Robson Matt: Privilege — Consideration of Report of Privileges Committee Buchanan v Jennings—Question of Privilege 
Robson Matt: Privilege — Consideration of Report of Privileges Committee Buchanan v Jennings—Question of Privilege 
[Volume:626;Page:20890] 
Hon MATT ROBSON (Chairperson of the Privileges Committee): 
 I move  
That the House take note of the report of the Privileges Committee on the question of privilege referred on 21 July 1998 concerning  
Buchanan 
 v  
Jennings 
.  
The Privileges Committee has many matters referred to it and all are important but this matter I would suggest to the House is possibly more important than a number of others because it deals with a fundamental issue of the House and that is the question of free speech in the House the protection of that free speech and what should be the responsibility of members outside the House. 
The question of free speech in terms of the New Zealand Parliament is often built around article 9 of the Bill of Rights which was passed in the latter period of the 17th century in England. Dr Cullen will explain whether it was 1688 or 1689— 
Hon Dr Michael Cullen 
: 1689. 
Hon MATT ROBSON 
: —but it has been there for quite some time and flowing from that has built up the privilege that has meant that in the New Zealand House of Representatives what a member says even if it could be actionable for defamation outside is privileged and no defamation action should take place. 
In the case of  
Buchanan 
 v  
Jennings 
 it is possibly useful for this House—in fact I would say that it is useful for this House—just briefly to look at how that arose and why the matter then came before the House. In 1998 Mr Jennings a member of the ACT party in this House made reference to officials of the Wool Board and they considered that what he had said was defamatory. When he went outside the House he was asked by reporters basically whether he stood by his statement and he used the words: “I do not resile from the statement.” He did not say any more; he did not say any less. The matter was taken by the people concerned to be defamatory and it went to the High Court. At that stage the leader of the ACT party the Hon Richard Prebble went to the Speaker of the House and submitted that in his opinion there was a breach of privilege—the breach of privilege being that a member of the House was being sued for defamation for something that he had said in the House. Members should bear in mind that at that stage there was no repetition of the words “in the House”—nothing more than “I stand by my statement.” The Speaker referred the matter to the Privileges Committee in 1998. This case was not like  
Jarndyce  
v 
 Jarndyce 
 in  
Bleak House 
; it did not go on for decades but it did go on in terms of legal action for 6 years. In 1998 the Privileges Committee decided it would wait until the legal action had been finished. It finished in 2004 which is when the present Privileges Committee took up the matter. 
The Privy Council upheld the judgment of the High Court of New Zealand and the Court of Appeal that the matter was actionable even if a member only said: “I stand by my statement.” One judge at the Court of Appeal Justice Tipping dissented and upheld the view—which is largely the view of the academic experts who submitted to our committee and I will name them in a moment—that the privilege as had been understood before the various court actions was that merely saying that one stood by a statement did not make it a matter that could be actionable. 
The report I believe is very very clear on the key issues and I will move straight to the recommendation then mention some of the key aspects of the report. The recommendation is from the whole committee: “The Privileges Committee recommends that the Legislature Act be amended to provide that no person may incur criminal or civil liability for making any oral or written statement that affirms adopts or endorses words written or spoken in proceedings in Parliament where the oral or written statement would not but for the proceedings in Parliament give rise to criminal or civil liability.” That was the recommendation of Professor Joseph which was adopted by the committee. The two other legal experts who gave advice on this issue were Professor Burrows who is well known for his work on defamation in particular but also is a legal expert on constitutional matters and Mr Geddis of Otago University. All three were in unanimity that it was a privilege for the greater public good and that for constitutional reasons that should stand. 
The key issues are set out on page 5 of the report and the first issue that Parliament should become apprised of is that what is being looked at is whether the courts should adjudge parliamentary proceedings. It is a very longstanding constitutional provision that there is separation between Parliament and the courts. Historically if we go back to the Tudor period I believe the courts were often seen as the instruments of the King. The struggle was between Parliament as the representative of the people—or at least at that stage in the nascent parliamentary democracy that was developing the very small class of people who could vote; it took it upon itself to represent everybody else as well—and the King. It was a very fierce struggle. There was nothing academic about it. For instance King Charles II taking exception I think to the Speaker of the time paid a group of ruffians to slit the Speaker’s nose when he stepped outside the House from one end to the other. Members of Parliament thought that that was something they did not want to happen all the time and that they would prefer to have their free speech protected both inside and outside Parliament. 
We have moved on since then and we have developed wider democracy universal suffrage and the role of the media which is important. But the key issue is that the constitutional provision in New Zealand is that the courts will not then adjudicate on the proceedings of Parliament just as Parliament is not adjudicating on what happens in the courts how decisions are arrived at etc. 
The effect on free speech itself had to be taken up by the Privileges Committee because what has evolved is a doctrine of “effective repetition”. It is a fiction and much of the law of course is built on fiction. Just as a company although not really a person is considered a person because it helps to say it is a person similarly what the court has held is the fiction that although one did not say outside Parliament the words that are taken to be defamatory they would be taken as then allowing the court to say that well the actual defamation was what was said inside the parliamentary Chamber and it is going to look at those words. Once the court looks at words said inside the Chamber it is taking part in and evaluating the merits or otherwise of the debate inside Parliament. 
We could give a more current example. Yesterday a New Zealand citizen was claimed by a member of Parliament to be somebody who was connected to the murderous Saddam Hussein regime. That was said inside Parliament. If the member who said it then stepped outside Parliament and talked about it that could be seen to be actionable. If for instance a press statement is issued that repeats those words and it is found to be actionable the person then can have under this doctrine the right to sue for defamation. So it is a matter of degree; it is a matter of whether the words are repeated whether they are actionable. So it is very important to members of Parliament. 
Without this proposed amendment there can be a chilling effect on debate. The media too if they carry the “effective repetition” can be sued as well and become a party to the defamation. What it means in effect is that members of the media if they follow up on a member’s statement and ask whether the member stands by the statement—because the public by then are interested—and ask whether the member has any more evidence etc. they can be also “effectively repeating” what was said in Parliament. On page 14 of the report—I do not have time to read it out—Professor Burrows has helpfully set out how journalists could be drawn into this. 
Finally I wish to say that the Privileges Committee deliberated long and hard but not I would say as members of Parliament looking after themselves. That is why three academic experts were brought in—so that we could have the benefit of advice on this matter from people outside Parliament with expertise in constitutional matters.