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Realistically, how long should it take the Serious Fraud Office to establish whether a prima facie case of fraud really does exist against Winston Peters – or not ? In the run-up to the PM’s press conference yesterday, the SFO seemed to have been asking for as much time as it deems that it should take. Reportedly, the SFO was saying that its inquiry ( into how the donations made by the Vela family and by Sir Robert Jones to NZ First were spent ) was ‘substantial’ and ‘could take a while.’
This seems surprising, and unacceptable. This inquiry into a major political figure is occurring about 10-12 weeks (at most ) before the election. The probe was launched one week before a Bill to dis-establish the SFO was to be introduced into Parliament – and which has now had to be shelved, since it would have been inappropriate for New Zealand to vote to scrap an agency that has just begun to investigate it.
Hardly surprising then, that suspicions might exist about the SFO’s reasons for launching the probe, and for delaying its outcome. To re-assure the public and to negate any suspicion that it is playing politics, surely the SFO’s are able to establish from ledgers, from cheque butts and from bank statements whether a prime facie case exists and the rationale behind it? Is there initial evidence to confirm that the moneys involved did not go into the NZF bank account, and/or were diverted to purposes unrelated to NZF business ? Yes or no?
If there isn’t actionable evidence of wrong- doing, the SFO needs to say so loudly and promptly. Otherwise, it could easily look as though the SFO is engaged in a fishing expedition against its old Winebox nemesis, and is unconcerned if its inquiry should drag on and taint the outcome of the next election. The country can’t afford to be left in the dark about when the SFO intends to show us what level of damning evidence, if any, it has uncovered.
Down at the PM’s press conference, events kicked off on a closely related topic. Namely, whether the SFO had tipped off the National Party about its intentions to investigate Peters sometime before Key held his famous Wednesday press conference – where he declared his [at the time, conditional] intention of not working with Peters, post election. “I have no doubt whatsoever,” Clark said, “ that word seeped out that the Serious Fraud Office was about to make a move. Whether it seeped out from there or from others that were in the loop [ie, from the Police or Crown Law Office] remains to be seen.”
No, she didn’t have evidence that it was the SFO, but she had ‘reason to believe’ a leak had occurred. An investigation into the leak would be pointless, she said. “I’m simply saying that the timing wasn’t coincidental. And I think that’s important, because there’s some who are inclined to look at the [Key] move last week at the time, and say `how brilliant’. Not so brilliant if you had some sort of tip.”
No, she said without much conviction, she didn’t think that this episode dented the credibility of the SFO investigation into Peters. They’d said it wasn’t them – they hadn’t been leaking to the opposition – and she had no option, she said, but to take the SFO at their word. “That’s fundamental to the administration of law and order and justice in New Zealand.” She had only learned of the SFO investigation from the Attorney-General, she said, on the Wednesday, after Key had held his press conference.
At this stage, we have only Clark’s word that any such leak occurred. Key, for his part, is saying that the catalyst for his press conference was the Glenn letter revelations that surfaced on the Wednesday morning
Clark was on far more solid ground with her concerns about the ongoing investigation into Peters by the privileges committee, which meets again on Thursday. “I’ve never seen in 27 years here, a privileges committee hearing conducted like this. Where you have an opposition member in the chair, whose leader is out in public obviously having drawn conclusions about what the outcome will be, and is acting on those conclusions. It is an unprecedented occurrence.”
Would she be willing to appear before the privileges committee herself? “We’ll cross that bridge when we come to it,” Clark replied. “ It remains to be seen whether there is anything material that I could add. I think we have to focus on what the hearing is actually about. The hearing is about whether the donation which clearly occurred – it is generally agreed – into a lawyer’s funds, whether that was a gift. I can’t shed any light on that. “
Ah, the gift and its status. The Jesuitical subtleties of the Peters affair probably require – at this stage – some background for any late beginners. For starters…how can and should you distinguish a donation to a party from a donation to its leader, and how would you separate both from any donations that have been made to a barrister who has, at times, worked for both? Under what conditions do such donations qualify as gifts made to the leader, and when, if ever, does the gift become his responsibility to declare ?
And for the big prize…at what existential moment does a party donation morph into a personal gift, if you have happened to merely signal (and was it via a passive sign of appreciation, or via an active, soliciting request?) that yes, some money would be nice thanks, and very helpful. Later on, it transpires, the purpose of the donation has apparently been met – lets’ say that it was to help finance an electoral petition in Tauranga – but you don’t know if, when and how that transaction actually occurred. Does that sequence constitute a gift – and if so, when and to what entity should it be ascribed?
Sound easy so far? Lets make it more complicated. Lets say the money is sought, received and acknowledged by a barrister with whom you – in line with the practice of other parties as well – operate under condition of anonymity as to the source of the money flows. And lets also assume that this barrister in turn operates via an instructing solicitor, at further arms’ length from you. Are you to be judged as the recipient of any gift that the barrister seeks, receives and administers, or is he? And if it is you, when did your personal responsibility for any one cheque in the overall money flow begin, and where does it end ? Discuss this among yourselves – and if, for your sins, you happen to be sitting on the privileges committee, please construct some workable and non-partisan rules about all of the above.
The PM’s press conference sought further details on the Glenn donation, and on Clark’s prior knowledge of the apparent contradictions in the versions of what had transpired. On February 21 this year, Clark had a conversation with Owen Glenn about donations. Did Glenn tell Clark that Peters had actually solicited the money – or that Glenn had simply offered the money? “Well, my recollection that I have, and that Mr Mallard has, is that Mr Peters met with him [Glenn] in Sydney. And we were left with the impression that money had been discussed and that sometime later, Mr Glenn was advised where to pay it.”
By Peters? No, not quite. “We weren’t left with the impression that Mr Peters had given information as to where to pay it. But we were left with the impression [from Glenn] that Mr Peters had asked for it. Now obviously, I’ve put that through directly to Mr Peters – had he asked, and had he received ? Had his party received, had he received? And he was categorical in denying it.”
Its very easy, Clark says, to be wise in hindsight. “ As in, why didn’t you come out of these two private conversations and make an announcement? “ She sighs. “ Why would you? “ Her attitude had been that it had been basically, a matter for Glenn and Peters to resolve. She is not responsible, she repeats for New Zealand First. She sought, and received, an assurance from her Minister.
Obviously, conflicts now exist in the versions given by Glenn, and by Peters. In the Herald on the weekend, journalist Deborah Coddington cited prior examples of where Glenn’s recall has been found wanting – namely, over his claim that Clark was to make him Transport Minister, and on another issue with regard to the Exclusive Brethren. On Monday morning, Clark repeated those two examples. Was that designed to undermine Glenn’s credibility and bolster Peters’ case ?
Not at all. “ I was simply quoting Coddington’s article in Sunday’s Herald, which had reminded me of two instances where his recollection had been less than accurate… in the fullness of time, the two accounts are not necessarily entirely inconsistent. The money did not go directly to Mr Peters. Or to New Zealand First.”
If the status of a gift is central to Peters’ obligations to declare it on the pecuniary interests register, isn’t it crucial to establish whether Peters solicited the money or not ? “That is certainly a contradiction,” Clark said. “ And as I said to you all last Thursday…. Mr Peters and his lawyer [Brian Henry] are adamant that Mr Henry made that call.” Similarly, she said, Peters and Henry had insisted to her last Friday that they could prove that any money paid into the Spencer Trust had gone on to New Zealand First.
The parliamentary investigation of such claims – and the counter claims – has now been prejudged by Key. “I am concerned about the privileges committee. Because, as I say, for a major party leader to go out and accept the word of one person over another in the middle of a process, seems to me to be fairly extraordinary.”
Unfortunately, the conflicts in the evidence put before the committee are likely to be reflected in its ultimate findings. Chances are, the privileges committee may split along party lines, and issue multiple reports. Both the SFO and the privileges committee have an interest in delay, if the evidence they can muster against Peters does not vindicate the massive buildup. As mentioned at the outset, these inquiries need to be carried out quickly and transparently – and the existence ( or otherwise) of a prima facie case made public by the SFO. It should not be a stretch for it to do so by the end of this week.
Hidden at the end of the press conference was another gem. Before the election, Parliament will be asked to pass an Emissions Trading Scheme Bill – but without any costings included of some compensation measures being given to households to help meet the higher energy bills that the ETS will bring in its wake.
When challenged on this point, Clark replied that the electricity sector doesn’t come into the ETS until 2010. “So the size of the one-off universal rebate and the targeted rebate is something to be determined I would say, in the course of the next Budget round.”
Incredible. So if these amounts are to be left blank in the legislation, the ETS will be passed without any firm idea of how much it will cost ? “ Oh, I think you will find there’s a reasonable idea of what it will cost….” Clark refused to be drawn further down the track of saying how much home-owners can expect to receive. “ You should go and do a detailed interview with [ Climate Change Minister] David Parker, someone who’s specialized..” A clear understanding exists, she suggests, among the parties that Labour has negotiated with, as to the amounts involved.
So the Greens have an idea of the level of compensation that households are likely to receive to protect them from the economic impact of the ETS. So do NZ First. However, these amounts won’t finally be sorted out until next year’s Budget – and then, and only then, will the public be told. It hasn’t been a very good week for due process and transparency – by the government, by the opposition or so far, by the Serious Fraud Office.