Māori Television Service Bill

Schedules 1 and 2 go into great detail about appointments to the electoral college that will appoint the directors of the Māori Television Service, and schedule 2 further spells out the duties of these directors. I really would urge the Minister to take a call, because so far in the Committee stage of the debate the Minister has totally refused to take a call on some very serious questions raised by members from this side of the Chamber. Schedule 2 spells out very clearly the duties of directors. They have to be competent and I want the Minister to take a call to tell the Committee whether, for example, Derek Fox and the current board of directors, if they are going to operate under this schedule, would be removed from office, because one of the reasons given in schedule 2 for a director being removed from office is that “the director has brought the Service into disrepute”. I would argue that the fiasco of the existing Māori Television Service and the fact that it appointed a fraudster, John Davy, and was never able to accept the consequences, has brought the Māori Television Service into disrepute.

The other question I want to ask is whether Derek Fox’s failure to disclose interest would, under this bill, mean that he needed to resign. While he was the chairman of the existing Māori television establishment board he took part in the interviewing of candidates for the job of chief executive officer, and nowhere during the process was any candidate made aware that he might have an interest in the position—and I do not know whether his fellow directors or the Minister knew of his intention either.

Clause 4D in Part 2 of schedule 2 states quite clearly: “A director who is interested in a transaction, or proposed transaction of, or other matter relating to the Service—(a) must not vote or take part in any deliberation or decision of the board …”. So I would like the Minister to take a call to explain to us whether, under this bill, when a board of directors is going through the process of appointing a chief executive officer or senior manager to the Māori Television Service, and members of the interview panel have an interest in applying for the job, the failure of panel members to disclose their conflict of interest would lead to this provision being put in place.

If it would, the Minister needs to explain why the members of the establishment board are not being held to the same standard. I am totally convinced that the public and Opposition members are equally concerned that before the Māori Television Service legislation has been passed, we already have a lot of question marks over the conduct of the establishment board. What is the point of Parliament spending time debating and passing legislation that will supposedly hold the board of directors to a high degree of integrity and professionalism, if that is not going to be implemented?

I do not think it is good enough for the Minister to continue to simply sit there refusing to answer any questions and refusing to give the public the assurance that all these high standards of behaviour spelt out in these schedules will be carried out, and the assurance that if any member of the board fails to perform to that standard, the public can expect the Minister to take effective action.

I am disappointed to have got the call quite as early as this, because I rather expected that the Minister would seek the opportunity to answer the excellent questions posed by my colleague Pansy Wong. The Minister should reflect solemnly on the questions she asked and the theme behind those questions. We are here today, in the Committee stage, debating the schedules to this bill, and they are important schedules. The first schedule outlines the appointment process for the electoral college, the second schedule the process for directors, and the third schedule the process for the chief executive. In respect of each of those schedules, there has been a pantomime of events over the past 2 years for which this Minister owes the Committee an explanation.

The Minister cannot with a straight face ask the Committee today to solemnly pass these three schedules, knowing the history that has gone before them, without providing at least an explanation. I say to the Minister in all seriousness that we will keep taking the calls and asking the questions until he does this Committee the courtesy of giving the explanations it deserves.

The first question I want to ask him is about schedule 1, because that talks about the Māori Television Electoral College, and that electoral college, it is known, has the gravest of concerns about many of the recent events in relation to the management of the Māori Television Service. I am not going to go on to rehearse some of those concerns. Some of them have been placed in writing to the Minister or one of his ministerial colleagues. I simply invite him to take a call and explain to the Committee the nature of the concerns held by the electoral college, expressed to him both verbally and in writing, and tell us what he has done to reassure the electoral college on these matters. He must tell the Committee about those concerns, and particularly about his responses, if he expects us to pass this schedule into law.

More worryingly, I want him to tell us about some matters that bear upon schedules 2 and 3. I have raised these matters in this Committee previously, and so far the Minister has avoided giving an answer. The process by which Mr Derek Fox got himself to be appointed as the chief executive officer of the Māori Television Service was nothing less than a monumental jack-up—and that Minister knows it. The whole process by which he was put in place as the chairman in the first place was calculated to remove a political opponent from the establishment of an alternative Māori political party, and to stop Mr Fox from beating the Minister of Māori Affairs in his own electorate. That is what this thing was all about in the first place.

We were told that the position of chairman of the Māori Television Service was to be a small, part-time, $36,000-a-year job. But that has been translated into a massive role—first of all, of executive chairman, and now, of chief executive. The Minister needs to tell us how it is that his departmental chief executive signed off on that process. Did that chief executive ask some questions on his behalf to assure himself of the probity of that process? I know he did. I know that Mr Leith Comer signed a memorandum asking those questions, and that he was far from satisfied with the answers. I want the Minister to tell us what those questions were and what the answers were.

How was it that there was an appointment process that Mr Fox himself presided over as the chairman of the appointment committee? He sat on the board for the report-back process, and only when his own nomination came up did he leave the room. What was it that saw him appointed by three votes to two, with one of those votes being a proxy? I want the Minister to stand and tell us why we should have confidence in passing these provisions, particularly schedules 2 and 3, when he knows that the process that has already preceded this discussion in the Committee today is shonky, has been rightly criticised by his own officials, is one that his own chief executive has most serious reservations about, and does not meet the smell test, by any standard. Why was a decision made to proceed with the appointment, to announce the appointment of Mr Fox, when he, the Minister, knows that the advice was that the appointment should not proceed?

I would like to look at the history of Māori involvement in business. There have been many failures in Māori business because of non-accountability. New Zealand First has already expressed its opposition to Māori television, because of the process and the steps that have been taken. One of those steps has been touched on by Mr McCully—the appointment of the chief executive officer. I remember when that person was asked in the Māori Affairs Committee what he was getting paid as acting chairperson, as he was at the time, and he specifically quoted the figure of $36,000, although I will stand corrected on that.

I refer to the process that has taken place in relation to the appointment of the chief executive officer. How can a person who sat on the interviewing committee all of a sudden be appointed to the position of chief executive officer? I am sure that some very competent people applied, but at this stage I am not aware who the applicants were. Māoridom has been tarnished with the brush of incompetence and failure in business. Why is that? Is it because we are following along that same pattern of appointees—patting each other on the back and saying: “You will do the job.”? Why is it? That is the question I ask. The commentary on the bill talks about “Issues beyond the bill” and “Security and level of funding”. In relation to someone being appointed to the very responsible position of chief executive officer of Māori Television—if and when it gets off the ground—it states: “Several submitters proposed amending the bill to provide security of funding to the Service …”. If there are concerns about security of funding to the service, why are we still continuing to pass this bill?

The commentary on the bill continues: “Submitters are concerned that funding for the Service is contestable with other broadcasters. Submitters also have concerns about the level of operational funding allocated to the Service. We consider that issues relating to funding of the Service are outside the scope of this bill.” Are we not destined for failure when there is a question about the funding for this bill? Are we on the same track that led to the failure of other business corporations in the past? What and who would that reflect on? Here we go again—money is spent and there is no accountability. The viability of this bill is doomed. We in New Zealand First do not want to be associated with anything that is a failure for Māori, because we feel that Māori have a great part to play in our community, in our nation, and internationally.

💬 Mita Ririnui: So why not on television?

So if we are going to talk about Māori television, as I have just heard—if or when it gets off the ground—how are we to say: “Yes, Māori have learnt from that media, or that type of learning, to retain the language and the tikanga.”? As I have asked before, who will facilitate the learning when people look at the screen? The bill is saying it will help retain the language, yet all of a sudden a person who was on the original interviewing panel has been appointed chief executive officer. Who were the people who applied for this position? Did they or did they not have the skills?

I find schedule 2 very interesting. I come to it as a company lawyer. Of course, what this bill tries to do is to build a company without calling it a company, and to give a few key distinctions. First, let us examine the appointment criteria. How does one appreciate the dual role of the Crown and Māori as stakeholders when this bill does nothing to tell anyone what a stakeholder is or what his or her stake is?

Indeed, the report of the Māori Affairs Committee states expressly that neither of them owns the service. So who does? Is it owned by no one—not even as a trustee? If this service acquires valuable market share or contracts that are important, or if it acquires a runaway hit, as a series or a programme, does no one own it—not the people of New Zealand, not Māori, not the electoral college, not the Crown? Does no one own it? Yet in the first clause of schedule 2 one of the first criteria for appointment and a key competency, as stated in paragraph (c), is that people appreciate “the dual role of the Crown and Māori as stakeholders” without any definition. That is a typical example of the drafting style that says: “We don’t need to answer hard questions when they relate to Māori. We will just throw them into the air and no one will ask again until people are embroiled in litigation. Pākehā all over New Zealand will be saying ‘Māori can’t organise their affairs. Look, they always have to go to court.’.” The reason they end up going to court is that people draft law that steers them in that direction, and they have no option. That is an inevitable consequence of writing drivel like clause 1(c) of schedule 2: “appreciation of the dual role of the Crown and Māori as stakeholders”. I am a little suspicious of some of the other criteria, but I will come to those when I go a little further through the bill. This list looks like a “don’t rock the boat” appointment list. Clause 1(e) of schedule 2 states: “ability to distinguish corporate governance from management:”. It is always the claim of management when someone really needs to get to the bottom of something, that the directors are getting outside their proper sphere. There are times when the corporate governance mantra is used as a simple, impenetrable shield against investigation and proper examination. The list of competencies includes, in paragraph (j), the “ability to work as a team member and collaboratively:”. There is nothing that balances that and mentions the ability to take the initiative, the ability to stand up against the collective, the ability to challenge accepted wisdom, or the ability to be the devil’s advocate. No, the only criterion that relates to that is the “ability to work as a team member and collaboratively:”. In other words, it is the ability to be a yes-man or a yes-woman.

I now look at the definition of “interested” in new clause 4A, “Conflict of interest of directors”, in the second schedule. I think that the preceding address from the New Zealand First member quite correctly said that there is a good deal of public concern about the propriety with which business has been conducted in some Māori organisations. So we get a special definition of “interested” for the purpose of identifying a conflict of interest. Unfortunately, this is an exclusive or comprehensive definition. Clause 4A(1) states that a director is interested in a transaction or other matter if—then the clause has a list of specific things, but it does not have what is usual in these sorts of provisions such as the words “includes” or “by way of example”, or the normal implications of “interested”. So, for example, we find, in clause 4A(1)(d), that one who is the parent, child, spouse, or partner of another party is probably interested. The provision does not cover a cousin, an uncle, an adoptive relative, a shareholder, or a member of the same iwi. All of those are relationships that could give rise to a conflict of interest, but by this definition they are excluded. Is that deliberate or is it just an example of the clumsy hopelessness with which this legislation has been drafted? The precise kinds of conflicts of interest that Māoridom should be, and is, most directly concerned about are not covered by the definition of “interested”. The only things that are covered are things that are pretty transparent and unlikely, anyway. I move on to a new clause, clause 5(2A), which was inserted by the select committee.

Again, I take great pleasure in talking on the schedules of this bill, Te Aratuku Whakaata Irirangi Māori bill. I must remind the Committee that we have yet to hear from the Minister as to exactly why he failed to have a Māori name for this bill, as well as for the schedules, when the whole idea of the bill was to promote Māori language. Certainly, as my colleagues Pansy Wong and Murray McCully pointed out, the schedules, of which there are three, are incredibly important given the history surrounding the appointment of directors and the chief executives that we have seen so far.

The first schedule deals with the electoral college, the second schedule deals with the appointment of directors and with the chief executive. If we look at Part 1 of schedule 1, we see that it refers to organisations that may appoint members of the Māori Television Electoral College, and it lists those organisations, which have a role in promoting te reo Māori, that are each entitled to appoint one representative to be a member of the college. We have never heard from the Minister—and it would be tremendous if he were prepared, finally, to take a call on this matter—why he has not explained to us a rationale behind the fact that $55 million of taxpayers’ money will be spent on television when we have no evidence-base to show that is the best mechanism to promote te reo Māori. All the organisations listed in schedule 1—from Te Kohanga Reo National Trust, to Ngā Kaiwhakapumau i te Reo Māori, and including the Māori Women’s Welfare League, the National Māori Congress, the New Zealand Māori Council, and the list goes on—are highly capable and eminent in terms of their ability to promote the Māori language, but the Minister has never told us, anywhere, about any evidence-base showing that this huge amount of taxpayers’ money, spent per year, is an effective way of promoting the Māori language.

Schedule 2 deals with the appointment of directors, and, undoubtedly, one of the great concerns has been the appointment process that we have seen so far. Part 3 of that schedule deals with the appointment of the chief executive, and, again, we must ask the Minister why the history of the appointment of chief executives has so far been so totally and absolutely unsatisfactory. On 15 March 2002, the Minister in the chair, Parekura Horomia—who has failed to give an explanation to the people of New Zealand—talked about John Davy as being the best person for the job. Derek Fox, the next director—the one who sat on the board and slipped out of a meeting only at the last moment, before his own appointment—said that there was no perfect answer about applications for the job but that the board had come down on the side of strong financial and managerial control. He went on to say that he was confident the guy would deliver. Well, that is the very man that this process has delivered. Here we are with a bill that will encompass the expenditure of $55 million of taxpayers’ money on promoting te reo Māori, yet we have a legacy of 100 percent of directors so far having been appointed in a very shonky manner.

I refer to schedule 1, and, in particular, to clause 10(2)(b), which states that one of the issues to be considered in dispute resolution is “whether and when to seek information from, and review the performance of, the Service:”. I have already referred to my major concerns about the amount of money that is going into this television service bill, which is somewhat of a black hole. We are talking about $30 million or $40 million a year going in to fund the Māori Television Service. That is a huge amount of money we are spending, from public funds, to float this service.

When we come to issues of accountability, the very least we can expect is a strong provision for accountability regarding that money. As members of Parliament, we expect to have some sort of right to know where this money is going, and we expect the right to know that it will be spent wisely. Already, many questions have arisen as to whether money has been spent wisely thus far. So when we look at clause 10(2)(b) we see that there are very lax accountability standards, and we found those standards when we looked back at clause 15 of the bill, which lists the college’s accountability standards. In particular, I notice from clause 15 that the functions of Te Pūtahi Paoho are to appoint four of the seven directors of the service; to provide direction to the chairperson of Te Pūtahi Paoho in the performance and exercise of his or her functions and powers; to consider the need to increase or decrease the number of organisations represented on the college; and to receive the accountability documents prepared by the board. At least at that point there is some sort of reception of accountability documents. I note, though, that the power and function of the college is to receive accountability documents; I see nowhere any powers that it has in terms of what it does once it has received them. That seems to me to mean that the college can receive anything it likes and that anything that is presented to it is simply tabled. Whether or not the college likes it, there is nothing it can do if it is unhappy with the accountability documents that are given to it. The best the college can do is to provide some sort of directions to the chairperson, but that will not get it very far. Certainly, it will not make the Māori Television Service very accountable.

We see in clause 16 that there must be consultation with the Minister in terms of the preparation of a statement of intent, and in terms of the review of the performance, so that the Minister and the college jointly may—and I note the word “may”; there is no “shall” here—review the performance of the service. With that background, we then look at the provisions of schedule 1, which take us a little bit further on and perhaps give us some sort of inclination as to what that accountability will be about and what we can expect to see from the accountability. When we look at clause 10(2)(b), in schedule 1, we find that there is an issue as to whether any information will be provided at all, and as to whether the service will be reviewed in terms of its performance. Even if it is reviewed, there are questions as to when that information will be sought. So we may not see any review for 5 years. We may not see a review for 10 years. We may never see a review, because it is within the power of the responsible Minister and the chairperson of the college to determine whether, and when, to seek a review. It seems to me, therefore, that the Māori Television Service could go on and on, using up tens of millions of taxpayers’ dollars, without very much accountability whatsoever. Not only may the service never be called to account, but even if it is called to account, we have seen in clause 15(1)(d) that the power of the college is simply to receive the accountability documents. There is nothing there that gives the college any power in terms of any sort of direction, or any withholding of funds, or anything else like that that would give it any teeth whatsoever if it was convinced the Māori Television board was not producing as well as it should produce. I have very real concerns about that. I am concerned about all that money going into a black hole.

Madam Chairperson, I am indebted to you for giving me another call, and I give you notice that I will keep on seeking the call until the Minister does the Committee the courtesy of providing some answers. I know that you will be keen to exercise leniency in that respect, because the Minister should be compelled to answer those questions, and, if not answered, makes a mockery of the process the Committee is engaged in today. For example, Part 3 of schedule 2 relates to the appointment process for the chief executive. The Committee is discussing a process that has already been acted out, and the Minister refuses to tell the Committee today whether the provisions that we are solemnly debating have been acted upon.

In particular, I refer the Minister to the provision in clause 18(2) of schedule 2 in relation to the appointment of the chief executive, which states: “In appointing a chief executive, the board must—(a) act independently;”. That is what the schedule states. I want to know whether the Minister can assure the Committee that that test was met in the appointment process of Mr Fox. Was that an independent process in the words that are in the bill? Was it independent when Mr Fox presided over the appointment committee? Was it independent when he sat through the report back to the board? Was it independent when there was a 3:2 vote and one of those was a proxy? I simply ask the Minister to give the Committee the assurance that it is entitled to, if that is not to be a process that should draw the contempt of the public.

In relation to the appointment process I also want to ask the Minister about clause 18(3) in schedule 2, which states: “In determining or amending the terms and conditions of the appointment of the chief executive, the board must—(a) consult with the State Services Commissioner;”. I ask the Minister whether there was a proper and meaningful consultation process with the State Services Commissioner. Even the Minister of Māori Affairs should be able to answer that question. If not, why are we going to solemnly pass that schedule into law this afternoon? Will the Minister take a call to answer that question?

The documents that I have seen make it quite clear that the State Services Commissioner did have the appointment process drawn to his attention. He said that no, it was not a satisfactory process, and that he had certain concerns. In an email that I have seen, and which the Minister should have seen, the State Services Commissioner stated quite clearly that one of the problems was that the terms of reference for the appointment—the job description, if one likes—was the same job description that applied in respect of Mr Davy. Yet Mr Davy and Mr Fox could hardly be more different. The State Services Commissioner then pointed out how wrong it would be to change the job description after the board had decided who the appointee would be. He said that that would take a bit of explaining. The Minister now has a bit of explaining to do. He wants us to solemnly vote for a schedule that describes a process that he knows simply did not happen.

Then we have to ask the Minister why, if the consultation process in relation to the State Services Commissioner was inadequate, the next bit did not come into play that states that where that process does not work, then the responsible Minister should be consulted. I want the Minister to tell us whether his officials consulted him, and whether they told him the State Services Commissioner had said that that stuff did not look very flash. Did his officials tell him that? He should have been; that was in the email traffic that I have seen. What did the Minister do then? I want the Minister to tell the Committee that this afternoon. If he wants us to vote for schedule 2 and clause 18 of Part 3 of that schedule, I want to know what he told his officials to do if he was consulted because the State Services Commission consultation process was inadequate. If the Minister did tell his officials to make the appointment anyway, I want him to own up to that.

I move, That the question be now put.