COMMENT:

The bad news is that Winston Peters is in effect suing you and me.

According to NZ First insiders, Peters' move to sue the government over the leaking of his private superannuation overpayment was timed for the very moment Jacinda Ardern's plane left Wellington on Monday to take her back to Auckland to put her feet up for a few days before giving birth.

Along with NZ First's decision to defend Act's three-strikes legislation, it was designed to assert Peters' authority as Acting Prime Minister over both ministers and the bureaucracy.
Peters' lawsuit will cost taxpayers a small fortune.

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The defendants are the head of the public service, State Services Commission (SSC) chief Peter Hughes; Ministry of Social Development (MSD) head Brendan Boyle; and their former ministers Paula Bennett and Anne Tolley.

The Crown Law Office will represent all four and any damages will also be picked up by taxpayers.

Still, however unusual Peters' move, it will be justified if it finally checks the "no surprises" rule that successive governments have corrupted far beyond its original intention.

The rule was established informally in the 1980s and 1990s when former government departments were being turned into independent Crown entities such as Richard Prebble's State-Owned Enterprises and Simon Upton's Crown Health Enterprises.

The idea was that if they wanted to sell a major asset, shut down a service, close a hospital or issue a major new contract they should be able to do so, free of ministerial interference, but should also let the Beehive know a day or so in advance as a courtesy.

The free-market, small-government ideologues who invented the rule were initially true to their word.

They genuinely wanted the private-sector executives brought in to run such organisations to make difficult decisions while putting distance between themselves and anything controversial.

The arrangement developed through the 1990s to include more agencies and more topics, including the release by departments of official information as required by law. Generally, though, ministers respected that "no surprises" was limited to just that.

At worst, the Beehive tried to manipulate the timing and manner of unpopular bureaucratic announcements while still respecting the integrity of the decision itself.
Everything changed through the more political Clark and Key years.

In the 2000s, "no surprises" became formally part of the semi-constitutional Cabinet Manual that outlines how ministers and the bureaucracy should interact.

Beehive staffers straight out of Labour Youth or the Young Nats began to contest departmental lawyers' decisions about what the Official Information Act required of the bureaucracy. More activist ministers would try to interfere with the actual decisions before they became public.

A perfectly sensible "no surprises" arrangement began to evolve into a potentially unlawful veto power.

Worse, bureaucrats decided that career-wise it was safer and even advantageous to hand over ever-more information to ministers and their staffers.

Scuttlebutt that could damage the government's political opponents was passed on with the cover story that the minister should know because it would become a political story if the information began to circulate.

Not surprisingly, it then often did.

The alleged hit job on Peters is hopefully the nadir.

The Cabinet Manual states that the "no surprises" rule applies to "matters of significance within [minister's] portfolio responsibilities".

Under what reading did Boyle conclude the overpayment of superannuation to an elderly gentleman – no matter how politically prominent – was a matter of significance within Tolley's portfolio responsibilities?

If it didn't merit prosecuting Peters, it certainly wasn't worth briefing the minister.

Even more inexplicable was Hughes telling Bennett that the SSC had been asked by MSD whether the "no surprises" rule applied to Peters' situation. How on earth did Hughes conclude such an inquiry to the SSC was a matter of significance within Bennett's portfolio responsibilities?

That this occurred during an election campaign makes their actions more not less astounding.

Tolley and Bennett adamantly deny they misused the information given to them, which would make them better people than I am.

Were I a minister given such information about an opponent during an election campaign, I would leak it immediately. Any fault in this affair ultimately lies with obsequious bureaucrats not campaign-obsessed politicians.

Peters could have fixed this decades-in-the-making scandal by sending a memo as Acting Prime Minister to all departments limiting the scope of the rule, but that would lack his desired drama.

His way will cost the taxpayer more but is a small price to pay if it stops the passing of tax, welfare, police, health, education or other personal information to the Beehive and limits the "no surprises" rule to the purpose originally intended.