Creating a Constitution

A Critique of Some of the Proposed Constitutional Changes for InternetNZ

This article looks at some of the changes proposed to the Constitution of InternetNZ. It is not a complete study or critique of the Constitutional changes proposed but focusses on a couple of issues albeit important ones – the objects of the organization and the membership and Governance structures.

If offer this caveat. When considering Constitutions or Constitutional documents they should be considered as a whole. The issues that are discussed in the article that follows are capable of examination from a stand-alone perspective.

Why is this discussion important.

Although it focusses upon one organisation and its own proposed Constitution and Governance arrangements it serves as a signposts for how organisations can be captured and potentially can do other than represent the views of their various memberships.

Our country is populated with public/private organisations. Ostensibly these should be democratic and be governed by the wishes of the membership. The reality is that in many cases a few dedicated individuals take on the burden or running the organisation. The only problem is that such people often see themselves as the alter ego of the organisation rather than as representatives of the membership.

A further lesson that can be learned from this study is the way in which a change in the law can enable the wholesale restructure of an organisation so that it no longer represents what it once was but rather has become the result of the thinking of a small group within the organisation who, like so many others (especially who have learned their trade in the Wellington bureaucracy) understand the importance of being in charge of setting the agenda and the importance of doing the first draft of a proposal which inevitably involves tinkering with that draft rather than rejecting it outright and starting again. This reflects the power that rests with the “activists” within the organisation who effectively capture it.

InternetNZ – A Brief Background

InternetNZ (officially Internet New Zealand Inc., formerly the Internet Society of New Zealand) is a not-for-profit open membership organisation and the designated manager for the .nz country code top-level internet domain. It also supports the development of New Zealand's internet through policy, community grants, research, and events.

InternetNZ promotes its values and purposes as follows. It should be noted that the following is taken from the InternetNZ website and uses the language that is seen there. Much of the language is in the modern and somewhat anodyne voice.

We have each other’s back.

We all bring something important to the table. We want people in our team to have a strong sense of belonging. Everyone has a place. We are all here on merit and bring different perspectives from our backgrounds to what we do. We respect each other’s abilities; using our complimentary skills to make us more effective. Ultimately, that makes us a more formidable and cohesive team.

We’re constantly curious.

We work in a fast-paced world and things are changing rapidly around us. We keep watch on what’s going on in our sector, and explore new ideas as we come across them. Because of our institutional knowledge and capability, we can act quickly and with purpose. We are rigorous and commit only when we have the evidence to support doing something, or things stack up well. We adapt when we need to and always look for opportunities to learn and improve.

We all have a part to play.

We’re all on this journey and the only way to get there is together. We’ve all got a part to play in keeping up our momentum. We’ve got a really good idea of where we’re heading, and there are some things we’ll continue to work out along the way. When we get wins and reach milestones, we celebrate them. When things don’t go so well we’ll take the learnings and keep on keeping on.

We walk the talk.

We’re open and transparent. We have a big responsibility and take what we do seriously. We make sure we do as we say we do. We’ll always work in the best interests of the community we serve. We see ourselves as Kaitiaki (guardians) of a mission-critical sector; one that enables New Zealand Inc to do well. We act ethically and with integrity.

InternetNZ operates as an incorporated society. As such it has a constitution which was designed to comply with the Incorporated Societies Act which was replaced in 2023. That provided InternetNZ with an opportunity to revisit its constitutional arrangements. The objects of the Society are discussed below.

The Constitutional Review

The InternetNZ Constitutional Review had two key priorities driving it. These are stated as:

Upholding Te Tiriti o Waitangi and ensuring the constitution is centred on Te Tiriti o Waitangi. This was recommended by the Independent Review of Systemic Racism in 2022.

Meeting new legal requirements: Aligning with the new legal requirements of the Incorporated Societies Act 2023 – in other words adopting a Constitution that complied with the legal requirements of the 2023 legislation.

I would have thought that for an incorporated society that was registered as a Charity, strict compliance with legal requirements set out in a statute – along with legal compliance attaching to the organisation’s legal status would have been the first priority. This does not seem to be the case.

What is somewhat confusing is the driver of upholding the Treaty and ensuring that the Constitution is centered upon it.

This seems to have overlooked the nature of the Treaty and the parties to the compact. Although many organisations state that they are Treaty-focussed this is really a form of virtue signalling at a time when such activity is not really necessary.

The Treaty was a compact between the Crown on the one hand and the Chiefs of the various tribes on the other. A more generalised description would be that it is a compact between the Crown (represented by the Government)and Maori.

It contained three main clauses – the yielding of sovereignty over New Zealand by Maori to the Crown; the retention rangatiratanga by Maori over their property, fisheries, forests and other treasures (with associated pre-emptive rights to the Crown to purchase land) and the guarantee by the Crown of the protection of the law enjoyed by British subjects to Maori.

Nothing in these clauses has anything to do with the actions of private citizens or private organisations. Neither are party to the Treaty. Neither are bound by it.

If InternetNZ is concerned about treatment of Maori given a suggestion that within the organisation there may be systemic racism I would have thought that a simple statement prohibiting discriminatory treatment of Maori should suffice, or alternatively a statement requiring respectful treatment of all people irrespective of race, creed, colour or origin.

The impossibility, impracticality and interpretative difficulties in incorporating the Treaty which is not binding upon the organisation or its members provides ample reason for NOT adopting meaningless and unenforceable language into a Constitutional document.

I shall now proceed to do an analysis of aspects of the proposed content of the Constitution. This is not an analysis of the totality of the proposals.

It should be noted that there is an extensive document that discusses the drafting guidelines that were adopted. Where necessary, reference will be made to this document.

The full Constitution may be found here.

I shall set out the current provisions followed by the proposal with my commentary in italics. The language of the provisions (present or proposed) is that of InternetNZ.

Constitutional Objects

The present objects are stated as follows:

To promote the competitive provision of Internet access, services and facilities in an open and uncaptureable environment.

To develop, maintain, evolve, and disseminate standards for the Internet and its inter-networking technologies and applications.

To develop, maintain, evolve and disseminate effective administrative processes for the operation of the Internet in New Zealand.

To promote and conduct education and research related to the Internet and internetworking.

To coordinate activities at a national level pertaining to good management of centralised systems and resources which facilitate the development of the Internet, including but not limited to the Domain Name System.

To collect and disseminate information related to the Internet and internetworking, including histories and archives.

To develop and maintain formal and informal relationships with the international Internet community, including the Internet Society.

To represent the common interests of the wider New Zealand Internet community both nationally and internationally.

To promote widely and generally available access to the Internet.

To liaise with other organisations, New Zealand Government authorities, and the general public for coordination, collaboration, and education in effecting the above objects.

The new objects are stated as follows:

Promote and contribute to an open, fair, resilient and safe internet.

Develop and provide programmes of work to ensure the internet is accessible and barriers to access are removed.

Promote, support and enable work programmes to establish and uphold certain standards in relation to online harm.

Maintain the domain name system and have the highest possible availability.

Maintain the domain name system to high standards to reflect a world-class ccTLD.

Develop and provide programmes of work and relationships to promote an internet that benefits all of Aotearoa.

Develop and maintain key relationships with Māori to inform the development of the internet to benefit all of Aotearoa New Zealand, and uphold our commitment to centring Te Tiriti o Waitangi.

Advocate for and actively participate in multi-stakeholder Internet governance processes domestically and internationally.

The existing objects are technically oriented. The new objects are more generalised, shift away from the technical focus an encompass content and internet governance based objectives that were not previously present. Sadly the language of the updated objects descends into vague and generalised elements that probably reflect the makeup of those drafting the proposals. Words such as “fair”,“safe” and “online harm” are imprecise, subjective and fluid and preferably should not be present in a broad-based organisation such as InternetNZ. A more sharply focussed organisation such as Netsafe could have the prevention of online harm as an objective. It is preferable that InternetNZ leave this aspect of Internet activity to those better qualified.

The reference to the Treaty is meaningless and superfluous and all sectors of society should be involved in the development of “key relationships to inform the development of the Internet to benefit all New Zealanders. Singling out one racial group smacks of racial preference which is an element of the racism that I thought InternetNZ was wanting to counter.

Membership Options

The Themes Underpinning the Design of Membership options:

There should be a clear value proposition for members

We want a membership that reflects the diversity of Aotearoa, New Zealand, and we need to know what that looks like

There should be no financial barriers to joining InternetNZ.

Members should understand, uphold, and adhere to the Society’s objects, values, and code of conduct, taking responsibility for their actions and interactions with other members.

Does this imply blind obedience or does it allow for robust discussion. What may be the position if a member belongs to another organisation whose values and code of conduct conflict with those of InternetNZ. Does this mean that membership may be withdrawn?

Purpose and Value

The co-design group proposes the following options to ensure the purpose and value of membership is clear to current and future members.

Proposed statement of membership:

Membership supports InternetNZ to give effect to its objects and the advancement of the Internet in Aotearoa, New Zealand.

Adhere to the Code of Conduct:

Members should adhere to the Society’s code of conduct.

InternetNZ is updating its Code of Conduct.

The proposed approach is a values framework and set of rules that guide all interactions between the Society, its members and the public.

This framework aims to create a safe and welcoming environment grounded in the following:

• Mō te katoa | Inclusivity

• Whakaute | Respect

• Ngākau pono | Integrity

• Haepapa | Responsibility.

Create dispute resolution pathways:

We need dispute resolution processes to ensure a safe and welcoming space for our members, staff and the public. These processes enable us to respond appropriately and effectively when issues arise.

We can achieve this through:

• creating a dispute resolution process (required by legislation)

• providing avenues to raise issues for discussion and consideration by the Society.

The idea of an open membership is an excellent one. In the past membership has been by way of subscription which has not been high. I have long been of the view that a token subscription demonstrates a commitment to the organisation and a means of providing the organisation with a level of income. Perhaps a compromise could be a one off membership payment.

The focus on the Code of Conduct gives me cause for concern. My past experience with InternetNZ leads me to conclude that a Code of Conduct can be used to stifle debate, controversy or opinion that challenges the “orthodox” view. Does adherence to the Code of Conduct “chill” robust debate. The use of the words “safe welcoming environment” tend to obstruct robust debate and an exchange of views.

As part of the Objectives (or Code of Conduct) there should be an unqualified commitment to Freedom of Expression on the part of the membership. I would imagine that the reaction of the current InternetNZ power structure will be indicative of their commitment to Freedom of Expression.

Membership Options

Introduce fees-free membership:

Becoming a member is free. Free membership will reduce barriers to access and alleviate financial hardship.

Fees set by Council: This is a constitutional arrangement in which the Council sets the fee from time to time, keeping the principle of no cost barrier in mind.

Offer tiered memberships: When a new member signs up, they choose a membership type based on the level of engagement they’d prefer.

These tiers would be full member, observer and supporter and have different fees and/or engagement requirements.

Offer engagement-based membership: We want an engaged membership that votes in elections, participates in discussions, and completes the annual member survey.

Encourage diverse membership and enable measurement of demographics: We want a membership that reflects the diversity of Aotearoa, New Zealand, and we need to be able to measure this. At the moment, we do not collect membership demographics.

Members can activate their voice at InternetNZ: A constitutional provision for member interest hubs to be established to facilitate discussion and relationships around specific topics, including topics or geographical regions.

There is also a provision for the appointment of Fellows which does not propose any dramatic changes.

Governance Options

The governance of Internet New Zealand sets the organisation’s strategic direction and ensures that we remain a viable operation.

Our governance also monitors risks, mitigants, and financials and maintains effective interrelationships with members and stakeholders.

InternetNZ currently has a council of up to 11 members, including an elected President and Vice President. It can appoint up to two additional members while the InternetNZ membership elects the remaining members.

The co-design group has identified key features for an improved governance structure and explored various options. The proposals outlined in this document are based on input from the co-design group and advice from external governance experts.

What is proposed is as follows:

The co-design group received external governance advice and propose several changes for best practices:

1. Voting for leadership positions: Transition from an elected President to a Chair appointed by governance group members, disestablishing the President and Vice-President roles (and therefore members not voting for the leadership positions on the governance group) for a more modern governance structure.

This means that the key leadership roles are not determined by the overall membership but by the governance group members. This is undemocratic. It removes essential leadership and police determination from consideration of the membership and vests it in a leadership that is appointed by the governance group. This means that in the event of “capture” by an particular group any chance of change or influence by members is removed. It can have the effect of obstructing change and solidifying policies that are determined not by the membership but by the governing body. It overlooks the fact that in democratic organizations the governance body is the servant of the organisation rather than a governance body that could dictatorially prescribe the future of the organisation. This is reinforced by the requirement of members to adhere to Codes of Conduct which could be used (and have in the past been used) to stifle debate.

2. Governance group name: Consider changing the name from “Council” to “Board,” aligning with similar organisations.

No issue with this proposal

3. Number of Members: Recommend reducing the governance group to 7-9 members from the current maximum of 11 for better efficiency and participation.

The suggestion below of appointed members and the reduction of membership of the governing group is another reduction in the democratic structure. There should be a broad and diverse membership of the governance group to ensure that there is proper consideration of a number of options when it comes to determining policy or the direction of the organisation.

4. Appointed vs. elected governance: Suggest increasing appointed members from 2 to 4, creating a mix of 5 elected and 4 appointed councillors to ensure a diverse skill set.

Although there are appointed members under the present structure there seems to be little rationale for first, reducing the size of the Board and secondly increasing the number of unelected members. Preferably the Board should be fully elected by the membership and the only “appointed” members should be those co-opted (there should be a power to co-opt) for a particular purpose and for a limited time. Elected members could bring a diverse skill set – the problem of “organisation capture” with too many appointed members plus a reduced Board membership is highlighted. This further emphasises the move towards an undemocratic organisation – a move that characterises the overall picture of the governance changes proposed.

5. Terms of councillors: Propose a standardised three-year term for all governance members, with a maximum service limit of nine years. Currently, elected members have 3-year terms, while appointed members have 2-year terms without restrictions for others.

This proposal depends upon acceptance of the earlier governance structure. As I have said I am not in favour of appointed members (although co-opted members should be permitted). I would prefer a staged Board membership term with differing starting dates for groups of members. A maximum of 9 years service (which need not be consecutive) would prevent organisation capture.

In addition two special committees are suggested:

1. Nominations Committee: The Constitution would establish a nomination committee to ensure a diverse body of candidates standing for elections (both from diverse backgrounds and communities and with a range of governance skills). The Committee would receive all governance nominations, and undertake recruitment and vetting processes, whether for appointment or election. Any member and the Nominations Committee can make nominations. The Committee would recruit for appointed positions based on the skill set required for the governance group. The Committee would undertake vetting for all candidates and make recommendations to the Council on any appointed Council position. Members would only vote for those up for election, and the Council would approve appointed positions.

This proposal is clearly undemocratic and further emphasises what I see as a move towards organisation capture. Any organisation should welcome nominations to the Board and leave the decision to the membership. A nomination committee could only serve to ensure that “like minded”, “orthodox” or “approved candidates” are nominated. Although the proposal trumpets the need for diversity (and I take that to mean diversity of ideas) this proposal would do the opposite. The suggestion of a “vetting” process emphasises the way in which the organisation could be captured and thinking within the organisation could be atrophied, hardened and unreceptive to alternative views. In some respects this seems to resemble a totalitarian/Maoist approach to intellectual purity before one can qualify for Board membership. This is clearly undemocratic and places an enormous concentration of power in the hands of the nominating committee to ensure continuing orthodoxy of approach. The Council approval of the (increased) appointed members only serves to emphasise the way in which the organisation can capture by a controlling cabal.

Given that the organisation uses its position to speak and advocate and given that the power to do so derives from the membership, it should be in the hands of the membership to determine the direction of the organisation and its policies

2. Rangatahi (youth) advisory group: The Constitution would enable establishment of a rangatahi advisory group, which would provide advice to the Council from a youth perspective. A member of the advisory group may, if eligible, be an officer of the Council and be appointed to sit on the Council as a representative of the advisory group. This would ensure that the Council hears youth voices and helps build governance capability for those interested in a future Council position.

I have no difficulty with this proposal. A member of the Youth Group could be one of the co-opted members of the Board and thus be an additional member of the Board rather than being one of the constitutionally limited number.

Overview

InternetNZ developed some drafting guidelines to assist in the development of the Constitution changes. Importantly, as far as the Governance structure is concerned no rationale is provided to explain the somewhat restrictive Governance structure that it proposed.

It seems to me that the requirements of the 2023 Incorporated Societies Act has been used as something of a Trojan Horse to enable a complete review of the role of InternetNZ. Thus not only has the Constitution been redrafted to comply with the Act, but the opportunity has been seized to remodel the organisation from the primarily technology based organisation responsible for maintaining and managing the domain name space to a much broader organisation with a focus upon matters that could be said to be straying into the political, which is dangerous territory for a charity. This could be said to have started with the unfortunate alignment of InternetNZ with the Christchurch Call and the subsequent efforts by the Ardern/Hipkins Government to control online speech and activity as demonstrated by Ardern’s address to the UN and by the Dept of Internal Affairs Safer Online Services and Web Platforms proposals which thankfully have been discontinued.

It would be better, in my view, for the objectives to remain technically focussed as they were rather than straying into potentially political activities which could jeopardise both the credibility of the organisation and its charitable status.

It seems to me that the proposals – especially the Governance proposals – have elements of bureaucratic control behind them, devised by people who have a clear understanding of the way in which structures can be organised to ensure continued control by a small group of members and the maintenance of orthodoxy within the organization.