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

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