Privileges recommendations

June 12th, 2013 at 10:00 am by David Farrar

The has made some significant recommendations around the law of , the main one being that it be set out in statute. Their full report and arguing is very interesting, including where they slap down the Supreme court for their ruling in AG and Gow v Leigh.

As the Attorney-General chairs the Privileges Committee, I think it is safe to assume the Government will accept the report and act on it. The recommendations are:

  1. We recommend to the House that it note that we respectfully disagree with the Supreme Court decision in Attorney-General and Gow v Leigh in applying the test of necessity to ascertain the scope of Parliament’s privilege of freedom of speech.
  2. We recommend to the Government that it introduce a Parliamentary Privilege Bill to clarify for the avoidance of doubt the nature of parliamentary privilege in New Zealand.
  3. We recommend to the Government that the Parliamentary Privilege Bill contain a clear statement of purpose to aid in determining the extent and scope of parliamentary privilege.
  4. We recommend to the Government that the Parliamentary Privilege Bill replace the 

    Legislature Act 1908, the Legislature Amendment Act 1992, and section 13 of the 

    Defamation Act 1992.

  5. We recommend to the Government that it consider and where appropriate incorporate the recommendations in the Second Report of the Standing Orders Committee on the Law of Privilege and Related Matters, November 1989 (I.18B) in drafting the Parliamentary Privilege Bill.

  6. We recommend to the Government that the Parliamentary Privilege Bill provide for 

    the avoidance of a doubt a definition of “proceedings in Parliament” and what is meant by 

    “impeaching and questioning” such proceedings, as set out in article 9 of the Bill of Rights 

    1688.

  7. We recommend to the Government that the Parliamentary Privilege Bill provide for the power of the House to fine for contempt.

  8. We recommend to the Government that the Parliamentary Privilege B

    ill provide for

    the power of the House to administer oaths or affirmations in respect of witnesses giving

    evidence.

  9. We recommend to the Government that the Parliamentary Privilege Bill confirm that the House does not have the power to expel its members.

  10. We recommend to the Government that the Parliamentary Privilege Bill provide that the live broadcast of Parliament’s proceedings, including select committee hearings, is protected by absolute privilege.
  11. We recommend to the Government that the Parliamentary Privilege Bill provide 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. 
  12. We recommend to the Government that the Parliamentary Privilege Bill provide that 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. 
  13. We recommend to the Government that the Parliamentary Privilege Bill provide that 

    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. 

  14. We recommend to the Government that the Parliamentary Privilege Bill make 

    explicit 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 unless the statement in and of itself could 

    be defamatory.

  15. We recommend to the Government that once enacted the Parliamentary Privilege Bill be administered by the Clerk of the House of Representatives. 

  16. We recommend to the Government that it work with the Clerk of the House of Representatives to draft the Parliamentary Privilege Bill.
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18 Responses to “Privileges recommendations”

  1. Alan Johnstone (922 comments) says:

    All looks sensible. In the absence of a written constitution Parliament is sovereign.

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  2. KapitiCoast (103 comments) says:

    Parliamentary Privilege has a place within the house to expose corruption/illegality etc, what it doesn’t have have a place is when used just to shit stir and mud sling with little or no proof from the MP using the privilege, surely there must be, at some point, part of the privilege that proof/evidence be supplied (to the Clark of the house and/or the speaker) by the MP using this privilage otherwise it’s just baseless headline grabbing most of the time by smaller parties and desperate Labour….Peters/Mallard et al

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  3. david (2,483 comments) says:

    Unqualified privilege is horseshit. At the least, any statement made in the course of Parliamentary business should be able to be defended against some sort of challenge other than as part of a debate.

    A defence might be that “I was provided false information” or “I have seen the emails” but it might not be “I’m taking a wild guess and trying to skewer someone without a shred of evidence” and in that case a sanction is needed.

    To some extent when they do it to each other it is part of the dirty side of politics that they sign on for but the concept that someone can say anything at all, make baseless accusations or wild speculations about a member of the public and not face any challenge is reprehensible.

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  4. david (2,483 comments) says:

    Can anyone provide examples of how the protection of Parliamentary Privilege has been of any benefit to the good government of New Zealand or the welfare of it’s citizens. Not counted is any case of political points scoring.
    My recollection goes back a few decades and I can only think of cases where it has brought misery.

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  5. smttc (638 comments) says:

    I object to No. 14. This would have got Winston Peters off the hook when Selwyn Cushing sued him some years ago.

    If I defame you inside Parliament’s debating chamber and then go outside and basically tell the press that I stand by what I said in the house about you then you should be able sue me for in effect repeating the defamation.

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  6. gravedodger (1,426 comments) says:

    @smttc, + 1

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  7. metcalph (1,293 comments) says:

    If I defame you inside Parliament’s debating chamber and then go outside and basically tell the press that I stand by what I said in the house about you then you should be able sue me for in effect repeating the defamation.

    I don’t think that works. Otherwise defamatory statements can be made in the witness box in court and reported on without fear of defamation. Given that parliamentarians are supposed to exercise their consciences (stop laughing!) and speak freely upon important matters, it seems a bit rich to punish them for doing their duty for which they were elected. I know that Winston Peters is so full of shit that he makes the Augean Stables look sparking clean but there is a legitimate purpose for freedom of speech within the house and suing someone for standing by what he said inside infringes on that purpose.

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  8. Colville (1,780 comments) says:

    smttc, so what are you meant to do when a repeater asks you about it? “no comment” ?

    at very least you need to be able to say that you stand by your comments and believe them to be true.

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  9. Colville (1,780 comments) says:

    I can certianly see a need to be able to stand in the House and express a reasonably held belief but I would not be unhappy if before making a dangerous statement you had to pass it by a gatekeeper and pass a simple evidential test and if you chose not to submit evidence and pass test you were open to be sued.

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  10. smttc (638 comments) says:

    No Colville. You refrain from making unimpeachable defamatory comments in the house in the first place. That’s what you do.

    Of course if you really think the comments are true or fair comment then no problem is there?

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  11. Colville (1,780 comments) says:

    smttc.
    If Winstons disgruntled accountant meets you over a coffee and says to you that Winne has $500K in untraceable funds sitting in xyz trust account and shows you the bank account details on his phone what are you going to do? you have no proof.

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  12. PaulL (5,776 comments) says:

    I also don’t like point 14. The classic challenge to parliamentary privilege has always been “I dare you to repeat that outside the house.” When a member declined to do so then we could all infer their level of confidence in whatever they were making up. I thought that was a reasonable process, because I do support parliamentary privilege despite the fact that it gets misused. The sanction for that should be at the ballot box (and yes, I do accept that as long as there are people stupid enough for vote for Winston then clearly that sanction isn’t a strong one). But going further and allowing protection for someone repeating something outside parliament is not, to my mind, necessary.

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  13. Alan Johnstone (922 comments) says:

    Parliamentary privilege is an important concept, going back to the glorious revolution of 1688.

    It protects the legislature from the Executive. If parliament is sovereign, then it enjoys the benefits of sovereign immunity surely?

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  14. metcalph (1,293 comments) says:

    Just one comment.

    No 14 does not help Winston Peters. He was sued on the basis of comments that he made in a Australian TV programme and a statement he made about Selwyn Cushing outside the house (“You can believe Selwyn or you can believe me”) was used as evidence of defamation.

    Owen Jennings was an MP who said he did not resile from statements he made in the house and was sued for defamation.

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  15. Alan Wilkinson (1,798 comments) says:

    I think anyone defamed under privilege should have the right to have a rebuttal read in Parliament also under privilege.

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  16. PaulL (5,776 comments) says:

    @Alan: how would you define “defamed under privilege”? Clearly it’s not actual defamation, since the law specifically prevents anything done in parliament from being defamation. Would we apply it to statements which would have been defamatory if done outside parliament? How do we determine that they would have been defamatory – we typically go to court to prove that, would you go to court to prove this? It seems a good concept, but the implementation could be tricky.

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  17. Alan Wilkinson (1,798 comments) says:

    @PaulL, I presume it would be at the Speaker’s judgment and discretion.

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  18. pukeko60 (1 comment) says:

    Parliament needs to assert its authority. This is a good start. Of course, abolishing the Supreme Court and disestablishing the constitution review group would be better. For the King-in-parliament has to be sovereign, and this has been the Westminster position on the constitution from 1688. We move from it at our peril.

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