Robertson Grant: Privilege — Consideration of Interim Report of Privileges Committee Question of Privilege Regarding Use of Intrusive Powers Within the Parliamentary PrecinctsText is subject to correctionRobertson Grant: 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:15252. Text is subject to correction.]GRANT ROBERTSON (Labour—Wellington Central): It is a pleasure to rise and speak on this interim report from the Privileges Committee. I would certainly accept one thing that the Attorney-General said in introducing his comments which is that there were a number of very serious issues that arose during the Privileges Committee inquiry into these matters. It is important to note that this interim report is about establishing what happened in this particular incident what we can learn about went wrong and what changes are needed. This part of the inquiry is very much grounded in what happened and what happened was a sorry tale of an inquiry that quite frankly was a shambles from day one.On day one the terms of reference for the inquiry were set and that was done by John Key in accordance with WayneEagleson AndrewKibblewhite from the Department of the Prime Minister and Cabinet and Ian Fletcher from the Government Communications Security Bureau. They were the people responsible for the setting of the terms of reference. We were told at the Privileges Committee that it was John Key as Prime Minister who signed off on the terms of reference. So let us set that right at the start—this was John Key’s inquiry and those terms of reference were set in such a way that it was nearly impossible to find out who actually leaked theKitteridge report because the powers of that inquiry were set in such a way that Mr Henry was prevented from having people appear on oath or from having any kind of subpoenaing situation. Inevitably given the small range of people who actually had access to theKitteridge report he was going to run into trouble.So the question was raised during the Privileges Committee hearings as to whether or not the terms of reference were set up to really find out who leaked theKitteridge report. As at today although we have somebody who is acknowledged by everybody from the Prime Minister down as the chief suspect—Peter Dunne—we do not actually know who leaked theKitteridge report. The Henry inquiry was set up in such a way thatthat was almost inevitably going to be the outcome—beyond a stark confession from somebody in the process.Peter Dunne today is an MP and not a Minister but John Key has told us that it is quite possible he will return as a Minister. If John Key is comfortable with Peter Dunne returning as a Minister then he is implicitly saying that Peter Dunne did not leak the report. That has to be the conclusion and that means that this whole process—theKitteridge report the Henry inquiry—has left us none the wiser as to who leaked a sensitive confidential document. It is frankly slack leadership by the Prime Minister and wilful blindness as to what was actually going on in this case.So the facts established in this inquiry were that all of Mr Henry’s attention went to Peter Dunne and yet the Prime Minister is prepared to say today that maybe he will come back into Cabinet. I find that an unbelievable situation and quite clearly the terms of reference I believe were set up in such a way that they were never going to get to the bottom of who actually leaked this report.The major issue that came out from the Privileges Committee investigation was around the blurring of the lines between the executive and Parliament. The Parliamentary Service Act actually says in section 6 that Parliamentary Service is not “an instrument of the executive government.” That is quite an unusual thing to find in an Act—a negative statement about what Parliamentary Service is not—but that is because Parliamentary Service was set up very deliberately so as not to be able to be encumbered by the executive. What we saw throughout the process of this inquiry was the blurring of those lines.The blurring of those lines occurred once Parliamentary Service agreed to release information about Ministers and their records. It is very important to note that three times the then head of Parliamentary Service Geoff Thorn said he did not want to release the information when he was asked firstly in two different ways by the Henry inquiry and then by Janice Calvert from Ministerial Services. It was only when the Prime Minister’s chief of staff WayneEagleson intervened on 9 May—Hon Trevor Mallard: Speaking for the Prime Minister.GRANT ROBERTSON: As he does Mr Mallard on every occasion. As John Key has told this House: “If you speak to my chief of staff you are speaking to me.” That is what John Key has told this House. So when WayneEagleson wrote to Geoff Thorn in an email and said: “Further to our discussion this is to confirm that the Prime Minister would like Parliamentary Service to make available to the Inquiry team records from Ministerial Office photocopiers and any other relevant material requested.” that is the Prime Minister blurring the lines between the executive and Parliament.That is what fundamentally went wrong here. That phrase “any other … material requested” became hugely significant as this inquiry went on. It is true that David Henry and his inquiry team overreached their mandate—there is no doubt about that—but that opened the door. WayneEagleson saying “any other … material requested” was the Prime Minister telling Parliamentary Service: “This is how it will be.” So the fault for that blurring of the lines ultimately lies at the Prime Minister’s feet and I do not believe that that has been properly accepted by the Prime Minister.So we have Geoff Thorn we have David Henry and we have WayneEagleson who are all part of the blurring of those lines and I do support the comments of the Attorney-General with regard to the clarification of that. Within that there was quite clearly a conflict about the different roles that the people in Parliamentary Service were expected to play.Sitting suspended from 6 p.m. to 7.30 p.m.GRANT ROBERTSON: As I was saying before the dinner break one of the major issues within this report is the blurring of the lines between the executive and Parliament. As parliamentarians we guard jealously the privileges and rights that are given to us here. The distinction between what Parliamentary Service does for us as parliamentarians and what is done for Ministers was one of the issues that arose but the significant issue was around the release of data that was about members. As I said before the break Geoff Thorn who was then the head of Parliamentary Service three times refused to release that information but on the intervention of the Prime Minister’s chief of staff acting on behalf of the Prime Minister he did release that information.We believe on this side of the House that that contradicts what the Prime Minister said throughout the period of this inquiry—that he was not involved in it. He quite clearly was. He set the terms of reference for it. He was the person whose chief of staff was intimately involved throughout the process and made the very critical intervention that saw data released. As I also noted before the dinner break I am not saying that that was the only piece of blame that could be apportioned out of this. It is quite clear there was plenty of blame to go around and David Henry and his inquiry team overreached but this was the Prime Minister’s inquiry that they were undertaking.In the time remaining I want to talk about a couple of issues. One of those is the question of metadata versus content which was a significant debate during the Government Communications Security Bureau bill. It is worth noting that in this inquiry it was the release of metadata—the so-called information about information—that was actually critical to what happened. David Henry found out that there were 86 emails between Peter Dunne and Andrea Vance because of the metadata. Some of that metadata was not meant to be released apparently and that argument—that the Government felt it was not to be released—is one that I will come to in a minute.If New Zealanders are to have confidence in the security of their information metadata is significant. The content of emails was requested and eventually some was released inadvertently some was released deliberately and some was pulled back but it was that metadata that was the critical element in this investigation. When we are considering the security of New Zealanders’ data generally I think we have to bear that in mind.This is a sorry saga. The Henry inquiry was poorly run. It was poorly set up. Those involved in it were not conscious of the boundaries between the executive and Parliament. They rode roughshod over those boundaries but at the end of the day New Zealanders are still none the wiser as to who actually leaked theKitteridge report—a sensitive confidential document. The Prime Minister set up an inquiry to do that. Today he tells us he may let Peter Dunne back into Cabinet and it is possible for him to do that only if he believes that someone other than Peter Dunne leaked theKitteridge report. New Zealanders are owed an explanation by John Key as to who leaked theKitteridge report. He has not provided that and as a result New Zealanders will not have confidence in his word.