Privilege — Question of Privilege Concerning the Agreements for Policing, Execution of Search Warrants, and Collection and Retention of Information by the NZSIS

I move, That the House take note of the interim report of the Privileges Committee on a question of privilege concerning the agreements for policing, execution of search warrants, and collection and retention of information by the NZSIS. I emphasise that it is an interim report.

As is well known, the Speaker, on behalf of all members of this House, exercises control over the parliamentary precincts, and the reason for that is to ensure that the House can properly function as a legislature on behalf of the people. Over the years, various Speakers have signed up to three agreements. I will briefly refer to them but then focus, in particular, on one of them.

The first was when former Speaker Jonathan Hunt signed an agreement with the Commissioner of Police on policing functions within the parliamentary precinct. That followed an examination of a draft agreement by the Privileges Committee, and that agreement was revised and signed in 2007.

The second one I wish to refer to is that in 2006 the then Speaker, Margaret Wilson, presented an agreement to the House. It was one that she had entered into with the Commissioner of Police, setting out some interim procedures for the execution of search warrants on premises that were occupied by members of Parliament. That was very much an interim agreement. It could not be finally resolved until the prosecution of and all the appeals relating to Mr Field had been dealt with. A final order in relation to that former member was made on 3 September 2012, and it was that order that concluded those proceedings.

The third agreement was that in 2010 the former Speaker Sir Lockwood Smith entered into a memorandum of understanding with the New Zealand Security Intelligence Service and the Minister in charge of the service on the collection and retention of information on members of Parliament.

Last year, in September 2012, the Speaker referred those three agreements to the Privileges Committee and asked that it take a good look at them as they involved questions of privilege. This is an interim report, because in the last couple of weeks some amendments to security legislation have been introduced and those matters are currently being considered by the Intelligence and Security Committee of Parliament.

The critical issue that has arisen is in relation to the proposed amendments dealing with oversight capability of the Inspector-General of Intelligence and Security. The committee took a good look at those proposed amendments and thought there was an issue that arose about whether or not they provided clearly for oversight of the intelligence agencies in circumstances where a person such as the Speaker may wish to complain to the Inspector-General on behalf of members of Parliament—that is, the House of Representatives; not a particular person within the House but on behalf of the House of Representatives—that it had been or may be affected adversely by the actions or procedures of the intelligence services.

So it is a very limited inquiry, unlike the previous report that we have been discussing this afternoon. It focuses on those amendments, and suggests that the issue of oversight in relation to a person such as the Speaker in the circumstances I have outlined could, in fact, be looked at by the Intelligence and Security Committee to determine whether some tweaking of some of the clauses of that legislation is required. That is all this report deals with. The other substantive matters in relation to the three agreements that I have referred to will be the subject of a separate report to Parliament in due course.

Thank you for the opportunity to make some remarks on this interim report of the Privileges Committee on a question of privilege concerning the agreements for policing, execution of search warrants, and collection and retention of information by the New Zealand SIS.

The first point I want to pick up is the Attorney-General’s comment that it is an interim report. I understand that the reasoning for that is the desire of the Privileges Committee to ensure that the Intelligence and Security Committee had the advantage of having this information in front of it. When it comes time to deal with the full report and assess that, I believe that there are a number of quite serious questions to answer here. I absolutely acknowledge the point that the Attorney-General has made that there have been agreements entered into over a period of time by Speakers with agencies that may have the ability to come in and demand things of members of Parliament. It is important to put on the record of Parliament the fact that we must jealously guard the rights and privileges that are afforded to us. We have already, in the earlier debate on the report of the Privileges Committee on a question of privilege concerning a defamation action, had this discussion that perhaps the phrase “parliamentary privilege” does not encompass exactly what it is that we are talking about here.

An awful lot is invested in the early days when you become a member of Parliament—and we are about to hear from two new members who are about to enter into the fray here—and it is made very clear to us when we go through the pomp and ceremony at the start of each Parliament how the privileges afforded to MPs are gained. The Speaker takes a trip to Government House, and there is a communication about that. It is a very important right of parliamentarians to be able to represent their constituents and to be able to undertake those conversations on behalf of their constituents, knowing that they have protection in doing that. Any notion of coercion or anything like that around these matters is something that we must be very, very concerned about. So I respect the agreements that Speakers have made that govern their arrangements for the police and for the SIS in the execution of their warrants.

The first and main point I want to make on that is that what I see through those agreements and, indeed, in what is discussed in this interim report, is a very large weight upon the Speaker to be the person who acts on behalf of members of Parliament as to whether or not they are sufficiently protected and whether or not the interest of the SIS or any other agency in them is justified. I do believe that we are investing in the Speaker a significant power, but also the pressure that may be on that individual is, I think, extremely difficult. We are talking about highly politicised situations here, and I do not believe we should enter into this area without considerable thought. That is actually a matter for the final report on this particular issue, but I do think we as a Parliament need to give some thought to whether or not the Speaker needs wider support around that kind of decision. Should, for instance, there be some form of code or some general principles to which the Speaker looks when making decisions about whether or not warrants are justified—whether or not members of Parliament can be included within that? I have significant concerns about what threshold would need to be passed for it to be right and proper for the SIS to be monitoring or looking into the activities of a member of Parliament. That must be an extremely high threshold if it is to be justifiable. I think this Parliament needs to look very closely indeed when it comes to the final report at whether or not we believe we as parliamentarians have sufficient protection from undue attention from those investigating agencies. Various Speakers have made their decisions on that. I accept that. I understand that that is the process that we are under at the moment, but I do think we need to tread very warily indeed in those areas.

The second matter that I want to talk about is the matter for which this interim report has been created. That is because currently the Intelligence and Security Committee is considering the Government Communications Security Bureau and Related Legislation Amendment Bill. At the outset I want to say that the Labour Party opposes that legislation. We believe that that legislation is a band-aid attempt to cover over what has been going wrong in the Government Communications Security Bureau in recent times, the lax oversight of the Prime Minister as the Minister responsible for the bureau, and the fact that we have never gotten to the bottom of the Kim Dotcom case or, indeed, of many other activities that have now been revealed that the bureau is involved in.

We have a report from the Inspector-General of Intelligence and Security that tells us that there are a number of cases in which it is arguable that the spying undertaken on New Zealanders was legal—arguable that it was legal. Presumably, that means that it is also arguable that it was illegal. That is the situation we are now left with. The Government is determinedly rushing through legislation—I think submissions on that legislation close tomorrow—and there has not been sufficient time, in the view of the Labour Party, for submissions to be properly heard on this legislation. We are strongly of the view that there needs to be an independent inquiry into the activities of our intelligence agencies. I have to say that seeing this matter being referred by the Privileges Committee to the Intelligence and Security Committee only adds to that concern, because we do believe that the issues that have been raised on this in the committee are important.

A matter that appears specifically in the interim report is around the question of whether or not extending the powers of the Government Communications Security Bureau—which is what the legislation in front of the Intelligence and Security Committee does—means that effectively the bureau could end up in the position of monitoring the activities of MPs. That has not been foreseen until now. It represents a very significant example of the extension of the powers. This report deals with the matter of the oversight of the execution of those powers, so it deals with whether or not as MPs we have the ability to complain to the Inspector-General about what oversight the Inspector-General might have over any complaint that an MP might make. But I think it is very important to go back to the root cause of that, and the root cause of that is the extension of the powers of the bureau, and we have not, in my view, had sufficient time, or time for the depth of study required, to actually look at whether or not that is justifiable.

Certainly, one of the concerns that this side of the House has had—and it has been a very topical issue in recent days—is that the bureau is part of a wider international network. Information collected by the bureau, as it is by the other partners in the Five Eyes network, then becomes part of a pool of information that other countries can access. It would be a concern, I would think, if that information about MPs, as an example, was able to be accessed by foreign intelligence agencies, and that is the kind of issue that we need to investigate within a wider review. At the moment we have a piece of legislation about the Government Communications Security Bureau going through. Here we have a Privileges Committee report that is actually about the SIS and the police, yet the bureau, through that legislation that is front of the Intelligence and Security Committee, may well end up helping the SIS or the police in the execution of their work. So it is an extremely tricky area.

I am glad that the Privileges Committee has referred this to the Intelligence and Security Committee, but it has referred only one element of the issue: the element of oversight. I believe that the Intelligence and Security Committee needs to think about the privileges of MPs within the context of the whole legislation and the extension of the powers of the Government Communications Security Bureau. The Government should not be rushing that legislation through. We should have an independent inquiry into all our intelligence agencies, at which point we would be able to see where MPs fit in. I am, however, glad that this interim report will find its way to the committee.

In the interests of the procedure of the House, I will be very brief indeed. I just say that the Green Party is prepared to support this recommendation of the Privileges Committee, of which I am a member, on the interim report on the question of privilege concerning the three agreements. We support the recommendation made to the House, but on the understanding that it in no way prejudices the Green Party position in respect of the issues at stake that will, no doubt, come out in the final report. It will not be lost on members that at least part of the genesis for this inquiry and the final report is occasioned by a complaint laid by a member of the Green caucus in the 49th Parliament, and the Green Party has its views on this matter.

There is a huge difference between the nature of the issue that we have discussed in the previous item, Attorney-General and Gow v Leigh, where the relationship between the judiciary and the legislature have two large searchlights mutually shining on each other and there is a fair bit of transparency in that relationship, and this case, where the relationship between the two identities, you might say—the legislature and the SIS—is one that is absolutely shrouded in a veil of mystery, a lot of which is artificially induced. So we have our views. We will support this particular interim report for the sake of the relevant committee, and we will have more to say on the substance of the matter later.

Mr Kennedy Graham and I have been constrained in the length of our reply in this debate because shortly there are to be two maiden statements from two new members who are desperately needed in terms of the talent that the National Party presently suffers from at this point in time. We are all waiting with bated breath to hear what they have got to say, because the reservoir has run dry. As a consequence, we will constrain our speeches way short of the 10 minutes that we are qualified to have, and because we want to accommodate the National Party’s desperation to infuse in its organisation some talent for the first time for a long time.

That said, if you go straight to the recommendation on page 6 of this report, it is the nub of it that I want to address, and the nub of it is the recommendations made to the Intelligence and Security Committee and the role of the Minister in charge of that committee. It is just two paragraphs. What is apposite is that there are parties concerned as to what is happening with the Government Communications Security Bureau, or, more particularly, the Minister in charge of it. If members refer to our speech at the time of the introduction of the Government Communications Security Bureau and Related Legislation Amendment Bill, they will see in those opening paragraphs what our concerns are, but our concerns have magnified since we gave that speech. Our concerns have magnified to the extent that a Prime Minister rises in this House and says that he happily received a sanitised report. It was not the one seen by those down at the Government Communications Security Bureau at the time they looked at the preliminary report draft. No, it was one that the former head of the Government Communications Security Bureau is reported in the New Zealand Herald this morning as saying, on page 10, is a report that has been sanitised and that there are whole “lots” of parts, to use his words, that are missing.

More important, what happened was that the original report had some information that was moved to the appendices of the final report, and then when the final report went out, sanitised as it was, the appendices were never released. In short, people who appeared before the Kitteridge review know far more than every member of Parliament and, according to the Prime Minister, they know far more than him, even though he is the Minister in charge. That is an abysmal situation. It is an appalling lack of prime ministerial and ministerial responsibility that we are addressing, and I hope that one of the new members coming in here today, who are about to give their maiden statements, realise just how far the party that they have joined and campaigned for and have now come into Parliament for has sunk.

💬 Hon John Banks: Don’t be silly.

And it has been sunk by people like Mr Banks. Mr Banks, I might tell you, had 42 cheques sent to him, and understandably you could forget a few, but he forgot all 42.

💬 Hon Member: What happened to your $100,000?

What happened to the $157,000? What happened to the $157,000?

💬 Hon John Banks: Say “No”.

No, the answer comes up here, so that no more deceit and misrepresentation continues from that Parliament. What happened to the $157,000 was that we wrote to the Auditor-General—[Interruption] No, no, listen. We said to him that every cent was approved by the Parliamentary Service. Then, second, we said that because the law has been changed, any paying back of that to the Inland Revenue Department attracted gift duty and, as a consequence, we, to not enhance ourselves by one cent, gave it to 10 different charities. That is what happened to our obligation.

On the Owen Glenn matter—on the Owen Glenn matter, as I said before—Nick Smith had a legal fund, John Banks had a legal fund, and neither of those people were ever run before Parliament on the basis that they had broken any rule. However, they sat there, those people, in a kangaroo court. They drafted a report that said: “The law doesn’t apply. We’re writing a new one and—here we go—retrospectively we are going to apply it to Winston Peters because we want him out of Parliament.” Well, we are back. We are back, and every day—I must tell these new members—the people are joining in legion numbers all around New Zealand. The halls are being packed—the halls are being packed—and out there the people are saying: “We’ve hung on, because we know help is on its way.”

I have got only 2 more minutes, but I want to say this to these two new members. Before you have travelled too far along the pathway of being mere cannon fodder, ask yourselves these questions. Is this the party of Holyoake? Is this the party of Hamilton? Is this the party of fine men like Duncan MacIntyre? Was it the party of Winston Peters once? Yes, when it was a great party. It was a great party—when the party had 200,000 members. Today it has got just 200 big donors. No membership—no membership. Mr Banks, we are never going to eat our hearts out to support a party that has sold out every principle it once stood for. Nevertheless, I want to wish the two new members who have come here a successful career here, difficult as it is going to be, short as it is going to be. I hope that your maiden statements tonight evince the principles and dreams of the party that was around when you were born, but not the one that is here now. Thank you.

Motion agreed to.