Winston Peters claims complete exoneration, but the idea the fundraising activities of the NZ First Foundation are unlinked to the party just won’t wash, writes electoral law expert Andrew Geddis.

The Serious Fraud Office’s announcement that it has charged two people with “obtaining by deception” after its investigation into the New Zealand First Foundation is both really big news and also pretty unsurprising.

It’s big news because we’re only days away from voting opening in the 2020 election, and criminal charges have been laid in relation to the operation of a fundraising vehicle used by the party of the country’s deputy prime minister. Sure, that party may be languishing at 1% in the most recent poll and appeared to have little-to-no chance of returning to parliament even before this news broke, but it’s still an unprecedented development for New Zealand politics.

At the same time, however, anyone who has had a close look at how this NZ First Foundation was operating knew that big trouble was coming down the tracks. The Electoral Commission concluded that it had failed to handle donations in accordance with electoral law. The burning question then was, had anyone involved with it committed any  prosecutable offences? And the length of time that the SFO was looking at that issue shortened the odds considerably in favour of an affirmative answer to that question.

We can’t really comment on that question at the moment, as the two defendants have name suppression. But what we do know is that they are not “a minister, sitting MP, or candidate in the upcoming election (or a member of their staff), or a current member of the New Zealand First Party”. Does that then mean that, as Winston Peters claims, the NZ First party has been “exonerated” by the SFO’s charging decision?

If it has been, then the NZ First party has a funny way of showing it. Because it turns out that it has spent the last few days fighting furiously in the courts to stop the SFO from announcing its charging decision to the public. Those cases rightly failed – but if Winston Peters really is so happy that “after months of this cloud hanging over the party … we have been fully cleared”, why exactly was he trying so hard to stop the public finding out that this is the case?

Of course, Winston Peters also is claiming that he is being “Comeyed” by the SFO; trying to liken its charging decision to former FBI head James Comey’s announcement in 2016 that Hillary Clinton was being investigated for misuse of her email system. To which I give a hard eye-roll. Comey’s announcement was that an investigation was merely being started – one that ultimately led to no charges at all (because there was no evidence of any wrongdoing). The SFO’s announcement is that it has now found enough evidence to justify bringing quite serious criminal charges against individuals.

And what was the SFO really meant to do once it had done so? Sit on the information even as people go out and vote, then tell them about it after the results are announced? How relaxed do you think the public would be about that happening – especially if NZ First was returned to parliament, much less holding the balance of political power?

So, Winston Peters can vent and moan about the SFO if he really wants. He can even file a somewhat curious looking claim alleging that the organisation has acted in breach of some nebulous statutory duty. That’s a classic attack-the-messenger tactic, with offence being the best form of defence and distraction being the name of the game.

And what it is aimed at is moving eyes away from the fact that the NZ First Party board agreed to set up an entity – the NZ First Foundation – specifically to take in money to help the party. That entity then raised hundreds-of-thousands of dollars in donations apparently without following the rules set out in the Electoral Act. It then used that money to pay for a whole variety of things connected to NZ First.

As a result of this fundraising and spending practice, two people now are facing quite serious criminal charges. To say this then has nothing to do with the NZ First Party, or that the SFO somehow is to blame for pressing charges based on the evidence it has obtained, is arrant nonsense. This is a bed Winston Peters and his party made. And it’s their fault if it turned out to be one made of nails.