Privilege — Question of Privilege Concerning the Agreements for Policing, Execution of Search Warrants, and Collection and Retention of Information by the New Zealand Security Intelligence Service

I move, That the report of the Privileges Committee on the question of privilege concerning the agreements for policing, execution of search warrants, and collection and retention of information by the New Zealand Security Intelligence Service be noted, that the recommendations be adopted, and that the Speaker enter into amended agreements on behalf of the House to be brought into effect at a time to be determined by the Speaker. In moving that motion I want to acknowledge the work of the committee. Finalisation of the report was delayed because the committee needed to finalise its report on the use of intrusive powers in the parliamentary precinct, and, as we heard, that matter has now been dealt with. When this initial reference was made, frankly, I thought it would be a rather boring reference, but it turned out to be a very interesting piece of work raising some very interesting questions, and there are one or two further matters that the Speaker will need to consider arising out of this report. But, before I deal with those, let us just briefly summarise how we got to where we are.

Three agreements were entered into between the Speaker of the House and law enforcement agencies. The Speaker has the authority to control Parliament’s precincts under the Parliamentary Service Act 2000, which is why he or she can enter into these arrangements. Indeed, there is a very sound constitutional reason why the Speaker would enter into these agreements. Parliament as the legislative branch of government must be able to conduct the business of governance of this place without the disruption or hindrance of the use of intrusive powers. There are three agreements: firstly, policing functions within the parliamentary precinct; secondly, the execution of search warrants on premises occupied or used by MPs, with both of those signed with the Commissioner of Police; and, thirdly, the protocol on the collection of information on a sitting MP, signed with the New Zealand Security Intelligence Service. We think that these agreements—and this is a preliminary point—and any other similar agreements should always be published or otherwise made publicly available, for example, on Parliament’s website. Before the reference to the committee, I, for example, was completely unaware of their existence. I think all MPs should be aware of them and should be aware of what the Speaker has done on behalf of Parliament.

So, first, let us look at the policing functions protocol. We think that this protocol is working well. The protocol intends to make sure the police understand they should carry out their duties in a way that does not impede MPs from carrying out their duties within the parliamentary precinct. This protocol was entered into in 2007 and we think that the protocol could be reviewed by the parties so that its terminology and legislative references can be updated. We also think it would be useful to include a disputes resolution process in the agreement.

Secondly, the agreement relating to the execution of search warrants is an interim arrangement and so it actually has been very useful to take a good look at the agreement and see what can be done to improve it. An important issue arose about execution. Enforcement agencies’ preferred method—

💬 Grant Robertson: Interesting concept.

Well, in relation to you it would be a delightful one. Enforcement agencies’ preferred method—not you, Mr Deputy Speaker, of course—

💬 Chris Hipkins: He just can’t help but be nasty.

I am not being nasty. A bit of jocularity across the House—

💬 Hon David Parker: I raise a point of order, Mr Speaker. Look, I do not think that can be passed. You ought not to be executed.

I was actually about to correct myself, and, of course, I would never refer to the Speaker—

💬 Mr DEPUTY SPEAKER: I will uphold the point of order. I might be leaving but I am not going to be executed.

Well, I certainly would uphold it and mea culpa, mea culpa, mea maxima culpa. So, the preferred method, before I was so rudely interrupted by Mr Robertson, for executing warrants for information stored electronically is often seizing hard drives or other equipment in order to make clones so that the content can then be examined. That, actually, may not be appropriate where the possibility exists that the device could also contain material covered by parliamentary privilege. It would seem utterly inconsistent with the principle that the House has the exclusive right to control its own proceedings, and so what we have recommended is that the protocol set out a system of chaperoning, which is an interesting term, the examination of electronic evidence—in fact, I think the term came from an English report, as I recall it—and that an IT specialist assist with executing the search warrants in relation to electronic documents. The protocol currently does not make explicit that privileged material may not be seized, and we think this does need to be made clear, as well as a requirement that any material later found to be subject to parliamentary privilege should be returned to the member in question. Determinations have to be made by the Speaker, and we recommend that this be made very clear in the agreement.

We also recommend that the agreement refer to the definition of proceedings of Parliament, which is set out in the Parliamentary Privilege Bill, the second reading of which the House will shortly be dealing with. We also think it would be helpful were the agreement to set out practical examples of material likely to be privileged, in order to provide more guidance in applying the agreement.

Then, the third one was a very, very interesting discussion that we had about the memorandum of understanding between the Speaker and the SIS on the collection of information. The SIS will not generally direct the collection of information on a sitting MP. If the service has a file on a person who becomes an MP, the file is sealed for the duration of the member’s term in Parliament. The collection of information on a sitting MP will be permitted only where the particular member is suspected of activities relevant to security. The collection has to be personally authorised by the director, and the Speaker is briefed confidentially about the proposed collection and the reasons for it. The agreement respects the need for confidentiality in relation to the service’s activities, and we recommend that the agreement be amended to include a statement of principles and purpose and an expression of respect for parliamentary proceedings, because this is a very important agreement, raising some very, very important issues, and we think that a clear statement of principles is required.

We also recommend the agreement should require the Speaker to be consulted in relation to any interception or seizure warrant to be executed on the parliamentary precinct or in an MP’s constituency office, and that the director should provide a written memorandum to the Speaker in advance of such warrant being issued, setting out the information held by, or the activities of, the member that may directly constitute a security concern. I think—well, you would expect me to say this, because I chaired the committee—the report is a very good one.

I must say, in conclusion, that we had a really interesting and important discussion about the role of the Speaker—Dr Graham will say something about that shortly—and whether the Speaker can be trusted to receive some of this highly sensitive information and to adjudicate on matters relating to a member of Parliament who may come from a different party. They are very sensitive issues, but the committee had a good discussion about it and the conclusion was that, putting aside partisan differences, when the Speaker takes the oath of office, the Speaker is there to guard the interests and the privileges of all members of Parliament, and when carrying out his or her functions in relation to these agreements, will always need to be mindful not of partisan considerations but of the fact that there is a member of Parliament, albeit from a different political party, whose rights are being interfered with, and so great caution will need to be exercised at all times. This just emphasises the incredibly important role of the Speaker as the guardian of the interests of members of Parliament. The Speaker must never ever forget that important task. Thank you.

I agree with the comments of the Attorney-General, who I think has expressed the issues well. I am not going to take the full allocation of time for my call, but I will make a couple of points. This is another report in a series that the Privileges Committee has brought forward in respect of properly delineating the line of what is a parliamentary proceeding, and being very clear that we are standing for the rights of Parliament, not in respect of our own personal interests as members of Parliament but because we are trying to protect the essential privileges of Parliament in order that Parliament can properly go about its business and protect democracy. That is at the heart of the changes that have been made to the agreement with the SIS to make it absolutely clear that proceedings of Parliament are absolutely privileged and that even the SIS cannot overrule that. That is the first point I would emphasise.

The second and final point that I want to address is the one that the Attorney-General ended on. Can I add my thanks to Dr Kennedy Graham in respect of raising this issue with the select committee, which is that where there are outside agencies that come into contact with Parliament, they do so through the Speaker. The Speaker, of course, has able assistance from the Office of the Clerk, but the person whom they liaise with, in a titular sense, is the Speaker. The Speaker is relied upon by this Parliament to act absolutely impartially. Kennedy Graham raised the suggestion that in respect of some of these very, very sensitive issues where it is possible that an outside agency might be doing something that is wrong or is political rather than be interested in purely security issues, there was a need to bolster the efforts of the Speaker by introducing someone else, whether it be the Leader of the Opposition or some other person. I am sure Kennedy Graham will address this more ably than I am.

In the end the committee concluded that we have to rely upon and trust the Speaker. It was quite instructive for me because it reminded me of how important the independence of the Speaker is. I think it was the Attorney-General who said to the committee—and I did not know this until he said it—that in Great Britain, for example, once the Speaker is appointed, the Speaker becomes a lot less political than the Speaker is in New Zealand. The Speaker generally exists beyond Parliaments in Great Britain—and the Attorney-General can tell me whether I have got this wrong—and, indeed, the tradition is that with regard to the seat from which the Speaker comes, the other party does not stand a candidate against the Speaker. All of this emphasises the independence of the Speaker and the duty that the Speaker has to Parliament rather than to their own political party.

One of the reflections I have as we come out of this report is I wonder whether as a country we can actually do a little bit better in the future in encouraging that independence of Speaker. This is not a criticism of the current Speaker or Speakers past, but, actually, the independence of the Speaker in New Zealand is not quite as entrenched as it obviously is in England. For example, some Speakers do and some do not—and this has happened on both sides of the House—attend caucus meetings after they have become Speaker. I suspect that in the UK they never do. We still stand candidates from opposing parties against Speakers, and Speakers do not exist beyond the term of a Parliament in New Zealand. They generally leave with the governing party. If the governing party changes, so does the Speaker. So it would be interesting for us to reflect, I think, as members of Parliament as to whether we would be a better institution, whether we would run better, and whether there would be more trust in things like question time if the Speaker really was imbued with these other attributes of independence. That is the only thing I would contribute to the debate. I recommend the report of the Privileges Committee, which is unanimous, to the House.

It is almost 2 years now since the Speaker referred to our Privileges Committee questions of privilege arising from agreements he had signed with the Police and the SIS. Those agreements were automatically up for review. The committee, as is the norm, worked constructively and to good purpose. In our report we suggested several changes to the agreements that in our view will improve matters. In one case, however, I shall explore the implications of the agreement, even in its improved state, because they raise profound issues attending to our notion of the world in the 21st century and New Zealand’s place within that.

Let me make, first, a general comment. I do query whether confining these types of agreements to the status of memoranda of understanding is of itself sufficient. They reside at the centre of the constitutional relationship between the executive and the legislature. They evoke the most sensitive of all issues—domestic order on the one hand, when it comes to the police, and global order on the other, when it comes to the SIS. They involve concepts that are subtle, politically relative, and open to contestation. In such a scenario, if the chips are down, it is likely that the executive will claim an imperative duty and prevail over the legislature in any dispute on grounds of national security. This occurs now, when the Prime Minister, as the Minister of intelligence services, withholds information from the House on precisely those grounds. The system in this country defaults, through lack of mature convention, in favour of the executive. It might be queried, therefore, whether a memorandum of understanding, which is legally unenforceable in the courts, is the right way to go, when the issue of executive-legislature relations is at stake. Perhaps we should give thought to incorporating this kind of thing into primary legislation, as we are doing with the Parliamentary Privilege Bill, but that is for the future.

Let me comment on the Privileges Committee’s views, as reported back to the House. With regard, first, to the two police agreements involving search warrants, the Green Party endorses the select committee’s recommendations, which included a disputes resolution process, a system for chaperoning the examination of electronic evidence, the engagement of an IT specialist, an understanding that the Speaker determines when information is subject to parliamentary privilege, a 24-hour default period to seek legal advice, cross-reference to the Parliamentary Privilege Bill, and the definition of “proceedings in Parliament”. We endorse all of this. The relationship between Parliament and the police will benefit from these improvements.

Let me now turn to the SIS agreement, on which we worked constructively across party lines, while engaging in serious and meaningful dialogue in one particular area where we differed a little. First, there are the areas of consensus. The SIS agreement should be amended to include a statement of principles and purpose. The Speaker should be consulted by the SIS director in relation to any interception or seizure. In advance of such a warrant being issued, the SIS director should provide a written memorandum to the Speaker, setting out the actions done or information held by a member that might constitute an issue of security concern. The agreement should specify that the Inspector-General of Intelligence and Security has a role in overseeing the actions of the SIS in relation to the agreement. Consideration should be given to whether it is necessary for the Speaker to enter into a separate agreement with the Government Communications Security Bureau in light of the organisation’s potential role in assisting others in exercising their lawful authority.

Some of these recommendations are the result of Green Party proposals that reflect our concerns, and I thank committee members, especially the chairman, the Hon Chris Finlayson, for his capable and constructive stewardship. The committee stopped short of agreeing with all of our proposals, and that did not come as a total surprise, but it was the result of some useful discussion on the nature of national security, perhaps to an unprecedented extent in the New Zealand Parliament.

The essential issue is this. At present the SIS must close any file on any person who is elected to Parliament but it may reopen a file or open a file for the first time on a sitting MP if the MP is suspected of undertaking activities “relevant to security”. This may involve simply the collection of information, or it may extend to a warrant for surveillance or interception. In these circumstances the SIS is to brief the Speaker, who must ensure that parliamentary privilege is properly respected. The SIS director is to provide in advance a written memorandum to the Speaker setting out the actions done or information held by a member that may constitute an issue of security concern.

This is fine as far as it goes, and the requirement for a written memorandum was our suggestion. The problem we still have is that it is left to only one member of Parliament, namely the Speaker, to be briefed on what is a matter of security concern. The question of whether the opening of a file on a sitting member should be discussed by the SIS with only the Speaker or with any other senior member of Parliament was raised by the Green Party, and the reason for raising the matter is the evolving nature of the meaning of national security in the 21st century.

Security, as defined in section 2 of the current legislation, the New Zealand Security Intelligence Service Act 1969, has four components. One refers to espionage, sabotage, and subversion. The second refers to New Zealand’s international well-being or economic well-being. The third refers to activities that are influenced by any foreign organisation or foreign person and are clandestine, deceptive, or threaten the safety of any person. The fourth refers to terrorism. So you can see the scope for subjective difference of view, respectfully held, of what within that definition might constitute an act of security concern.

A political party may have a fundamentally different interpretation of what constitutes security from an interpretation that might be embraced by the SIS. It could be queried, for example, whether the SIS should be permitted to undertake surveillance on New Zealand citizens who may hold different views from any Government on what is in New Zealand’s international or economic well-being. That might apply to any party—National as much as Green. This is not a matter of subversion; it is a matter of difference of democratically held opinion within domestic law. We therefore are of the view that although the Speaker is the embodiment of the House, it is still a necessary reassurance to the public that an equally senior member of Parliament from another political party be briefed by the SIS at the same time in addition to the Speaker. The obvious person is the Leader of the Opposition, as was noted earlier by my colleague David Parker. The conventions of independence of the Speaker and dissociation from politics and a particular party are not developed in this country as much as elsewhere—particularly in the United Kingdom. So, even with the best of intent, a Speaker may make a misjudgment or could be prejudicing the interests even of his or her own party colleagues as much as other party colleagues.

Those are our views on the matter. I could elaborate, but I think the discussion was sufficient in the committee to warrant further consideration. We believe that the report goes some considerable way to improving the operation of the SIS in relation to Parliament and to individual members of Parliament. We therefore endorse the report, but there is clearly still a need for further ongoing dialogue on this vital and sensitive subject.

This report follows on from the report of the Privileges Committee into the Henry inquiry following the Kitteridge report leak. New Zealand First endorses the recommendations in the report concerning the amendment of the agreements for policing, execution of search warrants in a way consistent with the proper functioning of Parliament, and the collection and retention of information by the New Zealand Security Intelligence Service. Anyone who gives a damn about democracy—and New Zealand First certainly does—will consider this an important report in terms of New Zealand’s constitutional and parliamentary integrity.

We must never have a repeat of the shambles that was the Henry inquiry. That exposed that there was indeed something rotten in the State of New Zealand. We had confirmation that what we in New Zealand First had been saying from the outset—that Mr Henry was not qualified in any way, shape, or form for the inquiry—was correct. Mr Henry was, in fact, a completely inappropriate appointment. Anyone could see that his record could not possibly have qualified him for the job. Of course, that was precisely why the Prime Minister picked him for the job—just another example of the kind of tricky dick behaviour we have come to expect from this Prime Minister. And—surprise, surprise—the Henry inquiry actually provided no answers; it just left more unanswered questions. The Henry inquiry was, therefore, more than anything, in my view, an indictment of John Key and of his contempt for democratic process.

Our democracy is not just the right to vote every 3 years, as we are about to do. Real democracy is a complex web of spoken and unspoken rules and conventions that give it true meaning—not just the semblance of democracy, not just a veneer to keep the public calm and quiescent. The privacy of media communications is one of those aspects that are vital to an effective, functioning democracy. It is a privilege that must be cherished and must not be abused, and is one of the core elements that underlie our democratic State. The Privileges Committee made it clear that there had been contempt for this principle, not just by Mr Henry but by senior parliamentary officials. If they are not guardians of democratic practices, who is? The interim report talked of “errors of judgment” by parliamentary staff. That must be the understatement of the century. Mr Thorn fell on his sword, and to his credit he accepted his accountability and left.

But John Key was deeply implicated in this absolute mess, as well. Where is the acceptance of accountability from him? Of course, we have learnt not to accept any such accountability from this Prime Minister. This report is a wake-up call, showing how easy it is for the essential props of democracy to be kicked away. One thing is for sure: when John Key is around, hyper-vigilance is necessary. Mr Key and his cronies will unthinkingly trash our democracy, just like they are trashing so much else in this country at the present time. That is the real message to be learnt from this whole sorry affair.

I am going to take just a brief call on this report from the Privileges Committee looking at “the agreements for policing execution of search warrants, and collection and retention of information by the NZSIS”. Comments made already by the Attorney-General, Chris Finlayson, my colleague David Parker, and Kennedy Graham cover most of the material the report has.

What I want to talk about are two things. The first is a very specific matter that when I came on to the Privileges Committee I was concerned about in this area, and it is that when search warrants are executed—this is not just for Parliament but more generally—nowadays, with the growth of the use of electronic information storage, it is the practice of an agency to seize the entire hard drive of a person who is involved in an investigation in order to get the particular documents or information that is desired.

When a member of Parliament is in that situation, there may well be material on that hard drive that is quite separate from what is being sought and that actually could be captured and taken away from a member of Parliament in such a way as to compromise both parliamentary privilege and the general operation of our work as parliamentarians. So I applaud the recommendation that is in this report that, actually—and this is the “chaperoning” concept the Attorney-General mentioned earlier—an IT specialist will assist in the execution of the warrants to ensure that our rights as parliamentarians are upheld and that parliamentary privilege is protected within that. I think that that is a small but very important advance for us, to ensure that we do not, as parliamentarians, hand over material that ultimately is privileged and should not be part of those investigations.

The other point I particularly want to make is around the question of the New Zealand Security Intelligence Service and its role with Parliament. I appreciate the fact that this report is, in fact, following on from an interim report of the committee in this area and following on from protocols that were signed off several years ago—

💬 Hon David Parker: By Margaret Wilson.

—that is right—by Margaret Wilson as the Speaker.

There is a fundamental principle that I think needs to be reiterated here, and it is that the SIS is not, under normal circumstances, going to be collecting information about a sitting member of Parliament. As the Attorney-General said, once someone becomes a sitting member of Parliament, their file is closed immediately. I think it is very, very important that we make sure that is on the record of the House as the fundamental underlying principle here.

What can happen is that, for reasons of national security, there may be on occasions situations in which the SIS may want to be looking at the activities of a member of Parliament. The threshold for doing so must be very high, because we, as parliamentarians, need to be able to go about our business unencumbered by the activities of State agencies with significant powers. It is on that point that I want to raise my concerns. They are that a review of the Security Intelligence Service was planned and was never completed. In the maelstrom of all of the concerns about the Government Communications Security Bureau (GCSB), Kim Dotcom, and the appointment of Ian Fletcher, that review of the SIS was quietly shelved by John Key.

I believe it is essential that that review is done. The Labour Party’s policy is that we need a review of both the Security Intelligence Service and the GCSB, and, in fact, of all of the agencies involved in our security intelligence system, which also now includes particularly the Organised and Financial Crime Agency of New Zealand, as part of the police.

In the absence of that review, public trust and confidence in our security intelligence agencies has reached an all-time low in New Zealand. For my part, I am deeply distressed by that. I am a person who believes that it is important that we get the balance between security and privacy in our society right. In the modern era, that is even more important. I understand, and the Labour Party understands, why we have these agencies working for us. There are reasons. There are people in the world today from whom New Zealand needs to be protected, but equally our privacy and our rights as citizens must not be compromised by that, and our privacy and our rights as members of Parliament representing citizens must not be compromised by that.

At the moment, legislatively, for the GCSB, we now have, in my view, legislation that goes far too far in terms of that balance, and we have lost that balance between security and privacy. [Interruption] That is right. As my colleague David Parker says, the absence of the requirement for a warrant and the fact that we have to essentially rely on the assurance of the Prime Minister about how these investigations will be operationalised is ridiculous and is, in fact, an insult to this Parliament.

The SIS sits alongside that, operating in operations within New Zealand without the review that was meant to take place. We need that review to happen, to restore trust and confidence. In fact, for this report to have my full and complete confidence, we need to know that review is going to happen. It is noted in the report that the issues that Kennedy Graham has been discussing in his contribution need to be considered whenever the legislation governing the SIS is reviewed. Well, my view is that it urgently needs to be reviewed.

Having said that, the situation we find ourselves in today is that the Speaker is the person who acts on behalf of this Parliament in dealing with these agencies. We must have confidence that the Speaker will act in a way that upholds the rights of all members of Parliament, no matter what party they come from. It is also true to say that under the New Zealand Security Intelligence Service Act as it stands, the Director of Security does need to consult with the Leader of the Opposition from time to time. Without going into any detail about those matters, I think they would tend to be at the more general level, not at the specific level of what might be happening with a particular member of Parliament. Therefore, the Speaker’s responsibility here is extremely high.

I do not think we are at the end of our discussion about the role of the Speaker, as David Parker has mentioned, or, indeed, about the relationship between this Parliament and agencies with powers, such as the SIS, but this report represents a series of useful changes to the processes that were originally brought forward. From the point of view of the Labour Party, we can support this report, but we welcome the idea of ongoing dialogue about the role of the SIS in relation to Parliament. We strongly urge and, in fact, commit to the public of New Zealand that we will do the review of security and intelligence agencies that is needed to restore public trust and confidence in them.

Motion agreed to.