Parker David: Privilege — Consideration of Report of Privileges Committee Freedom of Speech of Members of Parliament—Court Orders 
Parker David: Privilege — Consideration of Report of Privileges Committee Freedom of Speech of Members of Parliament—Court Orders 
[Volume:654;Page:4073] 
Hon DAVID PARKER (Labour) 
: 
 One of the most important privileges that this House has if not the most important is the privilege of free speech. We can talk about any issue in this Parliament and we can do it without threat of being sued for defamation outside this Parliament. However it is important to reflect on the fact that freedom of speech is a privilege of this House; it is not my privilege as a member of Parliament. It is the privilege of this Parliament rather than the privilege of each member of Parliament. I make that point because when we consider issues such as the division of powers and responsibilities between the judiciary and Parliament we have to remember that it is Parliament’s rights that we are protecting into the future. We are also protecting the rights of the judicial branch as a group first and foremost rather than as individuals. 
We have heard wise contributions today from all parties about the fact that in order to maintain the balance between the judicial arm of Government—the judiciary—and the parliamentary arm of Government it is important that we respect each other’s roles. That balance can be upset when one side or the other goes too far in the exercise of its rights and stands on the toes of the other branch of Government. The risk we take is that if we as a Parliament do not properly regulate our conduct then we actually invite the sort of response from the other branch of Government—the judiciary—that we would not want. So one of the things we have to do in order to jealously guard our right to freedom of expression which is so important to us is to make sure we do not abuse that right. 
We do that through the Standing Orders. Our current Standing Orders are inadequate in that regard because as was shown last year one can make a statement in breach of a suppression order—for example in the case of someone’s name being suppressed for ever. The case in point here was where someone was on the witness protection programme. Members of this House including myself the Hon Nick Smith and others thought that the identity of that person had been suppressed by the courts and that accordingly his or her name ought not to be mentioned in this House. It transpired that there was a misunderstanding as to what the effect of the court order was. None the less if our understanding of the court order had been right a member who had mentioned the name of the person on the witness protection programme in breach of the court order would not have been in breach of our Standing Orders. That is wrong. 
We need to consider why it is that sometimes people’s identities are protected. It is because the courts have found that injustices can be caused if this does not happen. In the case I have mentioned the injustice could be that the person on the witness protection programme might be identified. We have only to think about why that person might be on the witness protection programme in order to realise how serious the consequences could be. I am not talking about this particular case but if for example that person had turned Crown’s evidence in a serious drug trial against very evil people then his or her life might be at risk. Such people might be no angels but none the less the consequences of their becoming publicly known in terms of their acts on behalf of the Crown in bringing people to justice could be such that they could be subject to torture or death in an extreme case. 
Those are very real consequences that the courts grapple with from time to time and in their wisdom they occasionally say that the identity of people should be suppressed. When they do that we in this Parliament have a duty to respect that decision. That is what our Standing Orders ought to provide for and currently they do not. So the Standing Orders ought to be changed so as to make it clear that it would be a breach of the privileges that we hold in this House—a breach of our privilege of freedom of expression—to use our rights of freedom of expression to name a person in that situation. That would be wrong. 
There can always be exceptions to these rules and one always has to allow for exceptions. On most occasions the political point can be made in terms of bringing the Government or the police to account without actually naming the name. The point at issue can be resolved satisfactorily without naming the name. But occasionally the name can be appropriately used despite a court order to the contrary. I can envisage in very rare circumstances that there could be a public interest in favour of members of this Parliament being able to name the name. That is why Parliament would be going too far if it decided to give away its privilege of freedom of speech rather than to limit it. 
So we have not given it away. If this proposed change to the Standing Orders is brought into effect the right of freedom of expression—the privilege of members of the House to say anything—would exist but it would effectively be monitored by the Speaker so that if a member wanted to breach a court order or make reference to a court action that is not yet complete he or she could go to the Speaker in advance and ask whether the reference could be made on that particular occasion. The Speaker could say yes or no and we would rely upon the Speaker to make wise decisions on this matter; we have confidence in the Speaker to make those wise decisions. 
There are other remedies for members of Parliament. A member could having received an adverse decision come to this House and actually breach privilege by making that statement. That would be the wrong thing to do as a matter of practice but it could happen. So there is an additional layer of protection. If a member did that he or she would be at risk of censure by the Privileges Committee and unless there was a fantastic justification the member ought to be appropriately censured by the Privileges Committee. 
A couple of other issues were thrown up through this inquiry. One of the issues I raised when I looked into the issue was that it seemed to me that the repetition of matters through modern media raised new issues that perhaps had not been thought of when the original absolute protection was granted to  
Hansard 
. I did not foresee some of the lacunae—the gaps in the current law that provide for absolute privilege to  
Hansard 
—that leave it in doubt as to whether the likes of the podcasts one can pick up from Radio New Zealand National or through other means of repeat or delayed broadcast are properly protected. That puts the Officers of Parliament at risk. It also puts the media who are relied upon to re-report these proceedings at unnecessary risk. That issue should be clarified by changes to the relevant legislation. 
I refer again to the issue of freedom of speech in respect of suppression orders. There is a misunderstanding on the part of many in the media that if we say something in Parliament the media are absolutely privileged in terms of their repetition of it. That is not the case. It is the privilege of Parliament; it is not the privilege of the media. If the media choose to repeat something that is said in Parliament they are entitled to qualified privilege but not absolute privilege. That is the case in respect of defamation proceedings. In respect of contempt proceedings in a court they are not protected at all. So if members of the media were to repeat a name that had been suppressed by the court but mentioned in Parliament they would not be protected at law for repeating the name in a newspaper or in any other medium—and neither should they be. There is no change proposed to that law. 
I refer back to the underlying philosophy that I talked about at the start. I referred to the balance between freedoms and the responsible use of those freedoms and I said that if one branch of Government be it the judiciary or Parliament goes too far it can expect a reaction from the other branch. This same logic needs to be applied in the context of  
Buchanan v Jennings 
 which was a Privy Council decision that supported the majority decision of the Court of Appeal. It found that effective repetition outside this House of what had been said inside the House was not protected by parliamentary privilege. It is a nonsense in the eyes of most people that a member can be sued for defamation if he or she says something in this House and then when asked while walking along the corridor whether he or she still stands by the statement says “Yes.” or “I don’t resile from that.” 
It seems to be an unusual interpretation of the rights of freedom of expression that we enjoy in this House to say no more than “I stand by what I said.” or “I don’t resile from it.” yet be subject to the threat of defamation. That was a step too far in the opinion of the Privileges Committee and that balance needs to be drawn back to restore the position to that which was commonly understood prior to the decision in  
Buchanan v Jennings 
. 
The Labour Party will be supporting all of the recommendations of the Privileges Committee.