Privilege — Consideration of Report of Privileges Committee Question of Privilege Concerning the Defamation Action Attorney-General and Gow v Leigh Consideration of Interim Report of Privileges Committee Question of Privilege Concerning the Agreements for Policing Execution of Search Warrants and Collection and Retention of Information by the NZSISText is incorporated into the Bound VolumePrivilege — Consideration of Report of Privileges Committee Question of Privilege Concerning the Defamation Action Attorney-General and Gow v Leigh Consideration of Interim Report of Privileges Committee Question of Privilege Concerning the Agreements for Policing Execution of Search Warrants and Collection and Retention of Information by the NZSIS[Sitting date: 12 June 2013. Volume:691;Page:11067. Text is incorporated into the Bound Volume.]PrivilegeConsideration of Report of Privileges CommitteeQuestion of Privilege Concerning the Defamation ActionAttorney-General and Gow v LeighHon CHRISTOPHER FINLAYSON (Attorney-General):I moveThat the House take note of the report of the Privileges Committee on a question of privilege concerning the defamation actionAttorney-General and Gow v Leigh. This is a very important piece of work that has been undertaken by the Privileges Committee since September 2012. We finally reported to the House just a few days ago. It raises some very important questions arising out of a decision of the Supreme Court in September 2011.Throughout this debate we are going to hear comments about parliamentary privilege but it is important to emphasise what this word “privilege” means and what it does not mean. Parliamentary privilege is not there as a special benefit for a particular person. Parliamentary privilege is there to enable this Parliament to conduct its functions. It is vitally important for New Zealand’s constitutional health. I sometimes think it is unfortunate that the term “privilege” is used because it does have a connotation of it being for the benefit of the individual. Far from it. It is just as legal professional privilege is there to enable clients to be upfront with their lawyers so that lawyers can properly represent them. But the idea of a privilege contains the connotation of some kind of favour. The Privileges Committee and this Parliament are not concerned with parliamentary privilege in that kind of characterisation; they are concerned with privilege to enable this place to run properly in the interests of the New Zealand democracy.Another term that is going to come up in the course of this report is what exactly is a proceeding in Parliament. I think for too long there has been vagueness about the metes and bounds about what a parliamentary proceeding is. We say in this report that the time has come for a parliamentary privilege piece of legislation that addresses that particular question. They are the high-level issues that were confronted by the Privileges Committee as it undertook its task as I said between September 2012 and June of this year.The background to the proceeding which ultimately went to the Court of Appeal is set out in the report of the Privileges Committee pages 8 and 9. I do not need to go through it at any length. Most members know the background. Ms Leigh was contracted by the Ministry for the Environment as a communications adviser on climate change issues and in 2006 she was told that another communications expert a certain Clare Curran was going to be appointed to oversee the strategy on which Erin Leigh was working. There were a number of questions in the House concerning these appointments. A Mr Gow from the Ministry for the Environment would have gone across to the Beehive office of the then Minister for the Environment given that particular Minister a written briefing and orally taken him through the particular issues and the Minister gave answers in the House. In due course he apologised for some of the statements he made but in any event the critical issue here is that proceedings were commenced by Erin Leigh against the Attorney-General in respect of the Ministry for the Environment and against Mr Gow the public servant alleging that the statements that were made in the House constituted a republication of the statements that he had given to the particular Minister.Then there was what could be called interlocutory warfare for a number of years. There was an application to strike out parts of the statement of claim. Eventually it found its way to the Court of Appeal which dismissed the appeal of the Attorney-General and concluded that statements made by an official to a Minister for the purposes of replying to questions for oral answer were not themselves parliamentary proceedings. So that very critical issue of what is a parliamentary proceeding arose.The court rejected the submissions of counsel for the Speaker John Pike that the proper test was whether the occasion in question was reasonably incidental to the discharge of the business of the House. They also disagreed with some statements made by David McGee then Clerk of the House in his book about the nature of the particular privilege. They preferred to rely on the basis of necessity as being an essential underpinning for parliamentary privilege in New Zealand. With the greatest respect what I think they did was they referred to some of the cases on barristers’ immunity public interest immunity and so on which have been pared back over the years and they have simply applied a test of necessity to parliamentary privilege.As a result of this very important albeit interlocutory decision the Speaker indicated that he wanted the Privileges Committee of Parliament to look at the issue and provide some advice to the House. That is exactly what we did.I think the process undertaken by the committee was exemplary. I particularly want to recognise the Deputy Clerk of the House and Catherine Parkin the clerk of the committee for the excellent work that they did in assisting the committee. We not only wrote to a number of legal experts in New Zealand like the President of the Law Commission Sir Grant Hammond we spoke to Professor Philip Joseph and we also spoke to the State Services Commission. I think as a result of that we got a pretty good idea of where we needed to go. Importantly we also undertook some inquiries overseas. We were very grateful to receive advice from the Standing Committee of Privileges from the Australian Senate the Standing Committee of Privileges and Members’ Interests in the Australian House of Representatives and the United Kingdom House of Commons and I think we had some answers from Canada. All in all the comments and the advice that we received were very helpful indeed.And so as I say the committee met and it has decided that the time has come—and the conclusions are set out in the report itself—for Parliament to bite the bullet and pass parliamentary privilege legislation that addresses some of these questions that have hung around for too long frankly. What exactly is parliamentary privilege? What exactly is a proceeding in Parliament? If we can address these questions then I think we will be doing this institution a big favour.It is not as though the issue has not been on the agenda for many years. I know that David Caygill when he was in Opposition went to the time and trouble of preparing a draft bill on the subject but it went no further. The Privileges Committee has looked at this issue from time to time but I believe that the time has come for Parliament to deal with this matter once and for all. We say that the Australian legislation of 1987 provides a good model.In conclusion let me say this: I saw today that theNew Zealand Herald has said that we are striking back at the Supreme Court. No we are not. We are recognising that as between the various branches of Government there has to be comity we have to show respect for the court system which is why there are very stringent rules on the sub judice rule and matters such as that. But likewise we say that it is a two-way street and the committee respectfully says that on this occasion we think that the courts have got it wrong. They have misinterpreted what exactly parliamentary privilege is all about. It is a hugely important question—not for individual members of Parliament but for the institution and ultimately for the parliamentary democracy in which we work and live. So may I conclude by once again thanking the officials and my colleagues on the committee for what I think is a very important report.Hon DAVID PARKER (Labour):Can I begin by thanking the Attorney-General for his chairing of the Privileges Committee. I thought it was a very considered approach that was taken by the select committee as he has outlined. We garnered information from the Law Commission and from constitutional experts from Commonwealth jurisdictions and other parts of the world including Professor Joseph. We came to the view that the decision of the Supreme Court was wrong on this occasion. We do so with respect. We are careful in the choice of language that we use but we are firm in our view that the Supreme Court has got it wrong on this occasion.The privileges of Parliament go through a rather convoluted route but in the end are founded on the same principles of privilege that are afforded the United Kingdom Parliament pursuant to article 9 of the Bill of Rights 1688. It took a while for New Zealand to get to the position that those were also the privileges of the New Zealand Parliament and the history of how the New Zealand Parliament came to have those same privileges is set out in detail in the report. I do not have time to go through that.Suffice it to say the privileges of the New Zealand Parliament in respect of parliamentary privilege are the same as those of the House of Representatives in the United Kingdom where article 9 of the Bill of Rights provides “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” It is a very very important principle and it is one of the ways in which we avoid conflict between Parliament and the courts.There will always be a grey line as to what the end of parliamentary jurisdiction is and what the limit to the jurisdiction of the courts is. I am a person who thinks that that grey line between these two spheres of democracy should never be specifically defined because it is impossible to do so with a particularity that would cover all eventualities. At one level I like the greyness of that line which enables both of those venerable institutions to push against the other where one goes too far. I think that I like the fact that the courts can push against abuses by Parliament where Parliament goes too far. I think back to the time of the courts responding to some of the excesses of the executive at the time of the Rt Hon Robert Muldoon when the courts pushed against the executive in a way that they had not previously because the exigencies of the time made it appropriate to do so.However on this occasion I think that the courts have got it wrong because they have imported this new test of necessity in assessing whether parliamentary privilege is as broad as it was until the Supreme Court decision was laid down. I for one have never accepted the principle that the Supreme Court was within jurisdiction to make that ruling because its jurisdiction does not go so far as to limit the privileges of Parliament. It can appropriately say that there are occasions that fall outside the privileges of Parliament. We have had instances of that in the United Kingdom where some of the behaviour of parliamentarians over there in respect of their personal expenses were justiciable and they were appropriately found not to be covered by parliamentary privilege because they were not part of a parliamentary proceeding. But this case is different. Here we have the Supreme Court trying to introduce a new legal principle that limits the privileges of Parliament—in particular the extent of what is a parliamentary proceeding in respect of in the facts of this case question time.The effect of the Supreme Court decision was to say that it was not necessary for Mr Gow to have absolute privilege in respect of his statements because they were a parliamentary proceeding and to find that on the basis of this newly introduced doctrine of necessity all that was necessary was for him to have the benefit of qualified privilege. We at the Privileges Committee heard evidence from Professor Joseph and from the Hon Sir Grant Hammond amongst others to say that that writing down of theprivileges of this Parliament was inappropriate and that it will have a chilling effect on the frankness of advice from officials to Ministers as they prepare for question time.We have very very low levels of corruption in New Zealand. One of the ways that we keep that freedom from corruption is having the ability of this Parliament to get information for question time when the Government’s conduct is being questioned which could include accusations of corruption or incompetence. With Government officials advising Ministers for question time there is a very strong public interest that they can be completely without risk of suit if they say things that are defamatory of people because these things are defamatory if you allege outside parties to be corrupt. Those statements ought to be able to be made to a Minister of the Crown as that Minister prepares for question time.We have seen very litigious behaviour in New Zealand recently in respect of some of the finance company fallout. We have seen Mr Hotchin and others—and I can say this in this Parliament protected by absolute privilege—sue people in defamation including Brian Gaynor who wrote an article in the newspaper alleging that there was poor practice on the part of Mr Hotchin and others in Hanover Finance and that they have profited handsomely privately. You can see that those sorts of accusations once made by Brian Gaynor have got him caught up in very complex litigation and you can see that that would have a chilling effect on the media.Well if those sorts of questions were being asked of Ministers I want officials within the ministries to actually make those sorts of statements to Ministers if they believe them to be true. I do not want them to have the risk of facing defamation proceedings by the likes of Mr Hotchin or others who have got very deep pockets and who are very keen to use their rights at law in order to try on occasions to gag criticisms. That was the effect in my opinion of the Supreme Court decision.As I have said previously I think the Supreme Court went beyond its jurisdiction when it did this and so I actually do not accept that the decision inAttorney-General and Gow v Leigh  from a principle point of view is binding on Parliament or was effective at law. But there is no way to fix that other than through legislation. We do not have contempt proceedings where we drag people whom we disagree with before us in Parliament and then lock them in chains in the dungeons; we actually have a civil way of resolving these issues. The most practical way through this as the Attorney-General has said is through legislation that defines parliamentary proceedings in a way that includes the advice of officials like Mr Gow to Ministers as they prepare for question time.There is not time in this contribution to make reference to theBuchanan v Jennings case which was also raised again with us other than to say that the view of the committee was that prior committees were right when they said that effective repetition ought not to give rise to a suit in defamation as opposed to defamatory statements themselves being repeated outside the House which of course are defamatory. That rule exists for the protection not just of members of Parliament but also of the media in case people think that we are being self-interested in that regard.This Parliament has shown considerable comity for the courts in recent years. It has changed its Standing Orders to make it more difficult for members of Parliament to breach suppression orders. Although we have the right to do so with our absolute privilege we take care to respect the decisions of the court. And on this occasion we think that the court has gone too far the other way and that the appropriate way to remedy this is through legislation.Dr KENNEDY GRAHAM (Green):The Green Party concurs with the Privileges Committee’s report on the question of privileges concerning the defamation actionAttorney-General and Gow v Leigh . The House is invited to note our disagreement withthe Supreme Court decision in that case. Our disagreement concerns particularly the court’s use of the test of necessity as the means for ascertaining the scope of Parliament’s privilege of freedom of speech. In remediation the committee invites the Government to introduce a parliamentary privilege bill into the House. Such a bill would clarify for the avoidance of doubt the nature of parliamentary privilege in New Zealand. This is an unprecedented move I think in New Zealand’s constitutional history and I am pleased that we have come to the place we are at.Allow me to make a few ancillary comments by way of support. This exercise I suggest has both a legal and a political dimension to it. On the legal merits it might be queried—not least by members of our judiciary—by what authority members of our legislature would presume to judge the validity of a Supreme Court decision. It is a fair question. The answer I think lies not in any self-assumed level of knowledge and insight on the part of legislators. Few among us are qualified lawyers. I am not one. Among the few there is I think not one complete authority in constitutional law. So it is not any competitive notion of superiority in the trade that prompts the legislature and its Privileges Committee in the first instance to consider this constitutional move. It is in fact the obverse: the notion of cooperation between the two branches of Government in finding the constitutional balance between them. It rests on an underlying notion that the political branch—that is the legislature—and the legal branch—that is the judiciary—must maintain a seamless if differentiated unity in the public interest.It is perhaps with a touch of irony the principle of comity that drives our response to the Supreme Court decision. The notion of mutual respect and restraint requires that in the occasional event that one branch always with the best of intent encroaches in the opinion of the other marginally too far across that threshold of mutuality then it is the right and responsibility of the other to restore the balance. That mutuality works both ways. In this case it is the legislature responding to the judiciary. In another case the judiciary is responding to the legislature when it makes its views known that a member’s bill currently before the Justice and Electoral Committee requiring a Register of Pecuniary Interests of Judges is unnecessary albeit well intended and could venture too far into the judicial realm even though such a thing exists in certain other jurisdictions.Both responses from one branch to the other require mutual respect. That is the underlying basis of constitutional stability the glue that holds society together on a civil basis. And so it is that the Privileges Committee has been careful to lay out its reasoning underpinning its view of the wrongful application of the doctrine of necessity in the case ofAttorney-General and Gow v Leigh.It is careful to note that such a critique rests on the advice of expert legal opinion some of the nation’s top constitutional lawyers members of the Law Commission andParliamentary Practice in New Zealand  which is perhaps the ultimate authority on the subject in this country. Although the reasoning and the conclusions and recommendations in our report are of course our own responsibility we are careful to ensure that they directly rest on and derive from such advice that we received. The issue is too important to do otherwise. And so we cite the general principles of parliamentary privilege—namely freedom of speech and exclusive cognisance. We recall the basis for parliamentary privilege in New Zealand. We acknowledge the relationship between Parliament and the courts and the need to balance parliamentary privilege with common law rights. We considered the appropriateness of applying the doctrine of necessity to parliamentary privilege and whether as a consequence the same test would apply to other privileges.We convey our concern that the approach of the Supreme Court in this respect appears to narrow the protections of the Bill of Rights article 9. It confuses we think parliamentary privilege which is an absolute privilege protected by article 9 withqualified privilege. Much depends in this respect on the meaning of the phrase “proceedings in Parliament”. The court’s decision we feared moves the interpretation of this phrase in New Zealand away from the interpretation followed in other comparable jurisdictions and could have a chilling effect on the ability of the House to receive information from advisers. Indeed we go further as the Hon David Parker has said and question whether it is even within the jurisdiction of the courts in this country to challenge the extent of parliamentary privilege in the manner done inAttorney-General and Gow v Leigh.This dare I say it plumbs the depths of constitutional reflection as far as I think it is possible to go. In advancing the observation members of the committee intend no disrespect and we trust that members of the judiciary accept that assurance.So much for the legal dimension; there is also the political dimension of such a far-reaching foray into constitutional law for in the final analysis it is the people the true source of all sovereignty who must decide on the relationship between their various branches of Government. To adapt an observation of the Law Commission in commenting on the pecuniary interest issue neither the judiciary nor the legislature exists in isolation. They are institutions in a particular society. Their persons must have the respect and faith of the communities they serve in order to be effective. The court of public opinion supersedes all others.On that matter I have only one observation to make. It is of paramount importance that the public understand the true meaning of the phrase “parliamentary privilege” as the Hon Chris Finlayson has noted. This does not mean undue or unearned material benefit for members of Parliament; it is almost the reverse. It means the protection of their freedom of speech and in this case that of officials advising them for the sake of liberty and democracy which is the inherent right of the people they represent. If this is clearly understood there should be no problem expecting the people to understand why this Parliament has been so moved why the Speaker felt compelled to refer the matter to the Privileges Committee on the first parliamentary day after the Supreme Court’s decision why the committee has laboured so long and so carefully and why its recommendations are so far-reaching. But if there is any doubt on the part of the public about this we would do well to consider a change of phrase. We could use the phrase “parliamentary protections” rather than “parliamentary privileges” if it were to make the critical difference in the political context. I am aware of the weight of tradition that supports the current phrase but there are two meanings to the word “privileges” and one seems to get lost in the static.The Green Party concurs with the report of the Privileges Committee onAttorney-General and Gow v Leigh  and commends its recommendations to the House.Rt Hon WINSTON PETERS (Leader—NZ First):First of all I want to recognise the Attorney-General and my fellow members of the Privileges Committee who considered what was and is a very serious issue. The committee’s consideration of this issue is an example of how Parliament should work when people put the best interests of the institution they belong to and a great tradition that they have been part of establishing to the forefront and forget about party politics. It may be pure serendipity that there was no politics involved in this at all which is probably why Parliament acted as it did—not in a surprising manner but in a far too infrequently seen manner.First of all article 9 of the Bill of Rights of 1688 is an ageless beacon for our democracy and it is often misunderstood in terms of how important that is. The right for an MP—in short we interpret it—to speak in Parliament openly and honestly without fear of later legal action is fundamental to sound debate and the expansion of knowledge and argument on which parliamentarians collectively can make a decision. There has been over the years a slow erosion of parliamentary privilege in this countryin two respects. First of all as to the public’s understanding of it an MP is frequently portrayed as hiding behind parliamentary protection when everyone knows particularly in the press gallery that without that parliamentary protection not one media outlet would publish what that MP is saying not in terms of any consideration of the merit of what that MP is saying but simply a blanket embargo because they themselves the media fear the cost of publication being a later lawsuit. That is the first misunderstanding. Often a member of Parliament will say something in Parliament because that is the only way that the communication or media industry can actually broadcast without fear of a lawsuit what has been said.I want to emphasise that. Far too many journalists will say to you: “Why are you saying it with parliamentary privilege?”. My response always has been personally to say: “That is because you’re too gutless to report it without fear of being sued. You have all the resources you are backed by millions and you are putting that up as some sort of act of temerity or even cowardice when in fact it is a protection of you as well.” If you trace back the recent history of this country you see how often that allegation has been made when in fact at the end of the day the MP has been proven to be reserved in the extreme about the allegations he or she made.The second thing is that the courts have taken the view that their arena—and it has been a slow erosion—is the appropriate place where an MP can fairly defend him or herself for something said in Parliament. For example it may be in respect of the connectedness of a statement whereby a parliamentary speech is made first and the MP is asked about what happened in Parliament and he has merely said words to this effect: “Well you have heard him and you have heard me. Make up your own mind.” That has been as thin a connection or link needed for a court to seek to hear an action that it should not be hearing in the first place and it is an affront to parliamentary privilege in my view.It also invites the use of a gagging writ to shut down further disclosure and there have been some serious examples of that in recent time. Every one of them has failed except for one—or rather two. But that one went on appeal to the High Court and got half turned over. I am frequently met by law students all around this country who say: “Well why didn’t you go the whole way?” which is a marvellous question to ask someone when that person is financing the whole action from his own resources—after paying tax—and all himself. It is quite shocking to hear that because of course one would have loved to go the whole way to clarify the law and that is what I would like to say to the judiciary. It is as clear as daylight and the message is this: “Yes you sit there with all the resources of the taxpayer at no expense on this matter whatsoever and you’re hearing before you an MP who is funding an action all by himself or with the support of like-minded people in the community.”There are good examples of that. Nick Smith had a legal fund in respect of a defamation case he was facing that emanated out of the top of the South Island. John Banks similarly had a legal fund that emanated from I think a case relating toTruth magazine in which he was involved. The extraordinary thing about that of course is that I had one as well. That became a fund that in law I was told by this Parliament I could not have and that was the kangaroo court of the Privileges Committee the august committee that got it right this time but got it wrong back then.We all know how hypocrisy works but all I am saying to the court and to the members of the judiciary who think we are wrong is this: who is funding the MP to defend something he or she has properly put to the Parliament of the country? The answer is no one. So they—that is the judiciary—are not in the shoes of someone who sits here with a protection that is 100 years old and emanating from the UK and thank heavens for that.I also say this to my colleagues who have heard this argument before and they heard it before the Privileges Committee inquiry back in 2008. Do you understand the risk you take when you go down that path of denying an MP to obtain not for political reasons—there are no votes in it—the right to start a fund to defend him or herself and when frequently up against the very wealthy the extraordinarily wealthy? If you as an MP have ever faced millions and millions of dollars of defamation writs from some of the wealthiest people in the country then you might know what I mean. But I am sad to say that back then the committee decided to restrain and curb their rights to fight such defences and I believe they acted in a most inappropriate way.The great thing about this committee and this report is that I think there is a view across the committee that we need to correct this erosion and restore the situation to what it should be legally. We commend this to the rebalance of Parliament not on the basis of some venal self-interest but on something far more important by way of principle and that is the right of an MP whether wrong or right to honestly state his or her view in the hope that that adds to the public debate and the quality of decision making in Parliament. That is an important right. I want to thank the Attorney-General for chairing the committee in an extraordinarily competent way. Thank you.ANDREW LITTLE (Labour):I want to take a call on this very important Privileges Committee report and I would like to acknowledge the work of both the Attorney-General and the Privileges Committee itself for producing I think a very good discussion of the background to it and bringing perhaps to a head years of concern about a lack of clarity and understanding about the nature of both parliamentary privilege and parliamentary proceedings. This as the Rt Hon Winston Peters said is not just a constitutional issue; it is one of the most important constitutional issues and I might say that in the context of what is meant to be apparently a time of national debate about our constitution and whether we should have a written one or not this at least is a matter of real constitutionality. It is about how power is distributed and how it is represented and it is about the relationship between the different branches of government. These are questions that go to the core of what makes up a constitution and it is good that we are having an open discussion at least in this House this afternoon on this important issue.As has been clear from previous speakers the heart of this debate is about what constitutes the proceedings of Parliament. The case that went to the Supreme Court and has led to the Privileges Committee considering the matter and writing this report was a defamation case. The Defamation Act itself—a piece of legislation with which I have recently become familiar along with a colleague of mine—uses the term “privilege”.Hon Trevor Mallard: That will put both these cases in common.ANDREW LITTLE: There is not a great deal in common with theLeigh case because in that case of course there was a Minister being advised and it was the Minister’s adviser who was really in the gun because of what he said or is alleged to have said in advising the Minister. In the more recent case involving Mallard and Little it was a Minister who took umbrage at comments made the veracity of which have never been tested and indeed the case has been pulled and we will never know what the result would have been.But the Defamation Act itself uses the term “privilege” in terms of absolute privilege qualified privilege and parliamentary privilege notwithstanding that those terms have different meanings in each case or at least qualified privilege and absolutely privilege on one hand and parliamentary privilege on the other. As the Attorney-General said parliamentary privilege is about protection—protecting members of this House who having been elected to come here must be allowed to do so to fulfil their obligations and duties without fear of being harassed and harangued by thepowerful the mighty and the wealthy as they do so. So it is accepted that MPs must be able to prosecute their role. We must be able to fulfil our duties and obligations without fear from others in the community who would seek to prevent us from doing so.It is also important that there are safeguards for citizens because as the Attorney-General correctly pointed out parliamentary privilege is about protecting members but it is not about elevating members to an unnatural status within the community so that they are beyond reach or cannot be touched if they transcend or transgress either the law or other accepted rules and principles. So there must be safeguards for citizens as well. Although I am new to this House and I have not been here during the development of the existing Standing Orders there are Standing Orders that do go to the extent of protecting citizens so that if a citizen who would not have otherwise had a voice here is referred to particularly if they are referred to in disparaging terms there is a process by which they can have their reputation protected or at least have a version represented. Likewise when it comes to the relationship between this House and the other branches of government principally the judiciary there are Standing Orders that seek to preserve and protect the relationship between them.Sitting behind this report and the recommendation of it which is to provide a statutory clarification of parliamentary privilege we have the case ofAttorney-General and Gow v Leigh  which focused on the necessity principle—what is needed to make the absolute privilege of Parliament functional and workable. That was the focus of the Supreme Court as opposed to what I think with great respect was really at the heart of that case which was more about what inquiry was needed to ensure that the Minister could fulfil in that case his obligation to answer fully and properly to the House and what was needed to protect the citizen. So a Minister must be free in taking advice to pose questions and to obtain advice both orally and written from officials on whom they are dependent and reliant to get advice. That must be able to be conducted in a “free and frank way” as the expression is given and indeed reflected in the Official Information Act. The free and frank expression of officials must be preserved and protected to enable the role or the function of the Government to be carried out.It appears in my humble view and respectful opinion that the Supreme Court conflated the test needed to protect the right of the citizen who in this case is Ms Leigh with the manner in which Parliament must conduct it business. So I think that the Privileges Committee has correctly struck the balance and concluded that it is right for this House to enable it to conduct itself properly and its members to conduct themselves without fear of harassment from others in the community to legislate for a definition of parliamentary privilege and parliamentary proceedings. That need not cut across citizens’ rights and the ability of citizens to stand up to preserve and protect their reputation. That can be accommodated in the Standing Orders of the House as in my view it already is. But we do need to be aware at least in the public debate that will happen about legislation that there will be a tension between citizens and their representatives in this House as we seek to protect our ability to do our job.It is interesting that the origin of the Bill of Rights 1688 was more about the relationship between the Crown or the monarch and Parliament and that was a Bill of Rights that was about preserving and protecting the role of Parliament as against the monarch of the day and ensuring that the Crown could not unduly interfere in the conduct of Parliament as it went about raising taxes and passing laws and that it could not be gainsaid by the monarch of the day making their own dictates and passing their own laws unilaterally without the proper involvement and consent of Parliament and likewise levying taxes. That is what the Bill of Rights 1688 was about and that is what it was referring to when it talked about the proceedings of Parliament in article 9 where it sought to preserve and protect those. It is clear from a reading of that 1688 documentthat the reference to the proceedings of Parliament was intended to be broad and was intended to give effect to Parliament in all its dimensions conducting itself and fulfilling its business.So I want to once again acknowledge what is I think a very good piece of work in the document that has been reproduced and that we are discussing now and I look forward to the legislation as it is drafted and as it comes before this House for more considered and detailed debate.Motion agreed to.Consideration of Interim Report of Privileges CommitteeQuestion of Privilege Concerning the Agreements for Policing Execution of Search Warrants and Collection and Retention of Information by the NZSISHon CHRISTOPHER FINLAYSON (Attorney-General):I moveThat the House take note of the interim report of the Privileges Committee on a question of privilege concerning the agreements for policing execution of search warrants and collection and retention of information by the NZSIS.I emphasise that it is an interim report.As is well known the Speaker on behalf of all members of this House exercises control over the parliamentary precincts and the reason for that is to ensure that the House can properly function as a legislature on behalf of the people. Over the years various Speakers have signed up to three agreements. I will briefly refer to them but then focus in particular on one of them.The first was when former Speaker Jonathan Hunt signed an agreement with the Commissioner of Police on policing functions within the parliamentary precinct. That followed an examination of a draft agreement by the Privileges Committee and that agreement was revised and signed in 2007.The second one I wish to refer to is that in 2006 the then Speaker Margaret Wilson presented an agreement to the House. It was one that she had entered into with the Commissioner of Police setting out some interim procedures for the execution of search warrants on premises that were occupied by members of Parliament. That was very much an interim agreement. It could not be finally resolved until the prosecution of and all the appeals relating to Mr Field had been dealt with. A final order in relation to that former member was made on 3 September 2012 and it was that order that concluded those proceedings.The third agreement was that in 2010 the former Speaker Sir Lockwood Smith entered into a memorandum of understanding with the New Zealand Security Intelligence Service and the Minister in charge of the service on the collection and retention of information on members of Parliament.Last year in September 2012 the Speaker referred those three agreements to the Privileges Committee and asked that it take a good look at them as they involved questions of privilege. This is an interim report because in the last couple of weeks some amendments to security legislation have been introduced and those matters are currently being considered by the Intelligence and Security Committee of Parliament.The critical issue that has arisen is in relation to the proposed amendments dealing with oversight capability of the Inspector-General of Intelligence and Security. The committee took a good look at those proposed amendments and thought there was an issue that arose about whether or not they provided clearly for oversight of the intelligence agencies in circumstances where a person such as the Speaker may wish to complain to the Inspector-General on behalf of members of Parliament—that is the House of Representatives; not a particular person within the House but on behalf of theHouse of Representatives—that it had been or may be affected adversely by the actions or procedures of the intelligence services.So it is a very limited inquiry unlike the previous report that we have been discussing this afternoon. It focuses on those amendments and suggests that the issue of oversight in relation to a person such as the Speaker in the circumstances I have outlined could in fact be looked at by the Intelligence and Security Committee to determine whether some tweaking of some of the clauses of that legislation is required. That is all this report deals with. The other substantive matters in relation to the three agreements that I have referred to will be the subject of a separate report to Parliament in due course.GRANT ROBERTSON (Deputy Leader—Labour):Thank you for the opportunity to make some remarks on this interim report of the Privileges Committee on a question of privilege concerning the agreements for policing execution of search warrants and collection and retention of information by the New Zealand SIS.The first point I want to pick up is the Attorney-General’s comment that it is an interim report. I understand that the reasoning for that is the desire of the Privileges Committee to ensure that the Intelligence and Security Committee had the advantage of having this information in front of it. When it comes time to deal with the full report and assess that I believe that there are a number of quite serious questions to answer here. I absolutely acknowledge the point that the Attorney-General has made that there have been agreements entered into over a period of time by Speakers with agencies that may have the ability to come in and demand things of members of Parliament. It is important to put on the record of Parliament the fact that we must jealously guard the rights and privileges that are afforded to us. We have already in the earlier debate on the report of the Privileges Committee on a question of privilege concerning a defamation action had this discussion that perhaps the phrase “parliamentary privilege” does not encompass exactly what it is that we are talking about here.An awful lot is invested in the early days when you become a member of Parliament—and we are about to hear from two new members who are about to enter into the fray here—and it is made very clear to us when we go through the pomp and ceremony at the start of each Parliament how the privileges afforded to MPs are gained. The Speaker takes a trip to Government House and there is a communication about that. It is a very important right of parliamentarians to be able to represent their constituents and to be able to undertake those conversations on behalf of their constituents knowing that they have protection in doing that. Any notion of coercion or anything like that around these matters is something that we must be very very concerned about. So I respect the agreements that Speakers have made that govern their arrangements for the police and for the SIS in the execution of their warrants.The first and main point I want to make on that is that what I see through those agreements and indeed in what is discussed in this interim report is a very large weight upon the Speaker to be the person who acts on behalf of members of Parliament as to whether or not they are sufficiently protected and whether or not the interest of the SIS or any other agency in them is justified. I do believe that we are investing in the Speaker a significant power but also the pressure that may be on that individual is I think extremely difficult. We are talking about highly politicised situations here and I do not believe we should enter into this area without considerable thought. That is actually a matter for the final report on this particular issue but I do think we as a Parliament need to give some thought to whether or not the Speaker needs wider support around that kind of decision. Should for instance there be some form of code or some general principles to which the Speaker looks when making decisions about whether or not warrants are justified—whether or not members of Parliament can beincluded within that? I have significant concerns about what threshold would need to be passed for it to be right and proper for the SIS to be monitoring or looking into the activities of a member of Parliament. That must be an extremely high threshold if it is to be justifiable. I think this Parliament needs to look very closely indeed when it comes to the final report at whether or not we believe we as parliamentarians have sufficient protection from undue attention from those investigating agencies. Various Speakers have made their decisions on that. I accept that. I understand that that is the process that we are under at the moment but I do think we need to tread very warily indeed in those areas.The second matter that I want to talk about is the matter for which this interim report has been created. That is because currently the Intelligence and Security Committee is considering the Government Communications Security Bureau and Related Legislation Amendment Bill. At the outset I want to say that the Labour Party opposes that legislation. We believe that that legislation is a band-aid attempt to cover over what has been going wrong in the Government Communications Security Bureau in recent times the lax oversight of the Prime Minister as the Minister responsible for the bureau and the fact that we have never gotten to the bottom of the Kim Dotcom case or indeed of many other activities that have now been revealed that the bureau is involved in.We have a report from the Inspector-General of Intelligence and Security that tells us that there are a number of cases in which it is arguable that the spying undertaken on New Zealanders was legal—arguable that it was legal. Presumably that means that it is also arguable that it was illegal. That is the situation we are now left with. The Government is determinedly rushing through legislation—I think submissions on that legislation close tomorrow—and there has not been sufficient time in the view of the Labour Party for submissions to be properly heard on this legislation. We are strongly of the view that there needs to be an independent inquiry into the activities of our intelligence agencies. I have to say that seeing this matter being referred by the Privileges Committee to the Intelligence and Security Committee only adds to that concern because we do believe that the issues that have been raised on this in the committee are important.A matter that appears specifically in the interim report is around the question of whether or not extending the powers of the Government Communications Security Bureau—which is what the legislation in front of the Intelligence and Security Committee does—means that effectively the bureau could end up in the position of monitoring the activities of MPs. That has not been foreseen until now. It represents a very significant example of the extension of the powers. This report deals with the matter of the oversight of the execution of those powers so it deals with whether or not as MPs we have the ability to complain to the Inspector-General about what oversight the Inspector-General might have over any complaint that an MP might make. But I think it is very important to go back to the root cause of that and the root cause of that is the extension of the powers of the bureau and we have not in my view had sufficient time or time for the depth of study required to actually look at whether or not that is justifiable.Certainly one of the concerns that this side of the House has had—and it has been a very topical issue in recent days—is that the bureau is part of a wider international network. Information collected by the bureau as it is by the other partners in the Five Eyes network then becomes part of a pool of information that other countries can access. It would be a concern I would think if that information about MPs as an example was able to be accessed by foreign intelligence agencies and that is the kind of issue that we need to investigate within a wider review. At the moment we have a piece of legislation about the Government Communications Security Bureau goingthrough. Here we have a Privileges Committee report that is actually about the SIS and the police yet the bureau through that legislation that is front of the Intelligence and Security Committee may well end up helping the SIS or the police in the execution of their work. So it is an extremely tricky area.I am glad that the Privileges Committee has referred this to the Intelligence and Security Committee but it has referred only one element of the issue: the element of oversight. I believe that the Intelligence and Security Committee needs to think about the privileges of MPs within the context of the whole legislation and the extension of the powers of the Government Communications Security Bureau. The Government should not be rushing that legislation through. We should have an independent inquiry into all our intelligence agencies at which point we would be able to see where MPs fit in. I am however glad that this interim report will find its way to the committee.Dr KENNEDY GRAHAM (Green):In the interests of the procedure of the House I will be very brief indeed. I just say that the Green Party is prepared to support this recommendation of the Privileges Committee of which I am a member on the interim report on the question of privilege concerning the three agreements. We support the recommendation made to the House but on the understanding that it in no way prejudices the Green Party position in respect of the issues at stake that will no doubt come out in the final report. It will not be lost on members that at least part of the genesis for this inquiry and the final report is occasioned by a complaint laid by a member of the Green caucus in the 49th Parliament and the Green Party has its views on this matter.There is a huge difference between the nature of the issue that we have discussed in the previous itemAttorney-General and Gow v Leigh  where the relationship between the judiciary and the legislature have two large searchlights mutually shining on each other and there is a fair bit of transparency in that relationship and this case where the relationship between the two identities you might say—the legislature and the SIS—is one that is absolutely shrouded in a veil of mystery a lot of which is artificially induced. So we have our views. We will support this particular interim report for the sake of the relevant committee and we will have more to say on the substance of the matter later.Rt Hon WINSTON PETERS (Leader—NZ First):Mr Kennedy Graham and I have been constrained in the length of our reply in this debate because shortly there are to be two maiden statements from two new members who are desperately needed in terms of the talent that the National Party presently suffers from at this point in time. We are all waiting with bated breath to hear what they have got to say because the reservoir has run dry. As a consequence we will constrain our speeches way short of the 10 minutes that we are qualified to have and because we want to accommodate the National Party’s desperation to infuse in its organisation some talent for the first time for a long time.That said if you go straight to the recommendation on page 6 of this report it is the nub of it that I want to address and the nub of it is the recommendations made to the Intelligence and Security Committee and the role of the Minister in charge of that committee. It is just two paragraphs. What is apposite is that there are parties concerned as to what is happening with the Government Communications Security Bureau or more particularly the Minister in charge of it. If members refer to our speech at the time of the introduction of the Government Communications Security Bureau and Related Legislation Amendment Bill they will see in those opening paragraphs what our concerns are but our concerns have magnified since we gave that speech. Our concerns have magnified to the extent that a Prime Minister rises in this House and says that he happily received a sanitised report. It was not the one seen by those down at theGovernment Communications Security Bureau at the time they looked at the preliminary report draft. No it was one that the former head of the Government Communications Security Bureau is reported in theNew Zealand Heraldthis morning as saying on page 10 is a report that has been sanitised and that there are whole “lots” of parts to use his words that are missing.More important what happened was that the original report had some information that was moved to the appendices of the final report and then when the final report went out sanitised as it was the appendices were never released. In short people who appeared before the Kitteridge review know far more than every member of Parliament and according to the Prime Minister they know far more than him even though he is the Minister in charge. That is an abysmal situation. It is an appalling lack of prime ministerial and ministerial responsibility that we are addressing and I hope that one of the new members coming in here today who are about to give their maiden statements realise just how far the party that they have joined and campaigned for and have now come into Parliament for has sunk.Hon John Banks: Don’t be silly.Rt Hon WINSTON PETERS: And it has been sunk by people like Mr Banks. Mr Banks I might tell you had 42 cheques sent to him and understandably you could forget a few but he forgot all 42.Hon Member: What happened to your $100000?Rt Hon WINSTON PETERS: What happened to the $157000? What happened to the $157000?Hon John Banks: Say “No”.Rt Hon WINSTON PETERS: No the answer comes up here so that no more deceit and misrepresentation continues from that Parliament. What happened to the $157000 was that we wrote to the Auditor-General—[Interruption ] No no listen. We said to him that every cent was approved by the Parliamentary Service. Then second we said that because the law has been changed any paying back of that to the Inland Revenue Department attracted gift duty and as a consequence we to not enhance ourselves by one cent gave it to 10 different charities. That is what happened to our obligation.On the Owen Glenn matter—on the Owen Glenn matter as I said before—Nick Smith had a legal fund John Banks had a legal fund and neither of those people were ever run before Parliament on the basis that they had broken any rule. However they sat there those people in a kangaroo court. They drafted a report that said: “The law doesn’t apply. We’re writing a new one and—here we go—retrospectively we are going to apply it to Winston Peters because we want him out of Parliament.” Well we are back. We are back and every day—I must tell these new members—the people are joining in legion numbers all around New Zealand. The halls are being packed—the halls are being packed—and out there the people are saying: “We’ve hung on because we know help is on its way.”I have got only 2 more minutes but I want to say this to these two new members. Before you have travelled too far along the pathway of being mere cannon fodder ask yourselves these questions. Is this the party of Holyoake? Is this the party of Hamilton? Is this the party of fine men like Duncan MacIntyre? Was it the party of Winston Peters once? Yes when it was a great party. It was a great party—when the party had 200000 members. Today it has got just 200 big donors. No membership—no membership. Mr Banks we are never going to eat our hearts out to support a party that has sold out every principle it once stood for. Nevertheless I want to wish the two new members who have come here a successful career here difficult as it is going to be short as it is going tobe. I hope that your maiden statements tonight evince the principles and dreams of the party that was around when you were born but not the one that is here now. Thank you.Motion agreed to.