Felix Marwick

John Key lied? Still no smoking gun.

In recent days, John Key has been extensively questioned on what he or his office knew about Cameron Slater’s OIA request to the SIS. He’s steadfastly maintained that although his office was likely informed about the release of the documents to Slater, he himself wasn’t told.

New documents have today been released which muddy the water. In particular, NewstalkZB’s Felix Marwick has released correspondence from SIS Director Warren Tucker, in which Tucker refers to advising “the Prime Minister”, rather the Prime Minister’s office.

Letter from Dr Warren Tucker to Felix Marwick.

Letter from Dr Warren Tucker to Felix Marwick.

The letter states:

“I notified the Prime Minister (in accordance with my usual practice to keep the Minister informed on a “no surprises” basis) that I was going to release unredacted documents in response to the request from Mr Slater. I advised the Prime Minister that I had received legal advice that there were no grounds for withholding the information given the public disclosures already made about the existence and some of the content of the briefing. I informed the Prime Minister that I had informed Mr Goff of my decision to release the information.”

Further, another letter to Mr Marwick dated 31 October 2011, from Chief Ombudsman Dame Beverley Wakem, refers to a conversation Dame Wakem had with Tucker, in which Tucker told her “that he is prepared to release a statement regarding his discussion with the Prime Minister”.

Which sounds like it should be game, set and match. The Director of the SIS says he briefed the Prime MInister, and the Prime Minister says he didn’t. Who do you believe?

Except that it’s not game, set and match. Dr Tucker this morning then released a statement backing John Key’s version of events, essentially admitting that when he wrote “Prime Minister” he in fact meant “Prime Minister’s office”. Whether such a turn of phrase – “PM” as shorthand for “PM’s office” – is normal practice for Dr Tucker, I have no idea. Nonetheless, Tucker is in Mr Key’s camp regarding who was briefed.

Over at The Standard, Anthony R0bins posts “Key lied – The smoking gun“, based on John Key having said on Q+A on 24 July 2011:

“Phil Goff was briefed, yeah, that’s right. I personally didn’t brief him, but my understanding from the director of SIS, Warren Tucker, is that he was briefed and he was shown the same note and report that I saw.”

To me, that’s a long way from being a smoking gun. Key seems to be referring to the fact that both he and Goff were briefed by Tucker about the Israeli spy story, not to any later briefing by Tucker regarding Goff.

Four major sets of questions remain to be cleared up, in relation to this whole issue:

  • Firstly, who tipped off Cameron Slater that he should make his OIA request?
  • Secondly, was Slater’s request expedited by someone in the SIS, and if so, by whom?
  • Tthirdly, why was Slater’s request promptly answered, while other media outlets’ OIA requests denied or delayed? and
  • Lastly, who in the Prime Minister’s office did Dr Tucker brief, and why did they not pass the information on to John Key?

The Inspector-General of Intelligence and Security, Cheryl Gwyn, is now investigating the SIS’s handling of Slater’s OIA request, but there’s unlikely to be an outcome prior to the election.

As to the role of John Key’s office, one thing has been cleared up. Key has confirmed today that the staff member who was briefed by Dr Tucker was not Jason Ede. Of course, that doesn’t clear up the issue of why Key wasn’t informed by the staff member that a politically sensitive OIA request was going to be actioned.

And of course there’s the question of who tipped off Slater? Although most suspicion is falling on the Prime Minister’s office, given Slater’s relationship with Ede, the tip to Slater could well have come from the SIS itself. Phil Goff had been impugning the honesty of the SIS’s director; it’s not inconceivable that someone down the chain of command took it upon themselves to exact vengeance via Slater and his Whaleoil blog.

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Clare Curran briefly breaches suppression order

As at 3.13pm, media were happily reporting that the foreign diplomat who fled the country after invoking diplomatic immunity is Mohammed Ismail of Malaysia. Prior to then, the name and country of origin of Mr Ismail was the result of a suppression order, which was producing farcical scenes as the media attempted to dig to discover the diplomat’s identity.

Several days ago, Laura McQuillan tweeted that the Ministry of Justice were charging media $30 for a copy of the suppression order, but was refusing to tell them the case number to put on the application. Felix Marwick noted that there was no typed suppression order at all, just a notation on the file (which is presumably all the Ministry would tell him). No one seemed to know whether the suppression was an interim order granted at the diplomat’s first appearance that had yet to lapse, or whether a judge had granted a later suppression order granted by a Judge. Radio NZ then reported on Checkpoint yesterday evening that the order had in fact been granted by a judge, although quite where that information came from was a mystery. Suspicion was falling on Malaysia as the diplomat’s country of origin, given the area where the arrest took place is where the Malaysian High Commission is based.

However, reporters were being extremely circumspect about what was reported or tweeted, for fear of breaching a suppression order they weren’t even allowed to view. As Laura McQuillan tweeted:

“[T]hey could tell us what information is suppressed. We have no idea what we can’t report!”

Then along came Labour’s Dunedin South MP, Clare Curran, who provided the following tweet:

Image

Curran’s tweet provided a link to a news story (link here) published by a foreign website, the Rakyat Post, that alleged the diplomat to be Malaysian. To my mind that was a clear breach of s 211(2) of the Criminal Procedure Act 2011, which states that a person commits an offence who publishes any name, address, occupation, or other information in breach of a suppression order. Section 211(6) then notes that for a prosecution of such an offence, it is not necessary for the prosecution to prove that the defendant intended to commit an offence. Essentially, it’s a strict liability offence – publish in breach of a suppression order and guilt automatically follows; it doesn’t matter what your intent was.

Readers will note that the image of Curran’s tweet above has the link to the news story partially obscured. That’s because the image comes from Cameron Slater’s Whaleoil blog, where he gleefully seized upon Ms Curran’s misdemeanour, but didn’t wish to be guilty of the same offence himself. It’s an interesting question though as to whether pointing viewers in the direction of Curran’s Twitter account in search of her offending tweet would still constitute an offence…

Regardless, having procured an urgent High Court hearing, news organisations were undoubtedly thrilled when Justice Collins determined that, with Malaysia’s Foreign Minister expected to make a public statement on the situation at 4pm, “[t]here is a very realistic chance that at 4pm today the whole world will know who he [the diplomat] is”. It would have been beyond farcical for the rest of the world to be happily discussing the name and country of origin of the diplomat, while New Zealanders risked prosecution…