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