Deputy Prime Minister Winston Peters’ latest lawsuit over his seven-year superannuation overpayment targets two top public servants, two ministers and a government department over the bureaucracy’s ‘no surprises’ policy.
Peters’ action is being taken as a private citizen but taxpayers will foot the bill for Crown Law which must now defend the leading civil servants, the Ministry of Social Development and possibly the two former National ministers as well.
His lawyers claimed earlier in this court action the no surprises policy, apparently still in place under the Labour-New Zealand First coalition Government, “breaches the privacy of all prominent citizens of New Zealand and has become a method for the government ministers to unlawfully obtain private information on its political opponents”.
Peters had previously claimed a political conspiracy orchestrated from the top of the Beehive at the time. But now he has dropped his case against former Prime Minister Bill English, former finance minister Steven Joyce, English’s former chief of staff Wayne Eagleson, and National’s election campaign communications man Clark Hennessy – who he previously claimed had worked together to make public his long receipt of inflated super payments.
Peters’ windfall only became known after his longtime partner Jan Trotman applied for her own superannuation and his wrong payment was noticed. The matter became public when Peters issued a press statement, believing political opponents were about to use the matter against him.
The focus for his latest quest for $450,000 in damages now seems to be the ‘no surprises’ policy itself – brought in by Labour’s Helen Clark administration and continued under the Key and English National governments – which obliged civil servants to alert their ministers when politically controversial issues arose in a department’s affairs.
Peters is suing the head of the civil service State Services Commissioner Peter Hughes, the head of the Ministry of Social Development Brendan Boyle, the ministry and two National ministers Paula Bennett and Anne Tolley who were briefed by those two mandarins on the Peters’ windfall.
The New Zealand First leader’s legal argument since he quietly launched action the day before the general election – and weeks before supposedly good faith negotiations with National over who to ally with in government – has been the ‘no surprises’ policy was unlawful in his case, or if it was lawful for the top bureaucrats to attempt to raise it with their political masters, the two ministers ought to have declined to accept the information.
Clifford Lyon, a solicitor acting for him told the High Court late last year: “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 MSD.
“The intended defendants [National ministers] run an administrative policy called ‘no surprises’ which policy in operation breaches the privacy of all prominent citizens of New Zealand and has become a method for the government ministers to unlawfully obtain private information on its political opponents.”
Essentially, Peters claims the superannuation overpayment was a MSD staff error and because it was put right and resolved by his payment – believed by Newsroom to be $18,000 – it ought not to have been raised with the ministry’s chief executive, or then by him with his minister, Tolley, or by him with Hughes as State Services Commissioner, or by Hughes with his minister Bennett.
Peters claims the ministers, before hearing the detail of the overpayments, ought to have asked the bureaucrats if the matter had been resolved satisfactorily or needed their or Cabinet’s intervention, and if the answers were ‘yes’ and ‘no’ they ought to have refused to be briefed.
Peters’ Statement of Claim in a pre-discovery proceeding late last year said Boyle had a legal obligation to Peters to protect his “private MSD information”.
He claimed Boyle either knew, or was reckless if he did not know, that telling Tolley and Bennett would result in them using that information “for political purposes including discrediting the intended plaintiff in the forthcoming general election”.
Peters said of Boyle: “It was unlawful to disclose [Peters’] private MSD information to a cabinet minister. In the alternative, if the ‘no surpises’ policy is lawful, then [Boyle] breached the said policy.”
In earlier pleadings, Peters had also listed this journalist and Newshub‘s political reporter at the time, Lloyd Burr, as ‘intended defendants’ and had demanded journalists’ notes, phone and email records. The Peters team alleged a National Party conspiracy and fingered Hennessy as the most likely leaker. (Hennessy flatly denied any involvement.) Having now abandoned action against most of the National players including Hennessy, Peters has not apologised for that direct slur against the party worker.
Inquiries by the State Services Commission and MSD found no evidence anyone had accessed, copied or misused Peters’ information. One MSD staff member faced a disciplinary hearing for accessing his file after the seven-year overpayment became public.
Boyle told the High Court in an affidavit that he personally ensured the confidentiality of Peters’ information as soon as he was told in June last year – “including details of the overpayment only being known by a small, named group of officials. I kept my file in a locked combination safe at all times.” He briefed Tolley on July 31, following up with a written memo. The SSC inquiry found that written memo was kept locked away and it found no evidence of anyone viewing or using it. Tolley told the High Court she shredded it after the election but before Peters’ legal action was launched.
Bennett’s affidavit to the Court said she was told on August 1 of the overpayment by the State Services Commisioner. “I was not given any written briefing on this matter from the commissioner or anyone else.”
It is not known if Peters expects his own portfolio department, the Ministry of Foreign Affairs and Trade, to advise him under the ‘no surprises’ policy of any potentially politically embarrassing matters it is dealing with.
