Sir Wira Gardiner and Hekia Parata. Composite photo / Mark MItchell
Sir Wira Gardiner and Hekia Parata. Composite photo / Mark MItchell
The Government is going to the High Court to challenge the late Sir Wira Gardiner’s brain tumour claim after it was upheld - again
Widow Lady Hekia Parata says Cabinet needs to make changes to better support veterans
It will be the fifth hearing of Gardiner’s claim, which he lodged before he died, to benefit other veterans
Former National Party Cabinet minister Lady Hekia Parata has slammed Veterans’ Affairs for “a failure of a social contract” and called for Minister for Veterans Chris Penk to intervene in the way veterans are treated in New Zealand.
Her comments come after the agency announced it wouldgo to the High Court to challenge a finding military service was likely connected to the brain tumour that killed her husband Ta Wira Gardiner.
“It’s a failure of a social contract at the minimum. I am just so deeply disappointed that bureaucracy, the machinery of government, is turned against those it is meant to serve.”
Gardiner filed the claim with Veterans’ Affairs before his death, saying the case was his “koha” to other veterans.
He said the brain tumour that took his life was linked to Agent Orange exposure in Vietnam.
It’s a claim Veterans’ Affairs has not upheld - but two appeals have supported.
Now there will be a third ruling on the claim, with the latest decision set for another High Court ruling, and Veterans’ Affairs saying its own appeal board hasn’t got the law right.
Parata’s frustration adds to a chorus of disappointment across the veterans community over Veterans’ Affairs processes, waiting times and interpretation of the 2014 law that instructed the agency to take a “benevolent” approach to claims.
Parata said Minister for Veterans Chris Penk needed to stop bureaucrats running roughshod over the benevolent approach that law described as necessary for those with qualifying military service.
“I do think this is a political decision that needs to be made. I think this is an opportunity for the Minister and his colleagues to review the law as it stands.”
Lady Hekia Parata, former National cabinet minister, says Veterans' minister Chris Penk needs to intervene. Photo / Mark Mitchell
She said the system was bureaucratic, difficult for veterans to understand and recognition of service seemed to take second place to efforts to save money.
“I’ve been through every level of public service over 40 years - public servant, MP and Cabinet minister. I am struggling to understand and keep up with this system.
Parata said the case appeared locked in an endless cycle and Penk and Cabinet should intervene to stop it heading to the High Court.
“The thing is, we’ve won - and even so, this will be the fifth go-around. So surely the minister can look at this and say, how can we make this possible rather than say we are going to appeal against the defendants to exhaustion.
“They do seem locked into a particular approach. It feels much more like liability management than it does getting help to the people who need it.”
She said it seemed the underlying issue for Veterans’ Affairs was “how much will it cost”.
Parata said she was aware Veterans’ Affairs had carried out cost estimates of how much would be required to compensate veterans. .
She said it was understandable it had done so for planning purposes - but cost should not dictate its approach.
Sir Wira Gardiner, who left NZ Army as a lieutenant colonel in 1983 and was made an honorary colonel of 2/1 RNZIR in 2017. Photo / Supplied
She said it had been almost three years since the original claim was submitted, in which time she had appeared before three veterans’ appeal panels and once in the High Court.
In each of those instances, Veterans’ Affairs had fallen short then challenged the outcome, she said.
“It’s disappointing, frustrating and it’s just sad.”
Gardiner, who died in March 2022, put his name to the case at the urging of Ross Himona, his former right-hand man in Vietnam and now an expert adviser to the RSA on veterans’ claims.
Himona identified Gardiner’s as a test case which, if successful, would create a pathway for many more veterans to make successful claims. It would also likely hike the cost to the agency by millions of dollars.
Veterans’ Affairs rejected the initial claim and was told by the appeals board to examine it again. It then rejected it again and then lost a new appeal which found the claim should be upheld. It then appealed to the High Court saying it wanted the law clarified.
The new decision, which found in favour of Gardiner, relied on those new High Court interpretations - but Veterans’ Affairs has now lodged a fresh appeal, saying it wants clarification on other sections of the law.
It said its appeals’ board had wrongly interpreted how the Statement of Principles section of the law should be applied and that it had wrongly sought to align Gardiner’s case with one that was successful under the old law.
Himona told the Herald: “It would seem the Government is focused on contingent liability - how much will this cost - if [the pathway for veterans] is opened a little bit wider.” He said he had also spoken to those at the agency who admitted they “don’t have the clinical capacity to deal with it”.
Himona was also critical of the complicated process, saying veterans should seek expert help from the RSA and others before applying to Veterans’ Affairs.
Veteran support group No Duff’s Aaron Wood said the precedent was helpful but didn’t get to the underlying problem which was the agency itself. “The average veteran making an application is hit with a word salad of documentation. They just can’t deal with it.”
Minister for Veterans Chris Penk.
He said Veterans’ Affairs needed an independent oversight body. Veterans’ Affairs was “a wall you have to breach”. “It’s not benevolent, it’s adversarial.”
RSA acting chief executive Andrew Brown said it was important the legal process was worked through so there was a clear understanding of what the law meant.
He urged veterans to seek support when making a claim. “I don’t think anybody would find that whole process easy.”
Penk called the decision “significant” but said he would not get involved with an “operational” Veterans’ Affairs matter or comment on it as it headed to court.
“However, I appreciate – and regret – that this process may cause further distress for Tā Wira’s family. The appeal is on a matter of law, and nothing that is being done here should be seen as reflecting on his mana, for which we have the utmost respect.”
The new Gardiner decision saw Himona able to draw on evidence from other countries - previously given little or no weight - to show dozens of cases in which brain tumours such as Gardiner’s were linked to Agent Orange exposure.
Sir Wira Gardiner is pictured in Vietnam as a lieutenant (second-from-right in the back row). Also pictured are (L-R) Private Russ Tulloch, Pte Lindsay Churchill, Cpl Gordon Benfell, L/Cpl Geogg Dixon, Cpl Bob Passey. In the front row are Pte Doug McNally, Sgt Lima Karaka, Pte Graham Ferguson.
It also saw the appeals’ board set out its decision-making process, which placed a lighter burden of proof on veterans and required Veterans’ Affairs to establish a higher level of proof to show there was no connection.
The decision is also important because it shows a clear pathway when a veteran’s injury or illness does not fit neatly into the “Statement of Principles” framework determined in Australia and adopted by New Zealand.
Changes in warfare and better understanding of its impact mean a number of conditions do not fit neatly into that framework, such as in the case of former NZSAS corporal Gregg “Pup” Johnson, who has linked his exposure to blasts and other head injuries with a range of current symptoms including memory loss.
The appeals’ board also found support for Gardiner’s claim under a section of the law which said there should be “equal treatment of equal claims”, linking the new claim to one approved under the previous 1954 law, which is seen as more accepting of veterans’ claims.
David Fisher is based in Northland and has worked as a journalist for 35 years, winning multiple journalism awards including being twice named Reporter of the Year and being selected as one of a small number of Wolfson Press Fellows to Wolfson College, Cambridge. He first joined the Herald in 2004.
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