The corruption would be if politicians decided charges

March 11th, 2012 at 1:00 pm by David Farrar

Rob Stock in the SST reports:

Labour MP Phil Twyford has tabled a calling for an investigation into the decision not to proceed with charges against and as directors of the Huljich KiwiSaver scheme.

Twyford won’t comment on the petition, which is the work of former Auckland mayoral candidate who is incensed that Banks, the minister for regulatory reform, escaped having to defend himself in court for signing a prospectus that contained false and misleading statements.

The petition now must be considered by the Commerce Select Committee, made up of nine MPs of which five are from the National Party. 

People may not be aware that there is no significance to what has happened. An MP who tables a petition does not mean they agree with ts intent. Almost all MPs will accept a petition.

The Office of the Clerk allocate the petition to a select committee. There is no vote about accepting it. It is automatic. I could do a petition asking for the House to declare war on Australia and liberate Tasmania by armed force, and it would end up with the Foreign Affairs Select Committee.

The Commerce Select Committee does not need to respond to the petition, beyond reporting it to the House with no recommendations.

Now as to the substance:

The FMA said the Securities Commission “obtained the advice of respected counsel on this issue. That advice was then reviewed and confirmed by a Queen’s Counsel. The commission considered that advice and the results of its investigation carefully.

“It formed the view that there was insufficient evidence to show that either Dr Brash or Mr Banks would have known that the prospectus contained misleading information.”

What Bright is seeking to do is in my opinion a form of corruption in itself. She is asking for politicians to overturn the decision of an independent authority, and prosecute people because she does not like their politics. This is what you get in Zimbabwe, not New Zealand.

MPs should never be involved in deciding if charges should have been laid against anyone, let alone other politicians. The sole exception is of course the Attorney-General, but even then this is almost always delegated to the Solicitor-General.  And even then it is usually that the AG has to consent to a prosecution – not that the AG can determine that someone should be prosecuted, against the decision of the appropriate prosecuting authority.

So this petition will go nowhere, and that is a good thing.

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41 Responses to “The corruption would be if politicians decided charges”

  1. Paulus (2,660 comments) says:

    Twyford is a fool to have anything to do with Bright – she is a nutter.

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  2. Avalon (11 comments) says:

    “insufficient evidence to show that either Dr Brash or Mr Banks would have known that the prospectus contained misleading information”

    Isn’t it fair to expect though that politicians don’t sign Investment Prospectuses unless they know that they *don’t* contain misleading information??

    [DPF: That is an impossible test. You can’t know what you don’t know. The test is reasonableness. Did the Directors take all reasonable steps to ascertain the prospectus is correct. When the MD hides from the Board that he has been topping up returns from his private funds, that is not something a Director could reasonably expect to discover on their own]

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  3. Put it away (2,880 comments) says:

    Shame on Penny Not-Very for her corrupt attempt at politically motivated persecution and contempt for rule of law.

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  4. Grizz (610 comments) says:

    Is Penny Bright allowed to comment here? I can see a threadjack coming on.

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  5. dog_eat_dog (789 comments) says:

    Actually for once she would be on topic.

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  6. tvb (4,501 comments) says:

    Except Geoffrey Palmer as a Minister went after John Banks on a contempt matter resulting in a prosecution and I am sure John Banks has not forgotten or forgiven Palmer’s vendetta. I do not think Banks will allow anything to fall Palmers’ way during this term of Government though he will not say so publicly.

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  7. marcw (254 comments) says:

    “Twyford won’t comment on the petition”.

    I think that says it all – probably embarrassed as hell about having to be seen to doing nothing other than his duty as an opposition MP.
    I’m sure there is no reason, if you had the conviction of the thrust of your petition, you would be proud to be able to speak in it’s support.

    Then again… some MP’s have no shame.

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  8. Nookin (3,462 comments) says:

    These allegations simply serve to show that Penny is motivated solely out of bigotry and prejudice and shows a complete absence of intellectual integrity.

    She has repeatedly posted these allegations of corruption on this blog site. She maintains that guilt arises solely out of the execution of the prospectus by all directors and therefore all directors must be guilty.

    On a number of occasions I have called attention to the relevant section of the Act. It provides a defence if a director can show that the director had reasonable cause to believe that the information in the prospectus was correct. Penny has quite deliberately avoided commenting on that sub-section even though I have on a number of occasions challenged her to provide some evidence that suggests that the directors should have been aware of the missing information.

    The facts of this particular case are unusual. Huljich invested in a recently floated company called Diligent Board Member Services. The share value in that company plummeted. Without making any disclosures, Huljich transferred assets across to the Kiwi Saver fund in order to reimburse it for its losses. Shares were transferred at an undervalue. Although the effect of the transfer was to restore value lost as a result of the poor investment, the failure to disclose the related party transaction and the undervalue had the effect of concealing the glitch and, consequently, the prospectus created a false impression.

    He did not disclose the transaction to anyone let alone the other directors. These directors were therefore in a difficult position. It is not so much a matter of the prospectus containing a false statement which could perhaps have been verified if there were matters of concern. The problem was the absence of any statement and, without an audit of every single share transfer or asset transfer, the only way in which the falsity of the prospectus would have become apparent on the other directors would have been disclosure by the offending director.

    It is clear that in the absence of any “notice” or “red flag”, Brash & Banks had no reason to suspect irregularities. The supplementary assets were apparently referred to in the prospectus. The value was presumably recorded correctly. What was missing was the initial purchase price and the source of the supplementary shares.
    The attached report shows that the issue of charging Banks & Brash was considered and that the relevant authority determined that the prospect of succeeding were remote.

    Penny rabbits on about one law for all. There was only one law. Penny simply chooses to ignore parts of it. Huljich acknowledged that he was aware of the missing information. The defence was, therefore, not available to him. The other directors were not aware, had no reason to be aware and, on the basis of the information available, acted honestly and in good faith. The decision not to prosecute seems eminently justifiable and the presentation of the petition is typical Labour Party gutter-raking.

    Ironically, Diligent appears to have recovered quite significantly

    http://www.stuff.co.nz/business/money/6108189/Ex-fund-manager-up-for-sentencing

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  9. Nookin (3,462 comments) says:

    Oops
    … apparent to the other directors….

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  10. George Patton (350 comments) says:

    @Nookin – Diligent recovered? That’s an understatement. It’s one of the biggest success stories on the NZX for 2011.

    Penny Bright is an attention seeker who has underlying issues that public attention are not helpful in solving.

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  11. Kimble (4,443 comments) says:

    Given her statements on this blog, I dont think there is any doubt that if Penny Bright gained any serious power, she would abuse it to her own benefit. If she was PM, the army would round up Righties, and all of her opponents would “disappear”. The beating those two counter-protesters experienced would be routine.

    She demands corruption, and justifies it with nothing other than she really hates John Banks. She seems like a disgusting person who, I would hope, no one here ever has to interact with or, worse, comes under the power of.

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  12. Avalon (11 comments) says:

    DPF: That is an impossible test. You can’t know what you don’t know.

    Fair enough – I get where you are coming from. Cheers :)

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  13. publicwatchdog (2,811 comments) says:

    Who chose the CEO of the Finance Markets Authority (FMA) – Sean Hughes?

    The Finance Markets Authority Establishment Board.

    Who chose the Finance Markets Authority Establishment Board?

    Weren’t they chosen by the (former) Minister of Commerce, Simon Power, then approved by the Honours and Appointments Committee made up by a majority of National Party Cabinet Ministers?

    Of course – no ‘political influence’ happening here…..

    Why was the Securities Commission replaced by the Finance Markets Authority?

    Wasn’t it to help give ‘mum and dad’ investors more confidence in the finance markets after a string of company collapses?

    Are you saying David – that ‘due diligence’ is ‘an impossible test’?

    Have you considered the ‘public interest’ here?

    That two former Huljich Wealth Management (NZ) Ltd Directors, John Banks and Don Brash put themselves forward as candidates to help run the country – but arguably couldn’t even properly run a Kiwisaver Scheme?

    That one of these arguably incompetent Directors – John Banks – is now the Minister of Regulatory Reform – yet four ‘regulatory bodies’ (the former Securities Commission, the Finance Markets Authority (FMA), the Serious Fraud Office (SFO) and the NZ Police) ALL refused to apply ‘one law for all’ to him?

    How ‘dodgy’ is THAT?

    Penny Bright

    (For more background information – you can check out http://www.pennybright4epsom.org.nz )

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  14. Keeping Stock (10,414 comments) says:

    Bugger off Penny; we’re talking about you, not to you :-)

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  15. mikenmild (11,707 comments) says:

    You would have some more traction here Penny if you simply answered nookin’s points, which appear to have some substance.

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  16. publicwatchdog (2,811 comments) says:

    “Penny rabbits on about one law for all. There was only one law. Penny simply chooses to ignore parts of it. Huljich acknowledged that he was aware of the missing information. The defence was, therefore, not available to him. The other directors were not aware, had no reason to be aware and, on the basis of the information available, acted honestly and in good faith. The decision not to prosecute seems eminently justifiable and the presentation of the petition is typical Labour Party gutter-raking. ”

    errr….. Nookin – why wasn’t the defence to which you are referring TESTED IN COURT – rather than being prevented from going to Court by ‘regulatory bodies’ effectively, in my opinion, acting as ‘gatekeepers’?

    IN WHOSE INTERESTS?

    Banks and Brash can’t have it both ways.

    In my considered opinion, you can’t appeal to ‘mum and dad invistors’ to give you their money by relying upon your purported commercial expertise and experience – ‘trust us – we know what we’re doing’ – then on the other hand, rely on regulatory bodies effectively putting forward on your behalf – the defence – ‘ errr…. we didn’t know what we were doing’?

    Not in NZ ‘perceived’ to be ‘the least corrupt country in the world’ – surely?

    Penny Bright

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  17. IHStewart (388 comments) says:

    ” I could do a petition asking for the House to declare war on Australia and liberate Tasmania by armed force, and it would end up with the Foreign Affairs Select Committee.”

    What a good idea.

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  18. mikenmild (11,707 comments) says:

    In her response to nookin, Penny seems to demand that Banks and Brash should have been charged, irrespective of their being any evidence agasint them. Perhaps Penny has information that was not available to the prosecutors. Do you Penny? Do you have evidence that Banks and Brash had no reasonable cause to believe that the information in the prospectus was incorrect?

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  19. publicwatchdog (2,811 comments) says:

    Nookin – here is the LAW – which I HAVE quoted in full in my letters to THREE ‘regulatory bodies’ when I requested that they DO THEIR JOB and apply ‘one law for all’ to John Banks and Don Brash.

    http://www.legislation.govt.nz/act/public/1978/0103/latest/DLM29406.html?search=ts_act_Securities+Act+1978_resel&p=1#DLM29406

    58 Criminal liability for misstatement in advertisement or registered prospectus
    (3) Subject to subsection (4) of this section, where a registered prospectus that includes an untrue statement is distributed, every person who signed the prospectus, or on whose behalf the registered prospectus was signed for the purposes of section 41(1)(b) of this Act, commits an offence.

    (4) No person shall be convicted of an offence under subsection (3) of this section if the person proves either that the statement was immaterial or that he or she had reasonable grounds to believe, and did, up to the time of the distribution of the prospectus, believe that the statement was true.

    (5) Every person who commits an offence against this section is liable—

    (a) on conviction on indictment to—
    (i) imprisonment for a term not exceeding 5 years; or
    (ii) a fine not exceeding $300,000 and, if the offence is a continuing one, to a further fine not exceeding $10,000 for every day or part of a day during which the offence is continued; or

    (b) on summary conviction to—
    (i) imprisonment for a term not exceeding 3 months; or
    (ii) a fine not exceeding $300,000 and, if the offence is a continuing one, to a further fine not exceeding $10,000 for every day or part of a day during which the offence is continued.

    _____________________________________________________________________________________________

    Unlike yourself Nookin – I don’t purport to be a lawyer – but I can read?

    Section (3) seems quite clear to me.

    My argument is that if former and current ACT Party Leaders Don Brash and John Banks wanted to rely on section (4) – they should have done so – IN COURT – after having been first CHARGED.

    PS: The wording of this petition was double-checked by the appropriate Parliamentary staff prior to my collecting signatures
    so – it is appropriate.

    Kind regards,

    Penny Bright

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  20. publicwatchdog (2,811 comments) says:

    The EVIDENCE in the form of untrue statements is in the Huljich Kiwisaver Scheme registered prospectuses dated 22 August 2008 and 18 September 2009 – which you can read for yourself on http://www.pennybright4epsom.org.nz

    Penny Bright

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  21. mikenmild (11,707 comments) says:

    Oh Penny, there is nothing in section 4 that required charges to be laid. A prosecutor would be remiss to lay charges in the certain knowledge that a defence based on section 4 would be successful. To repeat, is there any evidence that Brash and Banks knew the information in the prospectus was incorrect?

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  22. publicwatchdog (2,811 comments) says:

    http://www.legislation.govt.nz/act/public/1978/0103/latest/DLM29406.html?search=ts_act_Securities+Act+1978_resel&p=1#DLM29406

    (4) No person shall be convicted of an offence under subsection (3) of this section if the person proves either that the statement was immaterial or that he or she had reasonable grounds to believe, and did, up to the time of the distribution of the prospectus, believe that the statement was true.

    ______________________________________________________________________________

    Shouldn’t this have been proven IN COURT?

    Shouldn’t former Directors of Huljich Wealth Management (NZ) Ltd at least have been CHARGED?

    That’s essentially my ‘one law for all’ argument.

    Former Directors of Huljich Wealth Management (NZ) Ltd, Don Brash and John Banks should at least have been CHARGED for signing Huljich Kiwisaver Scheme registered prospectuses dated 22 August 2008 and 18 September 2009 which contained untrue statements.

    Penny Bright

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  23. mikenmild (11,707 comments) says:

    No no Penny, you are missing the point. You don’t charge people and put them in front of a court if they have a defence to the charge.

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  24. publicwatchdog (2,811 comments) says:

    perception ……….. perception …………………. perception……………………

    In my opinion, it appears that Don Brash and John Banks have effectively been politically protected – which is arguably a form of corrupt practice?

    High time for a genuinely independent NZ ‘Commission Against Corruption’?

    And for New Zealand’s ‘perceived’ status as the ‘least corrupt country in the world’ to be URGENTLY reviewed by the Board of Transparency International?

    Penny Bright

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  25. publicwatchdog (2,811 comments) says:

    “No no Penny, you are missing the point. You don’t charge people and put them in front of a court if they have a defence to the charge.”

    Really mikenmild?

    Surely that is arguably a supremely STUPID statement?

    errrr….. don’t lots of people have DEFENCES to the CHARGES?

    Isn’t it up to a COURT to decide on the EVIDENCE and LAW if someone is going to be convicted?

    That before it gets to Court – the person has to be CHARGED?

    Unless, of course, the person is an MPs whose vote is PIVOTAl in helping to maintain the ‘balance of power’?

    Penny Bright

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  26. Yvette (2,845 comments) says:

    That two former Huljich Wealth Management (NZ) Ltd Directors, John Banks and Don Brash put themselves forward as candidates to help run the country – but arguably couldn’t even properly run a Kiwisaver Scheme?
    – Penny Bright, above 6:46

    Penelope Mary Bright put herself forward as a candidate to help run this country, but would see two directors prosecuted for the actions of a third director, who did not disclose his improper dealings with anyone, including the associated directors ?

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  27. Put it away (2,880 comments) says:

    Penny Not_Very “IN WHOSE INTERESTS?”

    In the interests of the taxpayers, for not spending money on a hugely expensive court case into a non-crime with no evidence that couldn’t possibly succeed, purely because of the politically motivated hatred of one self-publicising loon. And in the interest of common sense and the rule of law ( two concepts clearly alien to you), although it doesn’t stop you hypocritically shrieking about them while doing the opposite.

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  28. mikenmild (11,707 comments) says:

    PIA
    I tried to put it as simply as I could, and I am grateful to nookin for making it so clear, but I don’t think Penny is listening.

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  29. Put it away (2,880 comments) says:

    today’s word-of-the-day from the Penny Bright Dictionary – is: Arguably ( adverb) – sentence modifier used to introduce a statement which is clearly not true, but you really wish it was.

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  30. Sofia (864 comments) says:

    Petition of Penelope Mary Bright and 307 others
    That the House conduct an urgent inquiry into the decisions regarding prosecutions relating to the Huljich Kiwisaver Scheme registered prospectuses dated 22 August 2008 and 18 September 2009.
    Petition number: 2011/5
    Presented by: Phil Twyford
    Date presented: 29 February 2012
    Referred to: Commerce Committee

    Why does the Petition not name anyone ?
    Were there only three directors involved and, if so, do the two not so far convicted have legal redress for damage Penny Bright is doing to their reputations before the Petition is addressed ?

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  31. Keeping Stock (10,414 comments) says:

    @ Sofia; Penny hasn’t done a day’s paid work in years, so suing her would be an exercise in futility. Personally, I thought Banks’ reported response was far more telling:

    Banks has been on the end of Bright’s activism before. In a statement he said: “I would never comment on anything this person has to say.”

    Kaboom!

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  32. Put it away (2,880 comments) says:

    Penny you were camped up with the occupy loons, and considered yourself something of a spokesman for them, did you not? And a variety of drug offenses and other crimes were commited by the occupy loons, were they not? Shouldn’t, then, you be charged with being involved in these crimes?. Of course I don’t have any evidence that the druggies revealed their activities to you, but I don’t like your politics, so I think that’s reasonable grounds to charge you and make the taxpayer pay for a court case that can’t possibly succeed. Sound good to you? And healthy for democracy!

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  33. Nookin (3,462 comments) says:

    Unfortunately, Penny, you have little understanding of the application of this section. You really do need to put aside your prejudice and look at this objectively.

    I will try to give you another example in order to illustrate how this sort of section works.

    It is an offence to drive without a seat belt fitted. However, if the owner of the vehicle is able to show that reasonable but unsuccessful attempts have been made to secure an appropriate seat belt and an order has been placed for an appropriate seat belt, no offence is committed.

    There is an evidential burden of proof on the defendant to establish the defence. If you, for example, had a motor vehicle without the requisite seatbelts fitted but you could show a series of e-mail making enquiries about availability and advice that there were no seatbelts in the country at the time and you were able to produce a letter confirming your order for such a seatbelt, would you expect to be prosecuted? I rather suspect that you would put up a similar wailing performance as you did the last time you were arrested. You are able to display to the prosecutors that you would have a defence if they chose to prosecute.

    In principle, Section 58, which you have quoted above, is the same. There is an evidential burden on a defendant to show reasonable belief. When considering whether to prosecute, it is necessary to take into account all of the evidence. If Brash & Banks stated that they had no knowledge of the source of the “top up” shares and the undervalue at which they were sold to the company, and if there was no audit trail or “red flag” putting a reasonable director on notice to investigate, then it would be a complete waste of time to initiate a prosecution. In this case, the facts clearly show that the managing director deliberately withheld the information.

    You really have to come to grips with the notion of “one law for all” rather than one law for Penny and another law for people you do not like. The justice system does not work that way.

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  34. Elaycee (4,404 comments) says:

    Here we go again…..

    DPF writes a thread on a topic that’s been hammered by the Blog Blight for months but has just received media attention because a petition has been tabled by an MP. But Nookin is totally correct: most right thinking people can recognise that there’s simply no case for Banks or Brash to answer. But has that stopped Penny Not-so? Noooooooo….

    It’s patently obvious that Penny lurches from media stunt to media stunt and that she thrives on the ‘attention’ that comes from regularly pushing doors marked ‘Pull’. From her ‘education’ in Carterton via Minto’s HART outfit, to squatting in Aotea Square – it has been over three decades of placard waving and screeching from a wannabe politician who craves the attention such a role would provide, but lacks the ability to even threaten the number of informal votes or the margin of error.

    Its time she was given the attention she actually deserves.

    None!

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  35. publicwatchdog (2,811 comments) says:

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10655565

    hmmmm……. John Banks had something to say back then about my receiving a ‘good citizen award’?

    Thanks Kiwibloggers – responses received have made my day :)

    Of course – one might wonder why some of you are apparently so opposed to anyone campaigning against ‘white collar’ crime, corruption and ‘corporate welfare’?

    Why on earth would THAT be?

    Unfortunately – I think some of you will find that there are a LOT of New Zealanders out there, particularly ‘mum and dad’ investors who have lost money in the collapse of 65 companies in the NZ finance industry since 2006, who might be VERY interested in an inquiry ‘into the decisions regarding prosecutions relating to the Huljich Kiwisaver Scheme registered prospectuses dated 22 August 2008 and 18 September 2009’?

    Or LACK of prosecution by either the Securities Commission, the Finance Markets Authority (FMA), the Serious Fraud Office (SFO) or the NZ Police?

    BTW – the wording of this petition was checked beforehand by the appropriate Parliamentary staff.

    If John Banks or Don Brash are concerned that what I am saying about them is defamatory – they can always take me to court?

    Oh – that’s right.

    It’s not defamatory to TELL THE TRUTH or express an honest opinion?

    Thanks for helping to give this matter the attention it deserves.

    Kind regards,

    Penny Bright

    ‘ANTI-CORRUPTION CAMPAIGNER’
    ATTENDEE: Australian Public Sector Anti-Corruption Confernce 2009
    ATTENDEE: Transparency International Anti-Corruption Conference 2010

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  36. joana (1,983 comments) says:

    So this is why Banks and Brash have been so quiet?

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  37. Put it away (2,880 comments) says:

    Penny Not-Very , no one would sue you without a bond for costs. Can you provide such a bond?

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  38. George Patton (350 comments) says:

    Joana – what do you mean quiet? They stood for parliament last year? That’s hardly seeking a quiet life?

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  39. joana (1,983 comments) says:

    George…there hasn’t been anything about them in the media. It is March already.

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  40. Nick R (508 comments) says:

    DPF – I share your lack of regard for Ms Bright. But by no stretch of even the most fevered imagination could calling for an investigation be called corruption. That’s bullshit. Brash and Banks are highly influential with a lot of very powerful political connections. Presumably that is why the FMA quite properly went to such unusual lengths (getting a second opinion by a QC is not run of the mill) before deciding not to charge them. But for those minded to look for conspiracies, this is always going to look fishy.

    I have no problem if a select committee decides to investigate the whole thing. Might even be a good idea. The Government is about to put 4 SoEs on the block. Getting a select committee to check that regulations which protect the public are being properly enforced might even help that process.

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  41. Liberty (271 comments) says:

    Penny
    More Good News. Mum & Dad investors will soon be able to invest in Power stations
    What would be really good news. National also puts Radio NZ and TV1,2 on the block as well.

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