Banks John: Privilege — Consideration of Interim Report of Privileges Committee Question of Privilege Regarding Use of Intrusive Powers Within the Parliamentary PrecinctText is incorporated into the Bound VolumeBanks John: Privilege — Consideration of Interim Report of Privileges Committee Question of Privilege Regarding Use of Intrusive Powers Within the Parliamentary Precinct[Sitting date: 04 December 2013. Volume:695;Page:15259. Text is incorporated into the Bound Volume.]Hon JOHN BANKS (Leader—ACT): 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 thelast 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.