Winston Peters is justified in feeling annoyed about the timing of the SFO announcement that they had “filed a charge of ‘Obtaining by Deception’ against two defendants in the New Zealand First Foundation electoral funding case”.
The charge was filed on 23 September but the announcement was delayed due to a flurry of legal actions taken by lawyers acting for NZ First.
Tim Murphy covers the legal proceedings here – NZ First’s desperate flurry for court secrecy
As the Serious Fraud Office prepared to announce charges against two people in its New Zealand First Foundation investigation, the New Zealand First political party and one of the accused were so desperate for secrecy they launched a blizzard of legal action claiming to involve three courts at once.
Even the courts and judges appeared to struggle to keep up with applications being sought, withdrawn, granted, appealed and delayed as New Zealand First and Co tried to stop the news of the “obtaining by deception” charges, which carry penalties of up to three years’ imprisonment, from being made public.
In the end, the public’s right to know such information in the lead-up to the election won the day.
While the timing is tough on Peters and NZ First, do voters have a right to know about the charges? Suppressing this information from voters until after the election may have been a worse option. Murphy also tweeted:
With Peters and NZ First so heavily involved in this it is impossible to separate the Party from the Foundation.
Peters has attempted to do this, saying “today’s decision by the Serious Fraud Office exonerates the New Zealand First Party of any electoral law breaches”. It doesn’t exonerate anyone.
As the people being charged aren’t current MPs or candidates it seems fair to suppress their names for now, but it’s ridiculous claiming it has nothing to do with the Party. The Foundation was set up by the Party for the Party.
Andrew Geddis via RNZ: NZ First Foundation arrangement ‘unprecedented’ – law expert
The New Zealand First Foundation arrangement with the New Zealand First Party “is completely unprecedented,” law expert Professor Andrew Geddis told Checkpoint.
“The NZ First Party has tried to draw a distinction… between its foundation and the National Party, which has a foundation as well. But the National Party foundation is run completely in line with electoral law, and is simply a way of gaining long term donations which are then invested,” Professor Geddis said.
“This was a foundation where people would put money into the [NZ First] foundation rather than give it directly to the party. Because it was put into the foundation it wasn’t being declared to the Electoral Commission as the law required, and then the money was being spent on New Zealand First Party activities rather than the party spending its own money.
“So it was like a shadow parallel funding structure that paid no attention to electoral law, even though it ought to have.
“It’s very hard to say how these two things can be separate, when it was the New Zealand First Party that decided it wanted to set this thing up, and the NZ First Party benefited from the NZ First Foundation paying all its bills,” Professor Geddis told Checkpoint.
“So I don’t care what technical legalities you throw at it, if it walks like a duck and quacks like a duck it’s probably a duck.”
In response to Peters’ warning the case cannot be discussed as it is sub judice, Professor Geddis said:
“We can’t talk about the people who has been charged, we can’t speculate on that because there’s name suppression, but in terms of discussing the outline of the case, discussing the background facts and so on, those are all in the public record.
“Sub judice is something people throw around when they don’t want to talk about an issue. It doesn’t mean you can’t talk about anything to do with the case.”
Obviously it doesn’t mean you can’t talk about the case (except for what is suppressed). Peters had his say at the media conference yesterday and in his statement, and closed saying ““Neither I nor any other party is allowed to make any further comment on this matter because it is now sub-judice.”
That’s just an attempt to stop questions being ask, or is an excuse to not answer questions.
But predictably it hasn’t stopped comment.
Sam Sachdeva (Newsroom): Winston Peters’ smoke and mirrors fails to hide the truth
The news amounted to a validation of an investigation by Stuff journalist Matt Shand published last November, and subsequent reporting from RNZ’s Guyon Espiner, reporting that financial records showed donations to the foundation had been used to fund an array of campaign and political expenses, but with the donors’ identities not disclosed.
Not that you would have learned as much from the first few minutes of the New Zealand First leader’s remarks.
The party had been “fully cleared”, Peters claimed – largely ignoring the fact that two people had been charged, and instead leaning on the SFO’s clarification that neither of those was a sitting MP, staffer, candidate, or current party member.
Of course that doesn’t exclude people who may have been any of those things at some time in the past.
He claimed “a James Comey-level error of judgement” had been perpetrated against his party, harking back to the former FBI director’s ill-fated decision to reopen an investigation into Hillary Clinton’s use of a private email server on the eve of the 2016 United States election.
But that analogy crumbles at the merest examination. The primary problem with Comey’s decision was that Clinton had already been investigated and cleared over the matter earlier in the year, with the FBI director publicly reopening the matter against official guidelines only to reach the same verdict.
The SFO has clearly found enough evidence to feel a prosecution is worth pursuing, and while the accused are certainly entitled to a presumption of innocence, a decision not to lay any charges whatsoever would have been another matter altogether.
The New Zealand First leader has habitually sought to distance himself and his party from the foundation’s operations, a strategy he turned to on Tuesday: “The foundation is an entirely separate entity [from the party] but that distinction will be lost on some, and deliberately confused by others.”
At a superficial, technical level, Peters is correct. But that ignores the broader truth: that the foundation appears to have funded a number of the party’s activities in recent years, from a guest appearance by boxer Joseph Parker at its 2017 conference to legal advice for an MP and a swish new website and donations platform.
The specifics of how foundation money was spent have yet to be tested at trial, but New Zealand First has not contested that it benefited financially from the trust – merely that it believed the foundation’s structure was legal, and in any case was separate from the party.
But separate does not mean independent, and if the party has benefited from the foundation it seems fair for it to take some responsibility for any wrongdoing, even if not in a strictly legal sense.
But Peters continues to distance himself from any involvement or responsibility.
Technicalities may make a difference in a legal Court, but not so much in the court of political opinion, and that seems to have had a say in polls through this year.
While the February announcement of the SFO investigation may have played some role in its electoral decline, it is nobody’s fault but the foundation’s if (as the agency has concluded) it has a case to answer in court, while there are myriad other unrelated factors that have hobbled the party.
Polls have fluctuated quite a bit for NZ First through this term, but have been low a number of times prior to the February 2020 announcement. here are some:
- February 2018 – 2.6% (CB)
- May 2018 – 2.4% (RR)
- January 2019 – 2.9% (RR)
- February 2019 – 3.0% (CB)
- March 2019 – 2.3% (RR)
- May 2019 – 2.8% (RR)
- January 2020 – 2.5% (RR), 3.6% (RR)
- February 2020 – 3.3% (CB)
The highest NZ First polled in 2018 was 5%. The highest they polled in 2019 was 4.3%. So they were struggling before the SFO investigation.
National and Labour have also been connected to SFO investigations this term. It would have been unfair on them if NZ First had their connections to an investigation and charges suppressed until after the election.
NZ First may even benefit from the current publicity, something they have been struggling to get much of this term.
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