Privilege — Disclosure of Select Committee Proceedings

I move, That the House take note of the report of the Privileges Committee on three questions of privilege concerning disclosure of select committee proceedings. The House has been asked to consider the report of the Privileges Committee on questions of privilege relating to the alleged unauthorised disclosure of proceedings of three select committees. Those select committees were the Law and Order Committee, the Primary Production Committee, and the Commerce Committee.

I turn first to the Law and Order Committee. The alleged disclosure was that an article in the Independent of 6 December 2000 disclosed—and this is from the report—that a vote had been taken by the Law and Order Committee against requiring the Director of the Serious Fraud Office to produce certain documents. The vote was taken in a closed committee meeting and had not, at the time of the article, been reported to the House. The Privileges Committee found that a breach of privilege had occurred, as the matter of the vote had been confidential to the Law and Order Committee.

The second matter relates to the Primary Production Committee. On 13 November 2002 the Independent newspaper disclosed, without authorisation from the select committee, the draft terms of reference of an inquiry. The committee had not determined, at that stage of publication, the final terms of reference, and the information was confidential to the committee at the time of the article’s publication. The Privileges Committee found that a breach of privilege in that case had occurred.

The third matter relates to the Commerce Committee. On 13 November 2002 the Independent published an article, in the same edition as the Primary Production Committee matter, that reported, accurately, on three options that the select committee was considering in confidence with regard to the Crown Minerals Amendment Bill before it. This too was determined to be a breach of privilege.

I quote from the report: “Under Standing Order 237 all committee proceedings except the hearing of evidence in public are confidential to the committee until the committee reports the item of business to the House. The two exceptions to this rule are: the referral of a report, on a confidential basis, to a third party for comment, and the committee agreeing to the chairperson informing the public about the nature of a committee’s consideration of a matter. Neither of these exceptions to Standing Order 237 applied to the questions of privilege described in this report.

“Standing Order 397(m) recognises that it is a contempt to divulge the proceedings of a select committee contrary to Standing Orders.”

The issue for the committee then, having found that there had been breaches in all three matters, was what, if anything, could be done about it. The first question that was before us was who disclosed the proceedings. No member of this House acted like George Washington and admitted chopping down the cherry tree. Nobody came and said: “I told a lie.” Further, no members of the relevant select committees were identified as having provided the newspaper with the information in the three articles. We maintained in the Privileges Committee, on behalf of this House, that the breaches of privilege are a serious matter. However, we appreciate that members of Parliament wish to debate more openly, particularly via the media, matters under select committee consideration. We believe that this should be allowed, and we believe that the select committee’s decision-making processes would be enhanced if they were able to be more open and transparent about the consideration of a matter.

The Privileges Committee in the previous Parliament, after considering the question of privilege relating to the disclosure of the proceedings of the Law and Order Committee, wrote to the Standing Orders Committee urging it to consider easing the restriction on the disclosure of select committee proceedings. This Privileges Committee of this Parliament endorses the views of the Privilege Committee in the 46th Parliament. We held that “members should be able to discuss outside select committee meetings a committee’s consideration and advice, and to participate in public debates on those matters without breaching Standing Order 237.”

The Privileges Committee asked that the Standing Orders Committee meet to progress its review of the Standing Orders. The view of the Privileges Committee is that the rules on disclosing select committee proceedings do require further consideration. For this reason, while we accepted that there were unauthorised disclosures of select committee proceedings, we recommended that no further action be taken on those three questions of privilege, and that the Standing Orders Committee consider amendments to Standing Order 237 to enable members of select committees to engage in more open discussion of select committee proceedings.

I just wish to endorse the point that has been made by the chairman of the Privileges Committee, and in particular these statements on page 5 of the report: “We prompt the Standing Orders Committee to meet soon to progress its review of Standing Orders.” The reason we have specifically said this, and put a degree of urgency on it, is that it is perfectly foreseeable that this kind of breach of privilege will occur in the future.

I think that everyone in this Parliament knows that members of select committees talk to the press. They like to have a dialogue about what is occurring in the committees they are members of, and often the line between what is confidential and still under consideration by the committee and what is public knowledge is difficult to draw.

I pick up on the reference in the Independent to “Duynhoven’s law”. It was not some sort of exposé article; it was simply a report to the readers of the Independent of the kinds of issues that the select committee was considering. As I said, it was not an exposé article that some might think could raise a question of privilege. One has to ask oneself why it would not be reasonable for the public to have some sense of what a committee is considering. Those are matters of legitimate public interest. Particularly in that situation, it would not lead to the curtailment of the dialogue between the executive and members of Parliament. It would be part of the process of developing public policy.

I want to stress to the House, and to the Standing Orders Committee in particular, that unless they deal with this issue with a reasonable degree of expedition, we can expect further issues of privilege to arise. Of course, the Speaker really has no choice but to apply the existing Standing Orders. If someone is clearly in breach, even if well intentioned, then clearly the matter has to be referred to the Privileges Committee. But the kind of report that will come out of the Privileges Committee is precisely the sort we are presenting today, which is to say, yes, a breach has occurred, but in fact our Standing Orders are wrong, and we urge the Standing Orders to be changed to enable the progress of our democracy.

It does perturb me that we have endorsed the views of the Privileges Committee from the 46th Parliament. I would like to think we are not going to have to issue another report like this urging further progress. So I make this submission to you, Mr Speaker, in your role as Chairman of the Standing Orders Committee, and ask you to deal with the issue with expedition, because in doing so you will be enhancing the quality of our democracy.

I did not expect to be spurred into addressing this report. However, I have heard two things that do so spur me, as a relatively junior member with 4½ years in the House. As I look at the seniority of the members of the Privileges Committee, I do this with a little bit of trepidation. I believe that this committee has completely dropped the ball. I do not know whether “noting a report” means that anything is done about it. I suspect that it is probably at the low end of the actions that may be taken in relation to a report. But this report is almost incapable of any action.

I was on the Law and Order Committee when the first complaint was laid. I helped draft the request to the Speaker. We all had a very clear idea of where the leak had come from. I believe that if we had been asked we would have been happy to say. Mr Robson, chairman of the committee, said that no George Washington had emerged. I think that George was actually asked. I think that in the story he was asked whether he had cut down the cherry tree. In this case, as far as I am aware, no member of that committee was asked who they thought might have done it.

By pure chance, I was at a meeting of the Privileges Committee when this matter was being considered as to how to deal with it. I have to say that I saw senior members in a very desultory manner searching for a way of doing nothing. They were fumbling around and trying to find some outsiders to bully—someone to write a fierce threatening letter to and make it look as though breaches of privilege were taken seriously. They were trying to think of those threats. There was no consciousness in the committee that the only rules that matter are the rules that people believe are enforced; that the only rules that matter are those that say what they mean and are made to mean what they say; and that they mean the same thing to everyone, irrespective of status.

A law, even in this House, should be no respecter of persons. I saw at the Privileges Committee members fumbling around, after 3 years of inaction, trying to find a way of burying this without embarrassment. It seemed to me that if the Privileges Committee is going to work like that it is not a good idea to allow newer members to come along. They might get too cynical, because once upon a time the Privileges Committee was described as the most fearsome court in the land. It was seen as the committee that gave Parliament the underpinning to its culture, and as a committee that embodied the respect that Parliament should have for process and its own rules.

I believe that this report is an absolute embarrassment. I recognise that the senior members are very busy, and that the Privileges Committee is the only committee—maybe the Standing Orders Committee too—that has so many very busy and very experienced members on it, and they probably leave much of the mechanical stuff to the chairman and the staff. The chairman should be very embarrassed to come forward with a purported report without any indication that they had even asked anyone, or even asked among members, who might have leaked information.

💬 Hon John Tamihere: Your leader was on it.

Yes, my leader was on it. They are all busy, and in fact a number of the leaders were not there the day I turned up. I think they usually delegate. The position is that Parliament, in my opinion, is being let down by the Privileges Committee not actually acting.

I turn now to the recommendations: “We endorse the views of the Privileges Committee in the 46th Parliament. We believe members should be able to discuss outside select committee meetings a committee’s consideration and advice, and to participate in public debates on those matters without breaching Standing Order 237.” Why did the committee not offer any sort of guidance as to the conditions of that? We all know that as soon as the processes are completely transparent, the select committees would be transformed into the charade that is often the process in this House—that is, members searching for the sound bite and posturing for the media, instead of genuinely exchanging the views that the current select committee process enables them to exchange without fear of a sentence or a phrase being dragged out of context, and used purely for political embarrassment.

The current confidentiality basis has a good sound reason. It does not need a great deal of change. It probably needed only some elaboration to suggest that members can at least talk to the media about their own position without disclosing the position of other members. In other words, the confidentiality that should not be breached is the confidentiality that attaches to the committee itself, not to a member’s own views. Instead, we get the Privileges Committee just uttering cant—this little statement here that makes them look as though they are all in favour of absolute transparency and accountability, without taking any account of the actual reason that confidentiality has been so important.

I am also concerned that no credit has been given to the Independent, which has been the most diligent searcher-out of some of these stories. The Privileges Committee should have been saying that no fault ought to be levelled. If parliamentarians do not get their house in order and do not obey the rules, the first target for Parliament should be the parliamentarians, not news media like the Independent, who at least take these proceedings seriously enough to want to report them, and who want to inform New Zealanders of the detail, the often boring detail, that lies behind what is going on. I think that in this case we have a feeble report. The motion is that the report be noted. If that is the lowest category of recognition that a report should get, then it is appropriate that we do that, but it is an embarrassment to this House.

Motion agreed to.