Clendon David: Privilege — Consideration of Interim Report of Privileges Committee Question of Privilege Regarding Use of Intrusive Powers Within the Parliamentary PrecinctsText is subject to correctionClendon David: Privilege — Consideration of Interim Report of Privileges Committee Question of Privilege Regarding Use of Intrusive Powers Within the Parliamentary Precincts[Sitting date: 04 December 2013. Volume:695;Page:15254. Text is subject to correction.]DAVID CLENDON (Green): 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 GovernmentCommunications Security Bureau (GCSB) which came to light more or less by accident and required theKitteridge inquiry. ThatKitteridge report as we know now was leaked. The Prime Minister then ordered another inquiry to identify theleaker. 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 aDad’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 theKitteridge 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 individualmisjudgments. The task remains for the committee in its final report to identify ways in which these shortcomings can be rectified. Kia ora.