Franks Stephen: Maori Television Service Bill — In Committee 
Franks Stephen: Maori Television Service Bill — In Committee 
[Volume:608;Page:5109] 
STEPHEN FRANKS (ACT NZ) 
: 
 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 Maori 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 Maori 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 Maori 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 Maori 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 Maori. We will just throw them into the air and no one will ask again until people are embroiled in litigation. Pakeha all over New Zealand will be saying ‘Maori 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 Maori 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 Maori 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 Maoridom 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.