Privilege

CHARLES CHAUVEL (Chairperson of Privileges Committee) Link to this

I move, That the House take note of the report of the Privileges Committee on the question of privilege relating to the exercise of the freedom of speech by members in the context of court orders. Last year the Hon David Parker raised as a matter of privilege statements made in the House on Thursday, 26 June 2008 by the Hon—as she is now—Heather Roy. Mr Parker was concerned that these statements might be in breach of the suppression order made in the High Court sitting in Nelson on 4 December 2007. On 3 July 2008 the Speaker’s predecessor ruled that the specific question raised did not constitute a matter of privilege, but instead referred to the Privileges Committee the general issue of the interplay between court orders—particularly those suppressing the free availability of information—and the privilege of freedom of speech of members of the House. The reference included the important question of the protections that exist for the reporting and broadcasting of what is said in Parliament and in parliamentary proceedings. Shortly after the referral to it, the Privileges Committee of the last Parliament adopted terms of reference for its consideration of the matter. The present committee adopted those terms of reference, heard evidence, considered the matter, and resolved at its meeting last week to report to the House.

The work of the committee covered a number of key areas. Firstly, we discussed the constitutional principle that the judicial and legislative branches ought to maintain comity in their relations, and, as a subset of this work, we considered the much-misunderstood sub judice rule. The Act declaring the rights and liberties of the subject and settling the succession of the Crown was passed by the English Parliament in 1689, and it was renamed by that Parliament in 1896 when it passed the Short Titles Act as the Bill of Rights Act. It is beyond doubt that that Act is part of the laws of New Zealand. The position was affirmed by Chief Justice Wild in the 1976 case of Fitzgerald v Muldoon. The Imperial Laws Application Act 1988 of this Parliament refers to the legislation as the Bill of Rights 1688 and confirms that it is in force here. The preamble to the bill recites that James II endeavoured to subvert the laws and liberties of this kingdom by prosecutions in court for matters and causes cognisable only in Parliament. Article 9 of the Bill of Rights goes on to provide that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

So it is that members of this House and others participating in the proceedings of Parliament have a constitutional right to freedom of speech in the course of those proceedings that may not be controlled or limited by any external body, but only by the authority of this House itself. In particular, the courts are constitutionally limited from performing their usual role in preventing or otherwise regulating breaches of the law when it comes to what is said in parliamentary proceedings. Because of the breadth of this constitutional exception and the scope for abuse that it contains, it follows that Parliament tries to ensure that the privilege of free speech is exercised responsibly. It does so via the Standing Orders and via legislation. These should embody the principle that although Parliament is sovereign in our system this does not mean that each branch of Government should wilfully or discourteously impinge on the functions of others. It is this balance that is known as the comity principle.

An aspect of this principle is that the other branches of Government should not act in a way so as to prejudice the administration of justice in any individual case that is before a court. This is known as the sub judice rule. It applies particularly when a court has been persuaded to make an order that varies the usual position that justice is to be done openly—in other words, when the court has suppressed some evidence such as the name or details of a witness. At the moment, article 9 of the Bill of Rights means that such an order has no force in this House or in proceedings before a select committee, except in so far as the Standing Orders and the discretion of the Speaker or the chairperson of the committee determines otherwise. We think that if a member believes that the public interest requires that member to breach a suppression order or otherwise refer to a matter in front of a court then there should remain facility for this. However, we seek in our recommended amendments to the Standing Orders to make it clear that this should be exceptional as a breach of the ordinary constitutional arrangements that have evolved in this country. We also seek to make the reference subject to the discretion of the Speaker to first consider and take advice on whether the statement that is sought to be made is truly in the public interest.

Having considered the position in relation to proceedings of Parliament, we discussed whether there are sufficient protections for the reporting and broadcasting of parliamentary proceedings. In common with representatives of the media who came before us, we were surprised to learn that these are inadequate. Members have absolute freedom of speech for any statements that they may make in the House. However, parliamentary privilege does not completely extend to protecting the publication of records of the proceedings of the House. An amendment to the Legislature Act provides protection for “parliamentary papers” that are published by or under the authority of Parliament. The New Zealand courts have so far given a wide interpretation to the term “parliamentary papers” so by analogy they may well include information in the form of electronic documents, video, tape recordings, computer disks, or television broadcasts. But the matter is not clear, and the gaps in legal protection may well mean that publishers and broadcasters could face civil or criminal liability for publishing or broadcasting in breach of a court order, even if inadvertently.

The committee considers it manifestly unsatisfactory that the broadcasting of Parliament’s proceedings under the direct authority of the House may leave the Clerk of the House or any person later authorised by the House open to legal action. We have therefore recommended to the Government that it introduce legislation to amend the Legislature Act 1908 to provide that the live and delayed broadcast of parliamentary proceedings under the authority of the House, including select committee hearings, should be protected by absolute privilege. The committee also considered the broadcasting and publication of extracts from a broadcast of proceedings or from parliamentary papers along with the publication of fair and accurate reports or summaries of proceedings of the House.

Clearly the media plays an important role in providing the public with information about the business of the House. In recognition of that role, some protections are already provided in the Defamation Act to allow fair and accurate reports or summaries of the House to be covered by qualified privilege that applies to delayed broadcasts of proceedings, publications of fair and accurate reports of proceedings, and publications of fair and accurate extracts or summaries of a report of proceedings. So the committee recommends that the Government introduce legislation to amend the Legislature Act 1908 to provide that a fair and accurate report of proceedings in the House, or a summary using extracts of proceedings of the House made by any person, is protected by qualified privilege. Particular issues clearly arise from the use of extracts. They can be taken out of context, and timing or repetition can be manipulated in a manner that is unfair or misleading. In recognition of those issues, the committee suggests that the lesser protection of qualified privilege should apply to the broadcasting and other publication of extracts of Parliament’s proceedings, including select committee hearings, in a manner that is consistent with the provisions of the Defamation Act 1992. In other words, we recommend that the protections that are contained in the Defamation Act 1992 be made broadly consistent with those in the Legislature Act 1908.

Finally, the committee has considered the effect of the decision of a majority in the Court of Appeal and of the Judicial Committee of the Privy Council in Buchanan v Jennings. We endorse the report of the Privileges Committee of the forty-seventh Parliament, as yet unactioned, and the minority reasons for judgment in the Court of Appeal of Justice Tipping that that decision was wrong and excessively broad in scope. We reiterate our recommendation of the former committee’s view that the scope of that decision should be narrowed.

Unusually, because the recommendations of the Privileges Committee on this occasion relate not to a specific breach of privilege but to a wider issue, I am not proposing a motion encapsulating recommended changes to the Standing Orders. Under Standing Order 6, a Standing Order may be amended or revoked only by a motion with notice. If I were to move the committee’s suggested amendments by way of opening the debate on this report, I would effectively negate Standing Order 6 since there would be no notice of the proposed amendments. Instead, I understand that the Government intends to move a motion incorporating the suggested Standing Orders changes, so I have moved only that the House take note of the committee’s report. I look forward to the Government promoting the sessional orders and the legislative amendments recommended, and I commend the committee’s report to the House.

Hon SIMON POWER (Minister of Justice) Link to this

I thank Charles Chauvel for leading the debate on the report back on this very important matter of the Privileges Committee’s report, and I congratulate him on taking up the role of chairperson of that committee. I am reliably told that it is not an easy job, so I wish him well in that task. The Hon Michael Cullen commenced the chairing of this issue in the new Parliament. When he departed from the House Mr Chauvel stepped up to the mark, and he has done a very good job of putting a very complex matter into relatively straightforward terminology. I also thank other committee members for their work on this issue.

As the chairperson of the Privileges Committee said, in June 2008 the Hon David Parker referred to statements made by Heather Roy as a matter of privilege. He was concerned that they may have been in breach of a suppression order made in the Nelson High Court. As Mr Chauvel said, the Speaker ruled that the immediate complaint could not be regarded as tending to impede the House in the discharge of its functions. However, the Speaker referred the general matter of the exercise of the privilege of freedom of speech in the context of court orders to the last Parliament’s Privileges Committee. Another matter came to the Privileges Committee at that time, which saw this particular issue sidelined at that point. However, the new Privileges Committee in this Parliament took up the challenge of dealing with this very technical area. The principle, which determines the balance to be struck between the courts’ role in making orders suppressing information and members’ freedom of speech, was referred to as “comity” by Mr Chauvel and several submitters. Simply put, it means that there is mutual respect and restraint between the legislative and judicial branches. Whatever is under discussion or determination by either should not be discussed or determined by the other. Over the time I have been in this House, members tend to be very careful about that issue in particular when commenting to the media or when members are involved in the justice or law and order areas. The temptation to comment on cases that are before the courts and to offer an opinion is always available, but my experience has been that members on all sides of the House have exercised considerable and rightful restraint in that area.

As Mr Chauvel said, the committee recommended that the sub judice rule be revised to clearly recognise that there are two strands to the rule of issues concerning prejudice to a matter awaiting or under adjudication in any New Zealand court, including one awaiting sentencing. I was particularly keen to see that addition to the summary of recommendations, because I can recall a number of occasions over the last 9 or so years when the issue of what stage a matter was up to in the court proceedings became an issue for debate during question time or in other proceedings in this House. It was always the intention, in my view, that matters relating to sentencing should be included in that rule, even though the actual judicial discretion and process may have been concluded at that point. The second part of that rule is that the principle of comity comes between Parliament and the courts.

As Mr Chauvel stated, the committee has made a second series of recommendations to the Government. The first recommendation is that it “recommends to the Government that it introduce legislation to amend the Legislature Act 1908 to provide that the live broadcast of Parliament’s proceedings, including select committee hearings, is protected by absolute privilege”, that “delayed broadcasts or rebroadcasts of Parliament’s proceedings, including select committee hearings, that are made by order or under the authority of the House of Representatives are protected by absolute privilege”, and that “a fair and accurate report of proceedings in the House”—that is, a fair and accurate report of matters and proceedings in the House—“or summary using extracts of proceedings in the House, by any person is protected by qualified privilege.” It is a matter that will no doubt be of some interest to New Zealand’s media. The recommendations continue: “the broadcast and other publication of extracts of Parliament’s proceedings, including select committee hearings, that are not made by order or under the authority of the House of Representatives are protected by qualified privilege, in a manner consistent with the provisions of the Defamation Act 1992.” Significantly—and this is something that will particularly interest members—the Privileges Committee has recommended that the Government introduce legislation to amend the Legislature Act to provide that “the criticisms made of the decision in Buchanan v Jennings be addressed so that a Member of Parliament, or any other person participating directly in or reporting on parliamentary proceedings, who makes an oral or written statement that affirms or adopts what he or she or another person has said in the House or its committees will not be liable to criminal or civil proceedings.”

I think it is fair to say that the vast bulk of the committee’s work when it came to the consideration of this report was to have the specific nature of the wording on that last point put together in such a way that the Government’s legislative response to these recommendations would get the least ambiguous steer possible as to what the committee was recommending. It is quite a step, and, as the chairperson indicated, it will require the Government to respond formally in due course. It covers a range of issues that up to now have seen many a member of Parliament walk straight from the Chamber to his or office and past the media without saying anything since that particular—

Dr KENNEDY GRAHAM (Green) Link to this

I rise to convey the Green Party’s support for the report of the Privileges Committee on its inquiry into freedom of speech in the context of court orders. I state at the outset that we support all of the committee’s recommendations. Given that this country is genetically disposed to downplay issues of a constitutional nature, I believe that we were well advised to explore this fundamental issue and that the recommendations before us demand careful attention.

The issue rests centrally on the House’s absolute privilege of free speech. Our law in this respect rests on the Bill of Rights Act, which was adopted by the English Parliament in 1689 and implemented in statute law in this country by means of the Legislature Act 1908 and the Defamation Act 1992. Absolute parliamentary privilege was originally designed to protect the members of the English Parliament from the King’s tyranny. Three centuries later—and on the other side of the world—we retain the principle in the name of the public interest rather than the taming of unbridled royal power. In today’s world we value absolute privilege as the measure of the health of a democracy, rather than of the fever of the monarchy. Yet some of today’s citizens remain sceptical of its far-reaching effect. It follows, I believe, that such extraordinary freedoms, so distantly anchored in time and space to the original, perhaps warrant even greater diligence today than may have been required in those dramatic and formative times.

Those endowed with privilege as the generations go by, whether it be wealth, power, or freedom, are increasingly disposed to claim inherited right rather than acknowledge enduring responsibility. The laws of human nature apply to this House as acutely as anywhere else. As members of our country’s Parliament we are not immune to the siren call of unlicensed freedom or power. To allay any possible doubt on this matter we need only recall Fitzgerald v Muldoon barely three decades ago. The Chief Justice was then moved to declare a Prime Minister’s actions unlawful for having violated article 1 of the 1689 Bill of Rights. That article states that the “pretended power of suspending laws … by regal authority, without consent of parliament, is illegal.” That the New Zealand judiciary was forced to reach back into English law in defence of fundamental liberties of 20th century Aotearoa offers a sobering reminder of the fragility of our constitutional structures. Let no one take these matters lightly.

The recommendations in the report carry us forward in securing the constitutional relationship between the legislature and the judiciary in this country, and in refining the relative protections accorded to the House and others in society. Of overarching importance is the principle of comity between Parliament and the courts, as has been noted. The relationship between the legislative and judicial branches of Government secures the constitutional stability of any country. Yet the separation of powers is not as clearly developed in our parliamentary system as it is in presidential republics, at least as it pertains to the relationship between the legislature and the executive. Indeed, in one area there is, I contend in passing, an imperfection in the constitutional clarity of our political structure. The conflation of two fundamentally different roles, those of legal administrator of and legal adviser to the Government in the single person of the Attorney-General, presents a serious derogation from that principle, to deleterious effect on our democracy. But at least the separation of role between our legislature and judiciary is clear and discrete. It is important that nothing be done to bring that into doubt. The principle of comity, requiring mutual respect and restraint between the two branches, must never be allowed to corrode. That underlying principle guided all of the deliberations of our committee.

With that in mind, I turn now to some of the more specific issues in the report before us. The first issue relates to the sub judice rule. It was clear to the committee that the relevant Standing Order does not currently reflect the accumulated wisdom of Speakers’ rulings in this House. It does not refer to the two strands of the rule, but only one—namely, prejudice to the trial of a court case; it is imperative that members not say anything that might influence its outcome. The Standing Orders currently omit explicit reference to the principle of comity, so the committee recommends its inclusion. The Green Party supports that recommendation.

The committee was of the view that a wilful and serious breach of the sub judice rule could be considered a contempt of the House. Opinions divided over whether the Standing Orders should explicitly state that. Some members harboured a concern that doing so might imply a diminution of absolute privilege. It was suggested that the Standing Orders Committee might revisit this matter. For my own part, I form the view that absolute parliamentary privilege should not be left today on the farthest perimeter of freedom. If the exclusive cognisance of this House concerning members’ actions remains the sole method of self-regulation, then the broader public interest is surely to be found in explicit and clear constraint, strictly applied by the collective upon the individual. Only then will public confidence in the integrity of this institution be objectively secured.

The second issue is the question of effective repetition. The committee recommends that the Legislature Act be amended to ensure that absolute privilege be extended beyond statements in the House to include effective repetition outside. No member would thus be liable to civil or criminal proceedings for effective repetition. This would restore the legal understanding before the Buchanan v Jennings decision in order to remove the so-called chilling effect on free speech in the House and in public debate. This protection would also be extended to persons directly participating in, or reporting on, parliamentary proceedings. Although the Green Party supports extension of that protection, we believe that, once again, such far-reaching privilege through a process of self-endowment simply imposes a commensurably heavier responsibility upon members to meet the standards of behaviour expected of us by the public.

Thirdly, I address the broadcasts of this House’s proceedings. For better or worse, absolute privilege does not currently extend to protecting the publication of records of proceedings of the House. Hansard, let us recognise, is the only official report. Broadcasts, whether on television or radio, are not official, yet they provide a verbatim record identical to Hansard, including statements that may be defamatory or constitute contempt. Under current law, there appears to be no protection for broadcast or for publication in the print media. But the suggestions that televised proceedings be subject to a time delay and that the Speaker be empowered to technically mute offending words do not appeal to us as the answer. We did, however, regard it as particularly unsatisfactory that, for example, even the Clerk of the House remains, in theory, vulnerable to legal action for the broadcasting of Parliament’s proceedings. The Green Party supports the recommendation that the Legislature Act be amended to extend absolute privilege to cover live broadcasting of Parliament’s proceedings, including in select committees, and that delayed broadcasts, under the authority of the House, also enjoy absolute privilege.

Fourthly, and finally, I address the media’s reporting on House proceedings. At present, the Defamation Act extends only qualified privilege to the media for extracts reported of proceedings. This applies to delayed broadcasts, fair and accurate reports, and fair and accurate extracts. It seems that some in the media erroneously believe that they are protected by absolute privilege as long as their reports are fair and accurate. That is not so. We were, therefore, of the view that qualified privilege for fair and accurate reports of all proceedings be extended to all persons. The Green Party supports this proposal as well.

On balance, the recommendations comprise an important step forward in clarifying both legislation and our parliamentary Standing Orders as they pertain to privileges covering the behaviour of members of this House, Officers of Parliament, and the media reporting on proceedings. The Green Party is disposed to fully support them and to recommend such action by this House and by this Government. Thank you.

DAVID GARRETT (ACT) Link to this

I rise on behalf of the ACT Party to support the Privileges Committee’s report and its recommendations. It is somewhat trite to note that free speech of MPs is an absolutely vital part of our democracy. It is also important that there be a balance against, or with, the potential damage that can be caused to reputations. The phrase “Say it outside the House.” is often heard, and it is an important check on MPs who may choose to make unsubstantiated allegations, as some members have found to their cost.

Charles Chauvel referred to the sub judice rule as the “much-misunderstood sub judice rule”, and I note that the previous speaker, Kennedy Graham, seems a little confused even as to the pronunciation of it. As previous speakers have said, it is an important part of our law. It is clearly important that Parliament should not interfere with the courts, and vice versa, as conveyed in the comity principle. However, in my view, it is wrong for anyone—the police or MPs included—to wrongly sit behind the so-called sub judice rule as an all-embracing smokescreen in all circumstances. It is not a smokescreen and it ought not to be. The report addresses the present lack of clarity of the sub judice rule and it correctly points out the difficulty MPs have of knowing the boundary of comity, which relates to the mutual respect relationship between the courts and Parliament. The committee’s report refers to a need for a clear statement of principle on the comity rule, and we agree entirely with that view. The committee has recommended that the rule be amended and made clear, and, crucially, it has recommended that the rule preserves the discretion of the Speaker to decide on a case by case basis whether a breach of privilege in that regard is justified. I also believe it is important that the committee acknowledged that it always remains open for a member of this House, knowing that he or she must bear the consequences, to breach the rule. It is imaginable that in some circumstances that action may well be justified and may be the duty of a member. But, like everything else, such an action would come with a cost, and that is recognised in the committee’s report.

This party has more reason than most to agree with previous speakers on the unsatisfactory nature of the law with regard to effective repetition. I do not believe that it is breaching any kind of rule of comity to say that most commentators and many, if not most, lawyers believe that Buchanan v Jennings was bad law. It cannot be either sensible or right for a member of this House who says in the hallway “I do not resile from what I said in the House” to then become liable for what he or she said in the Chamber. That is bad law, badly decided, and it sets a bad precedent. As Mr Chauvel noted, it was recommended in the Privileges Committee of the forty-seventh Parliament that the effective repetition rule be abolished. Here we are, 4 years and two Parliaments later, and the recommendation has been made as clearly as it possibly could be. The committee, in my view quite rightly, expressed its disappointment that the change recommended in 2005 had not been actioned and said that it expected action to be taken on that point as soon as possible. The ACT Party completely concurs with that statement, but notes that it is in the hands of the National Party, as the majority party in the House, to place that change on the legislative programme. It would receive the full support of the ACT Party. It is hoped that the Hon Simon Power’s reference to “in due course” is sooner rather than later and that the Privileges Committee of the next Parliament is not forced to again say that it is long past time for this rule to be abolished. Thank you.

TE URUROA FLAVELL (Māori Party—Waiariki) Link to this

Kia ora anō tātou e te Whare. When I was first appointed a member of Parliament in 2005, I never thought that part of my role would be considering the principle of comity. Yet, essentially, our task in the Privileges Committee over the last 3 months was to consider the constitutional boundaries as they relate to the freedom of speech and court orders. My first experience on the Privileges Committee was a relatively straightforward exercise to consider a matter regarding the Rt Hon Winston Peters—a “did he” or “did he not” issue. This present issue, however, was about interpreting the law and clarifying the Standing Orders.

If one is not a lawyer, it is quite an interesting exercise to listen to all the lawyers have their way with words such as “in so far as”, “furthermost”, “therefore after”, etc., and I am afraid that in the main I had to leave the majority of the discussion to the experts. My contribution was to consider getting training for MPs on the issues, having tripped myself up when discussing the raids on the Tūhoe nation over a year ago, and on the implications of broadcasters and the media in general. I will give some overview on those matters shortly.

In its most simple interpretation, I have found that comity is sometimes described as the separation of powers, or, as previous speakers have said, the desire that the legislature and courts should not intrude into areas reserved for each other. It is not as though these are new issues. The House has already stipulated in Standing Orders 111 and 112 that matters awaiting adjudication in the courts come within the terms of the sub judice rule. In effect, this means that members have been encouraged to observe court orders or be accused of abusing the privilege of free speech. A case of particular interest to our report was the incident just less than a year ago when our colleague Heather Roy made statements in the House that another colleague the Hon David Parker thought constituted a breach of suppression orders and therefore was a matter of privilege. The previous Speaker ruled on 3 July 2008 that there was not a case of privilege to be answered for that particular incident, but that the generic issue of the constitutional relationship of respect between the House of Representatives and the judiciary was worthy of further inquiry.

Having gone through the process, I suggested to the committee that the interpretation of freedom of speech and the constraints of court orders was something that we could all usefully have a wānanga or discussion about. I think the chance to sit and consider together how this relationship impacts on our everyday work as MPs could be really useful. I suggested further that, for new members in particular, a workshop outlining the extent of the respect and restraint operating between the judiciary and the legislature might quickly prepare parliamentarians for understanding the role in a far better way. How does one check with the Speaker about the wish to raise an issue of privilege? Is it done in writing? When should notice be given? These are basic logistical questions that I believe need consideration now, in light of the proposed changes to the rules. A key issue, for example, was whether any distinction should be made if a member knowingly breached a court order. A Parliament-wide workshop could be useful, in order that all members would know the conditions around what might be considered contempt, what might be considered likely to bring this House into disrepute, and what might be involved in breaching a court order. We concluded as a committee that Standing Order 401 should be extended to include whether a member knowingly makes reference to a matter suppressed by a court order.

Another matter that came within the terms of reference for the review was the context of reporting on the proceedings of Parliament. The increased openness, the access to Parliament through web broadcasting, podcasting, and televised channels has made it even more important that we consider the publication of proceedings outside of Parliament. I admit to having genuine empathy for broadcasters who are doing their very best to provide an accurate birds-eye view of the day in Parliament, yet could very well be flouting the rules in doing so. The Solicitor-General, in his advice to the committee, drew on a statement from Media Law in New Zealand that concluded there is much greater doubt about whether the media are safe in publishing these types of statements, either directly from Parliament or by way of delayed coverage. I am pleased for our broadcasters that there are specific recommendations in the report that introduce the idea that legislation should be created to deal with live broadcasts, delayed broadcasts, and rebroadcasts. It is also useful that the recommendations include the precautionary principle of ensuring that the broadcasts are “a fair and accurate report of proceedings in the House,”.

Finally, from the perspective of the Māori Party, this issue about the constitutional boundaries associated with the principle of comity between Parliament and the courts came to a head some 2 years ago in the context of the “Black Friday” raids on the Tūhoe nation, which happened in the Ruātoki Valley. In this matter of extreme public interest, our questions in the House were frequently shut down as being potentially in breach of court orders or in breach of privilege. As members of Parliament we have to be able to raise issues of legitimate concern to our constituency. There is no denial that the case of the raids, under the so-called shadow of terrorism, was of extreme concern not only to the people of Ruātoki but, more important, throughout the greater Waiariki electorate and, indeed, to Māoridom as a whole. What makes the situation even more intense is that not only was the case of particular concern in October 2007, but in the long weeks and months to follow the debate was effectively shut down because the process had been drawn out for such a length of time. We need to know, if a case is held over, what mechanisms are in place to guarantee the issues can benefit from exposure to the light of parliamentary scrutiny.

These are critical issues for any political party when an event of major political sensitivity is unable to be debated because of the sub judice rules and the Standing Orders. We fully support the clarification provided for, in the procedures now outlined in this report, about matters awaiting judicial decision. The process of making application to the Speaker is described in full, and it is now clear that the discretion of the Speaker will be called upon in matters where there is some doubt. I humbly suggest that the situation emerging out of the Tūhoe raids would have certainly constituted the exercise of particular discretion, to balance the privilege of freedom of speech against the public interest in maintaining confidence in the judicial resolution of disputes. This is even more apparent when 18 months have passed, yet still we appear no further along in terms of reaching a judicial resolution.

The principle of comity, the constitutional dilemmas, and the application of the Standing Orders were all matters before the committee that required sufficient specialist skills to understand the full implications for Parliament, as I stated at the outset. In that context I acknowledge the Privileges Committee staff—Debra Angus, Catherine Parkin, and Mary Harris, the Clerk of the House—for their professional commitment to supporting us in whatever capacity was required. We received some excellent expert advice from Dr David Collins as Solicitor-General and also from Professor Philip Joseph, Associate Professor Andrew Geddis, and Tim Murphy and Tim Pankhurst from the media freedom committee of the Commonwealth Press Union. It is a real eye-opener for me in my parliamentary role that we are able to access such excellent sources of advice. I also acknowledge the chairs of the committee—the Hon Dr Michael Cullen and, more recently, Charles Chauvel—for their leadership, as others have mentioned, and all of the members of the committee for a job well done. I say in closing that when and if the committee sits again I hope that we can keep it to a “yes, they did; no, they didn’t” question. It will save me a hell of a lot from having to listen again to the foreign language of lawyer-speak. I say that with due respect to my lawyer colleagues. Kia ora tātou.

Hon DAVID PARKER (Labour) Link to this

One of the most important privileges that this House has, if not the most important, is the privilege of free speech. We can talk about any issue in this Parliament, and we can do it without threat of being sued for defamation outside this Parliament. However, it is important to reflect on the fact that freedom of speech is a privilege of this House; it is not my privilege as a member of Parliament. It is the privilege of this Parliament rather than the privilege of each member of Parliament. I make that point because when we consider issues such as the division of powers and responsibilities between the judiciary and Parliament, we have to remember that it is Parliament’s rights that we are protecting into the future. We are also protecting the rights of the judicial branch as a group, first and foremost, rather than as individuals.

We have heard wise contributions today from all parties about the fact that in order to maintain the balance between the judicial arm of Government—the judiciary—and the parliamentary arm of Government, it is important that we respect each other’s roles. That balance can be upset when one side or the other goes too far in the exercise of its rights and stands on the toes of the other branch of Government. The risk we take is that if we as a Parliament do not properly regulate our conduct, then we actually invite the sort of response from the other branch of Government—the judiciary—that we would not want. So one of the things we have to do in order to jealously guard our right to freedom of expression, which is so important to us, is to make sure we do not abuse that right.

We do that through the Standing Orders. Our current Standing Orders are inadequate in that regard because, as was shown last year, one can make a statement in breach of a suppression order—for example, in the case of someone’s name being suppressed for ever. The case in point here was where someone was on the witness protection programme. Members of this House, including myself, the Hon Nick Smith, and others, thought that the identity of that person had been suppressed by the courts, and that, accordingly, his or her name ought not to be mentioned in this House. It transpired that there was a misunderstanding as to what the effect of the court order was. None the less, if our understanding of the court order had been right, a member who had mentioned the name of the person on the witness protection programme, in breach of the court order, would not have been in breach of our Standing Orders. That is wrong.

We need to consider why it is that sometimes people’s identities are protected. It is because the courts have found that injustices can be caused if this does not happen. In the case I have mentioned, the injustice could be that the person on the witness protection programme might be identified. We have only to think about why that person might be on the witness protection programme in order to realise how serious the consequences could be. I am not talking about this particular case, but if, for example, that person had turned Crown’s evidence in a serious drug trial against very evil people, then his or her life might be at risk. Such people might be no angels, but, none the less, the consequences of their becoming publicly known, in terms of their acts on behalf of the Crown in bringing people to justice, could be such that they could be subject to torture or death, in an extreme case.

Those are very real consequences that the courts grapple with from time to time, and in their wisdom they occasionally say that the identity of people should be suppressed. When they do that, we in this Parliament have a duty to respect that decision. That is what our Standing Orders ought to provide for, and currently they do not. So the Standing Orders ought to be changed so as to make it clear that it would be a breach of the privileges that we hold in this House—a breach of our privilege of freedom of expression—to use our rights of freedom of expression to name a person in that situation. That would be wrong.

There can always be exceptions to these rules, and one always has to allow for exceptions. On most occasions, the political point can be made in terms of bringing the Government or the police to account, without actually naming the name. The point at issue can be resolved satisfactorily without naming the name. But occasionally the name can be appropriately used, despite a court order to the contrary. I can envisage, in very rare circumstances, that there could be a public interest in favour of members of this Parliament being able to name the name. That is why Parliament would be going too far if it decided to give away its privilege of freedom of speech, rather than to limit it.

So we have not given it away. If this proposed change to the Standing Orders is brought into effect, the right of freedom of expression—the privilege of members of the House to say anything—would exist, but it would effectively be monitored by the Speaker so that if a member wanted to breach a court order or make reference to a court action that is not yet complete, he or she could go to the Speaker in advance and ask whether the reference could be made on that particular occasion. The Speaker could say yes or no, and we would rely upon the Speaker to make wise decisions on this matter; we have confidence in the Speaker to make those wise decisions.

There are other remedies for members of Parliament. A member could, having received an adverse decision, come to this House and actually breach privilege by making that statement. That would be the wrong thing to do as a matter of practice, but it could happen. So there is an additional layer of protection. If a member did that, he or she would be at risk of censure by the Privileges Committee, and, unless there was a fantastic justification, the member ought to be appropriately censured by the Privileges Committee.

A couple of other issues were thrown up through this inquiry. One of the issues I raised when I looked into the issue was that it seemed to me that the repetition of matters through modern media raised new issues that perhaps had not been thought of when the original absolute protection was granted to Hansard. I did not foresee some of the lacunae—the gaps in the current law that provide for absolute privilege to Hansard—that leave it in doubt as to whether the likes of the podcasts one can pick up from Radio New Zealand National, or through other means of repeat or delayed broadcast, are properly protected. That puts the Officers of Parliament at risk. It also puts the media, who are relied upon to re-report these proceedings, at unnecessary risk. That issue should be clarified by changes to the relevant legislation.

I refer again to the issue of freedom of speech in respect of suppression orders. There is a misunderstanding on the part of many in the media that if we say something in Parliament, the media are absolutely privileged in terms of their repetition of it. That is not the case. It is the privilege of Parliament; it is not the privilege of the media. If the media choose to repeat something that is said in Parliament, they are entitled to qualified privilege but not absolute privilege. That is the case in respect of defamation proceedings. In respect of contempt proceedings in a court, they are not protected at all. So if members of the media were to repeat a name that had been suppressed by the court but mentioned in Parliament, they would not be protected at law for repeating the name in a newspaper or in any other medium—and neither should they be. There is no change proposed to that law.

I refer back to the underlying philosophy that I talked about at the start. I referred to the balance between freedoms and the responsible use of those freedoms, and I said that if one branch of Government, be it the judiciary or Parliament, goes too far, it can expect a reaction from the other branch. This same logic needs to be applied in the context of Buchanan v Jennings, which was a Privy Council decision that supported the majority decision of the Court of Appeal. It found that effective repetition outside this House of what had been said inside the House was not protected by parliamentary privilege. It is a nonsense in the eyes of most people that a member can be sued for defamation if he or she says something in this House, and then, when asked while walking along the corridor whether he or she still stands by the statement, says “Yes.” or “I don’t resile from that.”

It seems to be an unusual interpretation of the rights of freedom of expression that we enjoy in this House to say no more than “I stand by what I said.”, or “I don’t resile from it.”, yet be subject to the threat of defamation. That was a step too far, in the opinion of the Privileges Committee, and that balance needs to be drawn back to restore the position to that which was commonly understood prior to the decision in Buchanan v Jennings.

The Labour Party will be supporting all of the recommendations of the Privileges Committee.

Hon LIANNE DALZIEL (Labour—Christchurch East) Link to this

I rise, too, to support the report of the Privileges Committee, and in doing so I also wish to compliment both the former chair, the Hon Michael Cullen, who was very keen to see the issues raised in this report resolved by the House, and Charles Chauvel, who has taken up the chair’s role on the retirement of Dr Cullen. Having listened to Mr Chauvel’s contribution to this debate, I believe that the committee has chosen a worthy successor. I am not reflecting on anything other than my own background in law and speaking as someone who has been on the Privileges Committee for over 15 years, when I say that I am pleased that a lawyer again chairs the committee.

I know that the chair wanted to acknowledge all of the people who have served on the committee, both during the original referral of the question of privilege and currently. Members who served on the committee after the referral of the question to it during the last Parliament but who no longer sit as members of Parliament are the Rt Hon Winston Peters and Russell Fairbrother. Hone Harawira sat as a member of the committee until 8 November 2008, and members who have served on the committee throughout the process are the Hon Gerry Brownlee, the Hon Wayne Mapp, and the Hon Simon Power. Mr Power, of course, chaired the committee until 8 November last year. Members not already mentioned but who are members of the current committee are the Hon Murray McCully, the Hon David Parker, who has just resumed his seat, and Dr Kennedy Graham. We have also heard from Te Ururoa Flavell and David Garrett.

I am also sure that the House as a whole wants to acknowledge the very valuable assistance provided to the committee by Mary Harris, Debbie Angus, and Catherine Parkin, and by the Solicitor-General, Dr David Collins. I place on record special thanks to Professor Philip Joseph of Canterbury University, one of my old lecturers, and Associate Professor Andrew Geddis of the University of Otago. Members might also note that the committee heard evidence from Tim Pankhurst and Tim Murphy from the New Zealand section of the Commonwealth Press Union, and I think that that was a very valuable contribution for what they gained from it as much as from what we gained from it.