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New Ministers Sworn In After National Party Cabinet Reshuffle

PoliticsMay 15, 2017

What does the law say about Alfred Ngaro’s dumbass threats?

New Ministers Sworn In After National Party Cabinet Reshuffle

Lawyer Andrew Geddis looks into what should happen if associate housing minister Alfred Ngaro were ever to actually do what he threatened over the weekend.

Given the speeches at the National Party’s Auckland regional conference, New Zealand’s housing situation/challenge/imbroglio/anything-but-a-crisis appears to be the number one problem on the Government’s radar this election year.

That’s probably not so surprising. Stories about people living in cars not just in Auckland but in our provinces, too, do not reflect the New Zealand we fondly like to imagine we inhabit. And then there’s the rage of the renters-for-life who find the promise of clambering up the property ladder no longer applies to them.

With nine years in power behind them, these housing matters really are National’s problem (no matter how much Nick Smith might try to spin the line that “it was worse under Labour”). With the benefit of hindsight, they allowed the issue to fester until it burst out over the media in ways they can no longer control. In part, that’s because housing probably is something that National is ideologically and tempermentally unsuited to dealing with. After all, the market knows best how to deal with issues of supply and demand; while individuals make their own life choices that then are reflected in their material circumstances. Right?

Not that National has been totally laissez faire on the issue; indeed, every second week seems to bring a new announcement of action. However, housing issues are like a fully laden supertanker; once they get moving, it takes a lot of time to alter course. While the captain may assure you he’s turning just as fast as he can, if you’re bobbing about in his path you aren’t going to be overly happy with the state of affairs.

So it’s quite understandable why National is both annoyed that it isn’t getting the respect and credit it thinks it deserves on the housing front and anxious that the perception it isn’t doing enough may cost it come September. That annoyance seemed to bubble over in the newly-minted associate housing minister Alfred Ngaro’s speech to National Party faithful in the weekend

In it, Ngaro noted that (now Labour Party candidate) Willie Jackson:

has put another application for another Kura that is a Charter School. Their [Manukau Urban Māori Authority] has taken a contract with Whānau Ora.

Fair enough – Jackson’s apparent comfortableness with policies that are anathema to his now Labour Party is a point that begs to be hammered again and again by National.

However, Ngaro then went on to say:

We are not happy about people taking with one hand and throwing with the other. Do not play politics with us. If you get up on the campaign trail and start bagging us, then all the things you are doing are off the table. They will not happen.

There is a generous interpretation that could be given to this statement. Ngaro might have clumsily been trying to remind those participating in government initiatives whilst knocking the Government that if National isn’t in power after September, the initiatives they are a part of may not be either.

But that’s not the natural interpretation of the words used, which appear to explicitly link a future denial of access to government programmes with “play[ing] politics with us”. Nor is it the spin being given to Ngaro’s speech by professional journalists.

Vernon Small called it a “suggestion that providers will be gagged or that their funding is contingent on them toeing the governing party line”. Tim Murphy described the speech as “a presentation laced with political menace against those who question National’s performance on housing”.

That’s simply not acceptable in New Zealand’s governing arrangements. Having the ruling party threaten to “weaponise” access to governmental programmes and resources against their critics is beyond the pale, even for the rough and tumble of an election year. So it came as no surprise that once Ngaro’s ill-chosen words became public, he quickly rushed out a statement (which you can read here, with helpful annotations from The Spinoff’s own Toby Manhire):

My comments about the Government’s work in social housing and some of our partners were a bit naive, poorly worded and I absolutely regret what I said.

This morning Bill English told RNZ’s Morning Report that Ngaro was wrong to say what he did and he would be prepared to have Ngaro’s past ministerial decisions audited to ensure there was no partisan political element to them. Which is a pretty humiliating public slap around the head for a minister starting his career.

What no-one seems to have noted, however, is that Ngaro’s apparent threat isn’t just terrible from a political morality standpoint. It would be flat out illegal to do what he is suggesting.

Like all actions of the executive branch of government, the decision to grant charter school status or distribute Whānau Ora contracts is subject to the New Zealand Bill of Rights Act 1990. And that legislation includes the following guaranteed right:

19: Freedom from discrimination

(1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.

The “grounds of discrimination” included in this right then includes:

political opinion, which includes the lack of a particular political opinion or any political opinion:

So if the Government ever were to retaliate against some critical individual or group by refusing it access to a government programme, or blackballing it from future contracts, it would be acting not just wrongly but unlawfully too. Which rather saps the venom from Ngaro’s threat, because I think that there’s no way it could be carried out in the open way needed to send the necessary message.

Furthermore, I can’t help but wonder if Ngaro has actually all but guaranteed the Manukau Urban Māori Authority’s success in its future applications to participate in government programmes. Because if it does get turned down, there’s a good chance that it would head off to court to challenge that refusal on the basis that it was motivated by unlawful discrimination.

And as Donald Trump currently is discovering in the United States, tough words spoken on the campaign trail do not sound quite so good when government lawyers have to defend them before judges.

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