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Peters leak: Stand by for a surprise

Newsroom logo Newsroom 9/10/2019 Tim Murphy
Winston Peters, Emmanuel Macron standing in the rain holding an umbrella © Provided by Newsroom NZ Ltd

Winston Peters is once again on the hunt for a leaker of personal information about him and his party. And next month a case fraught with political risks that he started before the 2017 election hits the High Court.

Here we go again. The New Zealand First leader Winston Peters complaining about his privacy being injured by someone who is not happy with the way the party-of-the-seven-percent is run.

That someone, or a group of somebodies from within the NZ First party, has leaked documents to news organisations over the past week showing various states of in-fighting and criticism of Peters' political vehicle. No single leak has been devastating. Some have been pretty pedestrian political gripes from members who have not prevailed in internal contests or debates. 

But the cumulative drip-feed, and in particular the leak of the number, names and contact details of NZ First's Auckland membership, has prompted Peters to call on the police and Privacy Commissioner to investigate the "malicious" acts.

On past form, the next stop for Peters is possibly to sue. Suing your own party or party members is a new one, but unconventionality has never held Peters, aged 74, back.

Interestingly, his previous 'privacy' lawsuit over the leaking during the 2017 election campaign of his seven-year overpayment of National Superannuation, led to some of the current leaked complaints.

That's because Peters' lawyers quietly filed High Court action against National Party ministers, public servants and two news organisations (including Newsroom) the day before the country voted. 

With that legal action live against National, he then proceeded, post-election, to appear publicly to negotiate in good faith with both National and Labour, before coming down on the side of Labour. As it happens, this did not put him in a good light with some NZ First members who truly thought the party would consider both options - and the current wave of leaks includes commentary from members angered by Peters' suing National and simultaneously acting as if he might join that party in a government.

As he sends these latest leaks off to the police and Privacy Commissioner, Peters and his legal team will be preparing for the November 4 (eve of Guy Fawkes Day) showdown with National ministers Paula Bennett and Anne Tolley, the Ministry of Social Development chief executive and the State Services Commissioner. The case is set down for a three-week hearing.

The first political risk for Peters and possibly his coalition partner, Labour, is that the taxpayer will be paying for the legal costs of the targeted former National ministers and bureaucrats under a cabinet decision recommended by Attorney-General David Parker. The ministers are represented by Bruce Gray, QC, and National Party legal adviser Peter Kiely, and Crown Law has engaged Victoria Casey, QC, for the government agencies.

The case has moved from an initial drift-net demand for information (to establish a breach of the tort of privacy) to now being centred on the issue of the 'No Surprises' policy practised by successive governments this century, including the Labour-led government of which Peters was a minister between 2005 and 2008. He stood down from that ministry amid a scandal over a payment to his party.

Essentially, Peters is challenging the officials' use of that policy in notifying the the State Services Commissioner, its minister, Bennett, and Tolley as social development minister that his superannuation had been overpaid and he had had to put around $18,000 back into the public purse. The matter had come to light after Peters' partner, Jan Trotman, applied for her own national superannuation upon turning 65.

'No surprises' is used to ensure the public sector notifies responsible ministers of possible political risk or embarrassment. In Peters' case, officials were aware of the sensitivity of the matter and sought legal guidance before proceeding to brief the two ministers about what had occurred.

Peters alleges they could not have been unaware that one of the National Party ministers could leak such politically embarrassing information in an election year and they ought not to have shared his private information beyond the Ministry of Social Development. "The disclosure of [Peters'] private MSD information ... was unlawful and it was foreseeable that such disclosure would cause the plaintiff damage."

State Services Commissioner Peter Hughes said in August 2017: "The 'no surprises convention' is set out in the Cabinet Manual and requires departments to inform ministers promptly of matters of significance within their portfolio responsibilities, particularly where matters may be controversial or may become the subject of public debate.

"The chief executive of MSD discussed this issue with me. [He] and I sought advice from the Solicitor-General on the appropriate way to ensure decisions were made independently and the requirement to ensure ministers were not surprised was met."

Hughes said no briefings were given to ministers until all decisions on Peters' case had been made and "when these briefings were given they contained very limited details".

Peters' arguments about the rights and wrongs of 'no surprises' raise the tantalising opportunity for courtroom questions of the current Deputy Prime Minister about his past and present use of the policy with officials in the ministries and agencies for which he has responsibility. 

And there could be questions about the current Government's practices: What it desires to know, and when, from its officials.

Further, Peters' own public outing of himself as having received the overpayments could be examined to determine who, if anyone, breached privacy.

The public could yet learn more through this court hearing as to how Peters, a former Treasurer and student of national superannuation policy, could have missed the overpayment for so long. 

The election saw New Zealand First exceed the MMP party vote threshold of 5 percent and win representation in Parliament, but Peters lost the third of the three parliamentary electorates that he has held, when he was beaten in Northland. His original statement of claim in the upcoming case alleged the sharing of his super details with ministers had risked "reducing the public vote received by the plaintiff as an electorate candidate standing for the Northland electorate in the general election".

* The Peters' camp leaked to Newstalk ZB political editor Barry Soper news of the original filing of court action over the super leak and in August this year leaked a claim that during lawyer to lawyer discussions the issue of settling the case had been raised by National's side. Any agreement from Peters' side was said to hinge on Bennett being removed from her role as Deputy Leader. That did not happen. No settlement was advanced or agreed and the case remains set to be heard in just under a month.

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