Parliament and contempt orders

June 2nd, 2009 at 9:00 am by David Farrar

The Privileges Committee tabled a report at the end of last week titled:

Question of privilege relating to the exercise of the privilege of freedom of speech by members in the context of court orders

And they make significant recommendations to the House:

Matters awaiting or under adjudication in any New Zealand court may not be referred to in any motion, debate, or question, including a supplementary question, subject always to the discretion of the Speaker and to the right of the House to deal with legislation on any matter or to discuss delegated legislation.

This would make it a contempt of Parliament for an MP to breach a supression order in the House.

They also recommend to the Government:

The 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 (p. 25)
• 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 (p. 26)
• a fair and accurate report of proceedings in the House, or summary using extracts of proceedings in the House, by any person is protected by qualified privilege (p. 27)
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 (p. 28)
• 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 (p. 22)

The extension of parliamentary privilege is useful, as it will include Internet broadcasts of the House.

The Buchanan v Jennings is a case when MP Owen Jennings was able to be sued because he said outside the House that he stood by or affirmed what he said in the House. Up until then it was thought you only lost liability if you actually repated what you said.

The Committee also turned down a suggestion by Andrew Geddis that the broadcast feed of Parliament have a five minute delay to allow the Speaker to bleep out any words that breahc a supression order. Thank God they turned that down – it would be ridicolous to have Parliament broadcast with such a delay.

I will be very interested to hear the debate, when the report is received by the House.

8 Responses to “Parliament and contempt orders”

  1. peterwn (4,281 comments) says:

    This is a sad reflection on the House. In years gone by MP’s knew better than to do this sort of thing and if tempted to knew they would cop it from the whips or leader which could well leave their parliamentary careers dead in the water. Some of the the minor parties do not seem to be willing to excercise this sort of self discipline.

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  2. nandor tanczos (77 comments) says:

    Very glad to see them talking about rectifying the Jennings decision. The whole point of parliamentary privilege, I thought, was to make sure that the elected representatives were not fettered in what they said, enabling them to say publicly things that were dangerous for others to say. I used it myself to comment on, for example, some of the more curious elements of Scott Watson’s conviction for the ‘Sounds murders’.

    This has been abused at times, but personally I think it is an important principle. Not being able to repeat, or at least affirm, those comments outside of the House reduces their value.

    Of course the ability to satirise parliamentary proceedings is an important public protection in return. I hope they also look at amending the standing orders as they relate to those matters!

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  3. david (2,340 comments) says:

    Wrong nandor, IMHO the origin of privilege was to enable free debate in the House fior the purposes of making good law. At the time only the truly dedicated would have access to and actually read Hansard some time after the event.
    In more recent times and particular since proceedings have been broadcast, Parliament has become a pulpit yet the rules on public utterances have remained in the age of the coffee shops, town criers and broadsheets.
    It is plain WRONG to allow parliamentarians the privilege of abusing confidentiality and truth without the abused having recourse.
    My attitude would be mollified if they strengthened the “abuse of privilege” provisions to allow sanctions where privilege has been used unreasonably, to spread untruth (maliciously or not), or not in the public interest. The days of open slather should be limited and MPs should need to be careful (as opposed to careless) over what they say in public.
    The house is now very much “in public”.

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  4. AG (1,949 comments) says:

    As I see it, the Jennings v Buchanan decision is a classic case of cost vs benefit. The courts clearly didn’t see any benefit to an MP being able to continue to (by inference/implication) spread defamatory claims outside the House. MPs obviously disagree, because to avoid any risk of “effectively repeating” the original claim they won’t really say anything about it at all. (This is why interviews with MPs about their parliamentary statements are so deadly dull – they won’t even acknowledge they said something, in case they inadvertently “effectively repeat” that statement.) So I guess the question is – which is the greater harm?
    (1) That an individual may continue to have their name besmirched by an MP (or other parliamentary participant), as they continue to tell the media “what I said in Parliament is true, and I stand by it” (with the media then repeating the original claim under the protection of parliamentary privilege); or,
    (2) That MPs simply will not talk about what they said in Parliament (where this is potentially defamatory), for fear of getting hauled into court over it.

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  5. nandor tanczos (77 comments) says:

    David, I’m not sure how the protection of privilege helps debate legislation particularly. Any example referred to, for instance to highlight a potential problem or loophole in a bill, can be referred to as a hypothetical rather than referring to a real example.

    Now I agree that in legislative debate, privilege may be relied on – but essentially for the same purposes as it relied on during general debate, urgent debate etc – to raise important matters in the public arena that are too risky to speak openly about without some kind of legal protection.

    I submit that this is a legitimate activity for an MP. I agree that some protection against abuse would be useful, but it would be hellishly difficult to construct. How do you show that privilege was abused knowingly, or that deliberate lies were told (actually standing orders already provide sanction against deliberately misleading the house, so maybe there is a model there)

    For example, Winston’s wine box affair – people still dispute whether that was an abuse or the kind of thing for which privilege was intended. I wouldn’t like to see him punished for that (though perhaps for some of the other shenanigans he initiated).

    AG – I guess you are right – its a question of what addition harm or benefit from the repetition outside the house. I would have thought, given that the reputational damage has been done, that the effect of dampening further discussion is unhelpful for both sides, if they are interested in establishing the truth.

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  6. William J (44 comments) says:

    Does anybody know what the parliamentary process is for this Privileges paper? If Parliament agree to the recommendations in the report today, will it become law tomorrow? Do they vote on it today or is there another process that takes place first?

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  7. david (2,340 comments) says:

    Nandor, deliberately or not you missed my point.

    I am opining that Parliament has turned into a soapbox for the public to a much greater extent than had previously been the case. MPs get pklenty of opportunity to address the public and during those times they are constrained in their speech by possible legal proceedings. Why should MPs be given one particular soapbox on which to commit unconstrained slander, defamation and libel, to reveal confidences and to spread outright untruths and rumours when no other person in the country is free to do so?

    I am arguing that the functions of parliament itself should be limited so that there is no need or opportunity to use the proceedings of the House to address the Public in such a way. By all means let parliamentarians talk to their constituents in small numbers and large but when they are gathered in Wellington they should be conducting more serious business – like ooooh I don’t know ……. how about running the country!!!!

    Interesting as I am listening to the debate on this report that all I hear is lawyers speaking, not the man-in-the-street.

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  8. Rex Widerstrom (5,113 comments) says:

    I tend to agree that privilege should remain unfettered, even though I was victim to what was one of the foulest misuses of it by Ron Mark and (to a much lesser extent) Winston Peters.

    As Nandor points out, issues such as the Winebox and aspects of the Scott Watson case, not to mention numerous other issues, would never have been raised were MPs not afforded complete protection.

    When someone misuses it, as Mark did, to launch a grubby and obscene personal attack and then doesn’t have the guts to repeat it or apologise for it, I think the majority of the public are more than smart enough to see the offender for what he is, and act accordingly.

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