Dalziel Lianne: Privilege — Consideration of Report of Privileges Committee Freedom of Speech of Members of Parliament—Court Orders 
Dalziel Lianne: Privilege — Consideration of Report of Privileges Committee Freedom of Speech of Members of Parliament—Court Orders 
[Volume:654;Page:4075] 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I rise too to support the report of the Privileges Committee and in doing so I also wish to compliment both the former chair the Hon Michael Cullen who was very keen to see the issues raised in this report resolved by the House and Charles Chauvel who has taken up the chair’s role on the retirement of Dr Cullen. Having listened to Mr Chauvel’s contribution to this debate I believe that the committee has chosen a worthy successor. I am not reflecting on anything other than my own background in law and speaking as someone who has been on the Privileges Committee for over 15 years when I say that I am pleased that a lawyer again chairs the committee. 
I know that the chair wanted to acknowledge all of the people who have served on the committee both during the original referral of the question of privilege and currently. Members who served on the committee after the referral of the question to it during the last Parliament but who no longer sit as members of Parliament are the Rt Hon Winston Peters and Russell Fairbrother. Hone Harawira sat as a member of the committee until 8 November 2008 and members who have served on the committee throughout the process are the Hon Gerry Brownlee the Hon Wayne Mapp and the Hon Simon Power. Mr Power of course chaired the committee until 8 November last year. Members not already mentioned but who are members of the current committee are the Hon Murray McCully the Hon David Parker who has just resumed his seat and Dr Kennedy Graham. We have also heard from Te Ururoa Flavell and David Garrett. 
I am also sure that the House as a whole wants to acknowledge the very valuable assistance provided to the committee by Mary Harris Debbie Angus and Catherine Parkin and by the Solicitor-General Dr David Collins. I place on record special thanks to Professor Philip Joseph of Canterbury University one of my old lecturers and Associate Professor Andrew Geddis of the University of Otago. Members might also note that the committee heard evidence from Tim Pankhurst and Tim Murphy from the New Zealand section of the Commonwealth Press Union and I think that that was a very valuable contribution for what they gained from it as much as from what we gained from it. 
Charles Chauvel 
: How little they knew. 
Hon LIANNE DALZIEL 
: How little they knew—as my colleague interjects at my side. 
I will briefly comment on the issue that brought this matter to our attention. There is no question that the Hon David Parker was justified in referring to the Speaker a statement that may have been a breach of a suppression order. As it turned out it was not but I think that the Speaker correctly ruled that the particular matter could not be regarded as tending to impede or obstruct the House in the discharge of its function. I say though that if the member concerned did believe she had been breaching a suppression order then that is something we ought to reflect on. If a media outlet wants to avoid a suppression order it could simply use a member of Parliament to breach that order in the House to publish the proceedings in the House and circumvent the order. Would an MP collude with the media in this way? Someone looking for publicity might be tempted. The risks of this occurring are simply too great so I strongly support the Privileges Committee report where it speaks of the need for the sub judice rule to be restated within the Standing Orders and also for the relationship of comity between the House and the courts to be addressed. 
I thought that the aside from ACT member David Garrett was unfortunate as any dictionary will confirm that the method of pronouncing the words “sub judice” is a matter of taste. It is equally pronounced “sub ju-di-kay”. It is simply a matter of taste; both pronunciations are catered for in the two dictionaries we have checked since that rather unfortunate statement was made. 
The current Standing Order is not sufficiently well articulated to express what it is intended to do. In fact with a quick look at that particular Standing Order one can see immediately why there is a problem with it. Standing Order 111 states that “Subject always to the discretion of the Speaker and to the right of the House to legislate on any matter matters awaiting or under adjudication in any court of record may not be referred to—(a) in any motion or (b) in any debate or (c) in any question including a supplementary question—if it appears to the Speaker that there is a real and substantial danger of prejudice to the trial of the case.” Well that is a very difficult matter for a Speaker to respond to in the middle of a sometimes heated debate. Therefore the proposal within the Privileges Committee report to replace that provision with one that enables the individual concerned who is wanting to raise the particular matter in the House to refer the matter to the Speaker for consideration for the exercise of his discretion that he continues to have under new paragraph (1) of Standing Order 111. The new wording that is proposed is that “In exercising his or her discretion the Speaker—(a) balances the privilege of freedom of speech against the public interest in maintaining confidence in the judicial resolution of disputes and (b) takes into account the constitutional relationship of mutual respect that exists between the legislative and judicial branches of Government in the risk of prejudicing a matter awaiting or under adjudication in any New Zealand court including one awaiting sentencing.” I think the change that will apply to the Speaker for the exercise of that discretion is a much more preferable situation to one that is exposed to considerable risk as I believe the current wording of the Standing Order allows. 
As others have said freedom of speech is an important privilege that the Speaker claims on our behalf from the Governor-General after each general election it is something that the House jealously guards it is something that belongs to the whole House and it is not something that ought to be circumvented. I believe that entering into an arrangement with a journalist to circumvent a suppression order would actually be an intolerable abuse of that privilege. That is why I believe that the approach an individual MP would have to make to the Speaker would considerably minimise and possibly even remove the risk that the media would even approach an individual MP to have the sub judice matter referred to in Parliament. 
The recommendations to the Government to amend the Legislative Act 1908 updates the law which some of those appearing before the committee already considered existed to protect them. I have already mentioned that in respect of the Commonwealth Press Union. Its members had made the point to us in the committee that they sought to have qualified privilege apply as it did in an existing way. But when in fact we were provided with some information to back that up we found that absolute privilege did not exist nor did the qualified privilege to the use of certain proceedings and reports. I am glad that this has also represented an opportunity to resolve these protections that rightly apply for those who are reporting proceedings. There is absolute privilege for the modern technology that essentially does what the Hansard Office does and also qualified privilege for the use of proceedings in reports. 
Finally I am very pleased to add my weight to the recommendations to address  
Buchanan v Jennings 
. I believe that this is something we ought to have addressed earlier and it was the recommendation of a previous Privileges Committee report to this House. I have felt for a long time that the decision was not incorrect—of course I would not say that—but it was unfair. Its result was unfair because effective repetition—for example if asked whether one stood by the report or statement one had made in the House whether one was prepared to resile from it or not or simply one stating that one stood by something one had said in the House—is to me a choke on the freedom of speech. I believe that it is important we take the opportunity we have been given in terms of debating this report and adopting its recommendations and to finally resolve what I believe acts as an unnecessary fetter on what is an important privilege. It is one that this House as I said before will always jealously guard. 
Motion agreed to.