Privileges recommendations

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

The Privileges Committee has made some significant recommendations around the law of parliamentary privilege, 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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A cowardly smear

May 29th, 2013 at 3:23 pm by David Farrar

Stuff reports:

Prime Minister John Key is standing by United Future leader Peter Dunne and says he accepts the revenue minister’s word that he did not leak a report into the Government Communications Security Bureau.

NZ First leader Winston Peters today used parliamentary privilege to accuse Dunne of leaking the report by cabinet secretary Rebecca Kitteridge to Fairfax Media.

The report revealed that more than 80 New Zealand citizens may have been illegally spied on by the bureau.

An investigation was under way by former top public servant David Henry to try and find the source of the leak.

Speaking of Dunne today, Key said: “He’s given an absolute categoric assurance he didn’t do this; I accept him at his word.

“I’ve worked with him for a long period of time and the entire time I’ve worked with him I’ve found him to be extremely trustworthy.”

Peter Dunne would be the near the bottom of any list as a potential leaker.

But let’s be clear. Winston Peters is not just asking if Dunne is the leaker, but has asserted it:

After having attempts to question Dunne repeatedly thwarted, with committee chairman Todd McClay ruling that the questions were beyond the scope of the hearing, Peters directly accused Dunne of leaking the report.

“My assertion is you did leak the report,” Peters said.

This is a cowardly and defamatory smear. It is especially cowardly because Peters has a long record of suing people for defamation (and threatening numerous more that he will do so) yet he cowers under parliamentary privilege to defame Dunne.

The media should ask two questions of Peters, and keep asking them:

  • Do you have a shred of proof for your assertion?
  • Will you repeat your allegation outside of Parliament?

Peters has a long long history of just making shit up. Recall the fleet of limos he claimed WINZ had? A fiction, with no proof. But this is worse. He is defaming an individual, not an organisation.

He does it because he knows the media will report it, and his strategy is to stay in the headlines. He doesn’t care if 90% of NZ hates him, because all he is targeting is the 10% who may vote for him.

Recall that Peters lied several dozen times in 2008 with his claim he had no knowledge of Owen’s Glenn’s donation to his lawyer to cover his legal fees. there was overwhelming proof that he in fact brokered the donation, yet he lied to the media, the public and the Privileges Committee time and time again about it.

So why do the media give his assertions the time of day? Wouldn’t it be great, if they just said that we won’t report what you claim, unless you provide proof to back it up? You have lost the privilege to be trusted, because you lied day and night to us for four months.

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Geddis on parliamentary privilege

December 1st, 2012 at 3:00 pm by David Farrar

Andrew Geddis blogs on the issue of privilege for what civil servants say to MPs:

The central issue that the Privileges Committee is considering is relatively straightforward to understand, but tricky to resolve. It arose out of the Supreme Court’s decision in Gow v Leigh - a case I discussed in a previous post here, so won’t cover in detail again. In the course of that judgment, the Supreme Court ruled that the absolute privilege against any legal consequence that attaches to those who speak during a proceeding in Parliament does not extend to public servants who are advising Ministers of what to say to Parliament. Consequently, if a civil servant gives a Minister information about an individual or organisation that is false and defamatory, and the Minister subsequently repeats it in Parliament, then the civil servant potentially can be sued for defamation (even though the Minister cannot be, because the Minister enjoys absolute privilege with respect to her or his remarks).

I’m a fairly simple guy, and think it is a good thing if civil servants do not tell Ministers things that are defamatory and incorrect. I also think it is a good thing if there are some consequences for doing so.

This fact then means that the sole justification for extending absolute privilege to the public servant when providing information to the Minister lies in the consequentialist-based harm that may be done to that institution if public servant’s do not have the benefit of that privilege. In other words, if public servants don’t feel able to speak fully and freely with Ministers without fear of attracting subsequent legal liability, then they may hedge and trim their communications in a way that denies Ministers the information they need to fully answer questions posed to them by the House.

Obviously, this would be a bad outcome for the House as an institution. But how likely is it to occur? Remember first of all that under the Supreme Court’s reading of the law, public servants still enjoy qualified privilege to protect them when speaking with Ministers (as, indeed, does anyone who is speaking to an MP in the course of their duties). This fact means that unless a plaintiff can prove that a public servant abused that privilege by acting out of ill will or otherwise taking advantage of the opportunity, the public servant enjoys the same degree of legal protection as if the privilege was absolute. Therefore, the only speech that will attract actual liability is where a public servant sees a chance to settle some score with an individual or group that the public servant doesn’t like and gives a Minister false and defamatory information, which the Minister then passes on to the House .

 Well summarised. The fact that such civil servants have qualified privilege is sufficient in my opinion.
I suppose it could be the case that individual public servants become so risk-averse that they deliberately run the risk of sending their Minister into the House with less information than they themselves hold. But I wonder if this fear does not misread public service culture – my observation of “inside the beltway” practice is that public servants are more terrified of being the cause of a Minister’s embarrassment and wrath than anything else in this world. Furthermore, we need to remember what a public servant becoming liable for a defamatory statement to a Minister actually means in practice. The public servant won’t have to hire lawyers and worry about damages. Those will be covered by the public servant’s department. So at most the public servant will be somewhat inconvenienced by having to provide affidavits in defence of the action. And that would seem to be a risk that public servants face on a daily basis, insofar as their advice may result in Ministerial actions that are subject to judicial review and the like.
It will be interesting to see what the Privileges Committee recommends.
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The protection of parliamentary privilege

March 9th, 2012 at 10:00 am by David Farrar

In my blog at Stuff, I look at parliamentary privilege:

One of the privileges members of Parliament have is they they can’t be sued for defamation for statements they make in Parliament. This privilege has existed for hundreds of years and is generally regarded as desirable as it allows MPs to expose wrongdoing without being silenced by injunctions and lawsuits.

However, there is a great responsibility on MPs to get their facts right, and to apologise when they get it wrong. They can defame people under the protection of parliamentary privilege, and their victims have no legal recourse.

Winston Peters has a long history of making allegations under parliamentary privilege, and having the vast bulk of the allegations turn out to be without substance. I had hoped that these days were behind us, but this week we have seen two serious allegations made by Peters under parliamentary privilege.

I conclude:

Perhaps one of Mr Peters’ caucus colleagues could ask their leader whether or not he has any proof of his allegation that Mr McKenzie received free overseas travel from Deloitte. And if he is unable to provide them with the proof, implore him not to turn the House of Representatives into a Star Chamber.

Maybe iPredict could do a stock on whether Mr Peters will provide said proof of his allegation, and whether he would apologise for his allegation. I suspect both stocks would sell for under 5c.

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A bad look

July 30th, 2009 at 8:46 am by David Farrar

It is part of our constitutional conventions of parliamentary privilege that people can give evidence to select committees without fear of retribution for what they say. Therefore I regard it as a bad look to see the story:

After Bart Birch, Uaea Leavasa and Satish Prasad criticised how Auckland Central Remand Prison was run under private contractor GEO between 2000 and 2005, Mr Garrett weighed in.

“You say that you don’t want to go back to working in this environment – to the private [sector]. You’d be aware that given your submission here, you wouldn’t get offered a job anyway, would you?”

Fortunately other MPs intervened:

Other MPs were visibly disturbed by the remark and National’s Shane Ardern was quick to reassure the men that they should feel free to speak their minds. “Can I say, from my own party, you can sit here without fear or favour,” he said.

The committee’s acting chairman, Labour MP Clayton Cosgrove, added his support to Mr Ardern’s remark.

David Garrett’s comment was most unwise. You could defend it as saying he was stating the obvious, but in that case there was no need to state it. And at worst it looks like trying to warn people off criticising private prisons.

Questions at select committee should focus on the submission, the bill and related policy issues. If I made a submission arguing that (for example) Kiwibank should be sold, I would not expect to have an MP tell me that I should not expect to ever get any work from NZ Post.

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