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

I move, That the House take note of the report of the Privileges Committee on the question of privilege regarding the use of intrusive powers within the parliamentary precinct, and that the protocol for release of information from parliamentary information and security systems be adopted and brought into effect at a time to be determined by the Speaker. I do not think I need spend too much time on this excellent report given that we have previously debated the first part of the Privileges Committee’s report into a question of privilege arising from the use of intrusive powers within the parliamentary precinct. I remind the House that in the first report the committee’s function was not necessarily to apportion blame for the release of various information in a way that seemed to us on the committee to be haphazard and somewhat ad hoc. Rather, it was to try to gain a clear understanding of the facts in that situation—what information was managed by the Parliamentary Service, in whose interests, how it came it be disclosed, and what procedures were in place to prevent its misuse. So what this report does is focus on where to from here. It sets out a number of principles for the release of information held by the Parliamentary Service.

As the Attorney-General, I have a particular interest in the matter of privilege as it relates to the separation of powers. I am a member of Parliament, but I am also a member of the executive and have the Attorney-General’s role as protector of the judiciary. To that, we can now add that in my work as chair of this committee I have continued the Attorney-General’s ancient role as defender of the fourth estate and of the important work the media does in bringing transparency and accountability to the proceedings of our democracy. I say this, of course, without any inference that the media should reciprocate this affection while I am out campaigning in the closely fought battle for the marginal seat of Rongotai.

After the preliminary comments, we come to the heart of the report, which is part 3 on page 10. That report sets out four key principles regarding information on the parliamentary server. They are these—and it is very important to spell them out. Firstly: “There should be a presumption that information held on parliamentary information and security systems should not be released.” Secondly: “Individual members should retain complete control over the release of any information that relates to them. That is, material relating to individual members should only be released where that member specifically agrees to its release.”

The third key principle related to journalists: “Journalists working in the parliamentary precinct should retain complete control over the release of any information that relates to them. That is, material relating to a journalist or group of journalists who work in the parliamentary precinct should” be covered. And I reiterate this important point, because it was lost sight of in the eagerness to investigate the suspected leak last year, so it is a very important principle. We must, whether we are members of the executive or members of this House, remember at all times that we have a press gallery in Parliament so that they can keep an eye on us, not so that we can keep an eye on them. The final principle is: “For information requests that do not relate to an individual member, the Speaker of the House of Representatives should be the ultimate decision-maker.” We had quite a lengthy discussion about the role of the Speaker in determining these important matters.

So these principles are, of course, not necessarily absolute. Ministers have extensive and necessary obligations to disclose official information—for example, in response to requests under the Official Information Act—but what the principles do is form the basis of the protocol for the release of information from the parliamentary information, communications, and the security systems. A key part of the protocol is that no distinction should necessarily be made on the supposed nature of the information. A lot of energy was expended by parties over the course of the original investigation, giving rise to this report, and, in our subsequent inquiry, trying to parse the fine distinctions between data and metadata. So the protocol, which is appended to the report—and I acknowledge the tremendous help of the Clerk of the House in getting to this stage—I hope will be accepted by the House and will be able to come into force just as soon as possible, because I do think it clarifies what turned out to be an utterly unsatisfactory situation, and, as I say, we investigated the facts very closely in our first report.

I think that is all I need necessarily say about the protocol. There was a second recommendation, which I need not spend a lot of time on. The second one was that we recommend that the Government update the Cabinet Manual to reflect that where an inquiry is established under the Inquiries Act, the exercise of powers in relation to members of Parliament and the parliamentary agencies will require recognition of parliamentary privilege, and that the Government develop some standard terms of reference for use in any inquiry when it seems or appears that powers may be exercised in relation to members and the parliamentary agencies. I think we need that, given that there will from time to time be inquiries set up under the Inquiries Act 2013 and we do not want to get into the unhappy situation that we found ourselves in, in 2012-13.

I thank all the members who served on the committee. I think we have reached a very good place and everyone worked very hard on the report not just for members of Parliament but for members of the press gallery so that we have got some clarity going forward.

While we thank the people who assisted the Privileges Committee, could I make mention of Debra Angus and Meipara Poata. Debra Angus and Meipara have provided assistance to various committees over the years. Actually, when you come to these issues, which are arcane in terms of the constitutional principles at large, Debra Angus, I think, is probably one of the experts in the Commonwealth. I particularly value the advice that we get from her and the assistance to the committee that we get. It is interesting that some of the reports that we have done recently have turned up being quoted in reports of other Commonwealth Parliaments around the world, particularly in relation to our questions concerning parliamentary privilege.

What caused this inquiry was something that, really, it would be hard to script in one of those old silent movies, the Keystone Cops. It was the report that went wrong into the report that went wrong. The original report was that of Rebecca Kitteridge into things that went wrong at the Government Communications Security Bureau (GCSB) and concerning those affairs of State, which I do not want to make light of because they were serious affairs. It then turned out that that report was leaked to the media. We all know that it was leaked by the Hon Peter Dunne. We note that that is not because of admission; it is just that he has refused to deny it. He lost his ministerial portfolios—for a very brief period, because the Prime Minister thought he might need him to form a future Government, I think was the reason. So he had, effectively, a very short time suspended as a Minister.

We then had, as a consequence of the leak that was never proven because the Prime Minister refused to reach a conclusion on all the evidence that it had been leaked by Peter Dunne, the incident of the manner of the inquiry into the unauthorised release of information relating to the GCSB compliance review report—i.e., this is the inquiry into the leaked report by Rebecca Kitteridge. This inquiry was by Mr Henry, and Mr Henry and those who assisted him managed to get released to them things that should not have been released. Those included documents relating to the movements of members of the gallery, notably Andrea Vance, and copies of phone records, which indicated who was phoning who.

💬 John Hayes: Who was phoning whom.

Whom. Thank you. The finest contribution from Mr Hayes! Knowing Mr Hayes as I do, I will go and check that one afterwards. I wish him well in the next stage of his career.

It then transpired that the Henry report did not even use the Official Information Act, which could have actually been quite useful for getting information from the ministerial hard drive as to whether the ministerial hard drive was used for communications with the press, which would probably have been disclosable under the Official Information Act. Actually, we still have not had a final decision on that from the Ombudsman; it is so long after the event that it has become a bit farcical. But not having used the Official Information Act to get what was probably official information under the Official Information Act because it was ministerial information, I do not think it is permissible for a Minister to claim that they did something on a ministerial hard drive and then, because it is inconvenient for them that it proved they leaked a document, claim that it should not be disclosed under the Official Information Act. But in any event that is not the route that Mr Henry took. He managed to convince Parliamentary Service to release information that ought not to have been released, and then we had the hullabaloo about the release of both information of members of Parliament and information that should have been kept confidential for the press.

I want to make the fundamental point that the reason that we do this is not actually to serve our own interests. It is to protect democracy. One of the things that are very important in this Parliament is that members of Parliament can go about their business. They can receive information confidentially from constituents. They can, where appropriate—

💬 Denis O’Rourke: Or journalists.

That is right. They could receive the information confidentially from journalists. They can receive information confidentially from anybody, and that ought to be their information to disclose, unless it is information that they hold as Ministers within the Official Information Act or the ambit of the Official Information Act. It is important that that be retained because that is actually one of the mechanisms by which we protect, in appropriate cases, the anonymity of people who are bringing us information—to encourage them to do so—through the processes that we have, including the privilege that we have in Parliament to actually say things, even if they attack the interests of the wealthy and might in ordinary circumstance be suppressed because of the risk of a defamation suit at the behest of people who feel that they do not want their reputation undermined, even if it is a fair undermining of their reputation. Some people have got very deep pockets and go to extraordinary lengths to protect their position.

So one of the roles of this Parliament is to protect the cleanliness of democracy by being transparent about things that go wrong, and that is what this actually relates to. If the information that comes to members of Parliament can be obtained and given to somebody else, well, it is less likely that information will come to us. Similarly, the role of the press is to work around this place and find out where things are going wrong. Sometimes that is through disclosures by members of Parliament. Sometimes those disclosures are not to the liking of their own political parties, but, none the less, that is one of the things that happen in democracy. The role of the media to try to winnow those things out and encourage people to talk about things that perhaps should not be happening within political parties from time to time is a very proper role of the press gallery, and the media ought not to have the confidentiality of their communications, which are held on parliamentary systems or where they walk around the building, able to be scrutinised on the basis of the swipe card records that are held by computer systems as a consequence of when we swipe through electronic locks as we go from one part of the building to other parts of the building.

So it is for those reasons that the Speaker referred these issues to the Privileges Committee. The Privileges Committee has come up with a series of recommendations that we agree on unanimously across Parliament, which is fantastic. All of the areas of disagreement were worked through by the members of the committee so that we got to agreement, and we all agreed in respect of the likes of that swipe card information, which really would not have been available to be collected a few years ago. It was only when we had these electronic security systems and the computer systems to keep records of those over time that we could have the sort of information that can establish patterns. Similarly, a lot of the stuff that is collected on emails would not have been in written communications in earlier years, and the phone records, which are now so detailed, would not have been available years ago either. You would have just picked up the phone and there would not have been an electronic record of the numbers that were being phoned.

That sort of information is now collected for different reasons, but it ought not to be automatically disclosed, so we make the presumption that this sort of information should not be released and that individual members should retain complete control over this. We discussed the issue as to whether that should be something that could be divulged to whips of parties, and we all agreed that it ought not to be. It ought to be the preserve of individual members of Parliament. In respect of journalists, again, we were absolutely clear that they ought to be in a similar position and should retain control over the information that affects them. That would not stop the Official Information Act release of ministerial information that showed dealings with a journalist, because that is actually disclosable under the Official Information Act. In respect of other information, the Speaker is delegated to do it, and we trust the Speaker to do that well.

I do not think I will say anything more than that. I think that this is a good report. These things, as I say, are not actually for the protection of individual members; they are to keep this place functioning for the good of democracy.

It is 1 year now since the Speaker ruled on a question of privilege raised by the Green Party. The issues involved the exercise of intrusive powers against members and the release of information from parliamentary information and security systems. The particular incident involved the release of information to the Henry inquiry that was held on parliamentary information systems.

The Privileges Committee was asked neither to investigate the matter as a contempt of privilege nor to determine who was responsible for the release. This was a mistake. The resulting terms of reference made it inevitable that certain issues would never come to light, so the result was always going to be partially unsatisfactory. The committee was not tasked with finding who leaked the Kitteridge report, so the public is none the wiser on the facts.

Our new wisdom lies in a blinding clarity over the dangers of taking constitutional principles for granted, even as weak as ours are. Consider the background. The Kitteridge report into the Government Communications Security Bureau (GCSB) was leaked by a member of Parliament, so the Prime Minister ordered another inquiry to identify the leaker. The Henry inquiry failed to do that, succeeding, rather, in racking up a spellbinding series of errors all of its own. We like to characterise ourselves as a decent and casual people who do politics in a decent and casual way. That is fine as far as it goes. It is when things go wrong that we regret the lack of guidelines, whether it is deregulation and Pike River, or an invertebrate constitution in the Henry report. We are one of only three countries that lack a written constitution, and we probably have the least-developed mechanism in place to compensate.

The mistakes of the Henry inquiry were largely those of individuals—an excessive zeal for the task, reflecting hubristic youth; a callous indifference from the inquiry leadership to procedural practice, and an emerging cult of prime ministerial dictate. These kinds of problems can usually be neutralised in other countries by constitutional protection. Without it, they can be exacerbated and even run amok. That is the lesson of the Henry inquiry.

The committee’s formal task was to examine the incidents involving the release of information from parliamentary information and security systems, and a more general issue of appropriate principles for access to, and the release of, information from parliamentary information and security systems—in other words, find no individual guilt but find out what went wrong and craft a mechanism for ensuring it can never happen again.

A comment on process. The Green Party was dissatisfied with the committee’s decision not to have the Prime Minister or the Speaker appear. 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 choice of inquiry, and publicly released the report. He acknowledged ministerial responsibility for the inquiry. In this exercise Mr Key formed the apex of the executive branch of Government. For his part, the Speaker, being responsible for Parliamentary Service, formed the apex of the legislative branch in the matter. He too bore primary responsibility for certain aspects of the inquiry. It defies logic that the Privileges Committee, exploring the shortcomings of an inquiry in which the two members of Parliament who bore primary responsibility for it do not testify, could perform the job entrusted to it, with some irony, by the Speaker.

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

Second, the chief executive officer of the Department of the Prime Minister and Cabinet is a co-commissioner of the inquiry. The chief executive officer draws up the terms, in consultation with the Prime Minister, and is actively engaged in the inquiry, yet he is one of the suspects.

💬 Hon Christopher Finlayson: Focus on the report and the protocol.

I am requested by the Attorney-General to focus on the report and the protocol. I will do so when I have completed my criticism of the process. Third, the chief executive officer then seconds a staffer to the inquiry. The staffer acts only under the supervision of the investigator, yet he exercises personal freedom in visiting Parliamentary Service on his own initiative, at third-tier level, thereby undermining the authority of the general manager of that body.

Fourth, the inquirer adopts the 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 guidance 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 integrity.

Fifth, the main recipient of the request, the General Manager of Parliamentary Service, has doubts about releasing information on a Minister and journalist’s communication plus their parliamentary records, yet he feels compelled not to second-guess the requests because of their security implications. The material does not involve issues of national security but, rather, domestic politics, which should have heightened, not diminished, those concerns.

Sixth, the chief executive of the Prime Minister’s office becomes engaged. He takes it upon himself to authorise Parliamentary Service to release data pertaining to Ministers and journalists. He does this on the basis that the terms of reference have been made public and that the Prime Minister has made it clear he expects Ministers to cooperate with the inquiry. In fact, there is no cause for him to become involved in the inquiry at all, given it had been commissioned by the head of the Department of the Prime Minister and Cabinet.

Seventh, the co-commissioners harbour uncertainty over the particular status of one Minister, who has been given the report in the capacity as a coalition party leader, but is subsequently expected to cooperate as a Cabinet Minister. This blurs further the distinction between his role as a member of the executive, as a Government Minister, and a member of the legislature as a member of Parliament. No one appears to care.

Eighth, no official involved, whether Department of the Prime Minister and Cabinet or the Prime Minister’s office, appears to acknowledge that request for data pertaining to communication between a Minister and a journalist unavoidably means obtaining information from a journalist. Refusal to acknowledge this is strange. In the hearings the most senior officials in the land seemed bemused by this self-evident fact.

Ninth, the information platforms maintained for Ministerial Services and Parliamentary Service become operationally merged in late 2011 for reasons of efficiency. This appears not to bother the Department of the Prime Minister and Cabinet, the Prime Minister’s office, or the inquirer. Constitutional separation of powers appears not to be an issue of concern to them.

The sloppy operation of the Henry inquiry rests on a series of individual misjudgments. They derive from systemic failings of our governmental system. The first is the merged information platform between Parliamentary Service and Ministerial Services, which clouds the already opaque distinction between executive and legislature in New Zealand. The second is a governmental culture that has developed that whatever the Prime Minister wishes to occur must occur. These are our criticisms of the inquiry, both process and substance.

On a more positive note, the protocol itself that the committee has submitted to the House is a very sound one and should serve as a mechanism that we were seeking to ensure that the above mistakes and acts of executive hubris can never occur again. I commend the protocol to the House.

I am sure that my colleague Mr O’Rourke will speak tomorrow when we return to this matter—[Interruption]—and it is peak viewing time, that is right. It is always popular, the slot immediately before 10 o’clock. I rise to speak in support of the report. I want to acknowledge all of the staff who were involved in producing it—the Clerk of the House, Debra Angus, and also Meipara Poata, the clerk of the Privileges Committee—and thank them for the assistance we were provided with, which was excellent throughout.

This comes to us as a result of a shambolic episode in the way in which this Government has operated in terms of the activities of the Government Communications Security Bureau (GCSB). Let us not forget at the core of this lies illegal spying on New Zealanders. That is something that is very serious and something that the current Government would wish that we stopped talking about, but it remains a blot on this Government that it has had a report into that and that the law has been changed in such a way that, in fact, the likelihood of it occurring again has not changed. On top of that, we then had the question of the leaking of this report and, to this day, New Zealanders do not know for sure who it was who leaked the report. One or two of us have suspicions about who it might have been—

💬 Hon Ruth Dyson: Who’s that?

Well, that is actually the Hon Peter Dunne, because he has not ruled it out. But more to the point, as Kennedy Graham was just saying, this huge process that we have gone through was set up because the Prime Minister said he was going to get to the bottom of who leaked a sensitive report about one of our security agencies, and yet he dropped it because he did not want to have to acknowledge that it was one of his own Ministers, someone whom he has now reappointed to a role as a Minister to prop up this Government.

Debate interrupted.

Sitting suspended from 10 p.m. to 9 a.m. (Wednesday)