Finlayson Christopher: 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 VolumeFinlayson Christopher: 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:11067. Text is incorporated into the Bound Volume.]Hon CHRISTOPHER FINLAYSON (Attorney-General):I moveThat the House take note of the report of the Privileges Committee on a question of privilege concerning the defamation actionAttorney-General and Gow v Leigh. This is a very important piece of work that has been undertaken by the Privileges Committee since September 2012. We finally reported to the House just a few days ago. It raises some very important questions arising out of a decision of the Supreme Court in September 2011.Throughout this debate we are going to hear comments about parliamentary privilege but it is important to emphasise what this word “privilege” means and what it does not mean. Parliamentary privilege is not there as a special benefit for a particular person. Parliamentary privilege is there to enable this Parliament to conduct its functions. It is vitally important for New Zealand’s constitutional health. I sometimes think it is unfortunate that the term “privilege” is used because it does have a connotation of it being for the benefit of the individual. Far from it. It is just as legal professional privilege is there to enable clients to be upfront with their lawyers so that lawyers can properly represent them. But the idea of a privilege contains the connotation of some kind of favour. The Privileges Committee and this Parliament are not concerned with parliamentary privilege in that kind of characterisation; they are concerned with privilege to enable this place to run properly in the interests of the New Zealand democracy.Another term that is going to come up in the course of this report is what exactly is a proceeding in Parliament. I think for too long there has been vagueness about the metes and bounds about what a parliamentary proceeding is. We say in this report that the time has come for a parliamentary privilege piece of legislation that addresses that particular question. They are the high-level issues that were confronted by the Privileges Committee as it undertook its task as I said between September 2012 and June of this year.The background to the proceeding which ultimately went to the Court of Appeal is set out in the report of the Privileges Committee pages 8 and 9. I do not need to go through it at any length. Most members know the background. Ms Leigh was contracted by the Ministry for the Environment as a communications adviser on climate change issues and in 2006 she was told that another communications expert a certain Clare Curran was going to be appointed to oversee the strategy on which Erin Leigh was working. There were a number of questions in the House concerning these appointments. A Mr Gow from the Ministry for the Environment would have gone across to the Beehive office of the then Minister for the Environment given that particular Minister a written briefing and orally taken him through the particular issues and the Minister gave answers in the House. In due course he apologised for some of the statements he made but in any event the critical issue here is that proceedings were commenced by Erin Leigh against the Attorney-General in respect of the Ministry for the Environment and against Mr Gow the public servant alleging that the statements that were made in the House constituted a republication of the statements that he had given to the particular Minister.Then there was what could be called interlocutory warfare for a number of years. There was an application to strike out parts of the statement of claim. Eventually it found its way to the Court of Appeal which dismissed the appeal of the Attorney-General and concluded that statements made by an official to a Minister for the purposes of replying to questions for oral answer were not themselves parliamentary proceedings. So that very critical issue of what is a parliamentary proceeding arose.The court rejected the submissions of counsel for the Speaker John Pike that the proper test was whether the occasion in question was reasonably incidental to the discharge of the business of the House. They also disagreed with some statements made by David McGee then Clerk of the House in his book about the nature of the particular privilege. They preferred to rely on the basis of necessity as being an essential underpinning for parliamentary privilege in New Zealand. With the greatest respect what I think they did was they referred to some of the cases on barristers’ immunity public interest immunity and so on which have been pared back over the years and they have simply applied a test of necessity to parliamentary privilege.As a result of this very important albeit interlocutory decision the Speaker indicated that he wanted the Privileges Committee of Parliament to look at the issue and provide some advice to the House. That is exactly what we did.I think the process undertaken by the committee was exemplary. I particularly want to recognise the Deputy Clerk of the House and Catherine Parkin the clerk of the committee for the excellent work that they did in assisting the committee. We not only wrote to a number of legal experts in New Zealand like the President of the Law Commission Sir Grant Hammond we spoke to Professor Philip Joseph and we also spoke to the State Services Commission. I think as a result of that we got a pretty good idea of where we needed to go. Importantly we also undertook some inquiries overseas. We were very grateful to receive advice from the Standing Committee of Privileges from the Australian Senate the Standing Committee of Privileges and Members’ Interests in the Australian House of Representatives and the United Kingdom House of Commons and I think we had some answers from Canada. All in all the comments and the advice that we received were very helpful indeed.And so as I say the committee met and it has decided that the time has come—and the conclusions are set out in the report itself—for Parliament to bite the bullet and pass parliamentary privilege legislation that addresses some of these questions that have hung around for too long frankly. What exactly is parliamentary privilege? What exactly is a proceeding in Parliament? If we can address these questions then I think we will be doing this institution a big favour.It is not as though the issue has not been on the agenda for many years. I know that David Caygill when he was in Opposition went to the time and trouble of preparing a draft bill on the subject but it went no further. The Privileges Committee has looked at this issue from time to time but I believe that the time has come for Parliament to deal with this matter once and for all. We say that the Australian legislation of 1987 provides a good model.In conclusion let me say this: I saw today that theNew Zealand Herald has said that we are striking back at the Supreme Court. No we are not. We are recognising that as between the various branches of Government there has to be comity we have to show respect for the court system which is why there are very stringent rules on the sub judice rule and matters such as that. But likewise we say that it is a two-way street and the committee respectfully says that on this occasion we think that the courts have got it wrong. They have misinterpreted what exactly parliamentary privilege is all about. It is a hugely important question—not for individual members of Parliament but for the institution and ultimately for the parliamentary democracy in which we work and live. So may I conclude by once again thanking the officials and my colleagues on the committee for what I think is a very important report.