Graham Kennedy: Privilege — Consideration of Report of Privileges Committee Freedom of Speech of Members of Parliament—Court Orders 
Graham Kennedy: Privilege — Consideration of Report of Privileges Committee Freedom of Speech of Members of Parliament—Court Orders 
[Volume:654;Page:4068] 
Dr KENNEDY GRAHAM (Green) 
: 
 I rise to convey the Green Party’s support for the report of the Privileges Committee on its inquiry into freedom of speech in the context of court orders. I state at the outset that we support all of the committee’s recommendations. Given that this country is genetically disposed to downplay issues of a constitutional nature I believe that we were well advised to explore this fundamental issue and that the recommendations before us demand careful attention. 
The issue rests centrally on the House’s absolute privilege of free speech. Our law in this respect rests on the Bill of Rights Act which was adopted by the English Parliament in 1689 and implemented in statute law in this country by means of the Legislature Act 1908 and the Defamation Act 1992. Absolute parliamentary privilege was originally designed to protect the members of the English Parliament from the King’s tyranny. Three centuries later—and on the other side of the world—we retain the principle in the name of the public interest rather than the taming of unbridled royal power. In today’s world we value absolute privilege as the measure of the health of a democracy rather than of the fever of the monarchy. Yet some of today’s citizens remain sceptical of its far-reaching effect. It follows I believe that such extraordinary freedoms so distantly anchored in time and space to the original perhaps warrant even greater diligence today than may have been required in those dramatic and formative times. 
Those endowed with privilege as the generations go by whether it be wealth power or freedom are increasingly disposed to claim inherited right rather than acknowledge enduring responsibility. The laws of human nature apply to this House as acutely as anywhere else. As members of our country’s Parliament we are not immune to the siren call of unlicensed freedom or power. To allay any possible doubt on this matter we need only recall  
Fitzgerald v Muldoon 
 barely three decades ago. The Chief Justice was then moved to declare a Prime Minister’s actions unlawful for having violated article 1 of the 1689 Bill of Rights. That article states that the “pretended power of suspending laws … by regal authority without consent of parliament is illegal.” That the New Zealand judiciary was forced to reach back into English law in defence of fundamental liberties of 20th century Aotearoa offers a sobering reminder of the fragility of our constitutional structures. Let no one take these matters lightly. 
The recommendations in the report carry us forward in securing the constitutional relationship between the legislature and the judiciary in this country and in refining the relative protections accorded to the House and others in society. Of overarching importance is the principle of comity between Parliament and the courts as has been noted. The relationship between the legislative and judicial branches of Government secures the constitutional stability of any country. Yet the separation of powers is not as clearly developed in our parliamentary system as it is in presidential republics at least as it pertains to the relationship between the legislature and the executive. Indeed in one area there is I contend in passing an imperfection in the constitutional clarity of our political structure. The conflation of two fundamentally different roles those of legal administrator of and legal adviser to the Government in the single person of the Attorney-General presents a serious derogation from that principle to deleterious effect on our democracy. But at least the separation of role between our legislature and judiciary is clear and discrete. It is important that nothing be done to bring that into doubt. The principle of comity requiring mutual respect and restraint between the two branches must never be allowed to corrode. That underlying principle guided all of the deliberations of our committee. 
With that in mind I turn now to some of the more specific issues in the report before us. The first issue relates to the sub judice rule. It was clear to the committee that the relevant Standing Order does not currently reflect the accumulated wisdom of Speakers’ rulings in this House. It does not refer to the two strands of the rule but only one—namely prejudice to the trial of a court case; it is imperative that members not say anything that might influence its outcome. The Standing Orders currently omit explicit reference to the principle of comity so the committee recommends its inclusion. The Green Party supports that recommendation. 
The committee was of the view that a wilful and serious breach of the sub judice rule could be considered a contempt of the House. Opinions divided over whether the Standing Orders should explicitly state that. Some members harboured a concern that doing so might imply a diminution of absolute privilege. It was suggested that the Standing Orders Committee might revisit this matter. For my own part I form the view that absolute parliamentary privilege should not be left today on the farthest perimeter of freedom. If the exclusive cognisance of this House concerning members’ actions remains the sole method of self-regulation then the broader public interest is surely to be found in explicit and clear constraint strictly applied by the collective upon the individual. Only then will public confidence in the integrity of this institution be objectively secured. 
The second issue is the question of effective repetition. The committee recommends that the Legislature Act be amended to ensure that absolute privilege be extended beyond statements in the House to include effective repetition outside. No member would thus be liable to civil or criminal proceedings for effective repetition. This would restore the legal understanding before the  
Buchanan v Jennings 
 decision in order to remove the so-called chilling effect on free speech in the House and in public debate. This protection would also be extended to persons directly participating in or reporting on parliamentary proceedings. Although the Green Party supports extension of that protection we believe that once again such far-reaching privilege through a process of self-endowment simply imposes a commensurably heavier responsibility upon members to meet the standards of behaviour expected of us by the public. 
Thirdly I address the broadcasts of this House’s proceedings. For better or worse absolute privilege does not currently extend to protecting the publication of records of proceedings of the House.  
Hansard 
 let us recognise is the only official report. Broadcasts whether on television or radio are not official yet they provide a verbatim record identical to  
Hansard 
 including statements that may be defamatory or constitute contempt. Under current law there appears to be no protection for broadcast or for publication in the print media. But the suggestions that televised proceedings be subject to a time delay and that the Speaker be empowered to technically mute offending words do not appeal to us as the answer. We did however regard it as particularly unsatisfactory that for example even the Clerk of the House remains in theory vulnerable to legal action for the broadcasting of Parliament’s proceedings. The Green Party supports the recommendation that the Legislature Act be amended to extend absolute privilege to cover live broadcasting of Parliament’s proceedings including in select committees and that delayed broadcasts under the authority of the House also enjoy absolute privilege. 
Fourthly and finally I address the media’s reporting on House proceedings. At present the Defamation Act extends only qualified privilege to the media for extracts reported of proceedings. This applies to delayed broadcasts fair and accurate reports and fair and accurate extracts. It seems that some in the media erroneously believe that they are protected by absolute privilege as long as their reports are fair and accurate. That is not so. We were therefore of the view that qualified privilege for fair and accurate reports of all proceedings be extended to all persons. The Green Party supports this proposal as well. 
On balance the recommendations comprise an important step forward in clarifying both legislation and our parliamentary Standing Orders as they pertain to privileges covering the behaviour of members of this House Officers of Parliament and the media reporting on proceedings. The Green Party is disposed to fully support them and to recommend such action by this House and by this Government. Thank you.