Graham Kennedy: 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 VolumeGraham Kennedy: 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 Service[Sitting date: 22 July 2014. Volume:700;Page:19342. Text is incorporated into the Bound Volume.]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.