Will Banks use the Cunliffe defence in court

March 7th, 2014 at 1:00 pm by David Farrar

Claire Trevett at NZ Herald writes:

On Tuesday, he buckled and revealed the names of three donors who had agreed to be named. A further two would not be named, and their donations will be returned to them. He said it was a lapse in judgment but done with the noble aims of respecting the donors’ wishes for secrecy and keeping Cunliffe at arm’s length from it all. Cunliffe claimed the latter aim was achieved – he had not known the identity of the donors. He also admitted at least one of them had approached him directly to offer a donation, but claimed he had referred that person on to the trustee, Greg Presland, so had not known for certain whether the donation ended up being made.

By this stage a neon sign with “John Banks” should have flared in his head. If Cunliffe’s 2013 donations were “historical”, what were Banks’ 2010 donations? And Banks, too, had argued his donation from Kim Dotcom was technically anonymous because his campaign manager had dealt with it after he was offered it, so he had not known for certain if it was made.

This is an interesting point. John Banks got rightly savaged for having the initial discussion with Dotcom over a donation, and then saying it was anonymous because he left the details to his campaign manager. This is what Cunliffe is now also claiming, so Banks in court can now get up and say Cunliffe did it also.

The question also arises as to how Cunliffe declared the donations to the Labour Party. Labour and Mr Cunliffe have both refused to say whether he declared the donations to the party individually, or as a lump sum from the trust. Presumably it was the latter, given Cunliffe has claimed not to know who the donors were. If so, it might not strictly be against the Labour Party’s own rules but it certainly isn’t in the spirit of them.

This is a very intriguing issue. The fact Labour will not say whether Cunliffe declared just the trust to them, or the individual donors, makes me very suspicious. I doubt Labour Head Office would have deemed it acceptable not to be told of the individual donors (in confidence).  But if they were told of the individual donors, then it means that Cunliffe has lied in saying he doesn’t know who they all were. The only possible way out from the contradiction is to do a Banks and claim he didn’t read the form his campaign manager signed.

If his disclosure to Labour did just name the trust, then they would confirm that to kill the story. I think they did disclose individual donors, and they are terrified at having to admit this because it would compromise their leader so badly.

Cunliffe is now talking about changing the rules to make the situation clearer. If any rules are to be changed, it should be those of the leadership contest, not the Register of Pecuniary Interests. Labour may be selecting its own leader, but it is also selecting the person who could be Prime Minister. No MP who is effectively auditioning to be Prime Minister should be exempt from disclosing donations simply because it is an “internal process”. If anything, it is a greater reason for disclosure.

Somehow I don’t think it is their own rules they will seek to change. If they get the numbers in Parliament, they’ll change the rules of the Register of Pecuniary Interests to exempt donations to leadership campaigns.

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42 Responses to “Will Banks use the Cunliffe defence in court”

  1. Nookin (3,030 comments) says:

    “…they’ll change the rules of the Register of Pecuniary Interests to exempt donations to the Labour Party”.

    There, fixed it for you.

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  2. sHr0oMaN (23 comments) says:

    There is a simple solution to this: all donations should be recorded and open to public scrutiny. I don’t believe in the age of computers and the internet, this would be difficult to do.

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  3. tvb (4,192 comments) says:

    I think Cunliffe knows who the donors are but then hides behind a convenient undertaking to keep their names secret and then conveniently says they will not release him from that undertaking. But these are people have directly contributed to his leadership campaign – in return for what?? The public are entitled to know but Cunliffe maintains this convenient fig leaf. Making the rules clearer is just poppycock. If they were not clear then Cunliffe certainly used any ambiguity to his advantage. A Prime Minister has to make judgement calls all the time. OK the public may tolerate a stuff up sometimes but not very often. But Cunliffe cannot even get his own house in order. He looks tricky and that is just not good enough for a Prime Minister.

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  4. Chuck Bird (4,658 comments) says:

    Where is Graham McCready?

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  5. ross69 (3,652 comments) says:

    Evidence has been given that John Banks asked Dotcom that his donation of 50K be anonymous. Strangely, that’s missing from this post, and there’s no evidence of Cunliffe acting in the same manner.

    Oh and there’s the small matter of Banks being charged with a crime. :)

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11140346

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  6. ross69 (3,652 comments) says:

    Apart from that both cases are the same…

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  7. ross69 (3,652 comments) says:

    Meanwhile, the Herald has been critical of Judith Collins and calls her “naïve”. John Key says there’s no conflict of interest because he goes to places where he says “I use your toilet paper”. Too funny.

    http://www.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=11215279

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  8. burt (7,785 comments) says:

    I think Claire Trevett has missed the main point. It’s different when Labour do it !

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  9. RightNow (6,638 comments) says:

    “Too funny.”

    Yes you are rossie, your parody of a hypocritical myopic lefty who lies through his teeth is spot on.

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  10. NK (1,060 comments) says:

    Apart from that both cases are the same…

    No. They’re entirely different. The Cunliffe donor is known – it’s the Trust. What we don’t know is the name/s of the contributors to that donation. Cunliffe knows their names (he has admitted it), but it’s a big secret to the world at large. He may not know the amount they contributed, but he knows who they are.

    In Banks’ case, he didn’t know who made those two $25K donations because they just appeared on his election account bank statement as a deposit with no identifying name behind it, along with many others of the same amount.

    So Banks didn’t know; Cunliffe does know.

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  11. Elaycee (4,285 comments) says:

    C’mon ross69 – is that the best you can do? Sheesh….

    BTW: Is it true you take your tax advice from Matt McCarten? 8O

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  12. ross69 (3,652 comments) says:

    he didn’t know who made those two $25K donations because they just appeared on his election account bank statement as a deposit with no identifying name behind it

    You must have missed the bit where Banks asked Dotcom to keep his donations anonymous. :)

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  13. bhudson (4,734 comments) says:

    there’s no evidence of Cunliffe acting in the same manner.

    Yes there is – Cunliffe admits that he was approached by someone who wanted to donate and he directed them to the trustee. There would have been no need to do that unless it was to keep the donation anonymous.

    Tricky Davey Cunliffe

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  14. ross69 (3,652 comments) says:

    Cunliffe knows their names (he has admitted it)

    Hmmm of course he knows their names because they’ve told him they don’t want their names disclosed!

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  15. AG (1,759 comments) says:

    This is what Cunliffe is now also claiming, so Banks in court can now get up and say Cunliffe did it also.

    This is just completely silly.

    Banks can get up in Court and say this if he wants, but it won’t help his defence one iota. Because even if Cunliffe knew full well who gave him the money for his leadership campaign he hasn’t committed any criminal offence by failing to disclose it to the registrar of pecuniary interests. Banks, however, will have (if he indeed knew who gave him money, and signed the return knowing this wasn’t being disclosed … which I doubt actually happened).

    You seem to be mixing up political point scoring with legal argument. The two things are not the same.

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  16. davidp (3,540 comments) says:

    I’m confused… So if John Banks paid back Dotcom’s money, then the charges and court case would be dropped? Because I think Cunliffe has been arguing that a politician and a donor can violate election finance laws, but escape penalty by returning the donation if they’re caught at any point.

    Also burglars should be able to escape punishment if they give back the stuff they stole if they’re caught.

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  17. unaha-closp (1,111 comments) says:

    Oh and there’s the small matter of Banks being charged with a crime.

    Banks did his soliciting of anonymous donations in 2010 and is getting prosecuted in 2014.

    Cunliffe did his soliciting of anonymous donations in 2013, so we’ll see about prosecution in 2017.

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  18. NK (1,060 comments) says:

    Oh yeah, and what AG said too. The two cases are not remotely identical.

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  19. NK (1,060 comments) says:

    I’m confused… So if John Banks paid back Dotcom’s money, then the charges and court case would be dropped?

    Who would he pay them back to? He doesn’t know who made them. But Cunliffe does, which is why he can repay it.

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  20. igm (1,413 comments) says:

    ross69: Your pro-left wafflings are pissing most of us off. It is abundantly clear you are paid too much, by way of benefits, of taxpayers’ monies, to support your sick low rent rantings.

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  21. James Stephenson (2,004 comments) says:

    You must have missed the bit where Banks asked Dotcom to keep his donations anonymous.

    “Asked him to keep his donations anonymous” or “Told him how to make his donations in a way in which they could stay anonymous”?

    The law requires that you declare if you know where a donation has come from, not if you’ve got a pretty good hunch you could guess.

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  22. davidp (3,540 comments) says:

    AG>he hasn’t committed any criminal offence by failing to disclose it to the registrar of pecuniary interests

    So it is illegal for local government candidates to receive secret donations, but legal for the leader of the opposition to receive secret donations? Banks should argue that the law is absolutely mad, and therefore he’d chosen to ignore it.

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  23. James Stephenson (2,004 comments) says:

    Banks should argue that the law is absolutely mad, and therefore he’d chosen to ignore it.

    I think the “I’d lost the election, so just scribbled my name on the bottom of the page without bothering to read it” defence is probably stronger.

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  24. gazzmaniac (2,317 comments) says:

    What about the Chewbacca defence?

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  25. Kimbo (667 comments) says:

    There is a simple solution to this: all donations should be recorded and open to public scrutiny. I don’t believe in the age of computers and the internet, this would be difficult to do.

    Yeah, just like we could do the same to check out whom electors vote for. What a great idea!

    Alternatively, we can rewind the clock to before the paranoia that the Closed Brethren inspired in 2005. If we did so, we could then reflect that the system of media scrutiny did an effective job at the time of exposing their hypocrisy and Brash’s incompetence. We could then decide that the labyrinthine attempts at campaign funding legislation are more trouble than they are worth for all concerned, especially for Labour and the Greens via their CIR funding (actually, on second thoughts)…

    We could then just allow donors the democratic freedom to remain anonymous if they so choose. And ordinary people of every political persuasion to engage peacefully in public debate on issues that affect them however they see fit.

    Campaign finance laws – red tape imposed by people competing for public office for their own self-interest, who don’t respect the public’s ability to figure things out for themselves, and who have such a poor opinion of their countrymen that they think money can buy votes and elections.

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  26. igm (1,413 comments) says:

    John Banks’ case should be dumped forthwith. If “Tojo”, who has lied to his own losing supporters, as well as NZ public, can get away with corrupt practises, then Banks should be free to get on with unseating Lecher immediately. “Tojo” has even produced a CV that should have seen him charged, yet left wing press turned blind eyes, and it has been allowed to slide off the landscape.

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  27. burt (7,785 comments) says:

    igm

    I think Cunliffe said ‘Move on’ and that’s all that’s required to stop all further legal action against a Labour MP.

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  28. Psycho Milt (2,246 comments) says:

    …I think Cunliffe has been arguing that a politician and a donor can violate election finance laws, but escape penalty by returning the donation if they’re caught at any point.

    I certainly hope he hasn’t argued that, first because it would be wrong and second because it would put him in a very bad light. Cunliffe hasn’t actually violated electoral finance laws, so doesn’t need to be making any arguments about them.

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  29. Chris2 (754 comments) says:

    This money donated to Cunliffe for his leadership bid.

    What would it have been spent on?

    As an MP surely he travels and stays anywhere in the country at tax-payer expense anyway?

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  30. Kimbo (667 comments) says:

    Cunliffe hasn’t actually violated electoral finance laws, so doesn’t need to be making any arguments about them.

    Er, actually we don’t know that…yet. Just like we don’t know yet regarding Banks.

    Maybe Graham McCready can be inspired to have the matter tested in a Court. Until then everything else, including when it comes from Greg Presland, is opinion.

    But if I was Cunliffe I would be seeking a refund if Presland charged him for any political advice.

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  31. BeaB (2,056 comments) says:

    Although I am not holding my breath, these are the only questions the media should be asking:

    What exactly was the money spent on?
    How much was left?
    Is that is what is being used to pay back the two anonymous (embarrassed) donors?
    Or is it going into Labour Party coffers?

    I bet Cunliffe never comes clean and reveals what his expenditure was actually for. Tricky, tricky, tricky…

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  32. Nookin (3,030 comments) says:

    BeaB

    And:

    Was one of the owners kim.com?
    Has the Labour Party adopted the Party Party IT policy?

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  33. bringbackdemocracy (391 comments) says:

    Maybe Cunliffe could be a witness in Bank’s defense.

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  34. Kimbo (667 comments) says:

    Maybe Cunliffe could be a witness in Bank’s defense.

    No. Let McCready use him. He couldn’t be any less credible in the matter than Kim Dot Com is for the plaintiff.

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  35. davidp (3,540 comments) says:

    BeaB>Is that is what is being used to pay back the two anonymous (embarrassed) donors?

    I’ll be interested to hear who actually stumps up the cash. The Labour Party? Cunliffe personally?

    Presumably the trust took the donations and has already disbursed them to Cunliffe, so has no actual assets of its own. So legally, who is on the hook? The trustees, including incompetent bag man Presland? If so, they’re in the strange position that Cunliffe has promised that a trust of which he supposedly has no control will pay back money that it doesn’t have, and Presland is the one on the hook.

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  36. Psycho Milt (2,246 comments) says:

    Er, actually we don’t know that…yet.

    Actually, we do. As AG points out above, “he hasn’t committed any criminal offence by failing to disclose it to the registrar of pecuniary interests.” Our legislators haven’t treated an internal vote for leader within a political party in the same way as the kind of public election Banks was involved in. Perhaps a future government will decide that every kind of organisation should be covered by the electoral finance rules for any kind of internal voting, but I seriously doubt it.

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  37. AG (1,759 comments) says:

    What Psycho Milt said.

    The “donation disclosure” regime in the Electoral Act 1993 does not apply to money given to MPs to compete in an internal party selection process. Look at the relevant definition of “donation” in Part 6A of that legislation if you don’t believe me.

    So the only rules that Cunliffe might have breached (and it isn’t even clear that he has done so) are the internal Parliamentary ones relating to an MPs pecuniary interests … which are not “laws” and so it is not an “offence” to do so.

    Further, if all Banks had done is what Cunliffe says he did – said to Dotcom when he approached him directly to offer a donation, “go talk to my campaign manager who handles the finances” – then there would be no case against him AT ALL. But the allegation is that Banks carefully instructed Dotcom on how to structure the donation, meaning that he couldn’t then afterwards claim not to have knowledge of its source. There’s also the matter of Banks (allegedly) being directly handed a donation by the CEO of Sky City.

    Now, I’m not saying Banks will be found guilty. For my money, he’ll walk free (proving he “knew” what he was signing will be too hard to do). But it’s a false equivalence to say “Cunliffe is just like Banks!”

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  38. doggone7 (671 comments) says:

    “John Banks got rightly savaged for having the initial discussion with Dotcom over a donation…”

    John Banks was savaged in our house for looking and sounding like a liar. This man, so assured about everything, so in control, so meticulous to the point of being obsessive, could not remember a helicopter ride to the mansion or all the other attendant bits.

    John Banks was savaged in our house after that for the times on his radio show he put the boot into any and everyone who had a hint of having done something wrong and the clear implication was that he and those he associated with was beyond reproach. They were the ‘good’ people.

    Cunliffe might be the least competent leader ever of a political party in New Zealand and may be on a road to nowhere but linking his actions to those of John Banks is a condemnation even he doesn’t deserve.

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  39. davidp (3,540 comments) says:

    >So the only rules that Cunliffe might have breached (and it isn’t even clear that he has done so) are the internal Parliamentary ones relating to an MPs pecuniary interests … which are not “laws” and so it is not an “offence” to do so.

    The trust gave money to Cunliffe. Should he have paid income tax on it?

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  40. tvb (4,192 comments) says:

    There has been a deafening silence from Cunliffe’s caucus supporters and his new Union buddies. Normally when someone is in trouble a colleague comes to the rescue and makes some statement in support. In Cunliffe’s case nothing. That means the plotting has begun probably with the odd mutter or two. Meanwhile Shane Jones will try another initiative but he is too lazy and too preoccupied to do anything worthwhile.

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  41. gazzmaniac (2,317 comments) says:

    The trust gave money to Cunliffe. Should he have paid income tax on it?

    I shouldn’t think so, since the act of giving means it is a gift. If it was a regular payment that would make it income.

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  42. Ben Dover (526 comments) says:

    How Can we read Johns’ “Tea Leaves:
    without the “Tea tapes”?

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