Campbell: A Privileged Look At Peters' Proceedings

Tuesday, 19 August 2008, 10:39 am
Article: Kevin List

On the night, it seemed like game, set and match to Winston Peters in his initial skirmish with Parliament’s privileges committee. If this was heat being applied in the political kitchen, Peters barely raised a sweat. Ostensibly, this committee of eleven senior MPs from right across the political spectrum had been called together to consider a complaint from ACT leader Rodney Hide that Peters was in contempt of Parliament. Specifically, for not disclosing on Parliament’s Pecuniary Interests Register a $100,000 payment from the expatriate billionaire Owen Glenn.

So much for the serious intention. What happened instead was that everyone involved – from the media to the MPs around the committee table - became bit players in the familiar saga of Winston the peoples’ champion, a man cruelly and eternally beset by fools and knaves, over mere trifles.

By videolink Peters’ lawyer Brian Henry laid a sturdy – if fairly incredible – defence, aimed squarely at the terms of the Hide complaint. Firstly, if the Glenn money paid into Henry’s account on December 22, 2005 was to be regarded as a gift…. well then, Peters didn’t know about it until July 18 this year, so could hardly have disclosed it beforehand. Not unless he was a soothsayer or a clairvoyant, Peters told the committee, while modestly claiming to be neither. Not this time, anyway.

Reason being that since 1991, Henry has managed a pool of funds on Peters behalf, into which people could make donations to help – with Peters legal defence - but where the identity of donors would be kept from Peters, for his own protection from the kind of charges of possible influence now being leveled at him.

Secondly, the other way the Glenn money could be a relevant pecuniary item (ie, something that needed to go on the register) would be if it was a debt. But guess what ? Peters claimed to owe no such obligation with respect to the $100,000 payment from Glenn, or for any outstanding fees owed to Henry for his legal services - or even with respect to the $40,000 in costs awarded to National candidate Bob Clarkson after a electoral petition had been launched under Peters’ name in a failed effort to overturn the election result in Tauranga.

How could this possibly be ? Because Henry had paid for it, and hadn’t billed Peters yet. Later, Peters added another possible wrinkle to this story. Perhaps, perhaps, he couldn’t recall precisely but….he may have paid most, or even all of that $40,000 himself. Hard to tell, really. So much money over the years had been paid in and out of his legal fund…by himself, by family members, by other contributors…and for so many purposes, with respect to so many defamation suits. Why, five such defamation suits were still actively in play !

As Peters suggested, there was scope for confusion. It was just so hard to know the precise fate of any particular payment – but, as he suggested at one point, the system seemed to have been working. The key point being, there was no debt with respect to the Tauranga electoral petition and so …there was no pecuniary interest for him to declare concerning it. Any questions?

Truly, this was a defence worthy of Geoff Boycott in his prime – it was infuriating, hardly in the spirit of the game, and of doubtful value to the rest of his team…but it did prove highly effective against the limited bowling attack wheeled up by the centre right MPs on the committee.

The combined might of Gerry Brownlee, Wayne Mapp and Murray McCully for National, and Heather Roy for the Act Party could make no inroads on the Peters/Henry opening partrnership.

Once the pattern of the evening become clear, the Labour members of the committee ( Lianne Dalziel, Russell Fairbrother Paul Swain and Michael Cullen ) limited themselves to helpful paraphrases and amused clarifications of Peters’ line of argument. Down at the sensible centre, United Future’s Peter Dunne and the Greens’ Russel Norman did their utmost to probe the nature and to test the credibility of this remarkably fluid money go round in and out of Peters’ legal fighting fund – but this was never going to be a big night for comprehensive plausibility.

Tonight was about ensuring the privileges committee could not mount a case - on anything other than a partisan political basis - that Parliament’s rules had been broken.

Trial by committee The evening certainly hadn’t started out that way. At times, Peters has seemed to have been on the ropes during recent weeks. The Glenn and Jones donations were clearly of sufficient size to require inclusion on Peters’ declaration of pecuniary interests – the limit is $500 in cash or kind - and were also being seen constituting gifts ( under the Cabinet Manual provisions) that could be retained only with the Prime Minister’s express consent. What could Peters’ parliamentary peers do with this kind of material ? Not very much, as it turned out.

By 7pm, some 30 members of the media had gathered to report on the night’s events. In dribs and drabs, the major players made their way in, with most having made an effort to look soberly concerned and substantial. Gerry Brownlee for instance, had donned an identity-affirming blue tie, Murray McCully had plumped for serious pinstripes, and toted a briefcase that could and should have been loaded with chapter and verse of Peters’ sins, past and present. Even Greens co-leader Russel Norman appeared in a no-nonsense, gravitas enhancing grey suit. It was 'business time', as the Conchords would say.

To the public, ‘privileges’ may seem like an odd name for Parliament’s self policing and prosecuting committee. In these cynical times though, the word ‘ privilege’ suggests perks and baubles, not the tools for keeping Parliament honest. In reality, what the term most accurately reflects is the rights and immunities that we give – as a privilege – to Parliament in return for it exercising proper self regulation about how it operates. While in the House, parliamentarians enjoy for instance an absolute right to freedom of speech – but only on the understanding they will not abuse that privilege, by defaming the innocent.

That, at least, is the noble quid pro quo by which parliamentary privilege and its stellar committee are supposed to operate. Yet even a fan of the House - and in his hey-day Geoffrey Palmer was the biggest one on the block – wrote very pessimistically in his book Unbridled Power about the notion of privilege : “ Privilege is another of the devices used by the political parties to score points off one another,” Palmer claimed. “ In the final analysis, a breach of privilege is what the majority says it is…The law to be applied is vague in the extreme. Adjudication for breach of privilege is really in the nature of a political trial, for which the penalties are not defined by law, but at the whim of politicians.”

Tonight, even more so. With Winston Peters under scrutiny, it proved to be a case of the opaque answering to the ephemeral. Despite all of the committee’s quasi-judicial trappings, this was more like a night at the theatre, played out in three distinct acts. Act one involved the privileges committee being given a brief dissertation by Stephen Kos QC about who owes the debt to whom in the normal relationship between a client, a barrister, and the instructing solicitor. Answer : its complicated, as Denise Richards would say. Safe to say, the debt obligation was not an automatic one.

By video-link, Brian Henry then traced the payment trail from Owen Glenn and the purposes for which that payment had been solicited. Because of client privilege, Henry could not possibly divulge who had first suggested to him that he should contact Glenn, as one possible donor amongst others. Nor could Henry be any more definitive on the vexed question of whether Glenn thought he had been contributing to NZ First, or to its leaders’ legal fund. “ I can’t speculate on what Mr Glenn took from that conversation, but I did not believe I in any way indicated [anything] other than payment of the Tauranga electoral petition fees.”

Superficially, this point troubled the committee throughout the evening – since Glenn is on record as saying he had made his donation to NZ First, not to its leader. Up to Glenn as to what he thinks, Henry indicated. But arguably, there was room for confusion…”He may have elided the fact he was paying for the Tauranga electoral petition with the political party whose leader ran it.” Especially easy to do, some might charitably think, in a party that is such a one-man band as New Zealand First. Presumably NZF and its leader will be running a similar argument with respect to the $25,000 donation by Sir Robert Jones, if ever that comes before the privileges committee. Tonight, it didn’t even rear its head.

Before Henry got down to details, he gave a long and colourful history of his relationship with Peters – dating back to their work together on the Wairarapa electoral petition on behalf of National MP Wyatt Creech in 1987, and onwards to an even closer working relationship that began in 1991. To Henry, the relationship was like that of “ blood brothers” – and he re-affirmed his commitment to Peters as someone that he saw as being a guardian of democracy, someone who Henry felt he should not allow to be silenced by the big corporate moguls and their high powered legal guns. Some had tried to do so during the Winebox saga. And at the time of NZ First’s founding in 1993, Henry reminded us, an attempt had even been made to kidnap his son - David Henry - from Kings School in Auckland.

Clearly, such a close working relationship – its rationale and achievements were celebrated by Henry over the course of a 17 point resume – was supposed to send multiple signals to the committee. Henry’s testimony had recast Peters in his traditional role as an heroic outsider, long used to facing attacks from those with a vested interest in silencing him. More to the point, it re-inforced the point that Henry and Peters enjoy no ordinary lawyer/client relationship, but one with the scope for the unorthodox system of payment and compensation now under scrutiny by the committee.

According to Henry, he had paid out of his own pocket the $40,000 legal costs owed to Clarkson by Peters. But because no bill had been sent to Peters – either directly, or via the instructing solicitor – no debt had been incurred, or thus needed to be registered. “The position is that I have not rendered a fee note to the solicitor for the work done,” Henry concluded, “and that solicitor has not rendered a bill to Winston. Until my instructing solicitor renders a bill to Winston, there is no debt owed by Winston.” QED.

Through all this, Peters had been sitting in the first row of the public gallery looking faintly amused by proceedings, and by the various attempts to pin down Henry on the plausibility of the arrangements he was describing. Seated at the other end of the same row ( for the initial stages of the testimony at least) was Peters’ nemesis, Rodney Hide. By night’s end, Hide had retired disgruntled to the back of the room, from which he fired a last bewailing interjection about Peters’ eventual fate in Tauranga – “You were voted out !”

Peters own testimony began with a letter he’d written to Speaker Margaret Wilson. It dovetailed neatly with Henry’s account… in that ir also argued that no debt had been incurred, so no declaration needed to be made. But where Henry had stressed the very substantial amounts of work he had done for free for Peters ( and for NZF in its initial stages ) Peters pointed out the reverse side of the coin. Namely, that he had put ‘hundreds of thousands of dollars ‘ of his own money into paying Henry, and paying for various actions – including perhaps, the $40,000 legal bill owed to Clarkson.

By this stage, Messrs Brownlee, Mapp and McCully were starting to sound rattled, and querulous. Would Mr Peters regard “debt” to mean moneys owed, Brownlee surmised, or something more in the order of a moral obligation – and which sense would best apply, in Peters’ view, to the $40,000 owed to Mr Clarkson? At which stage, Cullen jumped in to point out that the register in question was one of pecuniary interests, and that if it was now to become a register of moral obligations, it would be a very long one indeed. By now, the Labour contingent were all but chortling.

The Act Party’s Heather Roy pressed on, quoting from media reports of emails allegedly sent between Glenn and p.r. consultant Steve Fisher. By doing so, she fell straight into a vintage Peters trap, formerly used by him against broadcaster Kim Hill on a different occasion, but with equal success. Namely, suddenly ask one’s interrogator for the original script.

Could Roy tell him the date of this email, and could she show him the email in question ? No, she couldn’t. She was relying on media reports about it. So, why should he, Peters, respond to this sort of thing ? “ You’ve got to have evidence, not hearsay. Tell me, what’s the date of that email ? No one’s ever seen it…” Peters had tried to get hold of it himself, but to no avail. “Perhaps I’m entitled now, to hear that evidence,” he told the committee.

Pure theatre, on Peters’ part. But it did also underline how little the National and Act members of the committee had brought to the proceedings, by way of new arguments and fresh documentation. As a result, the bloc of MPs on the committee intent on holding Peters to account were reduced to recycling statements made previously in the media – and which Peters and Henry had little trouble in batting away. After two and half hours, the public and media were asked by the committee chair Simon Power to leave the room, as the committee re-circled its wagons in closed session, to contemplate its next move.

Outside, Hide was still talking tough. Game set and match to Peters so far ? Not really, Hide replied, not while there was still the issue of the donation made by Sir Robert Jones - “ Who thought he was donating to the party.”

Yes, but mightn’t Jones’ belief that he was donating to the party be treated in exactly the same way as Glenn’s belief that he too, was donating to the party – whereas the other side was saying no, these definitions are elastic, and the distinction between New Zealand First and its party leader acting in various capacities, were routinely blurred, and understandably so.

“Well, what I think we are discovering, “ Hide replied, “ is enormous elasticity on the part of New Zealand First. I’m also amazed at how hundreds of thousands of dollars can be run up and run down between two people - a lawyer and a barrister, and a senior politician - and with no records kept. I think its fair to say I tend to be a bit more careful with money than that.”

Maybe. But different strokes for different folks. Peters has won the first battle …and the committee now must decide where it wants to pursue the war any further. Obviously, its options could include asking Glenn, and the likes of Sir Robert Jones to testify before the committee. Conversely, it could simply conclude that the narrow prongs of the Hide complaint do not give Peters much of a case to answer, and could fold its tent accordingly.

It would probably take a thorough document search of the files of Henry, Peters and NZ First to make a case, and that kind of fishing expedition would not be justified by the arguments made before the privileges committee. In time, the five defamation actions that Peters is currently engaged in may turn up a bit more in the way of relevant information. Issues related to the Jones, Vela and other payments could yet come back to haunt Peters. But judging by this first showing, Peters has little to fear. If only because the privileges committee is tending to split, as Palmer said it was wont to do, along strictly partisan lines.

ENDS

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