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

Just to recap, as I began briefly last night, we are debating here a report that has arisen from one of the most shambolic episodes this current Government has been involved in: the leaking of a report into the activities of the Government Communications Security Bureau (GCSB). As I said last night, to this day New Zealanders do not know for sure who it is who leaked that confidential report, despite being given assurances by the Prime Minister, John Key, that the Government would find that out and that he would get to the bottom of that. The reason New Zealanders do not know for sure is that the person who has been identified as the most likely source of that, the Hon Peter Dunne, refuses to admit it, and the Prime Minister, John Key, has refused to follow up that matter in the way that he would have been expected to do by most New Zealanders. On this side of the House we find that greatly regrettable.

What then followed was an investigation into the leaking of the report that in itself was an ongoing shambles. It involved the provision of information that should not have been given to the inquiry led by David Henry. It was an inquiry set up with terms of reference developed by the Department of the Prime Minister and Cabinet and the GCSB, with John Key as Prime Minister. Perhaps somewhat unsurprisingly, given that mandate, the inquiry was able to get a lot of information that, as the Privileges Committee has worked through these questions, we have been deeply concerned that they were able to get. But we should not leave the matter of how this inquiry came about, how the terms of reference were written, and the exertion of power in this case by the executive. Those matters were ones that the Prime Minister and his chief of staff should have been considering. There is no doubt in my mind that the fact that this inquiry was set up by John Key is one of the factors that led to information being released that should not have been released, because the power of the executive was being used in that way. I will come back to that point in a moment.

So with that as the background, what we have before us today is a thorough consideration of the outcome of this shambolic set of events, and that has turned into something useful. I do want to acknowledge Mr Finlayson as the chair of the Privileges Committee. He briefly left the Chamber last night as I got up to speak. I am sure those two events were totally unrelated. I was not able, at the time that I was giving thanks to the various staff members and other members of the Privileges Committee, to acknowledge Mr Finlayson for his role in chairing the meeting. He occasionally allowed me to speak—only briefly and only on matters that were wholly relevant to the report—and I thank him for his chairing of the committee and his shepherding of this report through to the House.

I think it is important when we look at the report that we acknowledge a couple of things. The first is that the committee expresses in the report our grave concern at the lack of regard of those involved in this situation for the separation of the executive from Parliament. That is a very important principle that we are protecting today in the protocol that will be passed as part of this report. It does not matter which party is in power in terms of the importance of that separation, but what was drawn out was that the decisions about the release of information in this inquiry process drew out the fact that there was now a blurring of lines between the executive and Parliament. Although the question of who should have access to that information is not an easy one to resolve, as the report says, there is no doubt in the mind of this committee and in my mind that that cannot be the prerogative of the chief executive of the Parliamentary Service or, indeed, the chief executive of any other department. As the committee says in its report, we are troubled that this incident arose as it did, because there are protocols in place about the release of information, particularly involving the SIS, and we will come to that in the next item of business.

It does seem peculiar to me, and it did to the committee, that this information was ultimately released as a result of the say-so of the executive branch of the Government. It was, in fact, ultimately John Key’s chief of staff, Wayne Eagleson, who was the person on whom reliance was placed for whether it was OK to release information. I do want to put on record that the then head of the Parliamentary Service, Geoff Thorn, actually refused to release information multiple times because he felt that that was not something he had the power to do, and it was only from Mr Eagleson’s intervention that he then did release the information. This is relevant to this report, because that is what lies at the heart, and the Privileges Committee has said that in our report: the concern that we need to have much clearer protocols in place to ensure there is separation between the executive and Parliament on these matters.

So the main substance of our report is the drafting and release of a protocol for the release of information. As Minister Finlayson said in his speech, there are key principles that underlie that. The most important of those for me as a member of Parliament is that we, as members of Parliament, retain complete control over information that relates to us. It has been said by other speakers in this debate that we do a number of different jobs as members of Parliament relating to individuals in the community and relating to other people inside these precincts that are not and should not be released unless we say it is OK. There is an element of privacy. There is a question of the constitutional role that we play as members of Parliament and that can be compromised if we do not have the kind of protocol that is here.

The second core element of the key principles is that journalists working in the parliamentary precincts should also have that level of control. It is true we share this environment as a working space, but journalists have certain obligations and roles in our society that need to be protected, and they were compromised in this incident. The fact that swipe card information relating to a journalist was released is wrong. It compromises the ability of the fourth estate to do its job, and it should never have happened. Under this protocol, in the future, it will not happen.

The key feature of the protocol is written consent from affected individuals, and that is something that we are very pleased to see in there. I do want to make the point before I finish that, of course, disclosure of information can be compelled by law through the Official Information Act, in particular, and also through the Inquiries Act. That is as it should be, particularly because official information relates to the work of Ministers of the executive, and there are plenty of clauses within the Official Information Act that ensure that things can be withheld if they need to be, but that is the role of Ministers exercising their executive function. What this protocol protects is the rights of members of Parliament and those working in this complex to be able to know that their information is held securely. This is a very good report, I believe, from the Privileges Committee. I welcome the fact that the protocol has widespread support across the House, and I look forward to the Speaker signing up to the protocol, as is envisaged here.

New Zealand First considers the Privileges Committee report in this case to be of the highest importance. The recommendations are significant and go to the heart of our democracy. The recommendations are that the House adopt the protocol for release of information from parliamentary information and security systems; that the Cabinet Manual be updated to reflect that where an inquiry is established under the Inquiries Act 2013, the exercise of powers in relation to members of Parliament and the parliamentary agencies will require recognition of parliamentary privilege; and that standard terms of reference be developed for use in any inquiry where it appears that the powers may be exercised in relation to members and the parliamentary agencies. So those are the three recommendations we are here to consider.

As we know, the report stems from the letter Russel Norman sent to the Speaker on 11 July 2013, which was later ruled by the Speaker to raise serious issues surrounding privilege. The letter was in relation to the release of information that was held on parliamentary information systems for the inquiry into the unauthorised release of information relating to the Review of Compliance at the Government Communications Security Bureau report. That leak was of the Kitteridge report.

The committee was not asked to determine who was responsible for the leak or treat the matter as a contempt of privilege. Actually, it was hardly necessary to do so. There is no doubt in my mind that the person who leaked the report was Peter Dunne. I take no pleasure in saying so, but it needs to be said. He has never really denied it. He has equivocated and obfuscated. In my opinion, he has never really been very honest about it. That is a sad way to end a distinguished parliamentary career. Of course, that will be up to the people of Ōhariu. Let us hope that they see their responsibility to do the right thing.

The Privileges Committee presented an interim report in December 2013, which highlighted important issues about protecting the privileges and immunities of the House, freedom of speech of members, and Parliaments ability to maintain control within its precinct. The main consideration was, firstly, the issue of who should have access to parliamentary information and security systems and when, which goes to the heart of parliamentary privileges. The role of the media as an essential part of an open and transparent democracy was also of course involved. Secondly, the other issue raised was that information from the systems was more easily accessed through a request from the executive than it would have been had the New Zealand Police been investigating a criminal act. The need for a comprehensive protocol was pretty obvious.

New Zealand First fully supports the principles to guide the release of information, especially the presumption that any information held on parliamentary information and security systems should not be released. We think it is fundamental that individual members should retain complete control over information that relates directly to them, unless they give clear and specific written consent. How on earth could members of Parliament operate effectively otherwise? They must never be in a position of having to worry about what might be released when they should have complete control and permit release only with specific consideration and consent. I think that is extremely basic and very important, as otherwise the work of MPs would become almost impossible.

The media who work in the precinct should also retain complete control over information that relates to them, and it should be released only with their specific authorisation. Any information that does not relate to a specific member will be dealt with by the Speaker of the House of Representatives as the ultimate decision maker. That seems to be perfectly appropriate. We agree that the two underlying and overarching protocols and principles regarding the release of information are the requirement for written consent from the affected individual or party prior to the release of information in any circumstances or the disclosure of information being required by the operation of law, but not in respect of requests under the Official Information Act or Privacy Act. In conclusion, New Zealand First fully supports the committee’s recommendations, which I outlined at the beginning of this speech and, in particular, that the House adopt the protocol for release of information from parliamentary information and security systems.

It is impossible to consider this report into the use of intrusive powers within the parliamentary precinct without considering the context of how this all came about and why we are here having this debate. We are here having this debate effectively because a Minister of the Crown was accused of releasing a report and in the process of investigating that accusation a whole lot of files were accessed, including phone logs, email logs, and so on. The question arises as to whether or not that was appropriate. It related to a journalist within the parliamentary complex and it related to a Minister, and that raised the wider issue of members of Parliament and the information held by members of Parliament.

I want to make a clear distinction at this point, though, between a Minister and a member of Parliament, and I think we should never forget that there is a clear distinction there. A Minister is covered by the Official Information Act, and the information that they hold in their ministerial capacity is public information covered by the Official Information Act, with all of the rules that govern that. There are very clear processes around that. Members of Parliament are not covered by the Official Information Act, nor are journalists who work in the parliamentary complex or many of the other staff who work in the parliamentary complex. The reason that I make that distinction is very important. Peter Dunne, who was the Minister accused of leaking the report, tried to make a distinction, during the Privileges Committee inquiry, between his personal email account—I do not know whether it was a Gmail account or whatever—his parliamentary email account, and his ministerial email account. He argued that when he was sending any emails using his Parliament email account, he was doing so in his capacity as a member of Parliament, and that when sending any emails using his ministerial email account, he was doing so in his capacity as a Minister.

The reality is that the distinction is not that clear. It is not the means of the transmission of the communication that matters; it is the communication itself. So if it is ministerial information—i.e., it is public information—it does not matter whether it is communicated using a ministerial account, a parliamentary account, a private Gmail account, an MSN Hotmail account, or whatever other account you want to use. It is still official information, and it is still covered by the Official Information Act because it relates to a Minister’s ministerial responsibilities. For example, Ministers have parliamentary responsibilities, too. They often deal with constituency matters. So if it is a constituent communicating with a Minister in their parliamentary, not ministerial, capacity, that is a grey area, quite frankly, and that does become a lot more difficult because often it is difficult to establish whether this is a ministerial issue or an MP issue. That can be a grey area, and Ministers need to have pretty clear protocols within their own offices about how they deal with that.

But the critical thing with regard to this inquiry was that it could easily be argued that the information that the inquiry was seeking with regard to Peter Dunne could be obtained in an official capacity outside this protocol because he is a Minister. Because he is a Minister, he is covered by the Official Information Act. What was interesting, as the inquiry progressed, was that it became clear that the inquiry never asked for that information using the channels available to it. It could have requested that information under the Official Information Act, but it chose not to do that. So we got into quite a lengthy discussion with the inquiry about why that came to be, but it became very clear that there were some significant issues with the way the Inquiries Act could be applied in the future. It became clear that there was a real need to clarify all of the issues and responsibilities here and to make sure that sufficient safeguards were put in place to protect all those working in the parliamentary complex, including the fourth estate—the journalists—so that they could be protected from the potential abuse of power.

I am not in any way suggesting that this could happen now, but without these kinds of protocols in place, there is a possibility that someone in a future Government, whatever the shape of the Government may be, could misuse the powers of Government under the Inquiries Act to, effectively, delve into the affairs of another political party, a member of Parliament from another political party, or a journalist and that they could do that inappropriately. The protocol that we are putting in place here, which we are asking the Speaker to adopt, makes sure that that cannot happen. It makes sure that there are safeguards in place so that the incumbent Government, whoever it may be, cannot abuse its position and cannot gain access to information that it could not otherwise gain access to. There is further to come in the next report. We are going to talk about the execution of search warrants within the parliamentary complex and so on, because it actually all fits under, I guess, an umbrella of issues that governs what happens within the parliamentary complex.

There are some important principles at stake here. Members of the public need to be able to communicate with members of Parliament and know that that communication is going to be protected. We deal with those issues all of the time. That is very important. Members of the fourth estate need to know that they can function within the parliamentary complex and do their role as a watchdog—a check and balance on the use and abuse or otherwise of power within the parliamentary complex—and know that they are going to be protected. What became apparent is that up until the point of this protocol, journalists had greater protection when it came to court proceedings, legal proceedings, and so on than they had here in Parliament. I think this protocol goes some way to addressing that deficiency and making sure that all the rules are clear and that that power cannot be abused. I think this is a good report. I want to congratulate the chair of the Privileges Committee, Chris Finlayson.

💬 Grant Robertson: Don’t go over the top.

I am being warned by my colleagues not to go over the top, but I think that the inquiry and the deliberations around the report were conducted in a fairly collegial manner by all sides of the House. We had some very interesting discussions. I think that the report that we have produced is a quality one. I think the next one that we are going to be debating is a quality one too, and I think that we have also done quite a good job of deliberating on the Parliamentary Privilege Bill, which we are also going to be debating.

I also want to congratulate the Government in terms of the timing of when it is putting this legislation through. I think it is good to do it before an election, so that it applies to the new Parliament. If anything, it kind of follows the protocol that we have with the Standing Orders—that you make changes to the Standing Orders at the end of a term of Parliament so that it applies to the future Parliament and therefore avoid any accusations that any current Parliament is changing the rules to suit itself. I think the idea of having these reports go through so that they take effect from the beginning of the next Parliament—given that we have only 1 week and half of this one left—is an important principle and it is a good one.

I will leave my remarks on this particular report at that. I think it is a good report, I think it is good that the protocol is going to be adopted, and I think it will provide that safeguard in the future that has been lacking.

I will take a very short call on the very useful report of the Privileges Committee on the use of intrusive powers here at Parliament. This debate is important because the report arises from a misguided attempt to gag the media and threaten the press gallery, and that is always a mistake.

I would like to draw attention to another recent example affecting the privileges of this House and an attempt to gag the media. Recently I was interviewed by Sean Plunket. I said a few things there, and shortly after that the pet barrister of the leader of New Zealand First threatened that company with defamation. The connection and connotations involved with the pet barrister of the leader of New Zealand First representing an undischarged bankrupt who avoided tax tell their own story, and make rather a mockery of any semblance of honesty in that leader’s speech to the convention on Sunday.

I would be happy to table for the benefit of members the May 1997 decision of the Auckland District Court, wherein the court found “Mr Henderson guilty, and convict him on each of the 30 charges of smuggling and each of the 30 charges of wilfully making false entries.”

💬 Denis O’Rourke: What’s this got to do with this debate?

I take offence.

💬 Mr DEPUTY SPEAKER: Proceed.

Thank you. Anyway, as I said, it was just going—

💬 Andrew Williams: Come on, Jimmy. Give us your best shot.

Mr Deputy Speaker, did you hear the interjection from that member?

💬 Andrew Williams: Get on with it, Jimmy.

Did you hear that interjection from that member?

💬 Mr DEPUTY SPEAKER: I will chair the House; the member will continue with his speech.

I take offence at that interjection.

💬 Mr DEPUTY SPEAKER: The member needs to take a point of order.

I raise a point of order, Mr Speaker. I take offence at the interjection from Andrew Williams.

💬 Mr DEPUTY SPEAKER: It was inaudible from here. If the member has taken offence, the member Andrew Williams should withdraw the comment.

Thank you.

💬 Andrew Williams: I withdraw.

As I was saying, it is very, very important that the Privileges Committee report is looked at seriously and the motion passed. I hope that it will also look at some of those people who bully within Parliament, like some of those members of New Zealand First. Thank you very much.

Motion agreed to.

Consideration of Report of Privileges Committee

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