Former cabinet minister Stuart Nash. Photo: RNZ / Samuel Rillstone
Analysis - When is a cabinet minister not a cabinet minister? The faulty logic of Stuart Nash has landed him and Labour in a heap of trouble but opened the door to serious reform of the Official Information Act.
As the Stuart Nash email brouhaha has unfolded this week, and we've learnt more about how an email to donors was withheld from public view, I've kept being reminded of the classic example of faulty logic. You know the one: "All dogs have four legs, all dogs are animals, therefore all animals have four legs."
It feels like this week's politics call for a new version. Something like:
"All cabinet ministers are MPs, all MPs need donors to run election campaigns, cabinet ministers don't run election campaigns MPs do, therefore Stuart Nash is not a cabinet minister."
I enjoy the irony that the faulty deductive logic in this case leads to a truth: Because of these donors and the email, Nash was sacked and is not a cabinet minister. While I confess it's more than a little tortured, so was the thinking that led to Nash and members of the PM's office deciding that an email to Nash's donors revealing what went on in a cabinet meeting was outside the scope of an Official Information Act (OIA) request. Tortured to the point of incredulity.
Newsroom had sent a request under the OIA in June 2021, asking for "All written correspondence and details of the nature and substance of any other communication since the start of 2020" between Nash and 19 of his political donors.
So, Nash's office talks to the PM's office and decides his emails to his donors were out of scope for the request. The OIA only covers ministers and government agencies, not humble electorate MPs. And the logic applied by Nash and his office is that donors only have a relationship with MPs trying to win electorate seats. Whether that MP becomes a cabinet minister is neither here nor there and not something the MP can control.
Except there are obviously two glaring flaws in that logic. First, it's fair to say that while many donors undoubtedly give money to grease the wheels of democracy, many also seek some level of influence and insight from their donation. Pure altruism is a rare thing indeed.
Second - and more obviously - Nash could only write what he did in that email because he was a cabinet minister.
Nash wrote to donors Troy Bowker and Greg Loveridge in June 2020 to tell them about a debate in cabinet over temporary amendments to the Property Law Act. This was in the midst of Covid and cabinet was deciding which businesses would get rent relief. Cabinet decided to limit the amendment and eligibility to a $40 million arbitration fund to businesses with 20 or fewer full-time staff.
Nash told Bowker and Loveridge he was "annoyed and surprised" to have "lost this argument" to the likes of David Parker, Winston Peters and Shane Jones for a wider rent relief package. Cabinet deliberations are meant to be confidential so that governments can have full and frank debates but still speak as one ruling body.
It's important to note Nash's email went to Bowker and Loveridge on 5 June, the day after Labour announced its policy.
So they didn't get information in advance. They just got the context, the who said what and why stuff.
But it's also noteworthy that this isn't just cabinet gossip to any old donors; these are big players in rental property. Loveridge is managing director of Robert Jones Holdings, "New Zealand's largest private CBD office building owner", according to its website. And yes, he's the former cricket international spin bowler.
Bowker is the executive chair of Caniwi Capital, a Wellington investment firm that "operates a private equity fund and a commercial property fund". He's released a statement saying all his commercial rental negotiations due to Covid had been done before he received the email, so he got "no benefit whatsoever" from the knowledge.
For a bit more context, you might remember that just a few weeks after this OIA refusal, Nash distanced himself from Bowker and said he wouldn't take any more donations from him, when the businessman got into a Twitter spat with Sir Ian Taylor. Bowker accused Sir Ian of "sucking up to the left Māori-loving agenda" and "worshipping Māori" while disrespecting his European ancestors. Bowker, in his statement this week, pointed out he didn't donate to Nash "after the 2020 election" as he no longer trusted the Labour government.
Any cabinet minister should have been aware that telling commercial property investors about confidential cabinet discussions on commercial property was, as Prime Minister Chris Hipkins put it this week, "unacceptable". Donors shouldn't get access to information kept secret from other citizens. It's as simple as that.
Indeed, the whole point of the OIA is that secrets are not kept from citizens. One of its key goals is to increase the availability of official information to the people of New Zealand.
That's why Ombudsman Peter Boshier is right to have reopened his investigation into this release. When Nash rejected Newsroom's request, Newsroom appealed the decision to the Ombudsman, but Nash told the Ombudsman's office what he told Newsroom: this email was in his capacity as an MP, not a minister. Out of scope. Nobody else's business.
This is where the jeopardy for Nash remains because failing to release documents that are in scope of a request is an offence under the OIA. And if the Ombudsman feels he's been misled, well, he's unlikely to be very impressed. After some predecessors who seemed more interested in protecting officials than transparency, Boshier has developed a reputation as a champion of more daylight.
Nash has already put his own prime minister in the embarrassing position of having to walk back his statement earlier this week that, "my understanding is that it [the email] just wasn't within the scope of the request". So the Ombudsman's decision will be a big deal to all involved.
And so it should, because here's the vital bit. This official information we're talking about, including the information Newsroom was asking for, is public information. It doesn't belong to the government, to officials or to any political party. It is paid for by taxpayers, created in the interests of all citizens and belongs to us all. Too many in Wellington seem to have forgotten this.
Given the seriousness of this review, it may be an opportunity for Boshier to pressure our tardy politicians into some actual action on the OIA. Maybe key principle that "the information shall be made available unless there is good reason for withholding it" should refer to a "good reason in the public interest". Maybe the Ombudsman might press for more urgency in answering OIA requests, noting that they are meant to be answered as quickly as possible and in no more than 20 working days, yet the timeline shows Nash emailing the PM's office about Newsroom's request 38 working days after it arrived. There are many reforms he could urge.
The ball's in Boshier's court. Given Hipkins is on the record saying there's a "culture of game playing" within the public service around the OIA and that the law needs "more teeth", this may be a golden opportunity to press for that extra bite.
It's hard to see how Nash's decision to reveal the deliberations of cabinet to donors does not involve his work as a minister, so it's safe to assume this story is not over yet.
That faulty deductive logic could yet change again to end, "therefore Stuart Nash is no longer an MP".
* Tim Watkin is a founder of political news website Pundit, has a long career in journalism and broadcasting, and now runs the Podcast team at RNZ.
This essay originally appeared on the Pundit website
