Finlayson Christopher: 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 VolumeFinlayson Christopher: 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:19338. Text is incorporated into the Bound Volume.]Hon 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.