Dr Bryce Edwards
No one should have been surprised by Winston Peters taking action this week over what he calls “filthy politics.” After all, he signalled before the election that he was determined to use the law to get justice. And although most of the media reaction has been negative, it really is understandable that he is still seeking answers.
The new deputy prime minister is taking the action against nine individuals, including former National prime minister Bill English, the head of the Ministry of Social Development, and Newshub political reporter Lloyd Burr. It’s all because he believes that the personal information about his superannuation overpayment was deliberately made public at the height of the election campaign. For more details of the legal action, see Nicholas Jones’ Winston Peters' legal action a 'personal matter', Ardern says.
Newsroom co-editor Tim Murphy was also served legal papers by Peters’ lawyers, and he details the court action in Winston goes fishing. Murphy explains Peters is seeking a judgment related to a “breach of privacy” and is requesting those served provide all sorts of records of communications relating to the Peters superannuation scandal in order to discover who is responsible for the breach of his privacy.
The best discussion and examination of the law around this case is by Mai Chen, in her article published today, No quick resolution in Winston Peters superannuation leak case. She explains how the court process is supposed to work, and concludes: “The likelihood is that it will take several months for the court to determine the matter – longer if there are appeals. If the court grants Peters' applications, and he finds what he is looking for, then the substantive claim for breach of privacy will then be determined against the alleged leakers.”
Much of the case revolves around the fact that Peters’ superannuation information was provided to government ministers by the Ministry of Social Development under the so-called “no surprises” policy, in which officials make politicians aware of anything that might affect their job. And it is the decision by the Ministry’s boss, Brendon Boyle, to inform ministers that Peters is also challenging.
Tracy Watkins reports what Peters’ affidavit has to say on this: “The briefing, while required by the National Party government, has to the best of my knowledge no basis in law. The no surprises policy is considered by myself and counsel to be both a breach of the Privacy Act requirements and the duty of care to protect my client's private information held by the MSD” – see: Winston Peters looks to sue over pension leak.
No surprises in Peters’ fight
Although the legal action has been portrayed as a surprise, Peters was clear during the election campaign that he intended to pursue the issue after the election. For example, Claire Trevett reported at the time: “Peters said he would speak to his lawyer about his options and was determined to get to the bottom of the matter so people could have confidence when dealing with government departments” – see: Winston Peters calls in the lawyers, claiming character assassination attempt.
The same article reported “Labour leader Jacinda Ardern said there was a need to get to the bottom of it to ensure people's privacy was protected by government departments” and said the episode fed the “perception that dirty politics was rife”. And Peters was inclined to use even more colourful language to describe what had happened, claiming that he was the victim of “filthy politics” and that “it's deceitful, it's duplicitous, it's all the worst elements of dirty politics."
Peters supported by left and right bloggers
If Peters is correct and there was an orchestrated attempt to turn voters against him by using state-provided information to the media, then surely Peters is to be encouraged in his bid to find justice. However, it’s hard to find much published support for his endeavour. The exception is Lynn Prentice, writing at The Standard, who says Suck it up, political sleazers.
Prentice argues that the leak of Peters’ private information was “clearly politically motivated”, and the whole operation was “a classic dirty politics ploy.” Therefore Peters’ legal fight is to be supported: “Frankly, win or lose, it is just another round in the continuing battle to reduce the garbage in local politics that National and Act seem to like adorning themselves in. It should also be a round in making public servants accountable for who they choose to share private information with, and that includes with their current political masters. I wish Winston Peters and his legal team the best of luck with cleaning this kind of trash out of our local politics. I’m sure that there will be a lot of other people cheering him on in his search for personal responsibility and liability over politically motivated privacy breaches.”
From the opposite side of the political tracks, blogger Cameron Slater is also in solidarity with Peters against this “dirty politics.” He has written comprehensively about the case on his Whaleoil blog – see: Winston starts dropping lawsuits on media and Nats.
Slater points the finger at National’s leadership: “This also shows that the deliberate leaked attack against Winston Peters, those involved, and the subsequent actions show where the election was lost. No doubt the discovery process will find that it was in fact a deliberate strategy of National, and one which ultimately backfired. It was a poorly executed and ultimately short-sighted smear job on Winston Peters by the so-called ‘brains trust’ of National’s campaign team. It also shows that the real dirty politics players inside National, who have never appeared in any of Nicky Hager’s books, are in fact those aligned with Bill English.”
Bad blood with National
The launch of legal action is a sign that Winston Peters is in revenge mode, according to Patrick Gower: “Winston Peters search for ‘utu’ is now clearer than ever before. Not only has he dispatched National into Opposition – now he has targeted them with legal action over leaking his pension details. It will now be obvious to most New Zealanders that there was way too much bad blood between National and Winston Peters for them to form a government together” – see: Winston Peters deepens 'utu' with legal action over pension leak.
Of course Lloyd Burr reported at the time of the superannuation scandal: “Winston Peters is on the warpath over who leaked details of his pension over-payments. The New Zealand First leader says he's the victim of a privacy breach, claiming it's dirty politics orchestrated by the National government – and he'll ‘lodge a serious action’ when his lawyer returns from an overseas holiday today” – see: Winston Peters accuses National of 'filth and dirt'.
Despite the fact that Peters had clearly signalled his intentions to pursue legal action, some political journalists are now suggesting this week’s move is an indication that New Zealand First never would have chosen to go into coalition government with the National Party.
Here’s what Newstalk’s Barry Soper says: “It was just over a week later that the same three Nats filed into the coalition casino with the gambler Peters, who unknown to them, or anybody else for that matter, had already laid his cards on the table. The dealing had been done. Like all good gamblers, Peters kept a stony face, letting them believe they were still in the game whereas in reality they'd been dealt out when the court papers were filed against them. The notion that he could now be sitting at the same cabinet table with them is beyond comprehension. But they were playing blind, so for that matter was Labour. If they'd known of the court papers they might not have been so generous. But Peters played on, playing one side off against the other until he struck the jackpot with Jacinda” – see: Pension papers is why Wily Winston Peters went with Labour.
The New Zealand Herald has published an editorial today along similar lines, saying “the main reason this lawsuit is unwise is it discredits his post-election negotiations and inevitably reflects on the government he has chosen. It is now obvious there was extremely little possibility he could work with Bill English, Paula Bennett, Steven Joyce and Anne Tolley since he had initiated legal action against them the day before the election. Why he put them and the public through three weeks of uncertainty only Peters knows. It is hard to avoid the conclusion it was to increase his leverage on Labour” – see: Peters' suing of ex-ministers discredits negotiations.
The latest NZ Listener magazine is also extremely critical of Peters’ legal action, saying “for him to proceed with this action now does far more to lower his reputation than the pension controversy” – see: We deserve better than Winston Peters' legal stunt.
The main point of the editorial is to say: “Legal action confirms he harboured a material distrust of National. How can we not believe he simply used those talks for bargaining leverage, with no intention of doing a deal with National?” The Listener thinks the action is somewhat bullying: “It’s also appalling that he has included a senior public servant and two former political staffers in his discovery claims, knowing, as he must, how hard it is for such employees to defend themselves in a politically charged situation. And it’s an ogreish and futile act for any politician, as Peters as done, to demand that journalists disclose sources.”
Media freedoms under threat?
The Herald editorial provides a further argument against Peters taking legal action over the scandal: “It is disturbing that Peters seeks to have journalists reveal their sources through court discovery procedures. He evidently wants the court to order them to hand over phone records, notes and emails relating to his superannuation overpayment. His attitude to news media going about their job leaves a lot to be desired and may come to pose a threat to press freedom if he now uses his position to try to put his antagonism into law.”
This is another aspect of the case that Mai Chen discusses in her article, suggesting that the journalists involved might attempt to “claim privilege under section 68 of the Evidence Act 2006, which allows them to withhold information that might disclose the identity of an informant.”
Additionally, she says they “may try to argue that there should be no discovery because Peters' substantive claim will fail, either because disclosing the information about his superannuation was not highly offensive to start with or because the disclosure was in the public interest having regard to Peters' position as leader of the NZ First Party.”
Finally, Toby Manhire has also expressed his concern about media freedoms – see his article on The Spinoff: The brand new Deputy PM just served papers on the media and that is not good at all. After expressing disappointment in the deputy prime minister starting his new job in this way, he reminds him of the other lawsuit he has promised against a broadcaster: “And if he’s determined to continue waging war on the media, hasn’t he got enough on his plate already, what with that lawsuit he promised he’d filed against Mark Richardson, for comparing him to pus?”