Cullen Michael: Privilege — Consideration of Report of Privileges Committee Members’ Pecuniary Interests—Gifts and Donations 
Cullen Michael: Privilege — Consideration of Report of Privileges Committee Members’ Pecuniary Interests—Gifts and Donations 
[Volume:650;Page:18883] 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 I begin by recognising that in chairing the select committee Mr Power ensured that due process was followed and that all those who gave evidence to the committee were allowed to do so in a reasonable fashion and with a degree of protection against any undue activity on the part of any members of the committee. 
It seems to me that there were three questions the committee needed to ask itself. The first question was whether Mr Peters knew about the Owen Glenn donation. The second question was if he did not should he in any case have found out about it—for reasons that I will explore a little later on. The third question was whether he should have declared that donation on the pecuniary interests register. In order for the finding in the majority to stand it seems to me that one has to answer “yes” to either questions one and three—in other words Mr Peters knew and should have declared it—or to questions two and three that he should have found out about it and declared it. If there is a “no” to either one and three or two and three then in fact the contempt finding cannot be made. There is a high standard to apply because the finding of contempt and a motion of censure is an extremely serious matter. I can find in Dave McGee’s book only three references to motions of censure in the last 35 years or so of this Parliament. 
In relation to the first question about whether Mr Peters knew about the Owen Glenn donation we were faced at the time as I said with two conflicting narratives. Narrative A Mr Glenn’s was that Mr Peters contacted him on 5 December leaving a message to phone Mr Peters. That conversation occurred on 14 December. During that conversation Mr Peters sought a donation. That donation was $100000. Mr Peters then contacted Mr Henry. Mr Henry transferred his bank details to Mr Glenn. That narrative has a high degree of credibility about it on the face of it. 
The alternative narrative is a different one; let us deal with the first narrative first. Much of it depends on the reliability of Mr Glenn as a witness. Mr Glenn was fine as long as he stuck to the carefully coached matters that he went through rehearsed by his lawyer Dr Harley. Interestingly enough Dr Harley was appearing pro bono publico—for no fees—despite being one of the most expensive lawyers in the country and despite being at the middle of the wine-box affair in which Mr Peters had a starring role on the other side of the script. Mr Glenn however unburdened himself the next day of a whole series of statements and indeed managed to contradict himself on many different occasions. He said the donation was to New Zealand First then he said it was to Mr Peters. He said he made the donation to Labour because of the Exclusive Brethren—an impossibility as the donation was made before the relationship between National and the Exclusive Brethren was known. Then this morning on  
Morning Report 
 he contradicted himself yet again by saying the donation to Labour had nothing to do with the Exclusive Brethren. He claimed that Mr Williams had arrived at his home in the south of France uninvited but Mr Williams produced the email from Mr Glenn that invited him. He claimed that Mr Williams asked for a job when in fact it was Mr Glenn who had offered Mr Williams a job. He claimed to have been invited to the Karaka sales by Mr Peters when in fact Mr Peters is not the person who invites people to tables at the Karaka sales; the person is one of the people who are involved directly in the racing industry. Mr Glenn claimed to have sat at the same table as Mr Peters when a series of affidavits have shown in fact that they did not lunch together at that particular function. In other words Mr Glenn was a not entirely reliable witness. 
Furthermore he showed extreme resentment at being questioned. He seemed to regard the New Zealand select committee as something that was rather like being in front of third-level flunkies in his organisation. If they were told what the facts were those were the facts that were to be accepted. Indeed he threatened to walk out even though he was not questioned very hard at all. I have seen much harder questioning by members on all sides of this House in the select committee process than what Mr Glenn was subjected to. In other words he was a person used to getting his own way and he did not like it when he appeared not to be getting his own way. That could colour his attitude on matters such as donations. 
The alternative narrative therefore is that in fact—as Mr Henry submitted and Mr Peters submitted—Mr Henry made the approach to Mr Glenn for the donation which is much more likely to have occurred in any case given the nature of those who approach people for substantial donations; that Mr Glenn indeed called Mr Peters because that is absolutely clear and during that conversation he mentioned that he wanted Mr Henry’s details; and that Mr Peters conveyed that fact to Mr Henry and Mr Henry contacted Mr Glenn. 
Those are two different narratives and one can choose between them. Only those who have totally prejudiced minds such as Dr Smith will conclude that only one of those narratives has credibility to it. Both those narratives have credibility to them and the majority found that the first narrative was correct. The minority has serious doubts about that narrative. But in fact it is the least important of the questions because of course even if it is true we have to proceed to question three. 
Let us deal with question two. Let us assume that narrative two is correct and that in fact Mr Glenn was approached by Mr Henry for the donation and the matters unfolded as I outlined previously. Then we have the argument that is based on the submission from the former Clerk of the House Dave McGee—who was invited at my suggestion to make a submission to the committee—that one should have to make an honest attempt. And that meant a much more serious delving back into the past about where donations might have come from based in this case upon the undisputed fact that Mr Henry indicated that he told Mr Peters that people had contributed to Mr Henry’s legal expenses—expenses that of themselves as Mr Power has just outlined did not create a debt and could not because Mr Henry practised as a barrister sole. What is more the committee was further told that if the money did not come forth and Mr Peters was unable to pay the money there was no obligation upon Mr Peters at all—other than a moral one perhaps—to pay that money. In other words any payment of Mr Henry’s legal expenses did not thereby reduce any kind of payment that Mr Peters might make to Mr Henry. 
The problem with the “honest attempt” test however is that it is basically a construction arrived at by the select committee on the advice of Mr McGee and is imported backwards to the affair in early 2006. I invite members to think very carefully. This exposes many people in this House to risk in terms of any wide range of donations and services or of undercharging for services such as legal services. I think there might be many members who may care to think carefully about whether the returns they made at the start of 2006 might be entirely accurate in all respects in the light of that changing interpretation of members’ obligations. 
But then there is still the highest hurdle to cross. Even if all those facts follow and Mr Peters should have found out about the donation or already knew about the donation the real issue that comes at that point is whether he should have made a return. The registrar told us that if members approached her for advice about whether a matter required a return she would advise them to ask their lawyer and seek legal advice which is why the committee has recommended that the registrar should make more rulings on these matters. But what if Mr Peters had done that and had approached his lawyer for advice on this matter? Mr Henry submitted that in fact a return was not required on two grounds: on the first ground that it was not a gift to Mr Peters because there was no obligation to pay on Mr Peters’ part; and on the second ground that it was an electoral expense related to the electoral petition and electoral expenses are specifically exempted from the requirement to make a return under the pecuniary interests register. The committee concluded that both those points were wrong but that is not the point. The point is that that is the advice that Mr Peters would have had had he followed what Dame Margaret Bazley said should be done. In other words how can one conclude on the basis of this—and engage in a motion of censure on a member—that he knowingly made a false return when in fact if he had followed what was recommended through this process he would have been advised that he did not need to make a return on these matters? 
That is why the Labour Party will not be voting for this motion. There is a conflict of evidence here. A high test should be applied in the end. A very serious motion has been moved and I think the House needs to think very clearly whether for political purposes on the eve of an election it should be engaging in this public hanging. No doubt Mr Brownlee as an ex-carpenter is the man keen to erect the scaffold.