If the Treaty of Waitangi is a fragile bit of rat-eaten parchment with faint ink words and signatures scratched in the 19th century, it is still the nation’s founding document that has the ability to overwhelm 21st-century technology and cause a political ruckus. Tens of thousands of people crashed a government web page set up for making submissions on the Treaty Principles Bill, which indicates people are interested in a debate.
One of the best ways to win a debate is to frame its parameters. Even if you don’t win the debate, you get to define what the discussion is about and distract them from other things you might not want people to notice.
While David Seymour has a patter of talking points, he also has a whole legion of silence points. Though he likes to give pious little homilies about democracy, equality and the rule of law, he goes quiet when he is questioned on certain topics that don’t fit his political posturing.
So, I’d like to go off-topic. But not that far off-topic. It’s just a topic that Seymour and his coalition partners are curiously silent on.
Serious question: is it okay for the crown to cover up its own crimes and withhold evidence from a police investigation into crimes against children, including rape and torture?
I’ve asked Seymour this question, not simply as a hypothetical, but as a very real and serious thing.
I’ve also asked Winston Peters the same question, since he likes to get pedantic on constitutional and procedural issues. I’ve also asked Christopher Luxon, because he has said a lot about getting tough on crime.
None of them have answered. Because the answer would force them to confront the very powers and lack of accountability they enjoy as ministers of the crown.
It would force them to answer the question – what is this thing called the crown?
One of the areas I’ve covered as a journalist for some time – eight years and counting – is the abuse of children in the custody of the state. There’s much to be horrified about, particularly the abuse itself and the trauma it has caused to thousands and the ways that trauma has become entrenched over generations.
But the aspect I have found most troubling is the behaviour and response of the crown when victims have tried to hold someone accountable. There is simply no mechanism to hold the crown accountable, even when it commits crimes against children as documented by the Royal Commission of Inquiry into Abuse in Care and my years of reporting on it.
But the crown has used a multitude of tactics at its disposal to avoid responsibility. It’s as if it considers itself too big and powerful to be held accountable.
This has far deeper and broader implications that go well beyond the issue of the state’s abuse of children. It raises fundamental constitutional questions that crown ministers, bureaucrats and lawyers have been desperate to avoid.
One example: in 2020, the United Nations found New Zealand in breach of the Convention Against Torture because it had failed to properly investigate the crimes against children who were in Lake Alice in the 1970s.
The government had no option but to open another criminal investigation (previous ones were such a failure the police had to apologise). So, the police formally requested documents from Crown Law, which had a mountain of evidence it had collated, particularly during civil litigation in the 1990s and 2000s.
But Crown Law failed to provide a crucial set of documents to the police, even though it was aware of them and they were clearly within the scope of the police request. I’ve confirmed this from several sources, including Crown Law itself.
The refusal by the leaders of the present coalition government (and the previous government, for that matter) to answer a question about this amounts to tacit approval for this failure.
The Solicitor-General, Una Jagose, who leads the Crown Law Office, has faced no consequences or even acknowledged this serious failure.
By their silence, senior ministers are implicitly saying it is okay for Crown Law – the institution that holds the ultimate authority for prosecuting crimes – to withhold evidence from a police investigation into the torture of children.
This is only one example of many. If I was to summarise the eight years of my reporting, it would be this – the crown can commit crime with absolute impunity.
As the late legal academic and activist Moana Jackson once said to me, “Never mind tikanga. The crown can’t even follow its own laws.” I’d add that the crown can’t be held accountable when it breaks its own laws.
So, before we get ourselves into a lather about the meaning of the Treaty of Waitangi or what rights Māori have or don’t have, maybe we should first take a look at this thing called the crown.
Aaron Smale is a journalist specialising in te ao Māori issues. He joins listener.co.nz and the Listener magazine as a fortnightly columnist.
