Chauvel Charles: Questions for Oral Answer — Questions to Ministers 
Chauvel Charles: Questions for Oral Answer — Questions to Ministers 
[Volume:678;Page:1371] 
2. 
CHARLES CHAUVEL (Labour) 
 to the  
Attorney-General 
: Were the  
Prosecution Guidelines 
 dated 1 January 2010 applied to the decision not to prosecute Mr Ambrose over the Tea Tape complaint? 
Hon CHRISTOPHER FINLAYSON (Attorney-General) 
: 
 The decision whether or not to prosecute was an independent decision made by the police commissioner. I have no personal knowledge of the commissioner’s process in making his decision. There is no day-to-day supervision of prosecution decisions made by agencies including the police. 
Charles Chauvel 
: I raise a point of order Mr Speaker. The  
Prosecution Guidelines 
 make it clear that the Attorney-General is responsible for their administration and I thought it was perfectly within the ambit of my primary question to ask the Attorney-General whether he was satisfied that on this occasion they had applied. That is what the question does. 
Mr SPEAKER 
: Well the Minister’s answer was a reasonable answer I believe because the member asked whether the  
Prosecution Guidelines 
 were applied and the Minister described exactly what happened. The member can dig deeper with his further supplementary questions. I think it would be unreasonable for the Speaker to say that was an unacceptable answer. There are more supplementary questions. The idea of the supplementary question is to dig into the Minister’s answer—given the information about the police commissioner making the decision independently did that process meet these guidelines? That is what supplementary questions are for. 
Charles Chauvel 
: Given that paragraph 1.5 of the  
Prosecution Guidelines 
 clearly states an expectation that they will apply to decisions relating to prosecution by the New Zealand Police is he satisfied as Attorney-General that the  
Prosecution Guidelines  
were properly applied in this case? 
Hon CHRISTOPHER FINLAYSON 
: The decision about whether or not to prosecute was an independent decision made by the police commissioner. There is no day-to-day supervision of prosecution decisions made by agencies including the police. 
Charles Chauvel 
: I raise a point of order Mr Speaker. My supplementary question on your advice sought the view of the Attorney-General as to the appropriateness of the decision made on this occasion. Given that he is the officer of the State responsible for the application of the  
Prosecution Guidelines 
 it is perfectly proper for him to express a view and to answer the question. 
Hon CHRISTOPHER FINLAYSON 
: Speaking to the point of order— 
Mr SPEAKER 
: Well I will hear the Hon Chris Finlayson the Attorney-General. 
Hon CHRISTOPHER FINLAYSON 
: Not only would it be not right for me but also it would be quite improper for me to make any comment second-guessing a decision by the commissioner on whether or not to prosecute. There is a clear delineation between the general principles set out in the guidelines and day-to-day matters. 
Mr SPEAKER 
: The interesting issue that has arisen is that the question that Charles Chauvel has asked does not ask about the merits of the particular decision for which the Attorney-General is not responsible. The question asked is whether the Attorney-General is satisfied the guidelines applied. The guidelines are something the Attorney-General is responsible for and I think although the Attorney-General is quite right that he has got to be careful not to comment on particular decisions by the independent authority—the police commissioner—the question is a reasonable question about whether the Attorney-General is satisfied the guidelines for which he is responsible were applied. That is not in my view a question out of order and I would invite the Attorney-General to answer that. 
Hon CHRISTOPHER FINLAYSON 
: Well I am afraid I will probably displease you because I can and will add nothing further to that. This is a day-to-day decision made by the commissioner and I am not privy to the commissioner’s thought processes in making the decision about whether to prosecute. I go further than that and say it would be quite improper for me to comment.  
Charles Chauvel 
: I raise a point of order Mr Speaker. Again the Attorney-General either deliberately or otherwise is missing the point. You were quite clear in your ruling about this. Mine was simply a question about whether he had a view as principal law officer of the State responsible for the prosecution guidelines administration in New Zealand whether the decision as to whether to prosecute in this case was sufficiently compliant with those guidelines. He is entitled to have a view; indeed he should have a view. 
Mr SPEAKER 
: It is a very interesting situation that has arisen here. I have got to say I have sympathy for both members because the guidelines exist and the Attorney-General is responsible for them. But I think in his further answer there the Attorney-General has indicated although he did not perhaps use the words that he considered that it is not in the public interest for him to go further than he has in answering even in respect of the guidelines. It raises all sorts of interesting issues around the value of the guidelines but still the Attorney-General has argued—[ 
Interruption 
]; I am on my feet—that he believes and I am interpreting what he said that it would not be in the public interest for him to comment further in respect of whether that decision complied with the guidelines. I should not second-guess that answer from the Attorney-General. The member is entitled to ask further questions. 
Charles Chauvel 
: I raise a point of order Mr Speaker. Thank you for your ruling. Could we have clarification in the circumstances from the Attorney-General that he is claiming that it is not in the public interest to answer my question because if I understand your ruling correctly that is how you have taken his answer. 
Mr SPEAKER 
: I think he made that very clear. He said he would not comment further on the individual decision of the police commissioner even in covering that decision in relationship to the guidelines. That is clearly a decision that he does not consider it in the public interest for the Attorney-General to be commenting on such a decision. I think that is reasonable for me to accept that as Speaker. 
Hon Trevor Mallard 
: I raise a point of order Mr Speaker. The normal approach that has been taken in this House—I can remember probably three or four times previously—is that where a Minister believes it is not in the public interest to answer a question they get up and they say just that rather than being interpreted as they are now by you as meaning that even though they do not say it. 
Mr SPEAKER 
: I accept the point the member makes. Would the Attorney-General assist the progress of the House. Would he be prepared to indicate in his view whether in fact it is the issue of public interest that prevents him from answering. 
Hon CHRISTOPHER FINLAYSON 
: I did not think it was some kind of primer 1 formulaic— 
Mr SPEAKER 
: No no no I have asked— 
Hon CHRISTOPHER FINLAYSON 
: I so do. 
Mr SPEAKER 
: He has now declared it not in the public interest. 
Charles Chauvel 
: Does he have any knowledge of why the decision not to prosecute was announced only yesterday when it was made at least a week ago and whether that has anything to do with the absence overseas of the Prime Minister who was the complainant? 
Hon CHRISTOPHER FINLAYSON 
: As I have already said—it is becoming a litany now—I have no personal knowledge of the commissioner’s process in making this decision. There is no day-to-day supervision of prosecution decisions made by agencies including the police. 
Charles Chauvel 
: Has the Crown agreed as part of the withdrawal of the Prime Minister’s criminal complaint against Mr Ambrose or otherwise not to pursue all or any of the costs of defending the declaratory judgment application that Mr Ambrose filed in the High Court last year? 
Hon CHRISTOPHER FINLAYSON 
: The member has now moved from the criminal to the civil and is making reference to the costs application made by the Solicitor-General under his delegated authority after the decision was concluded— 
Hon Clayton Cosgrove 
: Just answer the question! 
Hon CHRISTOPHER FINLAYSON 
: I am just trying for the benefit of the former MP for Waimakariri to set it out in primer 1 terms. That matter having been made— 
Charles Chauvel 
: I raise a point of order Mr Speaker. I know that the Attorney does not like these sorts of questions— 
Mr SPEAKER 
: Order! The member will resume his seat. I am on my feet and some members will be leaving this House if that is not respected. The Attorney-General did not help. It always leads to disorder when unhelpful comments are made. Had it not been for that unhelpful comment the Minister was answering the question in a reasonable manner. I invite the Minister to answer the question without the unhelpful comments. 
Hon CHRISTOPHER FINLAYSON 
: I do not want to offend Mr— 
Mr SPEAKER 
: Just answer the question please. 
Hon CHRISTOPHER FINLAYSON 
: After the decision of Justice Winkelmann was released the Solicitor-General filed an application for costs. That has been responded to by counsel for Mr Ambrose. The matter is before the judge and it would be improper for me to start commenting on those matters in this place. Any decision as to the ultimate outcome of those matters or negotiations are presumably for the lawyers. 
Charles Chauvel 
: I raise a point of order Mr Speaker. I am sorry to do this but the question was very carefully framed and the Attorney-General is accountable in this area. He cannot answer in a vague fashion like that and avoid the question. It was whether or not there has been agreement between the Crown’s lawyers who are accountable him and Mr Ambrose’s lawyers about withdrawing their claim for costs in the civil proceedings consequent on the withdrawal of the criminal prosecution. 
Mr SPEAKER 
: Order! Forgive me but I am not understanding the member there obviously because the Attorney-General pointed out the matter is still before the court and it would be in his view—I think he made it clear—improper for him to comment on any matters to do with this issue that is before the court especially in matters to do with any possible agreements between lawyers that may have impact on the decision of the court. 
Charles Chauvel 
: I raise a point of order Mr Speaker. The issue here is a simple question as to whether as part of the deal to withdraw the criminal prosecution there was also an arrangement between private lawyers on the one hand and lawyers accountable to the Attorney-General for the other on whether or not to continue to seek costs in the civil case. There is no reason why the Attorney-General should not answer that question. 
Mr SPEAKER 
: Order! I would have thought it very obvious. The member appears to be making some kind of possible allegation in his question that such an agreement might have existed. Clearly the Attorney-General is not going to comment on anything like that because he would consider it I would have thought to be sub judice because the civil matter is still before the court and in respect of any matter relating to lawyers involved in that civil case the Attorney-General I would have thought would consider it not in the public interest to answer. In fact it is beyond not in the public interest; it is a matter that is sub judice and it would be inappropriate for any member of this Parliament to get into commenting about those issues. 
Hon Trevor Mallard 
: I raise a point of order Mr Speaker. The sub judice rules are for matters that are before the court awaiting adjudication. The suggestion made by my colleague is that this is a matter of agreement and therefore will not be subject to adjudication. 
Mr SPEAKER 
: Order! 
Hon Trevor Mallard 
: The Attorney can just say no. 
Mr SPEAKER 
: Order! The member is getting into debating this issue. The Attorney-General has indicated to the House that the matter is before the court. The Speaker has to accept that. I cannot go arguing with the Attorney-General that the senior law officer of the land is wrong when he says the matter is before the court and therefore sub judice. I have to accept that from the Attorney-General. If the Attorney-General is wrong in that matter he has to face criticism publicly for being wrong but I have to accept his view that the matter is sub judice. Just because it may become the subject of an agreement between lawyers does not make it not sub judice in the meantime. 
Hon Trevor Mallard 
: I raise a point of order Mr Speaker. If a question is sub judice and therefore ruled out from here it is your decision and it is not a decision of the Government or its lawyer. 
Hon Gerry Brownlee 
: That’s what he just said. 
Mr SPEAKER 
: Order! We will not have debate across the House. The Speaker cannot have full knowledge of all matters that are before the court. The Attorney-General has a number of advisory roles and the Attorney-General has made it clear to the House that it is his understanding that this matter is still before the court. As Speaker I have accepted that and I am ruling therefore that we should not be raising questions about that particular matter that is still before the court and that is that civil action as I understand where the matter is still before the court. 
Charles Chauvel 
: Does he have a view as principal law officer about the appropriateness of both the prosecuting agency in this case and then the Prime Minister publicly pronouncing on Mr Ambrose’s guilt after the prosecution was withdrawn despite the failure of the prosecution to meet the test for prosecution? 
Hon CHRISTOPHER FINLAYSON 
: As will be tolerably clear the answer is no for the reason that I do not get involved in day-to-day matters concerning prosecutions.