Mai Chen: New bill should avoid confusion of Henry inquiry

David Henry during his appearance before the privileges committee hearing. Photo / Mark Mitchell

It's just as well that the Government is finally passing the Inquiries Bill, because after the fireworks at Wednesday's Privileges Committee hearing, it is difficult to see why anybody would accept an appointment to head an old-style inquiry of the sort run by David Henry into the leak of the Kitteridge Report into the GCSB.

Henry appeared in front of the Privileges Committee on Wednesday as part of the committee inquiry into the use of intrusive powers on the parliamentary precinct, along with former head of the Parliamentary Service Geoff Thorn, DPMC chief executive Andrew Kibblewhite and the Prime Minister's chief of staff Wayne Eagleson. Further evidence from the Press Gallery, Andrea Vance, Peter Dunne and the GCSB director may be heard in future before the Privileges Committee reports.

Henry has had a decades-long career as a respected senior civil servant, but his legacy will be tainted by the criticisms levelled at him by ministers at the committee hearing on Wednesday.

Henry acknowledged that there are aspects of how the inquiry was conducted that could have been done better. Committee members certainly agreed. Justice Minister Judith Collins told Henry it was a "chilling experience" to find out that the inquiry had treated the right to privacy "with what I would say was frankly a contemptuous attitude". Police Minister Anne Tolley said she was surprised that Henry had not contacted the Speaker to clarify issues of parliamentary privilege given Henry's background as a senior civil servant.

Transport Minister Gerry Brownlee said that he was "struggling to see why [Henry] didn't think it was appropriate to approach ministers or members" about accessing their emails rather than Parliamentary Service. And John Banks added that Henry had "trampled on the rights and freedoms of members of Parliament and the fourth estate in a very cavalier manner". The committee also laughed openly at Henry's claim that his report did not include innuendo about Dunne as the leaker, who resigned as minister following Henry's report.

Former head of the Parliamentary Service Geoff Thorn, another man whose career has been tainted by the Henry inquiry, and who also gave evidence, noted that "there was never any communication to me about the legal status of the inquiry, its terms of reference, or the basis on which information was being requested. In hindsight I believe this was a contributing factor to the errors that subsequently occurred".

My concern is that neither Henry nor the staff running the inquiry nor those responding to its requests understood the legal framework (or lack thereof) under which it was operating. In contrast, the Inquiries Bill will create a clear legal basis on which government inquiries like the Henry inquiry can be conducted. And unlike Royal Commissions of Inquiry or Commissions of Inquiry under the Commissions of Inquiry Act, which is more than 100 years old, government inquiries under the Inquiries Bill will be faster, and can be established by a minister placing a notice in the Gazette.

The powers of such government inquiries to obtain evidence, including requiring the production of documents and/or taking evidence on oath, are clearly defined in the bill, as are the limits on such an inquiry's power to obtain information. So the sort of confusion that arose during the Henry inquiry, which the Privileges Committee has now been told framed requests for information from the Parliamentary Service as "requirements" even though it had no legal power to "require" the service to do anything, will be avoided in future.

The first test of the new law will be the government inquiry into the Fonterra botulism contamination. The Government has indicated the inquiry will be chaired by Miriam Dean QC, with two more members to be appointed. New Zealand's response to the botulism scare will be scrutinised by our trading partners. So it is vital the Government's inquiry into what happened isn't botched, and the enactment of the Inquiries Bill is a vital part of making sure that does not happen.

Mai Chen is a founding partner in Chen Palmer lawyers.