Why Is John Key Not Compelled to Give Evidence Under Oath?

Written By: - Date published: 12:13 pm, September 1st, 2014 - 75 comments
Categories: accountability, election 2014, john key, Politics, Spying - Tags: , ,

I have today sent an open letter to the Inspector-General of Intelligence and Security to ask why Mr Key is not required to attend her inquiry and to give evidence under oath.  The letter is attached.

Dear Inspector-General,

I was delighted to learn of your decision to hold an inquiry under the Inspector-General of Intelligence and Security Act 1996 into the circumstances surrounding the release to the Whale Oil blog in 2011 of a confidential SIS briefing provided to the then Leader of the Opposition. I applaud not only your decision but also the fact that you are to conduct the inquiry without delay.

There is, after all, no issue of greater importance in a democracy than that the intelligence and security services should serve the interests of the country as a whole and should not be subverted for the partisan political purposes of the party that happens to be in government. As a fellow-lawyer, I am confident that your powers under the Act will allow you to provide answers to the hugely important questions that arise.

I understand that you have required the attendance on 11 September of a number of those involved. You will no doubt want to hear evidence on a range of issues. How did the SIS reach its decision to release the information in response to this particular request when others had been turned down? Why was it released in such an abnormally short time? Was the Prime Minister’s office consulted about such a politically sensitive matter? How did the Director of the SIS feel that he was able to take such a decision without such consultation? When did the Mr Key learn of the request and of the SIS response?

Those required to attend include, I understand, members of the Prime Minister’s office. This is, of course, as it should be; Mr Key is the minister responsible for the intelligence and security services and there is a good deal of prima facie evidence that members of his staff were involved with the blogger, Cameron Slater, in respect of the issue. There has also been a good deal of public interest in the extent to which Mr Key was aware of what was happening.

Mr Key has focused particularly in his public statements on the issue of when and how he was informed, after the event, that the release had taken place. He has indicated his willingness to answer questions under oath and to confirm his repeated assertion that he was not informed personally of the release by the Director of the SIS, after it had occurred, and did not become aware of it until well after the event.

Mr Key’s focus on that question, however, is in danger of diverting attention from the much more important issue of whether the release was, or even could have been, made without Mr Key being consulted and without his approval, either explicit or implicit. Mr Key has made no comment on that issue. It is that question that, above all others, must be answered by your inquiry; a failure to address it directly would be widely regarded as an attempt to protect Mr Key.

Mr Key, after all, is on the face of it as likely to be involved and able to throw light on the issues as any others of those called to attend. His willingness to give evidence under oath should surely be tested; he should be asked directly when and how he became aware of the release or even of its mere possibility. Mr Key, after all, enjoys no special legal or constitutional position that would protect him from answering questions like anyone else.

The quite separate inquiry that Mr Key will announce later this week into the matters that led to Judith Collins’ resignation as Minister for Justice seems unlikely to throw any light on the wider issues, including the matters of particular concern to you. Your powers under s.23 of the Act to compel attendance and to take evidence under oath, on the other hand, make it possible for you to reach a comprehensive answer to those matters, including the extent of Mr Key’s involvement. That cannot, however, be achieved if Mr Key is to be sheltered from questioning by a failure on your part to require him to attend. I am sure I speak for many New Zealanders in believing that that would be a missed opportunity of the greatest significance and would detract fatally from the value of your inquiry.

 

Yours sincerely,

 

Bryan Gould

75 comments on “Why Is John Key Not Compelled to Give Evidence Under Oath? ”

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  1. Ffloyd 1
    1 September 2014 at 12:46 pm

    Is this to be a Clayton’s enquiry? It has all the hallmarks of going through the motions without addressing in detail all the elements of what actually happened, and questioning ALL people involved, the MOST IMPORTANT being the pm. Why does he not have to front up? Why does she not just say ‘the prime minister has already done a thorough investigation of himself and established that he was absolutely correct in what he has said so I will not need to question him further.’ What a crock‼ What is it going to take to get rid of ratkey and all his fellow rats. NZ has never been in such turmoil and still key runs around the country looking like an idiot looking for a village.

  2. Peter 2
    1 September 2014 at 1:01 pm

    Bryan Gould & Nicky Hager for New Years Honours!

  3. disturbed 3
    1 September 2014 at 1:03 pm

    Thank Mr Gould as a Lawyer for speaking for us moral NZ souls on the matter of justice Bryan.

    To often honesty is avoided when a free hand is given in any enquiry.

    Of course we would hope that Mr Key directly consults with the other Political leaders whilst making terms of reference of this enquiry, and that it is left open for “other matters” to be pursued following the initial enquiry is made on the 11th September 2014.

    Finally I agree with Sir Jeffery Palmer and Mai Chen on RNZ this morning when they recommended that a full fully independent Royal Commission is also set up to deal with the vast amount of corruption alleged in documents currently appearing daily.

    A retired UK or Canadian Judge should be also heading this enquiry, to show complete impartiality ,, as it is now anyone headed any Government enquiry can be removed at will by the Government in power.

  4. Tracey 4
    1 September 2014 at 1:09 pm

    So much for one law for everyone, and no one is above the law, right John Key

  5. Kiwiri 5
    1 September 2014 at 1:17 pm

    Thank you very much, Bryan.

  6. One Anonymous Bloke 6
    1 September 2014 at 1:30 pm

    …the Inspector-General of Intelligence and Security is Cheryl Gwyn who, up until April 2014, was the Deputy Solicitor-General at Crown Law, the very same Government agency which cleared Warren Tucker’s release of Phil Goff’s briefing notes. Bunji.

    She’s going to stand herself down from the Inquiry, right? Right??

  7. fambo 7
    1 September 2014 at 1:35 pm

    So many fish have been pooing in the water that it has hard to find a place where the water is clean.

  8. Craig Glen Eden 8
    1 September 2014 at 1:36 pm

    Great letter I can imagine the response . “Thank you for your letter your views have been noted”.

    • Anne 8.1
      1 September 2014 at 5:11 pm

      It’s more likely to be:

      I have taken your request that I include the Prime Minister into serious consideration, but have concluded that my intention to question the staff of the Prime Minister’s office will be sufficient for me to arrive at an acceptable resolution.

      Translated into the language of the proletariate:

      Piss off…. I have no intention of dragging the PM into it. He appointed me for God’s sake. Geez, whada ya take me for – a martyr?

      Edit: clears throat -tongue in cheek.

      • Tracey 8.1.1
        2 September 2014 at 6:51 am

        by Prime Minister I assume you mean Prime Minister’s Office and I have already subpoened that

  9. Jenny Kirk 9
    1 September 2014 at 1:54 pm

    Thank you for writing this letter on our behalf , Bryan. If you get a different response from the one Craig Glen Eden suggests please do let us all know.

  10. disturbed 10
    1 September 2014 at 2:07 pm

    “…the Inspector-General of Intelligence and Security is Cheryl Gwyn who, up until April 2014, was the Deputy Solicitor-General at Crown Law, the very same Government agency which cleared Warren Tucker’s release of Phil Goff’s briefing notes.”

    Like all the other bought civic servants under this corrupt government they will get away with it until someone blows the whistle on them all.

    With all the dirt they used to silence every one of them, & and stood on them, and as soon as the level of hurt reaches the critical point it will backfire, and come around to bite them .

    • Tracey 10.1
      1 September 2014 at 2:12 pm

      Turns out back then when tucker had a discussion with goff, he actually talked to him but in 2011 when he had a discussion with the prime minister he was actually talking to a staffer. I presume he will name the staffer, cos he will remember that ormade a note?

    • One Anonymous Bloke 10.2
      1 September 2014 at 2:20 pm

      Don’t assume too much, she apparently has a history of left wing activism.

      • yeshe 10.2.1
        1 September 2014 at 8:14 pm

        then she should be smart enough to recuse herself. unless of course she was away on holiday at the time ?

  11. Mike 11
    1 September 2014 at 2:18 pm

    If the PM’s office staff are to be questioned on oath and the PM is not then his staff will have pressure to “perform”. For the integrity of our system and to stop this taking our country to any any lower level than it currently is there needs to be transparency. Everything so far done by John Key has been to mock standards set up by many before. This arrogance and seemingly lack of any accountability has already been the catalyst to release information – the spin unwinds faster than the responses to counter. It is sad that we have to go through this – but the public need to know what has been going on in their name

    • Tracey 11.1
      1 September 2014 at 2:21 pm

      Given the PM doesnt think employee privacy is important he can name the person Tucker talked to that wasnt the PM? Simple.

  12. Tony 12
    1 September 2014 at 3:19 pm

    The $lime Minister is slipping away from any opportunity to shine a light on his activities, I trust his blind arrogance will be put to the legal test.

  13. dave 13
    1 September 2014 at 3:20 pm

    Sounds like slippery is going to try get off with they just can’t help themselves we the people don’t want fake inquiry we want a royal commission into the whole affair not a rubber stamp cover up job like we aways see from the national party
    John key is compromised here he needs to step down as pm and prime ministers office sealed as a crime scene until after the election a new government needs to deal with this not the key-gang

  14. Andrew Geddis 14
    1 September 2014 at 3:43 pm

    Brian,

    I fear the answer may lie in the legislation. Under the functions of the Inspector General (s.11(3)), we’re told that:

    “In carrying out any inquiry in accordance with the provisions of subsection (1)(ca), it shall not be a function of the Inspector-General to inquire into any action taken by the Minister.”

    In the Inspector General’s press release announcing the inquiry, she stated:

    “The Inspector-General has decided to institute the inquiry under her own motion powers pursuant to sections 11(1)(a) and (ca) of the Inspector-General of Intelligence and Security Act 1996 rather than in response to a specific complaint.”

    So, I don’t think that she can look at the “propriety” of Key’s actions here … because the legislation tells her that she can’t.

    • One Anonymous Bloke 14.1
      1 September 2014 at 3:47 pm

      Quis custodiet ipsos custodes? Is there any effective oversight of the corrupt Prime Minister?

      • Tracey 14.1.1
        1 September 2014 at 4:12 pm

        The Queen or Governor-General appoints and dismisses members of the Executive Council and Ministers of the Crown. Those powers are part of the common law. They exist independently of statutes, although statutes can, of course, limit or even supersede them.

    • Tracey 14.2
      1 September 2014 at 3:50 pm

      As long as it is made clear that she cant rather than she doesnt see any reason to.

      Andrew

      What about the powers of the Governor General

    • Hanswurst 14.4
      1 September 2014 at 10:03 pm

      Even so, shouldn’t it still be possible to require the PM to give evidence as a party to the actions of others? That said, I imagine that, in order to avoid the appearance of politicising the enquiry, she should avoid taking that step unless the documented evidence and testimony of his staff etc. leave questions that could be answered by speaking to Key directly.

  15. alwyn 15
    1 September 2014 at 4:34 pm

    Perhaps we must accept that a previous PM set the standard in these matters.
    Most people contributing to this blog probably accepted the claims of an earlier holder of his office who proclaimed the Prime Minister as being above all petty laws.
    Do you remember this?

    “By definition, I cannot leak.”

    So said former prime minister Helen Clark, defending herself against claims that she was the source behind Doonegate, the story about the fall from grace of former police chief Peter Doone after his vehicle was stopped at an alcohol checkpoint.

    Now who has just decided she was completely wrong and was a disgrace in the role?

    • Tracey 15.1
      1 September 2014 at 4:39 pm

      are you saying you thought it was fine?

      • alwyn 15.1.1
        1 September 2014 at 4:50 pm

        No of course not. I thought her arrogance was disgraceful. It was, unfortunately, fairly typical of her. All that really happened later in her term was that she got people like Mallard to make the more outrageous statements for her.
        On the other hand you quote, immediately below this, that Key “was happy to front up.” He wasn’t required to was he? I’m sure Helen would never have volunteered.

        • One Anonymous Bloke 15.1.1.1
          1 September 2014 at 4:51 pm

          Happy to front up to an inquiry that is forbidden by law to investigate him.

          Hollow promises are hollow. Oh, sorry, were you taken in by them?

          • Kiwiri 15.1.1.1.1
            1 September 2014 at 6:22 pm

            Gawd. Does it get any worse?

            Clarification required from someone who has been following the issues closely please:

            Will SIS be investigating into matters that SIS itself had been involved or implicated with?

        • Anne 15.1.1.2
          1 September 2014 at 6:31 pm

          You didn’t know Helen Clark did you alwyn. I did. You call her arrogance disgraceful. You lie. She had a vastly superior persona than JK and acted with the utmost integrity at all times.

          Stop trying to transfer Key’s arrogance, dishonesty and lack of integrity on to the shoulders of his predecessor. There are many people out there who regret they voted for John Key in 2008 and 2011, and wish that Helen Clark was still running the country.

          And don’t do a Cameron Slater (and others) and misrepresent some words or an action of hers to make it look like she was… as you falsely claim.

        • lprent 15.1.1.3
          1 September 2014 at 10:40 pm

          Do you remember this?

          “By definition, I cannot leak.”

          Yes i do and ah.. the usual familar foul stench of the out of context right wing myth making…

          She was referring to the legal position of her office at the top of the security appartus rather than what she actually did.

          If you dig back into the actual context rather than the lying myth that Brash and the hollow men made up, she didn’t leak any security related information. In fact she and her staff gave out incorrect information because she couldn’t say what she knew or didn’t know.

          But John Key and Brash were busy lying to create another rightwing fantasy back in 2005.

          Perhaps you should look up what actually happened and contrast it with the release of real security information to a sociopathic attack blogger for hire?

          • Tracey 15.1.1.3.1
            2 September 2014 at 6:56 am

            the “labour do it too” defence from Alwyn.

            I’m sure that is how he/she has brought up his/her kids too. No wonder we’re so morally bankrupt

        • tricledrown 15.1.1.4
          1 September 2014 at 10:52 pm

          Alwyn just putting oil on the fire as John Armstrong says!

        • Tracey 15.1.1.5
          2 September 2014 at 6:53 am

          he said he would answer questions that journalists forgot to ask. he campaigned on higher standards than Ms Clark had exhibited. But he’s not happy to front up.

    • One Anonymous Bloke 15.2
      1 September 2014 at 4:50 pm

      So, you’re saying Key is guilty and should go. I want to know how Cameron Slater and Judith Collins knew about Goff’s SIS briefing before the public information release.

      Play the moral equivalence card. That always works 😆

  16. Tracey 16
    1 September 2014 at 4:41 pm

    can we bring in national standards to cabinet and their staff? reading comprehension doesnt seem to be a strength

    ” On the campaign trail today Key said in response to questions that he understood he had been summoned along with staff in his office and was happy to front up.

    But in a statement issued later his spokeswoman said there was no indication in a letter from the Inspector General of Intelligence and Security that he would have to appear personally.

    “

  17. Tracey 17
    1 September 2014 at 4:51 pm

    even the pm is confused between himself and his office

    ” Prime Minister John Key has confirmed he has received a subpoena to appear before the Inspector General of Security and Intelligence for a closed hearing nine days before the election. Mr Key said he was not surprised as he had expected Inspector General Cheryl Gwynn to do a thorough inquiry. , “

    • Hanswurst 17.1
      1 September 2014 at 7:11 pm

      Just because he received it doesn’t mean that it was subpoenaing him. He could have received it on behalf of his staff, or as a copy, or had it handed to him by someone from his staff who had been served with it. Don’t get me wrong, I’m no defender of Key, but your quote above can be resolved by fairly obvious semantics, rather than somewhat contorted appeals to conventions or the vagaries of legal persons.

      • North 17.1.1
        1 September 2014 at 8:02 pm

        Yes, well there is this slight confusion about the personal pronoun Hans. Not yours or mine. Mr ‘My Office’ needs to get it together.

        • Hanswurst 17.1.1.1
          1 September 2014 at 8:41 pm

          That’s obvious, it’s just that the quote above doesn’t add anything to that.

          • Tracey 17.1.1.1.1
            2 September 2014 at 7:00 am

            It shows that a week after we had the debacle of what you mean by “me” he still isn’t being clear. So pardon me if I think it does add something to that point and used sarcasm to highlight it.

  18. Treetop 18
    1 September 2014 at 4:52 pm

    Key has no respect when it comes to being held accountable for the ministerial warrants he holds. He is either incompetent or worried about being exposed.

  19. Granted 19
    1 September 2014 at 6:01 pm

    So based on what I am reading….Key can not be brought to account? I guess in some aspects that’s similar to the situation where the Auckland Mayor could not be effectively dealt with either?

    It all seems that once any person is in such a role they can just stay there until the next election……

  20. Frida 20
    1 September 2014 at 6:14 pm

    You can all rest assured that Cheryl Gwyn is no ‘hollow woman’ and is definitely NOT aligned with the right. She is also widely regarded in the legal profession as someone incredibly talented and hardworking whose sense of independence and fairness has few peers. I feel heartened she will do a thorough and fair and completely independent investigation

    • Anne 20.1
      1 September 2014 at 6:34 pm

      I hope you are right Frida. But given John Key appointed her, I’m not fully convinced.

      In light of what you say, the one hope I have is that JK never envisaged that a situation like this would arise when he appointed her.

      • Kiwiri 20.1.1
        1 September 2014 at 7:20 pm

        I am very sorry but the inquiry – with the way and the speed it has been set up, the lack of bi/multi-partisan consultation, as well as the timing given polling booths will be open in less than 41 hours (Gwyn’s press release update on the IGIS inquiry was at 5:05pm today) – smells, looks and conveys the perception like it is the government of the day instigating it for its own political purposes and convenience.

        As citizens of this country, we must regretfully decline to accept the legitimacy of this inquiry.

    • disturbed 20.2
      1 September 2014 at 9:19 pm

      She signed the OIA for Slater! Freda!!!!

      the Inspector-General of Intelligence and Security is Cheryl Gwyn who, up until April 2014, was the Deputy Solicitor-General at Crown Law, the very same Government agency which cleared Warren Tucker’s release of Phil Goff’s briefing notes.”

    • Tracey 20.3
      2 September 2014 at 7:01 am

      Thanks for this. I hope you are right. Ms Collins got to high levels of the law society so I remain sceptical until we see the pudding.

      • Frida 20.3.1
        2 September 2014 at 1:05 pm

        True, Tracey, but unlike Cheryl Gwyn, Judith Collins is not, and never was, held in very high regard by the legal profession!

  21. Richard Christie 21
    1 September 2014 at 6:27 pm

    Good letter, but where does it ask “why Mr Key is not required to attend her inquiry and to give evidence under oath. ” ?

    Reads more like Bryan Gould is supplying an opinion.
    My apologies if I’ve missed something.

  22. Manuka 22
    1 September 2014 at 6:49 pm

    We need a truly independent commission against corruption.

    eg: http://www.icac.nsw.gov.au/

  23. North 23
    1 September 2014 at 7:24 pm

    Heard Key on the 5.00 pm RNZ News.

    An offensive demeanour, a smartarse resort to the vernacular in the nature of ‘it ain’t gonna happen’ (re observance of customary conventions applicable in the present ‘enquiry’ imbroglio), that cannot leave but the slightest doubt that Key, now hissing, has decided he will go to war with New Zealanders’ democractic birthright, in defence of corruption. Dirty old corruption.

    As in respect of Collins, whom amongst us would raise our kids to behave like John Key ? The man who will go down in New Zealand history as a moral, constitutional, political, wide boy. That’ll be the informal rep’. Who knows about the formal one ?

    We do know that even if the truth does not out before the gloating celebrity of ‘Sir John’…….the truth will out.

    • North 23.1
      1 September 2014 at 7:41 pm

      Trouble with computer – somehow this observation fell out – ‘Meanwhile Cunliffe’s looking more and more prime ministerial’. Excellent !

  24. disturbed 24
    1 September 2014 at 9:20 pm

    Yesterday DC was calling for a royal commission.

    Today Key is minimal damage control. Narrow ToR Gov’t Q+A

    Can’t we have opposition now rush in a case for Royal Commission with wide ToR “in the public interests of fear of Civic corruption” and crime Act under Section 116 & 105 as Penny Bright has just laid charges against Collins today?

    Penny Bright
    1 September 2014 at 8:27 pm

    FYI today I have emailed the Auckland District Commander, Michael Clement, making a formal complaint to Police against former Minister of Justice Judith Collins for alleged violations of s. 116 and s. 105 of the NZ Crimes Act 1961.

    The evidence upon which I am relying to support this complaint is the same evidence upon which Prime Minister John Key was purportedly relying to remove Judith Collins from her Ministerial responsibilities.

    Penny Bright

  25. aj 25
    1 September 2014 at 10:19 pm

    From Interest.co.nz

    “A Stuff video from February also emerged showing Key saying he rang Cameron Slater to discuss Slater’s report that Winston Peters had visited Kim Dotcom’s mansion and that he talks to him “about lots of political events.”
    Key had been asked if he had used the SIS or GCSB to spy on Peters, which he denied.
    Key was questioned about whether Slater had told him about the visits. Key would not confirm Slater as the source, but confirmed he regularly talked to Slater.
    “I rang him. He’s a blog site. He writes a lot of stuff. I don’t necessarily agree with all of it. I speak to lots of blogsters,” Key told reporters on February 14″

    http://www.stuff.co.nz/lightbox/national/politics/9723185/PMs-Whaleoil-friends?KeepThis=true

    Appropriate song..

    • Tracey 25.1
      2 September 2014 at 7:06 am

      and no one thought to ask him which other blogsters he talks to, or is Farrar and Slater “lots of blogsters”

  26. Sable 26
    2 September 2014 at 9:26 am

    Good on you but what are the odds the they never respond. This government and its mechanisms are a law unto themselves and do as they like.