Sir Wira Gardiner, who left the NZ Army as a lieutenant colonel in 1983 and was made an honorary colonel of 2/1 RNZIR in 2017.
Sir Wira Gardiner lodged a claim the brain tumour which would take his life was a war injury, knowing it would set off a firestorm but convinced it could leave a “koha” for other military veterans, his widow Lady Hekia Parata has revealed.
It was a claim that found its way to the High Court as a test case because of the potential for it to vastly expand the grounds on which modern veterans can seek financial and other support. A decision is imminent.
If successful, it would create a bridge between old legislation providing veterans support and a new law passed in 2014 which is seen as having created a more difficult and regimented system.
In an interview with the Herald, Parata was highly critical of the new law - the Veterans’ Support Act 2014 - which went through Parliament when she was in Cabinet.
She said it produced a different outcome from what she believed it would when she was in Government.
“My clear sense of it was that it was purely a tidying up of the legislation - not that it was going to be harder to get the support needed.”
Gardiner served with the NZ Army for 20 years. He saw active service in Vietnam and retired as a lieutenant colonel in 1983 before embarking on another 30 years in public service in significant roles.
Throughout that time, Gardiner was known for never putting aside his role as a soldier and as a watchful campaigner on veterans’ issues.
Parata said Gardiner was initially thought to have contracted Covid-19 but the illness was revealed in August 2021 to be a brain tumour which - they were told - would take his life in just four months.
Shortly after the diagnosis, Parata said Gardiner was visited by a longstanding friend Ross Himona, with whom he had served in Vietnam. Himona, who served from 1962 until retiring as a major in 1982, is a kaumātua highly regarded for his legal focus on veterans’ issues.
When Himona visited, he encouraged Gardiner to make a claim that the malignant neoplasm of the brain - the glioblastoma that would claim his life - was related to his military service.
Parata said her husband questioned the move as he did not need the support himself but was convinced by Himona to lend his mana to a claim that could become a test case and benefit others as a result.
Himona told the Herald he knew it could become a test case because a brain tumour claim had been accepted under the old law and it would be argued it was incongruous to have different outcomes when the new law was not meant to leave veterans worse off.
Himona said he told Gardiner the claim would likely be declined under the new law - and then challenged with a case to the Veterans’ Entitlements Appeal Board and possibly onward to the High Court.
“We were trying to get the legislation into the High Court to push the boundaries around interpretations to benefit veterans.”
Himona said it had the potential to expand the sort of injuries for which veterans could claim under the current law. On hearing this, Himona said his old friend agreed.
“He wanted to leave a koha for all veterans.”
Parata said before her husband died he had secured from her a promise she would pursue the paperwork and take part in hearings necessary to see the process through.
She recalled: “Wira said, ‘we’re going to do this because it’s going to help another veteran’.”
Gardiner’s claim for support was rejected by Veterans’ Affairs in September 2021. Veterans’ Affairs is the agency charged with ensuring returned service people receive financial, health and other support to recognise any adverse impacts of their time in the military.
A subsequent review request in February 2022 upheld Veterans’ Affairs’ earlier decision.
A month after Gardiner’s death in March last year, the Veterans’ Entitlement Appeal Board upended the decision, finding Veterans’ Affairs had breached its own processes when it reviewed, then rejected Gardiner’s claim.
The board took over the review itself after concern a statement from Veterans’ Affairs that it would make the same decision again was “an admission that (it) has prejudged the matter”.
The Appeal Board’s decision in July 2022 saw two of three members support Gardiner’s claim, giving a majority verdict.
They did so on the basis of a brain tumour claim accepted by Veterans’ Affairs in 2013 before the new law was passed. That case, summarised by board member and barrister Christopher Griggs - an international expert in military law - was a “precedent that glioblastoma in Vietnam veterans might be related to their service, due to their exposure to Agent Orange”.
The board’s decision was challenged by Veterans’ Affairs at the High Court, which Himona said was the first occasion in 30 years it had done so. The court appointed lawyer Rachel Roff to assist its decision-making and heard arguments about accepting Australian and United States precedents, Himona said.
Himona said acceptance of US precedents would be a “powerful enabler” for contemporary veterans who fought in Afghanistan because of the disparity in experience and knowledge between the two countries.
Of Vietnam veterans, he said: “We’re the best-looked-after cohort in history but it creates inequalities for the next generation.”
Parata said Gardiner “never missed an opportunity” to speak to Ministers of Defence and Veterans’ Affairs, and even Prime Ministers, about supporting those who had served.
Parata said she had personally raised issues over the 2014 law with former Labour Party Cabinet minister Meka Whaitiri, who was Minister of Veterans’ Affairs after the 2020 election.
At the time, there were pending changes to the 2014 legislation following Professor Ron Paterson’s highly critical Warrant of Fitness inquiry into how well it served veterans.
Parata said she told Whaitiri the “core principles” that guided the law should be “reciprocity and generosity”. Instead, Parata said different principles appeared to underpin the act and the way it was being executed.
“I said, ‘It’s really about managing liability about how much this is going to cost’.”
“The system ... needs to be honourable to all veterans. Whatever pride we take as New Zealanders for what [veterans] do, we should be accountable for and responsible for supporting them and their families when needed.
“The system is devoted to precluding veterans getting the support they are entitled to. You have to be skilled to get through the criteria.”
When it came to dealing with Veterans’ Affairs itself, Parata said it was “extremely bureaucratic” and - although individuals were particularly attentive because of who Gardiner was - “downright just difficult”.
“To me the framework feels like it has just become calcified. It’s just an unbending, rigid regime and is being applied in that way.”
Parata - who had a diplomatic background before politics - said New Zealand’s military contributions across the world helped bring political and trade benefits for all who lived here.
“I just think there needs to be proper resourcing and proper respect and processes that are built on trust and respect.
“When these New Zealanders join up to do whatever they are asked to do, I think the public should have a reciprocal obligation through their elected representatives to meet their needs.
“It’s about real people who have done real things and had real experiences and are owed a debt of gratitude.”
The Herald asked the NZ Defence Force - inside which Veterans’ Affairs operates - for comment on the High Court case. It has yet to respond.
Veterans’ Affairs Minister Peeni Henare has told the Herald he is “confident” eligible veterans get the support they need “on top of all the other government support that is available for veterans across government agencies”.
He cited a survey commissioned by Veterans’ Affairs showing 93 per cent of veterans living in New Zealand were satisfied with the service they received.
Data from the survey showed 4843 interviews with veterans were carried out between 2018 to 2022, of which just 66 were with veterans aged under 60.
It follows concerns about use-of-force powers being given to staff.