Greens' advice won't get cricketers off the hook, says Goff

Rod Donald

The Green Party says it has legal advice suggesting there are "creative ways" for the Government to stop the Black Caps' tour to Zimbabwe without taking draconian steps such as withholding passports.

But Foreign Affairs Minister Phil Goff says if there was an easy way for New Zealand Cricket (NZC) to get out of the tour, it would be taking it.

Green Party co-leader Rod Donald is convinced the Government can trigger a force majeure clause in NZC's contract with the International Cricket Council, which would get the Black Caps out of the Zimbabwe tour without incurring financial penalties.

Prime Minister Helen Clark said on Monday that the Ministry of Foreign Affairs and Trade's legal division had looked at the contract and it did not believe there was any reasonable action the Government could take.

Mr Donald told NZPA the Government had refused to release its legal advice so he had got some of his own.

He said New Zealand had international responsibilities and obligations to uphold human rights and it was not in New Zealand's national interest for a New Zealand team to tour Zimbabwe when such blatant human rights abuses were taking place.

The Government should declare a sports boycott against Zimbabwe and prohibit NZC from touring there "because it's not in our national interest".

That would go a long way towards what was required for the force majeure clause to be invoked -- imposing any restriction or prohibition -- but it did not go far enough, Mr Donald said.

"But we believe following the advice we've been given that if the Government also told New Zealand Cricket that its funding would be restricted if it doesn't comply with the prohibition than that would be sufficient to give effect to force majeure."

The Government could stop the cricketers from getting funding from Sport and Recreation New Zealand (Sparc) if they went ahead with the tour.

NZC got $440,000 in the 2002/03 year and $395,000 in the 2003/04 year.

Sparc was a Crown agent and under the Crown Entities Act the responsible minister could direct the entity to give effect to a government policy that related to the entity's functions and objections, Mr Donald said.

Sports Minister Trevor Mallard could "simply direct Sparc to withhold New Zealand Cricket funding if it tours Zimbabwe".

But Mr Goff told NZPA the advice he had from international lawyers was clear that the requirement for force majeure would be something that rendered compliance by NZC "impossible, illegal or likely to give rise to a serious risk of death or personal injury".

He had no legal authority to instruct NZC what it should or should not do.

The Greens were "wrong again".

"If there was an easy answer that we could do something that would then let NZC off the hook obviously we'd want to do it."

Cutting off funding to NZC did not add up to meeting the criteria for force majeure "however much the Greens may wish it to do so".

He has drafted a letter to the president of the ICC stating the facts about the rapidly deteriorating situation in Zimbabwe and the appalling human rights abuses there.

Mr Goff said he had asked in that letter for the ICC to revise the future tours programme to exclude those to and from Zimbabwe while the human rights crisis continued.

Secondly, he had asked the ICC to waive penalties in circumstances were a cricket tour had been cancelled in recognition of a gross human rights abuse situation occurring in any country.

NZC faces a minimum fine of US$2 million ($2.82 million) for unjustified cancellation of its tour. The touring country is also liable for all financial losses suffered by the hosts so with television rights taken into account, the sums involved could be considerable.

The Government has said it will not pay the fines if the tour is cancelled.

Mr Goff said he was sending his letter to Australia and Britain so they can see whether to join in a joint approach to the ICC.

Australia and Britain said they wanted to consult their cricket councils before deciding what to do.

- NZPA