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MP Stuart Nash wearing a suit and pasted over a red and blue background
Stuart Nash (Image: Bianca Cross)

PoliticsMarch 16, 2023

What Stuart Nash did wrong – and why he had to go

MP Stuart Nash wearing a suit and pasted over a red and blue background
Stuart Nash (Image: Bianca Cross)

A minister phoning the police commissioner to talk about a court sentence – and then boasting about it on radio – goes straight to the heart of the rule of law, writes Graeme Edgeler.

Stuart Nash has resigned from his portfolio as minister of police following public statements that he had spoken to the commissioner of police to ask whether police would be appealing a sentence. There are suggestions this was about interfering with a prosecution, something ministers have to avoid doing. But even if there was no actual interference, the propriety of a minister making the call in the first place, and then going on radio to state he had, while also commenting about a particular court case, raises concerns about judgment. Nash remains in cabinet as the minister of economic development, forestry and oceans and fisheries.

Why is police independence important?

For the most part, the role of those people working in the public service is to give effect to decisions taken by the government. The police are a very clear exception to this, in both the Policing Act and the Cabinet Manual.

This is long-standing, and arises for all the obvious reasons: it’s important for the rule of law that those in political power cannot direct prosecutions away from their friends and toward their opponents. It’s important that the public can have confidence that the investigation and prosecution of offending is independent, so that people will be willing to assist police with their inquiries and to take part. In countries where police aren’t viewed as impartial, respect for the rule of law tends to break down.

Similar concerns apply to the courts, which Nash also took the opportunity to pass comment on. The existence of independent courts plays a beneficial role across society, even in things as varied as the willingness of others to invest in New Zealand businesses. If judges take their orders from the government, or even if the government is seen as trying to apply pressure to judges, public respect for the institutions may suffer.

It seems likely there was no actual interference here. Would that have made a difference?

The perception of interference is generally what we’re concerned about, because the alternative is much more serious. Actual interference in a prosecution might affect whether the courts would even be willing to let a prosecution continue. I can’t think of a case of this ever happening in New Zealand, but this has been known in the US: interference by the Nixon White House in the prosecution of Daniel Ellsberg for espionage around the Pentagon Papers was considered so egregious, it formed part of the reason a judge threw out the case.

Vigilance around interactions like those here between a government minister and the commissioner of police hopefully stops us getting even close to that.

Is the commissioner of police even involved in charging decisions?

No. Initial charging decisions are made by the officer in charge of a case. They may get advice from the police legal section or even a crown solicitor, but it’s up to the cop. More serious cases will have more senior officers in charge, and they can discuss it with others, but it’s on them. Prosecutors can advise if asked, and drop or change the charges later if they take responsibility for the prosecution, but at the start, whoever is investigating determines whether to charge.

For really high-profile cases (think the Christchurch terror attack), the commissioner or someone else senior may be apprised when a decision is made (so they can answer/decline to answer media questions at a press conference), but that’s for information. They aren’t making the decision.

Stuart Nash (Photo: Hagen Hopkins/Getty Images)

Does the same rule apply to appeal decisions?

Yes, but also no. The commissioner still isn’t involved, but police don’t really make the decision either, because appeal decisions are made at Crown Law. Whoever was responsible for the prosecution at that point (which might be the police legal section, or possibly a Crown prosecutor by now) may decide it is a good idea to appeal, and they will refer the matter to Crown Law to consider. They make the decision, not police, and not even Crown prosecutors. Prosecution appeals are generally only brought if there is a particular public interest in establishing something about the law.

So, Stuart Nash resigned because he asked someone with no power to do something that person couldn’t do?

Asking the police commissioner about an ongoing case (and potentially interfering with a prosecution) wasn’t the only thing Nash did. It was merely the first thing he did. Nash also: publicly commented (more than once) on the result of court sentencing, something the Cabinet Manual prohibits, and Nash said that judges “need to read the room on this”, which adds a risk not only to the independence of police, but also the independence of courts.

Ministers exercise the powers of the Crown. They should not be telling judges how to rule, least of all in cases where the Crown is one of the parties.

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Nash wasn’t minister of police at the time of the phone call – does that make a difference?

No.

Not least because he was minister of police when he made the comments on radio, but also because under New Zealand’s constitutional system of cabinet government, every minister can act as any other minister. The Cabinet Manual bans all ministers from interfering with prosecutions and all ministers from publicly commenting on sentences or interfering with court cases.

Nash was a minister at the time, and he was a minister when he spoke on the radio about what he had done and how he still felt about the decision.

Why has he only gone from the police portfolio then?

The Cabinet Manual is a set of guidelines for ministers. It doesn’t provide for an automatic loss of minister office for any breach. It’s up to the prime minister to decide whether a breach is serious enough for any punishment, and whether that’s enough is something voters can take into account.

Is there anything more we need to know about?

We know a little about the case, but it would be good to know whether police asked Crown Law for permission to appeal.

Also, one of things that should help protect police independence is the commissioner of police. Did the commissioner tell the minister to stick to his knitting and not to make such comments again? Presumably not, given Nash went on radio and boasted? Did the commissioner alert the Cabinet Office that it had happened? And if not, should steps be taken to make sure that should this happen again, we don’t have to rely on a live radio confession for the issue to be resolved?


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Invercargill mayor Nobby Clark has refused calls to apologise for using an offensive slur (Photo: Stewart Sowman-Lund, additional design Archi Banal)
Invercargill mayor Nobby Clark has refused calls to apologise for using an offensive slur (Photo: Stewart Sowman-Lund, additional design Archi Banal)

PoliticsMarch 15, 2023

Behind the scenes at council after the mayor uses the n-word

Invercargill mayor Nobby Clark has refused calls to apologise for using an offensive slur (Photo: Stewart Sowman-Lund, additional design Archi Banal)
Invercargill mayor Nobby Clark has refused calls to apologise for using an offensive slur (Photo: Stewart Sowman-Lund, additional design Archi Banal)

Documents released to The Spinoff reveal Invercargill mayor Nobby Clark was provided with a draft apology by his own council officials after using a racial slur during a recent speech – but chose to ignore it. Stewart Sowman-Lund reports.

Invercargill’s mayor was told by his own staff that he should apologise for using the “n-word” during a recent speech, but declined to do so. That’s despite being warned his speech was creating a negative “perception” of the Invercargill Council.

Documents released to The Spinoff under the Local Government Official Information and Meetings Act reveal Nobby Clark was even provided with a draft apology that he could use, but instead settled for sending an internal message to council staff doubling down on his decision to use the offensive slur.

Clark used the word during a speech delivered at an Arts Foundation and Creative NZ event on March 7. He was commenting on the balance between freedom of speech and hate speech, using a book – and subsequent publicly funded stage show – by award-winning poet Tusiata Avia as the basis for his statements.

“Does poetic expression override some of our societal norms?” questioned Clark, before answering his own question: “If we have art and poetry that uses the word ‘queer’, ’n*****’, ‘fuck the bitch’, which you’ve heard recently – is that beyond our tolerance?”

The comments prompted widespread condemnation, including from Race Relations Commissioner Meng Foon and Green Party co-leader Marama Davidson (in an email obtained by The Spinoff, Clark incorrectly refers to Davidson as the “co chair of te party Maori [sic]” and says her being “aghast” was a “badge of honour”).

Clark fronted several interviews to defend his comments – and repeated the offensive slur during his media round. “I would never refer to any situation as being a n*****. I absolutely find it abhorrent [sic],” Clark told Newshub.

“I wasn’t using those words as my words. I was reflecting that they’d been in the media and been in the art space in recent times, and I felt uncomfortable about that and I wanted to talk with them.”

The Spinoff has seen dozens of emails to and from the mayor regarding his speech. While some further criticised him – including one correspondent who said the mayor had “single handedly reaffirmed Invercargill’s reputation as the Asshole of the World” and another who called him an “embarrassment” – many emails were sent in support of the mayor’s offensive comments. 

Clark tended to reply to the messages of support, often stating “I fear nobody (except Karen at home)” or writing that “evil only prevails when good men stay silent”.

Nobby Clark, mayor of Invercargill. (Photo: Let’s Go Invercargill, Image Design: Archi Banal)

But on the same day the controversy made national headlines, after first being reported via The Spinoff, the mayor was told he should consider a public apology.

“In regards to the media stories today about your speech at the All in for Arts event yesterday, my advice is that you issue an apology statement,” Invercargill Council’s strategic communications manager told the mayor in an email on the evening of March 8. 

“This is the perfect example of when perception is more important than intention, and the media stories do not reflect positively on Council or our relationship with those in the community.”

The call to apologise was, according to the emails, backed by the council’s acting chief executive Michael Day.    

An example apology was provided to Clark. It read: “I apologise for the words I used in my speech at the Art Foundation event in Invercargill on Tuesday. My intention was to start a conversation around poetic expression, but I now know that my use of these words was inappropriate. Invercargill City Council and I profoundly support the arts community and have great respect for the work they do.”

Less than 10 minutes after this email was sent, Clark responded saying he would not be issuing any form of apology. “I stand by my comments that was a reflection of what has recently been said by others under ‘artistic expression or artistic licence’ and how that would fit with a future gallery owner like ICC [sic],” he wrote.

A few minutes later, Clark emailed the council’s chief executive and admonished him for having his concerns passed on by a staff member. “If you have concerns about my presentation which I gave you a heads up on, that concern from you should not be relayed via your staff,” he wrote.

Day responded that he did not have concerns and would speak with the mayor in person, before sending a follow-up email to clarify his position. “I do not support the use of those words, but I understand you wanted to raise the issue. I accept you do not want to apologise but I have received a number of concerns from staff so I will send a message to staff today about the issue.”

Earlier in the day, Clark had emailed councillors with similar comments to those he made publicly in the media. He said that while he found the words he used “abhorrent” they were “recent quoted references in [the] artist’s setting”.

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It took until the afternoon of March 10, two days later, for the council chief executive to issue an internal statement to all council staff acknowledging the controversy and the subsequent media attention. “Some concerns have been raised with me by our staff and I wanted to acknowledge these,” he wrote. “Our elected members are often asked to comment and provide their opinion on issues in the community, but it is important to note that these views do not represent those within the organisation.”

He added: “As an organisation, we are guided by our Compass values of Responsibility, Respect, Positivity and Above and Beyond, and this means that we respect and value all people and cultures. I do not support the use of racial slurs in any context and remind anyone who may need it, that our Raise Workplace Wellbeing employee assistance services are available.”

In an interview with The Spinoff during his election campaign last year, Clark claimed he was “colour blind” to issues of race. “Is there some advantage to being in a community that’s split on culture? ‘Cause that’s racism. I don’t see that,” Clark said.

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