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.