Finlayson Christopher: Parliamentary Privilege Bill — Second ReadingText is incorporated into the Bound VolumeFinlayson Christopher: Parliamentary Privilege Bill — Second Reading[Sitting date: 22 July 2014. Volume:700;Page:19346. Text is incorporated into the Bound Volume.]Hon CHRISTOPHER FINLAYSON (Attorney-General):I move That the Parliamentary Privilege Bill be now read a second time. I want to begin by endorsing what the deputy leader of the Labour Party said about the excellent work done by the officials because they really did do a tremendous job on this bill. I particularly acknowledge Debra Angus. I think in her we have as Mr Parker said a foremost Commonwealth authority on some of these difficult issues. I also acknowledge John Pike QC who has probably conducted more litigation in this area than any other lawyer in the Commonwealth.I also acknowledge the assistance provided by the submitters all of whom gave very helpful submissions to the committee. I acknowledge David Cochrane for the Legislation Advisory Committee and the helpful submissions and reports received from overseas Parliaments including the Joint Committee on Parliamentary Privilege of the House of Lords and the House of Commons. Although that committee recently considered that extensive codification is not required in the United Kingdom at the present time it concluded that legislation should be used only where absolutely necessary to resolve uncertainty or in the unlikely event of Parliament’s exclusive cognisance being materially diminished by the courts. The bill recognises that in New Zealand we have actually now reached that point.Before turning to the bill I just want to say something about the importance of the issue. Parliamentary privilege is not about giving a licence to members of this House to defame outsiders without having to suffer the consequences. Such a cynical view of parliamentary privileges probably to be expected from some in the community—and I can just about read now some of the portentous editorials and opinion pieces on the subject that can be expected to be produced any day now. I just want to say they are wrong. I support what the report of the committee says. Parliamentary privilege is in fact one of the building blocks of our democracy; it is the cornerstone of an effective Parliament and protection of parliamentary privilege safeguards democracy itself. It ensures that we the people’s representatives can debate and deal with the issues of the day freely and frankly without fear of coercion or punishment and without concern that matters of accountability will be adjudicated on by bodies outside the House. It ensures our democracy remains robust and strong.It is also important to emphasise three key points: firstly that parliamentary privilege belongs to Parliament not its individual members; secondly that others who interact with Parliament such as the media and members of the public or officials may also benefit from the existence and the protection of parliamentary privilege; and thirdly—and this is very important for all of us—that with these privileges come obligations. We must be circumspect in the use and application of these privileges. We have got to be mindful of their source and purpose when we invoke them.As can be seen from a cursory reading of the bill we have extensively restructured it to make it easier to interpret easier to navigate. Instead of two parts one dealing with substantive provisions and one dealing with savings provisions related amendments and repeals there are now in fact five parts. Part 1 deals with preliminary provisions. What we have done is recast the purpose clause in clause 3 into a main purpose clause and subsidiary purposes. That is there for all to see.Clause 3(1) sets out the main purposes of the bill—that is to reaffirm and clarify the scope and extent of parliamentary privilege as it applies to the House its members and committees and to ensure adequate protection from civil and criminal liability for communication of and documents relating to proceedings in Parliament. Yes indeed they are high-level statements of the principles but they were not so clearly and cogently expressed in the original clause. Clause 3(2) sets out the subsidiary purposes to help it achieve the main purposes. I will speak about them a little later on.Then what we have done is insert new clause 3A and that stipulates that the bill has to be interpreted in a way that promotes its main and subsidiary purposes and importantly that it must be interpreted in a way that promotes the principle of comity. Comity requires that the separate and independent branches of Government the legislature and the judiciary show mutual respect and restraint in the other’s sphere of influence. This is not a legislative innovation because this principle of comity has long been recognised. New clause 3A emphasises the importance of understanding this constitutional context when dealing with questions relating to parliamentary privilege or proceedings in Parliament.Then we come to new Part 1A. It is the very heart of the bill. Clause 6 sets out the purpose of parliamentary privilege—that is the privileges immunities and powers of the House are exercisable to uphold the integrity of the House as a democratic legislative assembly and to secure the independence of the House the members and the committees in the performance of their functions.Clause 8 of the bill as introduced broadly followed section 16 of the Australian Parliamentary Privileges Act 1987. But what we have done is work to make this provision clear simple and easy to understand. That of course is very important when one is considering a major constitutional piece of legislation like this. We have recommended changes for a new Subpart 2 of Part 1A of the bill to separate the key components of clause 8 into eight separate clauses. We have also recommended changes to simplify and modernise the language.What will happen is that these clauses still broadly follow section 16 of the Australian Act. They do not replace but declare the effect of article 9 of the Bill of Rights 1688 which states: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament:”.We had an interesting discussion about some of the terminology and whether or not it could be updated but after some deliberation the committee suggested that the bill continue to reflect the original language of article 9 and this is reaffirmed by clauses 8A to 8H. These provisions do not directly override or amend article 9; rather they sit alongside it. So although clauses 8C to 8F make clear what is intended by impeaching or questioning in relation to a proceeding in Parliament the bill does not limit the full extent and the richness of the meaning of the Bill of Rights 1688 which is one of our most important constitutional documents.Clause 8B is an extremely important clause because for the first time I think we actually try to define “proceedings in Parliament” for the purposes of article 9 in the Bill of Rights. It is important to note the committee recommended changes to ensure that proceedings include matters that relate to the “transacting of reasonably apprehended business”. It is also made explicit that necessity is not—I emphasise that it is not—the appropriate test to apply when determining what may be a proceeding in Parliament.The changes recommended by the committee make it clear beyond any doubt whatsoever that the reduction in the scope of parliamentary privilege resulting from the decision in Attorney-General and Gow v Leigh is reversed. I quote again from the committee’s report: “Our proposed definition recognises that much of the vital business of Parliament is transacted away from the floor of the House or in reasonable anticipation of parliamentary business and it is critical that privilege apply to such proceedings.” The necessity test is with the greatest of respect utterly misconceived. “We consider the advice provided to Ministers in preparation for reasonably expected questions in the House”—as occurred in the Leigh case—“are proceedings in Parliament under this definition.”Let me also say something about another case that went off to the Privy Council after arising out of something here: Buchanan v Jennings. That was a defamation action against an MP who after making a statement in the House was said to have effectively repeated it when he said outside the House that he did not resile from the statements made in the House. The case established that where such a statement was made it was an effective repetition and that the proceedings of Parliament could themselves be used in evidence. In its 2013 report the Privileges Committee recommended the abolition of the doctrine of effective repetition and this was included in the bill as introduced. What we have done here is recommend changes to clause 8C including the addition of new paragraphs (d) and (e) to prevent proceedings in Parliament from being relied on to prove or disprove facts necessary to establish liability in court or otherwise being used to resolve support or resist court proceedings.The bill as introduced also included a statement in what was clause 10 that effective repetition statements were protected by absolute privilege as well as establishing an evidential barrier. The committee recommends removing all provisions relating to absolute privilege and relying on a strengthened evidential barrier against the courts using proceedings in Parliament.Part 1B further simplifies the framework for protecting the broadcasting and publishing of proceedings in Parliament. The new clause 15 replaces clauses 11 to 13 and 15 to 16 of the bill as introduced. It provides for a stay of court or tribunal proceedings that have been brought on the basis of a proceeding in Parliament or of a document related to a proceeding in Parliament communicated under the authority of the House such as broadcasts made under the authority of the House. Subpart 2 of Part 1B deals with the qualified immunity available as a defence to proceedings based on fair and accurate reports of proceedings in Parliament. Of course being a qualified immunity it will not be available where a defendant was motivated by bad faith or ill will.Time prevents me from dealing with the remaining parts so I will leave that to other members of Parliament to address but I simply say this in conclusion: parliamentary privilege stands as an independent and vital part of our constitutional arrangements. What this bill does is address incremental infractions on that constitutional principle over the years and affirms the principles that help ensure a strong democracy. I commend the bill to the House.