Mapp Wayne: Privilege — Consideration of Report of Privileges Committee Buchanan v Jennings—Question of Privilege 
Mapp Wayne: Privilege — Consideration of Report of Privileges Committee Buchanan v Jennings—Question of Privilege 
[Volume:626;Page:20906] 
Dr WAYNE MAPP (National—North Shore) 
: 
 The heart of this issue is undoubtedly freedom of speech and democracy. Although it would be very easy for the issue to be characterised as parliamentarians claiming some privilege for themselves beyond all else it is in fact about the protection of the nation’s freedoms. 
Parliamentary privilege exists for two basic reasons. The first reason is that if it did not exist courts would be able to intervene in the proceedings of parliaments on a regular basis. I ask the simple question of how on earth this Parliament would be able to conduct its business if that were the case. It would set up a continuing clash and contest between Parliament and the judiciary whereby each was trying to judge the other all the time. That would not be good for our democracy. 
The second reason is that parliamentary privilege enables parliamentarians to deal with issues of public interest and to discuss the major issues in a forthright and direct manner. Frankly sometimes that discussion will be defamatory. I had only to listen to Metiria Turei who was defamatory in calling another member a racist. 
Metiria Turei 
: I raise a point of order Mr Speaker. I did not at any time use the word “racist” in the speech that I just gave. I would like the member to apologise for that misrepresentation. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: I refer the member to Speaker’s ruling 35/3 and Standing Order 106(1). If she is claiming misrepresentation there is a time and place to do it. 
Dr WAYNE MAPP 
: If those words were said then quite clearly that would be defamatory. Yet the member would certainly not expect to be sued for that and indeed neither should she. This is a robust Chamber and people have to have freedom to speak in it. 
But more than that sometimes not every single statement that a member of Parliament might say will be accurate. Even if a statement is broadly accurate one has to be wrong only in some minor aspect to be in breach of the laws of defamation and of course that would mean the issues could not then be discussed. I acknowledge for instance the whole issue around the wine box and the difficulties that Mr Peters found himself in in regard to that issue. Without those documents being tabled there would never have been a commission of inquiry. We have only to recollect the number of court proceedings that were undertaken to try to stop that process. I say that because I myself in terms of legal advice was quoted in that report some years ago so I am quite conscious of the importance of that issue. 
 A fundamental truism is that the law should not be so difficult that one has to be an expert in defamation law to be safe. Surely that is sensible and I would like to refer to Professor Burrows who stated in the report: “It is harmless to say ‘Yes I did say that’ but not apparently to say ‘Yes I did say that and I still believe it.’ ” The first statement would not have breached the  
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 rule; the second statement would have. The expert in defamation law would of course understand that difference but a large number of people would not understand it at all. 
As Professor Burrows said when the courts provide such fine distinctions it makes it extremely difficult not just for parliamentarians but also for members of the media to operate. When one is asked whether one stands by a statement one has just made it is a natural response to say yes. It is a normal thing for anyone to say and the law should not trap people for saying normal things or for simply acting as in the normal course of events. That is the problem that the Privileges Committee was fundamentally confronted with and that is why we had to deal with it. 
The solution is to change the Legislature Act. Members might question why there should be a change to that Act and not to the Defamation Act because after all the Defamation Act would cover courts local authorities and all commissions of inquiry and the like where privilege would be normally expected. Our Privileges Committee recommendation is essentially a recommendation for the Government. It has to draft law and put it before this House to be debated in a select committee. It may be that through that process and after a full debate and discussion people will conclude that parliamentary privilege ought to be extended. In the space and process of the Privileges Committee we were not able to deal with that issue directly but through the legislative process—through the select committees themselves—we will be able to deal with it. 
I mentioned that it is not just a protection for parliamentarians but that it is also a protection for the media. I note that just 2 or 3 weeks ago a radio journalist tried to trap a member of Parliament into saying that he stood by what he said in the Chamber. It was put to Mr Peters three times on National Radio but I also note that he was far too wily to be caught out by that ruse. What surprised me was that the journalist was attempting to trap not just Mr Peters but also his own employer—and indeed himself—because that would have been the effect of the repetition and I suggest that Radio New Zealand probably has somewhat deeper pockets than Mr Peters has. So the media themselves will be protected now because they will be able to ask reasonable questions like the common-sense question: “Do you stand by what you said in the Chamber?”. 
Rt Hon Winston Peters 
: It was fair range. 
Dr WAYNE MAPP 
: Fair range—well there we are. [ 
Interruption 
] That is interesting. So it is a broad protection of the public. 
The final group to be protected is the group referred to by Mr John Carter—members of the public. Every member of this Parliament knows full well that large numbers of the public come to select committees. Some people say some quite amazing things particularly in the course of inquiries or petitions. Which members of the public if asked by journalists outside whether they stood by what they said would not say yes? It would be the natural human course to say precisely that. The change to the Legislature Act will protect the citizens of New Zealand who exercise their democratic rights. 
I think that this is one of those issues—and we have had a lot of them in recent times—in which once again Parliament and the courts have a bit of a tussle going on and members of Parliament find themselves having to defend their privileges. The only one way in which they can do that is through legislation. The courts being the independent branch of Government that they are obviously have their methods through their decisions. We have seen plenty of examples in recent times where quite a tense constitutional tussle—if I can put it that way—is happening between our courts and Parliament. I guess that this is not the last time we will have to deal with that issue but at some point there needs to be a better understanding of the relationship between our superior courts and our Parliament in order to reduce that level of constitutional conflict. We need to think very seriously about how we go about that.