The Duty to Preserve Protect and Defend



The negligence that led Swimming New Zealand to publishing the names, sex, date of birth and email addresses of thirty-six of New Zealand’s best swimmers is of serious concern. It is not the first time Swimming New Zealand has demonstrated scant regard for member’s privacy or their safety. Their cavalier attitude to the responsibility they have to their members raises serious questions about their fitness to govern. Let me give you two examples.

The first involves the publication of swimmer’s personal information that occurred this week. The decision of Swimming New Zealand’s to publish the swimmer’s personal details is covered by the Privacy Act 1993. The Act has twelve principles that stipulate how information can be collected and used, and people’s rights to gain access to that information and ask for it to be corrected.

The clause that could cause Swimming New Zealand problems is Clause Twelve. This says;

“The information must not be disclosed except in certain situations. These include where the disclosure is directly related to the purpose for which the information was collected, where the source of the information is a publicly available publication, and where the disclosure is authorized by the individual concerned.”

It appears that Swimming New Zealand may have disclosed information that is not directly related to the purpose for which the information was collected and may have done so without the authorization of the individuals concerned. The breach is serious. Swimmer involved should consider whether Swimming New Zealand’s behaviour merits filing a complaint with the Office of the Privacy Commissioner. Alternatively swimmers could initiate proceedings to the Human Rights Review Tribunal. If the Tribunal believes there is an “interference with the privacy” of an individual it is able to grant a range of remedies. The Tribunal can award damages to an individual of up to $200,000. The highest award so far has been over $168,000.

The second example of neglect involves a video of one of my female swimmers taken in the girls changing rooms, during the National Championships, at the Millennium Pool and posted on Instagram. The swimmer was getting changed and had no top on but did have her back to the camera. The person taking the video is heard saying “Dirty bitch”. I complained to the CEO of Swimming New Zealand. I gave him copies of the pictures involved. Clearly taking a picture of a topless girl in the changing rooms and posting it on the internet was serious and required Swimming New Zealand’s immediate attention.

The Swimming New Zealand CEO verbally told me that he did not feel the posting of topless photographs taken in the girls changing rooms was serious and probably did not merit further investigation. Only when I threatened to file a complaint with the police did he agree to look into the matter. Three weeks later I got an email from the CEO. This is what it said:

Hello David,

The matter in question was investigated following the NZ Open Championships. XXXX responded to Swimming NZ queries by 12 April and matter was subsequently closed on 15 April.

Kind Regards 

No reprimand was made. No sanction was imposed. It was a cover up. A cover up that begged the question of just how bad behaviour would have to be before the Board of Swimming New Zealand acted to protect its members.

Those two examples are bad and superficially appear very different. However there is a common thread. The dissemination of email addresses, especially the addresses of female swimmers and the cursory treatment of topless photographs appearing from the National Championship changing rooms demonstrate a cavalier disregard for the welfare of women; a syndrome we could call the Weinstein Effect.

Both examples demonstrate a pattern of conduct that should not be ignored. Better to do something now than wait until the culture of neglect in swimming causes a very serious problem. When that occurs responsible people will sit around, wringing their hands, saying, “We should have done something.” If someone had done something about Harvey Weinstein in Hollywood years ago dozens of women would have been spared his wanton behaviour.

Swimming New Zealand has shown it cannot be trusted. In recent years the organization has demanded more and more information from its members. The organization has toiled tirelessly to assume greater control over its members, over competitions and results. The Antares Place bureaucracy has grown and infiltrated every aspect of a swimmer’s career.

And the result?

Personal information gets plastered all over the internet and disgusting behaviour is swept under the carpet. On past performance the less Swimming New Zealand know about swimmers, the better. After recent events I’m not too happy about them having my credit card details on file. And if you are saying, “Don’t be silly. Of course your information is safe with Swimming New Zealand.” Just remember there were thirty-six families who thought the same thing about their son’s and daughter’s email addresses until events earlier this week. It could be that identity theft is keeping my credit card safe. I doubt that anyone in Antares Place wants to assume my identity.

The regions of Swimming New Zealand need to act to bring order to the sport. If they do not then they will be as guilty of negligence and possible collusion as the occupants of Antares Place. There is every reason for the information required from regions to be withheld until the people it is being sent to in Auckland show some remorse and demonstrate they are capable of handling their responsibilities properly.

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