Nash dug his proverbial grave last Wednesday by referencing the call with Coster while talking about the need for appropriate punishments for offenders during an interview on Newstalk ZB.
“I’ve seen a couple of judgments, and actually one I phoned up the Police Commissioner and said ‘surely you’re going to appeal this?’” Nash said.
“This bloke didn’t have a licence, had illegal firearms, had illegal ammunition and had guns without a licence and he got home detention, I think that was a terrible decision by the judge.”
On Thursday, a “second strike” was revealed by Newstalk ZB: A 2020 incident where Attorney-General David Parker considered contempt charges after comments Nash made on the Mike Hosking Breakfast show after the arrest of Eli Epiha in the case of the killing of Police Constable Matthew Hunt. Nash told Hosking he had said to Coster that surely police would appeal the sentence.
Three days later, Nash was demoted to the lowest Cabinet rank of 20th after it emerged that in September last year he approached an MBIE official about an immigration case involving a health professional - his so-called “third strike”.
Slamming judges a no-no
It’s of constitutional importance not to criticise the judiciary for fear of undermining the separation of powers. Independence of judges is secured by constitutional conventions that prevent ministers from directing the judiciary. Parliament directs the judiciary only through legislation.
It’s also prescribed in the Cabinet Manual, which says ministers must exercise prudent judgment before commenting on judicial decisions - either generally or in relation to the specifics of a case. If that isn’t black and white, I don’t know what is.
Jibes at judges and potential conflict of interest aside, you have to hope Nash’s comments weren’t included in the media briefing leading up to the live interview. Supposing Nash went rogue, my heart truly goes out to the media advisers involved in Nash’s unravelling.
No definition of non-financial conflicts of interest
Nash was not Police Minister at the time of the chit-chat with Coster and Prime Minister Chris Hipkins wasn’t aware of the call when Nash was appointed Police Minister. Nash also promised Hipkins he had no connection to the 2021 case and it was the only occasion he had spoken to Coster in that manner.
Should Nash have declared his existing ties before being made Police Minister, and what exactly is a conflict of interest?
Parliament’s Standing Orders, and the MPs’ Code of Conduct, guide MP conduct and behaviour. While the Standing Orders outline declaring pecuniary and other specified interests in relation to financial benefits, there’s no definition or reference to managing non-financial conflicts of interest.
According to David McGee’s Parliamentary Practice in New Zealand, the Cabinet Office supports ministers in identifying and managing conflicts of interest that may arise in relation to their portfolios or other ministerial responsibilities.
“Ministers are expected to identify and review possible conflicts proactively, and address actual conflicts promptly.
“Ministers are expected to act lawfully and to behave in a way that upholds, and is seen to uphold, the highest ethical standards. Ultimately, ministers are accountable to the Prime Minister for their behaviour.”
What the Cabinet Manual says
The Cabinet Manual 2017 requires ministers to consider all types of personal interests that may conflict with, or be perceived to conflict with, their ministerial responsibilities.
It clearly states a conflict may arise when people close to the minister, such as close associates (and here I think a “mate” would qualify) might derive or be perceived as deriving some benefit from a decision or action by the minister.
The rules specify it’s not appropriate for ministers to participate in decision-making on matters affecting close associates.
The manual clearly states ministers must ensure any conflicts are addressed promptly by informing the Cabinet secretary, and the Prime Minister if said interests are of particular concern. The result? Nash would have been stripped of his ministerial duties or given the boot entirely.
Where do you draw the line?
If the onus is on the minister to declare said interest, what’s the definition of close associate? Would a friend on Facebook qualify as a close associate? Did I meet - in the loosest sense of the word - Lorde at a party once and now we’re “mates” as far as I’m concerned? Yes.
Where do you draw the line between giving a list of former lovers, buddies, and fellow hall of residence dwellers to the powers that be and undermining the transparency needed to perform your role as representatives of the public?
In this context, it’s not so much about benefiting the Police Commissioner but a potential abuse of power - even in Nash’s capacity as Tourism Minister. He was an MP - a decision maker - and lobbying for change without following due process.
Also, isn’t this back-door wheeling and dealing the very reason why we have the Official Information Act?
And how on earth did we have a police minister who didn’t know the nature of how the justice system works, its processes, and constitutional independence?
Tip of the iceberg?
The other elephant in the room is with conflict-of-interest cases involving Rob Campbell and Barbara Kuriger in recent times. One must ask the question: Is the current regulatory framework fit for purpose?
If the default position is conflicts are inevitable due to the small size of the country as opposed to accountability, then I suspect this is just the tip of the iceberg.
