The “Comments” section of this blog has recently been a subject of discussion. Some commentators paint the decision to turn off the “Comments” facility as a signal that I want to dodge criticism and stifle debate. That view is not true. The section was turned off because the blog was being inundated with American advertising spam. We were spending hours deleting pleas to buy American cars, life insurance and medical products.

In return for closing the “Comments” section I published a promise that any email sent to me at nzdaw@yahoo.co.nz, asking to be published, as long as it obeyed acceptable decency standards in terms of profanity and the like, would be published in the main body of the blog. And that is what has happened. If anyone wants to comment on a swimming subject, they only need to put pen to paper, send it to me and it will be posted on the site. The author can be anonymous or named. I do not mind free speech. I welcome views that are different to mine. Debate is good for all of us.

Getting the balance right can be difficult. On the one hand Swimming New Zealand (SNZ) and its agents complain about the “Comments” section being turned off. On the other hand there are those who have had their opinions published and write to me asking for the posts to be taken down. If you write to me about a swimming topic, unless I am told it is “off the record”, it will be published. My inclination is always to publish. Fresh air is the best disinfectant.

One of my serious complaints about the SNZ constitution introduced in 2011 was the swing towards secrecy. For example before 2011 SNZ published the minutes of their Board meetings. The new Constitution saw an end to that democratic feature. It is ironic that SNZ and its agents are the leading critics of the Swimwatch decision to close the “Comments” section. Every email they want published complains about the same thing. They clearly see it as an attack on their freedom of speech. The implication is that David Wright wants to broadcast his opinions but deny everyone else the same opportunity.

Their words ring pretty hollow when SNZ’s website does not allow comments. They have an extensive news section. Currently it displays nine stories about subjects as diverse as learn to swim, age group championships, world championships and the Taupo open water championship. I happen to know that there were aspects of the open water championship that caused great concern. But could those concerns be published on a SNZ comments section on their website? Certainly not, no way, never. Have any of my comments been published on the SNZ website? Certainly not, no way, never. Have SNZ’s emails to me been published on Swimwatch? Always. Hard to argue with those facts.

It is typical of those who run SNZ. Throw insults at opinion writers like me but suffocate free speech in their own backyard. They should read the Sermon on the Mount. “Thou hypocrite, first cast out the beam out of thine own eye.”

It is reassuring to know that Swimwatch is not alone. I am not alone. In recent months there has been a noticeable increase in readership. The site now has close to 1500 readers a week. Some readers are hugely influential in the world of swimming. They might not always agree with me but that is a good thing. No one ever argued I was always right. But there are opinion leaders reading Swimwatch who have led the sport forward in ways SNZ and its agents never have and never will.

Here are two comments sent to me recently that illustrate what I mean.

“If the definition of disagreement or the verb ‘to disagree’ is vendetta, then we can only assume that this federation is working on its own ‘vendetta’ with any members who disagree with the way its running its affairs and the sport of swimming. Here is what a critic of a federation that has, unquestionably, deserved criticism, has faced since he spoke out in support of a Syrian refugee who swims well enough and trains hard enough to merit a place in the Olympic refugees team, provided he is supported, in official word and signature only (at no cost), by the relevant sports authorities in the nation that accepted his application for asylum. Here’s David Wright’s latest on the matter … complete with the view that ‘My opinion might not be to everyone’s liking but its suppression is not the answer’ and a very sound reason why a comments section is closed (just as it is on many federations blogs, facebook communities and forums the wold [sic] of swimming over … )”

And a second comment.

“Oh gosh, so familiar. That is exactly what I was accused of – a vendetta – for raising issues of concern and then asking again when there was no proper response. The resort of those who have no actual reasoned response to make and thus have to resort to abuse.”

The real issue is how the sport of swimming treats a refugee; how New Zealand as a country treats a refugee. Some lawyer trying to beat up on David Wright is not important. The Swimming Federation bitching about not being able to say what they like on the Swimwatch blog is even less important. But how the lawyer and the Federation deal with Eyad is very serious. That speaks to our heart. That throws light on our soul. And it is that test that SNZ has failed.

Swimwatch readers will be aware that Eyad’s application to join the International Olympic Committee’s (IOC) refugee program has been of great concern. Not everyone agrees.

Take for example an email received recently. You are able to read the email in a post prior to this one. It makes seven points and demands. It is important to address these. In each case I have headed the section with a quote from the email.

“fuel a personal vendetta against my client”

I reject the accusation and implications of the term “personal vendetta”. Views expressed on Swimwatch are personal opinions designed to improve the organisation by drawing attention to events that I believe are shortcomings in its administration. I am not alone. For example:

1. Sport NZ has financed three government reviews into the administration of SNZ (Sweetenham, Ineson and Moller). All three found failings and recommended improvements. They were not on a “personal vendetta” and neither am I.
2. Since the publication of the last of those reviews SNZ income is down, government funding is down, membership is down and international results are down. There is much to be concerned about.

Pointing out that concern is not a “personal vendetta”. It would be negligent not to examine the reasons. And certainly the intention of that examination is only for the benefit of swimming.

One such meaning is “legal right or involvement”. It should not be unsurprising to you that a lawyer should use the word in this way.

“Not be unsurprising” – the use of a double negative makes this difficult to understand. Some English revision is required. What he means is “not surprising” or just “unsurprising”. But in spite of the language shortcomings I will try.

So what the email is arguing is that the meaning of “no interest” is better understood, not as a lack of concern, but as a “legal right or involvement”. In other words the email is saying the sentence should be read as;

MY CLIENT HAS NO “LEGAL RIGHT OR INVOLVEMENT” IN THE PROGRAMME, MR MASOUD, OR MR WRIGHT,

The claim that this meaning is what SNZ meant is difficult to believe. Why? Because it cannot possibly be true. When I first read the SNZ email I did consider whether it had the meaning that is now being claimed. However I dismissed that thought for the following reasons.

The claim of “no legal involvement” is beyond belief. It is patiently ridiculous. Why would SNZ make a claim of “no legal involvement” when it accepts our $100 membership payments, when it openly accepts both of us into about 30 of its competitions each year including national championships run by SNZ and only open to swimmers and coaches that do have a “legal involvement” with SNZ and when SNZ sends me emails several times a month with coaching information?

Of course SNZ has the legal involvement with both Eyad and me. To claim that “no legal involvement” is SNZ’s intended meaning of “no interest” is simply not true. SNZ’s legal involvement with both of us is so obvious that the only conclusion possible is that the meaning of no interest is no care or concern. The email is playing with words in a failed effort to escape responsibility for the intent of those words. .

I also reject the accusation of “cherry picking”. The “lack of interest” comment is a paragraph on its own and is central to the treatment I believe Eyad has received. To question its use is not “cherry picking”.

And finally if SNZ has no interest in the IOC refugee programme and no involvement with Eyad why did a senior member of SNZ staff stop Eyad this week and propose a meeting with Eyad, on his own, to discuss his application to join the refugee team? That hardly seems like the “no involvement” described in this email. On the contrary it suggests SNZ is responding to my pressure. Contrary to the email it appears SNZ staff are engaged in Eyad’s application. The only difference is SNZ prefers a “secret” meeting rather than the Human Rights procedure I was proposing.

Your publication: Breaches the duty of confidence which you owed to me and the Commission as part of the Human Rights Commission’s dispute resolution process.

I do not agree with this opinion. The Human Rights Commission’s dispute resolution process began on the 23 November 2018 when a letter was sent to SNZ explaining the dispute and asking if SNZ wanted to enter into mediation. The dispute resolution process concluded three months later, on the 7 March 2019, when the Human Rights Commission wrote their closure letter that said

“I am unable to progress your complaint I have no other option than to close the Commission’s file. Swimming New Zealand declined the opportunity to participate in the Commissions’ Dispute Resolution Service.”

Through all this process, from 23 November to 7 March I maintained the confidentiality required by the Commission.

However, given that SNZ refused the Commission’s offer of mediation and therefore nothing I have said relates to “a statement, admission, or document created or made for the purposes of a dispute resolution meeting.” The section of the act that refers to confidentiality is called, “Confidentiality of information disclosed at dispute resolution meeting”. There was no meeting.

In addition the confidentiality section of the act specifically refers to “every person who attends a dispute resolution meeting”. SNZ refused that meeting which means of course I was never a person attending a disputes resolution meeting.

In other words the confidentiality claims made in the SNZ email are suspect. That view is compounded by what happened next.

In spite of SNZ’s refusal to take part in a HRC dispute resolution meeting a week later SNZ approaching Eyad proposing a clandestine, behind closed doors, offer of mediation. I had no option then but to approach the Human Rights Tribunal (effectively a human rights court) asking them to rule on the case. I did this on the 18 March 2019 in an email to the Tribunal’s lawyers, the Office of Human Rights Proceedings. A day later on 19 March 2019 their office replied and said;

“Thank you for your completed application form. We have asked the Human Rights Commission for copies of documents from your complaint file.”

In respect to the accusation of breaching confidentiality those dates are important. Here they are again.

1. Commission case opened 23 November 2018
2. Commission case closed after SNZ refused to participate 7 March 2019
3. Tribunal case application opened 18 March 2019.
4. The comments SNZ is objecting to did not appear on Swimwatch until 11 days later, on the 29 March 2019.

This is important. Why? Because when I first raised the complaint with the Commission on the 23 November 2018 I was told this by the Commission.

“If Swimming NZ declined to participate, Eyad could take a case to the Human Rights Review Tribunal (HRRT).  The HRRT is like a Court, the outcome is on the public record.”

I took this to mean what it said – if Swimming NZ declined to participate, and they did, the mediation process stopped along with it any confidentiality restriction. If our decision was to proceed to the Human Rights Tribunal, and it was, the process at that point was “on the public record”. It should be noted that “the outcome” in all court cases includes two sections, the process and the decision.

The rules regarding confidentiality change significantly when a case reaches the Tribunal stage. The act says the Tribunal “shall be held in public” unless there is “an order prohibiting the publication of any report or account of the evidence or other proceedings in any proceedings before it”.  No order has been made.

Through the Tribunal process I am therefore free to discuss the circumstances of my complaint as I would be “like a Court”. Because my discussion began only after the option of Commission mediation had been refused by SNZ and after Tribunal negotiations had begun I do not agree that any confidentiality has been breached.

And certainly “litigation privilege” does not apply in this case. That form of confidentiality only applies when a “document(s) come into existence when litigation was already under way”. SNZ’s document was refusing mediation – hardly a case of litigation being “already under way”.

On their website the Tribunal posts “the outcome” of many cases. In all cases their “outcome” description includes the arguments advanced and the decisions reached. Now that the Tribunal process has begun I have taken part in allowable discussion.

Finally, I also question the logic of the argument that says any comment by me is a breach of the duty of confidence which I owed to SNZ and the Commission and yet SNZ can demand Swimwatch post SNZ’s comments whenever they want. According to SNZ that is perfectly acceptable and inside the rules. Whenever SNZ want something posted the duty of confidence to the Commission doesn’t seem to matter. When SNZ talk about the issues, it’s fine to demand, with threats, that they are posted on Swimwatch. When I post a comment it’s called a breach of confidentiality. To me that looks like a double standard.

“you remove your post about me”

Done. It should be noted however that the post has been removed from the blogs displayed page for some time. In addition the post was an opinion piece written for the sole purpose of expressing my opinion on an important and relevant topic. My opinion might not be to everyone’s liking but its suppression is not the answer. Certainly I am prepared to support and post on Swimwatch any counter views. My willingness to do that has been explained to SNZ on Swimwatch on several occasions.

I note that the SNZ’s lawyer’s email complains about the Swimwatch comments section being closed. As has also been published on Swimwatch this is to avoid American sourced advertising spam that was beginning to suffocate the blog. Every SNZ email sent to me about a Swimwatch issue has been published in full, as has this email.

“and post this reply in full to your website”

Done

 “without any accompanying narrative”

No accompanying narrative was included with the email post. However I will not agree to a restriction on discussing the implications of this case. That is a bizarre demand way out of line with the principle of free speech. It is unacceptable to demand the publication of SNZ’s views on a topical event but try to deny me the right of publishing a reply.

The attempt to divert attention away from the real issue of Eyad’s application to join the IOC refugee team and onto the meaning of words and confidentiality is an effort at deflection that should be recognized and strongly resisted. As an immigrant SNZ’s lawyer should know better. The reality is that SNZ should be occupied with making life better for a Syrian refugee. It has long been my concern that SNZ spends far too much effort looking after itself instead of protecting the careers of its members.

You don’t believe me? Well just look at the way this conversation has been turned from an effort to improve the life of a Syrian refugee into a whine about SNZ. Making SNZ the victim is an art form. And because of that I will not agree to the effort to suppress free speech and honest opinion. The prospects of a New Zealand refugee are too important for that.

your apology to me for your previous post

Sorry

Conclusion

More important than this post is the news that the petition asking SNZ and the NZOC to reconsider their decision to reject Eyad’s refugee application has passed 800 signatures. That is a huge body of support – 15% of SNZ’s competitive swimming membership. Thank you, because that’s what’s important.

https://www.change.org/p/david-wright-syrian-refugee-needs-your-help/u/24354500

I received an email recently from a titan of the 1960s Hawke’s Bay/Poverty Bay era, Quentin Tod. This is what his email said:

“Hi David: This is that Tod (with one D) bugger who apparently kicked you in the face in Lake Taupo. Sorry about that! I was through Taupo a few years back and found I still held the record at that point — one hour four minutes. That was some 40 years after I clocked that time.”

I must tell you, Quentin Tod is certainly worth a mention in Swimwatch. So is Greg Meade actually. But he will need to wait for another occasion.

Quentin Tod came from the select rural Hawke’s Bay village of Havelock North. Better than that, his home was well up the fashionable slopes of Te Mata Peak. Status and your Te Mata Peak elevation were pretty closely linked in those days. Quentin was different from most swimmers; slightly more serious, more reserved perhaps, certainly better mannered, even at that young age, almost distinguished. During one Hawke’s Bay/Poverty Bay Championship I stayed at his home. I remember it as a comfortable bungalow; a bit like an old jersey, warm, relaxing and secure.

In those days the Sunday of the Championship weekend was set aside for the open water race around Napier Harbour. Quentin was a long distance expert. I think he won a New Zealand Open Water championship and also placed first in the prestigious Wanganui Bridge to Bridge swim. In the late 1960s and early 1970s long distance races in Hawke’s Bay were a battle between Quentin Tod and another New Zealand open water champion, Alan Christie. Hawke’s Bay’s finest ruled the New Zealand open water swimming world.

Anyway back to my weekend at the Tod home. The family had devised a plan for the Sunday of the Championship weekend. Quentin would swim in the hugely popular cross Lake Taupo event in the morning, and take on Alan Christie in the Napier Port Championship swim in the afternoon. I thought they were quite mad. I did however accept their invitation to go to Taupo to watch Quentin swim across the lake. But, part way to Taupo, I began to put together a plan of my own. What say I entered the Taupo event and swam across right up close behind Quentin; using his slipstream to aid my progress. Surely I could sprint past him in the final few meters? Perhaps I could win the race.

And almost – that’s what happened. I carefully positioned myself behind the speeding Quentin Tod. In no time at all we were well ahead of the pack and, as planned, I was cruising along comfortably in Quentin’s wake. The whole thing was no effort at all; a breeze. This was going to be easy. Best of all the hard working Quentin was blissfully unaware of the free ride he was providing. And then the mistake; the fatal error. I got too close and touched Quentin’s foot.

Showing all his open water skills Quentin paused and then kicked as hard as he could. I was aware of his heel sinking into my nose. I felt the blood begin to flow. I saw the water turn red. I knew Quentin was sprinting and I was losing contact. Fifteen minutes later I came ashore in second place to be welcomed by a concerned Quentin Tod. “I’m really sorry” he said, “If I’d known it was you I’d have never kicked as hard”.

Of course I didn’t believe him. Perhaps I knew for certain that if some bugger had been trying to steal a free ride from me across Lake Taupo, the least he could expect was a kick in the nose. But, if Quentin happens to be reading this story, I’m still positive I would have out-sprinted the New Zealand Open Water Champion, if only I hadn’t touched his foot. And then I could have bored the national and Florida State champion’s I’ve coached, Toni Jeffs, Jane Copland, Nichola Chellingworth, Rhi Jeffrey, Jessica Marsden, Andrew Meeder and Joe Skuba  with the story of how I beat Quentin Tod across Lake Taupo. But I guess second will have to do. “If onlys” don’t seem to count.

Anyway we drove back to Hawke’s Bay the proud owners of the first and second place medals. At the time our prizes were most generous. I think Quentin got a TV set and a gold towel with “Champion” printed on one side. I also got something electrical and a red towel with “Second Place” printed on mine.  But Quentin’s day was far from done. In the early afternoon he lined up at the start of the Hawke’s Bay/Poverty Bay Open Water Championship; his second five kilometre race in a day. In Taupo he only had me to contend with, but now Alan Christie was in the field. This challenge was made of sterner stuff. But Quentin was prepared. An hour or so later he climbed out of Napier’s harbour in first place; clearly very tired by also well pleased with a good days work. I was hugely impressed. I’m not surprised that his one hour and four minute record swim across the lake stood as the record for the event for forty years. Quentin Tod was a class act – and I’m certain still is.

Michael Smyth <michael@approachablelawyer.com>

To:‘David Wright’

Cc:‘Peter Jackson’

‎3‎ ‎Apr at ‎11‎:‎40‎ ‎AM

Dear Mr Wright,

Thank you for your email.

There are two matters that I shall address with you:

1. The allegation that the sentence which you have cherry picked from my letter to the Human Rights Commission is of a racist character.
2. The unlawful publication of that sentence on your website www.swimwatch.net over the weekend.

“No interest” comment

You have deliberately cherry picked a sentence from my letter and then imparted to that sentence a meaning which simply does not exist by placing it out of context. The meaning which you have given to that sentence is designed to suit your personal narrative and fuel a personal vendetta against my client – a strategy which seems to be the modus operandi of your website.

The purpose of my letter to the Human Rights Commission was to convey to the Commission that my client is not involved in the assessment of applications to the Olympic Solidarity programme. In New Zealand, those applications are handled by the NZOC. Both my letter and the letter from the NZOC made that perfectly clear to you.

The comment that my client has “no interest” in the programme or the application made by you on behalf of your swimmer, was to reinforce that my client is not involved in the running or management of the programme. The word “interest” has several meanings within the English language. One such meaning is “legal right or involvement”. It should not be unsurprising to you that a lawyer should use the word in this way. Following receipt of my letter the Human Rights Commission closed its file on your complaint.

Unlawful publication

I am aware that you have published part of my letter to the Human Right’s Commission and your email to me on your website to the world at large. That publication is accompanied by a narrative which seeks to convey to the reader that I am a racist. Such comments were extremely hurtful and were designed to harm my reputation in the community. It is particularly damaging given recent events in this country.

Your publication:

1. Breaches the duty of confidence which you owed to me and the Commission as part of the Human Rights Commission’s dispute resolution process. I understand that the Commission will be writing to you separately in this regard.
2. Is defamatory of my character.

I note that you chose to prevent any person commenting on posts on your website so as not to allow any person to express a view contrary to your chosen narrative. Therefore, to remedy your breaches I require that within 7 days you remove your post about me and post this reply in full to your website without any accompanying narrative except to express your apology to me for your previous post.

I reserve my right to take legal action against you if you fail to comply with my request or post other defamatory comment about me.

Yours sincerely,

Michael Smyth
Barrister & Solicitor
ApproachableLawyer.Com

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