Chauvel Charles: Privilege — Consideration of Report of Privileges Committee Freedom of Speech of Members of Parliament—Court Orders 
Chauvel Charles: Privilege — Consideration of Report of Privileges Committee Freedom of Speech of Members of Parliament—Court Orders 
[Volume:654;Page:4064] 
CHARLES CHAUVEL (Chairperson of Privileges Committee) 
: 
 I move  
That the House take note of the report of the Privileges Committee on the question of privilege relating to the exercise of the freedom of speech by members in the context of court orders.  
Last year the Hon David Parker raised as a matter of privilege statements made in the House on Thursday 26 June 2008 by the Hon—as she is now—Heather Roy. Mr Parker was concerned that these statements might be in breach of the suppression order made in the High Court sitting in Nelson on 4 December 2007. On 3 July 2008 the Speaker’s predecessor ruled that the specific question raised did not constitute a matter of privilege but instead referred to the Privileges Committee the general issue of the interplay between court orders—particularly those suppressing the free availability of information—and the privilege of freedom of speech of members of the House. The reference included the important question of the protections that exist for the reporting and broadcasting of what is said in Parliament and in parliamentary proceedings. Shortly after the referral to it the Privileges Committee of the last Parliament adopted terms of reference for its consideration of the matter. The present committee adopted those terms of reference heard evidence considered the matter and resolved at its meeting last week to report to the House. 
The work of the committee covered a number of key areas. Firstly we discussed the constitutional principle that the judicial and legislative branches ought to maintain comity in their relations and as a subset of this work we considered the much-misunderstood sub judice rule. The Act declaring the rights and liberties of the subject and settling the succession of the Crown was passed by the English Parliament in 1689 and it was renamed by that Parliament in 1896 when it passed the Short Titles Act as the Bill of Rights Act. It is beyond doubt that that Act is part of the laws of New Zealand. The position was affirmed by Chief Justice Wild in the 1976 case of  
Fitzgerald v Muldoon 
. The Imperial Laws Application Act 1988 of this Parliament refers to the legislation as the Bill of Rights 1688 and confirms that it is in force here. The preamble to the bill recites that James II endeavoured to subvert the laws and liberties of this kingdom by prosecutions in court for matters and causes cognisable only in Parliament. Article 9 of the Bill of Rights goes on to provide 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. 
So it is that members of this House and others participating in the proceedings of Parliament have a constitutional right to freedom of speech in the course of those proceedings that may not be controlled or limited by any external body but only by the authority of this House itself. In particular the courts are constitutionally limited from performing their usual role in preventing or otherwise regulating breaches of the law when it comes to what is said in parliamentary proceedings. Because of the breadth of this constitutional exception and the scope for abuse that it contains it follows that Parliament tries to ensure that the privilege of free speech is exercised responsibly. It does so via the Standing Orders and via legislation. These should embody the principle that although Parliament is sovereign in our system this does not mean that each branch of Government should wilfully or discourteously impinge on the functions of others. It is this balance that is known as the comity principle. 
An aspect of this principle is that the other branches of Government should not act in a way so as to prejudice the administration of justice in any individual case that is before a court. This is known as the sub judice rule. It applies particularly when a court has been persuaded to make an order that varies the usual position that justice is to be done openly—in other words when the court has suppressed some evidence such as the name or details of a witness. At the moment article 9 of the Bill of Rights means that such an order has no force in this House or in proceedings before a select committee except in so far as the Standing Orders and the discretion of the Speaker or the chairperson of the committee determines otherwise. We think that if a member believes that the public interest requires that member to breach a suppression order or otherwise refer to a matter in front of a court then there should remain facility for this. However we seek in our recommended amendments to the Standing Orders to make it clear that this should be exceptional as a breach of the ordinary constitutional arrangements that have evolved in this country. We also seek to make the reference subject to the discretion of the Speaker to first consider and take advice on whether the statement that is sought to be made is truly in the public interest. 
Having considered the position in relation to proceedings of Parliament we discussed whether there are sufficient protections for the reporting and broadcasting of parliamentary proceedings. In common with representatives of the media who came before us we were surprised to learn that these are inadequate. Members have absolute freedom of speech for any statements that they may make in the House. However parliamentary privilege does not completely extend to protecting the publication of records of the proceedings of the House. An amendment to the Legislature Act provides protection for “parliamentary papers” that are published by or under the authority of Parliament. The New Zealand courts have so far given a wide interpretation to the term “parliamentary papers” so by analogy they may well include information in the form of electronic documents video tape recordings computer disks or television broadcasts. But the matter is not clear and the gaps in legal protection may well mean that publishers and broadcasters could face civil or criminal liability for publishing or broadcasting in breach of a court order even if inadvertently. 
The committee considers it manifestly unsatisfactory that the broadcasting of Parliament’s proceedings under the direct authority of the House may leave the Clerk of the House or any person later authorised by the House open to legal action. We have therefore recommended to the Government that it introduce legislation to amend the Legislature Act 1908 to provide that the live and delayed broadcast of parliamentary proceedings under the authority of the House including select committee hearings should be protected by absolute privilege. The committee also considered the broadcasting and publication of extracts from a broadcast of proceedings or from parliamentary papers along with the publication of fair and accurate reports or summaries of proceedings of the House. 
Clearly the media plays an important role in providing the public with information about the business of the House. In recognition of that role some protections are already provided in the Defamation Act to allow fair and accurate reports or summaries of the House to be covered by qualified privilege that applies to delayed broadcasts of proceedings publications of fair and accurate reports of proceedings and publications of fair and accurate extracts or summaries of a report of proceedings. So the committee recommends that the Government introduce legislation to amend the Legislature Act 1908 to provide that a fair and accurate report of proceedings in the House or a summary using extracts of proceedings of the House made by any person is protected by qualified privilege. Particular issues clearly arise from the use of extracts. They can be taken out of context and timing or repetition can be manipulated in a manner that is unfair or misleading. In recognition of those issues the committee suggests that the lesser protection of qualified privilege should apply to the broadcasting and other publication of extracts of Parliament’s proceedings including select committee hearings in a manner that is consistent with the provisions of the Defamation Act 1992. In other words we recommend that the protections that are contained in the Defamation Act 1992 be made broadly consistent with those in the Legislature Act 1908. 
Finally the committee has considered the effect of the decision of a majority in the Court of Appeal and of the Judicial Committee of the Privy Council in  
Buchanan v Jennings 
. We endorse the report of the Privileges Committee of the forty-seventh Parliament as yet unactioned and the minority reasons for judgment in the Court of Appeal of Justice Tipping that that decision was wrong and excessively broad in scope. We reiterate our recommendation of the former committee’s view that the scope of that decision should be narrowed. 
Unusually because the recommendations of the Privileges Committee on this occasion relate not to a specific breach of privilege but to a wider issue I am not proposing a motion encapsulating recommended changes to the Standing Orders. Under Standing Order 6 a Standing Order may be amended or revoked only by a motion with notice. If I were to move the committee’s suggested amendments by way of opening the debate on this report I would effectively negate Standing Order 6 since there would be no notice of the proposed amendments. Instead I understand that the Government intends to move a motion incorporating the suggested Standing Orders changes so I have moved only that the House take note of the committee’s report. I look forward to the Government promoting the sessional orders and the legislative amendments recommended and I commend the committee’s report to the House.