Fairbrother Russell: Privilege — Consideration of Report of Privileges Committee Members’ Pecuniary Interests—Gifts and Donations 
Fairbrother Russell: Privilege — Consideration of Report of Privileges Committee Members’ Pecuniary Interests—Gifts and Donations 
[Volume:650;Page:18901] 
RUSSELL FAIRBROTHER (Labour) 
: 
 I take up Mr Brownlee’s last point. He is dead correct on that point. We do need to defend the pecuniary interests register with some clarity but what the inquiry has revealed is a lack of clarity in the pecuniary interests register. 
We find that in Appendix B of the Standing Orders at page 126 clause 7(1)(b) speaks about what must be declared. I will read it because it is the substance of the inquiry made by the Privileges Committee. What must be declared is a description of a gift “received by the member that has an estimated market value in New Zealand of more than $500 and the name of the donor of each of those gifts (if known or reasonably ascertainable by the member)”. It is a simple statement but obtuse and unclear in practice as we can see by the terms of reference given by the Speaker. 
It is perhaps wise at this stage to reflect upon what the Speaker charged the committee to do. At page 5 of the report of the Privileges Committee the charge from the Speaker was reduced to a single line that read: “… Winston Peters failed to disclose a gift and failed to disclose a debt and the name of the person who discharged it.” However the referral made by the Speaker at page 23 of the report is more detailed. It stated: “It is not disputed that legal fees were incurred and defrayed. Firstly what is in question is whether a debtor-creditor relationship actually existed. If it did then it is not unreasonable to assume that the member knew or ought to have known and should have disclosed a debt and the name of any other person who may have discharged it.” The evidence that was accepted quite early in the piece by all members of the committee was that because of the relationship between Mr Peters and Mr Henry—that is Mr Henry is a barrister sole—there could not be a debtor-creditor relationship. That evidence was received from Mr Kós QC and it was not challenged. It was the basis on which the committee proceeded. 
So the committee had to move to the second part of the Speaker’s reference which states: “Secondly if a debtor-creditor relationship did not exist was a gift received and was the name of the donor known or reasonably discernible or was a donation made that covered expenses in an election campaign?”. This is where the committee had I suggest the most difficulty—when it came to determining that part of the charge the issue of a gift. I will deal with that issue in a few minutes. But the Speaker added: “These matters are technical but of vital importance to a proper understanding of the rules for the disclosure of pecuniary interests. They require investigation. It is not the Speaker’s role to investigate. That is the role of the Privileges Committee.” The Privileges Committee was charged with investigating whether the rules were clear particularly as demonstrated by the allegations made that the Rt Hon Winston Peters had failed to disclose a debt. 
The Speaker went on at page 24 to state: “The issues raised are not peculiar to Mr Peters. They have the potential to affect members generally. The rules need to be clarified to assist members in making judgments about what is required to be disclosed as a pecuniary interest and what is not. 
The House has an exclusive right to control its own proceedings. The Standing Orders are a matter for the House alone to determine. Members themselves must take responsibility for the rules for the disclosure of pecuniary interests.” 
What we heard at the committee as referred to by Dr Michael Cullen was the current registrar saying that she would not give advice to members inquiring as to what was covered by the need to disclose but would refer them back to a solicitor for advice. Of course the member would then be bound by that solicitor’s advice and no one would know what that advice was. This is where we got into the murky world of what Mr Peters may or may not have knowingly had in mind when he completed his declaration for the year 2005. 
But the warning was given by Madam Speaker that the issues raised are not peculiar to Mr Peters. They have the potential to affect members generally and we saw that in the evidence. We saw that from the intervention of the Serious Fraud Office and the chart that it forwarded to the committee. The notes attached thereto indicate that Bob Clarkson who had acted diligently by declaring a Koru Club membership in his first year and was told later on that he need not do that did not disclose that his legal expenses were in fact a debt to the National Party or a gift made by the National Party because on the Serious Fraud Office papers the payment of that debt and the refund of the money from the Rt Hon Winston Peters went to the solicitors who held a trust account in the name of the National Party. I make no criticism of Bob Clarkson but that demonstrates in a simple way that this area of pecuniary interest does need definition and it has been the role of the select committee to bring that to the attention of the House. The simple finding of this committee is that we must be more careful in what needs to be disclosed. 
I go back to the warning given by Madam Speaker at the outset that these issues are not peculiar to Mr Peters. They have the tendency to affect all members of the House. I refer to the advice from Dave McGee QC which we find at page 278 of the report. Bill English said in the House today that under tax law everyone has to make an honest endeavour to disclose his or her liability which of course is not correct. Under tax law it is very legalistic and if the question of honesty were to come into it then we would have many many more people before the court on charges. The point made by Dave McGee was that the pecuniary interest matter was not left to legislation but was put one notch down in the Standing Orders because it related to the moral climate of this House and members had to act according to the moral climate of this House rather than legalistically according to the law. So it was at that stage that Dave McGee—for the first time it appears—opined the test of honest endeavour. That was where we found some difficulty in assessing where we should go in finding any culpability by the Rt Hon Winston Peters. 
I want to make one or two comments on the select committee procedure. In moving to this area I first want to acknowledge the chairmanship of Simon Power. The work of the committee was considerable. We got through that work very quickly. The committee was chaired very very fairly by Simon Power who managed to rein in his natural impatience remarkably well. He chaired the committee with a degree of humour that often diffused situations that could have flared up. Every member before the committee was given a chance to express his or her view and every witness who came before the committee was given a fair hearing. 
But that does not mean we should not make some observations on the process. The process of select committee hearings in this House is quite adequate when we are talking about general subjects but when it comes to speaking about the integrity of individuals then a higher standard is required. That was the advice given to us by Mr Stephen Kós QC it is the advice that we sought to apply in the report and it is the advice that the minority in their report tried to apply with some rigour. So when one is making a finding of credibility one must apply a higher standard. 
Owen Glenn was offered the chance to give his evidence on oath. He declined to do so. When challenged he made reference to walking out of the committee to taking up residence in Australia and to other vagaries. For simple questions of fact he referred to his lawyer who was with him. As opposed to that we had Brian Henry who is a member of the Law Society and as such is answerable to the ethics of the Law Society and we had the Rt Hon Winston Peters who is a senior member of this House and as such is entitled to the respect that that brings. So we had three men give evidence of varying recollections. 
The evidence revolved around the email of 14 December. The evidence that was unchallenged by Brian Henry was that that email arose from a conversation he had had that did not relate to money but was a request that he contact Owen Glenn and that it was in the general rubric of endeavouring to keep intact the Labour Government coalition and working arrangements. He said it became a memory jog that took him back to an earlier conversation he had had with Owen Glenn and so he attached the reference. Interestingly the first email back from Owen Glenn is addressed “Dear Brian” and has a degree of familiarity which tended to add some veracity to the words of Brian Henry. 
In this House today it has been easy to run down the evidence and the credibility of both Owen Glenn and of course Brian Henry who is not here. The committee made no finding adverse to Brian Henry in its report and it does not behove any member of the House to do so today. The credibility of the Rt Hon Winston Peters has been challenged and the suggestion of his lying has been made. The process of the committee does not allow for exact and detailed examination of credibility in these issues. The committee lacked a prosecutor it lacked a clarification of charges and it was determined as we went along what evidence should be heard. So witnesses were recalled to rebut evidence that arose. Clearly in my submission the Standing Orders Committee should consider a process for establishing the inquisitorial role of the Privileges Committee in looking at issues as serious as these. 
But in conclusion I want to say simply that when one has an inference one can draw a conclusion to it. One cannot draw a conclusion if there is no evidence because one has no evidence. If the inferences lead to a conclusion that is the conclusion one follows; if they lead to two conclusions one can draw nothing from them. So the minority report stated that there was suspicion but not grounds to make a finding against the credibility of the Rt Hon Winston Peters.