Graham Kennedy: Privilege — Consideration of Report of Privileges Committee Question of Privilege Regarding Use of Intrusive Powers Within the Parliamentary PrecinctText 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[Sitting date: 22 July 2014. Volume:700;Page:19329. Text is incorporated into the Bound Volume.]Dr KENNEDY GRAHAM (Green):It is 1 year now since the Speaker ruled on a question of privilege raised by the Green Party. The issues involved the exercise of intrusive powers against members and the release of information from parliamentary information and security systems. The particular incident involved the release of information to the Henry inquiry that was held on parliamentary information systems.The Privileges Committee was asked neither to investigate the matter as a contempt of privilege nor to determine who was responsible for the release. This was a mistake. The resulting terms of reference made it inevitable that certain issues would never come to light so the result was always going to be partially unsatisfactory. The committee was not tasked with finding who leaked the Kitteridge report so the public is none the wiser on the facts.Our new wisdom lies in a blinding clarity over the dangers of taking constitutional principles for granted even as weak as ours are. Consider the background. The Kitteridge report into the Government Communications Security Bureau (GCSB) was leaked by a member of Parliament so the Prime Minister ordered another inquiry to identify the leaker. The Henry inquiry failed to do that succeeding rather in racking up a spellbinding series of errors all of its own. We like to characterise ourselves as a decent and casual people who do politics in a decent and casual way. That is fine as far as it goes. It is when things go wrong that we regret the lack of guidelines whether it is deregulation and Pike River or an invertebrate constitution in the Henry report. We are one of only three countries that lack a written constitution and we probably have the least-developed mechanism in place to compensate.The mistakes of the Henry inquiry were largely those of individuals—an excessive zeal for the task reflecting hubristic youth; a callous indifference from the inquiry leadership to procedural practice and an emerging cult of prime ministerial dictate. These kinds of problems can usually be neutralised in other countries by constitutional protection. Without it they can be exacerbated and even run amok. That is the lesson of the Henry inquiry.The committee’s formal task was to examine the incidents involving the release of information from parliamentary information and security systems and a more general issue of appropriate principles for access to and the release of information from parliamentary information and security systems—in other words find no individual guilt but find out what went wrong and craft a mechanism for ensuring it can never happen again.A comment on process. The Green Party was dissatisfied with the committee’s decision not to have the Prime Minister or the Speaker appear. As the Minister responsible for the GCSB Mr Key initiated the inquiry. He appointed the co-commissioners. He was consulted over the terms of reference and choice of inquiry and publicly released the report. He acknowledged ministerial responsibility for the inquiry. In this exercise Mr Key formed the apex of the executive branch of Government. For his part the Speaker being responsible for Parliamentary Service formed the apex of the legislative branch in the matter. He too bore primary responsibility for certain aspects of the inquiry. It defies logic that the Privileges Committee exploring the shortcomings of an inquiry in which the two members of Parliament who bore primary responsibility for it do not testify could perform the job entrusted to it with some irony by the Speaker.Then there are the findings of fact such as they are. The evidence gathered at the hearings revealed a series of avoidable errors political or procedural by virtually every individual who was directly involved in the Henry inquiry. First the Prime Minister decides a ministerial inquiry should be set up. He appoints the co-commissioners is consulted over the terms of reference and choice of investigator receives the report and makes it public. He acknowledges that he has ministerial responsibility yet his only engagement in his own inquiry is to declare that he expects everyone else to cooperate.Second the chief executive officer of the Department of the Prime Minister and Cabinet is a co-commissioner of the inquiry. The chief executive officer draws up the terms in consultation with the Prime Minister and is actively engaged in the inquiry yet he is one of the suspects.Hon Christopher Finlayson: Focus on the report and the protocol.Dr KENNEDY GRAHAM: I am requested by the Attorney-General to focus on the report and the protocol. I will do so when I have completed my criticism of the process. Third the chief executive officer then seconds a staffer to the inquiry. The staffer acts only under the supervision of the investigator yet he exercises personal freedom in visiting Parliamentary Service on his own initiative at third-tier level thereby undermining the authority of the general manager of that body.Fourth the inquirer adopts the belief that he is free to ask for any information he deems necessary without considering whether its release is constitutionally appropriate. He leaves it to the recipient of the request to determine constitutional propriety. He neither receives nor seeks guidance on the constitutional and procedural requirements and constraints pertaining to the operation of a ministerial inquiry. He displays a general indifference before the committee to the importance of constitutional integrity.Fifth the main recipient of the request the General Manager of Parliamentary Service has doubts about releasing information on a Minister and journalist’s communication plus their parliamentary records yet he feels compelled not to second-guess the requests because of their security implications. The material does not involve issues of national security but rather domestic politics which should have heightened not diminished those concerns.Sixth the chief executive of the Prime Minister’s office becomes engaged. He takes it upon himself to authorise Parliamentary Service to release data pertaining to Ministers and journalists. He does this on the basis that the terms of reference have been made public and that the Prime Minister has made it clear he expects Ministers to cooperate with the inquiry. In fact there is no cause for him to become involved in the inquiry at all given it had been commissioned by the head of the Department of the Prime Minister and Cabinet.Seventh the co-commissioners harbour uncertainty over the particular status of one Minister who has been given the report in the capacity as a coalition party leader but is subsequently expected to cooperate as a Cabinet Minister. This blurs further the distinction between his role as a member of the executive as a Government Minister and a member of the legislature as a member of Parliament. No one appears to care.Eighth no official involved whether Department of the Prime Minister and Cabinet or the Prime Minister’s office appears to acknowledge that request for data pertaining to communication between a Minister and a journalist unavoidably means obtaining information from a journalist. Refusal to acknowledge this is strange. In the hearings the most senior officials in the land seemed bemused by this self-evident fact.Ninth the information platforms maintained for Ministerial Services and Parliamentary Service become operationally merged in late 2011 for reasons of efficiency. This appears not to bother the Department of the Prime Minister and Cabinet the Prime Minister’s office or the inquirer. Constitutional separation of powers appears not to be an issue of concern to them.The sloppy operation of the Henry inquiry rests on a series of individual misjudgments. They derive from systemic failings of our governmental system. The first is the merged information platform between Parliamentary Service and Ministerial Services which clouds the already opaque distinction between executive and legislature in New Zealand. The second is a governmental culture that has developed that whatever the Prime Minister wishes to occur must occur. These are our criticisms of the inquiry both process and substance.On a more positive note the protocol itself that the committee has submitted to the House is a very sound one and should serve as a mechanism that we were seeking to ensure that the above mistakes and acts of executive hubris can never occur again. I commend the protocol to the House.