Privilege

SIMON POWER (National—Rangitikei) Link to this

I move, That the House take note of the report of the Privileges Committee on the question of privilege referred on 16 February 2006 on the action taken by Television New Zealand in relation to its chief executive, following evidence he gave to the Finance and Expenditure Committee. The Privileges Committee has now reported back to the House on the question of the action taken by Television New Zealand (TVNZ) in relation to its chief executive, following evidence he gave to the Finance and Expenditure Committee. Members will recall that this report is the second report. It follows an interim report presented to the House on 5 April 2006, in which the Privileges Committee found, and the House agreed, that TVNZ had committed a contempt. We recommended, and the House agreed, that a written apology be made by TVNZ and that, for the first time in well over a hundred years, a fine be imposed on the company. As I said, the House adopted both those recommendations.

There were, however, some remaining issues, as a matter of principle and direction, that the Privileges Committee has sought to clarify for the House. For example, in the interim report the Privileges Committee questioned whether it was realistic for the House, or for a select committee witness, to assume that no consequences to a relationship would arise from a witness appearing before a select committee, particularly if that witness was giving prejudicial or critical evidence. We suggested that it was a matter of balance, and that it would be necessary for the House to develop some principles and guidance for use in those situations.

Accordingly, the Privileges Committee recommends to the House that Standing Order 399 be amended to include the following in the considerations that are relevant in deciding whether to invoke the power to punish for contempt: firstly, the conduct of any person taking part in parliamentary proceedings; and, secondly, the nature of any action taken against any person on account of that person’s parliamentary actions—in particular, whether that individual was disadvantaged or dealt with otherwise than he or she would be in accordance with the privilege that accrued to him or her at the time the evidence was given to a select committee. Further, the Privileges Committee recommends to the Finance and Expenditure Committee that in 12 months’ time it review progress made by the State Services Commissioner in providing guidance to the boards of Crown entities and State-owned enterprises on their responsibilities in their relationships with Parliament.

Before I deal with the last recommendation, I will just pause and say that the Privileges Committee’s strong view was that people taking up appointments with Crown entities and State-owned enterprises did not have sufficient training or guidance in how to deal with institutions of Parliament. In particular, there was insufficient training in giving evidence before select committees and in issues relating to contempt, privilege, and the like that could arise by way of that evidence being tendered. In fact, as the Privileges Committee report tabled yesterday shows, many of those matters are not covered in any detail at all at the time those appointments are made. The Privileges Committee did spend some time considering whether such guidance should also apply to the senior management of those agencies, but we leave that matter for further consideration.

Important for the Government, the Privileges Committee also recommends that the Government revise its guidelines—as supplied, for example, in the Cabinet Manual—regarding witnesses who appear before select committees. The guidance should make it absolutely clear that pressure must not be placed on individuals to deter them from giving evidence, and that action cannot be taken against them as a direct consequence of their giving evidence to a select committee.

By way of background, we reviewed a number of privileges reports about the disadvantaging of witnesses in jurisdictions such as the United Kingdom, Canada, and Australia. We endorse the following common themes: firstly, the protection of witnesses before a select committee is a fundamental aspect of parliamentary privilege, secondly, the freedom of witnesses to give evidence must be absolute, and, thirdly, the protection of witnesses who appear before parliamentary committees is the single most important duty of a Privileges Committee when determining possible contempts.

It has long been recognised that if parliamentary inquiries are to be carried out effectively, witnesses who give evidence to the House or a committee have to be protected against adverse consequences they may suffer as a result of giving that evidence. That point is well understood, and there is a long-held rule of law, dating back to the Bill of Rights 1688, to provide immunity for parliamentary proceedings from legal liability. The absence of recent case law on the issue in New Zealand or overseas suggests—and this is important—that it is well understood that evidence given by a witness before a select committee cannot be questioned in a court of law. If Parliament is to hold witnesses liable or accountable for that parliamentary evidence, that is a matter for Parliament, not the courts. However, that principle can, as we say in our report, fly in the face of reality. The House must decide on a case by case basis whether a particular action or omission has the tendency, directly or indirectly, to obstruct or impede the House in the performance of its functions.

Disadvantaging a witness, on account of his or her evidence before a select committee, may amount to a contempt, but whether it does so requires consideration. It is on that basis that the Privileges Committee has recommended to the House that that be done by adding to Standing Order 399 a reference to the factors that the House will consider in determining whether conduct constitutes a contempt.

It is worth emphasising one or two further points. Evidence given to a select committee cannot form the sole basis for an action against the person who gave it. The Privileges Committee looked carefully at that point, and I make the following statement in support. The evidence might act as a prompt for an employer to establish a separate inquiry into the conduct of the staff member concerned, but any action against the staff member should be based on the results of that separate inquiry, not on the evidence given before a select committee or before Parliament. That was a fundamental point that members of the Privileges Committee worked hard to clarify, starting on the basis of the interim report.

Those recommendations are made to the House and, as I said, I move accordingly.

Hon LIANNE DALZIEL (Minister of Commerce) Link to this

I want to take a brief call on the final report of the Privileges Committee on the action taken by Television New Zealand in relation to its chief executive, following evidence he gave to the Finance and Expenditure Committee. As the chair of the Privileges Committee has already stated, despite what the title of the final report indicates, that issue was essentially dealt with in the interim report. The final report deals with a proposed amendment to the Standing Order that gave rise to the contempt, and recommends that the Finance and Expenditure Committee review the guidance that is given by the State Services Commission to the boards of Crown entities and State enterprises on their responsibilities in relationships within Parliament. Finally, it recommends that the Government revise its own guidelines regarding witnesses who appear before select committees.

Certainly, I agree with the comments that the member who has just resumed his seat has made, in respect of the advice we received and the evidence we considered—that there does appear to be a considerable gap in the provision of information to board chairs in that important regard. I think that that is unfortunate, because it leads to results such as the one we have had in this particular case, which I am sure was not the intention of anyone involved. That being said, the committee did not at the time believe that it was realistic for witnesses to assume that there would be no consequences to relationships arising from prejudicial or critical evidence, and this report reinforces our view in that regard.

This report sets out some common themes that have been derived from overseas cases regarding the disadvantaging of witnesses in the UK, Canada, and Australia, and it would appear that inadequate guidance on parliamentary privilege is not a uniquely New Zealand problem. The reality is that the relevant Standing Orders 399 and 400 state what the House may treat as contempt. It is a discretion; it is not absolute. The recommendation we have made to amend the Standing Order would add a reference to the factors the House will consider in determining whether conduct constitutes a content. Two such factors are the conduct of any person in parliamentary proceedings, and the nature of the action taken against any person on account of that person’s parliamentary action. In fact, the example that the chair of the committee used is exactly the example I was going to refer to—that is, where evidence is given in a select committee that could not of itself form the sole basis for an action against the person who gave it, but could prompt the employer to establish a separate inquiry. If that separate inquiry in itself led to cause for action to be taken against the employee, then it would not offend against the principles that we have discussed in this report.

The State Services Commissioner gave a very helpful submission, saying that parties in a parliamentary process need an appreciation for each other’s positions, and he highlighted the fact that Parliament has the ultimate, overriding oversight of the State sector. But he pointed out that it is equally important to protect the standards of good faith, loyalty, political neutrality, and independence of public servants and officials in New Zealand. He felt that, in his view, forbearance by both sides from actions that might unnecessarily undermine the positions of those involved may prevent difficulties arising, and I think that that was very helpful advice indeed. The State Services Commissioner has also advised that he will be considering this report in terms of any revising of State Services Commission guidelines that may be necessary.

In terms of the Finance and Expenditure Committee review that we have recommended take place in 12 months’ time, we have suggested also that training and guidance provided to those we have described as gatekeepers within those organisations be a matter for consideration.

The final point I make is to highlight the suggested wording that we have worked on for an amendment to Government guidelines. I think that this wording is extremely helpful in terms of laying out very clearly what we are proposing: “Parliamentary proceedings are subject to absolute privilege, to ensure that those participating in them, including witnesses before select committees, can do so without fear of external consequences. This protection, enshrined in the Bill of Rights 1688, is an essential element in ensuring that Parliament can exercise its powers freely on behalf of its electors. There must be no pressure placed on individuals to deter them, or action taken against them as a direct consequence of their giving evidence to a select committee. Any such action might be regarded as contempt of the House, with potentially serious consequences for those involved.” I think that if those words had been available to Television New Zealand prior to the appearance at the Finance and Expenditure Committee, then perhaps this report would not have been necessary. But in many respects this has produced a good report, which will be useful for all agencies and all individuals appearing before select committees in the future. I recommend this report to the House.

SIMON POWER (National—Rangitikei) Link to this

I raise a point of order, Madam Speaker. Although this is probably not the appropriate forum, I have just realised that I failed to thank the committee staff for their assistance during the preparation of these two reports. I omitted to do that at the interim report stage, as well. So I take this opportunity to thank both of them for the hard work they did in putting together these two quite technical and legalistic reports.

Hon LIANNE DALZIEL (Minister of Commerce) Link to this

I too forgot to do that, and I would like to associate the Government with those remarks.

SUE KEDGLEY (Green) Link to this

The Green Party wishes to support the report of the Privileges Committee. It is an excellent report, it is thoughtful and well-considered, and it deals with extremely important issues. Those issues really boil down to freedom of speech in this Parliament, and that is obviously something we believe we must jealously protect.

We support the recommendations of the committee about amending Standing Order 399 and revising the guidelines to make it absolutely clear that witnesses who appear before select committees must not be subject to any pressure that would deter them from giving evidence, or to action taken against them as a direct consequence of their giving evidence to a select committee. These principles are so fundamental that it might be useful that the guidelines, once written up, be given out widely, perhaps even to witnesses when select committees have inquiries before them. The guidelines should be given maximum publicity so that not just people in the State Services Commission but also people in New Zealand are aware of the consequences that would occur if they tried to interfere with the giving of evidence or deter a witness from giving evidence.

I have one concern. Often it is very difficult to establish that pressure has been brought to bear on a witness who has presented evidence in a parliamentary select committee. Even though the pressure that is brought to bear may have been quite intense, it may not be so direct or obvious that a person can make a case to the Privileges Committee. It was very clear-cut in the case of Television New Zealand (TVNZ), because that company was foolish enough to write a letter spelling out that it was effectively punishing the previous chief executive because of remarks he had made in a select committee. So that was very clear. TVNZ made the mistake. It committed its intention to paper, and we were able to make quite a clear-cut ruling in that case.

I am aware of a situation where an employee approached a parliamentary committee and the employer sought to prevent that person from coming to that committee. It is quite possible that intense pressures were put on the employee, but it would have been very difficult to sheet that home in a Privileges Committee action. There are very many ways that someone—particularly someone in a position of power, such as an employer—can put pressure on or punish an employee who has approached a select committee and presented evidence that, for example, an employer was unhappy about. There are many ways of doing that without it being so obvious that the employee could take a case before the Privileges Committee. I am aware of specific examples where this may have happened. I am not quite certain how one gets around this situation, but I hope the guidelines will be quite fulsome and try to cover cases where the pressure is intense but not overt, as it was with TVNZ.

The other principles and themes that have been highlighted here—such as the freedom of witnesses to give evidence, the necessity that that freedom be absolute, and that the protection of witnesses from intimidation must be absolute—are tremendously important, and we strongly support them. We very much welcome this report and look forward to the guidelines and the amendments to Standing Order 399.

One other aspect I would like to remark on is that at some point we need to consider the issue of Ministers who refuse to appear before select committees. This happened recently in the Health Committee, where a Minister said she would attend the committee hearing. Basically, a select committee is powerless in that situation. All other witnesses can be compelled to come before a select committee, but Ministers cannot be. So that perhaps is something we need to look at in future.

In summary, the Green Party strongly supports this report. We think it is very thoughtful and well-written. We have concerns, however, that individuals can be subject—or may, in the future, still be subject—to intense pressure that is exercised by people in ways that are insufficiently direct or overt to allow for a case to be brought against them. We are still concerned about that.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this

Kia ora, Madam Assistant Speaker. Tēnā tātou te Whare. Well, what a week it has been. Standing Order 399 is about obstructing or impeding the House in the performance of its functions. How ironic it is that the day after the Government rushed through legislation to validate unlawful expenditure, we all get up on our high horses to sit in judgment on the improper conduct of others. As a member of the Privileges Committee it was interesting to receive evidence from the Clerk of the House, the executive director of the Crown Company Monitoring Advisory Unit, and the State Services Commission about the relationships and obligations of Crown entities and State enterprises to Parliament. It was interesting, because our mania for rules and regulations matches very much the scenario we had at Television New Zealand (TVNZ), with the chief executive officer saying one thing and his bosses saying another, and then the Privileges Committee coming along and smacking the bosses on the hand.

We could look at the Auditor-General as being the chief executive officer, the Government as the bosses, and Parliament as the Privileges Committee. The only difference, of course, is that the Government rammed through a law to justify its wrongdoing, regardless of the outcry from Parliament and the public.

It was also clear throughout the committee hearing that whatever book one turned to, be it the Cabinet Manual, the State Services Commission guidelines, or even the there is not much help for people asked to come before a select committee. When we finally saw the papers that State-owned enterprises directors get, it soon became clear that the directors’ responsibilities and obligations to the Crown were very hard to understand. In fact, it all looked as clear as the pollution at the bottom of the lakes that the Government recently gave back to Te Arawa. Understanding responsibilities and obligations is critical, because if there is one thing we should have learnt over the last couple of days it is that once the rules are agreed upon, then it is the referee—the Auditor-General—who blows full time, not one of the players. It is about playing by the rules. So the Māori Party is happy to support any suggestion to improve the rules for people appearing before a select committee, and we offer this saying as the token of our assistance: ehara i te mea, he kotahi tangata nāna i whakaara i te pō. It is not about only one person being awake to danger. Because as we strive, in vain it seems, to restore public confidence in this den of iniquity we must ensure that we are prepared to step up to the plate first—the plate of adherence to the law and accepting of the view that the referee’s decision really is final.

The basis of much of the committee’s discussions was the notion of parliamentary privilege, an idea that derives from the Legislature Act of 1908, and the 1865 rulings in the British House of Commons, which themselves were the descendants of article 9 of the Bill of Rights of 1688. More relevant, though, to us as a Māori Party, is not so much privilege but the rights that this Government is denying Māori right now in the greatest Parliament of the world, the United Nations, where discussions are taking place on the Declaration of the Rights of Indigenous Peoples, where this Labour Government is actively opposing those rights, and where this Government is doing its best to destroy a text that has been cobbled together by indigenous people from all over the world for the last 25 years.

What exactly does this Declaration of the Rights of Indigenous Peoples say? Does it speak of terrorism? No. Does it speak of death? No. Does it speak of the denial of anyone’s rights? Hell, no. It states: “Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all—