Scampi inquiry caught in legal tangle

By AUDREY YOUNG political reporter

Fishing companies' scampi catch records have become involved in an intriguing legal tussle that underlines the sensitive boundaries between Parliament and the courts.

Simunovich Fisheries went to the High Court at Wellington last week to try to get the court to supervise the terms of access to Ministry of Fisheries records to the parliamentary committee conducting an inquiry into scampi fishing.

But in doing so, the company may have opened itself to a breach of privilege complaint, says the deputy clerk of the House, Mary Harris.

It might be seen as questioning through the court proceedings in Parliament, a breach of article 9 of the Bill of Rights 1688.

The catch records of 1990 to 1992 are central to the select committee inquiry. They will be used as the basis for allocating scampi quota when it is brought into the quota management system.

Simunovich does not want its competitors to have access to the information.

The company's legal move failed because by the time its application was heard, a copy of the records had already been moved from the ministry's office in Lambton Quay up the road to Parliament.

The court might have entertained some argument over them while the records were at Lambton Quay, but would not consider doing so while they were in the hands of the select committee at Parliament.

The application was heard in chambers on Thursday by Justice Eddie Durie.

Simunovich Fisheries lawyer Alan Ivory said his clients had not been trying to prevent disclosure of the records.

"Not at all. What we were seeking was to have appropriate terms for the disclosure of information."

He believes the records were moved to circumvent his action because originally they were to stay at the ministry.

On February 28, committee chairman David Carter wrote to Simunovich saying "the documents will be made available for a managed inspection at the Ministry of Fisheries" and that only four [unnamed] people would have access to the records.

Mr Ivory said he subsequently told the Crown Law Office of his intentions to file an application, which he did on March 7.

But before the hearing was heard on March 13, copies of the documents were shifted.

"It looks like an effort to thwart my application by moving the documents to Parliament before I could get heard."

Simunovich's action had arisen out of a concern about the appointment of a catch record auditor, Craig Fisken, as an adviser to the committee.

The company has previously complained to the committee that he had a conflict of interest through numerous business associations with people who had led attacks against Simunovich. The committee has since said Mr Fisken's work would be audited by an independent adviser, Dr John McKoy, of the National Institute of Water and Atmospheric Research.

Mr Ivory said the Fisheries Act guaranteed confidentiality of information provided by companies to the ministry and his clients had been worried about records getting into the hands of competitors.

Asked what they could do with it, he said: "One doesn't really know but what one does know is that they are indefatigable in turning very little and frequently nothing into allegations of conspiracy and corruption that collapse when examined."

Mary Harris said she did not know who had ordered a copy of the records to be brought to Parliament or why. That was a confidential matter between the committee and the ministry.

A matter of privilege would have to be referred by a MP.

Mr Ivory said under section 66 of the Fisheries Act 1993, records provided by fishing companies to the ministry were confidential unless the High Court directed disclosure and the extent of disclosure.

The Crown and the committee believed parliamentary privilege applied. Mr Ivory wanted the court to decided whether or not it applied but it never got the chance.

The story so far

* Parliamentary inquiry into scampi fishery continues today.

* Former fisheries officer Barry Nalder, whose allegations of irregularities prompted the inquiry, due to give evidence today.

* Ministry of Fisheries accused of favouritism to companies, including Simunovich, in issuing scampi fishing permits 1990-1992.

* Estimated $100 million of scampi quota to be allocated on basis of 1990-1992 catches.

* Simunovich says it was just better than its competitors and alleges a conflict of interest in a special adviser to committee.