Fairbrother Russell: Privilege — Consideration of Report of Privileges Committee Buchanan v Jennings—Question of Privilege 
Fairbrother Russell: Privilege — Consideration of Report of Privileges Committee Buchanan v Jennings—Question of Privilege 
[Volume:626;Page:20903] 
RUSSELL FAIRBROTHER (Labour—Napier) 
: 
 The recommendation of the Privileges Committee does not really offer any clear or silver bullet to members of Parliament who speak outside the House following comments made inside the House that subsequently may prove to be untrue and thus defamatory. What can be said outside the House that does not adopt the words spoken in the House and thus becomes able to be litigated is not clear. I think that if we look at what “effective repetition” and defamation really mean we can get a clearer guide on the effect of the Privileges Committee report. 
“Effective repetition” is a key concept to explain the effect of publication. Every time a defamatory comment is published that creates a separate cause of action. So when someone goes outside the House and adopts the defamatory words that he or she said in the House it is the comment made outside the House that is the subject of the publication and thus the defamation. The way that the Privileges Committee unfolded and came to its very prudent decision was simply by saying that the words used by Mr Jennings by themselves amounted to nothing that could amount to defamation. They could be found to be defamatory only by going to the words used in the House which Mr Jennings adopted by his comments made outside the House. Any court case—as in fact did happen—would be a litigation as to the truth of what was said in the House. 
That brings into play the privilege of Parliament. It is one of the few absolute privileges we have in our law. It has been suggested by some members in this debate that this decision of the committee usurps to parliamentarians a right that no other citizen has. Privilege in Parliament is an absolute privilege but it is not an absolute privilege that sits on MPs; it is an absolute privilege belonging to the institution. Whilst MPs are members of the institution then the privilege extends to them. But it is a privilege that protects freedom of speech in this House and thus the freedom of expression challenge and robust debate. 
Of course there is a tension between that and the equally important rule of law and principle that no man’s reputation will be sullied without some factual basis. Each of us is entitled to go about our business without having our reputation attacked. The law of defamation essentially protects that. As the advisers to the committee identified there is a very uneasy tension between the right to free speech and the right to a good reputation. The right to free speech was considered to be of greater public interest when it came to the parliamentary situation because in Parliament members are entitled to raise any matter they are interested in and to make any allegation they think will advance the matter they are arguing. They should do so without fear of subsequent recrimination or litigation. Of course effectively the media convey to every New Zealander what is being said in Parliament. It is part of that process that the media will engage with a member of Parliament and seek some comment. 
 Of course every time a member of Parliament is engaged by the media every person who votes tries to make an assessment on the veracity or reliability of that member. If that then puts a member in the position whereby he or she prevaricates or tries to avoid the issue that member is in the very difficult position of having made a statement that he or she believes should be made in the House but that can then reflect badly on his or her public persona outside the House. 
If the member remembers that the “effective repetition” is to protect the second publication that is outside the House and if the member does not elaborate on what that publication was but simply says that he or she accepts or adopts what was said in the House then this rule will protect that second publication under the rule of “effective repetition”. It is a very restrictive finding of the select committee. It is a finding that goes beyond the law of defamation—it extends to criminal law and perhaps to other civil liabilities—but it is still a very restrictive law. I have some difficulty in grasping the concept which has been enthusiastically bandied around this Chamber that it should extend to courts of law. A witness in any proceeding is supposed to be a witness as to fact not an advocate. We as members of Parliament speak as to fact and opinion but essentially we are advocates for our cause. So we must take positions whereby we break eggs we break ground and we push the envelope in the effort of challenging what has been going on or of leading to a greater insight into what really should happen. 
That is a different position from a witness in a court of law. I would hesitate before we gaily say that this also applies to a court of law because a witness as to fact should not feel any obligation when confronted by media outside to make any statement about what was said under oath in court. It may well be that it could extend to that but I think the committee’s recommendation should be looked at very carefully before it is extended to a court of law. 
The real beneficiaries of this recommendation are not parliamentarians but all New Zealanders. This is because the immediate beneficiary is the press. Members of the press can approach people outside Parliament and speak to them about matters in Parliament and enable the public to see how those people respond to that—whether they are prepared to stand their ground or prevaricate or resile from the matter. If members remember that they are not elaborating on what they have said in Parliament or repeating out of Parliament the words used but that they are just confirming their position then they are committing no greater sin that will lead to any defamation and the public at large can debate issues that are often overlooked not heard and not read about by what is actually said in Parliament. That gives the press an opportunity to link in the public space that which is discussed in Parliament. 
Of course that is how voters can decide who they should elect to Parliament. This is the extent to which I disagree with my friend from the Greens Metiria Turei when she advocates a code of conduct. The privilege that we all have as members of Parliament carries with it a responsibility. One cannot have a privilege without a responsibility. But a responsibility is a personal thing and we make our own decisions as to how we accept that responsibility. The public at large can make their decision on how we conduct ourselves under the privileges afforded to us as members of Parliament by what they read in the media and watch on TV. This is a channel for the media to portray to the reading public and the television public what goes on in this House. It is a method for those who vote to assess the veracity and character of those who appear in the House. 
Although I would hesitate to limit the right of free speech in this House I think the sense of responsibility that most of us carry means that we can speak to what has been said in the House without elaborating and the matter can be taken to the public at large by way of this recommendation of the Privileges Committee. 
The experts advising the committee spoke of the tension between the right to a good reputation and the right of free speech. That is fundamental to this country. It is also fundamental to the separation of powers as referred to by other speakers. The separation of powers is important because courts cannot attempt to curb the way Parliament does its business. It is not a question of the supremacy of Parliament versus the supremacy of courts. It recognises that what is said in this House can be said without hindrance and control except that of good sense and a sense of responsibility. 
I endorse the recommendation of this committee. It proposes to amend the Legislature Act rather than the Defamation Act. It does that because it will enlarge the privilege to cover acts other than those of defamation. But it does not give members of Parliament free licence to act irresponsibly in the House and it does not give them free licence to elaborate outside the House on any untrue statements that may have been made in the House under some guise of extended privilege. All of this is a sensible carry-over to the second publication—that is when speaking to the media—of what is being said in the House. As long as what is said is not elaborated on then the “effective repetition” remains privileged. 
This is a very thoughtful recommendation of the Privileges Committee. It was well assisted by three experts who are acknowledged as such in this country. I believe this will lead to a sensible amendment and will be a shining light in our Commonwealth countries—our common law countries.