Parker David: 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 VolumeParker David: 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:11069. Text is incorporated into the Bound Volume.]Hon DAVID PARKER (Labour):Can I begin by thanking the Attorney-General for his chairing of the Privileges Committee. I thought it was a very considered approach that was taken by the select committee as he has outlined. We garnered information from the Law Commission and from constitutional experts from Commonwealth jurisdictions and other parts of the world including Professor Joseph. We came to the view that the decision of the Supreme Court was wrong on this occasion. We do so with respect. We are careful in the choice of language that we use but we are firm in our view that the Supreme Court has got it wrong on this occasion.The privileges of Parliament go through a rather convoluted route but in the end are founded on the same principles of privilege that are afforded the United Kingdom Parliament pursuant to article 9 of the Bill of Rights 1688. It took a while for New Zealand to get to the position that those were also the privileges of the New Zealand Parliament and the history of how the New Zealand Parliament came to have those same privileges is set out in detail in the report. I do not have time to go through that.Suffice it to say the privileges of the New Zealand Parliament in respect of parliamentary privilege are the same as those of the House of Representatives in the United Kingdom where article 9 of the Bill of Rights provides “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.” It is a very very important principle and it is one of the ways in which we avoid conflict between Parliament and the courts.There will always be a grey line as to what the end of parliamentary jurisdiction is and what the limit to the jurisdiction of the courts is. I am a person who thinks that that grey line between these two spheres of democracy should never be specifically defined because it is impossible to do so with a particularity that would cover all eventualities. At one level I like the greyness of that line which enables both of those venerable institutions to push against the other where one goes too far. I think that I like the fact that the courts can push against abuses by Parliament where Parliament goes too far. I think back to the time of the courts responding to some of the excesses of the executive at the time of the Rt Hon Robert Muldoon when the courts pushed against the executive in a way that they had not previously because the exigencies of the time made it appropriate to do so.However on this occasion I think that the courts have got it wrong because they have imported this new test of necessity in assessing whether parliamentary privilege is as broad as it was until the Supreme Court decision was laid down. I for one have never accepted the principle that the Supreme Court was within jurisdiction to make that ruling because its jurisdiction does not go so far as to limit the privileges of Parliament. It can appropriately say that there are occasions that fall outside the privileges of Parliament. We have had instances of that in the United Kingdom where some of the behaviour of parliamentarians over there in respect of their personal expenses were justiciable and they were appropriately found not to be covered by parliamentary privilege because they were not part of a parliamentary proceeding. But this case is different. Here we have the Supreme Court trying to introduce a new legal principle that limits the privileges of Parliament—in particular the extent of what is a parliamentary proceeding in respect of in the facts of this case question time.The effect of the Supreme Court decision was to say that it was not necessary for Mr Gow to have absolute privilege in respect of his statements because they were a parliamentary proceeding and to find that on the basis of this newly introduced doctrine of necessity all that was necessary was for him to have the benefit of qualified privilege. We at the Privileges Committee heard evidence from Professor Joseph and from the Hon Sir Grant Hammond amongst others to say that that writing down of theprivileges of this Parliament was inappropriate and that it will have a chilling effect on the frankness of advice from officials to Ministers as they prepare for question time.We have very very low levels of corruption in New Zealand. One of the ways that we keep that freedom from corruption is having the ability of this Parliament to get information for question time when the Government’s conduct is being questioned which could include accusations of corruption or incompetence. With Government officials advising Ministers for question time there is a very strong public interest that they can be completely without risk of suit if they say things that are defamatory of people because these things are defamatory if you allege outside parties to be corrupt. Those statements ought to be able to be made to a Minister of the Crown as that Minister prepares for question time.We have seen very litigious behaviour in New Zealand recently in respect of some of the finance company fallout. We have seen Mr Hotchin and others—and I can say this in this Parliament protected by absolute privilege—sue people in defamation including Brian Gaynor who wrote an article in the newspaper alleging that there was poor practice on the part of Mr Hotchin and others in Hanover Finance and that they have profited handsomely privately. You can see that those sorts of accusations once made by Brian Gaynor have got him caught up in very complex litigation and you can see that that would have a chilling effect on the media.Well if those sorts of questions were being asked of Ministers I want officials within the ministries to actually make those sorts of statements to Ministers if they believe them to be true. I do not want them to have the risk of facing defamation proceedings by the likes of Mr Hotchin or others who have got very deep pockets and who are very keen to use their rights at law in order to try on occasions to gag criticisms. That was the effect in my opinion of the Supreme Court decision.As I have said previously I think the Supreme Court went beyond its jurisdiction when it did this and so I actually do not accept that the decision inAttorney-General and Gow v Leigh  from a principle point of view is binding on Parliament or was effective at law. But there is no way to fix that other than through legislation. We do not have contempt proceedings where we drag people whom we disagree with before us in Parliament and then lock them in chains in the dungeons; we actually have a civil way of resolving these issues. The most practical way through this as the Attorney-General has said is through legislation that defines parliamentary proceedings in a way that includes the advice of officials like Mr Gow to Ministers as they prepare for question time.There is not time in this contribution to make reference to theBuchanan v Jennings case which was also raised again with us other than to say that the view of the committee was that prior committees were right when they said that effective repetition ought not to give rise to a suit in defamation as opposed to defamatory statements themselves being repeated outside the House which of course are defamatory. That rule exists for the protection not just of members of Parliament but also of the media in case people think that we are being self-interested in that regard.This Parliament has shown considerable comity for the courts in recent years. It has changed its Standing Orders to make it more difficult for members of Parliament to breach suppression orders. Although we have the right to do so with our absolute privilege we take care to respect the decisions of the court. And on this occasion we think that the court has gone too far the other way and that the appropriate way to remedy this is through legislation.