Inquiries Bill

New Zealand First will support the Inquiries Bill, which updates the law concerning inquiries, because we feel the new amendments are certainly needed. But one concern we have relates to reporting. Clause 12(2) states “The final report of an inquiry must set out—(a) the findings of the inquiry; and (b) any recommendations of the inquiry.”, but it does not provide for the reasons for the findings and the recommendations. Probably that is implicit, so I have not sought to make any amendment to that, but it would have been preferable, if you are going to say those other two things, that the reasons for the findings and recommendations must be stated as well. However, I am satisfied, really, that it would be implicit and would be included. I could not imagine a report that did not have reasons for findings and recommendations, as well as the findings and recommendations themselves. So that is OK.

I note that clause 13(1) provides specifically for an inquiry having the power to request the appointment of counsel to assist it, but in doing so it must consider effectiveness, efficiency, and fairness, amongst other things. This will allow for legal assistance to inquiries, but it must be justified by these provisions and would not be automatic. I have some concern that inquiries may feel unduly constrained by this, but I do not think they should be, because the amendment to clause 13(2) as set out on Supplementary Order Paper 330 says: “The Solicitor-General must, if requested to do so, appoint counsel to assist an inquiry, but in doing so must—(a) have regard to the matters specified in subsection (1)”, including those that I have referred to. I think that this is, as it should be, a good balance between the right of the inquiry to have legal assistance, but really only if it is justified in those terms.

Under clause 14 witnesses can be required to give evidence in both public and Government inquiries, and so they should. Under the amendment to clause 14, as set out on Supplementary Order Paper 330, the inquiry is required to comply with the principles of natural justice, especially if an inquiry proposes to make a finding that is adverse to any person. If it does do that, it must make that person aware, and give the person an opportunity to respond to the matters that the inquiry intends to raise about that person. That is also as it should be. The power to require the giving of evidence, as is necessary I think, is properly balanced by natural justice requirements.

Clause 15, “Power to impose restrictions on access to inquiry”, is a very important provision that we ought to pay particular attention to. Before making an order, the inquiry must consider the risk of prejudice to public confidence. On the other hand, under subclause (2) it must consider “(b) the need for the inquiry to ascertain the facts properly; and (c) the extent to which public proceedings may prejudice security, defence, or the economic interests of New Zealand;”. I think that is a good balance too. But I do think that it is proper for New Zealand First to support Trevor Mallard’s typescript amendment to add a new subclause, subclause (2)(aa) of clause 15, that says “the benefits of observing the principle of open justice;”. I think that is particularly apt when you consider that these days there is a great public expectation in favour of transparency. I think that amendment would ensure that those public expectations are met.

I turn to clause 19 and legal assistance for participants. It can be recommended of the legal aid agency “that funding be granted for the purpose of providing legal assistance to 1 or more specified persons—(a) who wish, or who are required, to appear before the inquiry; or (b) who have an interest in the inquiry.” New Zealand First is particularly pleased to see this, but our concern is with subclause (3), which says: “If a recommendation is made under subsection (1), the chief executive may” grant legal aid. We think this should be “must”. We think it is the inquiry that should have the discretion not the legal aid agency.

It is unclear to me whether the legal aid income and capital thresholds for legal aid would apply if the legal aid agency has a discretion in this way, because of the use of the word “may” instead of the word “must”. I think that is one of the things that will challenge the thinking of the agency. Perhaps it is dealt with in the legal aid agency legislation, but I doubt it. If that is the case, legal aid could be declined, perhaps for that reason. This is a concern to us and something that perhaps the Government might want to have a look at. It might be so, even if a person is summoned to appear before the inquiry. Such people should have a right to legal aid despite capital and income thresholds, because those thresholds are severe, and I do not think it would be fair for persons to have to bear the cost of their own legal representation if they are just within what we would normally regard as ordinary income and capital wealth, rather than those who would have to comply with the legal aid thresholds.

So with those, I think, quite significant reservations, New Zealand First will support the bill, which overall is a good one, but we regret that we think there are still one or two little glitches in it, which we would like to see improved.

I am pleased to take a call on Part 3 of the Inquiries Bill. In my contribution earlier, I mentioned that there were some assurances that the Green Party had sought since my contribution in the second reading last night. In this part I want to focus on those and talk about those, because in my contribution to the second reading last night, I outlined a number of concerns that the Green Party held with clauses in this part of the bill, mainly clauses 21 and 23, which are about the powers to obtain information for inquiries under the new legislation, and the disclosure of evidence. Just to remind the Committee, those powers are quite extensive. Under clause 21, an “inquiry may, as it thinks appropriate for the purposes of the inquiry,—(a) require any person to—(i) produce any documents or things in that person’s possession or control or copies of those documents …”, and under clause 23, an “inquiry—(a) may, on its own initiative or on the application of another person, order any person to disclose to any person participating in the inquiry any specified document, information, or thing that the person has produced before the inquiry;”. So those are quite extensive compulsion powers, and they are new, because they will now apply to Government inquiries as well as commissions of inquiry.

Last night we abstained at the second reading because we had a number of concerns about this. We were concerned that on a face-value reading at least, the powers in those clauses could have required, for example, journalists to disclose their sources, or MPs to disclose their private communications with their constituents. I outlined these concerns to the House last night. I think we had in the House quite a helpful response from the Hon David Parker, who made the link between this legislation and the Evidence Act via clause 28, which gives witnesses and other participants in inquiries the same protections as would apply to civil proceedings under the Evidence Act. That was a helpful contribution from the Hon David Parker. But the privileges alone that he listed in his contribution last night were not enough to allay the concerns that we had.

So I took a closer look at the Evidence Act this morning, and I did find it reassuring, regarding the two specific concerns about the protection of journalists’ sources and the protection of MPs’ communications with their constituents, because the part of the Evidence Act that applies in this situation to this bill includes section 68 of the Evidence Act. Section 68 of the Evidence Act explicitly makes clear that a journalist cannot be compelled to disclose the identity of their sources in any civil proceeding. Because this bill treats an inquiry in the same way as a civil proceeding would be treated, that gives a clear indication that journalists’ sources would be protected and would not be compelled to be disclosed by an inquiry under this legislation. That was the first assurance that we sought, and we are reassured by that.

Similarly, section 69 of the Evidence Act, which also applies via clause 28 of this bill, provides protections for confidential communications not to be disclosed, including the protection of particular relationships and including protection for the free flow of information. Our reading of clause 69 of the Evidence Act is that this would also cover MPs’ communications with their constituents. That is very important, because although in the Green Party we absolutely support greater transparency, both in the conduct of inquiries like public and Government inquiries, but also more generally, in terms of the coverage of the Official Information Act, which we believe should apply to the Parliamentary Service, it is very important that confidential communications with constituents are protected in both scenarios, so that people can contact MPs with the confidence that the information they share with us will not be disclosed publicly. So we are again reassured by the application of section 69 of the Evidence Act that these concerns are adequately dealt with under this legislation as well.

The other area of concern that I canvassed last night in the second reading relates to parliamentary privilege. We in the Green Party had a question about what would happen if the Henry inquiry into the leak of the Kitteridge report into the Government Communications Security Bureau (GCSB) was held under the new legislation. What would have happened in that situation? Under the current law, ministerial inquiries have no power to compel witnesses to appear before them or to disclose evidence, but under the new law the equivalent new Government inquiries will have those quite extensive powers outlined in clauses 21 and 23. So we have to be quite careful in teasing out what this means in practice, to make sure we are not inadvertently inappropriately extending powers that could impinge on parliamentary privilege. We were concerned about the potential misuse of that power in ministerial-driven inquiries to compel the disclosure of information, like email records, like phone records, and swipe card records. After all, clearly in the case of the Henry inquiry some compulsion was felt by the Parliamentary Service to disclose that information, even though there was no power of that inquiry to compel the disclosure of that information. So our concern was that if that is what happens in a situation when the inquiry had no power to compel that disclosure, what would happen in an equivalent inquiry if that power did exist? We were quite concerned that that could involve the compulsion of the disclosure of information that is subject to parliamentary privilege.

This does come down, indeed, to the question of whether such communications are protected by parliamentary privilege. If they are, they would be protected under this bill, because along with all the other kinds of privileges that are protected under clause 28, parliamentary privilege is protected. So the nub of this question really is whether those communications we saw in the Henry inquiry are protected by parliamentary privilege. It is our view in the Green Party that they are, and that is why my co-leader Dr Russel Norman, indeed, wrote to the Speaker inviting him to consider that matter, and that has resulted in these matters being referred to the Privileges Committee. Clearly, they are now the subject of a live inquiry by that committee, the hearings for which took place today. Ultimately the Privileges Committee will rule on whether privilege applies in these particular types of situations. It is our view that it does, but that is a matter for the Privileges Committee to decide.

Indeed, we may eventually see parliamentary privilege legislation coming before the House in order to clarify these matters. In our view it is very important that these matters of privilege are clarified. We do still have a concern that if those matters of privilege are not clarified, the powers of compulsion granted under this legislation could be applied inappropriately by ministerial inquiries and we could see encroachment by the executive into the territory of the legislature in terms of breaching parliamentary privilege. But we are satisfied that according to the letter of this law parliamentary privilege is protected under this legislation, and what we have to ensure is that it is adequately understood and respected by ministerial and Government inquiries in future and is not encroached on in the way it was in the Henry inquiry.

I want to also acknowledge and thank Minister Tremain’s office. It turns out he is in charge of the bill and I want to thank him for the response he gave us—

💬 Grant Robertson: Today.

—indeed, today—on these matters, which confirm this interpretation of the sections of the Evidence Act on the matters of parliamentary privilege. I am pleased to be able to tell the Committee that the Green Party will be able to support the legislation. We will no longer abstain, but it is good that we have had the opportunity to put these concerns on the record and have them considered by the Committee of the whole House, because they are very important. They do go to the heart of principles about democracy, and, although it is needed—the current legislation needs to be modernised and has been on the Order Paper for a long time—we are concerned that this legislation is being rushed through quite quickly in the space of this week. So it is important that the Committee takes the time to consider these matters seriously, and I thank those members who have taken our contribution seriously and responded to it both in the second reading and the Committee stage. I think it makes for better lawmaking, and, hopefully, in the end a better understanding of how these important matters of privilege and confidentiality will apply under the new Inquiries Act.

It is a pleasure, again, just to make some comments on Part 3 of the Inquiries Bill. I just want to draw attention to some clauses in this part, because I think the provisions in this part are really the meat of this legislation, and they could stand us in very good stead in what could be some very important inquiries, some of which have already been alluded to this evening.

I note in clause 10 the principles that any inquiry must abide by in conducting itself, and I was interested to note the words that the members must act “independently, impartially, and fairly.” The last time we heard those words was actually in a speech by Richard Nixon after he had just sacked John Ehrlichman and John Dean, his White House counsel, to set up an inquiry into the conduct of certain matters to do with Watergate. But there we go—that was an inquiry that had all sorts of ramifications, not the least of which were for Richard Nixon himself.

I want to draw attention to clause 11, which limits the scope of an inquiry. It is very important that inquiries of the nature contemplated by this bill, as indeed with commissions of inquiry, are about getting to the facts of the matter so that there can be an improved understanding about the cause of an event or events and so that public confidence can be restored, if indeed public confidence has been shaken as a result of an event or an incident. The bill makes it very clear that an inquiry convened under the aegis of this legislation is not to determine civil, criminal, or disciplinary liability, so that people who are participating in it, and certainly people giving evidence in it, cannot be held to be criminally or civilly liable or made to face any particular disciplinary action. It does not mean, of course, that recommendations cannot be made that further action be taken by other bodies. But it is very important to note that an inquiry itself cannot have a civil, criminal, or other disciplinary effect.

The next clause I want to draw attention to is clause 14, and that is the natural justice clause. The original bill as drafted had a clause 17. That has gone, and the natural justice provisions appear in subclause (2) of clause 14 and also in subclause (2A). That is very important too, and that is simply to ensure that if any adverse finding is likely to come out of an inquiry, those against whom those adverse findings may be made will have an opportunity to respond, or to comment, before those are published.

Clause 15 is very important. This is about whether or not an inquiry, during its conduct, can close itself to the public or suppress evidence. I think that Trevor Mallard’s Supplementary Order Paper 332 is apposite. It starts with a presumption that inquiry hearings will be open, but it provides a protection if it is felt that the interests of individuals may be compromised if it goes public. I note in that regard that when an inquiry is considering whether or not to suppress information or keep its hearing private, one of the factors it must consider is whether or not it would interfere with the administration of justice, including any person’s right to a fair trial.

I draw attention to all those matters because the Government has an opportunity—in fact, I actually think it now has a duty—to open a full inquiry after tonight’s broadcast on TV3, which concluded only 15 minutes ago, about the latest revelations on Teina Pora and on Malcolm Rewa. The Government has the opportunity to open a full-blown inquiry. It can do it, and under the principles of this bill, when it is enacted, it will be able to do it without compromising any criminal procedure, or indeed civil or other disciplinary procedure. But the case for inquiring into that matter is now compelling, and it must happen. I am sure there will be plenty of comment on that in the days to follow, because the revelation tonight is an absolute bombshell—that the police knew the identity of Malcolm Rewa as a rapist after the first rape in what was a series over 7 years. The police knew it. It is time for an inquiry and this Government is derelict in its duty if it does not have one.

I want to make one final point and that is about legal assistance. I note that the legal assistance provisions allow what is described as the relevant department to grant legal assistance. That is not the Ministry of Justice. It is either the Department of Internal Affairs or any other department that is administering the inquiry, and that gives—

The question was put that the amendments set out on Supplementary Order Paper 330 in the name of the Hon Chris Tremain to Part 3 be agreed to.

Amendments agreed to.

The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 15 be agreed to:

insert in subclause (2) the following paragraph after “criteria”:

(aa) the benefits of observing the principle of open justice; and

Amendment agreed to.

Part 3 as amended agreed to.

Part 4 Sanctions and miscellaneous matters

The question was put that the amendments set out on Supplementary Order Paper 330 in the name of the Hon Chris Tremain to Part 4 be agreed to.

Amendments agreed to.

Part 4 as amended agreed to.

Schedule 1

The question was put that the amendments set out on Supplementary Order Paper 330 in the name of the Hon Chris Tremain to schedule 1 be agreed to.

Amendments agreed to.

Schedule 1 as amended agreed to.

Schedule 2

The question was put that the amendments set out on Supplementary Order Paper 330 in the name of the Hon Chris Tremain to schedule 2 be agreed to.

Amendments agreed to.

Schedule 2 as amended agreed to.

Clauses 1 and 2