Struggle against private profiteering

Challenging “the system” has cost an expat his home, his good name and, according to the State, his sanity.

Simon Kaiwai, the former CEO of an international medical company and business consultant decided to challenge the privatization of New Zealand’s electricity infrastructure in 2009, prompted by power price rises well in excess of inflation, as well as private profiteering off public-owned assets. He had been particularly moved by the death of Folole Muliaga in 2007 resulting from her power being cut off despite the electricity company’s knowledge she was dependent upon a breathing apparatus and the family’s vain attempts to pay by installments.

Kaiwai says, “privatisation of public assets initially involves, placing ownership into two ministers’ personal names.” From there determination of which private company buys it and for how much becomes muddled. This process was something Kaiwai wanted to see ventilated in the public arena. Ultimately, Kaiwai wanted a jury to decide whether the sale of the electricity infrastructure to private corporations was 1) approved by a majority of the public owners and 2) fairly compensated for.

The selling of public assets has been a vexed one in New Zealand for years, with many infrastructure assets such as the railways being sold off at a bargain, only to be repurchased by the government in run down condition and on the verge of collapse years later. There was something in the challenge by Kaiwai that attracted a swift and heavy handed response – the physical demonstration of which attracted 16,000 hits in its first week on YouTube despite no mainstream media coverage in New Zealand.

It began in September 2009 when Mr Kaiwai demanded an “authenticated bill” from his electricity retailer Trustpower instead of their “remittance advice” statement of $146. This was legally significant to Kaiwai. He considered that if he could later prove the retailer was operating under an unlawful charter, the authenticated bill gave him legal recourse that the remittance advice statement did not. Trustpower failed to respond to the request, instead issuing a demand notice for $215.

To demonstrate his challenge was principled and not motivated by a personal desire to evade payment for power, Kaiwai paid $900, a good faith overpayment which would ensure supply to his home, where his expectant wife was due to give birth. Increasing demands for the authenticated bills brought threats by the retailer to turn off power, which escalated in threats by Kaiwai to trespass any Trustpower representatives.

In a matter of weeks from the initial dispute, electricians entered the property under Police escort to disconnect the family’s power.

After Trustpower refused to supply the family, the landlord opened an account with Contact Energy. However in a letter dated 7 January 2010 Contact Energy informed the Kaiwai family “Now that we more fully understand the history of the account, we are not willing to supply electricity…”.

It was 24 November 2009 when two Police constables and two Top Energy electricians broke through a locked gate, ignored the no trespass signs, intent to disconnect the electricity.
On seeing the Police Kaiwai grabbed his video camera and attempted to question the Top Energy workers. Police constables David Reynolds and Hayden Nicol responded to the filming by jumping on Kaiwai, pepper spraying and then beating him repeatedly.

While they were taking Mr Kaiwai away one of them admitted to the assault.

The 37 year old Mr Kaiwai had never before been charged or arrested. Nonetheless, District Court Judge De Ridder denied Simon bail after police opposed bail on the grounds Kaiwai had a “distorted view of society” which the police alleged posed a public threat. Mr Kaiwai’s response that he had received no legal representation was ignored by Judge De Ridder.
Consequently, Mr Kaiwai’s pregnant wife was left at home without electricity while her husband was held the maximum two weeks in prison under the Criminal Procedure Mentally Impaired Persons Act 2003.

Psychiatric evaluation by two specialists was required, in accordance with the Act, for which Kaiwai was transported to Auckland Central Remand Prison. Mr Kaiwai refused evaluation. Nevertheless, one of the psychiatrists was prepared to endorse the State’s position that Mr Kaiwai was mentally unfit, an opinion which, once concurred by another doctor, can legally imprison someone for up to five years in New Zealand without trial.

Mr Kaiwai did not learn his lesson from this narrow escape from the Mason Clinic. His protestations brought further attempts by the police to get a compulsory mental health order to commit him. He subsequently sought an “independent survey” of his “case study” from New Zealand psychiatrists. Unwittingly, Dr Justin Barry-Walsh, a distinguished psychiatrist in “medico-legal assessments” agreed there were significant ethical questions in the accepted approach to Mr Kaiwai’s psychiatric evaluation.
In the survey Dr Barry-Walsh disclosed between 21-40% of his business comes from court engagements.

It took more than a year and 20 court appearances for Mr Kaiwai to have the charges of ‘assault’ and ‘resist’ dismissed and, along the way, disprove the false accusations by the State regarding his mental health.

Kaiwai states “I’ve been utterly shocked that by exposing a breach of the public trust by those in public service, I have become victim to what I believe is collusion between the electricity companies, the police, the courts and even the health system.”

Undeterred, Kaiwai exhorts, “Given the trend toward privatisation of public assets I believe it is essential we address this issue before more families endure such hardship.'”  Kaiwai himself seems less likely to personally lead this charge. Judge MacDonald, a former Police Prosecutor, blocked Mr Kaiwai’s private prosecutions against Top Energy, Trustpower and the Police.

This ordeal, and the increasing difficulty of getting a jury trial in New Zealand, has led the once proud Kiwi and his family to flee for the safety of… Chile. Despite the police and court attempts to label them insane and a menace to society, it is ironic that it is their victory against the State – and the retribution this typically engenders in New Zealand – that left them feeling unsafe living in their homeland. Though many in the community were supportive, the family was particularly struck by the widespread apathy to their ordeal and, perhaps more alarming, the vocal few who sought to silence their protestations.

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