There's been a lot of nonsense around Russel Norman the past 24 hours, but one very serious question remains. And if the Prime Minister has reason to believe what he suggested, he should put up or shut up

Well, what a fuss. In the past 24 hours I've heard and seen reports of Greens' co-leader Russel Norman having "secret" meetings with Kim Dotcom, of him having a "brain fade" about said meetings and accusations – of a very serious nature – that he has been using parliamentary questions to favour a political ally. Surely, the man must step down.

At least, he should if these allegations were true and proven. But there doesn't seem to be any fire beneath all this smoke.

Did he have secret meetings with Kim Dotcom? Well, we know we met with the internet millionaire, because he said so publically days ago. So it was hardly news yesterday. We even already knew why Norman visited Dotcom and that the visit was political in nature – he didn't want Dotcom to set up a political party that could take votes off the Greens and, without a viable electorate candidate or much chance of getting 5 percent – waste them.

Is it so despicable for a politician to meet and strategise with another public figure? Rather, it's utterly run of the mill. And not secret.

Did he have a "brain fade" over those meetings? He couldn't remember what days the meetings where when asked on the bridge, but checked his diary and supplied the dates within two hours. That's hardly comparable to the Prime Minister misrememberings around the appointment of childhood friend (or acquaintance) Ian Fletcher or even David Shearer forgetting he had a large amount of money in an American bank account.

Finally, did he ask questions in parliament as a political favour? More specifically, did he ask quetions for a man facing serious charges in the New Zealand courts? That's a very serious allegation.

We all remember the cash-for-questions affair in Britain. MPs asked questions for the likes of Mohamed Fayed in return for money. They were either suspended or forced to step down and the rules of MP behaviour were changed.

John Key raised the prospect yesterday, pointing out that his office had been asked "hundreds" of questions about the internet millionaire and wondered who they were asking the questions for.

Now you might just put that down to political mischief. But if Key is going to make such a serious suggestion, surely it's incumbent on journalits who treat the Prime Minister seriously and ask what led him to make such a statement. Does he have evidence? Is the number of questions so out of kilter with others? He suggested that Dotcom got something "in return" for the Greens' commitment to refuse to extradite Dotcom to America to stand trial for his alleged internet piracy. Again, is there evidence?

Sure, Norman has opened himself to such an attack. We know that he met Dotcom and we know that the Greens have since said they would fight against any extradition. Asking if the two are linked is a reasonable question. But for the Prime Minister to specifically raise the possibility of parliamentary questions being the currency for trade, well, that would be a career-ending form of corruption by Norman and the Prime Minister should be willing to back up his words with substance.

Norman has put himself in this position by pre-empting the court and declaring how the Greens would respond should it find that Dotcom should be extradited. Cue the PM saying that Norman is willing to ride roughshod over our independent courts.

However, as Andrew Geddis explained two days ago, under the Extradition Act the Justice Minister is required to exercise her or his discretion when it comes to surrendering an alleged criminal to another country. Andrew wrote:

So the Minister can't ignore this discretion and surrender everyone that the courts say are eligible for extradition without any further thought. Because to do so would be to fail to comply with the Minister's obligations under the statute, meaning that the Minister's decision would inevitably be overturned by the court on the subsequent judicial review.

For me, Norman erred in declaring his intent before the court has ruled. It potentially puts pressure on the court. But a) it's hardly a surprising position given the Greens' consistent position on the Dotcom case and b) it doesn't step outside the law.

The lesson from all this is that Kim Dotcom is the political version of an electric fence – touch him and you get one hell of a jolt. But we also need to keep a sense of perspective on this. Now that we've got the secret meetings and brain fade nonsense done and dusted, I'd really like to know whether the Greens did strategise with Dotcom about what questions they might ask in the House and whether there was anything promised in return for those questions.

The first person to ask is John Key, as he presumably has a reason for suggesting that scenario. And while we're at it, can we clear up exactly how Key knew Peters had visited Dotcom's house three times? Because that's interesting... and so are Peters' visits.

Norman has told us exactly why he went. So why was Peters there?

 

Comments (16)

by Andrew Geddis on February 13, 2014
Andrew Geddis

He suggested that Dotcom got something "in return" for the Greens' commitment to refuse to extradite Dotcom to America to stand trial for his alleged internet piracy.


Shouldn't that be "suggested that Dotcom gave something "in return" for the Greens' commitment"?

For me, Norman erred in declaring his intent before the court has ruled. It potentially puts pressure on the court.

I don't know about this. Norman isn't in Government, so the conventions around preserving judicial independence don't apply as strictly (because ordinary MPs - even political party leaders - have far less capacity to take steps against the courts if they don't do what they want).

Also, the issue Norman was commenting on (the treatment of Dotcom by NZ authorities) is one that the courts don't have to consider in the extradition process ... if considered at all, it will be done by the Minister after the court's decision. So it's hard to see how Norman's view ("Dotcom shouldn't be sent because we've treated him badly") can influence the court when it looks to see whether Dotcom has been accused of a qualifying offence and that the right sorts of papers have been filed.

That said (and as I've said), coming out and bluntly saying "we won't extradite him" was silly. The decision is political in nature, but it's also legal ... so unless and until you've got all the advice on the question (including NZ's obligations under international law, by virtue of the Treaty we've signed up to with the US), it's best to do a Cunliffe.

by Fentex on February 13, 2014
Fentex

For me, Norman erred in declaring his intent before the court has ruled. It potentially puts pressure on the court

As a political play it was foolish for it gifted ammunition to opponents. I imagine that apart from any personal opinion Norman thoyght it's be a bit populous to stand up to the man, but I think he misread that. Most New Zealanders, the average voter, don't much like messing with courts and will likely shy from populous opinions that sound like messing with them - subtle distinctions in the matter passing through reporting  being too much to ask.

by Ross on February 13, 2014
Ross

That said (and as I've said), coming out and bluntly saying "we won't extradite him" was silly. The decision is political in nature, but it's also legal..

Well, that's exactly what Norman said, that there was a legal process to follow. You seem to agree with him.

by Tim Watkin on February 13, 2014
Tim Watkin

No, not in government, Andrew. But only months from an election after which he hopes to wield considerable power. Perhaps I should have written ''appears to put pressure on the court' - but it's incumbent on political leaders not to comment on the outcome of cases, much like journalists aren't allowed to influence courts by declaring potential outcomes before the court has ruled... isn't it?

But as Fentex said, it's as much a political faux-pas. I think the rest of the fuss around him not knowing the dates etc is just silly. But if you opine on a court case that involves a political contact - a contact you've met with recently on political matters - you've got to expect eyebrows to be raised at least.

by Tim Watkin on February 13, 2014
Tim Watkin

But Ross, he also gave an opinion on how that legal process should end... better if he had just said 'the govt has acted illegally, but the matter's before the court and we'll wait to see what it comes up with'.

by Andrew Geddis on February 13, 2014
Andrew Geddis

... but it's incumbent on political leaders not to comment on the outcome of cases, much like journalists aren't allowed to influence courts by declaring potential outcomes before the court has ruled... isn't it?

Really? Someone should have told me you're not allowed to "declare potential outcomes before the court has ruled" before I put up this post (or this post, for that matter). Or does that "rule" not apply to mere bloggers?

We need to separate out a couple of things. First, there is the issue of "contempt of court". Anyone who writes things that may prejudice someone's right to a fair trial may be guilty of this - which is why journalists generally don't speculate on the likely outcome of criminal trials in advance of the verdict (least members of the jury read this and be influenced by it). But this isn't an issue for the sort of proceeding involved in Dotcom's extradition, for a couple of reasons. First, the judge deciding the issue really isn't going to be swayed one way or another by people saying "he ought to be kicked over to the US" or "he shouldn't be kicked over to the US". Second, even if they could possibly influence the judge (which they won't), Norman's comments wouldn't threaten Dotcom's right to a fair trial on the extradition issue (and it is the defendant's rights we are most concerned with here).

So any issue with Norman is a "separation of powers" one - that members of the different branches of government shouldn't step on to each others' turf. This is especially important in relation to the executive and the judiciary (because the executive branch ultimately controls the purse strings that pay for the courts, and so the risk of being actually able to influence the judiciary's actions is greater). But members of Parliament also should be somewhat careful about how they discuss judicial matters, and in particular avoid attacking the courts for what they decide.

My personal take on Norman's comments is that they don't really go to the judicial aspect of Dotcom's case at all. They are focused on the post-court, political decision (which is still partly legal, but not judicial in nature). His mistake (if he has made any) is in making those views so clear that it may be difficult for his party to take part in that decision without risking it being challenged by his (and Dotcom's) enemies. The whole "but he might influence the court" angle is a smokescreen.

by Ross on February 13, 2014
Ross

But Ross, he also gave an opinion on how that legal process should end

Well, he gave his opinion as to what he'd like to see happen. But he was also mindful that there was a process to follow and that might not favour Dotcom.

by Tim Watkin on February 13, 2014
Tim Watkin

You make a good case, Andrew. At first blush I'd simply applied the rule, as you say, that one doesn't speculate on the outcome of a case lest you influence that outcome. That is true for journalists, but more true for politicians given the 'separation of powers' argument you make. (It seems to me the two arguments are tied up together. Can you really separate the issue of influence and pressure with the issue of power separation? Because the reason politicians don't comment on rulings and judges is so that they don't have influence or power over them).

You talk about contempt as a way of influencing a jury and say that a judge wouldn't be influenced. But a journalist can still be done for contempt regardless of whether any case is before a jury or judge. So the law assumes that - while it's less likely - judges can still be swayed.

So if the law frowns on journalists possibly influencing judges in a criminal case, wouldn't it also frown on politicians influencing judges in an extradition case on the same principle? 

The practical influence - that a judge might not order an extradition because he/she thinks a future government is likely to over-rule it anyway or order it out of anti-politician bloody-mindedness - seems slim, but y'know we're talking about principle...

by Morgan Murrah on February 13, 2014
Morgan Murrah

Thank you both Geddis and Watkin for your informed analysis/engagement with this issue.

I wanted to return to a comment by Fentex that this is particularly a faux-pax - "Most New Zealanders, the average voter, don't much like messing with courts and will likely shy from populous opinions that sound like messing with them - subtle distinctions in the matter passing through reporting being too much to ask.".

I really don't think you have given much thought to this in this particular case, as to whether its a populist issue or not. If you really want to make an appeal to the average Kiwi voter, Anti-Americanism is a re-ignited cultural 3rd rail in this country for some legitimate and bad reasons. This is also the case in many not-so-Green quarters by the the USA's dogged attachment to agricultural subsidies which hits close to home as well to a free internet/ecommerce with regards to the Snowden revelations. The GCSB legislation was polled consistently across even rural as unpopular. Many commentators have also pointed out this guilt-by-association smear tactic stuff in relation to purely meeting with Dotcom is something they expected of American politics.

If the average Kiwi knows vaguely who Dotcom is and what the GCSB did in relation to him they often quickly boil it down to the USA saying 'jump' and a class of New Zealanders with privileged interests rushing to say 'how high'. This is often stated in crude language by describing NZ as a female dog to the USA. I have heard this basic line from dozens of people at pubs and among many people who vote national but are otherwise barely political.

It is hard to say they are wrong. New Zealand quite apparently threw legal due process out the window and demonstrated just how venal it can be as soon as some US pressure is exterted and someone vaguely important was involved. So much for a wonderful amount of transparency and lack of corruption in NZ: it just makes many wonder whether we have these rankings because we rarely have major 'things' to fumble. It also makes many wonder how things would turn out for people who can't afford great lawyers like Dotcom can, heightening distrust of Govt and perceptions of privileged justice.

Anyways, this was a bit of a rant, but this is undeniably a part of a big populist issue outside of the chattering/political classes. It is in crude terms an opportunity to thumb ones nose at the USA. How much actual weight this would have on how peoples votes I don't know.


by Tim Watkin on February 13, 2014
Tim Watkin

Interesing to see Key saying how he knew about Peters' visits. As Stuff reports it:

Key today refused to say how he knew of Peters' visits but said it was not through official security channels.

"I can absolutely categorically tell you it's got nothing to do with an official agency. From time to time people see things and from time to time people tell me."

The person who told him was not aligned with the National party or any government agency.

"...I was pretty sure they'd be right because they often are and guess what, they were".

What a fascinating answer. Dotcom's mansion is in Key's electorate so, while he doesn't live there, he'd have good eyes and ears through his electorate office there.

From his words we can deduce that a) it wasn't a spy (which would be illegal and therefore highly unlikely), b) he wants us to believe that an ordinary person is watching Dotcom's premises sufficiently to have observed three separate visits, recognised Peters or Peters' car each time and was confident they didn't miss a 4th or 5th. Is this what Coatesville people do for fun?! Or could it be a Dotcom staff member or pal who heard it from him? And c) that Key was making a guess when he made the claim. All very curious.

Thing is, having claimed the importance of privacy in this matter, Peters can hardly demand that Key reveal who was watching him? That's be hypocritical. On the other hand, Key started this saying "I've been transparent. Can they be?" So it'd be hypocritical for him not to be transparent about how he knows these things.

Such fun.

by Ross on February 13, 2014
Ross

Interesing to see Key saying how he knew about Peters' visits.

Maybe Key reads the Herald, or someone told him about Peters' visits from reading the Herald...alas the truth is typically rather boring.

by Andrew Osborn on February 14, 2014
Andrew Osborn

There is the purely legalistic perspective but then there is the blatant hypocrisy of it all:

Both Peters and the Greens regularly grandstand over deals supposedly done in smoky backrooms or over cups of tea.

Seems it doesn't apply to them.

 

by Ken on February 14, 2014
Ken

In no way does this compare to Key making a farce of the tendering process to cut a dirty deal with SkyCity.

by Ross on February 14, 2014
Ross

Both Peters and the Greens regularly grandstand over deals supposedly done in smoky backrooms or over cups of tea.

There's no evidence any deals have been done here.

by Andrew Osborn on February 15, 2014
Andrew Osborn

Ken: In no way does this compare to Key making a farce of the tendering process to cut a dirty deal with SkyCity.

Agreed. Negotiating with a convicted felon to pervert an ongoing legal process in order to secure votes would appear to be infinitely worse, if indeed it is the case. But if it's not the case then why did he visit him?

by Ken on February 17, 2014
Ken

Perhaps you should read the blog post you are commenting on.

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