Walker Holly:Inquiries Bill — In CommitteeText is incorporated into the Bound VolumeWalker Holly:Inquiries Bill — In Committee[Sitting date: 21 August 2013. Volume:692;Page:12738. Text is incorporated into the Bound Volume.]HOLLY WALKER (Green):I am pleased to take a call on Part 3 of the Inquiries Bill. In my contribution earlier I mentioned that there were some assurances that the Green Party had sought since my contribution in the second reading last night. In this part I want to focus on those and talk about those because in my contribution to the second reading last night I outlined a number of concerns that the Green Party held with clauses in this part of the bill mainly clauses 21 and 23 which are about the powers to obtain information for inquiries under the new legislation and the disclosure of evidence. Just to remind the Committee those powers are quite extensive. Underclause 21 an “inquiry may as it thinks appropriate for the purposes of the inquiry—(a) require any person to—(i) produce any documents or things in that person’s possession or control or copies of those documents …” and under clause 23 an “inquiry—(a) may on its own initiative or on the application of another person order any person to disclose to any person participating in the inquiry any specified document information or thing that the person has produced before the inquiry;”. So those are quite extensive compulsion powers and they are new because they will now apply to Government inquiries as well as commissions of inquiry.Last night we abstained at the second reading because we had a number of concerns about this. We were concerned that on a face-value reading at least the powers in those clauses could have required for example journalists to disclose their sources or MPs to disclose their private communications with their constituents. I outlined these concerns to the House last night. I think we had in the House quite a helpful response from the Hon David Parker who made the link between this legislation and the Evidence Act via clause 28 which gives witnesses and other participants in inquiries the same protections as would apply to civil proceedings under the Evidence Act. That was a helpful contribution from the Hon David Parker. But the privileges alone that he listed in his contribution last night were not enough to allay the concerns that we had.So I took a closer look at the Evidence Act this morning and I did find it reassuring regarding the two specific concerns about the protection of journalists’ sources and the protection of MPs’ communications with their constituents because the part of the Evidence Act that applies in this situation to this bill includes section 68 of the Evidence Act. Section 68 of the Evidence Act explicitly makes clear that a journalist cannot be compelled to disclose the identity of their sources in any civil proceeding. Because this bill treats an inquiry in the same way as a civil proceeding would be treated that gives a clear indication that journalists’ sources would be protected and would not be compelled to be disclosed by an inquiry under this legislation. That was the first assurance that we sought and we are reassured by that.Similarly section 69 of the Evidence Act which also applies via clause 28 of this bill provides protections for confidential communications not to be disclosed including the protection of particular relationships and including protection for the free flow of information. Our reading of clause 69 of the Evidence Act is that this would also cover MPs’ communications with their constituents. That is very important because although in the Green Party we absolutely support greater transparency both in the conduct of inquiries like public and Government inquiries but also more generally in terms of the coverage of the Official Information Act which we believe should apply to the Parliamentary Service it is very important that confidential communications with constituents are protected in both scenarios so that people can contact MPs with the confidence that the information they share with us will not be disclosed publicly. So we are again reassured by the application of section 69 of the Evidence Act that these concerns are adequately dealt with under this legislation as well.The other area of concern that I canvassed last night in the second reading relates to parliamentary privilege. We in the Green Party had a question about what would happen if the Henry inquiry into the leak of theKitteridge report into the Government Communications Security Bureau (GCSB) was held under the new legislation. What would have happened in that situation? Under the current law ministerial inquiries have no power to compel witnesses to appear before them or to disclose evidence but under the new law the equivalent new Government inquiries will have those quite extensive powers outlined in clauses 21 and 23. So we have to be quite careful in teasing out what this means in practice to make sure we are not inadvertently inappropriately extending powers that could impinge on parliamentary privilege. We were concerned about thepotential misuse of that power in ministerial-driven inquiries to compel the disclosure of information like email records like phone records and swipe card records. After all clearly in the case of the Henry inquiry some compulsion was felt by the Parliamentary Service to disclose that information even though there was no power of that inquiry to compel the disclosure of that information. So our concern was that if that is what happens in a situation when the inquiry had no power to compel that disclosure what would happen in an equivalent inquiry if that power did exist? We were quite concerned that that could involve the compulsion of the disclosure of information that is subject to parliamentary privilege.This does come down indeed to the question of whether such communications are protected by parliamentary privilege. If they are they would be protected under this bill because along with all the other kinds of privileges that are protected under clause 28 parliamentary privilege is protected. So the nub of this question really is whether those communications we saw in the Henry inquiry are protected by parliamentary privilege. It is our view in the Green Party that they are and that is why my co-leader Dr Russel Norman indeed wrote to the Speaker inviting him to consider that matter and that has resulted in these matters being referred to the Privileges Committee. Clearly they are now the subject of a live inquiry by that committee the hearings for which took place today. Ultimately the Privileges Committee will rule on whether privilege applies in these particular types of situations. It is our view that it does but that is a matter for the Privileges Committee to decide.Indeed we may eventually see parliamentary privilege legislation coming before the House in order to clarify these matters. In our view it is very important that these matters of privilege are clarified. We do still have a concern that if those matters of privilege are not clarified the powers of compulsion granted under this legislation could be applied inappropriately by ministerial inquiries and we could see encroachment by the executive into the territory of the legislature in terms of breaching parliamentary privilege. But we are satisfied that according to the letter of this law parliamentary privilege is protected under this legislation and what we have to ensure is that it is adequately understood and respected by ministerial and Government inquiries in future and is not encroached on in the way it was in the Henry inquiry.I want to also acknowledge and thank MinisterTremain’s office. It turns out he is in charge of the bill and I want to thank him for the response he gave us—Grant Robertson: Today.HOLLY WALKER: —indeed today—on these matters which confirm this interpretation of the sections of the Evidence Act on the matters of parliamentary privilege. I am pleased to be able to tell the Committee that the Green Party will be able to support the legislation. We will no longer abstain but it is good that we have had the opportunity to put these concerns on the record and have them considered by the Committee of the whole House because they are very important. They do go to the heart of principles about democracy and although it is needed—the current legislation needs to be modernised and has been on the Order Paper for a long time—we are concerned that this legislation is being rushed through quite quickly in the space of this week. So it is important that the Committee takes the time to consider these matters seriously and I thank those members who have taken our contribution seriously and responded to it both in the second reading and the Committee stage. I think it makes for better lawmaking and hopefully in the end a better understanding of how these important matters of privilege and confidentiality will apply under the new Inquiries Act.