Privilege — Consideration of Report of Privileges Committee Question of Privilege Regarding Use of Intrusive Powers Within the Parliamentary Precinct Consideration of Report of Privileges Committee Question of Privilege Concerning the Agreements for Policing Execution of Search Warrants and Collection and Retention of Information by the New Zealand Security Intelligence ServiceText is incorporated into the Bound VolumePrivilege — Consideration of Report of Privileges Committee Question of Privilege Regarding Use of Intrusive Powers Within the Parliamentary Precinct Consideration of Report of Privileges Committee Question of Privilege Concerning the Agreements for Policing Execution of Search Warrants and Collection and Retention of Information by the New Zealand Security Intelligence Service[Sitting date: 22 July 2014. Volume:700;Page:19333. Text is incorporated into the Bound Volume.]Tuesday 22 July 2014(continued on Wednesday 23 July 2014)PrivilegeConsideration of Report of Privileges CommitteeQuestion of Privilege Regarding Use of Intrusive Powers Within the Parliamentary PrecinctDebate resumed.GRANT ROBERTSON (Labour—Wellington Central):Just to recap as I began briefly last night we are debating here a report that has arisen from one of the most shambolic episodes this current Government has been involved in: the leaking of a report into the activities of the Government Communications Security Bureau (GCSB). As I said last night to this day New Zealanders do not know for sure who it is who leaked that confidential report despite being given assurances by the Prime Minister John Key that the Government would find that out and that he would get to the bottom of that. The reason New Zealanders do not know for sure is that the person who has been identified as the most likely source of that the Hon Peter Dunne refuses to admit it and the Prime Minister John Key has refused to follow up that matter in the way that he would have been expected to do by most New Zealanders. On this side of the House we find that greatly regrettable.What then followed was an investigation into the leaking of the report that in itself was an ongoing shambles. It involved the provision of information that should not have been given to the inquiry led by David Henry. It was an inquiry set up with terms of reference developed by the Department of the Prime Minister and Cabinet and the GCSB with John Key as Prime Minister. Perhaps somewhat unsurprisingly given that mandate the inquiry was able to get a lot of information that as the Privileges Committee has worked through these questions we have been deeply concerned that they were able to get. But we should not leave the matter of how this inquiry came about how the terms of reference were written and the exertion of power in this case by the executive. Those matters were ones that the Prime Minister and his chief of staff should have been considering. There is no doubt in my mind that the fact that this inquiry was set up by John Key is one of the factors that led to information being released that should not have been released because the power of the executive was being used in that way. I will come back to that point in a moment.So with that as the background what we have before us today is a thorough consideration of the outcome of this shambolic set of events and that has turned into something useful. I do want to acknowledge Mr Finlayson as the chair of the Privileges Committee. He briefly left the Chamber last night as I got up to speak. I am sure those two events were totally unrelated. I was not able at the time that I was giving thanks to the various staff members and other members of the Privileges Committee to acknowledge Mr Finlayson for his role in chairing the meeting. He occasionally allowed me to speak—only briefly and only on matters that were wholly relevant to the report—and I thank him for his chairing of the committee and his shepherding of this report through to the House.I think it is important when we look at the report that we acknowledge a couple of things. The first is that the committee expresses in the report our grave concern at the lack of regard of those involved in this situation for the separation of the executive from Parliament. That is a very important principle that we are protecting today in the protocol that will be passed as part of this report. It does not matter which party is in power in terms of the importance of that separation but what was drawn out was that the decisions about the release of information in this inquiry process drew out the fact that there was now a blurring of lines between the executive and Parliament. Although the question of who should have access to that information is not an easy one to resolve as the report says there is no doubt in the mind of this committee and in my mind that that cannot be the prerogative of the chief executive of the Parliamentary Service or indeed the chief executive of any other department. As the committee says in its report we are troubled that this incident arose as it did because there are protocols in place about the release of information particularly involving the SIS and we will come to that in the next item of business.It does seem peculiar to me and it did to the committee that this information was ultimately released as a result of the say-so of the executive branch of the Government. It was in fact ultimately John Key’s chief of staff Wayne Eagleson who was the person on whom reliance was placed for whether it was OK to release information. I do want to put on record that the then head of the Parliamentary Service Geoff Thorn actually refused to release information multiple times because he felt that that was not something he had the power to do and it was only from Mr Eagleson’s intervention that he then did release the information. This is relevant to this report because that is what lies at the heart and the Privileges Committee has said that in our report: the concern that we need to have much clearer protocols in place to ensure there is separation between the executive and Parliament on these matters.So the main substance of our report is the drafting and release of a protocol for the release of information. As Minister Finlayson said in his speech there are key principles that underlie that. The most important of those for me as a member of Parliament is that we as members of Parliament retain complete control over information that relates to us. It has been said by other speakers in this debate that we do a number of different jobs as members of Parliament relating to individuals in the community and relating to other people inside these precincts that are not and should not be released unless we say it is OK. There is an element of privacy. There is a question of the constitutional role that we play as members of Parliament and that can be compromised if we do not have the kind of protocol that is here.The second core element of the key principles is that journalists working in the parliamentary precincts should also have that level of control. It is true we share this environment as a working space but journalists have certain obligations and roles in our society that need to be protected and they were compromised in this incident. The fact that swipe card information relating to a journalist was released is wrong. It compromises the ability of the fourth estate to do its job and it should never have happened. Under this protocol in the future it will not happen.The key feature of the protocol is written consent from affected individuals and that is something that we are very pleased to see in there. I do want to make the point before I finish that of course disclosure of information can be compelled by law through the Official Information Act in particular and also through the Inquiries Act. That is as it should be particularly because official information relates to the work of Ministers of the executive and there are plenty of clauses within the Official Information Act that ensure that things can be withheld if they need to be but that is the role of Ministers exercising their executive function. What this protocol protects is the rights of members of Parliament and those working in this complex to be able to know that their information is held securely. This is a very good report I believe from the Privileges Committee. I welcome the fact that the protocol has widespread support across the House and I look forward to the Speaker signing up to the protocol as is envisaged here.DENIS O’ROURKE (NZ First):New Zealand First considers the Privileges Committee report in this case to be of the highest importance. The recommendations are significant and go to the heart of our democracy. The recommendations are that the House adopt the protocol for release of information from parliamentary information and security systems; that the Cabinet Manual be updated to reflect that where an inquiry is established under the Inquiries Act 2013 the exercise of powers in relation to members of Parliament and the parliamentary agencies will require recognition of parliamentary privilege; and that standard terms of reference be developed for use in any inquiry where it appears that the powers may be exercised in relation to members and the parliamentary agencies. So those are the three recommendations we are here to consider.As we know the report stems from the letter Russel Norman sent to the Speaker on 11 July 2013 which was later ruled by the Speaker to raise serious issues surrounding privilege. The letter was in relation to the release of information that was held on parliamentary information systems for the inquiry into the unauthorised release of information relating to the Review of Compliance at the Government Communications Security Bureau report. That leak was of the Kitteridge report.The committee was not asked to determine who was responsible for the leak or treat the matter as a contempt of privilege. Actually it was hardly necessary to do so. There is no doubt in my mind that the person who leaked the report was Peter Dunne. I take no pleasure in saying so but it needs to be said. He has never really denied it. He has equivocated and obfuscated. In my opinion he has never really been very honest about it. That is a sad way to end a distinguished parliamentary career. Of course that will be up to the people of Ōhariu. Let us hope that they see their responsibility to do the right thing.The Privileges Committee presented an interim report in December 2013 which highlighted important issues about protecting the privileges and immunities of the House freedom of speech of members and Parliaments ability to maintain control within its precinct. The main consideration was firstly the issue of who should have access to parliamentary information and security systems and when which goes to the heart of parliamentary privileges. The role of the media as an essential part of an open and transparent democracy was also of course involved. Secondly the other issue raised was that information from the systems was more easily accessed through a request from the executive than it would have been had the New Zealand Police been investigating a criminal act. The need for a comprehensive protocol was pretty obvious.New Zealand First fully supports the principles to guide the release of information especially the presumption that any information held on parliamentary information and security systems should not be released. We think it is fundamental that individual members should retain complete control over information that relates directly to them unless they give clear and specific written consent. How on earth could members of Parliament operate effectively otherwise? They must never be in a position of having to worry about what might be released when they should have complete control and permit release only with specific consideration and consent. I think that is extremely basic and very important as otherwise the work of MPs would become almost impossible.The media who work in the precinct should also retain complete control over information that relates to them and it should be released only with their specific authorisation. Any information that does not relate to a specific member will be dealt with by the Speaker of the House of Representatives as the ultimate decision maker. That seems to be perfectly appropriate. We agree that the two underlying and overarching protocols and principles regarding the release of information are the requirement for written consent from the affected individual or party prior to the release of information in any circumstances or the disclosure of information being required by the operation of law but not in respect of requests under the Official Information Act or Privacy Act. In conclusion New Zealand First fully supports the committee’s recommendations which I outlined at the beginning of this speech and in particular that the House adopt the protocol for release of information from parliamentary information and security systems.CHRIS HIPKINS (Labour—Rimutaka):It is impossible to consider this report into the use of intrusive powers within the parliamentary precinct without considering the context of how this all came about and why we are here having this debate. We are here having this debate effectively because a Minister of the Crown was accused of releasing a report and in the process of investigating that accusation a whole lot of files were accessed including phone logs email logs and so on. The question arises as to whether or not that was appropriate. It related to a journalist within the parliamentary complex and it related to a Minister and that raised the wider issue of members of Parliament and the information held by members of Parliament.I want to make a clear distinction at this point though between a Minister and a member of Parliament and I think we should never forget that there is a clear distinction there. A Minister is covered by the Official Information Act and the information that they hold in their ministerial capacity is public information covered by the Official Information Act with all of the rules that govern that. There are very clear processes around that. Members of Parliament are not covered by the Official Information Act nor are journalists who work in the parliamentary complex or many of the other staff who work in the parliamentary complex. The reason that I make that distinction is very important. Peter Dunne who was the Minister accused of leaking the report tried to make a distinction during the Privileges Committee inquiry between his personal email account—I do not know whether it was a Gmail account or whatever—his parliamentary email account and his ministerial email account. He argued that when he was sending any emails using his Parliament email account he was doing so in his capacity as a member of Parliament and that when sending any emails using his ministerial email account he was doing so in his capacity as a Minister.The reality is that the distinction is not that clear. It is not the means of the transmission of the communication that matters; it is the communication itself. So if it is ministerial information—i.e. it is public information—it does not matter whether it is communicated using a ministerial account a parliamentary account a private Gmail account an MSN Hotmail account or whatever other account you want to use. It is still official information and it is still covered by the Official Information Act because it relates to a Minister’s ministerial responsibilities. For example Ministers have parliamentary responsibilities too. They often deal with constituency matters. So if it is a constituent communicating with a Minister in their parliamentary not ministerial capacity that is a grey area quite frankly and that does become a lot more difficult because often it is difficult to establish whether this is a ministerial issue or an MP issue. That can be a grey area and Ministers need to have pretty clear protocols within their own offices about how they deal with that.But the critical thing with regard to this inquiry was that it could easily be argued that the information that the inquiry was seeking with regard to Peter Dunne could be obtained in an official capacity outside this protocol because he is a Minister. Because he is a Minister he is covered by the Official Information Act. What was interesting as the inquiry progressed was that it became clear that the inquiry never asked for that information using the channels available to it. It could have requested that information under the Official Information Act but it chose not to do that. So we got into quite a lengthy discussion with the inquiry about why that came to be but it became very clear that there were some significant issues with the way the Inquiries Act could be applied in the future. It became clear that there was a real need to clarify all of the issues and responsibilities here and to make sure that sufficient safeguards were put in place to protect all those working in the parliamentary complex including the fourth estate—the journalists—so that they could be protected from the potential abuse of power.I am not in any way suggesting that this could happen now but without these kinds of protocols in place there is a possibility that someone in a future Government whatever the shape of the Government may be could misuse the powers of Government under the Inquiries Act to effectively delve into the affairs of another political party a member of Parliament from another political party or a journalist and that they could do that inappropriately. The protocol that we are putting in place here which we are asking the Speaker to adopt makes sure that that cannot happen. It makes sure that there are safeguards in place so that the incumbent Government whoever it may be cannot abuse its position and cannot gain access to information that it could not otherwise gain access to. There is further to come in the next report. We are going to talk about the execution of search warrants within the parliamentary complex and so on because it actually all fits under I guess an umbrella of issues that governs what happens within the parliamentary complex.There are some important principles at stake here. Members of the public need to be able to communicate with members of Parliament and know that that communication is going to be protected. We deal with those issues all of the time. That is very important. Members of the fourth estate need to know that they can function within the parliamentary complex and do their role as a watchdog—a check and balance on the use and abuse or otherwise of power within the parliamentary complex—and know that they are going to be protected. What became apparent is that up until the point of this protocol journalists had greater protection when it came to court proceedings legal proceedings and so on than they had here in Parliament. I think this protocol goes some way to addressing that deficiency and making sure that all the rules are clear and that that power cannot be abused. I think this is a good report. I want to congratulate the chair of the Privileges Committee Chris Finlayson.Grant Robertson: Don’t go over the top.CHRIS HIPKINS: I am being warned by my colleagues not to go over the top but I think that the inquiry and the deliberations around the report were conducted in a fairly collegial manner by all sides of the House. We had some very interesting discussions. I think that the report that we have produced is a quality one. I think the next one that we are going to be debating is a quality one too and I think that we have also done quite a good job of deliberating on the Parliamentary Privilege Bill which we are also going to be debating.I also want to congratulate the Government in terms of the timing of when it is putting this legislation through. I think it is good to do it before an election so that it applies to the new Parliament. If anything it kind of follows the protocol that we have with the Standing Orders—that you make changes to the Standing Orders at the end of a term of Parliament so that it applies to the future Parliament and therefore avoid any accusations that any current Parliament is changing the rules to suit itself. I think the idea of having these reports go through so that they take effect from the beginning of the next Parliament—given that we have only 1 week and half of this one left—is an important principle and it is a good one.I will leave my remarks on this particular report at that. I think it is a good report I think it is good that the protocol is going to be adopted and I think it will provide that safeguard in the future that has been lacking.BRENDAN HORAN (Independent):I will take a very short call on the very useful report of the Privileges Committee on the use of intrusive powers here at Parliament. This debate is important because the report arises from a misguided attempt to gag the media and threaten the press gallery and that is always a mistake.I would like to draw attention to another recent example affecting the privileges of this House and an attempt to gag the media. Recently I was interviewed by Sean Plunket. I said a few things there and shortly after that the pet barrister of the leader of New Zealand First threatened that company with defamation. The connection and connotations involved with the pet barrister of the leader of New Zealand First representing an undischarged bankrupt who avoided tax tell their own story and make rather a mockery of any semblance of honesty in that leader’s speech to the convention on Sunday.I would be happy to table for the benefit of members the May 1997 decision of the Auckland District Court wherein the court found “Mr Henderson guilty and convict him on each of the 30 charges of smuggling and each of the 30 charges of wilfully making false entries.”Denis O’Rourke: What’s this got to do with this debate?BRENDAN HORAN: I take offence.Mr DEPUTY SPEAKER: Proceed.BRENDAN HORAN: Thank you. Anyway as I said it was just going—Andrew Williams: Come on Jimmy. Give us your best shot.BRENDAN HORAN: Mr Deputy Speaker did you hear the interjection from that member?Andrew Williams: Get on with it Jimmy.BRENDAN HORAN: Did you hear that interjection from that member?Mr DEPUTY SPEAKER: I will chair the House; the member will continue with his speech.BRENDAN HORAN: I take offence at that interjection.Mr DEPUTY SPEAKER: The member needs to take a point of order.BRENDAN HORAN: I raise a point of order Mr Speaker. I take offence at the interjection from Andrew Williams.Mr DEPUTY SPEAKER: It was inaudible from here. If the member has taken offence the member Andrew Williams should withdraw the comment.BRENDAN HORAN: Thank you.Andrew Williams: I withdraw.BRENDAN HORAN: As I was saying it is very very important that the Privileges Committee report is looked at seriously and the motion passed. I hope that it will also look at some of those people who bully within Parliament like some of those members of New Zealand First. Thank you very much.Motion agreed to.Consideration of Report of Privileges CommitteeQuestion of Privilege Concerning the Agreements for Policing Execution of Search Warrants and Collection and Retention of Information by the New Zealand Security Intelligence ServiceHon CHRISTOPHER FINLAYSON (Attorney-General):I move That the report of the Privileges Committee on the question of privilege concerning the agreements for policing execution of search warrants and collection and retention of information by the New Zealand Security Intelligence Service be noted that the recommendations be adopted and that the Speaker enter into amended agreements on behalf of the House to be brought into effect at a time to be determined by the Speaker. In moving that motion I want to acknowledge the work of the committee. Finalisation of the report was delayed because the committee needed to finalise its report on the use of intrusive powers in the parliamentary precinct and as we heard that matter has now been dealt with. When this initial reference was made frankly I thought it would be a rather boring reference but it turned out to be a very interesting piece of work raising some very interesting questions and there are one or two further matters that the Speaker will need to consider arising out of this report. But before I deal with those let us just briefly summarise how we got to where we are.Three agreements were entered into between the Speaker of the House and law enforcement agencies. The Speaker has the authority to control Parliament’s precincts under the Parliamentary Service Act 2000 which is why he or she can enter into these arrangements. Indeed there is a very sound constitutional reason why the Speaker would enter into these agreements. Parliament as the legislative branch of government must be able to conduct the business of governance of this place without the disruption or hindrance of the use of intrusive powers. There are three agreements: firstly policing functions within the parliamentary precinct; secondly the execution of search warrants on premises occupied or used by MPs with both of those signed with the Commissioner of Police; and thirdly the protocol on the collection of information on a sitting MP signed with the New Zealand Security Intelligence Service. We think that these agreements—and this is a preliminary point—and any other similar agreements should always be published or otherwise made publicly available for example on Parliament’s website. Before the reference to the committee I for example was completely unaware of their existence. I think all MPs should be aware of them and should be aware of what the Speaker has done on behalf of Parliament.So first let us look at the policing functions protocol. We think that this protocol is working well. The protocol intends to make sure the police understand they should carry out their duties in a way that does not impede MPs from carrying out their duties within the parliamentary precinct. This protocol was entered into in 2007 and we think that the protocol could be reviewed by the parties so that its terminology and legislative references can be updated. We also think it would be useful to include a disputes resolution process in the agreement.Secondly the agreement relating to the execution of search warrants is an interim arrangement and so it actually has been very useful to take a good look at the agreement and see what can be done to improve it. An important issue arose about execution. Enforcement agencies’ preferred method—Grant Robertson: Interesting concept.Hon CHRISTOPHER FINLAYSON: Well in relation to you it would be a delightful one. Enforcement agencies’ preferred method—not you Mr Deputy Speaker of course—Chris Hipkins: He just can’t help but be nasty.Hon CHRISTOPHER FINLAYSON: I am not being nasty. A bit of jocularity across the House—Hon David Parker: I raise a point of order Mr Speaker. Look I do not think that can be passed. You ought not to be executed.Hon CHRISTOPHER FINLAYSON: I was actually about to correct myself and of course I would never refer to the Speaker—Mr DEPUTY SPEAKER: I will uphold the point of order. I might be leaving but I am not going to be executed.Hon CHRISTOPHER FINLAYSON: Well I certainly would uphold it and mea culpa mea culpa mea maxima culpa. So the preferred method before I was so rudely interrupted by Mr Robertson for executing warrants for information stored electronically is often seizing hard drives or other equipment in order to make clones so that the content can then be examined. That actually may not be appropriate where the possibility exists that the device could also contain material covered by parliamentary privilege. It would seem utterly inconsistent with the principle that the House has the exclusive right to control its own proceedings and so what we have recommended is that the protocol set out a system of chaperoning which is an interesting term the examination of electronic evidence—in fact I think the term came from an English report as I recall it—and that an IT specialist assist with executing the search warrants in relation to electronic documents. The protocol currently does not make explicit that privileged material may not be seized and we think this does need to be made clear as well as a requirement that any material later found to be subject to parliamentary privilege should be returned to the member in question. Determinations have to be made by the Speaker and we recommend that this be made very clear in the agreement.We also recommend that the agreement refer to the definition of proceedings of Parliament which is set out in the Parliamentary Privilege Bill the second reading of which the House will shortly be dealing with. We also think it would be helpful were the agreement to set out practical examples of material likely to be privileged in order to provide more guidance in applying the agreement.Then the third one was a very very interesting discussion that we had about the memorandum of understanding between the Speaker and the SIS on the collection of information. The SIS will not generally direct the collection of information on a sitting MP. If the service has a file on a person who becomes an MP the file is sealed for the duration of the member’s term in Parliament. The collection of information on a sitting MP will be permitted only where the particular member is suspected of activities relevant to security. The collection has to be personally authorised by the director and the Speaker is briefed confidentially about the proposed collection and the reasons for it. The agreement respects the need for confidentiality in relation to the service’s activities and we recommend that the agreement be amended to include a statement of principles and purpose and an expression of respect for parliamentary proceedings because this is a very important agreement raising some very very important issues and we think that a clear statement of principles is required.We also recommend the agreement should require the Speaker to be consulted in relation to any interception or seizure warrant to be executed on the parliamentary precinct or in an MP’s constituency office and that the director should provide a written memorandum to the Speaker in advance of such warrant being issued setting out the information held by or the activities of the member that may directly constitute a security concern. I think—well you would expect me to say this because I chaired the committee—the report is a very good one.I must say in conclusion that we had a really interesting and important discussion about the role of the Speaker—Dr Graham will say something about that shortly—and whether the Speaker can be trusted to receive some of this highly sensitive information and to adjudicate on matters relating to a member of Parliament who may come from a different party. They are very sensitive issues but the committee had a good discussion about it and the conclusion was that putting aside partisan differences when the Speaker takes the oath of office the Speaker is there to guard the interests and the privileges of all members of Parliament and when carrying out his or her functions in relation to these agreements will always need to be mindful not of partisan considerations but of the fact that there is a member of Parliament albeit from a different political party whose rights are being interfered with and so great caution will need to be exercised at all times. This just emphasises the incredibly important role of the Speaker as the guardian of the interests of members of Parliament. The Speaker must never ever forget that important task. Thank you.Hon DAVID PARKER (Deputy Leader—Labour):I agree with the comments of the Attorney-General who I think has expressed the issues well. I am not going to take the full allocation of time for my call but I will make a couple of points. This is another report in a series that the Privileges Committee has brought forward in respect of properly delineating the line of what is a parliamentary proceeding and being very clear that we are standing for the rights of Parliament not in respect of our own personal interests as members of Parliament but because we are trying to protect the essential privileges of Parliament in order that Parliament can properly go about its business and protect democracy. That is at the heart of the changes that have been made to the agreement with the SIS to make it absolutely clear that proceedings of Parliament are absolutely privileged and that even the SIS cannot overrule that. That is the first point I would emphasise.The second and final point that I want to address is the one that the Attorney-General ended on. Can I add my thanks to Dr Kennedy Graham in respect of raising this issue with the select committee which is that where there are outside agencies that come into contact with Parliament they do so through the Speaker. The Speaker of course has able assistance from the Office of the Clerk but the person whom they liaise with in a titular sense is the Speaker. The Speaker is relied upon by this Parliament to act absolutely impartially. Kennedy Graham raised the suggestion that in respect of some of these very very sensitive issues where it is possible that an outside agency might be doing something that is wrong or is political rather than be interested in purely security issues there was a need to bolster the efforts of the Speaker by introducing someone else whether it be the Leader of the Opposition or some other person. I am sure Kennedy Graham will address this more ably than I am.In the end the committee concluded that we have to rely upon and trust the Speaker. It was quite instructive for me because it reminded me of how important the independence of the Speaker is. I think it was the Attorney-General who said to the committee—and I did not know this until he said it—that in Great Britain for example once the Speaker is appointed the Speaker becomes a lot less political than the Speaker is in New Zealand. The Speaker generally exists beyond Parliaments in Great Britain—and the Attorney-General can tell me whether I have got this wrong—and indeed the tradition is that with regard to the seat from which the Speaker comes the other party does not stand a candidate against the Speaker. All of this emphasises the independence of the Speaker and the duty that the Speaker has to Parliament rather than to their own political party.One of the reflections I have as we come out of this report is I wonder whether as a country we can actually do a little bit better in the future in encouraging that independence of Speaker. This is not a criticism of the current Speaker or Speakers past but actually the independence of the Speaker in New Zealand is not quite as entrenched as it obviously is in England. For example some Speakers do and some do not—and this has happened on both sides of the House—attend caucus meetings after they have become Speaker. I suspect that in the UK they never do. We still stand candidates from opposing parties against Speakers and Speakers do not exist beyond the term of a Parliament in New Zealand. They generally leave with the governing party. If the governing party changes so does the Speaker. So it would be interesting for us to reflect I think as members of Parliament as to whether we would be a better institution whether we would run better and whether there would be more trust in things like question time if the Speaker really was imbued with these other attributes of independence. That is the only thing I would contribute to the debate. I recommend the report of the Privileges Committee which is unanimous to the House.Dr KENNEDY GRAHAM (Green):It is almost 2 years now since the Speaker referred to our Privileges Committee questions of privilege arising from agreements he had signed with the Police and the SIS. Those agreements were automatically up for review. The committee as is the norm worked constructively and to good purpose. In our report we suggested several changes to the agreements that in our view will improve matters. In one case however I shall explore the implications of the agreement even in its improved state because they raise profound issues attending to our notion of the world in the 21st century and New Zealand’s place within that.Let me make first a general comment. I do query whether confining these types of agreements to the status of memoranda of understanding is of itself sufficient. They reside at the centre of the constitutional relationship between the executive and the legislature. They evoke the most sensitive of all issues—domestic order on the one hand when it comes to the police and global order on the other when it comes to the SIS. They involve concepts that are subtle politically relative and open to contestation. In such a scenario if the chips are down it is likely that the executive will claim an imperative duty and prevail over the legislature in any dispute on grounds of national security. This occurs now when the Prime Minister as the Minister of intelligence services withholds information from the House on precisely those grounds. The system in this country defaults through lack of mature convention in favour of the executive. It might be queried therefore whether a memorandum of understanding which is legally unenforceable in the courts is the right way to go when the issue of executive-legislature relations is at stake. Perhaps we should give thought to incorporating this kind of thing into primary legislation as we are doing with the Parliamentary Privilege Bill but that is for the future.Let me comment on the Privileges Committee’s views as reported back to the House. With regard first to the two police agreements involving search warrants the Green Party endorses the select committee’s recommendations which included a disputes resolution process a system for chaperoning the examination of electronic evidence the engagement of an IT specialist an understanding that the Speaker determines when information is subject to parliamentary privilege a 24-hour default period to seek legal advice cross-reference to the Parliamentary Privilege Bill and the definition of “proceedings in Parliament”. We endorse all of this. The relationship between Parliament and the police will benefit from these improvements.Let me now turn to the SIS agreement on which we worked constructively across party lines while engaging in serious and meaningful dialogue in one particular area where we differed a little. First there are the areas of consensus. The SIS agreement should be amended to include a statement of principles and purpose. The Speaker should be consulted by the SIS director in relation to any interception or seizure. In advance of such a warrant being issued the SIS director should provide a written memorandum to the Speaker setting out the actions done or information held by a member that might constitute an issue of security concern. The agreement should specify that the Inspector-General of Intelligence and Security has a role in overseeing the actions of the SIS in relation to the agreement. Consideration should be given to whether it is necessary for the Speaker to enter into a separate agreement with the Government Communications Security Bureau in light of the organisation’s potential role in assisting others in exercising their lawful authority.Some of these recommendations are the result of Green Party proposals that reflect our concerns and I thank committee members especially the chairman the Hon Chris Finlayson for his capable and constructive stewardship. The committee stopped short of agreeing with all of our proposals and that did not come as a total surprise but it was the result of some useful discussion on the nature of national security perhaps to an unprecedented extent in the New Zealand Parliament.The essential issue is this. At present the SIS must close any file on any person who is elected to Parliament but it may reopen a file or open a file for the first time on a sitting MP if the MP is suspected of undertaking activities “relevant to security”. This may involve simply the collection of information or it may extend to a warrant for surveillance or interception. In these circumstances the SIS is to brief the Speaker who must ensure that parliamentary privilege is properly respected. The SIS director is to provide in advance a written memorandum to the Speaker setting out the actions done or information held by a member that may constitute an issue of security concern.This is fine as far as it goes and the requirement for a written memorandum was our suggestion. The problem we still have is that it is left to only one member of Parliament namely the Speaker to be briefed on what is a matter of security concern. The question of whether the opening of a file on a sitting member should be discussed by the SIS with only the Speaker or with any other senior member of Parliament was raised by the Green Party and the reason for raising the matter is the evolving nature of the meaning of national security in the 21st century.Security as defined in section 2 of the current legislation the New Zealand Security Intelligence Service Act 1969 has four components. One refers to espionage sabotage and subversion. The second refers to New Zealand’s international well-being or economic well-being. The third refers to activities that are influenced by any foreign organisation or foreign person and are clandestine deceptive or threaten the safety of any person. The fourth refers to terrorism. So you can see the scope for subjective difference of view respectfully held of what within that definition might constitute an act of security concern.A political party may have a fundamentally different interpretation of what constitutes security from an interpretation that might be embraced by the SIS. It could be queried for example whether the SIS should be permitted to undertake surveillance on New Zealand citizens who may hold different views from any Government on what is in New Zealand’s international or economic well-being. That might apply to any party—National as much as Green. This is not a matter of subversion; it is a matter of difference of democratically held opinion within domestic law. We therefore are of the view that although the Speaker is the embodiment of the House it is still a necessary reassurance to the public that an equally senior member of Parliament from another political party be briefed by the SIS at the same time in addition to the Speaker. The obvious person is the Leader of the Opposition as was noted earlier by my colleague David Parker. The conventions of independence of the Speaker and dissociation from politics and a particular party are not developed in this country as much as elsewhere—particularly in the United Kingdom. So even with the best of intent a Speaker may make a misjudgment or could be prejudicing the interests even of his or her own party colleagues as much as other party colleagues.Those are our views on the matter. I could elaborate but I think the discussion was sufficient in the committee to warrant further consideration. We believe that the report goes some considerable way to improving the operation of the SIS in relation to Parliament and to individual members of Parliament. We therefore endorse the report but there is clearly still a need for further ongoing dialogue on this vital and sensitive subject.DENIS O’ROURKE (NZ First):This report follows on from the report of the Privileges Committee into the Henry inquiry following the Kitteridge report leak. New Zealand First endorses the recommendations in the report concerning the amendment of the agreements for policing execution of search warrants in a way consistent with the proper functioning of Parliament and the collection and retention of information by the New Zealand Security Intelligence Service. Anyone who gives a damn about democracy—and New Zealand First certainly does—will consider this an important report in terms of New Zealand’s constitutional and parliamentary integrity.We must never have a repeat of the shambles that was the Henry inquiry. That exposed that there was indeed something rotten in the State of New Zealand. We had confirmation that what we in New Zealand First had been saying from the outset—that Mr Henry was not qualified in any way shape or form for the inquiry—was correct. Mr Henry was in fact a completely inappropriate appointment. Anyone could see that his record could not possibly have qualified him for the job. Of course that was precisely why the Prime Minister picked him for the job—just another example of the kind of tricky dick behaviour we have come to expect from this Prime Minister. And—surprise surprise—the Henry inquiry actually provided no answers; it just left more unanswered questions. The Henry inquiry was therefore more than anything in my view an indictment of John Key and of his contempt for democratic process.Our democracy is not just the right to vote every 3 years as we are about to do. Real democracy is a complex web of spoken and unspoken rules and conventions that give it true meaning—not just the semblance of democracy not just a veneer to keep the public calm and quiescent. The privacy of media communications is one of those aspects that are vital to an effective functioning democracy. It is a privilege that must be cherished and must not be abused and is one of the core elements that underlie our democratic State. The Privileges Committee made it clear that there had been contempt for this principle not just by Mr Henry but by senior parliamentary officials. If they are not guardians of democratic practices who is? The interim report talked of “errors of judgment” by parliamentary staff. That must be the understatement of the century. Mr Thorn fell on his sword and to his credit he accepted his accountability and left.But John Key was deeply implicated in this absolute mess as well. Where is the acceptance of accountability from him? Of course we have learnt not to accept any such accountability from this Prime Minister. This report is a wake-up call showing how easy it is for the essential props of democracy to be kicked away. One thing is for sure: when John Key is around hyper-vigilance is necessary. Mr Key and his cronies will unthinkingly trash our democracy just like they are trashing so much else in this country at the present time. That is the real message to be learnt from this whole sorry affair.GRANT ROBERTSON (Labour—Wellington Central):I am going to take just a brief call on this report from the Privileges Committee looking at “the agreements for policing execution of search warrants and collection and retention of information by the NZSIS”. Comments made already by the Attorney-General Chris Finlayson my colleague David Parker and Kennedy Graham cover most of the material the report has.What I want to talk about are two things. The first is a very specific matter that when I came on to the Privileges Committee I was concerned about in this area and it is that when search warrants are executed—this is not just for Parliament but more generally—nowadays with the growth of the use of electronic information storage it is the practice of an agency to seize the entire hard drive of a person who is involved in an investigation in order to get the particular documents or information that is desired.When a member of Parliament is in that situation there may well be material on that hard drive that is quite separate from what is being sought and that actually could be captured and taken away from a member of Parliament in such a way as to compromise both parliamentary privilege and the general operation of our work as parliamentarians. So I applaud the recommendation that is in this report that actually—and this is the “chaperoning” concept the Attorney-General mentioned earlier—an IT specialist will assist in the execution of the warrants to ensure that our rights as parliamentarians are upheld and that parliamentary privilege is protected within that. I think that that is a small but very important advance for us to ensure that we do not as parliamentarians hand over material that ultimately is privileged and should not be part of those investigations.The other point I particularly want to make is around the question of the New Zealand Security Intelligence Service and its role with Parliament. I appreciate the fact that this report is in fact following on from an interim report of the committee in this area and following on from protocols that were signed off several years ago—Hon David Parker: By Margaret Wilson.GRANT ROBERTSON: —that is right—by Margaret Wilson as the Speaker.There is a fundamental principle that I think needs to be reiterated here and it is that the SIS is not under normal circumstances going to be collecting information about a sitting member of Parliament. As the Attorney-General said once someone becomes a sitting member of Parliament their file is closed immediately. I think it is very very important that we make sure that is on the record of the House as the fundamental underlying principle here.What can happen is that for reasons of national security there may be on occasions situations in which the SIS may want to be looking at the activities of a member of Parliament. The threshold for doing so must be very high because we as parliamentarians need to be able to go about our business unencumbered by the activities of State agencies with significant powers. It is on that point that I want to raise my concerns. They are that a review of the Security Intelligence Service was planned and was never completed. In the maelstrom of all of the concerns about the Government Communications Security Bureau (GCSB) Kim Dotcom and the appointment of Ian Fletcher that review of the SIS was quietly shelved by John Key.I believe it is essential that that review is done. The Labour Party’s policy is that we need a review of both the Security Intelligence Service and the GCSB and in fact of all of the agencies involved in our security intelligence system which also now includes particularly the Organised and Financial Crime Agency of New Zealand as part of the police.In the absence of that review public trust and confidence in our security intelligence agencies has reached an all-time low in New Zealand. For my part I am deeply distressed by that. I am a person who believes that it is important that we get the balance between security and privacy in our society right. In the modern era that is even more important. I understand and the Labour Party understands why we have these agencies working for us. There are reasons. There are people in the world today from whom New Zealand needs to be protected but equally our privacy and our rights as citizens must not be compromised by that and our privacy and our rights as members of Parliament representing citizens must not be compromised by that.At the moment legislatively for the GCSB we now have in my view legislation that goes far too far in terms of that balance and we have lost that balance between security and privacy. [Interruption] That is right. As my colleague David Parker says the absence of the requirement for a warrant and the fact that we have to essentially rely on the assurance of the Prime Minister about how these investigations will be operationalised is ridiculous and is in fact an insult to this Parliament.The SIS sits alongside that operating in operations within New Zealand without the review that was meant to take place. We need that review to happen to restore trust and confidence. In fact for this report to have my full and complete confidence we need to know that review is going to happen. It is noted in the report that the issues that Kennedy Graham has been discussing in his contribution need to be considered whenever the legislation governing the SIS is reviewed. Well my view is that it urgently needs to be reviewed.Having said that the situation we find ourselves in today is that the Speaker is the person who acts on behalf of this Parliament in dealing with these agencies. We must have confidence that the Speaker will act in a way that upholds the rights of all members of Parliament no matter what party they come from. It is also true to say that under the New Zealand Security Intelligence Service Act as it stands the Director of Security does need to consult with the Leader of the Opposition from time to time. Without going into any detail about those matters I think they would tend to be at the more general level not at the specific level of what might be happening with a particular member of Parliament. Therefore the Speaker’s responsibility here is extremely high.I do not think we are at the end of our discussion about the role of the Speaker as David Parker has mentioned or indeed about the relationship between this Parliament and agencies with powers such as the SIS but this report represents a series of useful changes to the processes that were originally brought forward. From the point of view of the Labour Party we can support this report but we welcome the idea of ongoing dialogue about the role of the SIS in relation to Parliament. We strongly urge and in fact commit to the public of New Zealand that we will do the review of security and intelligence agencies that is needed to restore public trust and confidence in them.Motion agreed to.