Graham Kennedy: Privilege — Consideration of Report of Privileges Committee Question of Privilege Concerning the Defamation Action Attorney-General and Gow v Leigh Consideration of Interim Report of Privileges Committee Question of Privilege Concerning the Agreements for Policing Execution of Search Warrants and Collection and Retention of Information by the NZSISText is incorporated into the Bound VolumeGraham Kennedy: Privilege — Consideration of Report of Privileges Committee Question of Privilege Concerning the Defamation Action Attorney-General and Gow v Leigh Consideration of Interim Report of Privileges Committee Question of Privilege Concerning the Agreements for Policing Execution of Search Warrants and Collection and Retention of Information by the NZSIS[Sitting date: 12 June 2013. Volume:691;Page:11070. Text is incorporated into the Bound Volume.]Dr KENNEDY GRAHAM (Green):The Green Party concurs with the Privileges Committee’s report on the question of privileges concerning the defamation actionAttorney-General and Gow v Leigh . The House is invited to note our disagreement withthe Supreme Court decision in that case. Our disagreement concerns particularly the court’s use of the test of necessity as the means for ascertaining the scope of Parliament’s privilege of freedom of speech. In remediation the committee invites the Government to introduce a parliamentary privilege bill into the House. Such a bill would clarify for the avoidance of doubt the nature of parliamentary privilege in New Zealand. This is an unprecedented move I think in New Zealand’s constitutional history and I am pleased that we have come to the place we are at.Allow me to make a few ancillary comments by way of support. This exercise I suggest has both a legal and a political dimension to it. On the legal merits it might be queried—not least by members of our judiciary—by what authority members of our legislature would presume to judge the validity of a Supreme Court decision. It is a fair question. The answer I think lies not in any self-assumed level of knowledge and insight on the part of legislators. Few among us are qualified lawyers. I am not one. Among the few there is I think not one complete authority in constitutional law. So it is not any competitive notion of superiority in the trade that prompts the legislature and its Privileges Committee in the first instance to consider this constitutional move. It is in fact the obverse: the notion of cooperation between the two branches of Government in finding the constitutional balance between them. It rests on an underlying notion that the political branch—that is the legislature—and the legal branch—that is the judiciary—must maintain a seamless if differentiated unity in the public interest.It is perhaps with a touch of irony the principle of comity that drives our response to the Supreme Court decision. The notion of mutual respect and restraint requires that in the occasional event that one branch always with the best of intent encroaches in the opinion of the other marginally too far across that threshold of mutuality then it is the right and responsibility of the other to restore the balance. That mutuality works both ways. In this case it is the legislature responding to the judiciary. In another case the judiciary is responding to the legislature when it makes its views known that a member’s bill currently before the Justice and Electoral Committee requiring a Register of Pecuniary Interests of Judges is unnecessary albeit well intended and could venture too far into the judicial realm even though such a thing exists in certain other jurisdictions.Both responses from one branch to the other require mutual respect. That is the underlying basis of constitutional stability the glue that holds society together on a civil basis. And so it is that the Privileges Committee has been careful to lay out its reasoning underpinning its view of the wrongful application of the doctrine of necessity in the case ofAttorney-General and Gow v Leigh.It is careful to note that such a critique rests on the advice of expert legal opinion some of the nation’s top constitutional lawyers members of the Law Commission andParliamentary Practice in New Zealand  which is perhaps the ultimate authority on the subject in this country. Although the reasoning and the conclusions and recommendations in our report are of course our own responsibility we are careful to ensure that they directly rest on and derive from such advice that we received. The issue is too important to do otherwise. And so we cite the general principles of parliamentary privilege—namely freedom of speech and exclusive cognisance. We recall the basis for parliamentary privilege in New Zealand. We acknowledge the relationship between Parliament and the courts and the need to balance parliamentary privilege with common law rights. We considered the appropriateness of applying the doctrine of necessity to parliamentary privilege and whether as a consequence the same test would apply to other privileges.We convey our concern that the approach of the Supreme Court in this respect appears to narrow the protections of the Bill of Rights article 9. It confuses we think parliamentary privilege which is an absolute privilege protected by article 9 withqualified privilege. Much depends in this respect on the meaning of the phrase “proceedings in Parliament”. The court’s decision we feared moves the interpretation of this phrase in New Zealand away from the interpretation followed in other comparable jurisdictions and could have a chilling effect on the ability of the House to receive information from advisers. Indeed we go further as the Hon David Parker has said and question whether it is even within the jurisdiction of the courts in this country to challenge the extent of parliamentary privilege in the manner done inAttorney-General and Gow v Leigh.This dare I say it plumbs the depths of constitutional reflection as far as I think it is possible to go. In advancing the observation members of the committee intend no disrespect and we trust that members of the judiciary accept that assurance.So much for the legal dimension; there is also the political dimension of such a far-reaching foray into constitutional law for in the final analysis it is the people the true source of all sovereignty who must decide on the relationship between their various branches of Government. To adapt an observation of the Law Commission in commenting on the pecuniary interest issue neither the judiciary nor the legislature exists in isolation. They are institutions in a particular society. Their persons must have the respect and faith of the communities they serve in order to be effective. The court of public opinion supersedes all others.On that matter I have only one observation to make. It is of paramount importance that the public understand the true meaning of the phrase “parliamentary privilege” as the Hon Chris Finlayson has noted. This does not mean undue or unearned material benefit for members of Parliament; it is almost the reverse. It means the protection of their freedom of speech and in this case that of officials advising them for the sake of liberty and democracy which is the inherent right of the people they represent. If this is clearly understood there should be no problem expecting the people to understand why this Parliament has been so moved why the Speaker felt compelled to refer the matter to the Privileges Committee on the first parliamentary day after the Supreme Court’s decision why the committee has laboured so long and so carefully and why its recommendations are so far-reaching. But if there is any doubt on the part of the public about this we would do well to consider a change of phrase. We could use the phrase “parliamentary protections” rather than “parliamentary privileges” if it were to make the critical difference in the political context. I am aware of the weight of tradition that supports the current phrase but there are two meanings to the word “privileges” and one seems to get lost in the static.The Green Party concurs with the report of the Privileges Committee onAttorney-General and Gow v Leigh  and commends its recommendations to the House.