Winston Peters ran off tot he Police, Russel Norman too thinks the Police should troll through MPs emails and David Shearer stuttered off to lay a complaint with the Privileges Committee.
Andrew Geddis thinks this might be a big gamble with little reward. After all Winston escaped with a slap ont he hand with a wet bus ticket the last time he ventured to the Privileges Committee.
Firstly, though, Geddis pours scorn on the grandstanding with Police.
For reasons more fully covered here and here, there simply is no way the leaking of the Kitteridge Report itself meets this offence provision – the fact the PM himself was due to release it a few days later testifies to that. And there is as yet no evidence whatsoever that any other material that really is “likely to prejudice the security or defence of New Zealand” has been leaked to anyone – even if Peter Dunne had access to such material, the fact that he is a prime suspect in leaking one sort of information isn’t any reason to suspect he’s leaked another sort. So, absent some as yet unrevealed June surprise, I’m calling this a dead end.
Good, because did anyone really want Winston and Russel’s police goons demanding emails of MPs?
Winston Peters was last week moaning about cellphone records, now he is saying he has emails…I don’t believe him, except he may have copies of the emails that Dunne provided which were by all accounts heavily redacted.
So, now to Labour’s hopes and dreams in the Privileges Committee.
The third is the Privileges Complaint that the Labour Party today laid with the Speaker of the House. Quite what will happen with this is a much more interesting question.
First of all, let’s note what the complaint refers to. It doesn’t refer to the actual matter of the leak itself. So David Shearer is wrong when he says:
An investigation by the Privileges Committee is required to get to the truth of the matter. New Zealanders are still none the wiser as to who leaked the Kitteridge Report. All we have is an MP who has resigned as minister but refuses to co-operate with the inquiry.
The leaking of a report into the GCSB simply isn’t a matter that touches on Parliament at all. It is an affair for the executive branch. Which is why John Key initiated an inquiry into the leak, and why John Key required Peter Dunne’s resignation as a minister when he refused to fully cooperate with that inquiry. So if the only question was “who leaked the report?”, or even “why won’t Peter Dunne cooperate with the inquiry?”, then it is nothing to do with the Privileges Committee at all.
David Shearer really is an idiot.
Rather, the complaint relates to the fact that when Winston Peters explicitly accused Peter Dunne during a hearing of the Finance and Expenditure Select Committee of being the source of the Kitteridge Report leak, Dunne denied doing so. And this, the complaint will allege, amounted to a contempt under Standing Order 407(b) by “deliberately attempting to mislead the House or a committee (by way of statement, evidence, or petition).”
Now, we’ll get to the question of whether Peter Dunne actually did commit this contempt in a minute. But before we look at that, a quick word about process. Because, a complaint that someone has committed a contempt of the House does not automatically result in the Privileges Committee hearing the matter. Rather, the claim first goes to the Speaker (Standing Order 399), who then has to decide “if a question of privilege is involved” (Standing Order 401(1)). In making this assessment, “the Speaker takes account of the degree of importance of the matter which has been raised” (Standing Order 401(2), while “no question of privilege is involved if the matter is technical or trivial and does not warrant the further attention of the House” (Standing Order 401(3)). And it’s only where the Speaker considers a question of privilege is involved that the matter goes before the Privileges Committee (Standing Orders 403 & 404).
In other words, the first call on this issue is going to be Speaker David Carter’s.
But there are some problems with that course of action.
There is the question of whether there is sufficient evidence to suggest that Peter Dunne actually lied when he said he was not the source of the leak. Because while the Henry Report said that it couldn’t rule Dunne out as the leak’s source, it didn’t say he was. So while a number of commentators have joined the dots and concluded he did it (and therefore lied in his response to Peters), there isn’t any official finding that this is the case.
Furthermore, even if there is some evidence in the Henry Report to support a conclusion that Dunne may have lied when he said he wasn’t the leak’s source, did he “deliberately attempt to mislead the House or a committee” by doing so? Recall that he was before the Finance and Expenditure Committee in his role as Revenue Minister, to answer questions relevant to his responsibilities in that portfolio. Winston Peters then began badgering him with questions relating to the Kitteridge Report leak. In the stuff.co.nz report of the matter, this is how the matter is reported:
After having attempts to question Dunne repeatedly thwarted, with committee chairman Todd McClay ruling that the questions were beyond the scope of the hearing, Peters directly accused Dunne of leaking the report.
So the chair of the committee was telling Peters not to ask Dunne about the leak, because it wasn’t any of the committee’s business. That is the chair’s responsibility under Standing Order 221(1):
The chairperson will take care to ensure that all questions put to a witness are relevant to the committee’s proceedings and that the information sought by those questions is necessary for the purpose of those proceedings.
Given this fact, the question then becomes whether a witness before a select committee misleads it if she or he falsely answers a question that wasn’t relevant to the committee’s proceedings in the first place. Or, instead, did Peter Dunne simply deliberately attempt mislead Winston Peters … in which case, there’s no contempt of Parliament involved. Because contempt relates to the work of the House of Representatives as an institution, not to the individuals within it: it isn’t, for example, a contempt of Parliament for an MP to tell a barefaced lie to another MP during a public debate on the campaign trail … but it is for a Minister to lie to an MP who asks her or him a question in the House.
So there’s an at least tenable argument that even if you think Dunne lied, he didn’t lie to the House (or a committee of the House). I which case, there is no contempt and so no question of privilege to be considered.
The call lies now with Speaker David Carter, I’m not sure he is up to the job for this. We shall see.
I don;t think though we are done with this, Peter Dunne has refused to eliver up the emails, there will be several OIA requests to produce those emails and then arguments will ensue as to whether or not they constitute his work as a minister, ultimately the Ombudsman will have to rule.
It would be far better for all if the emails were released forthwith. Dunne can suffer embarrassment…he is anyway. It will remove any further avenues for attack from Winston Peters and anyone else and die out next week. Obfuscating and arguing the point over the emails will simply allow the issue to drag on for weeks if not months.