The Rule of Laws

By David

The rule of law is such a terribly important concept. The World Justice Project described its significance. “The rule of law is the underlying framework of rules and rights that make prosperous and fair societies possible. The rule of law is a system in which no one, including government, is above the law; where laws protect fundamental rights; and where justice is accessible to all.” The Secretary-General of the United Nations defines the rule of law as “a principle of governance in which all persons, institutions and entities including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights.”

New Zealand ranks among the world’s best performers in the World of Justice rule of law index, and best in the world in one of the eight categories – lack of corruption. But even in New Zealand there are events of concern. The government’s decision to raid Kim Dotcom’s Auckland home, the knowledge the Prime Minister seems to have of whose home a private individual like Winston Peters choses to visit are suspect violations of the rule of law.

In the New Zealand sport of swimming the rule of law is also at risk. The previous administration was unbelievable. It altered Annual Meeting minutes without approval, it ordered the Board to reverse democratic and lawful votes, it allowed directors to remain in office well past the end of their constitutional term and it manipulated selection criteria. It was disgusting and appropriately contributed to the regime’s demise. However, is Miskimmin’s new Swimming New Zealand any better?

Last week we saw Layton, Renford, McKee, Power, Hunt, Cotterill and Brown approve an increase in fees way outside the terms of the organization’s rules. I’m told Swimming New Zealand is trying to tell the world that their Regulations are not really laws; or at least not laws that apply to them – the excuse used by every tin-pot dictator. Last week in the new Swimming New Zealand, the rule of law took second place to the demands of the powerful. “We are above the law” is not an argument I would have expected to see expressed in writing by a New Zealand sporting organization.

And this week I heard another example that, I believe, shows the disdain Miskimmin’s new Swimming New Zealand has for the rule of law. Here is what the “law” set by Miskimmin’s new Swimming New Zealand and approved and signed by the Board says about the open water selection criteria for the Pan Pacific Championships.

It says swimmers wanting to be selected must compete in two qualifying events: one the New Zealand Open Water Championships in Taupo on the 11th January 2014 and, two, the BHP Australian Open Water Swimming Championships, swum in Perth on the 1st February 2014.

To be selected for the Open Water events at the 2014 Pan Pacific Championships the Swimming New Zealand selection “law” said swimmers had to perform at both the New Zealand and Australian events. In the New Zealand event a swimmer had to finish in the top 5 New Zealand eligible competitors. The Swimming New Zealand Board approved law then said that swimmers who met the Taupo standard needed to finish in the top 6 of all the Australian and New Zealand eligible competitors in the Australian event.

Now the words I would ask you to note carefully are “the top 6 of all the Australian and New Zealand eligible competitors”. Because this is what happened.

But before I tell you what happened I should say that this tale is about the New Zealand talented open water swimmer, Philip Ryan. However before anyone thinks that Philip has come running to Swimwatch with his problems, I must tell you that the source of my information was not directly from Philip. Rather his Waterhole team and our West Auckland swimmers frequently train together at the West Wave pool. Philip discussed the SNZ open water selection policy with my swimmers and they relayed the story to me. And so back to what happened.

Philip swam inside the SNZ selection standard at the Taupo open water event. He was the second New Zealander to finish, behind Kane Radford. Also ahead of him were an Australian and a swimmer from Japan. However they were not eligible to represent New Zealand at the Pan Pacific event and therefore did not affect Philips result. Philip then went to Perth to take part in the second leg of the selection process, the BHP Australian Open Water Swimming Championships.

In that race Philip finished ninth. However, on the basis of the selection policy he was sixth. Ahead of him in Perth were an American, a South African and an Australian who were all ineligible to compete in the Pan Pacific Games for New Zealand or Australia and therefore, according to the selection criteria did not count in determining Philip’s place in the race. With these three ineligible swimmers deleted Philip was the sixth “eligible” swimmer and qualified for selection to the Pan Pacific open water event.

Except SNZ didn’t see it that way and Philip was not selected. Philip asked why? After all the selection criteria published by SNZ said he was required “to finish in the top 6 of all the Australian and New Zealand eligible competitors”. Philip had done that. Ahead of him were two foreigners and an Australian who were as ineligible to compete in the Pan Pacific event as if they had been born in Outer Mongolia. The Australians name was Joshua Richardson. He finished 6th in Perth but was ineligible for selection to the Pan Pacific Games as he had performed poorly in the first Australian qualifying swim – the 2014 NSW Open Water Championships. As far as Australia was concerned that was reason enough to make him ineligible for Australian Pan Pacific selection. As far as Swimming New Zealand was concerned Joshua Richardson was eligible and counted as a valid swimmer finishing ahead of Philip. In spite of the fact that Richardson was not eligible for Australian selection and in spite of the fact that the SNZ selection “law” said only eligible swimmers counted, Philip was listed behind Joshua Richardson in the results and was not selected.

As I understand it, Swimming New Zealand sought to justify their decision to include Joshua Richardson by saying that excluding an ineligible Australian “was never the intent of the policy”. What they intended, they said, was that Philip “needed to finish in the top 6 of all Australian and New Zealand athletes.

Honestly, in my view SNZ couldn’t lie straight in bed. Their contempt for the rule of law is worse than the breeches themselves. In this case they have written a selection “law”. Philip Ryan has complied with that “law” and should be selected. Instead of learning a lesson and changing the “law” next time, SNZ just lie their way out of trouble. It has so often been their way. Whenever you read “honesty, integrity, accountability” on the bottom of a SNZ memo just remember what they did to Philip Ryan and simply recall the manner in which they imposed a fee increase on the membership. There is little point in saying the words if you can’t walk the walk.



  • swimmom

    I’m confused… aren’t SNZ meant to be supporting NZ swimmers? Shouldn’t they be fighting for his selection? What am I missing here?

  • David

    Swimmom – I agree with your confusion. I suspect that the current Board and executives running the sport for Peter Miskimmin simply don’t understand the product. For example their explanation of Philip Ryan’s non-selection includes the following statement – “This view is based on the fact that one Australian athlete (Joshua Richardson 6th) that finished ahead of Philip Ryan was not ‘eligible’ as he was not available for Australian selection to the Pan Pacific Championships as he had not competed at the NSW Open Water Championship 10km event.”
    Now that is simply not true. Joshua did swim and finished 8th in the NSW event which made him ineligible for the Australian Pan Pacific team. These people are determining the lives of people like Philip Ryan and clearly have no idea of what’s going on. They don’t even know whose taking part. How can anyone make selection/non-selection decisions when they get vital facts like this wrong? This sort of error means we can’t trust or believe a word they say.
    And to then quote their “intentions” to us is insulting. Their intentions should be what they put in writing. Without that the published selection specifications are meaningless. The previous High Performance boss ran the sport on her intentions and look where that got us.

    • swimmom

      I thought they would be fighting to get athletes selected not fighting so they can’t be selected. When swimmers pay fees to SNZ I’m sure they think they are paying and belonging to organisation that wants them (a NZ swimmer) to succeed in their sport. Sad and disappointing.

  • swimparent

    This is unfortunately not an isolated incident. Sometimes SNZ have the foresight to manipulate the criteria to enable swimmers to meet the qualification criteria (but you need to be one of the chosen ones for this to occur).

    I have tried several times to encourage SNZ to develop selection policies that take as many swimmers as possible (especially to meets for developing swimmers that are user pays eg Junior Pan Pacs). Compare the SNZ selection policies with those of the swimming powerhouses (eg Aus and USA) to see how these countries are developing talent – not constraining it.

    Maybe one day their will be more enlightenment in the selection team.