Mai Chen: Ministerial probes struggle for truth

Prime Minister John Key. Photo / Dean Purcell

Lack of compulsion means a government inquiry is not a good way to get to the nub of controversial matters.

The David Henry inquiry into who leaked the Kitteridge Report on the GCSB seems inadvertently to have resulted in further wrongdoing.

I am sure Prime Minister John Key never foresaw the fallout when he decided to set up an inquiry into the leak. However, it reiterates that ministerial inquiries are not a good instrument to use to get to the truth of controversial matters because they have no powers of compulsion.

The Henry inquiry concluded that he could take the matter no further as Peter Dunne refused to release journalist Andrea Vance's emails - which we now know Henry got but did not read. In the same way, the ministerial inquiry former Prime Minister Helen Clark instigated into Taito Phillip Field could not compel Mr Field to give certain evidence, and it was the police inquiry launched following a complaint which finally got the requisite evidence needed to charge him with corruption.

Had the Prime Minister commissioned a Commission of Inquiry under the Commissions of Inquiry Act, it could have compelled Mr Dunne to appear and provide the emails in question. It would not have required anyone to intervene to provide the inquiry with the information it needed.

I found the Kitteridge Report disturbing in its revelations about the GCSB's lack of any systems to ensure compliance and to discover breaches. But I have found equally concerning the revelations on what was not disclosed in the Henry Report about what was sought and what the inquiry received from the Parliamentary Service and the interventions with the Parliamentary Service by the Prime Minister's staff and that of the Department of Prime Minister and Cabinet (who provided administrative support to the inquiry).

There seems to be little understanding of the (lack of) powers of a ministerial inquiry, or of the separation of powers between the executive and parliamentary breaches of government, or of the media's role in ensuring the accountability and transparency of government. Neither Vance nor Dunne can probably succeed in showing breaches of the Privacy Act by Henry, who is subject to the act, and the Parliamentary Service, which is not subject to the act. We do need further debate on whether the Parliamentary Service should be subject to the Privacy Act, and the Official Information Act for that matter.

The controversy also brings into sharp focus the need to balance transparency with privacy. The public expectation of transparency in government keeps increasing, but there have to be limits to protect privacy and ensure press independence, for example.

I don't think the current maelstrom over these emails is just a case of the media getting touchy because the privacy of one of its own has been incurred on. Lord Cooke was right when he said that the media has a right to report fairly and accurately as "surrogates of the public" (R v Liddell [1995] 1 NZLR 538). And although the media does not have a formal constitutional watchdog status like the Ombudsman or the auditor-general and are a business, they do have special protections in the law to protect journalists' sources (Evidence Act, s 68).

Under the Privacy Act, news mediums are also excluded from the definition of "agency", meaning that they do not need to comply with the information privacy principles in the act. In defamation proceedings, the media are the main beneficiaries of the "defence of political comment" from Lange v Atkinson.

In conclusion, we need to discuss more safeguards, or clearer rules to ensure whichever government is in power cannot snoop on journalists whose work may uncover stories that show the government in a bad light. Otherwise, it will surely happen again. With the GCSB Bill returning to the House this week, these issues need to be discussed by parliamentarians.

Mai Chen is a partner at law firm Chen Palmer and a professor at the University of Auckland Business School.