Flavell Te Ururoa: Privilege — Consideration of Report of Privileges Committee Freedom of Speech of Members of Parliament—Court Orders 
Flavell Te Ururoa: Privilege — Consideration of Report of Privileges Committee Freedom of Speech of Members of Parliament—Court Orders 
[Volume:654;Page:4071] 
TE URUROA FLAVELL (Maori Party—Waiariki) 
: 
 Kia ora ano tatou e te Whare. When I was first appointed a member of Parliament in 2005 I never thought that part of my role would be considering the principle of comity. Yet essentially our task in the Privileges Committee over the last 3 months was to consider the constitutional boundaries as they relate to the freedom of speech and court orders. My first experience on the Privileges Committee was a relatively straightforward exercise to consider a matter regarding the Rt Hon Winston Peters—a “did he” or “did he not” issue. This present issue however was about interpreting the law and clarifying the Standing Orders. 
If one is not a lawyer it is quite an interesting exercise to listen to all the lawyers have their way with words such as “in so far as” “furthermost” “therefore after” etc. and I am afraid that in the main I had to leave the majority of the discussion to the experts. My contribution was to consider getting training for MPs on the issues having tripped myself up when discussing the raids on the Tuhoe nation over a year ago and on the implications of broadcasters and the media in general. I will give some overview on those matters shortly. 
In its most simple interpretation I have found that comity is sometimes described as the separation of powers or as previous speakers have said the desire that the legislature and courts should not intrude into areas reserved for each other. It is not as though these are new issues. The House has already stipulated in Standing Orders 111 and 112 that matters awaiting adjudication in the courts come within the terms of the sub judice rule. In effect this means that members have been encouraged to observe court orders or be accused of abusing the privilege of free speech. A case of particular interest to our report was the incident just less than a year ago when our colleague Heather Roy made statements in the House that another colleague the Hon David Parker thought constituted a breach of suppression orders and therefore was a matter of privilege. The previous Speaker ruled on 3 July 2008 that there was not a case of privilege to be answered for that particular incident but that the generic issue of the constitutional relationship of respect between the House of Representatives and the judiciary was worthy of further inquiry. 
Having gone through the process I suggested to the committee that the interpretation of freedom of speech and the constraints of court orders was something that we could all usefully have a wananga or discussion about. I think the chance to sit and consider together how this relationship impacts on our everyday work as MPs could be really useful. I suggested further that for new members in particular a workshop outlining the extent of the respect and restraint operating between the judiciary and the legislature might quickly prepare parliamentarians for understanding the role in a far better way. How does one check with the Speaker about the wish to raise an issue of privilege? Is it done in writing? When should notice be given? These are basic logistical questions that I believe need consideration now in light of the proposed changes to the rules. A key issue for example was whether any distinction should be made if a member knowingly breached a court order. A Parliament-wide workshop could be useful in order that all members would know the conditions around what might be considered contempt what might be considered likely to bring this House into disrepute and what might be involved in breaching a court order. We concluded as a committee that Standing Order 401 should be extended to include whether a member knowingly makes reference to a matter suppressed by a court order. 
Another matter that came within the terms of reference for the review was the context of reporting on the proceedings of Parliament. The increased openness the access to Parliament through web broadcasting podcasting and televised channels has made it even more important that we consider the publication of proceedings outside of Parliament. I admit to having genuine empathy for broadcasters who are doing their very best to provide an accurate birds-eye view of the day in Parliament yet could very well be flouting the rules in doing so. The Solicitor-General in his advice to the committee drew on a statement from  
Media Law in New Zealand 
 that concluded there is much greater doubt about whether the media are safe in publishing these types of statements either directly from Parliament or by way of delayed coverage. I am pleased for our broadcasters that there are specific recommendations in the report that introduce the idea that legislation should be created to deal with live broadcasts delayed broadcasts and rebroadcasts. It is also useful that the recommendations include the precautionary principle of ensuring that the broadcasts are “a fair and accurate report of proceedings in the House”. 
Finally from the perspective of the Maori Party this issue about the constitutional boundaries associated with the principle of comity between Parliament and the courts came to a head some 2 years ago in the context of the “Black Friday” raids on the Tuhoe nation which happened in the Ruatoki Valley. In this matter of extreme public interest our questions in the House were frequently shut down as being potentially in breach of court orders or in breach of privilege. As members of Parliament we have to be able to raise issues of legitimate concern to our constituency. There is no denial that the case of the raids under the so-called shadow of terrorism was of extreme concern not only to the people of Ruatoki but more important throughout the greater Waiariki electorate and indeed to Maoridom as a whole. What makes the situation even more intense is that not only was the case of particular concern in October 2007 but in the long weeks and months to follow the debate was effectively shut down because the process had been drawn out for such a length of time. We need to know if a case is held over what mechanisms are in place to guarantee the issues can benefit from exposure to the light of parliamentary scrutiny. 
These are critical issues for any political party when an event of major political sensitivity is unable to be debated because of the sub judice rules and the Standing Orders. We fully support the clarification provided for in the procedures now outlined in this report about matters awaiting judicial decision. The process of making application to the Speaker is described in full and it is now clear that the discretion of the Speaker will be called upon in matters where there is some doubt. I humbly suggest that the situation emerging out of the Tuhoe raids would have certainly constituted the exercise of particular discretion to balance the privilege of freedom of speech against the public interest in maintaining confidence in the judicial resolution of disputes. This is even more apparent when 18 months have passed yet still we appear no further along in terms of reaching a judicial resolution. 
The principle of comity the constitutional dilemmas and the application of the Standing Orders were all matters before the committee that required sufficient specialist skills to understand the full implications for Parliament as I stated at the outset. In that context I acknowledge the Privileges Committee staff—Debra Angus Catherine Parkin and Mary Harris the Clerk of the House—for their professional commitment to supporting us in whatever capacity was required. We received some excellent expert advice from Dr David Collins as Solicitor-General and also from Professor Philip Joseph Associate Professor Andrew Geddis and Tim Murphy and Tim Pankhurst from the media freedom committee of the Commonwealth Press Union. It is a real eye-opener for me in my parliamentary role that we are able to access such excellent sources of advice. I also acknowledge the chairs of the committee—the Hon Dr Michael Cullen and more recently Charles Chauvel—for their leadership as others have mentioned and all of the members of the committee for a job well done. I say in closing that when and if the committee sits again I hope that we can keep it to a “yes they did; no they didn’t” question. It will save me a hell of a lot from having to listen again to the foreign language of lawyer-speak. I say that with due respect to my lawyer colleagues. Kia ora tatou.