Journal o f the

Archives

and Records

Association

o f New Zealand

A p r i l 9 7AR

CH

I F

AC

TS

ARCHIFACTS

Published by the

Archives

and Records

Association

of New Zealand

April

ARCHIFACTS

Editor: Brad Patterson

Editorial Committee: David Green Tiena Jordan Gavin McLean Brad Patterson John Roberts Adrienne Simpson

Reviews Editor: David Green

Archifacts is published twice-yearly, in April and October.

Articles and correspondence should be addressed to the Editor at:

PO Box 11-553 Wellington

Intending contributors should obtain a style sheet from the Editorial Committee.

Printed by McKenzie Thornton Cooper Ltd, Wellington.

©Copyright ARANZ 1997

ISSN 0303-7940

Contents

Editorial iv

Articles Philippa Fogarty Trends and Initiatives in Information

Management in the Public Sector 1

Rachel Lilburn Ethics and Accountability in Public Sector Information Management 6

Brian Easton Was There a Treaty of Waitangi; and was it a Social Contract? 21

Comment Fraser Boyd How Good are We?—Another View 50

Sarah Welland Two Responses to Brad Patterson's & S.R. Strachan Professionalism and New Zealand Archivists 53

Obituary David Bilbrough 60

J.M. Sherrard Award in New Zealand

Regional and Local History 61

Reviews Dina Benevol Safe Keeping: How to Solve the Common & Associates Records Handling and Storage Problems

in any OrganisationQzne Tucker) 62

State Records Records Management Policy and South Australia Practice Manual (Sarah Welland) 65

Heather MacNeil Without Consent: the Ethics of Disclosing Personal Information in Public Archives (A.R. Jack) 68

Anne Bromell Tracing Family History in New Zealand (Narelle Scollay) 70

It was not until 1983, more than 25 years after passage of New Zealand's Archives Act, that comprehensive archives legislation was first enacted by the Australian federal legislature. It is therefore ironic that, while the draft N e w Zealand Archives Bill (promised since 1976, and circulated for comment on at least four occasions since) has yet to make it even to the foot of the New Zealand Parliamentary Order Paper, review of the Commonwealth Archives Act is well advanced and early legislative action is expected. Although federal attorney-general Daryl Williams only ordered the review in August of last year, the Australian Law Commission released an issues paper for public consultation on 12 January 1997.

In form, the Australian issues paper offers a contrast to that locally circulated by the Department of Internal Affairs' Policy Unit in August 1996. The 116 closely p r in t ed pages of the publ i shed Australian document compare more than favourably with the Policy Unit's sparse five photocopied leaves. Greater bulk, of course, is not in itself any assurance of merit, but it is in terms of content that the contrast is most stark. Whereas the Australian paper is informed, perceptive, and searching in the quest ions posed, the New Zealand effort appears somewhat shallow. The latter introduces little new, with the exception of an at tempt to relate the planned archives legislation to provisions of the Privacy Act, opting instead to restate several long-term issues already exhaustively canvassed—and seemingly resolved—in earlier consultation rounds. The text indicates little real in-depth knowledge of the background to, or the implications of, the issues raised. With drafting of the paper removed from the purview of National Archives, and entrusted to generic policy analysts, this is perhaps unsurprising. Interestingly, fear of ' cap ture ' seems not nearly so p ronounced in C a n b e r r a . Whi le t h e Austral ian r ev i ew w a s u n d e r t a k e n by Law Commission personnel, it was with the assistance of a panel of honorary consultants, a panel genuinely representative of Australian Archives' principal stakeholders, including leading professional archivists. Further,

Australia Reviews its Archives Legislation: Lessons for N e w Zealand?

the support team was led by a senior Australian Archives officer. The differences show.

As in New Zealand, writ ten submissions on the Australian paper have been invited. These were sought by 31 March 1997. It is at this point that the processes differ. While there is no certainty what the next New Zealand step will be, any further consultation being at the discretion of the Minister and Secretary for Internal Affairs, in Australia the intent is that the wri t ten submissions 'facilitate extensive consultation with stakeholders and the community as a whole ' . The Commission plans to initiate a range of meetings and discussions with interested parties throughout Australia towards the middle of 1997.

Clearly, issues raised by the discussion paper struck a responsive chord in Australia, certainly in Canberra. On 14 January, two days after release of the Law Commission's paper, the Canberra Times ran a major editorial on the matters raised. Considering review of t he legislation timely, the newspaper offered some opinions of its own as to necessary legislative revisions. Many would be endorsed by those seeking changes in the New Zealand legislation.

The editorial unequivocal ly endor ses t h e need for ' s t rong and centrally directed policies' which ensure that those public records which should always be kept are kept, distinguish those which should be kept for a time, and clearly identify records which may be destroyed as soon as they have lost their immediate operational usefulness. It further points to the need for such policies to be strongly backed officially, and for them to encompass all depa r tmen t s , agencies and en te rpr i ses of government. The editorialist nevertheless recognises that 'as the range of government activity increases, the number of records being created c o n t i n u e s t o e x p l o d e ' , a n d t ha t t h e i n c r e a s i n g v o l u m e b e i n g electronically created poses special custodial problems. Presciently, however, s/he argues that in such circumstances the pressure for proper archiving should become the more acute, not less: 'retracing the modern equivalent of the old paper trail . . . surrounding a policy, a program or a course of action is much more difficult in the age of the computer ' . A strong case is also advanced why such trails should be retraceable. In the face of demands by some New Zealand agencies for exemption from coverage by archives legislation, as well as pushes by others for mandates to set up their own archives, that case should be absorbed by local decision-makers.

In Australia, refreshingly, both public officials and the media seem to n e e d l i t t le p e r s u a s i o n t ha t t h e r e a re s o u n d c o n s t i t u t i o n a l and admin is t ra t ive r e a s o n s for p r o p e r l y ma in ta in ing t h e r e c o r d s of government. Perhaps, in the wake of imbroglios such as WA Inc. and

the periodic lesser corruption scandals, antennae are more acute. At any rate, the Canberra Times states flatly: 'Archives are not kept simply for historians of later generations w h o just might be interested in the background of a particular policy or program'.This is not to argue that the cultural value of public records is insignificant, or to downgrade their historical research value. Rather it makes the point that the completeness and integrity of the public records, sometimes their very continued existence and hence availability, may depend more on an ability to effectively demonstrate their ongoing value to governments, to the depar tments or agencies which created the records in the first p l ace and to a w i d e r pub l i c t han h is tor ians . T h e adminis t ra t ive justifications should be obvious. There are potential embarrassments for governments w h e n the evidential trail becomes so thin that it is nigh impossible to reconstruct what has happened, and why. And there is a host of reasons why official organs may need to have recourse to their old files. As t h e editorial rightly observes : 'Policy ideas in publ ic administration work in cycles, and there are few really new ones ' . But t h e pub l i c accountab i l i ty just if ication for r eco rds r e t en t ion , t h e constitutional justification, probably exceeds all others. As has recently been observed in the New Zealand context (by Brian Easton): The government archive is an integral part of the constitutional processes of a liberal democracy' . Governments are accountable to the people for their actions. There needs to be a record of those actions, readily accessible to the public , accessible—in effect—forever. Many New Zealanders, including Treaty of Waitangi claimants, must surely agree.

That m a n a g e m e n t of t h e publ ic r eco rds has b e c o m e a highly specialised professional task is a further point recognised by the Canberra Times. It perceives a need for archiving to be part of a continuum of records management, planned from the day a new file is created'. It also clearly perceives some of the handicaps today's public records keepers (including archivists) must labour under, both in respect of creating agencies and within custodial institutions themselves. The dangers of constant restructurings, of myopic costs-cutting, of the tyrannies of the immediate and faddy in public administration, are identified; but particular scorn is reserved for the current bureaucratic cult of managerialism', which 'devalues experience, expertise and any sense of history: management is all, and for some, there is nothing inherently different be tween managing [public records] and a shoe factory'.As the editorial continues: 'The ideal modern manager is often seen as mobi le and as a p rob lem solver, w i t h little a t t en t ion to developed principle in the way problems are solved. As often as not,

of course, such managers are gone, promoted somewhere else, by the time their instant fixes unravel'.The scenario will be feelingly recognised by many on this side of theTasman, as will be the need to do something about it.

The Canberra Times is in no doubt about what needs to be done. Ensuring the integrity of the public records is too important to be left to an ersatz free market: ' . . . [creating] . . . agencies cannot be relied upon to have wider public interests in view w h e n they make storage and disposal decisions'. Instead, the editorial argues, these processes 'should be closely supervised by an independent Australian Archives, one more a rmed wi th p o w e r and the resources to secure a great national treasure ' . In arriving at this position, the editorialist draws heavily upon the Law Commission's paper. After pondering the case for removal of the government 'archival function' from the direct control of a single depar tment the Australian reviewers suggest that ' the option of creating a statutory authority would have much to offer'. Their rationale is convincing: 'The establishment of a statutory authority would simultaneously promote independence for those responsible for the function, while making them directly accountable to Parliament and, through Parliament, to the wide range of interested stakeholders'. Again, many New Zealanders would concur. This, after all, is no more than was advocated for our own National Archives by a number of speakers at the 1996 ARANZ conference.

Are the re lessons for New Zealand in t h e Australian review of legislation? Beyond the demonstration of greater expedition and a more open approach, even a cursory reading of the Law Commission's paper suggests tha t careful s tudy of t h e detai l by those charged w i t h overseeing the drafting and passage of New Zealand's legislation would be amply repaid. The need for revised archives legislation in this country is urgent, but the problems confronted are not unique; nor necessarily need be the solutions. Notwithstanding a recent New Zealand public sector penchant for unilaterally created 'world best practice' models, it only makes sense to be aware of broad international trends. With strong world-wide interest in revised legislation, the International Council on Archives (ICA) in 1993 established a commission—chaired by Lee McDonald of Canada—to de l inea te t h e mos t i m p o r t a n t gu id ing principles for archives and current records legislation. The commission reported in mid 1996, and its findings offer a considered blueprint upon which New Zealand's legislators might profitably reflect.

Trends and Initiatives in Information Management in the Public Sector

Philippa Fogarty Ministry of Justice

Introduction Information management was generally regarded as a low-priority activity within the New Zealand public sector until the early 1980s. This resulted in information often being poorly organised and led to inefficiencies such as large-scale duplication. The passage in 1982 of the Official Information Act with its emphasis on access to information and accountability resulted in significant, though not immediate, changes in the way information was managed and accessed. The changes to the management of the state sector during the 1980s also encouraged the improved management of information, as this increasingly became seen as an asset. In 1992 the State Services Commission issued a publication that outlined 'best practice' for information systems in the state sector.1

The Privacy Act 1993 p rov ided fu r ther incen t ive for improved information management.

In conjunction with these legislative changes government agencies have begun . to examine and re-engineer work processes. One of the outcomes has been a growing recognition that information technology alone is not the solution to information management issues, but rather one component of a solution.

There has been discussion on the potential for information to become the 'fourth resource' , with predictions that it will be seen as having the same importance as finance, human resources and property. 2 This paper provides an overview of some of the trends and initiatives in information managemen t in the New Zealand publ ic sector, and demonstrates how these have the potential to turn those predictions into reality.

Definitions In this paper, the term 'information management ' refers to all aspects of the information profession, including records, libraries and archives.

This reflects the contemporary view that it is no longer either desirable or feasible to segregate the information management issues facing these professions.There will always be a need for specialist areas of expertise. However, the expansion of the electronic storage of and access to information, the subsequent contraction of the information life cycle, increasing ease of access to and use of information, and an integrated approach to information management, all mean that these professions need to work together.

Recent Information Management Initiatives Government-held Information Policy Framework O n e of t h e major ini t ia t ives in in format ion m a n a g e m e n t is t h e development of a policy framework for government-held information. In 1995 the State Services Commission was given a mandate from the Cabinet Strategy Commit tee to convene a representat ive group of depar tmen ta l officials to review government-held information and deve lop a co-ordinated policy framework (ref. CSC (95) 199). This initiative is being led by the State Services Commission and overseen by a Chief Execut ives Advisory Group compr i s ing John Belgrave (Ministry of Justice), Len Cook (Statistics New Zealand), Russ Ballard (Land I n f o r m a t i o n N e w Z e a l a n d ) , Paul C a r p i n t e r (Min is t ry of Commerce) , Margaret Bazley (Department of Social Welfare) and Roger Biakeley (Department of Internal Affairs), wi th Gary Hawke (Victoria University) as the facilitator.

The group has developed some high-level principles for the good management of government-held information. The framework that is being developed will address issues such as privacy, information sharing, pricing, security and integrity of information, availability of information, and access to departments ' individual holdings to assist government agencies in managing their information assets and encourage the use of information in cross-sectoral policy-making.

The key questions to be addressed include:

• How, w h i l e r e s p e c t i n g ind iv idua l pr ivacy, can G o v e r n m e n t departments reduce their information demands on individual citizens by greater information sharing?

• H o w can t h e integri ty and securi ty of vital Government -he ld information be best enhanced so as to maintain Ministerial and public confidence?

• How can Government obtain better access to departments ' individual information holdings to assist it in cross sectoral policy making?

• What information should be automatically made available to the public and on what terms?

• How can Government 's exposure to commercial and investment risks associated with the information it holds be best managed?

Within this framework the project team will be looking at developing principles in four general categories:

• access, including issues of availability, equity and sharing policies;

• ownership, including issues relating to copyright, custodianship, and information sharing;

• quality, including accuracy, authenticity and integrability;

• security.3

Pilot Projects Four pilot projects have been selected to test how the principles work in practice. Three of these are being run in LINZ (concentrating on commercial information), MORST (concentrat ing on data sets) and Statistics New Zealand (concentrating on publishing and the Internet).

A fourth project uses the work associated wi th developing and implementing the Justice Sector Information Strategy to test a number of the pr inciples . 4 This strategy has been developed through a co-operative effort involving key justice sector agencies, users of justice information and others with an interest in information and information management. The strategy has developed the following vision for justice sector information:

To ensure that relevant, timely and accurate information is available and accessible to authorised users to support the business needs of all agencies in the justice sector and their customers and to monitor thejustice environment. 5

Five working groups have been established to develop the key building blocks and ensure that the strategy is implemented. One of these is an Information Management Policies for the Justice Sector Working Group, which comprises representatives from both justice, sector agencies and external agencies such as National Library, National Archives and Statistics New Zealand. The working group has developed guidelines for best practices in information management, together with a model policy document . All aspects of the life cycle are covered by the guidelines: design, creation and collection, storage and retrieval, retention and disposal, publication and availability, quality and security.

The guidelines, which will be available both in hard copy and on the Internet, are designed to be readily adapted by individual agencies/ '

Ano the r aspect of the Just ice Sector Information Strategy is an electronic Information Roadmap.This will complement the publication, What's Where: A Stocktake of Justice Sector Information'? and provide an electronic guide to what data and information are available. The Roadmap will be housed on the justice sector intranet site and will ac t as a cen t ra l p o i n t for jus t i ce s ec to r in format ion , inc lud ing publ icat ions , library holdings, databases and statistics. Rather than duplicate the information, the Roadmap will provide 'hot links' to the holdings of the justice sector agencies.

Individual Agencies In addition to these sectoral initiatives, individual agencies are beginning to p r o m o t e the impor tance of information management . Document management and imaging are clearly high priorities for a significant n u m b e r of agencies , and in a r ecen t survey of leading t rends in information services chief information officers in the public and private sector selected these tools as the most promising technologies. 8 It is hoped that the introduction of these technologies will be accompanied by comprehensive information management policies and practices.

Legislative Changes Changes are also occurring in the legislative framework that surrounds in fo rmat ion m a n a g e m e n t . T h e s e inc lude rev iews of t h e Official Information Act and the Privacy Act. The Archives Act cont inues to languish at the bo t tom of the legislative p rogramme. The fortieth anniversary of this Act is a cause for commisera t ion ra ther than celebration, and it is becoming increasingly difficult for information managers to argue its importance and relevance. A recent publication on information law neglected to even mention the Archives Act. 9

Ways Forward The impor tance of information in the public sector is n o w being reflected in action. This is reflected in the coalition agreement, which emphasises the importance of accountability and the role of information in ensuring this. The coalition document also states that:

The Government will develop and implement [an] 'Information and Technology in Learning' strategy that will ensure that all New Zealand chi ldren are equ ipped for t h e information age by an education system which is fully attuned to New Zealand in the 21st century. 1 0

1. Getting the Bits Right: A Guide to Best Practice in the Provision of Information

Systems in the State Sector, Wellington, 1992. 2. For example, s ee David Best, ed, The Fourth Resource: Information and its

Management, Aldershot, Hampshire, England, 1995.

3. Extract from 'Request for Comment: Public Views on the Management of Government

Information'. See http://www.govt.nz/ssc/infomanage.html.

4. Justice Sector Information Strategy: Informing the Justice Sector, Ministry of Justice,

Wellington, August 1996.

5. ibid, p.2.

6. Further information on the Justice Sector Information Strategy can be found at www.dtcg.co.nz/jsis.

7. Ministry of Justice, Wellington, 1996.

8. Deloitte Touche Tohmatsu, Leading Trends in Information Services: Second Annual Survey of New Zealand Chief Information Officers, Wellington, 1996.

9. Nadia Tollemache, The Laws of New Zealand: Information, Wellington, 1996.

10. Coalition Agreement, December 1996, Schedule A, Policy Area: Telecommunications.

Hocken Library D u n e d i n

Reduced Hours for Archives, Manusc r ip t s and Photographs

The Hocken Library has begun to prepare to move to n e w p remises at Anzac Avenue. From 19 February 1997 the archives, manuscripts and photographs collections will be closed to the public on Wednesdays. The revised hours of opening for the Leith St Branch are, therefore, Monday-Tuesday and Thursday-Friday 9 3 0 a m to 5pm.

Hours of open ing to the books , periodicals , newspapers , pictures, maps and music collections in the Hocken Building on campus are not affected at this stage.

The challenge to information professionals is to ensure that they play a central role in determining the blueprint for information policy in the twenty-first century.

Ethics and Accountability in Public Sector Information Management

Rachel Lilburn

Department of Library and Information Studies

Victoria University

Having worked for nearly a decade at National Archives, through some of the most tumultuous years in New Zealand public sector reform, I am firmly of the belief that records are the key to demonstrating accountability and ethical behaviour in the 1990s.

The challenges of increased contracting out to the private sector, and more recently the advent of MMP, have served to reinforce this belief. Yet, in the questions surrounding New Zealand's administrative reforms (who is responsible? to whom? for what?) we are still addressing the 'how' question. To my mind, good records, good recordkeeping and good recordkeeping systems are part of a combination of elements that will enable your organisation to be more accountable, particularly w h e n decisions involve ethical dilemmas. It might be argued, however, that this critical linkage has still to be recognised in New Zealand.

The present paper is in two parts:

• in the first the re will be an a t tempt to make convincing links between ethical behaviour, accountability and records;

• in the second part some suggestions are offered as to how improved recordkeeping might be used to further the goal of ethical and accountable behaviour.

A Review of Australian Literature The link be tween good recordkeeping, ethics and accountability has already been recognised in Australia. It is presently being explored by public policy lecturers, senior public sector officials and information professionals. Some interim findings have already been presented.

Sue McKemmish, Head of the Department of Librarianship, Archives and Records, Monash University, has concluded, in a masterly review of the various recent accountability crises in Australia, that:

'When reviewing the many cases of government and corporate co r rup t ion and mismanagement of the 1980s in Australia, t he association between various forms of anti-social behaviour and poor recordkeeping—or lack of recordkeeping—is particularly striking. ' 1

A recurring theme in her survey of the crises was the failure to keep records at all on many occasions, there being a reversion to an oral or remembrancer tradition.

John Uhr, Senior Lecturer in the Australian National University's Public Policy Program, has noted the interest that archives administration is now attracting amongst reformers of government in Australia. As one example, the 1992 Western Australia Royal Commission Report identified an important ethical role for archives agencies throughout Australia. Uhr states:

'Proper recordkeeping is at the heart of responsible government; as a p re requ i s i t e to effective accountab i l i ty and as pa r t of t h e community's historical memory of government.' 2

The Director-General of Community Services, Victoria, in his 1989/90 Annual Repor t (in w h i c h h e also co ined t h e marvel lous ph rase 'organisational mel tdown') remarked that:

'In the absence of a capable central records system, many parts of the organisation had created their own local systems, some good, but most very ordinary. Wasted effort arose from multiplication of do- i t -yourself local r e c o r d s sys tems w i t h l i t t le o r n o c ross communication. Staff commonly retained vital papers, motivated by a reasonable fear that if important documents were released from personal control, they would be lost in the system. Somewhere else, life and dea th decis ions w e r e being m a d e in the absence of corporately available items of crucial information.' 3

In New Zealand there has certainly been growing interest in the ethos and ethics of the new public service, especially after what has been described as a dead patch in the early 1980s.4 But a review of the New Zealand literature on public sector ethics and accountability in the light of public sector reform throws up little comment, in comparison with the Australians, on the role that recordkeeping can play in promoting these objectives.

Definitions of Records, Recordkeeping and Recordkeeping Systems The emphasis so far' has been on records and recordkeeping, not information and information management . This emphasis is qui te deliberate—records are a form of information which are a source of

evidence. Records are the natural byproduct of social and organisational activity. One of their characteristics is their organic nature; that is, the way t h e y ar ise ou t of t h e act ivi t ies and w o r k p r o c e s s e s of an organisation. We need records in order to continue our day to day operations. Records can be in any media—increasingly they are being created and stored in electronic form.

Recordkeeping is the making and maintaining of complete, accurate and reliable evidence of business transactions. It is an action that public sector employees are collectively involved in. 5 Records are kept in r e c o r d k e e p i n g sys tems. These systems are a kind of informat ion system—that is, they store and provide access to information. But what makes recordkeep ing systems different is that their p u r p o s e is to capture, maintain and provide access to evidence of transactions over time. Recordkeeping systems do not contain data to be reused; that is, wri t ten over. The data in a recordkeeping system has to be fixed or static in order to be evidence.

To illustrate the distinction be tween information and records, there is the example of the judge w h o in 1994 ruled against Social Welfare's administration of a discretionary form of grant, finding that because the depar tment had only two years of records of applications for such grants—not two years of information—that the compensation could only be backdated for that t ime. If Social Welfare had deliberately destroyed those records in anticipation of the ruling, officials would have been acting unethically. Records are the arsenals of democratic accountability and continuity. Returning to the basic question of why w e create and keep records, there are the wise words of Luciana Duranti: ' the creat ion of meaningful and useable records and the appropriate maintenance of those which are necessary to future action constitute the pillar on which a society rests and evolves.' 6

There are positive signs in the public sector of a refocus on the importance of information. An increasingly common trend seems to be the amalgamation of IT, libraries and records sections—the Ministries of Justice and Health are but two recent examples of this trend. Records, recordkeeping and recordkeeping systems may benefit from the trend. But, has the trend been in any way driven by the view that recorded information, in t h e form of records , is an authori tat ive source of evidence needed to support claims of ethical behaviour? Or is it because of records ' other qualities as an allocative resource—as materials of product ion, means of production and products for the purposes of managerial efficiency and effective decisionmaking—information as a commodity to be accessed and used, but not with the qualities of integrity, completeness, accuracy and reliability that would make them

an authoritative resource? 7 Of course, records may have both allocative and authoritative qualities. However, if the objective is ethical public sector organisations, there is a need to value records for their capacity to be authoritative as much as for their allocative role. Given the major changes to the New Zealand public service, the need for which I do not necessarily dispute, I believe that recognition that records can assist in the coordination of social systems over space and time is even more essential.

Changes in the Public Sector and Challenges to the Public Record Over the past decade there has been a dramatic reduction in the size of the state sector, with government increasingly focusing on policy. There has been increased contracting out of the delivery of goods and services to the private sector. There has been a greater use of private sector techniques in public sector management. There has been an injection of competi t ion into service delivery. It is not just in New Zealand of course that a 'bureaucratic revolution' (Jonathan Boston's phrase) has occurred. Governments everywhere have been reinventing themselves in the name of increasing efficiency and eliminating waste.

Another banner under which public sector reform has proceeded in this count ry is that of enhanced accountability. It is therefore interesting to note a comment by public policy commentator John Martin that he has the impression that in the course of the reforms t h e ' accoun tab i l i t y flag has b e c o m e s o m e w h a t t a t t e r ed . . . an unnecessary irritation and distraction. For that very reason, of course, we need to be particularly vigilant.' 8

I agree. With the new managerialist emphasis, the emulation of private sector p recep t s and pract ices in the public sector, there has been scant a t ten t ion to the n e e d for good records , r ecordkeep ing and recordkeeping systems. Indeed an argument might be advanced that, notwithstanding the reform environment, efforts to improve public sector recordkeeping have been thwarted or ignored.

There is ample prima facie evidence to support this contention. A 1986 review of information management in the publ ic sector, 9

commissioned by National Archives and the State Services Commission, came up wi th some far reaching recommendations. Yet, as a review of the progress of those recommendations five years later points ou t , 1 0

the fragmentation of the public sector into over 30 fiefdoms mitigated against public-sector-wide changes. The fact that we have an Archives Act which is 38 years old, and in desperate need of revision, provides further evidence. It languishes on the parliamentary order paper in the

lowest priority category! Little wonder that an NBR journalist described the Archives Act as toothless; toothless because, amongst other problems, it does not confer any authority over the destruction of records of state-owned-enterprises. 1 1 That the present legislation was enacted in a pre-electronic recordkeeping age is seemingly of little account.

In the debate over the restructuring of National Archives to conform w i t h t h e p o l i c y / p u r c h a s e r / p r o v i d e r spl i t m o d e l , t h e r e p o r t by M c D e r m o t t Miller n o t e d t ha t t h e g o v e r n m e n t w a s e x p o s e d to considerable risk in relation to the costs associated with the future storage, preservation and retrieval of public records. There was limited recognition of the integral importance of the existence of National Archives to the constitutional process. Instead, efficiency arguments and managerialism predominated. In a contemporary Listener column on the restructuring of National Archives, Brian Easton suggested that politicians and bureaucrats in New Zealand are not keen to be held to account by the record of their deeds. He stated that 'perhaps that is why the two groups have shown so little enthusiasm for updating the act. ' 1 2 How then, I ask, can the public record provide for accountability if there is not sufficient regulation?

Yet another challenge to public sector accountability arises from the disposal of public records covered by the Archives Act to the private sector organisat ions w h i c h have taken over funct ions previously provided by the public sector. Private agencies naturally need these records to continue to provide the goods and services, but enforcement of their compliance with the Archives Act is impossible given National Archives' present level of funding.

Public sector ethics and accountability are of interest to more than academics and officials in New Zealand.The general public are far more concerned with accountable government in the 1990s. 1 3 The community which galvanised itself in opposition to the restructuring of National Archives certainly surprised both the Minister and Secretary of Internal Affairs. It may even be indicative of a change from a previously tolerant, even complacent, attitude to the problems created for public sector recordkeeping in the course of public sector reforms of the 1980s. Public attitude changes to the present state of public sector ethics may therefore leave officials with little choice but to respond to demands for higher standards of integrity in public life, and better recordkeeping.

To reinforce my argument, I would cite two incidents of perceived une th ica l behav iour in the publ ic sector. Both w e r e front page n e w s p a p e r stories and received considerable publicity. Both also involved poor recordkeeping. The first is the Ohakea affair. This incident highlighted p o o r recordkeeping. Nobody was able to explain h o w

$500,000 was spent on the refit of a house. Nor were the records which existed reliable. Accounting records showed a spa bath cost $4639, when the price was half that according to an invoice. There were also comments that this behaviour was endemic in the Air Force.

It is likely taxpayers were no more impressed by the second incident, this one culminating in the resignation of the Auditor-General, w h o resigned in the face of allegations of personal financial difficulties and still unreconciled accounts for advances of public funds to him. These included personal transactions during his term as Auditor-General and during his previous employment as Chief Executive of the ACC. The records of expenses were apparently so confusing that it has been hard to tell what had been paid back, what were legitimate work expenses and what were personal expenses. A 20-day stay in the Washington DC Park Hyatt apparently cost $13,571, or about $670 per day, including a charge for 12 video movies.

A professor of government from the London School of Economics, Peter Dunleavey, who happened to be in New Zealand at the time of both incidents, was interviewed by Linda Rose on National Radio's Morning Report. He spoke in the interview of the sleaze factor' that occurs when traditional public administration is marketised; that is, when there is internal deregulation, and traditional checks and balances are removed. Public sector managers are paid at near private sector rates and this pay is linked to performance. Dunleavey would share John Martin's concern that values traditionally part of the public service mission may have been distorted by cultures and practices borrowed from the private sector. 1 4

Theoretically, changes in the public sector have resulted in more accountable government—through instruments such as the Office of the Ombudsman, the State Sector Act, the Public Finance Act, and the Official Informat ion Act. Some w o u l d con tes t w h e t h e r this has happened. If such legislation has made us more accountable then it is an accountability limited to that of a managerial, and more particularly a financial, accountability. Major questions remain, some say, as to how the public is assured some political accountability. Arguably, political accountability is challenged by the increase in contracting out to the private sector of the provision of goods and services and the move to an MMP e n v i r o n m e n t . Each of t h e s e has impl ica t ions for good recordkeeping.

Contracting Out and the MMP Environment What, then, of the effects of contracting on the public service and recordkeeping needs? To bring the discussion back to the issue of public

sector ethics, John Martin would argue that the hallmarks of the public sector are the values or virtues of fairness, justice and due process . 1 5

But are these values or virtues shared by private organisations? A 1992 poll of 200 New Zealand senior managers' attitudes to ethics (by Massey University Senior Lecturer Kazi Alam) revealed that only 6 of the 99 r e sponden t s listed a high standard of ethics as important ." ' Most considered satisfactory rates of return, superior customer service and market share as more crucial. This is despite evidence from recent surveys in America that over three quarters of their major corporations are actively trying to build ethics into their organisations. 1 7

A critical question is just w h o is accountable in a contract? Are both pr incipal and agent accountable? Will this ne twork of contractual arrangements promote ministerial responsibility? When things go wrong, can we locate the point where responsibility lies? The case of the safety of blood products scare in 1992 nicely illustrates the problem. These products were infected with hepatitis C because the blood was not screened, but the Committee of Inquiry failed to locate clearly where responsibility lay. We therefore have problems at present reconciling constitutional conventions of the location of political responsibility with the new system of public management.

Will agents in the private sector create and maintain sufficiently good records to ensure accountability? The long tradition of recordkeeping in the public sector is a factor in its favour, but I am more dubious about private sector recordkeeping, an observation based on some years of consultancy experience. A private sector agent might be able to report h o w much was spent, and on what, but is that agent likely to create and retain documentation of why a decision was made or not made? And w h o makes the decisions about whe ther these records are destroyed or not, and when? It seems certain that contracting out to private sector agencies will affect the completeness and the quality of the public record or memory.

We already have the scenario where public records have gone to private agencies from whom the government purchases services. For example, with the abolition of Education Boards, private education service centres took the service cards of teachers. These record vital employment information. Are these records being faithfully maintained? Who owns the information created on behalf of the government?

John Martin has also written of the possible implications of an MMP environment for accountability. 1 8 Martin states that the difficulties of mul t ip le accountabi l i t ies will w o r s e n in the MMP env i ronmen t , particularly at the political level, where there will be coalition partners in government. The public servant in turn will have more power, he

says, because they will control the information or records which enable free and frank policy advice to be tendered.Thus, information or records wi l l b e t h e p r i n c i p a l asse t of t h e p u b l i c s e rv i ce in t h e MMP environment.The purveyors of this asset must be seen to be politically disinterested, that is, they must avoid the appearance of personal or agency interest. Martin's picture of the public service of 1999 is one of a meritocracy guarding the institutional memory and dedicated to t h e provis ion of object ive pol icy advice . It is my v iew tha t t h e authoritative qualities of records are integral to this vision of a public sector behaving ethically in an MMP environment.

In the post MMP environment, according to Martin, Ministers and Parliament will require strong departments of state, subordinate to the government of the day but providing that element of stability and continuity which both social cohesion and economic growth require. Records again can fulfil this objective. Reiterating Duranti's words, they are a way of extending accountability over space and t ime . 1 9

Link between Ethical Behaviour and Accountability I have suggested a link between ethics and accountability, but are these interchangeable concepts?

Internal accountability mechanisms exist in any organisation, public or private. A publ ic sector organisation is also subject to multiple external accountability forces, including legislation, ministers, parliament, the courts, the media and the public. And, increasingly, public sector organisations are required to provide an explanation or justification for events and transactions, to accept responsibility for those events and transactions, and for an individual's own actions in relation to these events or transactions. At the same time, being able to provide reasons does not mean that public sector officials may have acted in an ethically defensible manner. Fear of accountability may even motivate an official to avoid creating or keeping records. Accountability is therefore a virtue or charac ter i s t ic of an ethical publ ic sector o rganisa t ion . 2 0 Thus accountability is not the same thing as ethical behaviour. Some prefer the term responsibility to accountability because it implies having regard to the consequences of one's actions or decisions, and an obligation to right wrongs . 2 1

Ethical abuses of office can involve fraud or corruption. Both are relatively easy to understand. They are about obtaining an improper advantage or benefit, which may or may not be pecuniary. But there are ethical dilemmas which do not involve fraud or corruption. Problems seem to ar ise par t icu lar ly w h e n an official w h o is no t direct ly accountable to voters has some discretion over decisions which affect

the rights and ent i t lements of o thers . When a public official acts ethically, he or she supposedly must act in the public interest, rather than according to personal interest.

A natural outcome of the processes in making ethical choices should be the creation of an evidential record for accountability purposes. And, b e c a u s e p u b l i c s e c t o r agenc i e s may b e a c c o u n t a b l e t o fu ture generat ions for the results of their actions and programmes, some records that a public agency creates will be needed for longer term accountability purposes. The decisions, therefore, that a public sector official makes in regard to records illustrates the sometimes critical role that records play in the functioning of a democratic government.

Ways to Improve Ethics in the Public Sector The aim in improving public sector ethics in the Australian context is not to make public officials better people or better citizens but better p u b l i c o f f ic ia l s . 2 2 A t r i p a r t i t e a p p r o a c h has b e e n sugges t ed— a combination of law, ethical standard setting and institutional design— on the basis that one element by itself is not enough. 2 3

Public officials are meant to operate within their lawful authority. This seems obvious, although a previous New Zealand Auditor-General pointed out in his 1989 Annual Report the 'growing number of cases where the intentions or actions of some people suggest that they either have no knowledge of the principle or have consciously ignored it.' 2 4

I admit often to being surprised, in discussions with officials of some public sector agencies in New Zealand, that they considered themselves to be outside the law—the Archives Act 1957—when it comes to their records disposal practices. The law is thus not sufficient in itself to improve ethical quality. Our private sector example of the Winebox affair' where , at best, those accused could be said to have observed the letter rather than the spirit of the law, is testimony to this.

Codes of conduct and codes of ethics, another common approach to improving public sector ethics, are back in vogue in the Australian government . They are not quite the same thing. A code of ethics expresses an organisation's underlying values and principles, while a code of conduct provides more specific guidance on what to do in certain situations.2 5 Again, by themselves, such codes will not work.They can be perceived negatively by staff as a form of legal rule imposed on them by management, w h o actually may be the source of the ethical problems. They may be dismissed as not do as I do but do as I say.'

To date the New Zealand government 's efforts to improve ethics in the public service consists of the 1990 publication by the State Services Commission of a Code of Conduct, then in 1995 the issuance of a guide

to the principles, conventions and practice of the Public Service. This guide is intended to assist our public servants in the new environment. 2 6

I have not yet examined this weighty publ icat ion, bu t wou ld b e interested to check whe the r it at any point refers to public sector officials' recordkeeping responsibilities. This is not an unreasonable question. An analysis of various American and Canadian private sector codes of ethics revealed references to recordkeeping. 2 7

Institutional design refers to the culture of an organisation or ' the way things are done around here ' , including the mores and practices in that culture. Managers, research has shown, have t h e p o w e r to s t ructure the organisational cul ture to p r o m o t e ethical behaviour, ensuring that employees d o no t have to fall back on personal or professional values . 2 8 The relationship be tween ethical behaviour of managers and an ethical culture is a strong one. This view supports a n o t h e r c o n c l u s i o n of McKemmish ' s 1993 survey of Austral ian accountability crises: poor or unethical organisational cultures appear to spawn poor or unethical recordkeeping subcultures.

Given the differences in organisational cultures, it is commonly suggested that agency specific codes should be developed in preference to expecting one code to fit all precisely. A specific code can interpret what any general code means to the agency.2 9 The fragmentation of the New Zealand public service and its distinctive organisational cultures would point to the need for New Zealand public sector organisations to follow this p rocedure . 3 0 But in order to create specific codes an organisation needs to audit its existing values to determine which are important and identify the gap be tween the ideal and the actual. 3 1

Other measures to improve public sector ethics might include:

• the creation of positions and disciplinary procedures to deal wi th ethical transgressions;

• staff and management training and education;

• the reinforcement of ethical behaviour;

• screening of potential employees.

No writer on this topic considers creating more ethical public sector organisations to be easy. What is missing in this mix, to my mind, is an understanding of the contribution that good records, recordkeeping and recordkeeping systems could make to ensuring an organisation is more accountable, particularly in situations which involve ethical dilemmas. Public sector officials may get away with corrupt or unethical conduct when recordkeeping is poor.

Contribution of Records to an Ethical and Accountable Public Service Accepting that good records, recordkeeping, and recordkeeping systems should be an element of the ideal public sector ethics regime, h o w can this b e achieved?

The means will vary from one public sector agency to the next. I am not proposing a public sector-wide solution. Some improvements immediately suggest themselves from previous discussion. These include:

• Incorporating good recordkeeping principles into codes of ethics and c o n d u c t . For example , t h e need to comply w i th exist ing legislation (such as the Privacy Act, the Official Information Act, the Archives Act etc) over access to and destruction of records, and how to comply.

• Being aware, as present and future public sector managers, of the n e e d to make and reinforce links b e t w e e n ethical behaviour , accountability and recordkeeping.

• Putting recordkeeping requirements into performance contracts and agreements wi th employees, and taking appropriate action if these are not fulfilled.

• Incorpora t ing r eco rdkeep ing r e q u i r e m e n t s and s tandards in to contracts and performance agreements with private and other public sector providers.

• When auditing the values of organisations, assessing what people think about the importance of recordkeeping, and the gap be tween that and what is desirable.

• There may also be a need to make improvements in the way in which records are created, stored, maintained and made available.

Reverting back to the example of the Health and Community Services case in Victoria, Australia, major changes were made to recordkeeping systems as part of reforms to ensure greater accountability. The reforms included:

• The establishment of a strong central records unit, with computer assistance to capture and retrieve complete, accurate and reliable documentat ion and assure the integrity of inwards, outwards and internal records.

• Provision for secure information storage and handling.

• Provision for disposal of records in a regulated way.

• A n e w cl ient informat ion system incorpora t ing p r inc ip le s of accountability to the public, protecting privacy and confidentiality, and designed in such a way as to link documentation to transactions in a meaningful way.

The Chief Executive's suppor t was crucial to these recordkeeping reforms. He also insti tuted cultural and attitudinal change training programmes which involved a records component . 3 2

There are some fundamental requirements of good recordkeeping that an organisation's recordkeeping efforts can be measured against in order to ensure that they are complete, accurate, reliable, and useable, and therefore of sufficient evidential quality to support accountability. These benchmarks are as applicable to electronic records as they are to paper records. The key requirements of recordkeeping which support accountability and ethical behaviour are:

• determining which information is to be captured as a record;

• determining the proper uses of the information under the Official Information Act and the Privacy Act etc;

• determining how long such records should be maintained, and when such records should be destroyed;

• determining h o w to design and manage recordkeeping systems to meet evidential and accountability needs.

On the question of what information to capture this is decided on the basis of:

• operational and administrative needs;

• legal and regulatory requirements;

• fiscal/tax requirements;

• short and long term accountability needs.

Decisions in each of these areas as to what data to capture to form the record of the transaction must be influenced by the need to be accountable for behaviour, ethical or otherwise.

A record needs to have more than content, or text, to be complete and therefore evidence. It also needs structure and context. By structure I mean simple things like a file reference, a date, an address. And, for a record to have context, you need to know what organisational function and activity the record relates to, w h o collected it and so on. If you do not have this contextual information, you may not be able to understand the record. This compromises its evidentiality.

Determining the proper uses of information involves deciding, in accordance wi th legal and administrative requirements:

• w h o is authorised to have access to the records;

• and h o w should records be protected from unauthorised access. It also involves issues of just w h o the organisation is legally or ethically allowed to disclose information to, particularly that of a personal or commercially sensitive nature.

Determining h o w long such records should be maintained, and w h e n such records should be destroyed, involves:

• complying wi th legal and administrative requirements;

• a n t i c i p a t i n g sho r t and long t e r m a c c o u n t a b i l i t y n e e d s and consideration of the public interest;

• ensuring employees know about these requirements;

• ensuring illegal destructions of records do not occur, even those which document unethical decisions or behaviour.

These decisions should be made regardless of the costs of retention. It is also essential to ensure o ther recordkeeping needs are met in

the design and management of recordkeeping systems in order for the records to be evidence (on the assumption that for records to b e evidential they should be captured in a recordkeeping system). These needs include:

• ensuring the systems in which the records are captured protect them from alteration or unauthorised destruction;

• especially if they are in electronic form, that they remain accessible and useable over the required amount of time;

• designating someone responsible for recordkeeping;

• having documented procedures, policies and standards for creating, maintaining and disposing of records.

It is p robab ly advisable to focus especial ly on r eco rds of t hose transactions which involve the exercise of discretion and which would seem to be the records in which the greatest return on your ethical inves tmen t can b e made . Somet imes of cou r se this is a difficult judgement.

Last but not least, there is a need for recordkeeping systems to be in place in order that:

• records of related transactions have a recognised place to be stored, maintained and managed;

• there can be timely access to recorded information for accountability purposes.

If some of the requirements just outlined have not been met, then it is likely an organisation's records do not sufficiently support ethical and accountable behaviour within that organisation. 3 3

Summary Good recordkeeping can assist in making an organisation more ethical and accountable, and ethical organisations in turn make possible good recordkeep ing and greater accountabili ty. Part of an organisation behaving ethically is a recognition that it must create records that are complete accurate and reliable in order to be held accountable now and in the future.

1. Sue McKemmish, 'Recordkeeping, Accountability and Continuity: The Australian Reality', in Sue McKemmish and Frank Upward, cas. Archival Documents: Providing Accountability Through Recordkeeping, Melbourne, 1993, p.10.

2. John Uhr,'Professional Ethics: Promises and Pitfalls', in S. Yorke, A. Schwirtlich, A. and L. Teakle, eds, Ethics, Lies, and Archives, Canberra, 1994, p.15.

3. Community Services Victoria, Annual Report 1989/90, Melbourne, 1990, p. 12.

4. John Martin,'Ethics in Public Service:The New Zealand Experience', in N. Preston, ed, Ethics for the Public Sector: Education and Training, Annandale, New South Wales, 1994, p .91.

5. Archives Authority of NSW, Records and Recordkeeping: Introducing New Concepts, Sydney, 1994, p.4.

6. Luciana Duranti, 'The Odyssey of Records Managers—Part ΙΓ, Records Management

Quarterly, 23, 4 (October 1989), ρ 10.

7. McKemmish, Recordkeeping', pp.22-23.

8. John Martin, The Role of the State in Administration', in A. Sharp, ed, Leap Into the

Dark: The Changing Role of the State in New Zealand Since 1984, Auckland, 1994, p.44.

9. Acton Information Resources Management Ltd, Information Can be Managed. Wellington, 1986.

10. Alan Smith,'The Acton Report—Right Message, Wrong Timing?', Archifacts (October

1991), pp.31-37.

11. Graeme Hunt,'National Archives are an Asset to be Nurtured Not Muzzled', National

Business Review, 27 October 1995, p.54.

12. Brian Easton,'Holding on to the Past', Listener, 30 September 1995, p.64.

13- Martin,'Ethics in Public Service', p.91.

14. John Martin, 'Ethos and Ethics', in J. Boston, J. Martin, J. Pallot and P. Walsh, eds, Reshaping the State: New Zealand's Bureaucratic Revolution, Auckland, 1991, p.369.

15. John Martin, Contracting and Accountability', in J. Boston, J., ed, The State Under

Contract, Wellington, 1995.

16. Tracey Strange and Glenys Hopkinson, 'Ethics: Can they be Taught?', Management,

39, 11 (1992), p.51.

17. Andrew Stark,'What's the Matter with Business Ethics?', Harvard Business Review,

71 , 3 (1993), P-38. 18. John Martin,'Public Accountability in the MMP Environment: A New Ethics Regime

for the Public Service', Paper for AIC Seminar, Wellington, 12 April 1994. 10pp.

19. Duranti.'The Odyssey'.

20. Uhr,'Professional Ethics', pp.11-12.

21. Martin, 'The Role of the State in Administration', p.44.

22. Howard Whitton, 'The Rediscovery of Professional Ethics for Public Officials: An Australian Review', in Ν. Preston, ed, Ethics for the Public Sector: Education and

Training, Annandale, New South Wales, p.58.

23. Charles Sampford, 'Institutionalising Public Sector Ethics', in N. Preston, ed, Ethics

for the Public Sector: Education and Training, Annandale, New South Wales, 1994, p. 14.

24. Martin, 'Ethos and Ethics', p.383.

25. Simon Longstaff, 'What is Ethics Education and Training?', in N. Preston, ed, Ethics for the Public Sector: Education and Training, Annandale, N e w South Wales, 1994, p .24 l .

26. State Services Commission, Public Service Code of Conduct, Wellington, 1995.

27. Gary R. Weaver, 'Corporate Codes of Ethics: Purpose, Process and Content Issues', Business and Society, 32, 1 (1993), pp.44-58.

28. W. E. Stead, D. L. Worrell, and J. G. Stead, 'An Integrative Model for Understanding and Managing Ethical Behavior in Business Organizations', Journal of Business Ethics, 9 (1990), p.238; Weaver, ibid, p.52.

29. Sampford, 'Institutionalising Public Sector Ethics', p.SI-

SO. Martin,'Ethics in Public Service', p.111.

31. Longstaff,'What is Ethics Education and Training?', p.243.

32. McKemmish,'Recordkeeping', p .21.

33. Another recordkeeping issue raised (by an employee of the Ombudsman's Office) is the real need for public sector agencies to identify what recordkeeping systems they have and what data these systems contain. In the electronic recordkeeping environment an agency may be more easily able to answer a request under the Official Information Act than would have been possible with paper records. The relevant information management principle is 'Identify your information' as discussed by Dagmar Parer, and Keith Parrott, 'Management Practices in the Electronic Record Environment', Archives and Manuscripts, 22, 1 (1994), p.117.

Was There a Treaty of Waitangi; and Was it a Social Contract?

Brian Easton

Economic And Social Trust On New Zealand

Wellington

This paper arose out of consideration of a very humble problem. 1 In 1989 I was working with the Maori claims in regard to the broadcasting reforms. I have told much of that elsewhere, 2 but the matter led to an invest igat ion of t h e or igins of t h e Tiriti o Waitangi, in o rde r t o unde r s t and t h e en t i t l emen t s to t h e p rope r ty r ights of t h e radio frequency spectrum by the Maori and by the Crown. 3

This required rereading the Tiriti: The problem, not original, is this: the official English version of the Tiriti o Waitangi says the Crown guaranteed to the Maori:

' the full, exclusive, and undisturbed possession of their lands and estates, forests, fisheries, and other properties . . .'

The Tiriti which was signed at Waitangi has the following expression

at the equivalent point in its text:

'te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa.'

An early official translation of this phrase was provided by T.E.Young of the Native Department in 1869:

'full chieftainship [footnoted—'tino rangatiratanga'] of their lands, their settlements and all their other property,' 4

while more recently Hugh Kawharu translated it to

' the unqualified exercise of their chieftainship over their lands their villages and over their treasures all.'5

The two expressions are obviously not the same, even if w e ignore the 'forests, fisheries' in the first. 'Full, exclusive, and undisturbed possession' is a more limited concept than 'tino rangatiratanga' since even in narrow terms the latter involves much wider property rights (an important consideration in the case of the radio frequency spectrum). We might equate 'estates' with 'kainga', one meaning of which in the Williams

Dictionary of the Maori Language6 is 'field of operation, scope of work' , although again the latter is a wider notion. 7 Meanwhile 'other propert ies ' seems a narrower concept than 'taonga katoa', since the latter could involve non-properties (such as the Maori language—and the radio frequency spectrum).

If there is any doubt about the magnitude of the difference, compare the translation of the relevant phrase from the English official text into Maori by T.E.Young in 1869:

'te tino tuturutanga o o ratou whenua o o ratou motu ngaherehere 0 o ratou wahi hiinga ika, o era atu rawa e mau ana i a ratou katoa 1 ia tangata ranei o ratou mo te wa e hiahiatia ai e ratou ki puritia e ratou.' 8

It could be argued that the differences are a result of a very poor translation. That does not explain the omission of forests and fisheries however, and it does not explain why the Tiriti article is everywhere more encompassing in terms of the Maori rights than the English version. 9

The Drafting of the Treaty Hobson arrived in New Zealand in early 1840 with a set of instructions from Lord Normanby, the British Secretary of State for the Colonies. Despite the instructions to treat with the Maori, no draft treaty was included.This surprising omission gave Hobson considerable freedom.

The resulting Tiriti has a three part structure which is also evident in the earlier drafts: there is a preamble which describes the context in which the treaty arises written from the British perspective; a central portion of the three articles; concluding with an attestation for the Maori signatories.

There are four known separate texts of a draft treaty in English (and none in Maori): one is in the handwriting of James Freeman, Hobson's secretary, which covers a preamble and three articles; a preamble in Hobson's handwriting with amendments by Busby; and two versions (a copy and a cleaner version) of the three articles and the attestation in Busby's handwriting. The texts are set out in the first four appendices in a form which facilitates comparisons.

My account of the drafting largely follows Ruth Ross's 1972 article (which is also largely followed by Claudia Orange), but there are some differences (or elaborations) of interpretation, especially as to what happened after the 4 February, when the English draft was handed to the Williamses for translation. I see two important differences before then.

First it is clear from textual comparisons, even though Ross is more ambiguous about it (and the Facsimiles of the Treaty of Waitangi10

presentation order is incorrect, presumably because it follows the order which Hobson left the drafts in), that the Freeman draft precedes the Hobson draft. Freeman's is shorter, and much more primitive in its characterization of the existing situation of Maori politics. Hobson's draft is a development from the Freeman draft's preamble (and Busby's draft elaborates the articles). One may hazard the following account of the relation between the drafts.

Freeman made a first draft which included a preamble, two articles (the third was a part of the preamble), and no attestation, presumably after discussions with Hobson and James Busby (and Henry Williams) 1 1. Some alterations were made directly on the text. These included some changes to words, but the most important change was to reorganize Freeman's text into a preamble and three articles (Appendix I). Even so, the text was still thought inadequate, and Hobson began his own draft. He only completed revising the preamble, being too unwell to complete the draft, and so sent his officers to Busby wi th some notes, which they had put together as the basis of Treaty: 'Busby stated that I should not consider the proposi t ions conta ined in the notes as calculated to accomplish the objective' . 1 2 This occurred, according to a note attached to Busby's first draft, on 3 February. He wrote a fair copy of the first draft (which is in the Busby Papers), and gave it to Hobson. This second Busby draft is held in the National Archives..

This is the second point at which the historical evidence modifies Ross's conclusions. She plays down the role of Busby in the drafting of the treaty, although it is unclear whether she means the English language draft, or the Tiriti. 1 3 A comparison of the 'final' English draft text and the preceding ones show that Busby had a considerable input into the final English draft. He modified Hobson's preamble (and it is likely he was involved in developing it), dramatically changed articles one and two, and appears to have been the sole writer of the attestation. Even the third article has a spelling correction made by Busby (Appendix rV). One might also detect in the Busby version an account of New Zealand which is more sensitive—or even favourable—to his efforts as Br i t i sh R e s i d e n t . 1 4 H o b s o n b road ly ag rees w i t h th i s a c c o u n t , contradicting Ross insofar as she is referring to the English drafts. He wrote to Busby, Ί beg further to add that through your disinterested and unbiased advice, and to your personal exertions, I may chiefly ascribe the ready adherence of the chiefs and other natives to the Treaty of Waitangi . . . ' 1 5

Busby says there was no alteration of the draft he submitted to Hobson other ' than a transposition of certain sentences, which did not in any degree affect the sense. ' 1 6 It is not obvious from the available documents what change he is referring t o , 1 7 and it may well be that Busby's recall of the detail is inaccurate, as is evident in some of his accounts of the events at Waitangi. 1 8 In the final Busby draft the word 'severally' in the second article is replaced by 'individually', possibly in Freeman's writing, there is a 'signature of the British plenipotentiary' added after the third article, there is an addition which is crossed out at the beginning of the attestation, and there are a number of marks to indicate that a substantial content of Busby's attestation was to be omitted (Appendix ΠΙ). 1 9

It is this omission, plus the claim that Busby's articles 'were in a large measure an expansion of those in Freeman's notes ' , which leads Ross to conclude that 'Busby's claim to have 'drawn' the treaty is thus a considerable exaggerat ion even if appl ied to the various English versions. ' 2 0 However, the differences be tween Freeman's and Busby's versions are greater than Ross implies. Appendix IV identifies the sources of the final English version, showing the limited input from the Freeman draft. Nevertheless, it reflects the genesis document .

O n e fur ther compl ica t ion is that w e do no t k n o w h o w m u c h discussion went on between Hobson and Busby (and Henry Williams) before the Freeman draft. We do know the two met on 29 January as soon as Hobson arrived, before Freeman is likely to have drawn u p the first version. They probably began discussing a treaty at an early stage and at length.

There is a hint of what the treaty might have looked like without these discussions and the Busby (and Williams?) input from the 'unsigned treaty' presented by Governor Gipps to a group of Maori in Sydney on 14 February 1840 (They refused to sign). Gipps and Hobson had presumably discussed the content of a treaty a month earlier w h e n Hobson was in Sydney, in which case the Gipps treaty is likely to have reflected his understandings of that discussion. The unsigned treaty is a treaty of cession with a crown exclusive preemption right. It transfers sovereignty to the Crown and offers in return only the protection of the Crown with no reference to British rights and privileges. 2 1 By comparison, Freeman's draft with its third article is more sensitive to Maori issues, and suggests that there had been some further input since the discussions with Gipps.

Busby notes on his first draft that it was wri t ten 3 February. He probably took his clean copy to Hobson, where it was discussed and modified (Appendices II & ΠΓ). Henry Williams tells us that he was given

a draft to translate about 4pm on the 4th. (His son Edward was also involved. We do not know about their respective contributions, and for simplicity of presentation the expression 'Williams' refers to father and/ or son—unless there is an indication to the contrary.) At this point there are no further texts available until that of the Tiriti signed on the 6th.

Let us surmise what happened. Presumably the final English draft, probably in Freeman's hand, was an accurate copy of Busby's articles and attestation, as amended after discussions with Hobson, together with Hobson's preamble with Busby's changes. I shall assume that Williams made as close a translation as he could of the draft he was given.

We know that on the 5 th, the text in English was read to the gathering. It seems likely that this was a clean copy, rather than the two pieces in different hand writing that are in National Archives.There is no trace of it, but probably it was once in the Williams papers. Then the Williams translation in Maori was also read. 2 2 The Maori had various concerns. The accounts of the events on the marae, especially Colenso's which is the most detailed, 2 3 make little direct reference to the text of the treaty presented to the Maori. We must be careful, but let us try to construct what the Maori might have said had they directly addressed the text of the treaty presented to them (noting we do not have that text). There would have been two areas of a literal translation of the Hobson-Busby draft which would have been particularly sensitive.

In the first article, and elsewhere, is the thorny issue of the translation of the term 'sovereignty'. Young in 1869, and more recently Judith Binney, 2 4 have suggested that the best term for sovereignty would be 'rangatiratanga'. This presents two problems. First, in Maori the first article would have said that the rangatira would have ceded their r anga t i r a t anga , w h i c h w o u l d h a v e s o u n d e d a l i t t le o d d , if no t inflammatory. Second, w e know at some stage, and the final one, the term 'rangatiratanga' is guaranteed in the second article—and it involves a very complicated argument to transfer the term from the first article to the second. Thus I am inclined to the view that the Williams initial translation did not use the term 'rangatiratanga'. What term might they have used for sovereignty? An obvious one was 'mana', given that the two words were equated in the 1835 Declaration of Independence.This could have been even more inflammatory. Did the Williams' translation use 'kingitanga' at some stage, a term Binney is attracted to. But why would it not have been used in the final draft? And then there is the simplest possibility that the term 'kawanatanga' was used from the beginning, a l though it suggests that Williams had some not ion of sovereignty different from the absolute sovereignty of cessions. I believe that the translation of 'sovereignty' was originally 'mana', and it was

changed to 'kawanatanga' at a later stage, although whether that was before or after the hui on 5 February I cannot say.

The second problem is whe the r in the second article the phrase which guaranteed the Maori possessions was sufficiently encompassing. I am not suggesting they foresaw that one day the phrase should cover the Maori language (and certainly not the radio frequency spectrum), but it seems likely that they would want guarantees over everything they possessed or had chieftainship over. Again, did the Williamses alter this in the course of the pre-hui discussion, or did they after?

These are obvious changes, but there may have been others, perhaps of a minor kind. One suspects that the Williams drafts of the Tiriti were littered wi th many changes as father and son (and perhaps others) struggled wi th the issue of translating complicated conceptual ideas into acceptable Maori—acceptable both linguistically and politically.

What w e have been discussing here is how the Maori might have responded had they been confronted with an accurate version of the translation of the Hobson-Busby text. Another question is how did the text get changed in the way that it did, apparent ly responding to potential or actual Maori concerns? Leaving aside accident, there appear to be two main explanations. The first is that Henry Williams and others saw the potential reaction of the Maori and modified the translation in response to those perceived concerns. The second is that the Maori responses in the hui of the 5th resulted in modifications to the text.

The most comprehensive account we have of the debate is Colenso's. Compared to the six or so hours of the hui, even adjusting for the t ime taken in protocol and translation, Colenso's account is a very brief summary of the discussion. Moreover his report is in English, and it seems likely that Colenso was not fully conversant with the contents of the treaty being presented to the Maori. The only group wi th a hard copy of t h e text was Hobson's , so nei ther Colenso nor the Maori speakers could refer to a wri t ten text. Not surprisingly then, neither the Maori (nor Colenso) directly address the contents of the treaty verbally presented to them. However Colenso's version of the speeches may be readily interpreted as addressing the first article (although not the second), and it is not difficult to envisage that alterations were d e e m e d n e c e s s a r y . Poss ibly t h e a l t e r a t i o n s w e r e d e s c r i b e d as improvements to the translation, to better capture the intentions in the Hobson-Busby draft (as understood by Williams).

We know the Williams clean copy of the 5th was changed in the evening after the hui. As his son-in-law Hugh Carleton told parliament, 'an alteration was made while the draft was under consideration. ' 2 5 The revised draft was then handed to Richard Taylor w h o copied it out onto

the parchment, which was signed on the 6th. (The grammatical and spelling errors that Biggs noted are probably transcription errors made by Taylor.2 6) The signed Tiriti was by now a much revised translation of the text which Freeman gave the Williamses on the afternoon of 4 February.

Much of this is surmise. But it is plausible assumption, not wild conjecture. Unfortunately w e do not have the documents which enable the hypothesis to be directly tested. Nei ther the English text the Williamses was asked to t ranslate, nor draft t ranslat ions in their handwriting have been found. Taylor mentions that he kept the copy from which he made the final version, but it is not in his papers . The remainder were once among the Williams papers, but again w e do not know what happened to them.

Carleton says that there was 'an alteration', but w e do not know what it was, nor whe the r there were more. As Ross asks 'was the alteration of any consequence? Was there in fact only one alteration?' 2 7 The most plausible answer to each question is a 'yes'. In particular Taylor describes the Williams 'clean' copy of the morning of the 5th as a 'rough' draft in the evening. The change of adjectives suggests there was more than a minor change in the text. We do not know whether Hobson appreciated there were major differences be tween the English draft and the actual agreement. (He may have known there were differences, but thought them unimportant on the advice of Williams.)

As a final point, the conventional story of how the Treaty of Waitangi was created describes the argument being offered to the Maori w h o accepted it wi thout any significant alteration to the text. Put so bluntly such a scenario seems unlikely. Indeed, the Maori account of the signing of the Tiriti emphasizes the central importance of the debate which took place on the marae.They may take comfort from the fact that the difference be tween the likely Maori translation of the Hobson-Busby draft and the final Tiriti appears to be a documentary confirmation of their oral tradition.

Was There A Treaty of Waitangi? Ruth Ross titled her 1972 paper 'Te Tiriti o Waitangi', arguing that 'this much is clear: the drafts, in English or in Maori, were merely drafts; it is the Maori text which was signed at Waitangi.' 2 8 Indeed, it was the Maori text that was signed on all other occasions, except at the Waikato Heads and t h e Manukau Harbour , w h e r e t h e ac tua l even t s and understandings are a mystery.2 9 It is this Waikato Heads text which gives rise to the English version of the Tiriti which appears in legislation and elsewhere. Thus there is a firm 'yes' to whe ther there was a Treaty of

Waikato Heads, but if by the Treaty of Waitangi is meant an English text of the Tiriti, there was no such document at Waitangi on 6 February.

Subsequent events reinforce this conclusion. Hobson had only the Maori version printed by William Colenso. When James Clendon, the US Consul in the Bay of Islands, repor ted the events at Waitangi to the US Secretary of State in a letter of 20 February, he was unable to obtain an official translation, but sent an unofficial one . 3 0

I have included the Clendon-US translation of the Tiriti as Appendix V. It is t he earliest translation of the Tiriti w e have. Who translated it? It is in Clendon's handwrit ing but he does not seem to have been the translator. Nor does he say w h o did the translation. It seems likely h e would first have gone to one of the Williamses. Perhaps it is their translation. Of all the translations I have seen it is the one closest to the Hobson-Busby draft. It translates 'kawanatanga' into 'government' , ' rangatiratanga' into 'possession ' , ' taonga ' into 'proper ty ' , but omits 'forests, fisheries'.

If it we re argued that these parallels were the result of the translator referring to the Hobson-Busby draft, then consider w h o had access to it. Only the official party and the Williamses had copies. Since the official party was no t involved in the translation (Clendon said it was not 'official'), this argument points to the translation being a Williams one. Another piece of circumstantial evidence is that w e do not have the draft translation from which Clendon copied. It could be with the other missing Williams papers. If Colenso or Richard Taylor—the other possible t rans la tors 3 '—had done it, they would probably have subsequently ment ioned the exercise and, likely as not, given a different translation from the Hobson-Busby draft (which they are unlikely to have seen). In any case, the Clendon-US translation is not in their papers (although Taylor's are incomplete because the translation he transcribed is not there either).

The circumstantial evidence that the Clendon-US translation is by Williams is tantalizing. It is not enough for the 'beyond reasonable doubt ' of a c r imina l cou r t . But in ou r cu r r en t stage of knowledge t h e hypothesis mee t s the 'balance of probabilities test ' of a civil case. Suppose it is a (or the) Williams translation, made not later than a fortnight after the actual signing at Waitangi. Then more than any other document it has the claim to be ' the ' Treaty of Waitangi, the English text version of the Tiriti signed at the marae. If it is, it would be ironic that this document is held in the US National Archives.

One issue is whether Henry Williams thought his translation to Maori had markedly changed the meaning of the English text he had been given. The implicat ion of his certification of the English version,

forwarded to the Secretary of State in October 1840, was he thought h e had made no major change. 5 2 If the Clendon-US text is a Williams translation of the Tiriti then Williams could reconcile the Tiriti with the Hobson-Busby draft as his certification suggests.

For further evidence of the low status of the various English versions after the signing of the Tiriti, consider the numerous translations, typically made in the 1840s, apparently by those involved in land deals around Auckland, and closer to the Maori than the one Clendon sent to the US.5 3 If everyone was translating the Tiriti, then they are implying the official vers ion in English was non-exis tent , un impor t an t , or irrelevant. In the 1840s the general view among settlers seems to have been there was no Treaty of Waitangi.

Hobson's behaviour adds support to the lower status of the English version'. Ross reports on five versions which Hobson forwarded to his

superiors in Sydney and London. There are differences between them. The main difference is that three have the Hobson-Busby preamble, two the Freeman o n e (One omits forests, fisheries').34 A sixth version attributable to Hobson is in Clendon's letter to the Secretary of State on 7 July, where the preamble is again Freeman's (but forests, fisheries' are included). 3 5

What are we to make of all this? Surely it is that there was no English text of the Tiriti at the time of signing, or shortly after, that Hobson (and/or Freeman) cobbled together what they could after recognizing the lack, but that their various versions were not initially recognized by the wider community until the 1860s.

Was The Treaty of Waitangi Intended to be a Social Contract? The problem which began this quest—the discrepancy be tween the rangatiratanga/possession provisions in article two of the Tiriti and the official English version—has been largely settled, at least in my mind. The differences between the two phrases are real, and arise not from faulty translation, but because the first reasonably accurate translation of the phrase in the Hobson-Busby draft was modified, perhaps as a result of demands by the Maori at the (first) hui on 5 February. The Tiriti version is what the Maori agreed to, and what Hobson signed up to , a l though he may not have b e e n aware of t h e impor t of t h e differences be tween the Hobson-Busby draft and what he signed. This accoun t involves some conjec tures , but it is consis tent w i th t h e evidence and involves the least implausible set of assumptions to cover the missing evidence.

The alterations were not merely mechanical drafting or translation changes. A comparison of the Freeman and Hobson/Busby drafts shows a shift in the underlying vision. Freeman's is essentially a treaty of cession, as Normanby intended, and as Gipps proposed more crudely. By t h e t ime Busby (and pe rhaps Williams) had finished, the vision appears to have changed to something which is beginning to look like a social contract.

This is most evident in the articles. Article one does not change a lot. Its equivalent in the Gipps treaty says that 'Queen Victoria, shall exercise absolute Sovereignty in and over the Native Chiefs, their tribes and country, in as full and ample a manner as Her said Majesty may exercise Her Sovereign authority over any of Her Majesty's Dominions and subjects, with all the rights, powers , and privileges which appertain to the exercise of Sovereign authority. ' 3 6 In the Freeman draft it is reduced to 'cede to Her Majesty in full Sovereignty', which might be t r e a t e d as a c o n d e n s e d vers ion of t h e Gipps express ion . Busby elaborated it to 'cede . . . absolutely and without reservation all the rights and power s of Sovereignty which the said Confederation or individual Chiefs respectively exercise or possess . . . ' The phrase in the Tiriti becomes (as translated by T.E. Young) 'give up entirely to the Queen of England for ever all the government of their lands. ' 3 7 The translation by Miriama Penfold and Judith Binney is ' . . . give completely to the Queen of England for ever—all the Governorship of their lands.' 3 8

The size of the charige is dependen t upon h o w one evaluates the meaning of kawanatanga.

We can begin to see a shift in article three.The version of the Gipps treaty offers no more than the Queen 'does hereby engage to accept the said Native Chiefs and Tribes as her Majesty's subjects, and to grant Her Royal protect ion to the[m] . . . . in as full and ample manner as Her Majesty is bound to afford to o ther of Her Majesty's subjects and Domin ions . ' 3 9 F reeman 's drafts m o r e consciously offer 'Her Royal Protection and imparts to them all the Rights and Privileges of British Subjects', a sentiment which is continued through the other versions.

The biggest shift is in article two which moderates article one (as does article three) . The Gipps treaty offers ' the express understanding that the said Chiefs and Tribes shall retain for their o w n exclusive use and benefi t t he i r comfor table ma in tenance and r e s idence . ' 4 0 The Freeman draft offers nothing additional to article three. The Busby draft p laces obl igat ions on the Crown to guarantee owner sh ip of land resources, and other possessions, while the Tiriti refers to rangatiratanga, and an even wider set of property (or possession) rights.

Also instructive is the section from the attestation, which Hobson(?) removed, a very Hobbesian account of a country in strife which needs a sovereign to provide law and order, with its references to 'weaknesses and inability to repress dissensions', and ' the want of laws and authority to restrain and punish the evil disposed and criminal'.

Suppose one were to wr i t e a social contract in the contex t of Waitangi in 1840. It might consist of two or three clauses, one of which transferred some sort of governing power to a governor, and a second which preserved certain rights to those w h o had transferred that power. Those rights would be in two categories: general civil rights (although some modern social contract theory would tend to have the rights and privileges provisions prior to the articles)4 1 , and specific rights which would include property rights. Add a preamble and attestation, and one has a social contract which would look like the Hobson-Busby draft or the Tiriti.

Moreover the resulting structure of the final Hobson-Busby draft is not inelegant compared with, for instance, the Gipps unsigned treaty. The contras t is sufficient to suggest that t he r e was at least one thoughtful and creative mind devising the treaty proposal. Busby is the most likely candidate, although we must leave open the possibility that Henry Williams was influential too.

A number of people have argued that the Tiriti is (or was) in fact a social contract . 4 2 There is a myth, which I recall first hearing in my adolescence, that the Tiriti was a Hobbesian social contract, something which I reported well before I had come to the conclusions discussed here . 4 3 However this is not to say the treaty was intended to be one. But could it have been?

The idea of a social con t rac t (or 'social compac t ' , or Original contract ') was out of fashion in the middle of the nineteenth century. David Hume's criticism that the notion was a theoretical construct and not an empirical reality seemed pretty compelling. However at Waitangi in 1840 there was a situation in which some sort of social contract could become a reality. Yet if an idea is unfashionable amongst the in t e l l ec tua l e l i te , t h e p o p u l i s t may still ma in t a in t h e m y t h for generations—a phenomenon discussed further in the conclusion.

In any case w e k n o w that t h e not ion of a social cont rac t was discussed in the early part of the nineteenth century, if not among philosophers, then in sermons. Although the social contract is presented as a part of political philosophy, which it is, there is an older tradition of it in theology, deriving from the Old Testament covenant. We have a s e rmon of Richard Whately ( w h o became Archbishop of Ireland)

preached in 1821 in London, in which he discusses the social contract. While it is unlikely that Busby, Freeman, Hobson or Williams heard that particular sermon, they may have heard a similar one elsewhere.

This is conjecture, but we cannot rule out the possibility that Hobson and, more importantly,.Busby and Williams intended their treaty to have the elements of a social contract as an integral part of the cession. Indeed, Busby was aware of the notion of a social contract, which he advocated for New Zealand. He wrote in September 1865, recalling a t ime after the 1835 Declaration of Independence:

'There were not wanting however among the chiefs some w h o had the sagacity enough to perceive that something more was necessary than the abstract assert ion of rights of a Government , and the recognition of the parties in w h o m these rights are vested—"It was very well" they said "for such of them as were well disposed—but how were those to be managed, w h o were disposed to rebel?" "Such persons would pay no attention to the laws enacted by the chiefs, and w h o was to compel them?" Here was an actual trial of what could be done by the 'Social Compact ' and those w h o maintain that theory of the origin of governments rather than admit that "all power is God" and that Governments are of his ordinance might take a lesson from the primitive ideas of the New Zealanders. They—that is the more sagacious amongst them—said, in effect, that God had denied to them the blessings of a Government and Legislature, and they had themselves n o power to establish such Institutions.' 4 4

This is the only reference to a social contract thus far found in Busby's pape r s . 4 5 It is no surprise that he was aware of the notion, since h e was widely read. The focus of his last 30 years was the grievances he had with the Crown over land dealings, alas, and in this litigious process his interpretation of the Tiriti reads as if he was concerned with the Freeman draft version, with its emphasis on préemption in Article Two.

Nevertheless, even if this extract is not quite a smoking gun, on the balance of probabilities there was a conscious element of construction as a social contract in the Busby draft, given that Busby was favourably inclined to the not ion.

It is even less conjectural—although I have not direct e v i d e n c e -that because the treaty presented to the Maori was very evidently in the form of a social contract, the missionaries would have seized upon that interpretation, presenting it as a covenant between Crown and the Maori. The Maori appear to have readily accepted this interpretation, as d o w n the years they have described the Tiriti as a 'covenant' .

Henry Williams may have been crucial here, although thus far I have found no direct evidence that he ever contemplated a social contract . 4 6

More work is required on teasing out the political theories of protestant missionaries, such as Williams, but it is tempting to assume that there was an e l e m e n t of t h e l iberal social con t r ac t . Henry Will iam's contribution, if any, might be indicated by 'kawanatanga' as his choice for 'sovereignty', rather than mana', 'rangatiratanga', or kingitanga'.This moderates the agreement in a minimalist direction. We would need to k n o w more about Williams' political thinking before w e would be confident of this hypothesis. Nevertheless, at this stage w e cannot rule out that there were others than Busby w h o contributed towards the more liberal version of the social contract evident in the final Tiriti.

There is an interesting implication from the modifications to the various drafts. We described the Busby version as Hobbesian, and it cer ta inly has a centra l is t r ing to it. However as a resul t of t h e modifications the resulting social contract in the Tiriti is one of greater equality between the governor and the governed. So if the Tiriti is (or was) a social contract it is one of a liberal state where the powers of governance are the minimum necessary. Had this aspect of the Tiriti not been breached too, the path of New Zealand development would have been quite different.

Conclusions: Myths and the Treaties at Waitangi The title of this paper asks two questions which we can now answer.

First, was there a Treaty of Waitangi? The answer is almost certainly no, if we mean that there was.a document in English at the time of the signing of the Tiriti which was a parallel translation of the document that was signed. There was a Treaty of Waikato Heads which is what today we call the Treaty of Waitangi. However, the most likely candidate for the Treaty of Waitangi, the closest we have to a document which could be called a 'Treaty of Waitangi', is the translation of the Tiriti sent by James Clendon to the United States government a fortnight after the signing at Waitangi. Although we do not know for certain who did the translation, the most likely translator was a Williams.

Second, was it a 'social contract? The answer is that the treaty which Hobson and Busby drafted had elements of a social contract, and the circumstantial evidence suggests that at least Busby intended that the treaty he was involved in drafting be a social compact. We note also that the final form of Tiriti strengthens the social contract element of the Tiriti, particularly towards a more liberal arrangement in which political power was more diverse, rather than concentra ted in the sovereignty of the Crown. We cannot rule out that Henry Williams also supported this shift of emphasis (although the only circumstantial hint is the use of 'kawanatanga' in the text), and that the effect of the debate

at the first hui, and the input of o ther missionaries, contributed to the liberal final form.

The first conclusion is likely to be controversial because it contradicts the myth of the Treaty. Myths may be t rue or false. The myth of the Treaty of Waitangi is false, even though it is widely held. Despite Ross's seminal article, 18 years later in 1990 the nation celebrated the sesqui-centenary of the signing of the Tiriti on the basis that there were two documents of equal historical status and validity, one in English and the o the r in Maori. A stronger form of this myth is that the English language Treaty is the superior or more relevant one .

This conclusion even challenges the interpretation that when a treaty is agreed in two languages, in law the version in the native language is to be preferred, so that the Maori version of the Tiriti o Waitangi is superior. But there were not two documents in different languages agreed at Waitangi. There was not a document in English that was agreed on: there was probably not even a document in the English language that could be treated as a translation of the document agreed to. Insofar as there was a document in English (the Hobson-Busby draft) it was only a draft, and there seem to have been sufficient changes in the translation to give it no more status than that at the signing. The myth of the Treaty of Waitangi is based on a misinterpretation of the historical facts.

Myths a re an integral pa r t of a communi ty ' s a ccoun t of the i r percept ion of themselves. Their existence tells us much about those w h o hold them. Especially interesting is w h e r e the myth is inconsistent with the facts, and that this is well known in the academy. For instance, the anthropologist Henry Skinner demonstrated in the 1920s that the Moriori w e r e of Polynesian origin, bu t even today there are New Zealanders w h o believe they were Melanesian.The myth's strengths arise from the message that the Maori/Polynesians conquered the Moriori/ Melanesians, and took their land, wi th its implication that the Pakeha/ European were justified in doing the same to the Maori.

Similarly, the myth of the Treaty of Waitangi is a part of the European belief that the Maori signed away their sovereignty—that it was in essence the treaty of cessation which Gipps had in mind. The vast majority of Maori signatories agreed only to the Crown's governance of the nation, and it may be that the chiefs at the Waikato Heads and Manukau w h o signed the English language Treaty of Waikato Heads, which is the official version of Tiriti in English, had that understanding t o o . 4 7

There is an in te res t ing misunders tand ing here . Any transfer !of sovereignty—or of governance—was to the British Crown and not to

the British people. The notion of representative government was still evolving at the time. That Queen Victoria is somehow Our Queen' may be satisfying to the holders of the myth of the Treaty of Waitangi, even though her father and husband were Germans, and her mother came from Belgium.

Moreover, had there been an ordinary treaty of cession, such as the one Gipps seems to have had in mind, wi th a transfer of sovereignty and little offered to the natives in return, the British Crown would have had the right to unilaterally transfer the sovereignty to another power. The Freeman draft was a little less restrictive, in that the British rights and privileges of the Maori could have been preserved by, say, offering them British passports.

The Hobson-Busby draft begins to place obligations on the Crown, by its statement about the property rights of the Maori, and the Tiriti goes a step further w h e n it replaces sovereignty by governance, and extends property rights to those of rangatiratanga. The final agreement places enough restraints on the Crown that it could not unilaterally transfer the sovereignty of New Zealand without breaching the treaty which gave it its authority.

One could argue that the transfer of power to a local representative government was such a unilateral transfer. That belongs to another paper. The point here is that British constitutional involvement in New Zealand was founded on a much richer notion than a treaty of cession, even if this vision was largely lost within a couple of decades.

Thus the myth of the Tiriti being a social contract has an historical element of truth, even if the vision was not conscientiously pursued in later years. Its contemporary relevance is unclear. It may merely be a matter of historical accuracy, or perhaps of nostalgia for a path of constitutional development which New Zealand failed to realize. But following John Rawles' Theory of Justice the notion of social contracts has become fashionable again. It may be that the myth of the Tiriti as a social con t r ac t has a significant c o n t r i b u t i o n to t h e ongo ing constitutional and political development of New Zealand. Those w h o advocate the Tiriti being the foundation document of New Zealand are implicitly arguing that New Zealand society is founded on a social contract.

1. This is a revision of a paper to 'He Korero Tawhito, He Korero Hou. History Here and Now', NZHA Conference, Wellington, 8-11 February, 1996; an earlier version is B.H. Easton, Contract, Covenant, Compact: The Social Foundations of New Zealand, address to Spring Lecture Series of St Andrews Trust for the Study of Religion and Society, published in Socialist Politics, Issue 90/3,4.

This project involved many people , w h o whi le not responsible for the views or errors in this paper have contributed to its development in various ways..They include Whatarangi Winiata, Piripi Walker, and Martin Dawson w h o were involved in the broadcasting claim; participants at the vigorous but informal lunchtime seminar at the Stout Research Centre; various librarians and archivists at the Alexander Turnbull Library, the Auckland Public Library and National Archives; Claudia Orange w h o has patiently responded to a curiosity which borders on pestering; Barry Rigby of the Waitangi Tribunal; Melissa Bray w h o looked up some material in the Hocken Library for me; and Manuka Henare w h o has provided me with discussion and his copious annotated record of Busby's papers. Although I never met her, I am also in debt to Ruth Ross.

2. B.H. Easton, Working with the Maori: Consultancy, Research, Friendship, seminar paper for NZ1ER, 2 August, 1995, Working Paper Economic And Social Trust On N e w Zealand, 95.44.

3. B.H. Easton, A Pakeha Economist's Perspective on the Maori Broadcasting Claim. Commissioned by the N e w Zealand Maori Council, Wellington, 1989.

4. AJLC, 1869:69-71, reported in C. Orange, The Treaty of Waitangi, Wellington, 1987, p .263.

5 I.H. Kawharu, Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi, Auckland, 1989, p.319.

6. H.W.Williams, Dictionary of the Maori ¡Mnguage, Wellington, 7 ed, 1971. 7. p. 86. Oddly the 1971 edition of the Williams dictionary does not give a meaning of

kainga as 'village', which is the c o m m o n interpretation today. The implication of Bruce Biggs' Complete English-Maori Dictionary, Auckland 1981, is that there is no word for village in the William's dictionary which it reverses. The translation which Clendon sent to the US government translates 'kainga' as 'dwellings' (Appendix V).

8. C. Orange, op. cit., p.264. 9. B. Biggs, 'Humpty-Dumpty and the Treaty of Waitangi', in l.H. Kawharu, op. cit.,

graphically describes some of the translation difficulties. 10. facsimiles of the Declaration of Independence and the Treaty of Waitangi, 1877,

reprinted Wellington, 1976. 11. Henry Williams reports first visiting Hobson on 30th. L.M. Rogers The Early Journals

of Henry Williams: 1826-1840, Chnstchurch, 1961, p.477. 12. R.M. Ross, 'Te Tiriti o Waitangi: Texts and Translations', New Zealand fournal of

History, V\, 2 p. 129-57.

13- ibid. p. 139. .14. The reference to 'Victoria at Waitangi' may have been Busby the property developer,

with an eye to publicizing the township he was promoting. 15. 1 Sept 1840, reported in J. Busby, Appendix to a paper read at the Meeting of the

National Association for the Promotion of Social (sic) at York on the 23 Sept 1865 and Published with their Transactions, Busby Papers, MS 46, Box 2, F7, Auckland City Library, pp.92-3.

16. J. Busby, Remarks upon a Pamphlet entitled'The Taranaki Question, by Sir William Martin', Auckland, 1860, pp.3-4.

17. The most obvious case of a transposition of sentences occurs in the Freeman draft, with the shift of what is now the third article.

18. J. Busby, op. cit., I860 , p : l 4 5 -19 Page 1 and 2 have a line down their side, as has page 4 after the place set down

for the chief's signatures. Most of the rest of page 4 is crossed out. There is a large cross on page 3, immediately after the date. The implication, which subsequent

documents support, is that everything on page 3 from the cross to the witnessing was to be deleted. The deletion does not markedly alter the sense of the draft, but eliminates unnecessary or contentious justifications.

20. R.M. Ross, op. cit., p.135. 21. E. Sweetman, The Unsigned New Zealand Treaty, Melbourne, 1939. A transcription

of the Gipps treaty is in C. Orange op. cit., pp.260-61. 22. Hugh Carleton in The Life of Henry Williams: Archdeacon of Waimate, 1877,

Wellington edition, 1948, p.313, reports the making of the clean copy. He is quoting a manuscript by Williams Early Recollections, which seems to have gone missing, as have the Williams diary after January 1840 and other relevant papers which presumably included the early draft translations.

23. W Colenso, The Authentic and Genuine History of the Signing of the Treaty of Waitangi, Wellington, 1890.

24. J. Binney, Submission for the Waitangi Tribunal—Muriwhenua iMnd Claim. Doc F19, 1995.

25. New Zealand Parliamentary Debates, 1864-2, p.292. 26. B. Biggs, op. cit. 27. R.M. Ross, op. cit., p.133. 28. ibid, p. 129. 29. ibid, p. 136. 30. J.R. Clendon, Letter to Secretary of State, United States of America, 20 February, 1840,

in Micro 2607, RG59: Despatches from US Consul in the Bay of Islands & Auckland, National Archives.

3 1 . Taylor was away with Hobson to the Hokianga hui at the time Clendon was writing. 32. RM. Ross, op. cit., p.135. 33. In Clendon's Papers in the Auckland Public Library, 1839-72, NZMS 705, Clendon

House Papers, Box 1/1, there is one of the prologue and first two articles—probably the final page is lost—which is quite different from the one he sent to the US.

34. R.M. Ross, op. cit., p.134. 35. JR. Clendon, op. cit., 3 July 1840, op. cit. 36. Ε. Sweetman, op. cit., p.64. 37. C. Orange, op. cit., p.265. 38. J. Binney, op. cit., p.5. 39. E. Sweetman, op. cit., p.64. 40. ibid. 41. As occurred in the original Freeman draft. 42. e.g. B.H. Easton, 'For Whom the Treaty Tolls', Listener, February 5, 1990, p. 116, and

Contract, Covenant, Compact: The Social Foundations of New Zealand, op. cit.; R.E. Ewin, 'The Treaty of Waitangi and Hobbes's Condition of Mere Nature', in G. Oddie & R. Perret (ed) Justice, Ethics and New Zealand Society, Auckland, 1992, pp.60-72;J.Tichy, & G. Oddie 'Is the Treaty of Waitangi a Social Contract? in G. Oddie & R. Perret (ed) op. cit. pp.73-90; G. Fleming, The Treaty as Social Contract, paper to the N e w Zealand Political Studies Association, Conference, August 1995.

43. B.H. Easton, 'For Whom the Treaty Tolls', op. cit. 44. J. Busby, op. cit., 1865, pp.87-88. In the margin next to the paragraph is: Ί confess it

does not strike me in this light. It only appears to me that this 'Social Compact' was asking to talk and deliberate, but not to go a step further and act.'

45. It was found by Manuka Henare. 46. The closest, albeit very distant, discussion of what amount to Henry's political views

will be found in Carleton, op. cit., pp. 126-128. 47. RM. Ross, op. cit., p. 138.

Appendices of Drafts of The Treaty

I Drafts of the Preamble - Freeman's and Hobson's*

II Drafts of the Articles - Freeman's and Busby's*

III Drafts of the Attestation - Busby's*

IV The Sources of the Treaty

V The Clendon-US translation of the Tiriti.

VI The Genesis of the Tiriti

"Notes Most drafts come from the Facsimiles of the Treaty of Waitangi (1877). Busby's original draft is from his private papers . The Clendon-US translation of the Tiriti comes from Clendon, op. cit. 20 February, 1840. All were originally in handwriting, which is not always easy to read. Neither the capitalization of words nor the punctuation is systematic, and may not be accurately transcribed here.

Strikeout indicates parts struck out.

Underline indicates parts inserted, either above a gap, above the part struckout (in which case the underline follows the strikeout), or in the margin.

Appendix I: Drafts of The Preamble

Freeman's Draft

Her most Gracious Majesty Victoria Queen of the United Kingdom of Great Britain and Ireland viewing regarding with deep solicitude the present state of New Zealand arising from the extensive settlement of British Subjects therein

—and being desirous to avert the evil consequences which must result both to the Natives of New Zealand and to Her Subjects from the absence of the all necessary Laws and Institutions

Hobson's Draft Italics indicate insertions in Busby's

hand

Her Majesty Victoria Queen of the United Tribes Kingdom of Great Britain and Ireland regarding with Her Royal Favour the Native Chiefs and Tribes of New Zealand and anxious to protect their just rights and Property and to secure to them the enjoyment of Peace and good Order, has deemed it necessary, in consequence of the great number of Her Majestys Subjects who have already

settled in New Zealand ???/and the extension Emigration and who are still accumulating in the Land and the rapid extension of Emigration both from Europe and Australia which is still in progress to constitute and appoint a Functionary properly authorized to treat with the Native Chiefs for the Cession (?) of their Sovereignty Aborigines of New Zealand for the recognition of Her Majestys Sovereign authority over the whole or any part of those Islands which they be willing to place under her Majestys Dominion—Her Majesty therefore being desirous to establish a settled form of Civil Government with a view to avert the evil consequences which must result &.(?) Her Majesty

therefore being desirous to avert the evil cunsequences which must result, both to the Native Population and to Her subjects, residing in New Zealand from the abgence of all the necessary fcaws and Institutions ncecssary to restrain and Pioteet Her subjects Her Majesty

therefore being desirous to establish a

settled form of Civil Government with a

view to avert the evil consequences

which must result alike to tlte Native

Population to the Imperial Subjects

from the absence of the necessary Laws

and alike* Institutions alike to the

native population and to Her Subjects &

has been graciously has been graciously pleased to empower pleased to empower and and to authorize me William Hobson a to authorize me William Captain in Her Majesty's Royal Navy Hobson a Captain in Her Consul, and Ltn Governor & Ltn Majesty's Royal Navy Governor of such Parts of New Zealand

Consul, and Lieutenant as may as may be or hereafter be ceded

Governor in New Zealand to Her Majesty in New Zealand to invite to invite the Confederated the Confederated and Independent Chiefs and Independent Chiefs of of New Zealand to concur in the New Zealand to concur in following Articles and Conditions— the following articles and (The text is headed in Hobson's writing conditions. 'Papers relating to the Treaty of Waitangi. In addition there are the 45/522 Original Treaty of Waitangi & articles—Appendix II. other Papers relative thereto'. It is assumed

these were added after February 6 1840.) * misplaced in text?

Appendix II: Drafts of The Articles

Freeman's Draft Busby's First Draft 1st Article 1st Article The United Chiefs of New The Chiefs of the Confederation of the Zealand cede to Her United Tribes of New Zealand and the Majesty in full Sovereignty Individual Separate and Independent of the whole Country Chiefs who have not become members of contained between and the Confederation of the United Tribes of the North Cape will all cede to Her Majesty the Queen of the Islands adjacency England absolutely and without thereto included between reservation all the rights and powers of the degree of Latitude and Sovereignty which the said Confederation the degree of Longitude, or Individual Chiefs respectively exercise and the degree of Latitude or possess, or may be supposed to and the degree of exercise or to possess over their longitude. respective Territories as the sole

Sovereigns thereof.

2d 2nd Article The United Chiefs of Her Majesty the Queen of England New Zealand confirms and guarantees to the Chiefs eemcede yield to Her and Tribes of New Zealand and to the Majesty the Queen of respective, families and* individuals England the exclusive thereof the full, exclusive and right of Preemption undisturbed possession of their Lands and

over such waste lands as the Tribes may feel disposed to alienate

3d article In consideration thereof Her Majesty The Queen ?**?? extends to the Natives of New Zealand Her Royal Protection and imparts to them all the Rights and Priviledges (sic) of British Subjects Note this paragraph is between the preamble and first article in the draft, but in the margin it is bracketed with the addition "3d article"

Estates, Forests Fisheries and other properties which they may collectively or severally** possess so long as it is their wish and desire to retain the same in their possession. But the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective proprietors and persons appointed by Her Majesty to treat with them in that behalf.

3rd Article In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her Royal protection and imparts to them all the rights and privileges of British subjects. ***

The second draft has the following changes: * and and ** severally individually. *** Signature of the British Plenipotentiary? in Freeman's handwriting

Appendix ΠΙ: Drafts of The Attestation

Busby's Original Draft Now therefore We .the Chiefs of the Confederation of the United Tribes of New Zealand being assembled in Congress at Victoria in Waitangi on the Fifth day of February in the year of our Lord one thousand eight hundred and forty—and having understood and seriously considered (the invitation of)* the gracious Queen of England: and being sensible of our own weaknesses and inability to repress differences and to defend our

Busby's Clean Copy Now therefore we the Chiefs of the Confederation of the United Tribes of New Zealand being assembled in Congress at Victoria in Waitangi For and behalf of Ihme we represent* on the Fifth day of February in the [EOP2] year of our Lord one thousand eight hundred and forty X [Over hyphen, an insertion indicating the text was to be deleted thereafter?] and having understood seriously considered the gracious

Country against external enemies— and feeling also the want of Laws and authority to restrain and punish the evil disposed and criminal amongst us both Natives and foreigners: and having had occasion from past experience of the benignity and good faith of Her Majesty and Her Majesty's Royal predecessors to repose entire Confidence in Her Majesty, do fully and entirely cede and yield up to Her Majesty the Sovereign, of our

territories extending from the North Cape to the Northern Head of the Estuaries of the Manukau and the River Thames, and including with all the Islands adjacent thereto lying between degree and degrees of Latitude and the and degrees of Longitude. In testimony whereof the ???? offer our signaiuics or Marks (And ????)* we further yield to (Her Majesty the exclusive right)** of preemption over all our Waste Lands. Accepting the principles and Rights of British subjects and relying ???? Her Majesty's Royal justice and benignity to our simple and unenlightened countrymen in witness whereof we have attached our signatures or Marks on this da

invitation of the Queen of England: and being sensible of our own weaknesses and inability to repress (?) internal differences and to defend our Country against external enemies: and feeling also the want of Laws and authority to restrain and punish the evil disposed and criminal amongst us both Natives and foreigners: and having had occasion from past experience of the benignity and good faith of Her Majesty and Her Majesty's Royal predecessors to repose entire Confidence in Her Majesty, do fully and entirely cede and yield up to Her Majesty the Sovereign, of our territories extending from the North Cape to the Northern Head of the Estuaries of the Manukau and the River Thames, and including all the Islands adjacent thereto lying between the and the degrees of Latitude and ¡EOP3J the and the degrees of Longitude. And we further yield to Her Majesty the exclusive right of preemption over all our Waste Lands. Accepting the privileges of British subjects and relying ???? Her Majesty's Royal justice and benignity to our simple and unenlightened countrymen. In witness whereof we have attached hereunto our Signatures or Marks on this day of The Mark of The Mark of

For the Independent Chiefs And we the Separate and Independent Chiefs of New Zealand claiming authority over the Tribes and Territories which are

For the Independent Chiefs And we the Separate and Independent Chiefs of New Zealand claiming authority over the Tribes and Territories which

specified after our respective names, having been made fully to understand the provisions of the foregoing treaty, accept and enter into the same in the full sense meaning and extent thereof in witness of which we have attached our signatures or marks at the dates and the places respectively specified -

* my photocopy omits these words.

are specified after our respective names, having been made fully to understand the provisions of the foregoing treaty, accept and enter into the same in the full spirit & ? extent at spii it meaning thereof in witness of which we have attached our signatures or marks at the dates and the places respectively specified -EOPn = end of page n. 'insertion not in Busby's handwriting. Freeman's?

Appendix IV: The Sources of The Treaty

Trea ty Of Waika to H e a d s Her Majesty Victoria Queen of the United Kingdom of Great Britain and Ireland regarding with Her Royal Favour the Native Chiefs and Tribes of New Zealand and anxious to protect their just Rights and Property and to secure to them the enjoyment of Peace and Good Order has deemed it necessary in consequence of the great number of Her Majesty's Subjects w h o have already settled in New Zealand and the rapid extension of Emigration both from Europe and Australia which is still in progress to constitute and appoint a functionary properly authorized to treat wi th the Aborigines of New Zealand for the recognition of Her Majesty's Sovereign authority over the whole or any part of those islands—

Her Majesty therefore being desirous to establish a settled form of Civil Government with a view to avert the evil consequences which must result from the absence of the necessary Laws and Institutions alike to the native population and to Her subjects

Source (first) Hobson's draft

Busby's amendment to Hobson's draft

has been graciously pleased to empower and to authorize me William Hobson a Captain in Her Majesty's Royal Navy Consul and Lieutenant Governor

of such parts of New Zealand as may be or hereafter shall be ceded to Her Majesty

to invite the confederated and independent Chiefs of New Zealand to concur in the following Articles and Conditions.

Article the First The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs w h o have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess, over their respective Territories as the sole Sovereigns thereof.

Article the Second Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other propert ies which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed u p o n be tween the respective Proprietors

Freeman's (& Hobson's) draft

Busby's amendment to Hobson's draft

Freeman's (& Hobson's) draft

Busby's first draft {with "individually" replacing "severally" as in the second draft)

Busby's first draft

and persons appointed by Her Majesty to treat with them in that behalf.

Article the Third In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects. (Signed) W Hobson Lieutenant Governor

Now therefore We the Chiefs of the Confederation of the United Tribes of New Zealand being assembled in Congress at Victoria in Waitangi

and We the Separate and Independent Chiefs of New Zealand claiming authority over the Tribes and Territories which are specified after our respective names, having been made fully to understand the Provisions of the foregoing Treaty, accept and enter into the same in the full spirit and meaning thereof in witness of which we have attached our signatures or marks at the places and the dates respectively specified—

Done at Waitangi this Sixth day of February in the year of Our Lord one thousand eight hundred and forty.

Freeman's draft with Busby's correction of the spelling of privileges.

From Busby's first draft

From Busby's first draft

Only Busby's draft mentions a date (5 February)

Appendix V: The Translation sent by Clendon to the US Her Majesty Victoria Queen of England in her Gracious consideration the Chiefs and people of New Zealand and her desire to preserve to them their lands and to maintain peace and order amongst them, has been pleased to appoint an Officer to deal with them for the cession of their sovereignty of their count ry and the Islands adjacent t o thereto(?)—and saving that many of her Majesty's subjects have already settled in the count ry and more constantly arriving. And that it is desirable for their protection as well as the protection of the Natives to establish a Government amongst them.

Her Majesty has accordingly been pleased to appoint me William Hobson a Captain in Her Majesty's Royal Navy to be the Governor of such parts of New Zealand as may n o w or hereafter be ceded to Her Majesty.

And proposes to Chiefs of the confederation of the United Tribes of New Zealand and the other chiefs to agree to the following Articles.

Article the First The Chiefs of the Confederation of the United Tribes of New Zealand and t h e separa te and i n d e p e n d e n t Chiefs w h o have no t b e c o m e m e m b e r s of the Confederation cede to Her Majesty the Queen of England absolutely and wi thout reservation all the rights and powers of Sovereignty w h i c h t h e said Confederat ion or Individual Chiefs respectively exercise or possess over their respective territories as the sole Sovereigns thereof

Article the Second Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes and to all t h e peop l e of New Zealand the full possession of their Lands, dwellings, and all their property. But the Chiefs of the confederation Tribes and the other Chiefs grant to the Queen the exclusive right of purchasing such lands as the proprietors thereof may be disposed to sell at such prices as shall be agreed upon between them and the persons appointed by purchase from them.

Article the Third In return for the cession of the sovereignty to the Queen of England the people of New Zealand will be protected by the Queen of England and the rights and privileges of British subjects will be granted to them.

signed William Hobson, Consul and Lieutenant Governor

Now w e the Chiefs of the confederation of the United Tribes of new Zealand being gathered at Waitangi and w e the other chiefs of New Zealand having understood the meaning of these Articles accept of them All. - In witness whereof our Names and Marks are affixed.

Done at Waitangi on the sixth day of February in the year of our Lord One Thousand and Eight Hundred and Forty.

The following note was appended Item:This translation is from the Native document and [is] not a Copy of the Official document in English from which the Native one is made and although the words may be different from what they are in the Original(?) I think the sense is much the same but on the return of

Captn Hobson from the ? I shall apply officially to him for a copy and t rans la t ion of t h e Treaty for t h e p u r p o s e s of s e n d i n g it t o t h e Government of the United States

James R Clendon (signed) US Consul

Appendix VI: The Genesis of The Tiriti The following is the scenario developed in the text. Where possible, the chronology follows that in Orange (1987).

Actual or conjec tured texts are labelled w i th two le t ters (and sometimes a number) . On the first occasion it is mentioned the symbol is emboldened. An asterisk indicates the text is in Maori. The various texts are summarized at the end.

1839

14,15 August: Normanby's Instructions to Hobson—do not contain a draft or model treaty.

27 December: Hobson arrives in Sydney, where he stays until 18 January. He spends m u c h t ime wi th Gipps. Presumably they discuss the contents of Normanby's instructions, and the treaty which they imply. It is conjectured that the notion of the treaty they discuss is captured in the 'unsigned treaty', which Gipps offers to some Maori on 14 February (GT).

1840

29 January: Hobson arrives in Bay of Islands. He sees Busby on this day. Over the next few days Hobson, Busby, and Freeman discuss the proposed assembly of chiefs.

30 January: Colenso prints invitation to assembly. Henry Williams visits Hobson. Hobson, Busby and Freeman (and Williams?) begin serious discussion on contents of the proposed treaty, (about) Hobson directs Freeman to prepare a draft treaty based on the previous discussions.

31. January: Hobson goes to Waimate and Hokianga.

1 February: Hobson returns from Hokianga.

2 February. Sunday. Hobson and Busby (also Freeman and Williams?) discuss Freeman's draft (FD) . Make alterations on it, but decide it is still unsatisfactory. Hobson begins own draft (HD) .

3 February: Hobson is too ill to complete draft. He sends his draft p r eamble , and t h e F reeman draft to Busby. Busby amends Hobson's draft preamble, and wri tes d o w n his own articles and attestation ( B D I ) . He then rewrites the latter into a clean copy (BD 2).

4 February (morning): The amended preamble and Busby's clean c o p y are d i scussed by Hobson , Busby and Freeman (and Williams?). Busby's draft is amended. Freeman writes a clean copy of the composi te Hobson-Busby draft (HB), probably in early afternoon.

4 February (from 4pm): Henry and Edward Williams are given the Hobson-Busby draft to translate. They dó this in the evening (Wl*). Williams prepares clean copy for hui (W2*).

5 February (9am - 10am):The Williams translation is looked at by Busby a n d H o b s o n . Busby s u g g e s t s o n e a m e n d m e n t 'whakaminenga ' for 'huihuinga ' .

5 February (10am onwards):The Maori and others gather. Hobson reads an English t ex t ( i . e . HB). H e n r y Will iams reads h i s (amended) translation of the Hobson-Busby draft (i.e. W2*).There is considerable dissatisfaction among the Maori.

5 February (from about 4pm) : Meeting breaks up . Henry and Edward Williams further amend the text in the light of the discussion that day. The text (i.e. W2*, but now a 'rough' copy because of alterations) is given to Taylor, w h o writes it out on parchment (making a couple of small transcription errors) that evening. This is the Tiriti o Waitangi (TW*).

6 February: At the second meet ing the Maori sign the Tiriti o Waitangi (TW*).

8-17 February: Colenso prints copy of the Tiriti (CT*).

9-18 February (i.e. afterwards): Clendon obtains copy of Tiriti, but is unable to obtain copy of English translation. Goes to one of the Williams (Henry?).

10-19 February (i.e. afterwards) Williams provides Clendon wi th a translation of Tiriti (W3) .

20 February: Clendon transcribes the Williams translation which h e sends to US Secretary of State (CU), with copy of Tiriti printed by Colenso.

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Comment

H o w Good Are We? —Another View

Fraser Boyd

Upper Hütt

Although neither an archivist nor a records manager, I would like to follow up , from a quality assurance perspec t ive , Stuart Strachan's excellent article in the April 1996 Archifacts. Stuart discussed service evaluation—essentially, h o w you find out h o w [well] you are serving your customers . The first principle of quality service delivery is to identify the customer, and frequently the answer comes as a surprise.

Archivists have a number of customer groups, whose needs are not identical and may at times be in conflict. These customers are:

1. t h e p e o p l e w h o c o m e in to your o rgan i sa t ion today seek ing information;

2. the people w h o require you to keep information (your company, the government);

3. yourself, i.e. your own personal and professional integrity; 4. generations not yet born w h o will want or need the information; 5- the peop l e w h o O w n ' t h e information, such as the originating

government depar tment or a group which has deposited material.

Information Seekers It is not unfair to suggest that it is the first group which gets the most attention, if only because their demands tend to be the most u r g e n t -even though they may conflict wi th those of o ther customers . The better these demands are satisfied, the fewer problems will arise. No one wants to spend their working life repeating work, carrying out unproductive searches, apologising for what can't be done, etc.

This sort of customer satisfaction can be measured reasonably easily with modern quality discipline techniques. Most of these were listed in Stuart's article. All have their place if applied correctly, including the 'secret shopper ' technique to which Stuart took some exception. I will

discuss be low a variation of this t echn ique w h i c h may b e m o r e acceptable.

Who Pays the Bills? While the people w h o pay your wages should in theory get the best, or the most, service, they may in practice have little need for them. The government per se has little day-to-day use for National Archives. It recognises that archives must be kept for the national good, without quite understanding why. At least part of the recent furore over National Archives can be attributed to this lack of understanding, which raises a real issue of cus tomer service: how to deliver a service to this customer sufficient to obtain its uncompromising loyalty.

Professionalism Do archivists , w i th in their o w n cul ture , express values that are meaningful to them but not to their customers? They have professional standards and wish to provide a professional service to all customers, even those w h o do not fully understand what they are asking for. How can your archives operation meet both your customers ' requirements and your own? There are other areas of conflict. For example, customers may want instant photocopies of fragile and faded documents, creating a conflict wi th good archival practice. The owners or depositors of material frequently stipulate conditions of access which, whe ther they are restrictive or permissive, pose problems for archivists.

The Unborn Customer The need to keep an item for centuries constrains its use today. It also involves guessing the requirements of future users, and generates a need for duplicate systems to cope with both sets of customers. While w e are better than w e used to be at archives management, wi th more logical systems and better documentat ion of them, are we capable of th inking b e y o n d today 's t echno logy to t h e n e e d s of t o m o r r o w ' s customers?

Every time we change technology, especially as w e move away from visual technology, such as paper or microfilm, w e must b e aware that w e create the risk that future generations will not be able to access the records, or will need a great deal of expert help to do so.

Quality Evaluation There are a number of relevant quality evaluation techniques which can be applied relatively easily. I will discuss three of these briefly.

Stuart's reservations about the use of the 'secret shopper ' might be met by the introduction of 'non-secret shoppers ' . One approach might

be to have a panel of, say, ten frequent users w h o meet archives staff several times a year to discuss issues of customer service. They would be known to staff as regular customers and panel members. They would act as flies on the wall', overhearing remarks such as Ί didn't get what I w a n t e d ' , Ί don ' t have time to wait any longer ' , 'They really need two copies of that finding aid ' .They would be able to suggest that archives staff be more conscious of the needs of specific groups of people , and so on . As Stuart suggests , you can learn a great deal abou t your organisation by simply 'sitting and watching' .

'Benchmarking ' is a second powerful tool . You can benchmark yourself against similar organisations. What methods do you use to achieve a particular purpose? How many staff do you each have to carry out a specific number of transactions? How long is the customer 's waiting time? Why the difference? The answers should help you improve your o w n performance. You can also learn from dissimilar organisations w h i c h have analogous decision-making techn iques or m e t h o d s of working. The accounting profession has much to offer archivists and records managers, but wha t about looking at how the pharmaceutical profession manages its stock, with its need for batch identification, special storage, security, age control, controlled access and so on? The ideas are limited only by your imagination as you look for parallels.

'ServQual' is a methodology for finding the 'gaps' , such as those b e t w e e n w h a t your cus tomers want , and wha t frontline staff and m a n a g e r s th ink t hey w a n t . Is wai t ing t ime t h e mos t i m p o r t a n t consideration, or would customer satisfaction be most enhanced by improving finding aids and/or ordering systems so that the 'wrong' file is delivered less often? ServQual provides a means of addressing such questions.

Conclusion There are well-established and ethically acceptable ways to answer the question, How good are we?' , and most of these methods facilitate increased efficiency and effectiveness. One of the best ways for a non-revenue-earning organisat ion to improve its chances of obtaining adequate funding is for it to develop a reputation for providing really good service. To do this it must identify its customers, find out what they want , and work ou t t h e best way to mee t their needs . The inevitable compromises between different groups of customers can only be made acceptable through good public relations, superior service, and an active approach to seeking ou t cus tomer opin ion in order to minimise the perception that needs are not being met.

Comment

T w o responses to Brad Patterson's paper on 'Professionalism and N e w Zealand Archivists'*

Sarah Weiland

Ministry of Justice

I seemed to undergo a Mr Hyde to Dr Jekyll transformation while , reading Brad Patterson's pape r 'Professionalism and New Zealand Archivists'(Araf>//HCi.s, April 96). For the first few pages I was scrawling notes in the margins, muttering to myself that this Utopian archival view was all well and nice, but what about something called 'reality'? Then, all of a sudden, almost in response to my gnashing teeth and furrowed brow, the emphasis of the paper veered away from the debate on what makes u p a professional, turning to the need for the profession's promotion. At this point I switched from cynicism into cautious support. It was good to have someone voicing at least some of the concerns I have had buzzing around in my head, even if I could not realistically see the immediate application of some of the suggested solutions. Later on, w h o knows? Anything is possible.

I would now like to outline some of the thoughts that occurred to me while I read the article. I am a practising archivist, although I do not currently work the ideal 'full-time' cited as being one of the factors that make up the professional archivist. I also hold a post-graduate Diploma in Archives and Information Management. It is wi th this background that I express my views.

In the article, there seems to be an initial 'disapproval' of suggestions that archivists ideally should be bitsers', that is, trained in and able to work in other information management areas. The author 'seriously

•Revised texts of panel contributions to a session of the annual conference of the Archives and Records Association of N e w Zealand at the Quality Hotel, Willis Street, Wellington, 24 August 1996.

questions whe the r this is a path that would lead to the development of a t rue New Zealand archives profession. Yet, a couple of pages on, he argues that the foundation for any claim to professional status must be the possession of a body of specialist knowledge. He continues: that 'knowledge will typically be largely unique, though of course (my emphasis) there will be borrowing from other disciplines'. He finishes by saying that this 'body of knowledge will not be static, but will be extended according to need and n e w information .'These observations merit a few comments . First, wha t happens if the new knowledge one n e e d s e x t e n d s to , or b lurs wi th , o t h e r informat ion m a n a g e m e n t disciplines? For example, since archivists are n o w actively embracing the concep t of electronic records, does that mean that w e are all forsaking our potential professional status because this area borrows so much from records management? Secondly, where is the implied line be tween borrowing ideas from other professions and becoming less pure professionally? Can one really say that the idea of a bitser' archivist is not a good one? In terms of career advancement, or even just job survival, multi-skilling is definitely the current buzz word. An archivist w h o scorns records management and library based knowledge may become the last of the archival dinosaurs. To be really blunt, I would rather have skills in numerous disciplines, and know I have career p ro spec t s , t han be the wor ld ' s expe r t on some esoter ic pa r t of arrangement and description theory and not be able to get a job.

T h e s e c o n d issue I w o u l d like to raise is t h e individual as a professional archivist.The author mentions a number of issues that may affect individuals per se, but little is said about what is really going on in Jo(e) Average Archivist's mind, and her or his percept ion of the archives world at large. I propose to remedy this problem by outlining my own thoughts in this area. I certainly cannot speak for all archivists but, since I work in the profession, I certainly have some opinions! Dr Patterson, intentionally or otherwise, seems to overlook what I consider to be the incredible dedication and professionalism of archivists working today. We might not all have post graduate degrees, be world famous, or have the general population know what w e do, but I am sure that our dedication, work-output, and ability to produce amazing results in less than amazing conditions, puts us, at least in terms of our work ethic, on a par with any other recognised profession. I feel this is too often overlooked. We concentrate on the drawbacks of our profession and often forget wha t w e do manage to achieve. If w e looked at professionalism as being a state of mind, we are all professionals.

So, w h y are archivists not pu t t ing the effort exhibi ted in the workplace into developing the profession? Brad Patterson cites a

number of reasons, some of which I agree with, others I do not. The reasons I agree wi th include workload, and restricted advancement prospects. I would, however, like to add some further reasons why w e could be seen as the mouse-like, crisis-driven and non-professional vocation described. The first is support, or rather the lack of it. By this I mean that there has to be some form of 'nurturing' by employers to guide new staff into a 'professional' frame of mind, and to jolt trained staff to continually upgrade their own professional standing. To me there seems to be a chronic lack of this professional nurturing, both in large and small institutions. Staff are essentially left to their own devices to learn about professional associations, archival networks, about reading and contributing to national and international debate. A 'sink or swim' approach seems to be the current strategy of some employers regarding professional development, if it is mentioned at all. Perhaps the tyranny of the immediate is all persuasive. In smaller and sole-charge archives I imagine tha t isolation could also play a big par t in inhibi t ing professional development. In such cases the archivist is surrounded by employers or workmates w h o have no real idea regarding what the archivist does, which hardly makes professional development easy! Yet all is not lost. I cannot speak for smaller institutions, but at National Archives the most recent round of competency development recognised the need to achieve many 'professional' level skills.There has also been a promise made that adequate suppor t will be given to allow the archivist to develop these skills. I can only hope that money will be put where the mouth is.

A second reason I see as contributing to the lack of the perceived 'professional' archivist is the worrying current predilection for archives, small and large, to be seen as ripe for political or bureaucratic tinkering. Besides the ethical issues of whe the r archives should be developed around a political agenda, it makes us as archivists very vulnerable. In order to secure the money, and to survive, we often have to play the political game, even if that game takes us in directions far from those which would be dictated by 'pure ' professional standards and ethics. How can we develop a direction which will take us to new professional archival heights if the people holding the money keep on changing the signposts? We could stand up for our archival rights but, at the end of the day, until archival institutions can stand aside to some extent from the political manoeuvring, we will always have an achules heel.

A third and final reason I would suggest is a lack of any clear perception as to w h o our main clients are. This conundrum applies to large and small archival institutions, anywhere where the main stated purpose for existence differs from the interests of the main clientele.

You may be asking h o w working out w h o our main clients are is related to w h a t is k e e p i n g us from b e c o m i n g t h e u l t imate professional archivists. My argument is that, in order to be able to set u p the irifrastructure necessary to nurture the professional ethic, you must have a clear and understanding base of support from which to work. To have this base of support , you must market your services. As Brad Patterson writes, 'professional status, like loyalty, is earned.' You will not get a professional status if you are not sure of w h o your friends really are.

I think a healthy dose of reality is necessary for the profession to survive, let alone flourish. It is important for people to take us seriously, and for us to be recognised for our valuable, unique knowledge base. It is entirely possible that the concept of the professional archivist suggested in the article will grow naturally out of a successful marketing campaign. Support for things such as training programmes and codes of conduct will grow if enough non-archivists feel that being an archivist is a worthwhile profession. I must add, however, that any marketing campaign will have to be very thoughtfully worked out. There is a danger of ending up in a similar situation to the goose that laid the golden egg. There was so much demand for eggs that the goose ended u p dead. Who knows? There may be a danger of us being marketed out of existence, although I seriously doubt this. Where else could e m p l o y e r s o b t a i n s u c h d e d i c a t e d , u n d e r p a i d and h a r d w o r k i n g individuals? Anyway, in order to market our professional knowledge, w e need to have it, and to show that w e can use it.

So, in essence, my message to Brad Patterson would be that it is great to get such concerns out into the open, but in order for us to become professionals in the 'pure ' sense, the following things may need to happen:

1. People need to know what an archivist is, and to take the profession seriously. We need to change the almost universal ignorance about our profession and, the attitude, once it is explained what w e do, that it must be 'really boring and out of date ' (and other such inane comments) . To change and enlighten attitudes w e need to market ourselves vigorously.

2. Archivists themselves need to be valued and supported in their endeavours to support or initiate change. I have too often seen talented people leave the profession in disgust because they have been knocked back one time too many.

3. I agree that training is vitally important, but perhaps placing initial emphasis on post graduate training is gett ing a little ahead of ourselves. We need to concentrate on getting our own skills u p to

a 'professional' or 'international' level, call it wha t you will. To my mind the debate over electronic records has given New Zealand archivists an excellent kick-start in professional development, forcing us to look further afield and to consider international trends.

4. I consider that the development of the professional archivist is intertwined wi th the development of the archives institutions. For a long period, archives in New Zealand were like a preschooler rin a large family—fed and cared for, but often overlooked. They could do what they wanted within set boundaries. Nowadays, the pre-schooler has grown to adolescence. There are definite hints of things to come. The teenager wants to be part of the g rown u p world, but is still easily shy, put off by obstacles, and occasionally unsure of how s/he fits in.The teenager still has boundaries imposed by 'parent' organisations. In a way, w e are reaching a crossroads in the teenager's life. We need to make sure that this teenager does not go off the rails under pressure from bullies, but instead becomes a mature adult, and gets treated like one. People view our profession according to the response they get from the institutions in which w e work. Let's get this sorted out first. Hopefully, the rest will follow.

Note: Sarah Weiland worked for the National Archives for over seven years. She now works for the Ministry of Justice where her main tasks include implementing, maintaining and/or further developing the Ministry's electronic and physical record systems.

Stuart Strachan

Hocken Library

At the 1995 Palmerston North ARANZ Conference I presented a short p a p e r How good are we? Sketching the parameters of service evaluation? Añcr considering this and that, my honest answer was that I did not really know—objective and subjective data were lacking. But my suspicion was that not badly, but not wonderfully well either.

' So it is with professionalism. We have Moore's six points, as outlined by Brad Patterson in his paper. On the basis of these I think it fair to say that we have an archives profession in New Zealand, if small and not yet fully formed. But it is entirely possible to have a fully formed

profession and still not be doing a good job. If objective data are lacking, then w e must work inferentially from our own progress in New Zealand over t ime, and look overseas for examples of wha t is 'best practice ' .

If w e look within New Zealand at our progress over time, particularly in t h e last 25 years, t h e n w e can say that the changes have been eno rmous . We have many more archives, more archivists, and more archives institutions than ever before. In 1971 there were perhaps 20 archivists in New Zealand. The holdings at National Archives were in the region of 12,000 linear meters . Since then these have increased by more than five-fold. A conference with nearly 200 attendees would have b e e n inconceivable. More to the point , w e have a body of trained archivists. Twenty-five years ago formal training could only b e procured overseas or on the job, and was therefore confined to very few. Nobody had full diploma-level postgraduate training. Now w e have almost 30 so trained, and many more have had the benefit of short courses. And w e are also on the verge of instituting full professional training in New Zealand. Our finding aids are better, and reading facilities are vastly improved. These developments, however, gratifying though they are, only tell us w h e r e we n o w are in relation to where we were, not h o w good w e are absolutely.

It is at this point that w e need to look overseas, not an impossible t a sk w i t h so m u c h hav ing b e e n p u b l i s h e d on profess iona l i sm, professional education, and standards. Many of us have n o w visited archives institutions overseas, and perhaps most important of all, we have the returning professionally—educated archivists from overseas. They are at once a joy and a pain. I am n o w well-resigned to a constant re-educat ion in sucking eggs, bu t they do bring with them ideals, standards, and enquiring and innovative ideas, challenges to orthodoxies. Their energy—they are usually young—can cause us to reassess our priorities.

My conclusion, reluctantly, on the basis of overseas comparisons, and r emember w e tend to fix on the best practice overseas, is that w e have huge distances to go:

(1) In understanding the record in terms of its context and intrinsically.

(2) In developing understanding and meeting the real needs of users.

(3) In developing and applying standards of performance measurement appropriate to archives services.

(4) In creat ing for ourselves a p r o p e r and respected place in the information spectrum.

(5) In coming to grips with the electronic record—not just in the sense of seeking technological fixes, but in understanding that record. Perhaps here there is a fresh territory for the recently revived subject of diplomatics.

On the basis of these suggested deficiencies my view is that, while we have done well, in some areas, there is much still to do. And for that we need able, committed and flexible minds if w e are to progress faster than w e are doing now, if w e are to begin to catch u p wi th 'best practice' , that beautifully ill-defined term, overseas.

To my mind, that means more and more emphasis on professional education. We must be able to provide and sustain a lead that will develop our work with archives and so our standing as a profession. It should never be forgotten that professionalism is not an end in itself, any more than is archives education. What matters for us as archivists is better archives and better archives services, just as for doctors it is better health, and for teachers it is better educated children. If, as the result of this, w e achieve better status, more pay, then, and only then, will w e have our just reward. Appreciation will come w h e n w e can up, and can show that we have upped, our contribution to society. This means much greater promotion of our work than hitherto, our being ab le to d e m o n s t r a t e t h e va lue of o u r w o r k object ively, us ing performance measures if we have to. This implies the introduction of standards. Is there a role here for National Archives?

Obituary

David Bübrough 1947-1997

It is wi th sadness that the New Zealand archives community notes the death of David Bilbrough on 20 January 1997. Although he initially trained as a pharmacist , David joined National Archives in 1992, having completed the Wairarapa Community Polytechnic Certificate in Archives Management . He brought a quiet enthusiasm to his second chosen profession and was noted for his meticulous attention to detail which was perhaps perceived best in his work on valuing the National Archives collection.

David was willing to give of his energies to furtherance of the cause of archives. At t h e t ime of his dea th David was secretary for the Wellington Branch of the Archives and Records Association; during 1996 he worked on the commit tee that organised the 1996 ARANZ conference. T h e convenor of that commit tee commented that once given a task David wou ld comple te it as required wi thout further prompting.

As a co l league David invited o the r s to enjoy the peace of his Wairarapa hom e . Visits tended to be a mixture of good company, music, w i n e and food, often c o m b i n e d w i th tours around his h o m e and proper ty .There h e indulged his passion for collecting—books, old cars, photographs of old buildings of the area.

Both socially and at work, colleagues will remember and miss David's incisive h u m o u r and integrity. Always one to call a spade a spade, as a mentor David was nevertheless very patient and thorough. Researchers at the National Archives also appreciated his enthusiasm and expertise and would ask particularly for him.

David once said that he expected to remain at National Archives to the end of his working life, that h e could see there was plenty to interest and absorb him in the collections and that there would always be n e w tasks to undertake, new areas to explore. One could fervently wish that his working life had been longer and his passing is deeply regretted.

Kathryn Patterson Director and Chief Archivist

National Archives, Wellington

The J.M. Sherrard Award in N e w Zealand Regional and Local History

This biennial award was inaugurated in 1972 to commemorate the work of the late John Qock) McAra Sherrard and to encourage scholarly research and writing in New Zealand regional history. Judges for the 13th judging, which considered books listed in the National Bibliography for 1994 and 1995 were Dr Gavin McLean (NZ Historic Places Trust), Dr Len Richardson (former Senior Lecturer in History) and Dr Geoffrey Rice (Associate Professor in History, University of Canterbury.)

The judges described the Major Award Winner, Building the New World, as an outstanding work of scholarship, almost in a class of its own. It stood head and shoulders above the other finalists and is probably the best piece of research and writing on a New Zealand locality to appear so far. Though the author describes it as a collection of essays, the work has unusual coherence and depth, with a powerful sense of change and continuity across time. Academically a rich book, it is also an immensely rich and satisfying reconstruction of the past in which anecdotes and stories of individual workers and women combine to weave a wonderful tapestry. Major Award Erik Olssen, Building the New World: Work, Politics and Society in Caversham, 1880s-1920s, (Auckland University Press, 1995), 297 pp . Highly Commended Rollo Arnold, New Zealand's Burning: the Settlers' World in the mid-1880s, (Wellington, Victoria University Press, 1994), 319 pp . Margaret Lovell-Smith, Plain Living, High Thinking: the Family Story of fennie and Will Lovell-Smith, (Christchurch, Pedmore Press, 1995), 185 pp. Matthew Wright, Hawkes Bay: the History of a Province, (Palmerston North, The Dunmore Press, 1994), 215 pp .

Commendations Ian Church, Port Chalmers and its People, (Dunedin, Otago Heritage Books, 1994), 212 pp .

Bill Dacker, Te Mamae me to Aroha: the Pain and the Love: a History of Kai Tahu Whanui in Otago, 1844-1994, (Dunedin, University of Otago Press and Dunedin City Council, 1994), 154 p p .

Book Reviews

Dina Benevol & Associates (compilers)

Safe Keeping: How to Solve the Common Records Handling and Storage Problems in any Organization Umina, NSW: Leo Maris, revised edition, 1995. 202pp. A$70 including postage; disk of Chapter 17 ( 'How to Develop Your O w n Procedures Manual') available additionally for A$15.

Touted as a manual writ ten not for records managers but for 'They Who Know Nothing', this self-described publication of 'real basic nuts-and-bolts stuff' holds out the promise of a self-help guide for the employee lumbered wi th doing something about their organisation's records and old bits and pieces. But, oh dear. This is perhaps the most striking example I have come across in recent times of a publication which looks exciting on an initial browse through the chapter headings, tables and so on, but of w h i c h closer examination leads to ever-growing disappointment and dismay. Disappointment because what is promised is not always clearly delivered; dismay because of'advice' that is in some cases confusing or misleading, and at times downright dangerous.

Surely I exaggerate? Clearly my professional snottiness has made me unreasonably critical of a text prepared for an absolute novice? Come, gentle reader, on a wander through a few of my copious notes scribbled in increasing frustration as I wended my way through the 202 pages of this volume, then judge for yourselves.

.Firstly, wha t can I say in praise of this work? It is presented in a user-friendly format—soft-covered and spiral-bound to enable easy copying of the many questionnaires, inventory forms, and sample layouts, and to make it portable for recces around the office and into the attics and basements where records and other things to be disposed of await t he unsuspecting. In a section entitled 'What's What arid Who's Who' , Chapters 18, 19 and 20 promise respectively a glossary and product descriptions, a suppliers ' directory for Australia and New Zealand, and sources of professional help—archivists, conservators and consultants. There is within its covers a wealth of information, much of it dealing wi th equipment and generic products about which it is useful, if not vital, for anyone handling the material described to know. The style is plain English, task-oriented and laid out under clear chapter headings within general sections on Planning, Implementation and the 'what and

w h o ' mentioned above. It deals with the practicalities of storage needs (equipment, physical environment and the like) and has chapters on processes (records policy statements, procedure manuals, anti-disaster plan and so on).

So what went wrong? The introduction, the promotional brochure, the text itself, all explicitly state that Safe Keeping is aimed at the non-professional. It includes exhaustive lists of quest ions to enable an organisation to assess its needs for storing its material, to the point of seeming repetition. Much useful information is scattered through its pages. What it doesn ' t have is coherence, even consistency, and despite first appearances there is no logical order to the information presented. Worst, it includes some 'information' which in consideration of the libel laws I shall merely call highly questionable.

Coherence and consistency. On p.23 w e are told that 'If possible one staff member should have responsibility for looking after the collection. Whether or not this person is called "The Records Manager" or not [sic] is of no great importance, though a formal title will give this person authority ' . The m u c h vaunted do-it-yourself, go-it-alone appeal takes rather a knock when on p.65 we encounter: ' the first draft of a Records Retention Policy is drawn u p jointly by the records manager (with specific expertise from [a records] department) ' . By p.76 the possibility of a company archive/records retention depar tment complete with its own funding and staffing is explicit.

There is the suggestion (p. 165) that 'one or two elegant pieces of fine cabinet-making . . . or exquisite carousel bookcases ' (available from ' two outstanding craftsmen . . . listed in the Suppliers' Directory') might b e cons idered for t h e boardroom. Hang on a minute . Did I miss something? This sounds more like a multinational than the poor under-staffed, under-resourced charity on whose behalf w e are urged (p. 124) to remove, for reuse if still in good repair, the file covers of papers that w e are tying into bundles with string and boxing up in our archives. This is the archives for non-active files of Chapter 9, not the altogether different historical archive of Chapter 15, which interestingly has as its third and final stage of implementation inclusion in a reference library. The only problem is that by the time w e get to these chapters w e have already had our Grand and Glorious Clear-up Day, during which papers from desks and (in a separate exercise, filing cabinets) are to b e sorted into four piles, viz. 'act on ' , 'pass on' , 'file' and 'discard' .These four piles reappear a few pages later, only now the pile t o 'file' has mysteriously become the pile to 'archive', as if the two terms were interchangeable. So by Chapter 15 ( 'How to Set Up a Historical Archive') you may have

already unwisely disposed of records of permanent value for want of a clear explanation of wha t is permanently valuable.

On p.22 and elsewhere w e are quite rightly advised that 'records of all kinds must be given as m u c h protection as possible from dust' , but only eight pages later comes the extraordinary statement that 'most shelving companies provide what they call "dustcovers" or "canopies" wh ich go over the top of the bays [of shelving]. Although non-valuable items like files do not need specific protection from dust, as would a collection of books, this dustcover makes an extra shelf for light things'.

T h e c h a p t e r on vital r eco rds and d isas ter -preparedness lumps together fire, flood, and pest and rodent control ( the last of which has b e e n canvassed in t h e prev ious chap te r on 'Damage Protect ion— A Storage Area Checklist', and is hardly likely to be in the same sudden and ca tas t rophic league as the o thers ) . A good descr ipt ion of the physical hazards to paper records in this chapter is undone by a diagram in a later chapter showing a suggested layout of a storage area which has cleaning materials sharing the archives.

As for logic, chapter headings on the contents page do not always match those in the chapter itself. This may sound like nit-picking, but not w h e n 'How and Why to Write a Records Policy Statement for Your Organization' transforms itself into 'How and Why to Write a Records Retention Policy'. Early chapters each begin with an excellent bullet-point summary of what it is intended to cover, and conclude with a checklist of what you should be able to do now that this module is completed. Unfortunately while these two ends resemble each other they bear little resemblance to the headings within the chapters, which appear arbitrary and are not divided into headings and subheadings by any consistency of typeface or size. The whole thing moreover could have done wi th a decent proofread: typographical errors abound, as well as inaccuracies such as the wrong postal address for ARANZ in C h a p t e r 20 ' s d i rec tory , w h i c h be l ies its t i t le by only inc luding associations.

The au thor includes some suggestions which are at best misleading. In the first chapter, solutions to a fictional office's problems include the opt ion that if too much paper is being kept, totally non-active files should be destroyed. There is no mention here of the possibility of non-active files being screened for permanent value. Another option is to 'fix a schedule for active files to be archived, and archived files to be destroyed' . To create an inventory of what an organisation holds, it is suggested that staff be asked to pool everything in one room and make a list w h e n enough material has accumulated. Nowhere in the text or the p ro to type inventory sheets is there any indication that it would be

a good idea to note what came from where , or what might be its informational content. On a practical level, I positively blanched at the implications for staff safety in the suggestion that in the event of actual fire some areas could be 'locked' to reduce the spread of flames.

If nothing else, this book shows that divorcing storage and handling from records management, taking a partial how without the why, is not going to be enough for an organisat ion w h i c h lacks information management expertise. In this case a little knowledge may well be a dangerous thing.

Jane Tucker Wellington

Records Management Policy and Practice Manual State Records, South Australia, P.O. Box 1056, Blair Athol West, SA. 1996. 47pp.

The policy and practice manual produced by the State Records of South Australia is an unassuming little document. Less than 50 A4 pages long, and spiral-bound, it looks very much like internal publicat ions do anywhere.

Format aside, this publication represents a good attempt to produce what has turned out to be a reasonably generic policy and practice manual for the records management of official records. Although this documen t was wri t ten to apply specifically to the state of South Australia (its legislation and industry standards are applicable to the Australian government context), many of the manual's guidelines and best practice information can be easily applied across the Tasman to New Zealand government (and even some private) records management contexts.

This manual exists seemingly for two main reasons. The first is to do with records management responsibility.The manual notes that 'each government agency has a responsibility to ". . . ensure that the official records in its custody are maintained in good order and condition" (State Records Bill 1996, Section 13). The policies and practices in this manual have been written to assist agencies to meet this obligation'. 1

The s e c o n d reason is tha t State Records (like o t h e r archival institutions) perceives a need to provide correct foundation blocks for future records management development. The South Australian public sector is currently involved in a government vision to establish a one stop 'boundaryless' information service for its customers. The manual

1. p.3

2. p.4

3. p.3

4. p.4

states that ' implementing good records management practices is not an opt ion or merely desirable, it is a fundamental prerequisite for the efficient running of the organisation'. 2 Good records management would b e vital in such a 'boundaryless' information service.

The manual is not intended as a legal document by which all things wi l l b e m e a s u r e d , a l t h o u g h it d o e s d r a w qu i t e heavi ly on t h e responsibilites and obligations engendered by the State Records Act, which due to (unspecified) delays was still a bill at the t ime of the manual's publication. It is interesting to note how State Records, where the manual was writ ten, got around this problem. It was highlighted in the manual that State Records was working 'under the assumption that the State Records Act would have been promulgated by the time the manual was due for release. As this has not occured the Manual is being released under the Libraries Act /5>S2'.The references in the manual to the State Records Bill, however, were kept in the text 'to provide a guide to agencies of the obligations and responsibilities they will have regarding recordkeeping practices once the State Records Bill has been promulgated.'3

Despite this use of the Libraries Act 1982, the failure of the State Records Act to appea r whi le the manual was be ing developed must have been a setback for State Records, which evidently wanted the legislation to provide the manual's backbone.

The lack of closely related (cur ren t ) legislation, and t h e use of suggestions in the passive voice rather than instructions in the active, makes one wonder h o w definitive this manual will become. It is a very polite little document, not overly rigid or prescriptive, and—without the legislation to back it up—also wi thout teeth. It is all too possible that this manual may be added to the ' to be filed' pile in many a government agency, and never seen again.

Despite these negative thoughts (which, of course, may not be borne out), the manual does represent a good first for South Australian records management . It outlines policy and best practice guidelines for records management creation and control, storage, disposal, electronic record-keeping, disaster recovery, and ownership . The information is set out in a clear, understandable manner, wi th each section dealing wi th a different component of records management. The manual succeeds in its intention of providing 'guidelines [which] are as broad as possible whi le taking in to accoun t manda to ry min imum s tandards of best pract ice ' . 4

Each paragraph within each section of the manual explains a policy/ best practice statement. These are the minimum standards 'which an agency must meet to fulfil its obligations under the State Records Act 1996'.5 Further detail or explanation is provided in subparagraphs. For example, Section 2's heading is 'Storage'. Paragraph 2.2 (a policy/best prac t ice s ta tement ) states that 'Records which are no longer required for day-to-day access which have been identified as having a specified temporary retention period (via a records disposal schedule) should be removed from working office areas.' Subparagraph 2.2.1 (which provides further detail) begins: ' In most cases removal to an off-site storage facility is the most cost-effective option for the storage of inactive, temporary value paper records ' . 6

The information is outlined in a commonsense fashion; there is no use of baffling unnecessary jargon. The manual also has a very handy glossary, and an index by paragraph numbers, which makes looking up information quick and easy.

Although, as stated earlier, it is not overly prescriptive, State Records' Policy and Practice Manual is more prescriptive than one of its 'near relatives', the New South Wales Standards on Records Management Programs and Full and Accurate Records Keeping. For instance, the section in the South Australian manual on creation and control deals w i th the c rea t ion , identif icat ion, classification, security, physical movement, monitoring, and handling of records. The New South Wales manual lists only general principles: that records should be maintained, that they should be useful, accurate, and so on. Still, there is evidence of borrowing, and not just from New South Wales. The section on mail handling procedures was adapted from Western Australia's Policies and Standards Manual: Records Management*.

One cannot help thinking about h o w useful a similar document wou ld be in t h e New Zealand envi ronment . National pol icy/bes t practice documentation is sadly lacking for both records and archives practice in New Zealand. This manual would be a good starting point both for records managers at the 'coalface' and as a national policy document.

This manual is a r ecommended read. Unfortunately, it is not yet available on the 'net ' , so 'snail mail' may be the only option if you wish to get hold of a copy.

Sarah Welland Ministry of Justice

5. ibid.

6. p.15

Heather MacNeil

Without Consent: The Ethics of Disclosing Personal

Information in Public Archives Metuchen, NJ, & London: The Society of American Archivists and The Sca rec row Press Inc. , 1992. 2 0 0 p p . US$27.50 plus $10 sh ipp ing / handling.

This b o o k explores theoretical and practical issues associated wi th the administration of government-held personal information. Specifically, it examines the nature of the balance be tween the competing interests of personal privacy and public good served by academic and scientific research.

MacNeil is critical of the often-cited Warren-Brandeis definition of privacy as the right to be let alone, which fails to account for events which are recognised in Canada and the United States as invading individual privacy. She also suggests that the definition is morally impoverished because it fails to identify wha t is so morally significant about privacy as to justify ascribing it the subject of a 'right'. It fails to provide a framework within which morally relevant considerations other than the consent of the data subject can be properly taken into account. MacNeil prefers a definition which does not ignore or simplify the moral issues, styling the right to privacy in any given situation as the right to secrecy, anonymity, and/or solitude.

MacNeil identifies government as posing the greatest threat to privacy. Historically states have tended to amass data on citizens, particularly since t h e development of the social welfare state, and even more so following the shift away from universal benefits to the provision of targeted s tate assistance. Deve lopments in information technology enabling enormously increased capacity to store information have also contr ibuted to this trend.

There is a clear moral force behind the concept of privacy. MacNeil outlines this moral force by identifying the key benefits it brings to society. She notes that privacy can have negative as well as positive consequences , and that these to some extent detract from the moral force beh ind the right to privacy. To function properly society requires a balance be tween sharing and concealment, between privacy and social interaction. MacNeil sees the social contract as the philosophical basis of the state. The balance which must be struck be tween privacy and other compet ing interests, the boundaries of the zones of privacy, must be set by reference to this social contract.

MacNeil examines how this balance has been achieved in Canada and the United States, describing how the law has created 'zones of privacy', areas of individual human endeavour which the moral force underlying the concept of privacy requires to be free from interference by the community at large.

MacNeil acknowledges that the mechanisms in place in the United States are not entirely ineffective and that those in Canada, particularly the provision of a Privacy Commissioner, have significantly contributed to t h e p r o t e c t i o n of privacy. H o w e v e r t h e r e a re a n u m b e r of shortcomings in the approach taken by both countries. Privacy has to compete with other weighty interests such as freedom of the press, law enforcement and public health and safety. Particularly in the United States, the law generally focuses on physical interferences with privacy rather than on information privacy. The impact of legislation on the relationship between individuals and public records-keeping agencies is hard to assess because there is no tangible, easily measured public policy goal to pursue. Vague statutory language has not helped to ensure consistency in application or compliance.

Research as an activity has burgeoned in recent times, and the demand for access to archival personal information has increased exponentially. Finding a satisfactory balance between protecting privacy and facilitating research has become a major issue.

Tradi t ional ly th is has b e e n a c h i e v e d by aggrega t ing data to depersonalise it, deleting identifying information, prohibiting access for prescr ibed per iods of t ime, or permi t t ing access only on special conditions. None of these methods is entirely satisfactory.

MacNeil notes that academic research can be justified in terms of the social good it does, for example through facilitating the search for truth. However, she concludes that there are shortcomings with using a utilitarian yardstick as a mechanism for assessing the moral value of research, in particular because the social benefits of research are hard to measure.

Assessing the cost in privacy terms to be paid in return for the somewhat amorphous benefits of research is equally difficult. It may also be tha t t h e cos t falls u n e v e n l y ac ros s soc ie ty , w e i g h i n g disproportionately heavily on a small subsection of the community and producing a distributionally unjust result. Assessments of harm are often subjective and have to anticipate feelings in advance.

MacNeil adopts an alternative ethical framework within which to balance the moral worth of research and privacy. Rather than trying to assess the social benefits flowing from each, she adopts a Kantian deontological approach. On this view, one is effectively under a duty

not to invade an individual's privacy because to do so would be to interfere with the individual's autonomy. Moral evaluation of this type does no t requi re an assessment of an act ion 's consequences , and therefore avoids the evaluative problems associated with the approach employing a consequential moral evaluative framework.

On this analysis, people are prima facie entitled to privacy. Their interest in privacy may only be overridden by a compelling public interest . Custodians of public archives have a responsibility to the community at large to protect the relationship, the contract, be tween the state and its citizens.

Based on this analysis of the ethical dimension of the right to privacy, MacNeil suggests a package of measures to assist archivists trying to accommodate researchers ' demands for access to archival personal information whi le at the same time protect ing the privacy of the individuals concerned. At the heart of this package is an ethical board of review with a clear mandate to protect autonomy and individual rights by assessing research proposals, imposing appropriate conditions on access, monitoring the work and imposing penalties on researchers w h o fail to comply wi th conditions.

MacNeil's book provides an interesting survey of the difficulties faced by archivists and others charged with responding to the increasing demand for access to government-held personal information for research purposes. Her analysis of the moral character of the right to privacy offers a useful ethical framework within which to debate possible solutions, MacNeil's as well as others ' , to these difficulties.

Dr A.R. Jack Privacy Officer Police National Headquarters

Anne Bromell

Tracing Family History in New Zealand (revised and

updated edition)

Auckland: Godwit Publishing, 1996. 196pp. $39-95.

Anne Bromell has been involved in researching her own family history and teaching and guiding others to do the same since 1980. The first edition of Tracing Family History in New Zealand, published in 1988, built upon her earlier 28-page 'Family History Research in New Zealand: A Beginner's Guide'.

This 'revised and updated' version is a comprehensive practical guide which introduces those embarking on family research to the various records that will aid them in their quest. The author analyses the type and amount of information contained in specific records, points the researcher towards the agencies that hold these records, and outlines the methods and tools which can be used to record, file, chart and critically review the information collected.

The book consists of 19 chapters that follow a logical progression. It begins with getting started by setting down all known family details, approaching family and friends for further information, and validating this research by using official sources, and ends with the writing of the family history.

A chapter on the civil registration of births, deaths and marriages is followed by one on church baptisms, burials and marriages. Church records pre-date civil registration, wh ich became compulsory for Europeans in 1856 and for Maori in 1913. The types, varieties and accuracy of the information contained in these records are compared.

Separate chap te r s deal wi th sh ipp ing records , wills and their administration, school records, land records and newspapers.The author carefully outlines the type of information one would expect to find in specific records, and their value.There are regular timely warnings about the gaps and misinformation that family historians can expec t to encounter in all records, indexes and family accounts, and advice on how to verify the accuracy of data by using other sources.

The author also provides an outline of any legislation pertaining to specific groups of records, and in the chapter on land records includes helpful definitions of commonly used terms.

Research institutions such as National Archives and the Genealogical Society of Utah have their own chapters , in which there are brief summaries of the records they hold which may be of use to family historians. Other agencies and their holdings are mentioned in relation to specific types of records.

The last four chapters provide the family historian with sensible advice on researching by letter and employing a researcher, basic conservation guidelines for family documents and photographs, the correc t handl ing of material in archival inst i tut ions, researchers ' etiquette, and writing and publishing the results of research.

There follows an alphabetical list of useful addresses (in most cases a telephone number is also included), an extensive bibliography and an index.

This book is full of practical advice on h o w to become a proficient family historian. It is well laid out, and makes good use of summarising bullet points and checklists,

I particularly liked the author 's use of her own family research and documents to illustrate the different types of records and information that are available. It is unfortunate that some of the illustrations are a little hard to read.

One aspect which I felt might have received a little more attention was the use of computers for recording and charting family history. While the existence of a genealogical computing special interest group is ment ioned, there is no information about the computer programmes which are now available for use by genealogists.

Tracing Family History in New Zealand is a useful reference guide for family historians, both those just starting out and more experienced researchers. It can be easily read from cover to cover, or dipped into for information about particular avenues of research. The author is to be congratulated.

Narelle Scollay National Archives Auckland