Kiwiblog

Andrew Geddis blogs on the issue of privilege for what civil servants say to MPs:

The central issue that the Privileges Committee is considering is relatively straightforward to understand, but tricky to resolve. It arose out of the Supreme Court’s decision in Gow v Leigh - a case I discussed in a previous post here, so won’t cover in detail again. In the course of that judgment, the Supreme Court ruled that the absolute privilege against any legal consequence that attaches to those who speak during a proceeding in Parliament does not extend to public servants who are advising Ministers of what to say to Parliament. Consequently, if a civil servant gives a Minister information about an individual or organisation that is false and defamatory, and the Minister subsequently repeats it in Parliament, then the civil servant potentially can be sued for defamation (even though the Minister cannot be, because the Minister enjoys absolute privilege with respect to her or his remarks).

I’m a fairly simple guy, and think it is a good thing if civil servants do not tell Ministers things that are defamatory and incorrect. I also think it is a good thing if there are some consequences for doing so.

This fact then means that the sole justification for extending absolute privilege to the public servant when providing information to the Minister lies in the consequentialist-based harm that may be done to that institution if public servant’s do not have the benefit of that privilege. In other words, if public servants don’t feel able to speak fully and freely with Ministers without fear of attracting subsequent legal liability, then they may hedge and trim their communications in a way that denies Ministers the information they need to fully answer questions posed to them by the House.

Obviously, this would be a bad outcome for the House as an institution. But how likely is it to occur? Remember first of all that under the Supreme Court’s reading of the law, public servants still enjoy qualified privilege to protect them when speaking with Ministers (as, indeed, does anyone who is speaking to an MP in the course of their duties). This fact means that unless a plaintiff can prove that a public servant abused that privilege by acting out of ill will or otherwise taking advantage of the opportunity, the public servant enjoys the same degree of legal protection as if the privilege was absolute. Therefore, the only speech that will attract actual liability is where a public servant sees a chance to settle some score with an individual or group that the public servant doesn’t like and gives a Minister false and defamatory information, which the Minister then passes on to the House .

I suppose it could be the case that individual public servants become so risk-averse that they deliberately run the risk of sending their Minister into the House with less information than they themselves hold. But I wonder if this fear does not misread public service culture – my observation of “inside the beltway” practice is that public servants are more terrified of being the cause of a Minister’s embarrassment and wrath than anything else in this world. Furthermore, we need to remember what a public servant becoming liable for a defamatory statement to a Minister actually means in practice. The public servant won’t have to hire lawyers and worry about damages. Those will be covered by the public servant’s department. So at most the public servant will be somewhat inconvenienced by having to provide affidavits in defence of the action. And that would seem to be a risk that public servants face on a daily basis, insofar as their advice may result in Ministerial actions that are subject to judicial review and the like.

Audrey Young takes a trip down memory lane to the last MP accussed of reading while driving. It was Richard Prebble, who was then Transport Minister and it turned into a Privileges Committee hearing!

The case of Dr Paul Hutchison reading while driving may remind some of you with a few grey hairs of the furore some years ago over the claims that Richard Prebble had been seen driving while reading – a serious allegation for a Transport Minister as he was at the time. …

It was the subject of a privileges committee hearing though the privileges case was not about the driving perse, but commentary and questions around it. Both Prebble and Radio Windy broadcaster Chris Gollins were “charged” with contempt of Parliament. …

On September 22 1986 Mr Chris Gollins in his regular commentary on Wellington’s Radio Windy stated that the Minister of Transport, the Hon Richard Prebble, had been observed on the previous day driving for a considerable period through Wellington while reading what appeared to be a copy of a Sunday newspaper spread across his steering wheel. …

The Radio Windy commentaries had two immediate consequences. Mr Winston Peters, MP, who had asked the question, raised the Minister’s reply as a matter of privilege on the ground that it had been given with the intention of deliberately misleading the House. At almost the same time, the Minister raised the commentaries as a matter of privilege on the ground that they misrepresented the proceedings of Parliament and reflected on him as a member by libelling him in his capacity as a Member of Parliament.

The committee heard evidence from Mr and Mrs Gollins, senior, the parents of Mr Chris Gollins who had observed Mr Prebble driving on the Sunday, from Mr Chris Gollins and from Mr Prebble. Mrs Prebble, who was a passenger in the car on that day, was unable to appear, but stated by telegram that Mr Prebble had not been reading while he was driving.

The committee has no doubt of the honesty of the evidence given by Mr and Mrs Gollins senior. They were both truthful witnesses endeavouring to assist the committee to the best of their ability. It was in fact only Mrs Gollins who had observed Mr Prebble for any period of time – Mr Gollins having concentrated on his own driving and only having glanced into Mr Prebble’s car while both cars were waiting at a set of traffic lights. Mrs Gollins testified
that she had seen Mr Prebble driving though Wellington central with a newspaper on the steering wheel and that at one point while the car was at a traffic light, he had made what she took to be a remark to Mrs Prebble based on what she had seen in the newspaper.

Mr Prebble strenuously denied that he had been reading the newspaper at any time. He gave evidence that he had purchased groceries and a number of newspapers on the day in question and had placed the newspapers in his lap towards the steering wheel but that he had not read these papers while he was driving the vehicle.

Mrs Gollins rang her son shortly after she arrived at her home that day. This was done in the expectation that Mr Chris Gollins would use the item in his commentary. …However although the first commentary expressly states that Mr Prebble had been observed reading a newspaper while he was driving, it is clear from the evidence that neither at that time or later, did Mr and Mrs Gollins state to their son that Mr Prebble had been reading the newspaper.

This was a conclusion drawn by Mr Chris Gollins, it was not a statement made by the principal witnesses themselves even though Mrs Gollins agreed in evidence that the conclusion was reasonably drawn by her son. Mrs Gollins stated that her son added this conclusion in broadcast on his own initiative.

And the conclusion:

Mr Prebble’s answer to the question in the House was a completely accurate reply and the allegation against him of contempt by lying completely insupportable….A minority of the committee considers that Mr Prebble’s reply was misleading…he was observed driving for a considerable period and a newspaper was spread across the steering wheel. The minority considers that it is a natural inference from the position of the paper that Mr Prebble was reading it at some point on his drive. In these circumstances a minority of the committee would find that Mr Prebble did mislead the House.

It finds [Chris Gollins and Capital City Radio] to have committed a contempt in the broadcast of September 24. The committee believes it was a misunderstanding as to the nature of the Minister’s reply which led Mr Chris Gollins to broadcast the offending remarks….in these circumstances the committee is disposed to recommend to the House that no further action be taken.

Geoffrey Palmer chaired the committee. Also on it were Bill Birch, Michael Cullen, Doug Kidd and Frank O’Flynn.

I presume Kidd and Birch were in the minority. Regardless a fascinating trip down memory lane.

The Privileges Committee tabled a report at the end of last week titled:

Question of privilege relating to the exercise of the privilege of freedom of speech by members in the context of court orders

And they make significant recommendations to the House:

Matters awaiting or under adjudication in any New Zealand court may not be referred to in any motion, debate, or question, including a supplementary question, subject always to the discretion of the Speaker and to the right of the House to deal with legislation on any matter or to discuss delegated legislation.

This would make it a contempt of Parliament for an MP to breach a supression order in the House.

They also recommend to the Government:

The Privileges Committee recommends to the Government that it introduce legislation to amend the Legislature Act 1908 to provide that
• the live broadcast of Parliament’s proceedings, including select committee hearings, is protected by absolute privilege (p. 25)
• delayed broadcasts or rebroadcasts of Parliament’s proceedings, including select committee hearings, that are made by order or under the authority of the House of Representatives are protected by absolute privilege (p. 26)• a fair and accurate report of proceedings in the House, or summary using extracts of proceedings in the House, by any person is protected by qualified privilege (p. 27)
• the broadcast and other publication of extracts of Parliament’s proceedings, including select committee hearings, that are not made by order or under the authority of the House of Representatives are protected by qualified privilege, in a manner consistent with the provisions of the Defamation Act 1992 (p. 28)
• the criticisms made of the decision in Buchanan v Jennings be addressed so that a Member of Parliament, or any other person participating directly in or reporting on parliamentary proceedings, who makes an oral or written statement that affirms or adopts what he or she or another person has said in the House or its committees will
not be liable to criminal or civil proceedings (p. 22)

The extension of parliamentary privilege is useful, as it will include Internet broadcasts of the House.

The Buchanan v Jennings is a case when MP Owen Jennings was able to be sued because he said outside the House that he stood by or affirmed what he said in the House. Up until then it was thought you only lost liability if you actually repated what you said.

The Committee also turned down a suggestion by Andrew Geddis that the broadcast feed of Parliament have a five minute delay to allow the Speaker to bleep out any words that breahc a supression order. Thank God they turned that down – it would be ridicolous to have Parliament broadcast with such a delay.

I will be very interested to hear the debate, when the report is received by the House.

The Herald reports today that the Police have rejected the NZ First complaint against the Director of the Serious Fraud Office. They were very upset that he told the truth to the Privileges Committee about the funding of the $40,000 Peters paid Clarkson. It showed that both Peters and Henry had given false evidence to the Privileges Committee, so no wonder they were upset.

But this got me thinking about the Police, and the election. The Electoral Commission has referred multiple alleged offences to the Police this year, and with one exception (the false donation returns from NZ First) it has not announced an outcome for any of them.

The earliest referral was on 27 June in relation to unauthorised banners in Tauranga. This was as simple a case as you can get. How is it the Police have not been able to reach a conclusion in six months?

There was also the Progressive adverts referred on 1 August, the EMA adverts on 26 August, the late Social Credit donations return on 4 Sep 2008, and a further Progressive ad on 18 Sep 2008.

It is difficult to not conclude that the Police just have no interest in enforcing electoral law (as they showed in 2005), when they can’t even make a decision within six months on an unauthorised billboard.

NZ First MP Doug Woolerton has revealed that he felt shamed by the Owen Glenn saga and that he thought the Privileges Committee did its job:

The Owen Glenn donation scandal, which almost capsized Winston Peters, deeply embarrassed his NZ First colleague, Hamilton MP Doug Woolerton.

List MP Mr Woolerton made the revelation during last night’s Waikato Times candidates’ debate for Hamilton East.

He was responding to a question from the floor on the subject and dropped characteristic good humour to answer openly and honestly.

“I was hugely embarrassed. That was unfortunate but the parliamentary committee did its job,” he said.

Doug will be gald NZ First has already had their list ranking!

It is good to see some signs of intelligent life in NZ First – I mean no-one (not even Helen) really could have heard all the evidence and think there was anyway Winston was telling the truth about not knowing.

The Dom Post reveals that Tommy Gear is the NZ First staff member who pressured Te Ururoa Flavell to vote for Winston.

We always wondered what Mr Gear does for his taxpayer funded salary. Now we know – it is to lobby MPs not to find Winston guilty.

Taito Phillip Field explains why he voted to censure Peters in the Herald.

Mr Peters has claimed the privileges committee was biased and hit out at the Maori Party for betraying him and at Mr Field, saying theMangere MP “did not understand loyalty”.

This is loyalty, as practised in Siciliy I suspect?

Mr Field acknowledged Mr Peters had supported him. “I have a lot of time for Winston and I am supportive of him. I’ve always considered Winston a friend, but I had to make an honest decision which had respect for the privileges committee process.”

Winston thinks it is all about him, but for many MPs it was about recognising the fact the Privileges Committee heard all the evidence, and reached fair conclusions.

In the same report:

Meanwhile a complaint to the Advertising Standards Authority about a Tui billboard saying: “When Winston says no, he means no. Yeah right.” has failed.

The complainant, N. Keesing, said it was “defamatory and racially discriminating towards Winston Peters”.

The authority ruled that it would be seen in a humorous light and did not meet the “threshold to effect a breach of the code of ethics”.

How is the Tui billboard racially discriminating??

It may however be an election advertisement. I have asked the Electoral Commission to rule on whether or not it is.

Russell Brown is not too happy with Labour on Peters:

The failure of the Labour members of the privileges committee to find with the multi-party majority that Winston Peters had provided “false or misleading information on a return of pecuniary interests” was pathetic, and they know it.

And later on:

I hold no brief for Peters, and I suspect there will be worse to come on his and his party’s affairs. I think Chris Trotter’s comparison of the privileges committee’s action to a lynching (he even has a picture of a man being lynched on his blog) is revolting.

There is an interesting split occurring on the left. There are those who are disgusted with Labour and willing to say so. And there are those who are hugging Winston closer and closer and trying to turn him into a martyr and a hero.

Russell of course also has a go at John Key, linking to the editorial in today’s Herald about him. I have previously blogged my criticism of the Tranzrail responses, along with my relief that unlike Peters and Clark who never admit they do anything wrong, Key did admit his mistakes.

I have said for some time that this election is National’s, unless they stuff up. This is not an impossibility, to put it mildly. It would be an incredible shame if they do stuff up, and we get a fourth term of Clark and Peters. They say we get the Government we deserve but seriously we’re not that bad are we?

QC Jim Farmer has criticised Helen Clark and Michael Cullen for their attacks on the Director of the Serious Fraud Office. Farmer is a past president of the Bar Association.

Jim Farmer said criticism of Mr Liddell’s judgment by Prime Minister Helen Clark and her deputy, Michael Cullen, was wrong and unwarranted.

Mr Liddell’s evidence was uncovered in the SFO investigation and showed that Mr Peters had a $40,000 debt paid for him by the Spencer Trust, contradicting his version that he paid it himself.

Dr Farmer said Mr Liddell had a simple choice: whether it was responsible to “sit on” relevant information, or to hand it over.

And Labour wanted the information supressed, because it reveals that Peters broke the Cabinet Manual and Register of Interests even more blatantly than in the Owen Glenn case.

“He has obviously taken a responsible decision. It is very defensible on its merits and it doesn’t warrant attack from politicians, particularly personal attacks in the form of saying he has poor judgment.”

Dr Farmer may not understand that for Clark and Cullen, a public servant exercises poor judgement if they do not act in the best interests of the Labour Party, as opposed to acting in the public interest. You see they have convinced themselves that nothing is more important for the public good than them remaining in power, so anything that may damage that is automatically poor judgement by the public servant involved.

Dr Farmer said there was no formal requirement for Mr Liddell to consult Crown Law and he had “no idea” why Helen Clark and Dr Cullen were suggesting this.

“In carrying out the investigative duties, the SFO and the director are intended to be independent and operate without influence from anyone,” he said.

“Running off to Crown Law or the Solicitor-General to get advice – or approval, if that’s what Dr Cullen is suggesting – doesn’t seem to be obvious or even right.”

Indeed. And in fact a growing number of Government Departments no longer even use Crown Law for their legal advice or representation in court.

Further to the the two stories yesterday from lifetime Labour voters who will not vote Labour this time due to Labour’s condoning of Peters’, I had an interesting encounter at the Backbencher last night, after Back Benches.

A gentleman came over to me and asked if I was David Farrar. He was in his 50s I would say. When I responded that I was he said he wanted to tell me something but put it in context.

He told me how he hates the National Party and would never vote for them. In fact his exact words were “I would rather take out a knife, cut off my cock and stuff it down my throat than vote for National”. He also went on to say he does not agree with any of my political views, which he finds repugnant. In fact he joked (I hope he was joking) that if I was crossing a road and he was in a car, he would speed up.

After having got that out of the way, he then went on to say how disgusted he is with Labour over Winston Peters (and ironically Winston was in the room as he had turned up to watch Back Benches), that their tolerance and implicit condoning of his activities verges on corruption, and how they need to be thrown out of office for a couple of terms.

Voting to defend Winston was a step too far even for Jim Anderton. And it seems for a growing number of lifeling Labour voters.

I missed an update Colin Espiner did on the vote yesterday. It is worth repeating in full:

Labour and NZ First voted against the privileges committee motion to censure, but every other party in Parliament – including independents Philip Field and Gordon Copeland – voted in favour, so the motion passed comfortably.

This was a relief, as it meant Labour and Winston Peters failed to pervert the cause of justice and will of the majority despite the most underhand of tactics. As I’ve said below in this post, Labour’s attempt to politicise the committee and discredit its findings was shameful – amongst the worst things the party has done in the past nine years, in my opinion.

That is really strong language, but justified. This is why lifelong Labour voters are saying they can stomach no more. You had the Attorney-General of New Zealand repeating Winston’s conspiracy theories about how Owen Glenn was coached by his Fay Richwhite supplied lawyer. Yes, seriously. I will blog the Hansard when it is available.

As for Peters, his utter lack of contrition, humility, and failure to show even the slightest respect for the judgment of his peers was nauseous. He has become a parody – a caricature of belligerence, contempt, hubris, and narcissism. His address to Parliament last night was ugly, brutal, and sad. The shame of it all is that if just 5% of New Zealanders either believe him or feel sorry enough to vote for him he will be back triumphant.

It was ugly. There was not even a small fraction of contrition from Winston. Quite the opposite. As MPs such as Russel Norman were making dignified serious to the point speeches, Peters was barracking them almost non stop. It was an insight into how truly ugly this man is. Muldoon was benign by comparison.

Labour have chosen to put all their eggs in with Winston. There is no less deserving person. It wasn’t even that Peters has no respect for the judgment of his peers. He has no respect for anyone but himself. He does not accept in any way he is bound by rules or accountability or obligations. Sadly this is partly because Helen Clark has freed him from all the normal Ministerial obligations such as telling the truth, disclosing interests, following the Cabinet Manual.

Not only were Labour turning a blind eye to Peters corruption, they were threatening and lobbying other parties to do the same.

NZPA reports:

Maori Party co-leader Pita Sharples says a New Zealand First staffer and Government minister tried to put pressure on his party over how it would vote in yesterday’s censure motion against Winston Peters. …

“I personally had two separate phone calls from a senior minister urging me to vote in favour of Winston, and suggesting that there would be unpleasant repercussions from Maori people if I didn’t,” he said in a statement….

“Both (fellow co-leader) Tariana Turia and myself were disgusted with this kind of activity, aimed at perverting the course of justice and fair play.”

Labour First are quite simply a corrupt party, and they should go.

The Prime Minister’s hypocrisy is unmatched on this. She claims the outcome of the Privileges Committee was not credible because of partisan politics, and her own Ministers are trying to heavy and threaten the Maori Party to vote against, despite their belief in the evidence.

The same Prime Minister who has not even read a copy of the Privileges Committee report, yet says there is nothing in it that would casue her to drop Winston.

UPDATE: the full press release from Sharples is over the break

(more…)

The three major editorials are all on Peters today. First the Herald:

It is stating the obvious to say Winston Peters should have resigned as a minister some time ago. And that he should go now, after the censure delivered by Parliament’s privileges committee. He will not, of course, and, the New Zealand First leader may even see a silver lining in that dark cloud. The Prime Minister has said she will not reinstate him as Foreign Minister, but that he will remain a minister without portfolio. As such, Mr Peters is free to hit the campaign trail with the salary and perks of a minister but none of the responsibilities.

All baubles, no work.

The Prime Minister sought to construct one by calling the committee “tainted” and suggesting most of its members were politically motivated. The criticism was tawdry. No representatives on the committee had, out of necessity, a more highly politicised view of Mr Peters than those of Labour.

And she admits she has not even read the report.

Now The Press which has a simple headline of “Sack Peters”:

The seriousness of the report means that Peters should not be reinstated as foreign minister, a position in which the qualities of credibility and trustworthiness are crucial. So why is it that for the next two months or more, until the shape of the next government is known, he is allowed to retain his ministerial salary and the other perks of the job? The only answer is that it is still politically expedient for Labour to let him cling to the baubles of office.

I think they are worried if they take his baubles off him, he will remove their ones.

Peters, after weeks of self-righteous bluster and confusing problems of recollection, reacted in typical fashion. He slammed the committee members who found against him, claiming that they had prejudged the issue for political reasons and applied retrospectively a new interpretation of Parliament’s rules. This, according to Peters, had “echoes of Zimbabwe” and, oddly enough, he was right.

In Zimbabwe, after all, there is a certain political leader whose stock response to any criticism is to clamp down on the news media and to claim that he is the victim of murky conspiracies. And that same leader has exhibited a grim determination to hold on to the trappings of power.

We’re just fortuntate that most of his supporters are too elderly to invade farms!

The Government has clearly taken a gamble. It believes that Peters will return to Parliament after this year’s election, courtesy of him persuading 5 per cent of voters to believe him, and that with his support in some capacity Labour could lead a fourth consecutive administration. But it is far more likely that voters will be aghast that Peters has not been sacked or stripped of his baubles and judge Labour itself to be guilty by association.

As the saying goes, a vote for Labour is a vote for Winston in Government and a vote for Winston is a vote for a Labour-led Government.

Finally the Dom Post:

Pared back to its essentials, what that means is that the committee did not believe the evidence presented to it by Mr Peters and his lawyer Brian Henry. There is another, shorter, word to describe what the committee made of their testimony.

They lied. Many many times in fact.

The committee was presented with two conflicting versions of events. One was internally consistent and supported in material parts by documentation; the other was subject to frequent revision and unsupported by documents. Mr Peters and his lawyer were given multiple opportunities to come up with a version of events that fitted plausibly with the known facts. Their inability to do so left the majority of the committee with no option but to conclude their evidence was unreliable.

Except for Labour First MPs.

In Mr Peters’ case, Miss Clark has the power to demonstrate that such conduct is not acceptable for ministers in her government. That she has not done so because she harbours the hope that support from NZ First might enable her to form a fourth government after the election is a matter of regret.

You have to wonder if there is any conduct that Clark would sack Peters for. Any at all?

It is worth noting that Gordon Copeland also played a very useful role in the decision to censure Peters.

Gordon filed the Privileges Complaint that Peters got caught on. Rodney filed one relating to payment of a debt while Gordon’s was on receiving gift. And in the end it ws Gordon’s complaint that held up.

Now I suspect that even if Gordon’s complaint had not gone in, the Privileges Committee would still have have made the findings they did, as even if the original complaint was under one section of the rules of the Register, they would not ignore a breach under a different rule.

But regardless worth noting Gordon’s useful role in this.

The House has just voted to censure Winston Peters 62 – 56 as recommended by the Privileges Committee. It has also instructed him to file amended returns for the periods ending 31 January 2006, 31 January 2007 and 31 January 2008.

Anderton abstained and everyone except Labour First voted in favour.

Even Taito Philip Field voted to censure Peters. Now that has to hurt!

This is not an ending. It will be very interesting to see what new gifts he reveals in the amended returns.

This is amazing. Rodney Hide has just questioned Helen Clark on whether she is happy with the $40,000 donation to Peters from a donor through the Spencer Trust. Peters tried to block it half a dozen times but he finally got to ask it.

Clark’s response was she has not seen the wiring diagram from the SFO that was in the Privileges Committee report.

So the PM has not even bothered to read the report. This takes her hear no evil, see no evil to new levels. That $40,000 strikes cast grave doubt on the integrity of decision making around the racing portfolio and the PM declares she hasn’t even looked at the evidence.

I mean seriously just when you think the standards can not drop any lower, they do.

So Helen Clark has cleared Winston Peters from any wrong doing, and she did it without even needing to read the report of the Privileges Committee. She will presumably be voting against the report – also without reading it.

I’ll start with Colin Espiner:

On the privileges committee report, I think the committee did an excellent job. It cut through all the Peters verbiage and red herrings and bluster. It simply didn’t believe him and rightly found him guilty of misleading Parliament. It recommended his censure. That is an extremely serious step, and any minister of the Crown would be sacked for such a finding.

Indeed. Someone commented the last Mp to be censured was in 1975. Could the historians amongst us find the last time a Minister of the Crown was censured and lost his job.

Except Winston Peters. Labour’s handling of this crisis has been nothing short of shameful. Every day Prime Minister Helen Clark and her deputy on the committee, Michael Cullen, have found a different excuse for why Peters should not be sacked. There is simply no wiggle room left. So instead they’ve started attacking the committee itself. And this is perhaps the most shameful approach of all. The privileges committee used to be seen as beyond reproach – powerful, elite, Parliament’s highest body. Its decisions were unquestioned.

Labour claims the committee has been politicised and it has – by Labour and NZ First. The only attempt to hijack its findings was made by those members, not those who questioned Peters and found his answers wanting. How Labour can say it is National that has hijacked the committee when its own support parties – the Greens and United Future, and the Maori Party – all sided with National and Act beggars belief.

I think it is the maxim that if you repeat a lie enough time, then some people will believe it.

If, in Parliament today, Labour again attacks the committee and tries to vote down its findings, Parliament will have reached a new low in my opinion. Labour should accept that it lost the fight at the committee and respect its majority verdict. That’s what happens in our justice system when you’re found guilty by a jury of your peers.

I predict Labour will spend most its time attacking John Key and not taking the censure seriously.

Next we have John Armstrong:

Winston Peters’ letter of resignation as a minister ought to be on the Prime Minister’s desk this morning.

It won’t be. However, the damning report of Parliament’s privileges committee demands nothing less, even though its finding that Peters is in contempt was not unanimous.

You really have to wonder sometimes why Helen Clark refusesto take any meaningful action against Peters. Instead she runs attack lines on his behalf against the Privileges Committee and the SFO.

But he cannot get such accusations to stick when it comes to the Greens, United Future and Maori Party representatives who made up the remainder of the majority view. Those parties had no axe to grind with Peters. They simply reached the only conclusion that could be drawn from the evidence – that Peters had “some knowledge” of Glenn’s intention to make a donation.

The next time Clark runs the line that the Privileges Committee finding is politically motivated, ask her why Peter Dunne (one of her Ministers) and Russel Norman support the finding?

The big question is whether she can ever trust him again. With National not wanting a bar of him, it would now seem inconceivable that Peters could again become a minister even if Labour wins the election.

Not at all. If Peters makes it back and can give her a fourth term, of course she’ll have it back. Why else would you go through all the pain now, if not to do a deal later.

Labour’s reluctance to upset Peters with rigorous questioning during his appearances in front of the committee was understandable given Labour’s dependence on him for the past three years and conceivably for the next three as well. But it is to Labour’s eternal shame that it behaved thus.

In the end, the majority verdict is a victory for principle over expediency and for the integrity of the privileges committee.

Eternal shame is a good phrase.

We also have Frog from the Greens:

It does make me wonder weather the Team LPG fanboiz should really be getting so grumpy at Green supporters for not wanting to declare our undying love to Helen Clark and Labour. Because it seems from its recent behaviour that Labour has already found its preferred coalition partner, and it’s Winston Peters, come what may. But then I guess Labour doesn’t have so much to gain from a internet campaign for Team LNZF?

Can one imagine Helen Clark defending a Green MP to the extent she has defended Winston?

You also have comments from two of the MPs on NZPA. First Peter Dunne:

United Future leader Peter Dunne said he had gone into the committee with an opinion: “I entered the committee thinking this was probably a beat up.”

But after hearing evidence he changed his mind.

Mr Dunne said Mr Peters had repeated opportunities to give his side.

“Really I think the committee genuinely tried to get to the bottom of what went on and reached its conclusions accordingly.”

Mr Dunne said crucial for him was contradictory evidence and then “cute” recall of events by Mr Peters’ lawyer Brian Henry after evidence was presented.

So Dunne went from thinking it was a beat up, to deciding on the evidence that Peters knew about the donation and should have declared it.

Green Party co-leader Russel Norman disagreed [with Helen Clark]. He said he went into the inquiry with an open mind and based his decision on the evidence put before him.

So is Helen calling Russel tainted or unfair?

Dr Norman said the committee’s chairman, National MP Simon Power, ran a fair process.

In fact even Michael Cullen went out of his way to say that Simon Power was very fair as the Chairman. I think that is a huge credit to Simon for the way he has conducted himself.

As one minor example of his integrity I was talking to him on an unrelated issue a few weeks ago. I had heard on the radio that Owen Glenn would be testifying but not whether or not it would be in person or by video conference. So I just asked Simon whether it was in person or not as I happened to be speaking to him. Simon, just to avoid even the possibility or suggestion of having an inappropriate conversation, just referred me to the press release the Committee had put out. Now I wasn’t asking for anything which wasn’t public, but Simon erred on the side of caution by not even answering my question but just referring me to the press release. He has bent over backwards to be fair and impartial in this matter.

Finally, I note that Jim Anderton is going to show a tiny amount of spine and abstain rather than vote against the Privileges Committee recommendations. Don’t give him too much credit though as he repeat the bullshit from the PM that the process has been unfair to Winston. He does at leats ping Peters for his hypocrisy:

“NZ First was clearly accepting donations at a time when it was attacking everyone else for taking money from big business. For that the party has some explaining to do to the voting public,” Mr Anderton said.

Perhaps Mr Anderton could offer an opinion on whether he, as a member of the Cabinet, felt he should have known about the donations from the Velas to Peters, when he voted to go along with Winston’s generous funding for the racing industry?

It is of huge significance that the Maori, Greens and United Future parties all voted not just to recommend Peters be censured, but to state they believe he lied to the Privileges Committee. This leaves Labour isolated with NZ First, and puts paid to Winston’s hysterical cries about “echoes of Zimbabwe” as if he is some sort of victim.

There is an echo of Zimbabwe all right – a politican who thinks he is above the law, who is unaccountable and untouchable, and is protected by the ruling party.

All five parties in the majority deserve congratulation for not shying away from their duty, each for a somewhat different reason.

1. ACT for having the guts to pursue Peters in the face of explicit threats from Peters, and laying the complaint with  the Speaker.
2. National for putting aside potential Government by ruling out Peters and NZ First, and saying that even if doing a deal with Peters could put them into Government, they would rather stay in Opposition.
3. Peter Dunne and United Future for being willing to condemn the behaviour of a fellow Minister of the Crown.
4. Russel Norman and the Greens for putting what’s right ahead of what is best for the centre-left. If only Labour could ever do the same.
5. Te Ururoa Flavell for also doing what’s right, despite potential solidarity with Peters personally as Peters is of Ngati Wai descent. It would have been very easy to use this as an excuse to abstain.

Now assuming their recommendations are accepted by the House 63-58, then the question arises as to whether those minor parties could support a Government that includes Peters in it. I mean, if you have just voted to (politely) condemn the man as a cheat and a liar, then how credible would it be to support a Government which has him as a Minister?

So it would be interesting to ask Jeanette or Russel if there are any circumstances now in which they would support a Government that had Peters in it. Likewise for United Future and the Maori Party.

It is obvious that Labour can not be easily shaken from their position that they will keep Peters on, no matter what. But the minor parties can remove that choice from them by maing it an either/or (which is what Peters did to the Greens last election ironically).

Politically it would be better for National if Labour were not forced to rule Peters out. Winston as a Minister will be a good tool to bash them with. And imagine the fun we can have at Meet the Candidates meetings asking Labour candidates to defend Peters.

To quote Idiot/Savant at No Right Turn:

Typically, Winston is unrepentant to the end. And sadly, Labour is backing him all the way. Which is a good reason to be contemptuous of them as well. Some things are more important than politics, and political transparency is one of them. Sadly, Labour seems to have forgotten that. And they deserve everything they get from the public as a result.

But there is a greater good here. Keeping Peters out of power is more important than getting a National-led Government. One just can not have a Minister of the Crown who gives false evidence to the Privileges Committee, let alone one who receives personal $40,000 gifts from people in an indsutry he uses his portfolio to pour money into.

So even though it will remove a stick that one can bash Labour with, it is important for the integrity of our democracry that Labour rules Peters out. And if they won’t do it willingly, then let us hope the honest minor parties will force them to do it.

The Privileges Committee report has just been released and is online here.

I will comment on it shortly once I have read it. It is 280 pages long.

By a majority vote, they have recommended Peters be censured by the House. I can not recall the last time an MP was censured.

The majority includes United Future’s Peter Dunne, the Greens’ Russel Norman and Te Ururoa Flavvel from the Maori Party. This is every party on the Privileges Committee except members of Labour First. Note Peter Dunne is a Minister in the Government and the Greens have a co-operation agreement with Labour and the Maori Party abstain on supply and confidence.

They note on the issue of Henry refusing to disclose who suggested Henry approach Glenn for money:

We have received advice that legal professional privilege relates to communications made for the purpose of conveying legal advice and that it does not relate to the identity of a client, particularly when the issue does not relate to the communication of legal advice.

We note that legal professional privilege should not be used as an excuse to withhold information requested by the Privileges Committee, particularly in circumstances where this privilege does not apply.

They make the point that they have required a high standard of proof for their findings, as the allegations are serious – beyond the normal balance of probabilities.

They have determined that there was no debt from Peters to Henry, so no adverse finding there. But they have found the $100,000 constituted a gift as it benefited Peters:

We consider that the payment was of benefit to Mr Peters. Mr Henry’s work on the election petition did not create a direct legal obligation for Mr Peters to pay Mr Henry’s fees. However, Mr Henry told us that Mr Peters “knows that he owes me in the moral sense…”,18 and most clients would acknowledge such a moral obligation to pay a barrister.

A third-party payment to a member’s barrister benefits the member by discharging the moral (and potential legal) obligation to make payment and also by enabling the barrister to provide more assistance to the member in the future. Further, in these particular circumstances the payment contributed to funding an election petition which, if it had been successful, would have been of political benefit to Mr Peters.

They further note:

It is clear that the intent of the donor in this case was not to benefit the barrister. It was the member’s legal expenses that were being contributed to, not the barrister’s wellbeing. Mr Henry’s actions on receipt of Mr Glenn’s money were also unusual. Mr Henry wrote a “pro forma” invoice for GST and income tax purposes. We do not believe this is the normal response of the recipient of a gift. For a GST invoice to have been written, there must have been a taxable supply of services by Mr Henry. The relevant services were received by the member (or his solicitor, Mr Gates, on his behalf).

Together, these elements show clearly that the payment constituted a gift to Mr Peters.

On the issue of whether Peters knew:

The majority of us believe it is extremely unlikely that Mr Peters and Mr Glenn could have had a conversation on that date without the issue of a donation being raised, even if the original contact with Mr Glenn had been by Mr Henry, as claimed by Mr Peters and Mr Henry. The majority of us consider that the sequence of telephone calls followed immediately by an email containing bank account details indicates that the topic must have arisen during one or both of those conversations. It would have assisted our consideration if Mr Peters or Mr Henry had been able to recall more detail of their telephone conversation. Given the evidence before us, the majority of us concluded that Mr Peters had some knowledge of Mr Glenn’s intention to make a donation.

And their conclusion:

The majority of us find that Mr Peters had some knowledge of the $100,000 donation. Further, we find that Mr Peters, having an understanding of the arrangement by which funds were raised by Mr Henry, needed to make an honest attempt to file a correct return. For both these reasons, the majority of us find that a contempt occurred.

The proposed penalty:

Making a false or misleading return is a serious matter, akin to misleading the House. The majority of us therefore recommend that Mr Peters be censured for knowingly providing false or misleading information on a return of pecuniary interests, and ordered to file, within seven days of the House so ordering, amended returns for the years ended 31 January 2006, 2007, and 2008 covering any gifts, debts, or payments in kind that he has not previously registered. We request that the registrar ensure that the amended returns are published, recording that they are made subject to an order of the House.

This could be interesting, as it means any other donation to Peters legal fees, in excess of $500, has to be disclosed – if the House accepts the recommendation.

Now on the part regarding who paid for the $40,000 to Clarkson. Brian Henry is saying that as the cheque was from Wayne Peters’ trust account, he saw this as a reimbursement by Winston personally. Hilarious.

Now onto the letter from the SFO. The Director makes it very clear he got advise on whether to inform the Committee, and he has also bent over backwards to be fair to the donors who paid the $40,000 by redacting their names. He even asks the Privileges Committee not to order him to supply further information, even though he acknowledges a request from the Privileges Committee over-rides the secrecy provisions of the Serious Fraud Act.

The money laundering around the $40,000 is fascinating. Brian Henry did pay the $40,000 but the day before he sent Thompson WIlson (the law firm where two of the Spencer Trustees then worked)  his bank account details.

The Spencer Trust only has $15,400 being left over donations from Donor A. Then Person B (not Winston Peters we are told) lent the Trust $24,600 so they could pay $40,000 to Brian Henry  on 5 April.

Donor A (almpost certainly the Velas) then donated 4 cheques of $9,999 on the 7th of April 2006. Each cheque was from a different subsidiary company.

This allowed Person B’s loan to be repaid on 7 April.

What this means is that Donor A (almost certainly the Velas) personally donated $40,000 to pay off the $40,000 debt Peters owed Clarkson. He has to now declare this on his amended returns.

This raises massive issues relating to the conduct of his portfolios. The whole idea of disclosure is that the transparency it brings to whether Government decisions are affected by donations or gifts to an MP.

So the Minister for Racing in 2006 had Donor A – almost certainly the Velas, pay a $40,000 debt on his behalf. The Velas are multi-millionaires in the racing industry.  And the Minister of Racing convinces the Government – against Treasury advice – to provide lots of money to the racing industry.

Does Helen Clark not think that this gift should have been disclosed as it strikes at the heart of decision making in her Government? And no it is nothing to do with NZ First – this is a personal gift to the Minister of Racing from persons massively affected by the policies he is responsible for in his portfolio.

Helen actually has three decisions to make. They are:

1. Does she sack Peters as a Minister for breaking the Cabinet Manual and not disclosing a $100,000 gift (let alone the multiple lies Peters has told)
2. Having the $100,000 gift declared, does she allow Peters to keep it? Probably as it was paid to Henry, not Peters – but here is the big problem for her.
3. The $40,000 from the Velas (assuming it is them) has to now be filed on the Register by Peters. Clark has to now decide whether she lets him keep the $40,000.

Here is the Cabinet Manual quote from section 2.79:

Ministers who accept gifts worth more than the prescribed value must not only disclose them to the Registrar of Pecuniary Interests of Members of Parliament, but also must relinquish them, unless they obtain the express permission of the Prime Minister to retain them.

So it is clear Helen has to decide whether Peters keeps the $40,000 gift (payment of a debt) from the Velas.

Now how corrupt will she look, if she says it is okay for her Minister of Racing to take and keep $40,000 from a family/company which has benefited hugely from the decisions of the Minister of Racing. He managed to force through millions of dollars of funding of racing prizes, against the advice of Treasury.

Clark has to make a decision on this. Peters has to relinquish the gift unless she gives her express permission he can keep it.

No wonder Winston wanted the SFO evidence suppressed. It was bad enough that NZ First had benefited by huge donations from the Velas, but to have it revealed that Peters personally was gifted $40,000 from them is hugely damaging.

Now it is possible the donations were not from the Velas but read the SFO letter and it looks highly likely. We should know more when Peters does his amended returns.

And as you consider all this, consider what depths the ethical standards of the Clark Government have descended to. Clark condones a Minister who:

1. breaks the rules of the Register of Pecuniary Interests
2. breaks the rules of the Cabinet Manual
3. fails to disclose a $100,000 gift
4. tells multiple lies about it
5. gives false evidence to the Privileges Committee
6. benefits with $100,000 towards his legal fees from a billionaire whom he then lobbies to be made Consul to Monaco
7. has a $40,000 debt paid off by a company/family that benefits greatly from policy decisions he makes as Minister of Racing
8. has filed false donation returns to the Electoral Commission

Any one of these should be enough for dismissal arguably. But Clark is keeping him on despite all of the above. Could standards possibly get any lower?

As people will have read, NZ First is outraged that the SFO has revealed to the Privileges Committee that the evidence given by Peters and Henry is false. I mean shame on the SFO – how dare they reveal the truth. What sort of law enforcement body do they think they are.

So NZ First have complained to the Police about the SFO. Now this is of course a media stunt -designed to maybe convince the most stupid 5% of the electorate. For the benefit of the other 95%, I’ll link to Dean Knight – a public law specialist at Victoria University.

Dean makes four points:

1. s39 of the Serious Fraud Act does not apply as the information given to the SFO was not protected under some other Act (which is linked to the SFO’s coercive power to require information protected under other legislation)
2. s36 might apply as it refers to a wider set of information but 36(2)(e) allows the Director to disclose to “any person who the Director is satisfied has a proper interest in receiving such information” and Dean says a committee of Parliament fits this definition
3. Regardless the letter to the Privileges Committee is covered by parliamentary privilege under the Bill of Rights 1688
4. Those complaining about the letter may be in contempt of Parliament as Standing Order 400w includes ” assaulting, threatening or disadvantaging a person on account of evidence given by that person to the House or committee”

So Peters and NZ First may be in contempt of Parliament (again) due to their attacks on the SFO for telling the truth to the Privileges Committee. If Parliament wasn’t about to dissolve, it would be worth an MP writing to the Speaker about!

Helen Clark has confirmed, according to NewstalkZB, that she is keeping Peters on as a Minister regardless of the outcome from the Privileges Committee.

The Prime Minister says the whole process of investigation into New Zealand First’s finances has been tainted from the outset.

What is she referring to? Does she mean those Labour MPs who argued against or voted against even asking Owen Glenn to call evidence? If they had got their way it would have been a cover up – just like the original inquiry into Taito Phillip Field that cleared him.

Helen Clark says the privileges committee process has been totally unsatisfactory in terms of any natural justice. She says for that reason she is unlikely to be forced into a decision over Winston Peters this week. She says it has become so politicised with some MPs going into committee with made up minds before they had even heard a single piece of evidence.

Dail Jones arguably yes. I doubt anyone else had a closed mind. Even I have changed my mind on what Peters may have done wrong, as evidence emerged.

But the PM also misses the point here. The issue is not so much the outcome of the Privileges Committee, but the information disclosed by its inquiries. In one sense it does not matter greatly what the Committee recommends (the House decides). What matters is what has been disclosed about the veracity of a Minister in her Government.

The process used by the Privileges Committee has exposed that Peters has lied repeatedly – to the media, to the public and to the Privileges Committee. There is no real reasonable doubt about that. The evidence that Peters knew about the donations is as firm as you can get without an actual tape recording of their conversation.

So Clark is saying she has no problems with Ministers who lie, lie and lie again. So long as their parties vote to keep her in power. This is the standard of Government Helen Clark is happy with. And Clark wants to campaign on “trust” – bring it on.

However, Miss Clark very much doubts there will be anything to justify Mr Peters’ reinstatement. She intends to continue burning the midnight oil doing his old job as Foreign Minister.

It is important for people to realise how misleading those comments are. First of all Peters is still a Minister with all the baubles of office – except actually having to do any work. Secondly he was suspended from his portfolios purely on the basis of the SFO investigation, so Helen suggesting she is being restrained by not reinstating him due to the Privileges Committee is inane.

The big issue is whether Clark will rule out Peters as a Minister after the election. So long as she won’t, then people need to be reminded:

Audrey Young has a very useful blog entry analysing what Winston says now, and what he said before the truth came out.

As readers will know, Winston is outraged because the SFO passed on evidence to the Privleges Committee that proved Peters and Henry lied. In Winston’s world it is outraegous if law enforcement agencies expose his lies.

Audrey notes:

Peters confirmed that the Spencer Trust had reimbursed his lawyer Brian Henry the $40,000 Henry had personally paid for costs awarded against Peters in the Tauranga electoral petition, talking to drive-time host Larry Williams on Friday night:

This is quite crucial because if anyone but Peters paid that $40,000 debt then beyond doubt that had to be declared on the Register of Pecuniary Interests.

”Mr Henry paid the money initially. He was later reimbursed out of the trust account from the Spencer Trust funds. In that sense yes,” Peters said. ”But that was a trust to assist the New Zealand First Party and any actions it might take. What’s wrong with that?”

What is wrong is Winston failed to disclose this. Just as NZ First failed to disclose donations from the Spencer Trust.  This is not a series of one off “mistakes”.

The great service done by the SFO investigation has been to expose the failure of NZ First and Peters personally to disclose funding from the Spencer Trust. And in case anyone really thinks it was all a mistake – consider the fact that these “mistakes” only came to light due to the SFO. Peters did not at any stage move to correct on his own initiative his public statements. He only admits to something once law enforcement agencies pry it out of him.

It means that the information Peters gave in a speech on August 20 to supposedly “clarify” what had been said about the $40,000 at the privileges committee two days earlier was actually not true.

“Mr Henry paid the money [$40,000] to ensure the bill was paid in time – and he was later reimbursed by myself,” Peters told Grey Power in Upper Hutt.

“He checked his records yesterday and found this was indeed the case.”

A clarifying letter was sent to the privileges committee to that effect.

People should be very aware of this point. The lie which has been exposed by the SFO is not about what was said at Privileges Commitee in response to Russel Norman. Most people would accept that you could be mistaken when responding to an unexpected query on the spot.

But what we have here is Peters claiming two days later, in a formal speech, that he had “checked the records” and Peters had reimbursed Henry. And they were so certain of this info, they sent a letter to the Privileges Committee stating this.

Their claim and letter was false. The Prime Minister once again keeps Winston with his baubles of office despite the fact he has been exposed at deliberately deceiving the public and the Privileges Committee. This was no mistake made in the heat of the moment. It was a statement made two days later which they claimed was based on a check of records.

Peters’ admission about the reimbursement also raises questions about whether the $40,000 should have been declared to Parliament in 2007 in the Register of Pecuniary Interests.

There is no question that it should have been.

We now know the Spencer Trust was run by Winstons’ brother, law partner of his brother and a staff member in Winston’s office. And it paid personal bills on behalf of Peters. So Audrey reminds us of this press conference:

Q: Mr Peters are you seriously saying that people are meant to believe that you don’t know what the ST is used for?
A: Yes I do. You know why? Because those are the facts.
Q: We asked your brother yesterday and he wouldn’t answer the question.
A: Well Audrey you should show a bit of knowledge, experience and a bit of commonsense, right? Go and ask him again.
Q: Who should we ask?
A: You’re entitled to ask it all the questions you like.
Q: But you’re not answering them.
A: How can I answer them if I’m not in charge of the trust.
Q: Because you know what that trust is using the money for.
A: Sorry I don’t.
Q: Really?
A: Well I just said no I don’t.

And as you read what are really bare faced lies (unless you think Winston can somehow not know that the Spencer Trust paid a $40,000 debt on his behalf), remember once again that Helen Clark has no problems keeping Peters on.

Audrey also goes back to the original Privileges Committee hearing when Brian Henry lied and insisted he paid for it personally (you would know the difference between paying $40,000 out of your own pocket and temporarily paying $40,000 and getting reimbursed). He obviously did not want to admit the Spencer Trust effectively paid for it, so in response to an incredulous Wayne Mapp:

Mapp: Are you seriously suggesting that you would’ve paid $40,000 in court costs which were against Mr Peters and you advised Mr Peters of that fact, and that Mr Peters would not have understood that that would’ve effectively come out of the $100,000 – well the donations received?

Henry: Mr Mapp, I’m not ‘seriously’ saying it; I am saying it. I’m not suggesting it. I’m telling you exactly what I did…..So don’t slur it – this is what I did. I’d like to finish with Mr Mapp….Mr Mapp I am telling you what I did. So please do not slur it or belittle it by saying ‘Are you seriously suggesting….’ This is actually what I did. You mightn’t like it but that’s what I did.

Such outrage, all faked.

Whale Oil also blogs about further revelations from Spencer Trustee Grant Currie. On radio Currie said that they spent money on behalf of NZ First, after consulting with “someone” who was not a duly elected office holder of NZ First. That someone would be McClay on behalf of Peters I suspect.

You have to wonder if there is a single MP or office holder in NZ First with any spine? The party president didn’t even know of the Spencer Trust. Money meant for NZ First went into the trust, and then spent on behalf of the party bypassing the authority of the NZ First President and Board.

No wonder Peters and Cullen are both highly upset at the SFO.  The Herald speculates that the SFO may have told the Privileges Committee that the Spencer Trust paid the $40,000 court costs that Peters paid Bob Clarkson.

If this is true, it is devastating for Peters and his Labour defenders.

The $40,000 is crucial because there is no doubt it was a debt owed by Winston Peters personally to Bob Clarkson. There is an arguable case about whether money given to Henry is paying off Winston’s debts as Henry claims he never invoices Peters. But there is no doubt over the $40,000.

After Brian Henry testified that he paid the $40,000 to Clarkson, it then became clear that this meant Peters had broken the Register’s rules by not declaring that Henry had paid $40,000 on his behalf. But suddenly two days later Peters and Henry claimed Peters had repaid Henry so there was breach on that issue.

If the Herald is correct, and the Spencer Trust reimbursed Henry for the $40,000, then what does it mean?

1. That Peters broke the rules of the Register by not declaring The Spencer Trust in his annual return.
2. That Peters and Henry both lied when they claimed Peters had paid Brian Henry back
3. That Winston has such control of the Spencer Trust, that he can get it to pay his personal bills

Now in an attempt to divert attention from the evidence, Peters and Cullen are going on about a letter that may have been sent by an anonymous SFO staff member some months ago to Ron Mark, criticising Mark for supporting the SFO being wound up.

It was wrong for that staff member to write such a letter, and they should be given a kick in the behind. However this is not exactly the crime of the century. Thousands of state employees have written letters to MPs on issues affecting their employer – anyone remember thousands of firefighters collecting petitions for a referendum to stop their restructuring? However one does expect a higher level of standards from SFO staff and the Director should kick butt now he knows of the letter.

But for the Attorney-General to refuse to express confidence in the SFO Director, due to the actions of one staff member, is appalling. Make no mistake Cullen is not concerned by the letter – he is aghast the SFO may have told the truth to the Privileges Committee and damaged the Government. Cullen is reacting as an accessory after the fact, not as the Attorney-General.

If the Herald is correct, and the SFO does have information that the Spencer Trust paid (back) the $40,000 debt to Bob Clarkson, it would have been outraegous for them to sit on that information. They are reported as having asked the Auditor-General and the Clerk of the House whether they should inform the Privileges Committee of evidence that contradicts the public version of events by the Foreign Minister. Both agencies presumably said “Of course you should, it would be wrong to allow the Privileges Committee make a decision on false information”.

One key issue in the Privileges Committee inquiry has been the $40,000 payment to Bob Clarkson for costs. This was ordered by court in the name of Winston Peters, so anyone paying it on his behalf most certainly would need to have been declared.

Brian Henry says he personally paid the $40,000 – meaning he should have been listed in Winston’s register.

After media and blog attention focused on this, Brian and Winston claimed a couple of days later that it was all sorted out as Winston had repaid Brian shortly thereafter.

My question is, was this ever submitted formally to the Privileges Committee, and if so was any proof of repayment supplied? Anyone know?

I blogged yesterday on what Winston claims happen. It is fit only as a bedtime story for five year olds, or the Prime Minister.

Today I am going to blog what I think actually happened, and how Winston created this trouble for himself. This is based on the evidence to date, and some guesswork.

He started off only being hypocritical, but in hiding that hypocrisy he eventually told a lie, and then to cover that lie up, he had to tell many many more. Here is my timeline of events:

1. In August 2005 Peters asked for a meeting with Glenn. They met, and then his staffer Roger McClay asked for a donation to NZ First which was declined. It is fascinating that NZ First tried to solicit money from Labour’s largest donor prior to the 2005 election. One can speculate on why they thought this would be productive and whether this indicated they had already decided to back Labour, but that is not germane.
2. In late November 2005 a staffer (probably Roger McClay) approached Glenn again for a donation to the petition. That staffer probably had the discussion with Glenn, that Henry claims he had. They do not want to reveal that it is probably Roger McClay as the thought of Winston not knowing the fundraising details of his own staff is even more unlikely than their other stories.
3. In December 2005 Peters directly solicited a donation for the Tauranga electoral petition, pretty much the way Owen Glenn describes it with a phone call on 5 December, another call after that, and then the 14 December call. All the evidence supports this. The reason Glenn now said yes is because he saw it as helping Labour, and he checked with Mike Williams who said it would not be unhelpful.
4. Peters obviously took the call from Glenn, and then told Henry to send the bank account details.
5. The request to Glenn to keep the donation confidential was important. The NZ First brand was built on anti big business donations, and accepting $100,000 for legal expenses would weaken their brand.
6. If Glenn had said yes to the original request to donate to NZ First, then that would have been paid to the Spencer Trust I am sure. It was vital that the public never know of the funding from big business. Peters and Henry had constructed things very carefully so they could avoid disclosure (arguably) legally. At this stage nothing has been done wrong, save the hypocrisy and maybe the failure to disclose on the Register of Interests (the way they structured it gives them an arguable case though).
7. Then on 15 February 2008, Owen Glenn revealed he had donated to another political party (which is how he saw it). That got some minor interest in the media as to which other party.
8. Even worse on 19 February 2008 he revealed he was in line to become Honorary Consul to Monaco, that Helen had already approved it, and he was just waiting for Winston to “get off his arse and do the paperwork”.
9. At this point Peters would have realised it would be a bad look if the public realised Glenn had donated $100,000 to benefit Peters, and he was under consideration for Consul. Plus it undermines their no big donor brand. So he would be worried. But as long as Glenn kept the confidence it was al okay. Only Peters and Henry (and maybe McClay) knew of the donation. The media could guess but could not prove.
10. But then disaster struck in the form of Dail Jones on 20 February 2008. He revealed to the media that there had been a large mystery donation to NZ First in December 2007 and that it was closer to $100,000 than $10,000. Owen Glenn also refused to rule out donating to NZ First, saying through his PR firm that people should speak to the party. This created huge media interest.
11. Now people (including me) started adding 2+2 together to get 5, and thought the December 2007 donation was from Owen Glenn. Peters furiously denied it. Peters was right ironically.
12. Peters was furious as the allegation was wrong. There were two secret donations – not one. And Dail Jones had accidentally come close to exposing both of them. The allegation that the Nov 2007 donation was from Owen Glenn was wrong, but to prove it wrong would have meant revealing the Spencer Trust. No wonder he was furious at Jones (to be fair to Jones he just told the truth and if you run a secret trust without your Party President in the loop, you run the risk he may blunder into it)
13. Now again at this stage no lies had been told. It was all hypocritical but Peters denials had been correct.
14. The next day Helen talks to Owen Glenn and he informs her of the donation. She rings Peters and he denies it to her. Now probably in Peters’ mind he did not lie, only deceive. He would have been careful to use language which ruled out a donation to the party or to him, but not to his legal fees.
15. The fact he doesn’t contact Glenn to ask what this is about, is incidentially proof he obviously knew. If he did not know, he would have asked. Now again at this stage no major lie, just some deception.
16. On 24 February he does another half lie denying there was any mystery donation at all. In fact there was – from the Spencer Trust. Peters probably justifies this because the Spencer Trust is not a mystery to him, and he knows the $80,000 was made up of individual Vela cheques of $10,000 into the trust, so in his mind there was no big anonymous donation.
17. On 28 February 2008 we have the infamous “No” press conference. In hindsight this was a fatal mistake. By going so over the top, he cut off his wriggle room for later. He thought he was on safe ground denying Owen Glenn donated to NZ First, but he also said No to Guyon Espiner saying “Can I just clarify with you. Are you saying you have never received one dollar from Owen Glenn or any associate of Owen Glenn” and that was right on the edge of being a lie. The trouble with having a big No prop, is you can’t suddenly stop using it, so he waved the No sign again. A big mistake.
18. Now at this stage Peters has not told a fully formed lie – many half lies, but he looks to have got away with his denials as no one asked exactly the right question. Again it is because Peters knew exactly what the donation was about, that he could so carefully deny it.
19. Then in July 2008 someone leaked to Audrey Young the e-mails between Owen Glenn and Steve Fisher where Glenn says “Steve – are you saying I should deny giving a donation to NZ First?? When I did?”. She published these on 12 July 2008.
20. Peters responds that Glenn did not donate to NZ First. This is technically true. Glenn referred to NZ First when he should have said Winston’s legal bills. Winston is a great nit picker and puts huge reliance on the difference. At this stage again no outright lie from Peters.
21. But he again becomes his own worst enemy when on 14 July he attacks the NZ Herald can calls on Tim Murphy and Audrey Young to resign. He offers them a look at the party books. He does this because he knew the donation went into Brian Henry’s account. But he is most unfair in attacking the Herald. He knows that email is from Owen Glenn, and they reported it in good faith. It is not the Herald’s fault that Glenn used loose language around his donation. His attack is over the top and Peters at his worst. It is one thing to deny the accuracy of the e-mail by playing semantic games, but it is another thing to try and take the moral high ground as Peters did.
22. On the 16th of July he again reassures Clark again there has been no donation to NZ First. Still not lying (but certainly deceiving) as the donation was to his legal fees.
23. Around this time Peters and Henry would be terrified that Glenn will eventually speak to a journalist and reveal details of his donation.  The Herald also prints a further leaked letter from Glenn to Peters and they must wonder what else is still to emerge. I have little doubt phone records will show them in constant communication that week. So they decide to pre-empt it by announcing it on 18 July 2008.
24. That day Peters’ mother dies. I do not think so badly of them that they choose to announce it that day because of her death. I think they had already decided on that day (Peters had been overseas and they wanted to do it when he was back in NZ) and decided to carry on, even after she died. That’s still pretty low though. With the NZF conference starting the next day they needed to get it out of the way.
25. Peters and Henry had a big big choice ahead of them. Do they reveal that Peters knew of the donation? They could argue that he had never denied a donation to his legal fees. Technically he had never lied until then – only deceived. But Peters would know that having waved that no sign around at the press conference and called on the Herald staff to resign and apologise, he would get somewhat crucified if he revealed he was playing at semantics and he did know of a donation – but it was to his legal fees, not him or his party (as he saw it). Ironically in hindsight that would have been the path of less pain.
26. So they made a fatal mistake. They told a bare faced lie. They both did. On 18 July 2008 they announced that Brian Henry only informed him of this at 5 pm that day. Peters explictly said that up until then he had been “unaware of the source of any of the donations for legal expenses”. That was the start of the end. Up until then they were only half lies, or deceptions (in politics there is a difference).
27. They had to ten resort to further lies, to back up the big lie. How did Henry get in touch with Owen Glenn?  On 20 July they claimed a tip off from someone whose name Henry could not recall, but was not Peters or Mike Williams. Another deception which turned into a lie. They probably mean McClay, and he probably was involved at first but as the e-mails and phone calls prove Peters was in the loop the whole time. It was not a case of McClay or Peters knowing – they both did.
28. Incidentially on 21 July the Vela donations came to light, but that is a story for another day.
29. Peters lied again on 25 July when he said in a written statement “The Glenn contribution went to my barrister Brian Henry. As soon as I learned of it I informed the Prime Minister and alerted the media.” Once you tell one lie, you have to keep lying.
30. Peters and Henry both lied again to the Privileges Committee on 19 August 2008, saying again he never knew of the donation. Note neither of them gave testimony under oath, so they can not be done for perjury.
31. Henry also claimed on 19 August “I phoned Owen Glenn and he forwarded $100,000 which was paid to me on account of my fees”. This has been proven false. Glenn phoned Peters.
32. Owen Glenn’s letter was published on 26 August 2008, along with one from Peters’ respomding to it. Peters again lies repeating that he had no knowledge of any donation.
33. On 28 August Helen Clark reveals she knew back in February 2008 of the donation, from Owen Glenn.
34. On 4 September another Glenn letter is published. He details the phone call and e-mail. Peter Williams tables a statement claiming Brian Henry spoke to Owen Glenn on two occassions.
35. On 9 September Glenn testifies and provides proof of the phone call from him to Peters and the e-mail seven minutes later from Brian Henry.
36. On 10 September, Peters testifies again. Peters admits to conversation with Glenn but denies money discussed.
37. On 16 September Henry testified again. He admits that the client in the e-mail was Peters but still insists somehow Peters never knew of the donation. Phone records also prove Peters called Henry straight after the Glenn phone call.

I am pretty confident that this is close to what happened. It explains everything. Peters at first did not lie but he then realised he had gone too far in playing semantic games with the media to reveal he knew of a donation to his lawyer. So on 18 July he told a lie. And that one lie on 18 July led to dozens and dozens more lies as they tried to concoct a story about how Glenn could have donated without Peters knowing. I suspect they also exchanged conversations with McClay for conversations with Henry.

The moral of the story is the same as for Richard Nixon – it is the cover-up that gets you in the end!