McCully Murray: Urgent Debates — Diplomatic Incident Malaysian Official—Negotiations Regarding Waiver of Diplomatic ImmunityText is incorporated into the Bound VolumeMcCully Murray: Urgent Debates — Diplomatic Incident Malaysian Official—Negotiations Regarding Waiver of Diplomatic Immunity[Sitting date: 02 July 2014. Volume:700;Page:19132. Text is incorporated into the Bound Volume.]Hon MURRAY McCULLY (Minister of Foreign Affairs):That there have been some shortcomings in this case is something that is not denied by members of this side of the House but the member who has just resumed his seat David Shearer does himself no credit by dealing in such an intemperate fashion with what is such an important matter. First it might be useful to the House if I were to outline the facts as they are known to me.The incident that is at the heart of this matter occurred on the evening of 9 May of this year. A diplomat a serving military officer from the Malaysian Embassy was arrested by police and there was some confusion about the matter because steps were taken by the police that probably should not have been taken without the waiver of immunity. There was a discussion I know involving Ministry of Foreign Affairs and Trade officials the next morning to establish whether immunity applied in this case or not. I was informed on 10 May—the Saturday—that an arrest had been made involving a Malaysian diplomat and was advised that the Ministry of Foreign Affairs and Trade as is its customary practice had sought a waiver of immunity as is conferred under the Vienna Convention on Diplomatic Relations. I was fully satisfied that those were appropriate steps. The nature of the advice that came to me was to enable me to deal with any media inquiries that might occur not to solicit any approval or action on my part.Can I say to members opposite that they are being either wilful or foolish in making assertions that Ministers in any Government should get themselves involved in the prosecutorial process or in the consideration of a request for waiver of diplomatic immunity. That is something that Mr Shearer and others have tried to put abroad in the last day or two. Let me be very clear about this: the day we see Ministers become engaged in decisions in process about prosecutions and the day we see Ministers get involved in determining which diplomats might be the subject of a request for immunity or not is a very sad day in a country that prides itself on promoting the rule of law. Indeed can I point out to members opposite that just a few weeks ago they were dining out on some allegations against one of my colleagues asserting that he had been involved in a conversation with police about a prosecution matter and here we have those same members of Parliament asserting that my crime is that I did not interfere in a prosecutorial process.What is very clear is that the Ministry of Foreign Affairs and Trade did exactly the right thing by lodging a third-person note asking formally for the Government of Malaysia to waive the immunity that was available to this individual under the Vienna convention. Mr Shearer criticises me for making those documents available. Well let me respond to that. The third-person note is a rather anodyne document—one that simply outlines in diplomatic language the formal request for their Government to waive the immunity that was available. The response that was received by our Government is again an anodyne document declining it. There is no question of embarrassment of any sort in releasing those documents. There was clearly last night an appetite amongst some commentators and members of the news media to check that we had in fact had the exchange that the Government had informed the media we had had. I had no objection to those documents being released and I am sure that the Malaysian Government has no objection to those documents being released.Let me fast-forward a little bit to what happened subsequently. Last Friday for the first time I was made aware that this diplomat had gone home to Malaysia and that the waiver of immunity that had been sought by the New Zealand Government had not been granted. Mr Shearer and others have suggested that I should have known earlier and that I should have done something about it. As to the first part I agree with Mr Shearer. I agree with him very strongly that on a matter of this sort I should have been informed by the ministry. There are a number of formal ways in which that should have occurred because this is a matter of significance. A New Zealand complainant who has been the victim of an alleged serious assault was clearly going to be denied the right to see this person brought to trial in New Zealand if the waiver of immunity was not granted. That is a matter of significance and it should have been brought to my attention.It is also blindingly obvious that if this person was brought to trial by way of a court martial in Malaysia or indeed if anyone had followed up on these events domestically through the police or elsewhere it was likely to become a matter of media interest anyway. So the idea that somehow the Government might be part of some cover-up is frankly ridiculous. What has clearly happened here is that there has been a shortcoming in the ministry in failing to inform its Minister and other Ministers that this formal request has formally been declined by the Malaysian Government. I agree with Mr Shearer and others that we clearly should have been told and we were not.Can I say to those who think that this is an incident that occurs only once in a decade or something of that sort that sadly we do from time to time receive these matters—David Shearer: Not an attempted rape Murray. God how often does that happen?Hon MURRAY McCULLY: I have actually been asking exactly that question; I have got quite a lengthy list. It is also the case that sometimes these requests are declined. In every case I would expect the Ministry of Foreign Affairs and Trade to draw these matters to the attention of its Minister. As to what should happen after that that is a question of judgment but what I say is that Ministers cannot take steps if they do not know and in this case I did not know and I should have known.Last night I was confronted with a situation where the Malaysian Foreign Minister was making public comments in Malaysia with every good intention that did not match with the statements I had made in the New Zealand media. I had been quite clear and I had advised the Prime Minister so that he was quite clear of the New Zealand policy which is that we would in all of these cases seek a waiver of the immunity available under the Vienna convention. That is the position we have adopted in the media over the last few days. When it became clear to me that Minister Anifah whom I know and have worked with for some time was under the impression that the outcome in this case was one that was acceptable to the New Zealand Government I thought I should make some further inquiry.It concerns me very greatly indeed that the Malaysian Government might be under the impression that the formal steps we had taken were not the only options that were acceptable to us as an outcome in this case. I had not given any mandate beyond that and none had been sought from me so I started to search the files which were eventually I must say made available to me. Immediately upon drawing the conclusion that our stewardship of this issue had some shortcomings attached to it I made a statement to be clear about that with the New Zealand public and the New Zealand media.I want to try to portray as accurately as I can what I did see in those files because there were a number of exchanges; in particular a meeting on 12 May between New Zealand officials and Malaysian officials and there was also some email traffic. Firstly I must say—and I do want to emphasise this—that the third-person note that the New Zealand Government forwarded to the Malaysian Government very clearly stated our desire to see this person be able to stay in New Zealand to stand trial for his alleged crime. That formal request is there. It was also clear to me that there were a number of informal interactions both oral and email that had the nature of blurring that information. It was clear to me that officials had engaged in informal communications over some of the complexities in this case—and I will not comment on those complexities—in a manner that would have enabled the Malaysian Government to draw more inferences from the discussion than I felt comfortable with. In short I am saying that the officials who advised Minister Anifah that the Malaysian decision would have been one that was satisfactory to the New Zealand Government had been given a basis for making those statements.I am very confident that Minister Anifah in making his decision did so with the very best of motives believing it was possible that New Zealand would accept the outcome of Malaysia declining the request. It is very clear that the chief of the defence force in Malaysia had a very strong desire to see this person put on trial by way of a court martial and if any members present doubt the severity of that I think they need to learn a little bit more about Malaysian military law.I was also comforted to see Minister Anifah state very clearly that he was open to an extradition application if New Zealand was not satisfied with the process. I say again to Mr Shearer and others that that is not something that Ministers initiate. We do not initiate extradition proceedings. Police independent prosecutorial authorities who have conducted the work and who are able to make an assessment make those applications. The New Zealand Police I am sure will give consideration to whether such a step is warranted in this case.Finally I just want to say this. Minister Anifah made it very clear to me that he regarded the alleged actions of this official as tarnishing the reputation of every Malaysian diplomat who serves in New Zealand or anywhere else around the world and his Government will leave no stone unturned to hold this person to account. I want to place on record my very considerable confidence that Minister Anifah is a man of his word and stands firmly behind those commitments. I am also saying that in this case there are clearly grounds if the police want to to initiate the extradition proceedings that Mr Shearer and others are urging should be initiated and Minister Anifah has indicated his preparedness to grant such extradition.This is not a situation where I can say I am satisfied with the steps that have been taken. The victim here is due an apology and her family is due an apology because what should have been a straightforward application that was supported by straightforward informal communication by the ministry for which I hold responsibility—it did not carry out its business in that straightforward fashion leading to a response that is out of line with the wishes of the New Zealand Government and I am sure the New Zealand people. It has also been the case that some of the assurances the Prime Minister has given in public have been given without the full knowledge of the informal communications on the file. I have taken responsibility for that. I have indicated to the Prime Minister that I am deeply apologetic for that reason and I have done my best to set the matter straight to set the record straight at the first available opportunity.This is not a series of events that we can look back on with great pride but the important thing is to secure justice for this victim and her family. There are some avenues available for us to ensure that that occurs. They all involve us engaging properly with the Malaysian Government. That is a duty that I take very seriously and one that I will pursue over the days ahead.