post-war world.

Since the New Zealand Employment Contracts’ Act of 1991 – and similar directional shifts in other countries – the salariat has been progressively dismantled in favour of fixed-term labour contracts, variable-hour contracts, and the ‘gig economy’. Ask any young person.

The reality of the labour force is that it is a spectrum from permanent fulltime salaried (or waged) positions through to ‘free-lance’ self-employment. Various parttime options come within the spectrum – options sometimes favoured by workers, but more generally suited to the flexibility requirements of employers. Generally, those people we use to call workers we now call contractors.

It’s further muddied by the new reality that much of the new salariat – eg managers in larger corporatised organisations, and the smaller ‘nimble’ professional organisations that provide services to these large organisations – are in fact the beneficiaries (in the original sense of the word ‘beneficiary’) of the new capitalism. Labour has become capital.

(Just watch the brilliant Australian satire ‘Utopia’ on Netflix to get a sense of the productivity of the new entitled workforce.)

Nowadays, old-fashioned workers have become the cost-accounted precariat. And the remaining salariat are their bosses and managers.

Unemployment insurance is a new benefit that will mainly be paid to the salariat; that is, the new beneficiary salariat.

It will be largely funded by the precariat. In this respect the new social insurance levy will be like the unemployment tax that all working women and girls paid during the Great Depression, even though they did not quality for the benefits. Another analogy is the taxes paid by New Zealand working denizens in Australia; taxes that fund benefits only payable to Australian citizens. For the new scheme, many precarious levy-paying employees will not qualify for payouts; their work will not be structured in a way that allows them to qualify for benefits. And those low-paid workers who do quality will receive only a small share of the total paid-out benefits.

New Zealanders have to focus – and focus hard – on how to redirect welfare policy to a citizens’ path (with citizenship broadly defined), and away from its present workers’ path (with workership narrowly defined). The new salariat can and should find their own market-based income insurance.

————-

Keith Rankin (keith at rankin dot nz), trained as an economic historian, is a retired lecturer in Economics and Statistics. He lives in Auckland, New Zealand.

Unemployment Insurance Will Mean More Tax – NZ Initiative Report, 11 November 2021

The Labour Government’s Proposed Social Insurance Scheme Will Entrench a 2-tier Welfare System, Auckland Action Against Poverty, 2 Feb 2022

Next Steps for Social Unemployment Insurance, E tū Union, 2 Feb 2022

Social Insurance Proposal Would Likely Bake-in Existing Inequities And Drive Inequality, Says Anti-poverty Organisation, Child Poverty Action Group, 2 Feb 2022

The Wage Earners’ Welfare State Revisited, by Francis Castles (1994)

A Decade of Confusion: the differing directions of social security and accident compensation 1969 – 1979, by Margaret McClure (2003) [Victoria University of Wellington Law Review]

On Tuesday, March 30, we lodged a series of questions to the Minister of Immigration Kris Faafoi, seeking answers to allegations that 10 Chinese workers, who were detained in custody pending deportation orders, were in fact victims of a human trafficking scam.

Throughout last week, the ten workers’ lawyer, Matt Robson, and union advocate Mike Treen of Unite Union, had been racing against the clock, seeking to halt deportation orders that Immigration New Zealand officials were advancing – seemingly with haste.

Two days later (April 1), two of the ten workers in fact received their deportation orders and were en-route to Auckland International Airport, escorted by Police.

Then, as the Police vehicle neared Auckland Airport on George Bolt Memorial Drive, one of the two, Ning Yu ‘escaped’!

How? The Chinese worker simply unbuckled his seatbelt, opened the Police car’s unlocked rear door, and ran away. Apparently, back in China, Ning Yu is a marathon runner.

While a number of Police units (including from the Police Dog Section, and Police helicopter) searched unsuccessfully for him, Ning Yu took refuge in a tree near a Golf Course on Nixon Road, Mangere. Then, once the Police helicopter flew off, he wandered about Mangere throughout the early hours of the morning.

After dawn rose on April 2, Ning Yu noticed a Chinese man jogging. As he passed, Ning Yu spoke to him in Mandarin. They had a conversation. Ning Yu told him his predicament. The jogger convinced him to hand himself in to Police. He agreed, and made his way to Auckland Central Police.

On arrival, Ning Yu told Police he absconded because he wanted to collect some money owned to him; “So he could take it home with him”. He was arrested, and later appeared before the Courts charged with escaping Police custody.

The charge sheet states: “At approximately 1952hrs on Friday the 1st of April 2021, Police were dispatched by the Northern Communication centre to assist NZ Immigration in escorting two deportees to the Auckland Airport as their flight was scheduled to depart from Auckland to China later in the evening.

“Police arrived at the Mount Eden Correction facility and received into their custody Ning YU, the Defendant in this matter.

“Due to the demeanour and background of the Defendant, he was not handcuffed. The Defendant was seated at the back of the Police Vehicle.

“On the way to the Airport, as the vehicle approached Cyril Kay Road on George Bolt Memorial Drive, the Defendant opened the petrol [sic] vehicle door and escaped,” The charge sheet stated.

On Saturday April 3, Ning Yu appeared before the Courts in Auckland. While there, the Police charge of absconding was withdrawn. He was returned to Police custody pending renewed deportation orders.

***

At this juncture, it is worth checking this worker’s allegations.

Throughout the ordeal (since Immigration investigators identified Ning Yu and the other nine as illegal workers) Ning Yu’s position was simple. He insisted he wanted to stay in New Zealand to work and earn some money. The wages he earned, he intended to send home to China for his wife and child. Ning Yu believed he was owed wages by an employer in Auckland, and that he had not earned enough, yet, to cover the USD$20,000 he states he paid an individual in China – who had initially arranged to expedite his Visa application to enter New Zealand. Back then, after paying the agent, Ning Yu said it took two days for his Visa to be allocated to him.

If true, this suggests corruption. Remember New Zealand is regarded as the least corrupt country in the world, equal to Denmark. If agents are demanding money from hopeful foreign workers, securing entry visas within days, and on arrival at Auckland Airport, these people are scooted off to work for employers as black labour – then that situation questions the corruption-free status New Zealand enjoys. And that, is clearly a public and national interest issue.

The seriousness of these allegations also draw forward concerns that New Zealand Government’s practice of out-sourcing Immigration New Zealand visa applications to agencies inside China, may have been corrupted.

Such concerns, in a democracy such as New Zealand, demand an expectation of thorough and transparent investigation. This case however, draws forward examples of bureaucratic control, silence, and an obvious ministerial convention being observed that prevents open and accountable oversight.

Far from answering allegations of serious crimes, questions remain unanswered.

Questions such as these:

• Who is the individual (the agent) that received approximately USD$20k from Ning Yu, the agent who allegedly managed, in two days, to acquire a Visa for this person to enter New Zealand?
• Who was the initial ‘employer’ that received Ning Yu and the other nine workers, and put them to work illegally in Auckland?

• Why were there no employment records held for Ning Yu and the nine other Chinese workers?
• Why were there no IRD numbers? No tax records?
• How many dodgy employers were Ning Yu (and the nine other workers) handed over to, to be exploited, paid under the table, under the minimum wage, without holiday pay, without health and safety protection, without the rights that a legitimate working visa demands?
• Why were New Zealand Government employment and labour inspectors prevented by Immigration New Zealand, and the Ministry of Business Innovation and Enterprise (MBIE), from interviewing the ten Chinese workers about their situation?
• Does this bureaucratic refusal-to-interview prevent an investigation from taking place into allegations of human trafficking and illegal employment by New Zealand-based companies and contractors?
• Do not the ten workers come under the protection of New Zealand Government’s Migrant Exploitation Policy?
• What is the definition of human trafficking that applies to victims of this type of crime in New Zealand?

On that last question, the United Nations defines human trafficking as the recruitment, transportation, transfer, harbouring or receipt of a person by deceptive, coercive or other improper means for the purpose of exploiting that person.

The United Nations definition appears relevant to the allegations in this case.

Despite the concerns as noted above, the Ministry of Business Innovation and Enterprise (MBIE)’s ‘Delegated Decision Maker’ replied to the Chinese workers’ lawyer, Matt Robson, on Thursday April 1 stating:

“Under the immigration delegations, the delegated decision makers have the authority to make certain ministerial intervention decisions on behalf of the Associate Minister of Immigration. I have carefully considered your representations. I advise I am not prepared to intervene in this case. As section 11 of the Immigration Act 2009 applies, I am not obliged to give reasons for my decision. Your clients will be deported from New Zealand at the discretion of Immigration New Zealand.”

***

Back to Thursday April 1, Minister of Immigration Kris Faafoi’s office continued to resist answering specific questions, electing rather to issue this statement:

‘Investigations are continuing and the Minister does not consider it appropriate to comment further than the statement he has provided to other media requests, which is:

“Ministers do not get involved in enforcement. That is an operational matter.

“We have been assured that the appropriate processes have been followed and Immigration NZ has not found any evidence of trafficking.

“Agencies are satisfied further investigations around employment and immigration breaches can be carried out without the need for the men to remain in New Zealand.

“As investigations are continuing, and this is an operational matter, it would not be appropriate to comment further.”’

The questions that were put to Minister Faafoi, prior to Ning Yu escaping from Police custody included:

Should New Zealand Police be heading an investigation into alleged human trafficking?

12: If so, has NZ Police been approached by you as Minister of Immigration or by your office or by Immigration New Zealand? And, is an investigation underway by New Zealand Police on this element of this issue?

The lawyer acting for the ten workers found there were:

a: No written employment agreements;

b: No wage and time records;

c: No paid holidays;

d: No legal wages;

e: No training in health and safety measures on construction sites.

13: Do you accept that the above points (a – e) are an accurate assessment of the ten workers situation? If not, why not? If so, does this suggest that they fall within the considerations of the Migrant Exploitation Policy? And if so, as suspected exploited foreign workers, do they have the right to seek recourse via New Zealand’s judicial process, and does this recourse halt deportation proceedings from occurring?

Regarding answers to these questions, the silence from the Beehive prevailed.

For the record, through their lawyer, Matt Robson (a former minister in the Labour-Alliance coalition government) and union representative Mike Treen (of Unite Union), the ten workers allege they:

• Were recruited by agents in China to go to New Zealand to work
• Paid the agents between USD$15,000 – $30,000
• Received their Visas within two to six days of applying
• Were met by agents (on arrival) at Auckland Airport
• Were taken to prearranged accommodation in Auckland
• Worked for various ‘employers’ at building sites around Auckland
• Never had employment contracts, wage or time records, or paid tax
• Were paid in cash
• Were put to work by the employers without work visas.

In a letter to Minister Faafoi dated April 1, 2021, Robson and Treen asserted that the above allegations demanded a robust investigation – that this situation meets the New Zealand Government’s Migrant Exploitation Policy, and, as such, the ten workers are witnesses to an alleged breach of New Zealand’s immigration and employment laws, and also human trafficking crimes.

They questioned why the Minister Kris Faafoi (who is also Minister of Justice) was determined to be satisfied with Immigration NZ officials who insisted to deport the workers with haste.

Minister Faafoi’s response, as noted above is, that it is an operational matter and that he is satisfied that Immigration has investigated the situation, including the allegations, and found no substance to them. The Minister was also satisfied that New Zealand’s employment and labour agencies can continue to investigate allegations of employment law breaches even after the ten workers have been deported back to China.

Also, for the record, the ten Chinese workers were scheduled for deportation on five flights to China leaving New Zealand between April 1st to 15th, 2021.

CONCLUSION:

The New Zealand public seldom has an appetite for bureaucracy. It is especially intolerant of government officials operating behind a shroud when issues of public and national interest are in question.

In reviewing this case it is clear, the allegations underlying this case demand an open and transparent investigation be held – even if that investigation should unearth cases of corruption and human trafficking – victims of exploitation between the People’s Republic of China and New Zealand. To avoid public scrutiny to the satisfaction of a reasonable standard, well, that is a national disgrace.

***

Ref. Questions from Selwyn Manning to Minister of Immigration Kris Faafoi, dated Tuesday, March 30, 2021.

For an article/editorial for EveningReport.nz (an associate member of the New Zealand Media Council)  and syndicated outlets, I request the Minister of Immigration, Kris Faafoi, answer the following questions regarding the ten Chinese nationals detained (nine in Mt Eden Corrections Facility and one in Police custody) pending deportation proceedings. Thanks in advance for your considerations:

Regarding Employment Status (I ask this as it appears this has relevance in determining whether the ten fall under Migrant Exploitation Policy as exploited individuals):

1: Did the 10 workers (as individuals) have employment contracts while working in New Zealand?

2: Did their employer calculate tax PAYE deductions from their gross pay and pay Inland Revenue Department for money earned in New Zealand?

3: Did their employers calculate the cost of labour on their respective company accounts?

4: If not, is this a breach of New Zealand employment law and should this be investigated? If it should be investigated, what agency should conduct this investigation?

5: Do you believe under the currently known circumstances, that Mt Eden Corrections Facility is an appropriate place for the ten to reside pending the outcome of any inquiries?

6: On the facts so far, do you feel the 10 workers have potentially been exploited?

7: If you do not feel they have been exploited, why do you feel this is so?

8: If you do feel they have potentially been exploited, who or what do you feel is culpable? And, do you accept that they ten workers are key witnesses in an alleged human trafficking ring?

The lawyer representing the ten workers, the Honourable Matt Robson, said on Radio New Zealand’s Checkpoint programme (March 30, 2021) that he believed the ten workers are victims of exploitation by a human trafficking ring.

9: Do you believe this element has been satisfactorily investigated, and if so why?

10: If not, what should happen now?

11: Should New Zealand Police be heading an investigation into alleged human trafficking?

12: If so, has NZ Police been approached by you as Minister of Immigration or by your office or by Immigration New Zealand? And, is an investigation underway by New Zealand Police on this element of this issue?

The lawyer acting for the ten workers found there were:

a: No written employment agreements;

b: No wage and time records;

c: No paid holidays;

d: No legal wages;

e: No training in health and safety measures on construction sites.

13: Do you accept that the above points (a – e) are an accurate assessment of the ten workers situation? If not, why not? If so, does this suggest that they fall within the considerations of the Migrant Exploitation Policy? And if so, as suspected exploited foreign workers, do they have the right to seek recourse via New Zealand’s judicial process, and does this recourse halt deportation proceedings from occurring?

14: Has the Minister of Foreign Affairs been alerted (corresponded with) to this issue by your office, if so, what was the nature of that correspondence?

Thank you for your attention to the above questions. Your consideration is appreciated, and I request, that due the urgency relating to the situation and potential deportation of the ten workers, that your answers be given a priority.

My last article, announcing that I intend to make a submission to the National Executive Council (NEC) to amend the Public Service regulation to no longer require the Commissioner of Police to hold a tertiary degree, prompted a number of readers to suggest this would be an act nepotism, corruption and self-interest.

While I found these claims rather amusing, they are also disturbing as it shows some people are either genuinely ignorant of the issues, or just plain stupid.

What is the regulation that stipulates a person must obtain a tertiary degree to qualify for the appointment of Departmental Head (Secretary of Department)?

In 2003, the NEC approved a regulation called the Public Service (Management) Minimum Person Specification and Competence & Regulations for Selection and Appointment of Departmental Heads and Provincial Administrators.

This regulation provided that any person applying for a position of Departmental Head or Provincial Administrator must meet a number of minimum requirements to be considered for the appointment. These requirements number more than 18 and include everything from minimim tertiary education, over age of 35, management experience and skills to health and fitness.

So there is no confusion, this regulation was proposed by the Department of Personnel Management as the agency responsible for Public Service through the Minister of Public Service for NEC’s approval.

While Acts of Parliament (laws) are subject to approval by Parliament, regulations are approved by NEC.

Regulations like bylaws
Regulations are like bylaws to an Act of Parliament and are intended to provide more detailed processes and procedures when implementing provisions or sections of an Act (law).

When NEC introduced the regulation specifying the minimum requirements for persons to be appointed to be Departmental Head and Provincial Administrators, did it intend the regulation to apply to the Commissioner of Police?

Short answer, in my respectful view, is No.

My evidence to support this view is that NEC appoints the Commissioner of Police and, if it intended the Commissioner of Police to be subject to the regulation, then it would have applied it to every Commissioner of Police appointed since 2003.

The same can be said about the Department of Personnel Management which proposed the regulation in the first place and would have otherwise applied it in the shortlisting of candidates for the position.

Since the introduction of the regulation, how many Commissioners of Police have had a tertiary qualification?

Short answer is none.

Six post-regulation appointments
Since the introduction of the regulation by NEC there have been six appointments to Commissioner of Police. Not one has possessed a tertiary degree.

In fact, since 1945 more than 23 people have served as Commissioner of Police and only one of them possessed a tertiary education – Peter Aigolo, 1997-1999.

It is the role of Members of Parliament to pass legislation, NEC to pass regulation and the court to interpret and uphold law consistent with its intended meaning, purpose and Constitutional law.

The Supreme Court has held in numerous of its judgements over the years that, when interpreting laws passed by Parliament, it is important to understand and consider the intent of the legislature when they introduced the law.

In this case, the question is did the NEC intend the regulation to be applied to the appointment of Commissioner of Police?

Based on the above evidence, my respectful view is No.

I don’t believe this evidence or argument was raised before the National Court to assist the Court in arriving at its decision. Perhaps it was the case of those drafting the regulation failing to make it clear.

The decision of the National Court is not final, as the Commissioner of Police may exercise his right to appeal the decision to the Supreme Court for a three-man bench to review the decision.

NEC may also exercise its Constitutional powers to correct any confusion in the application of the regulation to make it consistent with its intended purpose.

The decision to introduce regulation, rescind, amend or correct it, including in the appointment of the Commissioner of Police, lies with NEC.

Republished from Police Minister Bryan Kramer’s personal blog. The original headline on this article was: “Where did minimum requirements for Chief of Police come from?” Asia Pacific Report often republishes Minister Kramer’s articles.

Article by AsiaPacificReport.nz

Allegations of bullying and illegal activity in Parliament continue to dog National MP Maggie Barry, with leaks and anonymous interviews from former staff coming out daily since the Herald broke the story on Saturday. 

The latest startling allegations were broadcast this morning on RNZ, in an 11-minute interview with an anonymous former employee of Barry’s. The person claims: “She would call staff stupid, say that she couldn’t believe that they had been given a degree; she would talk about their sexuality behind their back to me and other staffers”. The whole interview is well worth listening to: Ex-staffer speaks out.

The complainant describes working for Barry: “It was Jekyll and Hyde stuff. It was terrifying at times. It rocketed from absurd one moment to terrifying the next. She would be absolutely lovely and then a small thing would trigger her and she’d be absolutely furious, just red-hot fury.”

The former staffer also made allegations that Barry requested that National Party campaign work be carried out which, if true, would be against the law. The former staffer said “about 50 per cent” of his work was actually for the National Party.

He claims: “The very first piece of work that I did on my very first day was to create her email newsletter which campaigned for Dan Bidois… and which also asked people to join the National Party… We collected membership funds, people would pay their membership dues at the electorate office… she would solicit membership from the office… All of those things are unlawful.”

Some of Barry’s conversations were recorded by staff, but he says: “She told staff to record her – and I wasn’t the first staff member to record her, other staff members recorded her. She told us that was a good idea because then she could go off to another meeting and we could go back and check the tape.”

He said Parliamentary Service had also encouraged him to make recordings after he complained to them about Barry’s behaviour. They told him to “document interactions” with the MP. And these recordings have now been supplied to RNZ and other media outlets.

This is well covered in Craig McCulloch’s news report, Maggie Barry bullying claims: Ex-staffer speaks out. This article confirms that “RNZ has seen text messages which appear to show Ms Barry requesting the staffer carry out political work during office hours.”

McCulloch also reports on another employee of Barry, who disputes the above allegations, saying “she had never been bullied by the MP in the six years she had worked with her”.

In terms of the recordings, she says she feels “betrayed and violated” by them. Similarly, Barry is also quoted objecting to this process of accusations: “It is a little odd and unfair having to answer allegations anonymously and also to be taped without my knowledge.”

Earlier allegations about Maggie Barry

The scandal actually broke on Saturday, when the Herald published Kirsty Johnston and Derek Cheng’s in-depth account of bullying in Barry’s office – see: Former staff accuse National MP Maggie Barry of bullying. Here’s the original list of Barry’s alleged crimes: “swore and yelled at staff; called an employee ‘stupid’; used derogatory terms about other elected officials, which made staff uncomfortable; referred to people with mental health issues using offensive terms like ‘nutter’; discussed her employees’ sexuality in the workplace; expected staff would do work for the National Party during office hours, which they felt unable to refuse while knowing it was wrong, because they were scared.”

The article appears to be based on claims made by the same person in the RNZ interview. He explains that he had gone to the media with his allegations in the wake of the Jami-Lee Ross scandal when National was downplaying bullying in the party: “When you’re the subject of bullying investigations it takes gall to claim that Jami-Lee Ross was a one-off, that there are no other bullies that the party is aware of”.

On Sunday, further allegations were published in Nicholas Jones and Kirsty Johnston’s National backs Maggie Barry as more allegations detailed. This article is based on details “outlined in a document by Parliamentary Service, summarising a meeting” with the former staffer.

Then on Monday, Newshub published yet more allegations, apparently from a different complainant, who described Barry’s office as a “toxic” workplace – see Anna Bracewell-Worrall’s Exclusive: National MP Maggie Barry hit with fresh bullying allegations.

Here’s the key part of the story: “the source said Ms Barry would lash out at staff and that she was ‘totally intimidating’. ‘She would attack and belittle your work in front of other people.’ They worked in her ministerial office, and said staff would break down in tears. The staff member said Ms Barry would treat everyone below her station with ‘utter contempt’ – including referring to officials in her ministerial departments as ‘hired help’.”

The article also presents Barry’s response: “I can’t comment on individual employment issues, but there were no investigations or formal employment complaints laid during my three years as Minister, nor were there issues raised with me by Ministerial Services”. However, Bracewell-Worrall reports, “No formal complaints were laid, as the staffer said they were worried it might harm their chances of getting more work at Parliament”.

Allegations of illegal use of taxpayer resources for electioneering

Although the Maggie Barry story has mostly focused on her alleged bullying, perhaps the more potentially explosive allegation is that she had her staff do party political work instead of parliamentary work. Of course, this is common in MPs offices, but because it is unlawful it is not normally made public. Party political work is not an allowed use of taxpayer resources, and parliamentary staff are supposed to only do work relating to parliamentary purposes.

This misuse of taxpayer funds is one of those open secrets in Wellington that isn’t normally reported or debated because all the parties do it, and therefore none of them have an interest in exposing it. Occasionally, information comes to the surface – as it did after the 2005 general election, leading the parties to have to pay back hundreds of thousands of dollars – but generally it remains hidden. It’s possible that now, with the allegations about Barry, we’ll see much more coming out about this misuse.

This allegation was made in the original report on this scandal, but yesterday Newshub published information about the existence of an email allegedly from Barry: “Newshub has seen an email from Ms Barry instructing a ministerial staff member to work on a letter to National Party members. The email was sent during a work day to a parliamentary email address. National refused to discuss the email without a seeing a copy of it. Newshub had agreed with its source not to share the email” – see Anna Bracewell-Worrall’s Exclusive: Leaked email reveals Maggie Barry told parliamentary staff to do National Party work which could be unlawful.

The analysis of electoral law expert Andrew Geddis is reported in the article: “When you have an email like this sent during work time, it looks very much like they are being asked to do it on the taxpayer dollar – and that’s what they are not allowed to do.”

Geddis is also quoted by Audrey Young in a previous report: “Taxpayer funding to hire MPs’ staff is given so that they can do their jobs as elected representatives, not to help them win re-election… If it gets misused for party purposes, sitting MPs get a massive advantage against their unfunded challengers” – see: Bridges says Barry management was no cause for concern, welcomes advice on definition of ‘political work’.

Geddis believes that “the situation may need closer scrutiny”, and he cites the Auditor General launching an inquiry into a similar issue in 2005, which “found that parties in Parliament had unlawfully spent $1.17 million on what he deemed to be political advertising”. He says that “It may be something similar is needed in this case”.

Debates about bullying

In dealing with some of the allegations about Maggie Barry, Simon Bridges and Paula Bennett have been emphasising that Parliament is a “robust workplace”, the implication being that what some people call “bullying” might well just be the natural high-pressure behaviour of an intense place like Parliament. Bennett has also said there needs to be a balance where people aren’t “too scared to have a joke or say something that could be cut and pasted and misconstrued in some way.”

It turns out that some of these statements have been created by National’s spindoctors, and distributed to all National MPs so that they can repeat them to the public – see Jason Walls’ Internal National Party email advising MPs on what to reply to bullying questions has been leaked.

But it’s not just National questioning what is considered bullying. Deputy Prime Minister Winston Peters has also spoken out on the issue this week, saying “The reality is that we are upon a new PC age where half the zing, excitement and enjoyment of life is being gutted and sucked out of society by people who decide that they will be the language Nazis” – see Scott Palmer’s Winston Peters blames ‘language Nazis’ for bullying scandals. This was in response to RadioLive’s Mark Sainsbury pondering whether the whole debate is “all a beat-up”, suggesting “everything is bullying these days” and it seems like “bullying season.”

Peters has also explained that the nature of Parliament leads to difficult interactions with staff: “If you’ve got a crisis on, that’s a serious crisis on, and someone is not stepping up then tempers tend to be raised and people tend to react. But that’s part and parcel of life. If you think we can have a tranquil, peaceful, calm life while you’re trying to handle crisis after crisis, and difficulties and all sorts of tension then I think we’re in dream land” – see Jamie Ensor’s Deputy Prime Minister Winston Peters can’t be sure he hasn’t been a bully.

For the best discussion of bullying in Parliament, it’s well worth reading the observations of RNZ’s Peter Wilson, who is a 30-year veteran of the Parliamentary Press Gallery, and has probably seen more of what goes on in the institution than almost anyone – see his opinion piece, Bullying and bad behaviour: Parliament’s perfect storm.

He says: “High stakes, high stress, bad temper and bullying often go together and in Parliament it’s a perfect storm.” But here’s his main point: “Parliament is by its nature a hostile environment. Opposition MPs criticise and vilify government MPs, and they in turn are attacked by the other side. That’s a way of life in an adversarial political system. However, the hostility can and does boil over. An MP who comes out the debating chamber furious about being humiliated and encounters an errant staffer isn’t likely to be an understanding boss. And when a mistake made by an official leads to public embarrassment, such as relying on incorrect information, the reaction can be dire.”

Wilson also points to the fact that a lot of recent allegations are against women, so “the problem isn’t restricted to powerful men”. Also, he makes the point that not all MPs are bullies or involved in bad behaviour. He cites Bill English as a good example, saying he “had a reputation for being a really good boss to work for and the pressure he was often under was as high as it gets. He was said to never raise his voice in the office.”

Finally, could the current allegations against Maggie Barry have an element of internal National Party dirty politics? I made the case for this on Monday on Newshub’s AM Show – see: Maggie Barry bullying claims possibly a ‘Nat-on-Nat attack’ – Bryce Edwards.

by Dr Bryce Edwards

The bad behaviour of New Zealand politicians has been a major focus of this year in politics. Actually, this has been happening throughout the world recently, as the growing mood against elites and sexual harassment has led to a refreshing openness and scrutiny of what goes on behind the scenes in places of power.

2019 might well see further revelations about politicians’ wrongdoing, especially because of the newly-launched parliamentary inquiry into the treatment of staff by politicians. Parliament’s Speaker, Trevor Mallard, has essentially given the green light for allegations about misbehaving politicians to be brought out into the open, via his official “Bullying inquiry”. The inquiry will be led by Debbie Francis, an independent external reviewer who has recently completed work on bullying and harassment at the NZ Defence Force.

Will the review be effective or a whitewash?

Will complainants confine themselves to using the official channels of what is an inquiry with a relatively narrow ambit and very limited ability to research and achieve much? Already, former parliamentary staff are choosing to go outside of the review, using the media to make their complaints public – see Kirsty Johnston and Derek Cheng’s Herald article from the weekend: Former staff accuse National MP Maggie Barry of bullying.

The Barry scandal may be the first of many revelations and allegations to come out about MPs in this fashion. Staffers are likely to see that Mallard’s review is relatively limited in scope and likely impact, and instead choose to go public. I explained some of the review’s shortcomings on The AM Show this morning – see: Simon Bridges bats off Maggie Barry allegations, says staff have a ‘spring in their step’.

Although Trevor Mallard has received plaudits for launching the review of behaviour in Parliament, really it was inevitable, considering some of the recent revelations about bullying in Parliament. It’s probably the least Mallard could do in this situation, without being accused of a cover-up. By front-footing the problem, but at the same time allocating few resources and setting such a limited scope, Mallard is likely hoping he has done just enough to assuage public concern.

Herald columnist Lizzie Marvelly has some similar concerns, arguing the inquiry needs more teeth: “While I support the spirit of the review, from the few details currently released to the public, I doubt it has been equipped with enough firepower to make a significant difference. It doesn’t have the power to subpoena documents, and will rely heavily on self-disclosure from affected staff. Most of the information gathered will never be released to either the public or Parliamentary Services” – see: What will spill out when the rug is lifted?

She also worries that the abilities and inclinations of the politicians to suppress negative information will kick in: “if MPs or senior staff members suspect that their conduct may be reported to the review, what lengths will they go to in order to suppress information? At this stage, within its current framework, the ability of the review to fulfil its brief and deliver the impetus for change raises more questions than it answers.”

There are also questions about whether the review is independent enough. Although Trevor Mallard has hired an independent investigator, it’s hard to imagine Debbie Francis will be really applying rigorous scrutiny to the Office of the Speaker. So, there’s an argument to made for having the investigation taken right out of the arena of the Speaker. After all, Mallard himself has something of a reputation as a bully, and so this review might be seen as being compromised by him.

For more on Mallard’s alleged bullying, see Anna Bracewell-Worrall’s ‘He was a bully’: Christine Rankin accuses ‘crude’ Trevor Mallard of bullying. In this, former head of WINZ, “Christine Rankin says she was subjected to a campaign of bullying from senior ministers who wanted her out – and that Speaker Trevor Mallard was among them”. Rankin makes some specific allegations against Mallard: “He was a bully… They were all bullies and they revelled in it.” According to this article, Rankin “says ministers would whisper and laugh about her during meetings – with Mr Mallard using language that still makes her too uncomfortable to repeat.”

Problems with employment arrangements in Parliament

The review will need to deal with some of the core issues about how Parliament operates – especially in terms of the peculiar employment arrangements of the staff that work for politicians. Although their bosses are in practice the MPs, legally they are actually employed by the two main agencies of the Parliamentary Service and Ministerial Services.

This means that, quite often when there is a problem between an MP and employee, a payment is simply made to the employee to make the problem go away. The employee leaves with a payout, and the taxpayer pays for it, with no great consequences for the MP.

This is explained by Act Party leader David Seymour: “There is no other workplace in New Zealand where you can be a bad boss and get rid of somebody, no questions asked, and some other entity – in this case the Parliamentary Service – picks up the tab. I think that’s actually the biggest problem here” – see Derek Cheng’s Winston Peters has ‘no idea’ why bullying review into Parliament is taking place.

According to this article, Seymour believes that “that MPs could essentially treat their staff with impunity”. He therefore has a solution: “I, David Seymour, should be the employer of my staff, and then I can face the same employment laws that every other employer faces.”

National Party blogger David Farrar has also commented on this problem: “The Parliamentary Service is the employer and hence they pay for any costs of any employment disputes etc. There isn’t a huge financial incentive for MPs to avoid employment disputes. If you changed the arrangement so the parliamentary party or even the MP was the formal employer, then you could well end up with better incentives as if you have to pay out a dissatisfied staff members say $15,000 that is $15,000 less money you have for newsletters etc” – see: Maggie Barry accusations.

A further problem is that the parliamentary employment agencies have a reputation for being totally subservient to the MPs, which makes the staff even more vulnerable. One former staffer is quoted by Henry Cooke saying: “When you would go to Ministerial Services they very much had the attitude of ‘Yes, Minister’ ‘Whatever the minster wants the minister gets. They didn’t give a s….'” – see Henry Cooke’s Is Parliament a safe place to work? MPs and Speaker disagree.

This is best illustrated by Melanie Reid and Cass Mason’s important article, Bullied at Parliament – and nobody helped. This tells the story “of one woman who says she received no support when she was bullied by Jami-Lee Ross.”

This account suggests that the Parliamentary Service was aware of bullying against staff of Jami-Lee Ross, but did little to help them, instead just suggesting they resign. According to the staff member working for Ross, the Parliamentary Service staff “would just say ‘Look, you’re the one in the wrong here. You’ve been given a great opportunity by giving you a job … [Ross] has done so much for you and this is how you repay him?” The staff member now says this about the Parliamentary Service: “I wish that they would realise how crazy they were for defending Jami-Lee for everything he did.”

Just how toxic is Parliament?

Already this year, there have been major scandals around allegations of bullying and misbehaviour relating to Meka Whaitiri and Jami-Lee Ross, and so it’s not surprising that people are starting to ask questions about standards in Parliament and whether these scandals are indicative of the political working environment.

Obviously Trevor Mallard thinks things are bad enough to have this inquiry, and in launching it he’s exclaimed that “Incidents have occurred over many years in this building that are unacceptable” and “I wouldn’t recommend my kids work there”. Some other MPs agree – Kris Faafoi says that he had “seen some things I probably wouldn’t want to see”.

But Shane Jones says “In my experience it has been a relatively benign place to work”. And his own boss, New Zealand First leader Winston Peters, has replied to questions from the media like this: “The only person who has been seriously bullied around this place is one Winston Peters by people like you”.

Henry Cooke also has another very good article that explains the new review, its limitations, and the unique employment relations of staff – see: Extensive review into bullying and harassment at Parliament. He reports on Mallard’s observations “that reviews into law firms have inspired the review, as they were somewhat similar workplaces with entrenched hierarchies, long hours, and a powerful ‘bubble’.” It is also noted that “Parliament is often a very stressful workplace, with intense public scrutiny, party loyalty, many deadlines, and a culture of long hours.”

Lizzy Marvelly’s column is also very good on this: “I would argue that politicians are an interesting breed, and having so many of them in one place, variously vying for power, advocating for passion projects, feathering their own nests and/or trying to save the world, is a recipe for fireworks. In a game in which fortunes can change with the gusty Wellington wind, it’s not difficult to imagine that such a charged environment might drive some rather heated workplace relations. It should surprise exactly no one that bullying and improper conduct takes place at Parliament. I would even venture that it may be worse than many other workplaces.”

Finally, one of the people who knows the culture of Parliament best is the AM Show’s Duncan Garner, who shared his own experiences last week: “I’d worked in Parliament for 17 years, and I’d become like them: mean, combative, cynical and I drank too much. I had to get out” – see: Parliament review will reveal drinking, cheating, sexual abuse, bullying – Duncan Garner.

Garner concludes with what he expects: “Parliament could be a bomb site by the end of this inquiry. You see that place rewards the winner and the loser is humiliated. The more public the humiliation then job done… I expect this review to highlight the total power imbalance between the worker and the MP, the drinking, the relationships, the Wellington wife, the sex, wanted and unwanted, the daily humiliation of the weak and of the wrong.”