Privilege — Question of Privilege Regarding Use of Intrusive Powers Within the Parliamentary Precinct

I move, That the House take note of the interim report of the Privileges Committee on a question of privilege regarding the use of intrusive powers within the parliamentary precincts. This year the Privileges Committee has looked at a number of important issues. The last report that we debated in this House related to the mutual respect that is required to be shown between Parliament and the courts. This report, which has been the subject of some work on the part of the committee since July 2013, looks at the tensions that can arise in the parliamentary precincts between the powers and the privileges of Parliament and the executive branch of Government. In particular, it deals with issues arising from the fact that the Parliamentary Service is responsible for holding and administering information relating to the executive.

I want to begin by expressing my thanks to all those who gave evidence and assisted the committee, particularly the Deputy Clerk of the House for her invaluable assistance. Let me begin by explaining what the report was about. A question arose about the use of intrusive powers in the parliamentary precincts, so the Speaker asked the committee to inquire into the exercise of those intrusive powers against members of Parliament and, in particular, the release of information from parliamentary information and security systems.

In his reference to the Privileges Committee the Speaker set out some basic principles. As he said, “The exercise of intrusive powers … threatens members’ freedom to carry out their functions as elected representatives and the House’s power to control its own proceedings and precincts, without outside interference.” So it is a very, very important question that came to the committee.

The committee was also asked to look at the release by the Parliamentary Service of information that it held concerning a journalist, including phone, email, and swipe card access records. It is a statement of the obvious that the media is not one of the three branches of Government, but they have long been regarded as the fourth estate because of the hugely important role that they play in informing the public about the actions of their elected representatives.

Contrary to what some people may contend, this inquiry was not about trying to relitigate the findings of the Henry investigation as to who leaked the Kitteridge report, nor was it about investigating a contempt of Parliament or assigning guilt or culpability to individuals. Its purpose was to establish the facts of how certain information was released by the Parliamentary Service, and to use those findings to inform the next step of establishing guidelines to protect the ability of members, as well as all those who use the parliamentary precincts—and I refer here particularly to the fourth estate. Those guidelines will be the subject of the next stage of our work, and we hope that it will be finalised early next year.

So it was not an inquiry into unlawfulness and the disclosure of the information. The question does not arise, because the Privacy Act and the Official Information Act do not apply. This in fact contributed, in my opinion, to the lack of firm principles to be applied by the Parliamentary Service in disclosure of information. Hopefully, in the next report, we will be addressing precisely that point.

Evidence was called from a number of people, including representatives of the press gallery and others involved in seeking and disclosing the information held by the Parliamentary Service. At the end of the day, I think it is fair to say that most of the background facts were probably relatively uncontested.

The Henry inquiry was issued terms of reference by the heads of the Government Communications Security Bureau and the Department of the Prime Minister and Cabinet. It sought the information initially provided for in the terms of reference. The inquiry obtained the correct authorisation to access information of ministerial staff held by the Parliamentary Service on behalf of Ministerial Services. The General Manager of the Parliamentary Service was also satisfied that Ministers had—pre-emptively, at least—given their consent for the information described in the terms of reference to be released. However, he held back, or demurred, when the inquiry sought further email content not covered by the terms of reference, and I think this is where things started to go wrong.

An MP who was also a Minister had emails released by the Parliamentary Service to the inquiry without his permission. That member was asked for access to his swipe card records for, he said, a single day, but extra records were then produced. Very seriously, a journalist’s swipe card access records were handed over without her knowledge, on the basis, the Parliamentary Service said, of a potential security breach, when such a breach had not been alleged by the inquiry in its request. The journalist’s full phone records, which had been generated purely incidentally by the Parliamentary Service, were handed over. That was an error.

In the report, we conclude that the Henry inquiry frequently acted in what could be called an over-vigorous manner. In turn, the Parliamentary Service failed to put in place procedures to deal with these issues. Both agencies failed to involve the Speaker, who, as the Minister responsible for the Parliamentary Service, could have approached these somewhat novel and perhaps difficult questions with the correct constitutional weight.

One issue that was identified was that the Parliamentary Service, for historical reasons, administers information systems and security matters for the entire parliamentary precincts. Obviously, those in the precincts include not only members of Parliament and their staff but Ministers, media, employees of various agencies, and contractors, many of whom are not covered by parliamentary privilege.

The former General Manager of the Parliamentary Service told us that his general principle was that information belonged to members and that, in general, they had the right to control access to their particular information. This principle may be a good starting-point, but it does not catch the numerous complex situations when the Parliamentary Service is holding information that does not relate solely to members of Parliament, including the facts that we were inquiring into here.

Two matters flow from these findings. The committee did not seek to, and obviously cannot, dictate how the executive is organised. The principles of parliamentary privilege have little to say about the responsibilities a Minister owes to Cabinet and to the Prime Minister, at whose pleasure he or she serves. Those are questions, obviously, for the executive and not for a parliamentary committee.

The second important point is that the responsibility for running Parliament’s affairs ultimately resides with Parliament. In the evidence we heard about requests from the inquiry for information, we heard that the inquiry received information that it was not entitled to.

Although this is a disappointing set of events, ultimately we need to work out where we are going to go to from here. As I said, there is going to be the second report, which picks up on the interim findings, and, hopefully, we will be able to come up with a set of principles that will assist those dealing not only with members of Parliament but with media and the other people who work in these precincts. Importantly, Parliamentary Service is the administrative gatekeeper to information held on behalf of MPs. Mr Thorn told us that this was his basic principle, that material held on behalf of MPs would be disclosed only to those members.

There is a lot of work required to be done before the committee can issue its second report. It hopes, as I said, to finalise the report early next year. I cannot speak for the committee, but I think some clarification legislation is going to be required. Perhaps the time has come to consolidate all the relevant legislation in an Act of Parliament that will deal with the Parliamentary Service and parliamentary privilege. We have dealt recently with the remuneration of MPs. There is legislation dealing with the Clerk of the House, the Officers of Parliament, and so on. I think that people are entitled to find the law relating to this branch of Government in one statute rather than scattered throughout the statute book, as it is at the moment. Perhaps the time has come also to take a fresh look at the Constitution Act, which is structurally incoherent and a poor piece of legislation.

Those are the sorts of issues that we will need to look at. We will not dwell on culpability. That was not the purpose of the inquiry; it was to find out what went wrong, with a view to fixing things up in the future.

It is a pleasure to rise and speak on this interim report from the Privileges Committee. I would certainly accept one thing that the Attorney-General said in introducing his comments, which is that there were a number of very serious issues that arose during the Privileges Committee inquiry into these matters. It is important to note that this interim report is about establishing what happened in this particular incident, what we can learn about went wrong, and what changes are needed. This part of the inquiry is very much grounded in what happened, and what happened was a sorry tale of an inquiry that, quite frankly, was a shambles from day one.

On day one the terms of reference for the inquiry were set, and that was done by John Key in accordance with Wayne Eagleson, Andrew Kibblewhite from the Department of the Prime Minister and Cabinet, and Ian Fletcher from the Government Communications Security Bureau. They were the people responsible for the setting of the terms of reference. We were told at the Privileges Committee that it was John Key, as Prime Minister, who signed off on the terms of reference. So let us set that right at the start—this was John Key’s inquiry, and those terms of reference were set in such a way that it was nearly impossible to find out who actually leaked the Kitteridge report, because the powers of that inquiry were set in such a way that Mr Henry was prevented from having people appear on oath or from having any kind of subpoenaing situation. Inevitably, given the small range of people who actually had access to the Kitteridge report, he was going to run into trouble.

So the question was raised during the Privileges Committee hearings as to whether or not the terms of reference were set up to really find out who leaked the Kitteridge report. As at today, although we have somebody who is acknowledged by everybody from the Prime Minister down as the chief suspect—Peter Dunne—we do not actually know who leaked the Kitteridge report. The Henry inquiry was set up in such a way that that was almost inevitably going to be the outcome—beyond a stark confession from somebody in the process.

Peter Dunne today is an MP and not a Minister, but John Key has told us that it is quite possible he will return as a Minister. If John Key is comfortable with Peter Dunne returning as a Minister, then he is implicitly saying that Peter Dunne did not leak the report. That has to be the conclusion, and that means that this whole process—the Kitteridge report, the Henry inquiry—has left us none the wiser as to who leaked a sensitive confidential document. It is, frankly, slack leadership by the Prime Minister and wilful blindness as to what was actually going on in this case.

So the facts established in this inquiry were that all of Mr Henry’s attention went to Peter Dunne, and yet the Prime Minister is prepared to say today that maybe he will come back into Cabinet. I find that an unbelievable situation and, quite clearly, the terms of reference, I believe, were set up in such a way that they were never going to get to the bottom of who actually leaked this report.

The major issue that came out from the Privileges Committee investigation was around the blurring of the lines between the executive and Parliament. The Parliamentary Service Act actually says in section 6 that Parliamentary Service is not “an instrument of the executive government.” That is quite an unusual thing to find in an Act—a negative statement about what Parliamentary Service is not—but that is because Parliamentary Service was set up very deliberately so as not to be able to be encumbered by the executive. What we saw throughout the process of this inquiry was the blurring of those lines.

The blurring of those lines occurred once Parliamentary Service agreed to release information about Ministers and their records. It is very important to note that three times the then head of Parliamentary Service, Geoff Thorn, said he did not want to release the information when he was asked, firstly, in two different ways by the Henry inquiry, and then by Janice Calvert from Ministerial Services. It was only when the Prime Minister’s chief of staff, Wayne Eagleson, intervened on 9 May—

💬 Hon Trevor Mallard: Speaking for the Prime Minister.

As he does, Mr Mallard, on every occasion. As John Key has told this House: “If you speak to my chief of staff, you are speaking to me.” That is what John Key has told this House. So when Wayne Eagleson wrote to Geoff Thorn in an email and said: “Further to our discussion, this is to confirm that the Prime Minister would like Parliamentary Service to make available to the Inquiry team records from Ministerial Office photocopiers and any other relevant material requested.”, that is the Prime Minister blurring the lines between the executive and Parliament.

That is what fundamentally went wrong here. That phrase “any other … material requested” became hugely significant as this inquiry went on. It is true that David Henry and his inquiry team overreached their mandate—there is no doubt about that—but that opened the door. Wayne Eagleson saying “any other … material requested” was the Prime Minister telling Parliamentary Service: “This is how it will be.” So the fault for that blurring of the lines ultimately lies at the Prime Minister’s feet, and I do not believe that that has been properly accepted by the Prime Minister.

So we have Geoff Thorn, we have David Henry, and we have Wayne Eagleson who are all part of the blurring of those lines, and I do support the comments of the Attorney-General with regard to the clarification of that. Within that, there was quite clearly a conflict about the different roles that the people in Parliamentary Service were expected to play.

Sitting suspended from 6 p.m. to 7.30 p.m.

As I was saying before the dinner break, one of the major issues within this report is the blurring of the lines between the executive and Parliament. As parliamentarians we guard jealously the privileges and rights that are given to us here. The distinction between what Parliamentary Service does for us as parliamentarians and what is done for Ministers was one of the issues that arose, but the significant issue was around the release of data that was about members. As I said before the break, Geoff Thorn, who was then the head of Parliamentary Service, three times refused to release that information, but on the intervention of the Prime Minister’s chief of staff, acting on behalf of the Prime Minister, he did release that information.

We believe, on this side of the House, that that contradicts what the Prime Minister said throughout the period of this inquiry—that he was not involved in it. He quite clearly was. He set the terms of reference for it. He was the person whose chief of staff was intimately involved throughout the process and made the very critical intervention that saw data released. As I also noted before the dinner break, I am not saying that that was the only piece of blame that could be apportioned out of this. It is quite clear there was plenty of blame to go around, and David Henry and his inquiry team overreached, but this was the Prime Minister’s inquiry that they were undertaking.

In the time remaining, I want to talk about a couple of issues. One of those is the question of metadata versus content, which was a significant debate during the Government Communications Security Bureau bill. It is worth noting that in this inquiry, it was the release of metadata—the so-called information about information—that was actually critical to what happened. David Henry found out that there were 86 emails between Peter Dunne and Andrea Vance because of the metadata. Some of that metadata was not meant to be released, apparently, and that argument—that the Government felt it was not to be released—is one that I will come to in a minute.

If New Zealanders are to have confidence in the security of their information, metadata is significant. The content of emails was requested and eventually some was released inadvertently, some was released deliberately, and some was pulled back, but it was that metadata that was the critical element in this investigation. When we are considering the security of New Zealanders’ data generally, I think we have to bear that in mind.

This is a sorry saga. The Henry inquiry was poorly run. It was poorly set up. Those involved in it were not conscious of the boundaries between the executive and Parliament. They rode roughshod over those boundaries, but at the end of the day New Zealanders are still none the wiser as to who actually leaked the Kitteridge report—a sensitive, confidential document. The Prime Minister set up an inquiry to do that. Today he tells us he may let Peter Dunne back into Cabinet, and it is possible for him to do that only if he believes that someone other than Peter Dunne leaked the Kitteridge report. New Zealanders are owed an explanation by John Key as to who leaked the Kitteridge report. He has not provided that, and as a result New Zealanders will not have confidence in his word.

Could I just begin my comments by noting the remarks of my colleague Kennedy Graham, who sat on the Privileges Committee for much of the work that led to this interim report, to the effect that the committee worked well, was well chaired, and, despite the rather unfortunate task they were given and the constraints laid upon them, delivered a useful document. My colleague looks forward to participating in the work that will lead to a final report next year.

This interim report reflects a bizarre episode in our parliamentary history, an episode that reflects well on no one who was involved. The best we can do is to put in place arrangements to endeavour to ensure there is no repetition of this. The origin of the whole debacle, of course, lies in the illegal self-empowerment by the Government Communications Security Bureau (GCSB), which came to light more or less by accident and required the Kitteridge inquiry. That Kitteridge report, as we know now, was leaked. The Prime Minister then ordered another inquiry to identify the leaker. The Henry inquiry failed to do that, but did rack up an extraordinary series of errors that, in the words of one commentator, would not be out of place in the script of a Dad’s Army episode.

The catalyst for the committee’s work was a complaint from our Green co-leader Dr Russel Norman. The Speaker, in his wisdom, chose not to accept it as a complaint but referred it instead as a general question of privilege. The result was almost always going to be unsatisfactory, by definition. The committee was not given the task of finding who leaked the Kitteridge report, so the public, to a large extent, is none the wiser as to the facts of the case. What we have learnt with some clarity is more to do with the dangers of taking constitutional principles for granted, because this interim report does highlight some gaps in our practice in that sense. It is when things go wrong that we regret the lack of clear constitutional guidelines.

We are one of the very few countries in the world that does not have a written constitution. It is probably fair to say we have the least developed mechanisms to compensate for that lack of a written constitution. The mistakes of the Henry inquiry were largely those of individuals: excessive zeal, in one case; a relative indifference from the inquiry leadership to procedural practice; and an emerging cult that seems to treat directives from the Prime Minister’s office as some form of holy writ that must be obeyed. These kinds of problems can be neutralised by constitutional protection. Without it, they can be exacerbated, and even run amok. That is the primary lesson of the Henry inquiry.

We shed no tears for the ministerial resignations throughout this episode, but we do have considerable sympathy for the Parliamentary Service resignations, for they were the product of actions against better judgment, under duress from the executive. Diligent and well-intentioned officials ought never to be put under that sort of pressure and should never be subjected to that, and there should have been protections in place against it. The interim report accurately critiques the shortcomings of the whole sorry affair, and the Green Party endorses this critique. The main test will be the remedial measures recommended in the final report.

In terms of the process to date, the Green Party is dissatisfied with the decision by the committee not to have the Prime Minister or the Speaker appear before it. As the Minister responsible for the GCSB, Mr Key initiated the inquiry, he appointed the co-commissioners, he was consulted over the terms of reference and the choice of inquiry, and he publicly released the report. He acknowledges ministerial responsibility for the inquiry. He formed the apex of the executive branch of Government in this whole exercise. For his part, the Speaker, being responsible for the Parliamentary Service, formed the apex of the legislative branch in this matter. He too bears responsibility for certain aspects of the inquiry. It is difficult to see how the Privileges Committee, exploring the shortcomings of an inquiry, could perform the job entrusted to it, with some irony, by the Speaker, when the two members of Parliament who bore primary responsibility for it did not testify.

Then there are the findings of fact. The evidence gathered in the hearings revealed a series of avoidable errors—political or procedural—by virtually every individual who was directly involved in the Key inquiry. Firstly, the Prime Minister decides a ministerial inquiry should be set up, appoints the co-commissioners, is consulted over terms of reference and choice of investigator, receives the report, and makes it public. He acknowledges he has ministerial responsibility, yet his only engagement in his own inquiry is to declare that he expects all Ministers to cooperate.

Secondly, the chief executive officer of the Department of Prime Minister and Cabinet is a co-commissioner of the inquiry. The chief executive officer draws up the terms of consultation with the Prime Minister and is actively engaged in the inquiry, and yet he is seen as one of the potential suspects. The chief executive officer of the Department of Prime Minister and Cabinet seconds a staffer to the inquiry. The staffer acts, we are told, under the supervision of the investigator, yet exercises personal freedom in visiting Parliamentary Service on his own initiative at a third-tier level, undermining the authority of the general manager of the Parliamentary Service.

Thirdly, the inquirer adopts a belief that he is free to ask for any information he deems necessary without considering whether its release is constitutionally appropriate. He leaves it to the recipient of the request to determine constitutional propriety. He neither receives nor seeks guidelines on the constitutional and procedural requirements and constraints pertaining to the operation of a ministerial inquiry. He displays a general indifference before the committee to the importance of constitutional constraints. The main recipient of the request, the Parliamentary Service, had serious doubts about releasing information on the communications of a Minister and journalist, plus their parliamentary access records, yet it felt compelled not to second-guess the request, because of their security implications. The material does not involve issues of national security but rather domestic politics, which should have heightened and not diminished those concerns.

The chief executive officer of the Prime Minister’s office became engaged. He took it upon himself to “authorise the Parliamentary Service to release data pertaining to Ministers and journalists”. He did this on the basis that the terms of reference had been made public and that the Prime Minister had made it clear that he expected Ministers to cooperate with the inquiry. Despite three denials by the head of the Parliamentary Service, nevertheless the Prime Minister’s cock crowed and vowed and the data was released. In fact, there was no cause for the chief executive officer of the Prime Minister’s office to become involved in the inquiry, given that it had been commissioned by the head of the Department of the Prime Minister and Cabinet.

The co-commissioners clearly harboured uncertainty over the particular status of one Minister who had been given the report in the capacity of coalition party leader, but who subsequently was expected to cooperate as a Cabinet Minister. This blurred further the distinction between his role as a member of the executive, a Government Minister, and as a member of the legislature, an MP, and it seemed that nobody seemed to care.

No official involved in this whole sorry saga, whether from the Department of the Prime Minister and Cabinet or the Prime Minister’s office, appears to acknowledge that requests for data pertaining to communication between a Minister and a journalist unavoidably means obtaining information about a journalist. Refusal to acknowledge this is strange. They seemed bemused by this self-evident fact through the hearings. The Evidence Act 2006 protects the rights of a journalist to privacy over sources and that is a well-accepted convention, at least.

The information platform maintained for Ministerial Services and the Parliamentary Service became operationally merged in late 2011 for reasons, we are told, of efficiency. This appeared not to bother the Department of the Prime Minister and Cabinet, the Prime Minister’s office, or the inquiry. The constitutional separation of powers appears not to be a matter of concern for them either. At no stage did the chief of the Parliamentary Service discuss matters of concern with his responsible MP, the Speaker. At no stage did the Speaker judge it necessary to become engaged in decisions pertaining to the release of information by the agency under his control. He should have.

The press gallery has no contractual relationship with the Parliamentary Service, only with the Speaker. A computer technician contracted from a private company took it upon himself to pass information relating to a journalist directly to the inquiry. Although existing legislation protects the media from releasing such information, no procedural rules were put in place by the inquiry to govern his actions.

The sloppy operation of the inquiry rests on a series of individual misjudgments. The task remains for the committee in its final report to identify ways in which these shortcomings can be rectified. Kia ora.

This is a very sad and sorry saga. The Prime Minister has acted incompetently and with a cavalier attitude to his responsibilities to get at the embarrassing truth, which is that there was a serious leak of a classified document. I want to say from the outset that if the Prime Minister had wanted a proper inquiry, he would have, first of all, picked someone competent to do the job; second, provided the powers to do the job properly; and, third, provided the inquiry with the right terms of reference to complete the job, which was to find out who leaked this classified document.

A couple of my colleagues have said that at the end of the dual sets of inquiries no one is any the wiser. With respect, yes, I am, because I was the person who said on that day at the Finance and Expenditure Committee “You leaked the document, didn’t you, Mr Dunne?”, and that was the beginning of the end. I did not do it because we were taking a guess or a pot-shot; we knew that he had been the leak—not on one occasion but on five different occasions. It is not difficult to work out, because you have got four classified leaks and then you have got one in the Dominion Post, written by the same journalist, which says that the Inland Revenue Department is helping out in the Novopay scandal. If you put that all together, you have got to say to yourself “What’s the common factor here?”. Well, it was the man who was heading the Inland Revenue Department. You did not have to be a rocket scientist to work it out. Then there were a number of what you might call evidentiary matters that we looked at to come to our conclusion. So at the select committee when that was said to Mr Dunne, we knew where we were going.

But back to my point—the interim report of the Privileges Committee into the Henry inquiry following the Kitteridge report leak is a seriously disturbing read on a number of levels. And anyone who gives a damn about democracy—and New Zealand First does—would be deeply unimpressed by what has been revealed: something is seriously rotten in the State of New Zealand.

We have had confirmed what we were saying from the outset that Mr Henry was not qualified in any way, shape, or form for this inquiry. What is my evidence? Well, I was the person who raised, way back in the 1990s, the absolute abomination that was being foisted upon this country by way of interpretation of form over substance on the matter of tax law, and the man heading up the tax department at the time was one David Henry. He did his utmost to discredit us and tried to defend these raids on the New Zealand Treasury and all sorts of illegal activity. Then, just before there was a full-scale—as you know—commission of inquiry, he jumped ship from the Inland Revenue Department and set off overseas. So that was our reason for saying that. If he could not get even such a fundamentally simple thing like the tax law right, why would you repatriate him, as the Prime Minister did, by giving him a role, first of all, on the Electoral Commission in this country, then make him a Pike River commissioner, when his forensic ability to get to the truth is zero, and then make him the inquirer on this matter?

Sure enough—and I am disappointed to say this, as there is nothing so antiseptic as the saying “I told you so.”, but we darn well did. We darn well told all of you that this man was incompetent. You can laugh and scoff, but the taxpayer paid him a fortune to do an incompetent job. We had confirmed what we were saying from the outset: he was completely inappropriate as an appointment. Of course, that is precisely why Mr Key picked him for the job. That is why he picked him for the job. We have now had an inquiry but no answers from Mr Henry—just more mud flung in the public space.

He got to the conclusion that it must have been somewhere near the office of Mr Peter Dunne, who, by the way, is finding it so difficult to get off his high horse gracefully. Did you see his press release yesterday? Oh no, he was not going to lose this massive, long-held, century-old right of confidentiality between constituents and an MP—as though that is what happened. No, no, Mr Dunne, you leaked a classified document, and in our crimes legislation that is a crime. Just because the police are not prosecuting you does not mean that you are exonerated, because they could, and it does not mean that it is because they are things of no matter. What was being leaked from that committee was of great importance. The Henry inquiry just left more unanswered questions, but one of them was not left: who the leaker was. The leaker was a serial leaker who leaked five times and has been discovered.

It is an indictment on Mr Key and his contempt for the democratic process. Our democracy is not just the right to vote every 3 years. Real democracy is a web of spoken and unspoken rules and conventions that give it genuine meaning and not just the appearance of democracy. To have a proper inquiry, have the correct terms of reference so that they can get to the truth, give that person the powers to get to the truth, and then pick the right person who can be trusted to get to the truth. He did none of those three things. He just did not care. The privacy of media communications is one of those aspects that are vital to a functioning democracy, and it is a privilege that must not be abused. The media has a right to be protesting in this case, because what happened in respect of this journalist was constitutionally and legally just plain wrong—just plain wrong.

But Mr Dunne can find no haven in that complaint, because it does not include him. The Privileges Committee makes it clear that there was contempt for this principle not just by Mr Henry but by parliamentary officials. But, sadly, I think, if the report is slightly unfair, it is in the fact that these parliamentary officials were being blamed in circumstances of undue, illegal pressure. In the end, somebody made a mistake. These parliamentary officials are the guardians of democratic practices, because if they are not, who is? But screaming through the inquiry and what came out with our discussions with these officials was that they had resisted and resisted and resisted and in the end thought: “Well, he has got the powers because the Prime Minister says that he has given these powers for the investigation, and Ministers must comply.” But, of course, in the case of Mr Henry, what he did was he distinguished between Ministers and people on the select committee, and the leader of the United Future party, as though that was of any moment whatsoever. It was not, but he distinguished between them. He does it on page 2 of his report, and he goes straight off track thereafter.

As the Green Party has said, where was the Speaker when all this was happening right under his nose? Why did he and the Prime Minister not appear before the select committee inquiry? The report talks of errors of judgment by parliamentary staff. That must be understood, I say, within the context of undue unlawful pressure. And it leaves a sour taste, at least in my mouth, that Mr Thorn has fallen on his sword, has accepted his accountability, and has gone, and yet the Chief Executive of the Department of the Prime Minister and Cabinet, Mr Kibblewhite, offered his resignation but it was not accepted. How many times have I seen this not even complicated exercise in deception? John Key is deeply implicated in this mess, too, but do not expect any accountability from him.

The report of the Privileges Committee is a wake-up call. What this report shows is how the essential props of democracy can be kicked away. And when John Key is around, hyper-vigilance is called for. Key and his cronies will trash our democracy like they are trashing—

💬 Dr Paul Hutchison: Who wrote this?

I am able to write all this brilliant stuff myself, unlike those members over there, who have to have the research unit write their speeches. I wrote it all myself. Key and his cronies will trash our democracy like they are trashing so much else in our country. Fortunately, next year the public gets its say and the opportunity to teach them a long and enduring lesson.

I enjoyed working on the Privileges Committee very much. The work, led by Christopher Finlayson QC, was well done, and the contributions from all sides of Parliament were also well done. I take you to the conclusions of the report first. The conclusions of the report say: “In coming to our conclusions we acknowledge that, to the best of our knowledge, the circumstances giving rise to this question were unprecedented.” I am staggered that it has taken this Parliament so long to get to a situation where it had to deal with privileges circumstances that were unprecedented. The report continues: “That these are uncharted waters has, for example, necessitated us”—that is, the select committee—“making inquiries of other jurisdictions to assist us with the second part of our examination of this matter.” That included Canada and the United Kingdom. That was very interesting reading. Canada, the United Kingdom, and Australia are well ahead of us on these things. It continues: “We accept that the unique circumstances of the situation had a part to play in the events leading to this referral.”

These matters did not bring any great credit to this Parliament. Unlike following the complaint in question, the leaking of the documents, which I make no comment about, it triggered off this work of Parliament to make sure that the issues that we had to deal with in this first part of this work do not occur again.

Although the executive branch of Government is important in New Zealand, it is not all-important. The executive branch of Government is not all-important. The fulcrum of our democracy is here on the floor of this House, and every single member of Parliament is equal here on the floor of this House, in the fulcrum of our democracy. This central role is recognised through the ancient rights and privileges of the House that allow Parliament to control its own processes and procedures, and as the Rt Hon Winston Peters said in his previous speech, we did not have any processes and we did not have any procedures. We had nothing to follow and we were leading blind with the blind. These laws of Parliament that form part of our general laws of New Zealand allow this House to function without fear or favour and for better and for worse. As the interim report of the Privileges Committee observes, we are somewhat in uncharted waters. Well, that is a classic understatement—somewhat in uncharted waters.

We observed that with electronic communications of members of Parliament—they did not exist when I was here 10 Parliaments ago—we are well behind other Parliaments in developed democracies in these matters. In most cases they do not attract the protection of the privileges of the House. In other words, the electronic messages going around in the stratosphere around these buildings do not attract any privileges of the House. As classically formulated they are not speech in this House or in the committees and are not a process of Parliament. That said, the ability of members of Parliament to use electronic communications in confidence is central to the functioning of members of Parliament, and there were classic, far-reaching breaches of that proposition.

If agents of the executive branch wish to access these records, they should do so only with express legal authority or with the express consent of the member of Parliament concerned. I have this rather simplistic proposition that says that communications between members of Parliament and anyone else should be private between the member of Parliament and the constituent or anyone else and not accessible to anyone else of a political persuasion in this House. They should be accessible only to agents of the State and other agencies that are duly representing law and order, with a warrant from the High Court.

This should be the case even if a member of Parliament is also a member of the ministry. However, it is slightly different. That is because not all communications of Ministers are ministerial. Some might be in their legislative capacity or in another party capacity. I also think this is just good practice. The Prime Minister, of course, with the ministry has the remedy available to him if a Minister unreasonably withholds consent to access this data and information. He can, of course, lose confidence in the Minister, and the repercussions of that are obvious.

It is also clear that Parliamentary Service, an organisation established to support the House, and one that is not part of the executive of Government, did not properly understand the constitutional relationship between agents of the executive and this House. It had no idea. It had no idea, and much wrong was done, particularly to one member of the fourth estate. Much wrong was done. It is disturbing that when in doubt, Parliamentary Service did not bring to the Speaker the matter of access to electronic communications and associated records. Parliamentary Service did not raise that with the Speaker, who is in charge of the fair and reasonable running of this Parliament and the rights of members of Parliament, which are equal amongst men and women of all corners of this House—the fulcrum of democracy in this country.

I agree with the report that some rules and processes need to be developed so that members of Parliament and the agencies that support the working of Parliament know how information requests should be and must be handled. The relevant law is a bit of a thicket—sometimes the Official Information Act, in other cases not, in some circumstances the Privacy Act, and sometimes it is covered by a general obligation of confidence. Some written guidance would help those who make these things work, work their way through these things.

I want to talk about others who occupied and worked these precincts, particularly the press gallery, at this stage. Although I do not always enjoy what the media say about me, and most members of Parliament would share that view about themselves, I recognise that they are an important part of the democratic process. The best presumption is that their movements, communications, and associated records will be treated confidentially unless there is clear evidence of a crime and the necessary express legal authorisation for access to those communications and electronic records by a law enforcement agency. Otherwise, the fourth estate—the gallery, the media—should have the privilege of being able to communicate with whomever they want in this building and outside this building without prying eyes from anyone, including the politicians, unless they have a warrant from a law enforcement agency, signed by the High Court, to go about such endeavour.

In the view of some members of Parliament, or the executive branch, they might use this presumption to misreport or misrepresent politicians. That is the necessary price we pay for democracy. That is the price. The best response to irresponsible reporting is not to consume the news products being produced.

Finally, I note that our report concludes that what happened occurred primarily because of miscommunication and misunderstanding. This report affords the House the opportunity to ensure this never happens again, and that protocols will be set up. In the last two paragraphs of the conclusion of the report it says: “In our view, the absence of appropriate policy guidance on what information can be released and when, or when issues should be escalated and to whom, and indeed the disappointing actions taken, result primarily from these underlying deficiencies.”, which need to be addressed. And in our second report they will be addressed.

I want to take a short call in this debate on the report of the Privileges Committee. I have to echo the comments from previous speakers that it was a very interesting process picking apart the actions of a variety of people. I echo the comments of the Hon John Banks that this was an episode that did not reflect well on this Parliament. Perhaps I have been here a bit long to talk of being naive, but, actually, I naively, in hindsight, thought, that a committee with the gravitas of the Privileges Committee would operate in a reasonably non-political manner to try to get at the facts, in the interests of all parliamentarians. By and large, I have to say that during the workings of the committee, apart from the occasional sortie from various people to settle old scores, actually, the committee worked very well to do that. So it is quite disappointing, having produced what is a pretty comprehensive report, to then come to the House and find that all the politics surfaces and all the things that perhaps were not explored satisfactorily in the committee are now being aired, seeking to lay blame at the feet of people like the Prime Minister, like the Prime Minister’s chief of staff, who actually—in the case of the chief of staff—came and gave evidence to the Privileges Committee. He was questioned and he gave very satisfactory answers.

The report sets out very clearly what we were actually asked to do and—to the frustration of some of our members—what we were not asked to do, and that, of course, was to determine who was responsible for the release of the document in the first place. Then, as a committee, we set out to establish the facts. I thank the people who came before us for the very constructive, honest, and open way in which they appeared in front of the committee. They gave us a clear indication of their view of the events. That enabled us then to put together a very good summary, which appears in this report, of what happened when and who was involved. So I do thank them and, in particular, the Clerk of the House and her office for the help that was given to the committee.

Three things stood out for me during the investigation of this committee. The first was the complete lack of understanding by someone of the stature of Mr Henry. I am interested to hear the Rt Hon Winston Peters’ categorisation of him, but he has a reasonably distinguished career. As I said to him in the examination, for someone who has been around this place and been involved in politics for quite some time, there was a complete lack of understanding of the different nature of this place that he showed in conducting this investigation. We all came to the conclusion that the first person he should have gone to see was the Speaker, who is our representative, who speaks for this House, and who is in control of all the staff who work in this Parliament. So that complete lack of acceptance that this was a different environment set this investigation off on the wrong foot from the beginning.

Secondly, again, for someone who has had such a long career involved in Parliament, to not understand the very special nature of the media in this place and its special role in the rights, if you like, and the responsibilities that go with that, again, that was completely underestimated and completely overlooked. There was no respect at any time from Mr Henry in conducting the inquiry for the hierarchy of Parliament. So the Speaker was not involved. I think we were surprised that Mr Henry did not make early contact and maintain contact with Mr Thorn, the General Manager of Parliamentary Service, who was responsible for the staff who were going to be providing information. Those two critical mistakes made by Mr Henry set the scene for what became inevitable—that things would go wrong, that the wrong people would be accessing information, and that information would be made available without any regard for some of the privileges that we hold here as parliamentarians.

The next thing that struck me during the investigation was the almost casual attitude shown by a variety of staff to the very complex nature of the information that they were required, asked, and able to access. We have heard some of that talked about by other members. What is the difference in the role of a Minister and the information that you hold as a Minister, as against the information you have in your email in-box as a member of Parliament who is dealing with constituents, as against an individual who happens to work here at Parliament? The complexities of that were not recognised by some third and fourth-tier people who were working for the inquiry and giving access to information at the request of people involved in the inquiry. I found that casual attitude to that complex data, by people at very junior levels in the organisation and with very little oversight by management, quite extraordinary.

Thirdly, I have to say that I was amazed at the lack of alternatives that were sought, or not sought, by Mr Henry in his conduct of the inquiry in order to get his information. This is a point that, I think, Grant Robertson raised on a number of occasions—or it might have been David Parker—that Mr Henry did have other options available to him. In fact, he did indicate that he could have taken the inquiry to part 2, but decided not to when the information that Mr Dunne held was withheld. So he did not try any other alternatives. Again, you would have thought that he might involve the Speaker to talk about what those alternatives might be. That was not done. Those were the three things that I can add to the debate here tonight.

I would say that it is interesting to hear both the Greens and New Zealand First—as they did at the Privileges Committee, in fairness—seeking to show the general manager, Mr Thorn, as a bit of a victim of the inquiry. There is no doubt that as a consequence of the circumstances he did resign from his job. But, in actual fact, when you look at the way that that inquiry rolled out, at any stage with the requests that were coming to him, and his clear “uncomfortableness”—is that a word—he was clearly uncomfortable about—

💬 Nicky Wagner: Discomfort.

Discomfort, thank you. There was discomfort with some of the requests for information that were being made. Again, his backstop, his support, and his defence was the Speaker. That is no different from anyone who is a Minister and has an organisation, an agency, that reports to them. If there are difficulties, if there are things that are concerning those agencies, then any Minister would expect them to be brought to them for some discussion—at least, to make them aware of some of the consequences of those requests. At no stage did Mr Thorn raise with the Speaker any of those concerns that he had. I admire the man’s work and I am very sorry to lose him from the organisation, but I do not see him as a victim of the inquiry, other than by the circumstances he placed himself in.

It has been a very interesting exercise. Again, it has shown clearly that we have more work to do to make sure that this does not happen again and that there are good procedures put in place to ensure that the data that is so sacrosanct to all of us is respected and that the processes of Parliament are respected.

I want to add one additional concern to the many concerns arising from these hearings that Anne Tolley raised. It is to do with the understanding of many of the people who deal with the Official Information Act as to how this Act works, and how it should work.

I think that it is very important that we draw a clear distinction between information that is official information with grounds to withhold it, and information that is not official information. In the case of ministerial emails, there will often be information that is official information but with grounds to withhold it, and then there will be information that is exchanged using those email accounts that is not official information. For example, a Minister arranging with a member of their family over email to have dinner is not official information. It is not covered by the Official Information Act and, therefore, it is simply not part of the consideration. But there will be emails that Ministers exchange between each other, or between themselves and officials, or between themselves and others, that are official information but where there are grounds under the Act to withhold it. What really struck me was that many of the people who were dealing with these issues did not understand that distinction.

The other distinction that they did not necessarily understand was that the vehicle of communication does not alter the status of the information. A Minister exchanging official information using a Hotmail account does not make it not official information; it is still official information. I think this point was really important because we ended up in quite an extensive discussion in that meeting, including with Mr Dunne. There seemed to be this distinction that suggests that because one type of account was used over another, then that changed the nature of the information. It does not. Official information is official information—simple as that. It does not matter how it is communicated, it is still official information.

That is very important, I think, in terms of the Privileges Committee’s future deliberations, because one of the challenges for ministerial email accounts is that you have to have a mechanism for determining what is official information within them, covered by the Official Information Act, and what is not. I do not think that we have an adequate mechanism for doing that at the moment, and that is part of the issue. Also, what became very apparent during our consideration of the Henry inquiry is that the inquiry could have obtained—possibly, legally—much of the information that it sought simply by lodging an Official Information Act request. The inquiry never did it. It never actually used the channel available to it to obtain the information that it was looking for. That suggests a real lack of understanding by those who were conducting the inquiry about how things should unfold and happen.

Before I talk about some other issues, I want to talk about what this report does not do, because, actually, I think everybody who saw this issue go off to the Privileges Committee and who was eagerly awaiting this report still has one question—one fundamental question—that has not been answered: who actually did it? The Privileges Committee was specifically prevented by the terms of reference given to us from actually looking into who did it. The evidence overwhelmingly points in one direction, but the committee was unable to look into that.

One of the things that I think Mr Dunne certainly displayed in his evidence was a total lack of remorse for any of his actions in this entire saga. I think people who have had their emails hacked or accessed completely unfairly have grounds to feel aggrieved. Someone who has been accused of leaking confidential Government information, who has failed to dispel that, who is still the prime suspect, and who is refusing to cooperate with an investigation to determine whether or not he did it, does not have any grounds to get on his high horse and complain about the way he was treated. All of the evidence still points to the fact that on the balance of probabilities, Peter Dunne probably did it. Yet he is now on his high horse and claiming that he has been unfairly treated. That is not right; it is simply wrong. Peter Dunne probably did it. All of the evidence seems to suggest that.

What is really interesting is that Peter Dunne—and this is one of the reasons that this has become a lot more political since the report came out—came out and claimed that the report vindicated him. It did not. This report does not vindicate Peter Dunne at all. In fact, the people writing the report, the Privileges Committee, were specifically excluded from being able to look into whether he did it or not. Actually, I think all of the evidence we heard still points in Peter Dunne’s direction.

The reason all of this is important, of course, is that we have now got the Prime Minister leaving the door open to Peter Dunne coming back as a Minister. The question for John Key is a very, very simple one: if he is willing to have Peter Dunne back in the executive, back as a Minister, is he comfortable that Peter Dunne did not leak the report? Because if he is not comfortable that Peter Dunne did not leak the report, he has no grounds in saying that he should be a Minister. If a Minister cannot be trusted to not leak confidential Government information, particularly security-related information, they have no place being a Minister. Why is John Key leaving the door open to Peter Dunne? It is basically because he is that desperate to cling on to power. He is quite happy to have Peter Dunne, a known leaker, in his ministry; quite happy to be propped up by that convicted criminal John Banks. That shows very clearly how desperate to cling to power this Government is.

One of the things that was very concerning in the inquiry that the Privileges Committee undertook was when we got into the time line. When we got into who did what to whom, and who said what when, it became very, very clear that there was high-level pressure on Parliamentary Service from the Prime Minister’s office.

Ultimately, why did this information get released? Well, there are two reasons. One was incompetence on the part of the inquiry. It went directly to junior staff and it asked directly for the information. It should not have done that. It should have followed the appropriate channels for obtaining the information. So the inquiry bears some responsibility.

But the second reason that a lot of this information was released wrongly was that pressure was applied by the Prime Minister’s chief of staff and by the head of Ministerial Services for that information to be released. They share responsibility for the problems. John Key said “When someone speaks to my chief of staff, they speak to me.”, and his chief of staff was one of the key people implicated in the release of this information. He made it very, very clear to Parliamentary Service that he expected the information to be released. The Prime Minister’s chief of staff, and therefore—by John Key’s own definition—the Prime Minister himself, was involved in applying pressure for this information to be released.

I think that that is something we need to take very, very seriously. Parliamentary Service holds a lot of information that the Prime Minister has no responsibility for. Parliamentary Service holds all of the information to do with the Opposition. Are we comfortable with the idea that the Prime Minister’s chief of staff could exert pressure on Parliamentary Service to dictate what it does with our information—the Opposition’s information? That is not democracy; in fact, that is an affront to democracy. Would we be comfortable with the idea of the Prime Minister or his chief of staff exerting pressure and influence to do with the release of information held by Parliamentary Service about journalists or other users of the building? Fundamentally, no. It is wrong and, in fact, it is dangerous to democracy.

What is dangerous to democracy is that it has been allowed to happen, but what is more dangerous to democracy is the fact that the Prime Minister and the Prime Minister’s chief of staff did not think they were doing anything wrong. All the way through this Privileges Committee hearing, not once did the Prime Minister or the Prime Minister’s chief of staff admit that they had exerted undue influence on Parliamentary Service to release information that it should not have. I think the Prime Minister needs to front up and accept his share of responsibility for this. He set the terms of reference for the inquiry. He did not set the terms of reference properly and well, and the inquiry was doomed to fail from the beginning. The interference of his chief of staff in the process then led to the inquiry receiving information wrongly, which it should not have received, and John Key needs to accept his share of responsibility for that, as well.

Peter Dunne is not vindicated by this report. Peter Dunne should not be reinstated as a Minister, because all of the evidence still points in his direction. The odds are that Peter Dunne almost certainly leaked the report. I tell you what: there is a condition with parole, right? When someone comes up before the Parole Board, one of the things it looks for is whether that person admits they have done something wrong and shows regret. Peter Dunne shows no remorse for the fact that he leaked this information, so he should not be reinstated as a Minister.

Let me concur with the comments made by my colleague Chris Hipkins. This inquiry into the Peter Dunne affair failed on all levels. First of all, it failed because the inquiry showed an absolute inability to distinguish between the role of the executive and the role of the legislature. The inquiry rode roughshod over the right of this House to control its own operations, free from external interference. Parliaments over the ages have fought tooth and nail to prevent that form of interference. It failed because the inquiry sought out information that was confidential and it breached the right of parliamentarians to maintain confidentiality—confidentiality about their constituents, confidentiality about their party matters, and confidentiality about information that should be kept personal. The inquiry failed to acknowledge the right of members, or even the Speaker, to be told about what was happening.

The inquiry failed on the second level because it failed to respect the role of the media and the role that the media must play as an independent watchdog in ensuring that democratic institutions behave properly. When you start tracking reporters around this building without their knowledge and when you gain access to the data that they are sending and communicating, that is breaching the line between the executive and the role of the fourth estate and its right to be independent.

So if this inquiry failed, who do we blame? I have been listening to the National Party speakers. They blamed David Henry, firstly—David Henry. Well, my question is this: who appointed David Henry and who approved the terms of reference under which he operated? The answer to that question is very clear. John Key appointed David Henry, John Key approved the terms of reference that he operated under, and suddenly John Key, as always, is nowhere to be seen when it comes to accepting accountability and responsibility. But Mr Key is responsible for setting up that inquiry and for the way in which it operated.

Then there was Mr Geoff Thorn. Geoff Thorn was the chief executive officer of the Parliamentary Service, and he was the prime scapegoat in this case—the prime scapegoat. Geoff Thorn was sacked, despite the fact that on three occasions he questioned the appropriateness of seeking that information from members—on three occasions. He was overruled. Who overruled him? He was overruled by a man called Wayne Eagleson, who is the chief of staff of the Prime Minister, John Key—the Prime Minister who says: “What I want, my chief of staff will articulate, and you will do his bidding.”

I want to recall what Wayne Eagleson sent in an email to Geoff Thorn. He confirmed that the Prime Minister wanted the Parliamentary Service to make available to the inquiry team any records or “relevant material from ministerial offices.” No wonder the chief executive of the Parliamentary Service handed that material across—material that he had initially resisted giving. He had received an edict from the voice of the Prime Minister through his chief of staff, Wayne Eagleson. So it is a bit rich for the National Party members to come into this House and say: “This is terrible. This is terrible, Mr Henry, Mr Thorn. How could they have got it so wrong?”. They got it wrong because they were acting under the instructions, or the perceived instructions, coming right from the top of the National Government—the Prime Minister—and that should not be forgotten.

This inquiry also failed because it failed to do what it was set up to achieve, and that was to find out who leaked the report. Who leaked the report?

I want to make this comment. I am not a person who is incredibly sympathetic to witch-hunts about leaks. Often a leaker—I think of Edward Snowden—will be acting because they believe that the truth should come out. That is an honourable role for a whistleblower. Neil Pugmire in New Zealand, who led me to introduce a protected disclosures bill, leaked information that the National Government of the day did not want out, but he felt that the information was important because people who were dangerous to the safety and well-being of the community were being released from a mental asylum. He took the punishment for releasing that material. The whistleblower missed out because the Government punished the whistleblower.

So generally I will look at a person’s motivation and say: “They have the right to make the truth known to the public. They have the right to provide information that the public is entitled to get.”, but in this case, there are no such motives for the leaking of the Kitteridge report. We know who leaked the Kitteridge report. Peter Dunne, a Minister of the Crown, leaked the Kitteridge report.

He had no fine, high-blown motive for letting the truth out. In fact, Mr Dunne should never be a Minister in a Government again because he broke one of the oaths that we all swear when we become Ministers—the oath to maintain the confidentiality of proceedings at the Executive Council. He broke that oath. He has no right to be a Minister. That is why he resigned. That is why it is totally improper that John Key should be talking now about bringing Peter Dunne back as a Minister.

How do we know that Peter Dunne leaked it? Well, we know that there was, over this period, something like 86 emails between Peter Dunne and Andrea Vance. I have never sent more than a couple of emails over the space of a week to anyone, let alone 86 emails over a short period of time. It indicates an obsession—an obsession. Is there any doubt, really, from any member of this House that Peter Dunne leaked that report?

Listen to what John Armstrong said in this morning’s paper, and this is a quote: “You can probably count the number of people who believe Peter Dunne did not leak the Kitteridge report on the fingers of one hand. The same people also believe the moon is made of cheese and you will find fairies at the bottom of your garden.” That is what one of the more experienced columnists said this morning about whether there was any doubt about Peter Dunne’s role in it.

What I object to is that when there was a leakage from the Ministry of Foreign Affairs and Trade, the people whom there was any suspicion of had to give their evidence on oath. Why did this inquiry not put Peter Dunne on oath so that he would have to tell the truth? The decision that the Government made was that that would not be a requirement. Double standards. When evidence was sought from the people in the Ministry of Foreign Affairs and Trade, who had a genuine cause for concern and a genuine cause to speak out because their ministry, which is one of the most competent ministries in this Government, was being destroyed, they not only had to go on oath but faced an inquisition—everything except the fingernail-pulling and the thumbscrew. That is what they faced, yet the approach was softly, softly on Peter Dunne.

Actually, John Key did not want to know that Peter Dunne had done it. He said that he accepted him at his word. Yeah, tell that to Richard Worth and to Pansy Wong. What about those double standards?

What I am most concerned about is that we now have a Government supported and sustained in office by a former Minister who in his ministerial role leaked ministerial information, a Government supported by a man who faces criminal charges, and a Government that wants to be supported by a man who believes that the Americans never landed on the moon and that, by the way, 9/11 was an American conspiracy. This is a shabby, tawdry Government that is increasingly desperate to cling on to power by relying on people of those standards and those ethics. Did John Key not promise us that he would raise the bar on ministerial standards? That has become a joke. This inquiry has failed, and that Government is responsible for its failure.

Motion agreed to.