Act One of Peter Dunne's departure has come to an end. What does Act Two hold in store?

Now that Peter Dunne has turned into the political equivalent of a bleeding seal swimming amidst a feeding frenzy of hungry sharks, what happens next?

Well, there's three ways that his involvement in any past leaks will get scrutinised in the next little while. 

The first is the complaint apparently lodged with the Police by Winston Peters, alleging that Peter Dunne has breached the Crimes Act by: 

knowingly or recklessly, and with knowledge that he is acting without proper authority, communicat[ing] any official information or deliver[ing] any object to any other person knowing that such communication or delivery is likely to prejudice the security or defence of New Zealand.

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.

The second will be whatever information Winston Peters lets loose in Parliament over the next week. He's claimed to have lots of "electronic communications" that show many and varied things. So he may well make use of the privilege (and platform) that Parliament affords him to release that material when the House meets again on Tuesday. But there also has to be the suspicion, based on past form, that he's simply trying to leverage his success in pre-empting the Henry Report's findings into a total victory over Dunne, figuring that if he throws enough allegations around, some of them may come to stick. So I'll adopt a "wait and see" policy on this one.

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.

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. And I suspect it's going to be a pretty tricky one to make. 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.

Hanging over all this is another issue, however. It isn't even a week since the Speaker, David Carter, made his decision that United Future could continue to be recognised as a party for parliamentary purposes. As I noted in this post, and as others have noted elsewhere, the reasoning for that decision is  somewhat odd. Furthermore, it caused a (probably overdone) eruption of opposition anger against the Speaker. In the light of this, can David Carter really afford to find that the complaint against Peter Dunne doesn't involve a question of privilge? What future for his role in the Speaker's chair if he is seen to make two quick rulings in Peter Dunne's favour?

All that being said, let's for the moment accept there is at least a fair chance that the Speaker will find there is something for the Privileges Committee to look at. Well, the question everyone is interested in is whether that Committee can get its hands on the emails that Dunne refused to hand over to David Henry. The short answer to that is easy - yes it can, if it wants to. The Privileges Committee "has the power to send for persons, papers, and records" (Standing Order 398(2)), which empowers it to "order that a summons be issued to any person ... to produce papers and records in that person’s possession, custody or control to that committee" (Standing Order 193(1)(b)). 

Thus, if it wants to see all the emails that Peter Dunne and Andrea Vance sent to each other, it could either require Dunne to provide them himself, or else require parliamentary services to do so (as I understand it, Dunne claims the emails were sent to his parliamentary email address ... hence his reason for not giving them over to David Henry). That is, the Committee can do this if it wants to see them. But will it?

That is where matters could get really interesting. Because, there's some good arguments against even the Privileges Committee snooping into an MP's communications with people outside the House - arguments that you would expect Peter Dunne would strongly put to the Committee. And some on the Committee may think that these arguments are good ones, such that the Committee should not use its power to require that the emails be disclosed. In which case, the decision on whether or not to do so will come down to a vote.

Then have a look at the Committee's membership. National and ACT have five members between them. Labour, NZ First and the Greens have five members. And the Maori Party has one member.

Anyone care to bet how that combination of party perspectives will shake down in a vote on whether to force Peter Dunne's email trail into the open?

Comments (1)

by Steven Price on June 10, 2013
Steven Price

Or they could require Fairfax to reveal the emails. Fair to say: unlikely. Unwise to pick a fight with people who buy ink by the barrel and all that.

There's an interesting consideration that weighs against asking anyone for the emails: the Bill of Rights Act. It applies to Parliament, at least in the way it conducts its business. (Sure, any obligations it imposes on Parliament can't be enforced in the courts, but it's still the law, and you'd hope that Parliament would at least try to comply with it).

There's a respectable argument that forcing someone to disclose their confidential sources impedes the free flow of information and thus infringes the guarantee of freedom of expression. It seems to me that this argument can apply beyond the media, and could well be seen to include private correspondence with MPs.

If anyone does stop to think about this issue, the next question would be whether a disclosure order is a demonstrably justifiable limitation of that right. In the circumstances (the report was due to be released anyway, the lie was at best peripheral to the select committee proceedings, as you've pointed out, and Dunne has already resigned over the matter anyway) I would have thought that might be a hard sell.

In short, the Committee could invoke the BORA as a reason not to require disclosure, and if it does order disclosure, there's a case that it's constitutionally objectionable.

 

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