22 September 2008

Tit for tat - the SFO and the privileges committee

> DomPost: "NZ First lays police complaint over SFO" New Zealand First has laid a complaint with police about the SFO giving evidence to the privileges committee, purported for breaching secrecy provisions. Reports seems to suggest it is based on section 39 of the Serious Fraud Act:
39 Secrecy of information protected under other Acts (1) Every member of the Serious Fraud Office shall observe the strictest secrecy in relation to any information which is protected under any Act other than the Tax Administration Act 1994. (2) Notwithstanding subsection (1 of this section or anything in the Act that protects the information,— (a) Any member of the Serious Fraud Office may disclose any such information to any other member of the Serious Fraud Office for the purpose of investigating or prosecuting any offence involving serious or complex fraud; and (b) The Director may disclose any such information, or authorise any other member of the Serious Fraud Office to disclose any such information,— (i) With the consent of the person who disclosed the information to the Serious Fraud Office, to any other person: (ii) To any Judge for the purpose of obtaining a search warrant under this Act: (iii) To any person commencing or conducting any proceedings relating to any suspected offence involving serious or complex fraud: (iv) To any Court hearing any proceedings relating to any suspected offence involving serious or complex fraud. (3) Every member of the Serious Fraud Office commits an offence, and is liable on summary conviction to a fine not exceeding $5,000, who knowingly contravenes this section.

However, that seems inapplicable because it does not, in itself, provide a cloak of secrecy. The information has to already be "protected under any other Act". (It links to the SFO's coercive power to require information protected under other legislation.) I can't think of any other Act that protects the information.

The better foundation might be section 36:

36 Secrecy of certain information relating to Serious Fraud Office business (1) Every member of the Serious Fraud Office shall observe the strictest secrecy in relation to— (a) Information supplied to or obtained by the Director under or in connection with the exercise of any power conferred by section 5 or section 9 of this Act or in the course of executing any search warrant issued under this Act: (b) Information derived from or based upon any such information: (c) Information relating to the exercise or possible exercise of any power conferred by Part 2 of this Act,— and, except as provided in subsection (2) of this section, shall not disclose any such information in any way whatever to any person who is not a member of the Serious Fraud Office. (2) Notwithstanding subsection (1) of this section, the Director may disclose such information, or authorise any other member of the Serious Fraud Office to disclose such information,— (a) If the person who disclosed the information to the Serious Fraud Office consents to that disclosure; or (b) To the extent that the information is available to the public under any Act; or (c) For the purposes of this Act or in connection with the exercise of powers under this Act; or (d) For the purposes of any prosecution anywhere; or (e) To any person who the Director is satisfied has a proper interest in receiving such information. (3) This section is subject to section 37 and section 39 of this Act. (4) Every member of the Serious Fraud Office commits an offence, and is liable on summary conviction to a fine not exceeding $5,000, who knowingly contravenes this section.

But there's also problems with this. A committee of Parliament would seem to be a "person ... [with] a proper interest in receiving such information".

In any event, section 1, article 9 of the Bill of Rights 1688 might cause a problem:

Freedom of speech—That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament.

Committee hearings are part of the proceedings of Parliament and are protected by Parliamentary privilege. See further Prebble v Television New Zealand Ltd [1994] 3 NZLR 1. Only the House as a whole can waive such privilege - and it would be unlikely to do so. Any attempt to prosecute the SFO under any secrecy provision is doomed because it can't rely on what was said to the parliamentary committee.

There's a further fish-hook too. Arguably, any attempts to take action against the SFO might, in themselves, amount to contempt of Parliament.

Under standing order 400, the House may treat the following as contempt:

(w) assaulting, threatening or disadvantaging a person on account of evidence given by that person to the House or committee;

Now, it's this provision that caused TVNZ grief and led to it being fined by the House after it took action against Ian Fraser in relation to evidence he gave to a select committee:

> NZ Parliament: "Question of privilege referred on 16 February on the action taken by Television New Zealand in relation to its chief executive, following evidence he gave to the Finance and Expenditure Committee"

Whether a complaint to the police or action by the police might trigger this provision, I'm not sure. But it's something that seems to present a rather awkward hurdle for NZ First's attempt to get back at the SFO for their evidence before the committee.

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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