Finlayson Christopher: Parliamentary Privilege Bill — First ReadingText is incorporated into the Bound VolumeFinlayson Christopher: Parliamentary Privilege Bill — First Reading[Sitting date: 11 December 2013. Volume:695;Page:15486. Text is incorporated into the Bound Volume.]Hon CHRISTOPHER FINLAYSON (Attorney-General) on behalf of theLeader of the House: I moveThat the Parliamentary Privilege Bill be now read a first time. I nominate the Privileges Committee to consider the bill. This bill implements the recommendations of the Privileges Committee in its report on the Supreme Court’s decision inAttorney-General andGow v Leigh. The Privileges Committee concluded that this decision in fact narrowed the scope of parliamentary privilege. The bill returns the law to Parliament’s understanding of the privilege of freedom of speech by clarifying critical concepts and definitions. It also modernises existing legislation to make it more accessible. Parliamentary privilege is a frequently misunderstood concept and this was highlighted by the Privileges Committee in its report when it said: “Unfortunately privilege … is frequently confused with the idea of ‘privilege’ as a personal benefit for an individual.” As the committee said it was not concerned with privilege in the sense of a special benefit for a particular person; its task was to consider matters of parliamentary privilege—that is the protections applying to the House itself and to the participants in the parliamentary process.There are two key components of parliamentary privilege. They are Parliament’s freedom of speech and Parliament’s right to control its own affairs—a centuries-old principle known as exclusive cognisance. One aspect of parliamentary privilege is to provide immunity from legal proceedings for actions done and things said during parliamentary proceedings. What is not so well understood is that this immunity is to enable Parliament to do its job properly. Parliamentary privilege protects members of Parliament committees officers of the House others who support Parliament select committee witnesses and those who report on parliamentary proceedings. These protections are designed not to benefit individuals but to enable all of us to do our work as elected representatives. Privilege ensures that parliamentarians can meet legislate debate matters of public importance and scrutinise the Government without fear or favour. These are things that Parliament must do in order to represent the people of New Zealand. In that way parliamentary privilege works in the public interest for the benefit of all New Zealanders.Shortly after the Privileges Committee report was received I received a report of the Joint Committee on Parliamentary Privilege from the House of Lords and House of Commons. The introduction to that report referred to the 1999 Joint Committee on Parliamentary Privilege and made the same point in relation to the UK Parliament. Thatintroduction said: “Parliament makes the law and raises taxes. It is also the place where ministers are called to account by representatives of the whole nation for their decisions and their expenditure of public money. Grievances great and small can be aired regardless of the power or wealth of those criticised. In order to carry out these public duties without fear or favour Parliament and its members and officers need certain rights and immunities. Parliament needs the right to regulate its own affairs free from intervention by the government or the courts. Members need to be able to speak freely uninhibited by possible defamation claims.” So the same thing is said in the UK Parliament as is said in this Parliament.Privilege is a very ancient concept. This bill makes reference to the Bill of Rights 1688 which confirmed the supremacy of Parliament. As government evolved in New Zealand privilege has remained a key element of the agreed relationship between Parliament the executive branch and the courts. Article 9 of the Bill of Rights 1688 in particular provides for freedom of speech in Parliament. This underlines the independence of the three branches of government which is a basic feature of all modern democracies. It is important to emphasise that the bill before us today does not replace alter or detract in any way from article 9. What it does do is clarify and update various aspects of privilege to keep up with changing parliamentary practices and with modern media. It also brings together and modernises the current statutory reference to privilege found in several places: the Legislature Act 1908 the Legislature Amendment Act 1992 and the Defamation Act 1992. Although the bill establishes one piece of legislation to cover privilege it does not codify it. Important aspects will still be understood by reference to for example the Standing Orders and the customs and the practices of the House.Turning to the specific provisions of the bill it clarifies the scope of parliamentary privilege by defining the phrase “proceedings in Parliament”. It also provides guidance on how to interpret the key terms of “impeached or questioned” as used in the Bill of Rights. The bill will also address the specific issue raised in theLeigh case. It clarifies that advice from officials or advisers given to support parliamentary business is part of parliamentary proceedings and therefore protected by absolute privilege. The Bill of Rights states that parliamentary proceedings must not be impeached or questioned. The bill clarifies that this means that parliamentary proceedings may not be used in a court to question the motivations or draw inferences in respect of Parliament or parliamentary participants. These provisions are designed to ensure Parliament will continue to receive the free and the frank advice it needs.The bill addresses other uncertainties by clarifying the protections afforded to broadcasts and reports of parliamentary proceedings. Democracy requires the public to know what is happening in Parliament. That is why live broadcasts of parliamentary proceedings are already protected from defamation proceedings by absolute privilege. However the current statutory definitions did not anticipate new broadcasting technology such as web streaming. Electronic recording such aspodcasts can have a much longer-lasting life than traditional media. The bill therefore confirms that delayed broadcasts or rebroadcasts of Parliament are also protected by absolute privilege as if they were live broadcasts so long as they are made by order of or under the authority of the House.Reports or summaries of parliamentary proceedings are somewhat different to broadcasts. A report may be edited or packaged in a way that is misleading or inaccurate. Therefore it is not covered by absolute privilege. A form of qualified privilege currently applies in respect of defamation proceedings for fair and accurate reports of Parliament. However if it is shown that the reporting was predominantly motivated by ill will or for improper advantage privilege will not apply. Qualifiedprivilege provides a useful way of maintaining the protection of privilege to protect fair reporting on Parliament while allowing someone who has been defamed an opportunity for redress. The bill extends this form of privilege beyond the Defamation Act to all types of civil or criminal liability proceedings.The final important clarification concerns the concept of effective repetition. In the case ofBuchanan v Jenningsthe Privy Council found that a member speaking outside Parliament had endorsed or effectively repeated a statement made in the House. This approach allowed the court to consider the original statement which would otherwise have been protected by absolute privilege to determine the meaning of the statement made outside the House. This led to a concern that the courts could directly judge the quality of parliamentary proceedings which could have a chilling effect on freedom of speech and debates in the House. So the effect of the bill is to make explicit that a statement made during parliamentary proceedings is protected by absolute privilege and may not be used to determine criminal or civil liability in respect of a statement made outside Parliament. The bill will also affirm the House’s power to fine for contempt—it sets a maximum fine of $1000—and there are a number of other clarifications.So although some of matters covered in this bill may seem esoteric they are actually important parts of the foundation of good government in New Zealand. The bill affirms that Parliament’s freedom of speech continues to be protected. This ensures that Parliament can carry out its functions in debating legislation scrutinising the executive and representing electors with access to all information. I encourage members of the public and other interested parties to make their views on the bill known to the select committee.Perhaps in closing I can say this: we have dealt with a number of parliamentary matters if you like in the course of the year and I think that the time is coming at some stage for a consolidation of all legislation concerning Parliament like Canada is doing. I think that that would be very helpful to enable everyone to understand just how this place operates in a variety of ways. Certainly the Constitution Act as it is currently drafted is unsatisfactory. It is poorly drafted and incoherent and perhaps an opportunity could be given to tidy that up as well. I commend the bill to the House.