More on Peters versus journalists

More comment on attempts by Winston Peters to obtain the communications of journalists through legal proceedings.

RNZ:  Peters’ attempts to obtain journalists’ phone records over leak ‘wrong’

The deputy Prime Minister’s attempt to obtain the emails and phone records of two journalists is outrageous and could have a chilling effect on democracy, media freedom advocates say.

Winston Peters is seeking the journalists’ communications in a bid to find out who leaked details of his pension overpayments.

The former chair of the Commonwealth Press Union and former editor of the New Zealand Herald, Gavin Ellis, said Mr Peters’ actions were outrageous and it could have a chilling effect on democracy.

“When a politician starts placing his hands on what should be confidential phone records, confidential notes and recordings and so on, our ability to hold power to account – and that’s a fundamental role of the journalist in a democracy – is compromised.

“There’s no doubt about that.”

The International Federation of Journalists’ New Zealand representative Brent Edwards said what Mr Peters is doing is disturbing.

“He ought not to be going after journalists. It’s fine for him to chase those political figures he believes might have been involved, or thinks they might have been involved, but absolutely wrong to chase the phone records journalists.

“Particularly in an absolute fishing expedition and that, where he seems to expect he’ll get all of their material, well you know that would really have a chilling effect.”

It could have a chilling effect if it deters journalists from investigation anything involving the deputy Prime Minister and Minister of Foreign Affairs, or of reporting on or commenting on any coverage that may be critical of Peters.

The Listener: We deserve better than Winston Peters’ legal stunt

Winston Peters was all furious denials when a journalist alleged during the election campaign that he might use his likely kingmaker power to further a quest for utu. His opening salvo towards formal legal action this week points to just such a quest, and one that bodes ill for the effectiveness and reputation of this country’s first minority coalition Government.

The Prime Minister Jacinda Ardern is likely to have concerns about what this might do for the reputation of her government.

It’s bad enough that the Deputy Prime Minister has filed legal disclosure claims against four senior MPs in the National Party, with which he negotiated, supposedly in good faith, to form a Government just last month.

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.

But the fact that he reportedly filed the paperwork for the claim the day before the election reeks of bad faith. It’s now hard for him to defend his assertion that he went into coalition negotiations with National with genuine intent.

Ardern has said it’s a personal issue for Peters, but it can’t easily be separated from how her government was formed – and how it may have been used to extract a higher price from Labour in negotiations. Deceiving your coalition partner is not a good way to start a governing relationship.

It may not have deceived Ardern and Labour, Peters may have fully informed them, but that still means the public was deceived into thinking a genuine two way negotiation was taking place. Peters was still claiming he was unsure whether to go with Labour or National just prior to making his announcement.

…he was grievously wronged by the disclosure that his superannuation had been mistakenly overpaid. Given the leak’s timing, it appears to have been malicious rather than inadvertent. It may well have damaged New Zealand First’s vote, and the leakers deserve to be prosecuted to the full extent of the law.

When told of it, Peters swiftly returned the overpayment, and Work and Income is adamant he was blameless. The affair reminds us how fine the balance can be between the public’s right to know a public figure’s relevant personal information and the catastrophic damage that can occur if the information is wrong or conveyed out of context. Peters’ reputation was damaged, and the subsequent contexting of the initial leak can never fully compensate him.

However, for him to proceed with this action now does far more to lower his reputation than the pension controversy – a quickly extinguished brushfire – ever could have done. It will fuel the worst fears of voters already uneasy about his role in the formulation of the Government. Peters is seen by many as having thrown his weight around to an extent unjustifiable by his party’s modest 7.2% vote share. This 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?

That’s an obvious possibility, and Peters won’t comment to clarify while the proceedings are sub judice, leaving things open to ongoing speculation.

Given this election disclosed a sizeable mood for a change of Government, Peters began this term with every chance of earning the public’s respect – or at least the benefit of the doubt. That he has yet again been unable to show restraint or decorum, and is futilely pursuing a personal grudge, is extremely disappointing. His co-parties in Government, and the country, deserve better.

It gives the impression that Winston First takes precedent over the Government or the country.

And this is likely to drag on. Mai Chen: No quick resolution in Winston Peters superannuation leak case

Lawyers for Winston Peters have served an application seeking the discovery of documents on the former prime minister, the former deputy prime minister, two former ministers and other advisers, officials and journalists.

In each case, the application seeks to discover the same basic information: the identity of the person or persons responsible for disclosing during the election campaign details of Peters’ national superannuation overpayment.

At common law, breaching privacy can result in an award of damages if the court agrees that disclosure of private facts is highly offensive to a hypothetical objective reasonable person.

However, before he can issue his proceeding for damages, Peters has to address a problem. He does not know who to sue because the identity of the person or persons responsible for the leak is currently unknown.

The action Peters has taken must mean he doesn’t know the identity of the person or persons responsible, although when the story was being reported he made claims he knew who had done it. That may have just been bluster, something peters isn’t a stranger to.

He can say with reasonable certainty who had access to the information and who first reported it in the media, but not who actually disclosed it.

The High Court Rules provide a mechanism expressly designed to deal with Peters’ problem: the right to apply for pre-commencement discovery.  Under Rule 8.20, any person intending to issue proceedings in the High Court can apply for pre-commencement discovery if it is impossible or impracticable to formulate the claim without access to documents (which must be specified in the application), and there are grounds to believe that the person served with the application has the documents in his or her possession.

That suggests he can’t just ask generally for communications.

The Rule strikes a balance between the right of intending plaintiffs to have access to justice through the courts to enforce their legal rights, and the right of others to maintain possession, control and confidentiality of their documents.

The court will need to decide whether the orders sought are wider than necessary to allow Peters to formulate his claim, and whether there are in fact sufficient grounds to suspect that each of the respondents served with the application actually has possession of the documents in question.

The journalists are also likely 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.

That privilege is limited and can be overruled by the court if it considers it would be in the public interest to do so, and the court has exercised that power in the past to require journalists to disclose the identity of informants who had committed serious criminal offences.

However, the court may be less inclined to do so in a private damages claim, particularly as it raises questions about freedom of expression under section 14 of the New Zealand Bill of Rights Act 1990.

Further, the respondents 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.

The likelihood is that it will take several months for the court to determine the matter – longer if there are appeals.

So this may hang over the credibility of the Government for some time.

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13 Comments

  1. Tipene

     /  November 10, 2017

    Isn’t the MSM getting itself all in a tizz?

    I wonder what else discovery might find out, aside from who spoke to who about what?

    As many journalists love to opine: “If you have nothing to hide, then there is nothing to fear”.

    Pony up time, cupcakes.

    • “Ardern has said it’s a personal issue for Peters, but it can’t easily be separated from how her government was formed – and how it may have been used to extract a higher price from Labour in negotiations. Deceiving your coalition partner is not a good way to start a governing relationship”

      I’m sure she’ll get over it and not find it morally reprehensible. She’s capitulated enough, as have the Greens to accommodate this vainglorious little man and his band of cowboys, so what’s a bit of repressing free speech in the media!

      • ‘Pony up ‘ ? Why should they pay money to Winston Peters ?

        It is a very bad look indeed that he began all this before he pretended to negotiate with National.It must have been a pretence.

        Sorry, Jacinda, it’s NOT a private matter and personal issue. That is an attempt to weasel out of it. This is another reason why I think that she is way out of her depth.

  2. Missy

     /  November 10, 2017

    So essentially Peters has no idea of who disclosed the information, no evidence that any of the people he has started legal proceedings against had anything to do with it, and has decided it must be one of the people he has named, so is on a fishing expedition, which is why he has included the journalists.

  3. robertguyton

     /  November 10, 2017

    Meh; National dun it.

  4. lurcher1948

     /  November 10, 2017

    Throw them in jail Winnie

  5. Gezza

     /  November 10, 2017

    Keeps Winston’s profile high & the media keen to hound him. The man’s a master at playing the media.

  6. Gerrit

     /  November 10, 2017

    Did Nicky Hager not use I’m a journalist” to hide his sources/hackers for numerous books?

    Why does Winston Peters think he will get privileged information from a journalist.

    Many supporters for Nicky Hager’s book said the stolen and very private information he used was OK to publish as it was in the “public interest”.

    Wonder what Winston will do when he comes up against a journalist right to hide his sources and the right to publish what is in the public interest.

    Many an argument was had at the time of the various Hager books about what is the “public interest” versus personal privacy and I can see this heading for the same end game.

    Nothing will come of it except Winston will get some limelight that may reflect badly on the government.

    • Blazer

       /  November 10, 2017

      Winston has his ‘private individual’ hat on re this.Nothing to do with the coalition governing…at …all.

  7. Gezza

     /  November 10, 2017

    Beehive Letters: