It was a day in court that shot former Deputy Prime Minister Winston Peters back into the Wellington spotlight on Tuesday. It’s one of few public appearances since his New Zealand First party failed to return to Parliament six months ago, writes political editor Jo Moir.
Immaculately dressed in suit, tie and pocket square, Winston Peters was back on familiar ground strolling into the Court of Appeal, just a stone’s throw away from Parliament and his former Beehive office.
In the lunchbreak he had a bite to eat at the Backbencher pub, and then forgot to put his phone on silent in court, proving some old habits die hard.
Peters was at the Court of Appeal alongside long-time lawyer and friend, Brian Henry, where his now three year-long court battle regarding his superannuation overpayment continued.
In 2010, Peters incorrectly completed his original application to receive superannuation, not alerting officials to his de facto partner status with Jan Trotman. That resulted in him being overpaid for seven years until her subsequent application for superannuation raised the red flag
News of the overpayment was made public by Peters due to media questioning during the 2017 election campaign.
The Deputy Prime Minister took a High Court breach of privacy case against two former National ministers, Anne Tolley and Paula Bennett, the Ministry of Social Development and its former chief executive Brendan Boyle and the Public Services Commissioner Peter Hughes, already costing the Crown more than $1 million in legal costs.
Peters lost but is challenging that at the Court of Appeal.
Peters’ claims on July 22 under parliamentary privilege that a former press secretary for National MPs, Rachel Morton, overheard the ministers talking and leaked it to ACT leader David Seymour – and that it then it made its way to the media via the Taxpayers Union’s Jordan Williams, pollster and blogger David Farrar and the father of a National MP, John Bishop – were universally denied and ridiculed.
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In the Court of Appeal on Tuesday Peters and Henry headed down an entirely different route.
Henry made the case that in naming Peters when Boyle passed on the details of the pension overpayment to Tolley, Boyle took part in a “repugnant breach’’ of privacy.
Boyle had gone on to brief the Public Service Commissioner, Peter Hughes, which Henry argued was right to do, but then Hughes briefed his minister, Paula Bennett, which he says was also a breach.
Boyle was in the court in the public gallery behind the Crown throughout, while Peters sat across the aisle behind Henry.
During a court break, the two engaged in a joke and both roared with laughter before going their separate ways.
Henry’s argument’s based on a series of wrongs that he says led to the privacy breach.
His starting point was that Peters “made a mistake’’ in not filling out the superannuation form correctly in the first place but because he hadn’t ticked all the boxes the Ministry of Social Development should never have processed it in the first place.
There were 41 people within the ministry who had knowledge of Peters’ superannuation but only 12 who had the same level of information that matched what was eventually leaked to the media during the 2017 election campaign.
Despite the headlines and Peters concerns that they had damaged his party, he went on to find himself in a king or queenmaker position on election night – leading to him choosing Labour leader Jacinda Ardern to be the new Prime Minister.
Henry spent the morning running through the chronology that led up to the information being made public before getting into a series of exchanges with Justices David Goddard, Christine French and David Collins.
Justice Goddard burst into laughter on numerous occasions, amused at some elements of proceedings, while his colleagues smiled quietly.
Asked outside court whether he had been surprised by the level of laughter, Peters chuckled at Newsroom saying, “From my end, no’’.
‘Fraud only reason to divulge name’
Henry argued on Tuesday that the only reason ministers should have been told Peters’ name was if there had been fraud involved, which was not the case in his case.
He said personal details like the name of the person involved were not needed to assure ministers of the integrity of the superannuation system.
“This is just salacious information. If there was a prosecution coming for fraud, totally fine,” he said.
“We have a prominent person, we have a case where this happened and this is what was done. But they have no basis, in privacy rules, to divulge the name and detail of the beneficiary.
“It’s too personal for a minister to know,’’ Henry insisted.
But in one exchange with Justice Goddard he was questioned whether passing the information onto ministers was in fact a breach of privacy.
The expectation between ministers and their chief executives was that information was handled carefully and in this case staff were told to leave the room when the ministers were briefed.
Henry maintained the privacy breach occurred when Peters’ name moved from being known within the ministry to being passed onto ministers.
“The private details of any social welfare beneficiary, except in the case of fraud, is too personal for ministers to know.”
“This is proper politics, sir. You’re moving from proper civil servants to political operators,’’ Henry said.
Even at the time the disclosure became public, Henry said, then-Prime Minister Bill English said it had gone well beyond the ‘no surprises’ policy between chief executives and ministers.
“He came out and stated it was too personal for ministers to know – that’s the point.’’
It was also raised in the High Court case that ministers were alerted to the information because another politician, former Greens’ co-leader Metiria Turei, had received a lot of media attention after admitting historic benefit fraud.
Henry spoke to that again on Tuesday saying, “the fact another politician has committed fraud and brazenly tells the media – that is utterly irrelevant to Mr Peters’ privacy”.
Victoria Casey QC, representing the government agencies, responded to Henry’s arguments saying Peters’ claims had changed and the court was now being asked to determine the ministry was at fault for the leak.
This is contrary to the claims Peters made under parliamentary privilege that political staffers, MPs and their families had been involved.
“This is not a case that was before the High Court. It was not pleaded,” Casey said.
She also argued the chief executives had every right to disclose the information to their ministers under the ‘no surprises’ policy.
Henry described the release of that information as being like having a tiger and knowing full well that “if the tiger gets released it will cause damage’’.
He also gave an anecdote about it being a “shell game’’, which was met with huge laughter from the justices, and requests that Henry help them out a little more with what he meant by that.
Henry explained he was referring to Russian dolls and that Peters personal information about the overpayment, which was fully repaid, had begun in one doll with MSD, and more dolls were added as more people were told.
“From there it’s inevitable this is going to leak, because it hasn’t been held in this tight first shell,’’ he said.
Casey spent much of the afternoon picking holes in Henry’s arguments and also raised objection to some of the timeline that had been filed, in particular, the suggestion Boyle and Hughes agreed weeks ahead of briefing the ministers that they would do so.
“Both Brendan Boyle and Peter Hughes are clear it was their own decision and … made just before the briefings, as you would expect,’’ she said.
Casey also argued the reason for ministers being told was because of the “political position and personal power’’ of Peters and needing to make sure the integrity of the superannuation system remained intact.
Justice Goddard pushed back at one point saying there isn’t an expectation that ministers know everything and they can’t be expected to.
He said if the superannuation overpayment had been raised with a minister who hadn’t been briefed under the no surprises policy, they could respond that it was an “operational matter and they would go away and get a full briefing’’.
The judge was clearly amused by his own argument, adding that a response of that nature was in fact quite common and not unusual at all.
That got a laugh from Peters too.