Carter John: Privilege — Consideration of Report of Privileges Committee Buchanan v Jennings—Question of Privilege 
Carter John: Privilege — Consideration of Report of Privileges Committee Buchanan v Jennings—Question of Privilege 
[Volume:626;Page:20892] 
JOHN CARTER (National—Northland) 
: 
 I want to talk on this issue not from a parliamentary point of view—and of course I am not a lawyer—but from a layman’s point of view and to talk about the possible impact it could have on the freedom of speech of the general citizen of this nation. That is to my mind the most important issue. The issue is not about parliamentarians actually although it does impact on us. If that were all this issue was about it would be a much less difficult issue for us to deal with. But the fact is that this decision could well impinge on the freedom of speech of a citizen who wishes to come and make a comment to Parliament in a select committee under what is considered to be a privileged situation. Indeed it is important for us to recognise that this decision actually reaches out beyond Parliament and may well impact into the courts. That to me is also awfully important—that this decision could impact both on our parliamentary system and on our court system. 
I will give an example relating to a member of the public—and let us remember that most people are not as familiar with matters of privilege litigation and defamation as members of Parliament are. A person could well be called as a witness in a court case and go into the court to make the statement: “I absolutely and genuinely believe this is what I saw.” in a murder case for example. The Mona Blades murder case is a classic one that has come up again recently. A witness could tell the courts what he or she saw. That witness could then step outside the court and a reporter could ask whether the witness stood by what he or she said in the court. Of course the witness would not deny what he or she said in court. The witness would not say that no it was a lot of baloney a lot of nonsense or a lot of silly hoo-ha. The witness would say: “Yes I stand by what I said. I do not resile from what I said.” 
Having made that comment in the context of a court case the precedent has been set by this decision of the Privy Council to allow the accused person—in particular if the court case then gets thrown out and it may be thrown out if there is not enough evidence to convict the person who has been accused—to then say: “That person defamed me because he or she made a public statement about his or her comments outside the court.” The reporter of course would have taken the note that the person did not resile from what he or she had said. Under this precedent it would be deemed that the person could well have repeated what he or she had said in the court publicly outside of privilege. The person who was accused but who was found to be not guilty because there was not enough evidence in that case then could potentially have the right to have the person who gave evidence up for defamation. It worries me that that then starts to impinge if you like on the right of people in court to give evidence without fear or favour and nothing we do in this Parliament must ever stop that from happening. It is absolutely imperative that people have the right—and indeed know that they can do this without any concern—to give evidence fully and freely as they believe they saw events happening in a court case. 
Similarly the public must have the right to come before Parliament and give a point of view on an issue whatever it may be. It may well be again that a person who gives evidence in a select committee may not have the situation right but from his or her perspective that person genuinely believes that what was said was absolutely true—from his or her perspective. Then when the person goes outside a reporter may ask: “Mr Jones did you say X Y and Z?” and he may say: “I don’t resile from what I said in the select committee.” Again under this decision that person could be deemed to have repeated what he said in the select committee. Such a person’s privilege under this case is now gone and then if he or she has made a statement that is defamatory—maybe innocently because people in this land are not as familiar with the laws of defamation as members of Parliament are—he or she could well be liable to be sued. That could well mean that the citizens of this nation are suddenly fearful of coming before Parliament to give a point of view. It could actually impinge on their ability to give this Parliament the knowledge that we need in order to make decisions. 
It goes even one step further than that of course. We then start to ask about the fourth estate and its role in repeating or writing about a statement made by somebody in a select committee who then makes the statement: “I don’t resile.” If that person has been deemed to have repeated the statement he or she made in a select committee or in a court case then surely it follows that the representative of the fourth estate who made the statement: “I don’t resile.” and then talked about the story has actually repeated the story outside a privileged area as well. Logic has it that it would be so. Therefore the media could possibly also be liable for defamation. Although the fourth estate and journalists particularly are well aware of the issue around defamation—and they often have far more resources than the average citizen to fight against it—nevertheless we have to be mindful that we do not want to curtail their ability to report the activities of this Parliament. We do not want to limit the fourth estate’s ability to have the right to report what happens in a court case although there are always some restrictions deemed necessary by the court of course. 
But generally this issue to me is about an absolutely fundamental and basic tenet of our democracy: the freedom of speech. If it were about only Parliament and parliamentarians then quite honestly it would be an issue that we may well have to live with. But it goes well well beyond us the 120 parliamentarians. This issue goes to the fundamental right of a citizen of New Zealand to be entitled to come and give a point of view in this Parliament on a particular issue or matter or to go before a court and give evidence as that person genuinely believed he or she saw matters without fear or favour. That is why I think it is absolutely imperative that this Parliament today corrects what has happened as a consequence of the Privy Council’s decision.