Cullen Michael: Privilege — Consideration of Report of Privileges Committee Buchanan v Jennings—Question of Privilege 
Cullen Michael: Privilege — Consideration of Report of Privileges Committee Buchanan v Jennings—Question of Privilege 
[Volume:626;Page:20893] 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 I think this is probably the most important Privileges Committee report for many years and it concerns clearly as members have said already the proper scope of parliamentary privilege and the implications of that for the workings of our kind of democracy. 
That parliamentary privilege of course is affirmed in article 9 of the Bill of Rights Act 1689 or to give it its formal title 1 William and Mary Sess. 2.c.2. passed on 16 December 1689. As I have said many times unfortunately lawyers keep repeating a mistake made by one of their own in the 18th century and at the end of my speech I might explain how that mistake arose. What article 9 does is prevent proceedings in Parliament from being impeached or questioned in any court. It is part of New Zealand law. It is a privilege jealously guarded by Parliaments for over 300 years. 
In the  
Jennings 
 case as Mr Robson rightly pointed out although what Mr Jennings said if he had repeated it outside was undoubtedly defamatory he was caught in terms of the rulings by the Court of Appeal and the Privy Council simply by the fact that he said he did not resile from his statement. This was taken to be “effective repetition” although clearly not actual repetition of the statement made in the House. So the Court of Appeal and the Privy Council ruled against Mr Jennings and in so doing despite what I have said about Mr Jennings’ statements ruled against the interests of Parliament and at the end of the day of free speech because of course the essence of arguments about free speech is not defending free speech when what is said is undeniably true and incontrovertibly so; it is defending the right of free speech of people who say unpopular things and even occasionally things that are incorrect. Even in this House on occasions we have seen attempts to shout down members whose views are not popular with the majority of those within Parliament. 
There was clear evidence of the chilling effect that that will have on free speech from the leading constitutional lawyers who appeared before the select committee. Firstly because of this as the report rightly says the court begins to directly challenge the quality of parliamentary proceedings and that is an inappropriate extension of the court’s powers in relation to Parliament. I do say however that sometimes within this House we had better be more careful about some of our comments about court proceedings and court judgments as well because this is traditionally a two-way street and not a one-way street. Secondly the judgment renders nonsensical the right of free comment within the House because in effect all it enables a member to do outside the House with safety is to say “No comment.” in response to any question. If a member of Parliament is placed in that position then it renders stupid the ability to make statements within the House and indeed is not in the interests of free debate. That chilling effect does then as Mr Carter has explained in more detail extend to public debate including debate within the media. The final point made by the witnesses to the select committee which I think was the important one was that the nature of the ruling was such that it could well extend beyond defamation to other matters and that would further add a chilling effect on the ability to operate free speech within Parliament. 
I cannot allow this occasion to pass without allowing some small piece of self-indulgence because our own statute book refers to the Bill of Rights 1688 and historians remain continually baffled as to why lawyers have kept repeating that error for now something like 250-plus years. The reason is quite simple. The bill was introduced into the English Parliament in February 1689. The fact that it is 1 William and Mary should tell people immediately that it could not have been passed in 1688 as James II would scarcely have given the royal assent to the Bill of Rights. But in 1689—indeed until early in the 18th century—the New Year did not begin until Lady Day and that is March 24. So in the old style February 1689 actually would have been reported at the time as February 1688. Somewhat lazy lawyers in the 18th century read the introduction of the bill in February 1688 and ever since lawyers have referred to it as the Bill of Rights 1688. However it was not passed until 16 December 1689 so it is incontrovertibly the Bill of Rights 1689. I hope that some day a future Government will take the opportunity via a Statutes Amendment Bill to correct that error within our own legislation.