What The State Keeps Hidden.

You Don’t Want To Know: In the end, our collective aversion to disreputable realities is what all states rely upon. Loyalty and obedience are guaranteed not by what the state reveals to us, but by what its servants keep hidden.

AMONG THE MANY QUESTIONS raised by the Abuse in Care inquiry is the cruel nature of the state’s responses. Among the worst examples of this official cruelty is the way in which, over many years, Crown Law impeded the timely compensation of victims. There is something deeply troubling about the state’s legal division, with its effectively inexhaustible resources (at least when compared to those available to the victims of abuse and their legal representatives) waging a war of financial attrition against these extraordinarily vulnerable citizens. What is it that makes public servants so determined to prevent the state from acknowledging liability for even its most egregious sins? Why is the state so vicious in its own defence?

The best place to start looking for answers is in the psychological realm of human solidarity and institutional pride. One has only to think of military units and the esprit de corps so crucial to their effectiveness. In a social environment where loyalty is identified as the supreme virtue, anything threatening that loyalty must be confronted and destroyed. All other virtues, such as justice, accountability and truth-telling, are deemed to be of secondary importance. Indeed, if the choice is between defending the unit and responding to one or more of these secondary considerations, then loyalty to the unit will always win.

Since almost every state traces its origins to bodies of armed men, it is hardly to be wondered at that state institutions place a similar premium on institutional loyalty. No less than an effective military unit, or army, the state is acutely vulnerable to anything likely to undermine its servants’ morale. Admitting to error, or, worse still, to criminal behaviour, raises fears that the loyalty of the state’s subjects/citizens will be undermined.

A state that admits to making one mistake raises instantly the possibility that it has made others. Its decisions, formerly absolute and unchallengeable, come to be seen as tentative, subject to revision, or even reversal. Such a state will find it increasingly difficult to impose its will. Certainly, it will lose the ability to inspire fear. And a state that is not feared runs a palpable risk of not being obeyed.

Paradoxically, it is the state’s power to enforce decisions that are in clear violation of both reason and morality that inspires the most fear in the minds of its subjects/citizens. The message conveyed is one of savagery and unresponsiveness. Like James Cameron’s Terminator: “It can’t be bargained with. It can’t be reasoned with. It doesn’t feel pity, or remorse, or fear. And it absolutely will not stop” – until it has utterly crushed its challenger/s.

That this is how the New Zealand state sees itself, or, at least, used to see itself, is revealed with particular clarity in the Arthur Allan Thomas case. No matter how much new evidence was presented; no matter how compelling the arguments in favour of Thomas’s acquittal, the Court of Appeal repeatedly upheld his convictions. Undaunted by the public’s outrage at the Court’s apparent willingness to uphold an obvious injustice, the Judiciary’s most senior representatives made it clear that they would not be persuaded to set Thomas free. The Court of Appeal simply could not be seen to have got it wrong.

To free Thomas, one part of the state was ultimately required to wage war upon another. The Executive, in the form of New Zealand’s pugnacious Prime Minister, Rob Muldoon, simply outmanoeuvred the Judiciary by convening a Royal Commission of Inquiry into the Thomas conviction. Significantly, this was not headed by a member of the New Zealand Judiciary, but by an Australian judge known for his independence of mind.

No longer protected by the courts, furious members of the New Zealand Police (which did not emerge well from the Inquiry) would regularly turn up to the Royal Commission’s hearings and hurl abuse at the Aussie interloper. The cops never did accept their culpability in the false conviction and imprisonment of Thomas, and the Court of Appeal never forgave Muldoon for effectively over-ruling its judgements. Second-guessing the New Zealand state is not a game for the faint-hearted!

But, if the injustices meted out to Arthur Allan Thomas (as well as, twenty years later, Peter Ellis) left an abiding unease in the public’s mind about the trustworthiness of its justice system, then its response to any confirmation that thousands of young New Zealanders had been terribly abused whilst in the custody and under the supervision of the New Zealand state would presumably be several orders of magnitude greater than simple “unease”. No rational citizen could ever again repose the slightest trust in the wisdom and benevolence of state institutions.

Small wonder then that so much was done for so long to prevent the awful truth about abuse in care from penetrating the public’s consciousness. The resistance of Crown Law, no matter how outrageous, was, in purely legal terms, entirely understandable. To acknowledge the state’s responsibility for decades of abusive behaviour would carry the not insignificant risk of leaving taxpayers liable for compensation amounting to billions of dollars. Drawing out the process to the maximum extent possible may not have been in the least bit compassionate – or just – but it did present itself as the most effective way of reducing the state’s liability. While the victims of its failings are all-too-mortal, the state is not. Barring bloody revolution and/or defeat in war, the state is immortal.

The other factor which the state can count on in matters such as the Abuse in Care inquiry is the degree to which so many of its citizens identify themselves with its interests. Imperfect though it may be, New Zealand’s democratic system of government makes it relatively easy for the state to present itself as the servant of the people it purportedly serves.

Like the soldiers of a regiment, many New Zealand citizens offer their country an inexhaustible quantum of loyalty. Like the regimental colours, New Zealand’s flag is seen by patriots as quasi-sacred. Whistle-blowers seeking to besmirch the honour of the nation for which it stands should expect no mercy.

Those dumfounded by the quietude of the New Zealand public’s response to the Report of the Royal Commission of Inquiry into Abuse in Care shouldn’t be. Quite apart from the fact that the Inquiry’s most disturbing evidence is buried away in the millions of words printed in the Report’s sixteen volumes, the half-century inquired into (1950-1999) is now at least a quarter-of-a-century removed from the New Zealand of today. That said, at some place, buried deep in the Kiwi Collective Conscience, lies the realisation that abuse on such a scale couldn’t have happened had generations of New Zealanders not quietly decided to look the other way.

In the end, this collective aversion to disreputable realities is what all states rely upon. It is not what the state reveals to us that guarantees our loyalty and obedience, it is what its servants keep hidden.

This essay was originally posted on The Democracy Project substack on Thursday, 8 August 2024.

The Incorrectables: Or, Why Judith Collins Won't Resign.

Justice Minister? The rest of the world will look askance at a New Zealand Cabinet Minister’s public denigration of the internationally renowned Canadian jurist, Justice Ian Binnie. Collin’s conduct condemns us as a nation of ignorant and politically reckless barbarians.

ARTHUR ALLAN THOMAS, Peter Ellis, David Bain – and these are just the cases that have seared themselves into our consciousness. How many similar miscarriages of justice have blighted the lives of innocent men and women: passing unnoticed for want of a Pat Booth, a Lynley Hood or a Joe Karam to stir the nation's conscience? What is it about the New Zealand Establishment that renders it virtually incapable of self-correction? What makes our rulers so unwilling to admit their mistakes?

 

Today it’s Judith Collins whose been caught in flagrante delicto with error. But the present Justice Minister is simply the most recent in a long line of politicians who have decided that they and the system they represent are in all respects beyond reprimand, admonition or rebuke. That in New Zealand the powers-that-be are incorrectable.

 

Is it because we’re so small? Are the hidden networks connecting those who wield political, judicial and economic power over our daily lives so hopelessly entangled; so pervasively compromised by unacknowledged conflicts of interest; that even the slightest scrutiny would instantly provoke a general collapse in public trust and confidence? Is that the reason we constantly emerge from international comparisons as the least corrupt country on the planet? Not because we are incorruptible, but because by the general (if unspoken) agreement of the elites, incidents which in other jurisdictions would inevitably attract accusations of corruption and malfeasance are in New Zealand consistently characterised as something else?

 

There’s no doubt that the New Zealand Establishment has become extraordinarily proficient at protecting itself. Just consider the three cases already referred to: the Thomas Case, the Ellis Case and the Bain Case. What was the common factor which ensured that Thomas and Bain were vindicated? What is Peter Ellis still waiting for? The answer, of course, is a foreign pair of eyes. Thomas was rescued by Rob Muldoon’s populist instincts. Recognising an obvious Establishment stitch-up, he initiated a Royal Commission of Inquiry headed by an Australian judge. Bain was saved by the five pairs of British eyes assigned to his case by the Privy Council in London. Peter Ellis’s great misfortune is that those responsible for reviewing his case have all been senior members of the New Zealand judiciary.

 

It should never be forgotten that in all of these cases the New Zealand Court of Appeal upheld the wrongful conviction of innocent men. Evidentiary insecurity – in all cases due to “lapses” in the gathering and retention of crucial forensic material and/or testimony – was never considered by the Court as being of sufficient weight to vacate the earlier verdicts. Not even when, in the Ellis case, the evidence was patently absurd and obviously untrue.

 

And now we have the Report of Justice Ian Binnie – a Canadian jurist with a formidable international reputation – who, like so many other foreign judges, has studied the evidence used to convict a New Zealand citizen and unequivocally rejected it as unpersuasive of anything except that person’s innocence. In arriving at his conclusions he has had a few highly critical things to say about the way the New Zealand Police conducted their investigations. And, by implication, the New Zealand Court of Appeal is criticised for its failure to spot what was so clear to both himself and UK Privy Council.

 

Asked by the then Justice Minister, Simon Power, to help the Cabinet to decide whether or not to compensate David Bain for the 13 years he spent in jail, Justice Binnie could have had no inkling of the insults to which Power’s successor, Judith Collins would subject him.

 

Collin’s behaviour is explicable only in terms of the New Zealand Establishment’s blank refusal to be corrected. Upon receiving Justice Binnie’s report her first instinct was to pass it on to the Solicitor General and the Police. The Canadian judge had dared to suggest that they had erred – a conclusion which was plainly false since the New Zealand authorities are incapable of error. In spite of passing on the report to parties which were, in effect, Bain’s opponents, the Justice Minister did not think it proper to provide a copy to the legal representatives of the man most directly involved. Not content with this extraordinary breach of the basic principles of fairness, she then commissioned a former New Zealand High Court judge, Robert Fisher QC, to “peer review” the former Canadian Supreme Court Judge’s findings.

 

The Minister’s extraordinary behaviour was then compounded by her decision to unleash a campaign of public denigration against Justice Binnie. The eminent jurist was painted as an incompetent assessor of evidence and accused of having a poor understanding of “New Zealand Law”. In a chilling example of ruthless politicking, Collins withheld Justice Binnie’s report until Fisher QC’s critique of its findings could be released simultaneously. In this way Bain’s opponents would have a ready counter to Justice Binnie’s conclusions.

 

The rest of the world will look askance at a New Zealand Cabinet Minister’s public denigration of an internationally renowned jurist. Collins’ conduct condemns us as a nation of ignorant and politically reckless barbarians. Her seeming disregard for the ability of future New Zealand governments to access expert international legal advice renders her unfit to hold the office of Justice Minister, and her failure to honour the most basic requirements of natural justice should attract the strong censure of the New Zealand Law Society.

 

Will it happen? Probably not. Judith Collins’ behaviour is entirely consistent with the New Zealand Establishment’s “incorrectable” traditions. The Prime Minister has already cast the cloak of his protection over her shoulders, and that part of the population which prefers to believe that its political, judicial and economic masters are as blameless and honourable as they are disinterested and incorruptible will cheer her to the echo.

 

Better by far that ten innocent people remain incarcerated than the corrupt New Zealand Establishment which wrongfully convicted them ever be held accountable.

 

This posting is exclusive to the Bowalley Road blogsite.