Privilege — Television New Zealand—Action Taken Against Chief Executive Consideration of Report of Privileges Committee 
Privilege — Television New Zealand—Action Taken Against Chief Executive Consideration of Report of Privileges Committee 
[Volume:634;Page:5952] 
Privilege 
Television New Zealand—Action Taken Against Chief Executive 
Consideration of Report of Privileges Committee 
SIMON POWER (National—Rangitikei) 
: 
 I move  
That the House take note of the report of the Privileges Committee on the question of privilege referred on 16 February 2006 on the action taken by Television New Zealand in relation to its chief executive following evidence he gave to the Finance and Expenditure Committee. 
 The Privileges Committee has now reported back to the House on the question of the action taken by Television New Zealand (TVNZ) in relation to its chief executive following evidence he gave to the Finance and Expenditure Committee. Members will recall that this report is the second report. It follows an interim report presented to the House on 5 April 2006 in which the Privileges Committee found and the House agreed that TVNZ had committed a contempt. We recommended and the House agreed that a written apology be made by TVNZ and that for the first time in well over a hundred years a fine be imposed on the company. As I said the House adopted both those recommendations. 
There were however some remaining issues as a matter of principle and direction that the Privileges Committee has sought to clarify for the House. For example in the interim report the Privileges Committee questioned whether it was realistic for the House or for a select committee witness to assume that no consequences to a relationship would arise from a witness appearing before a select committee particularly if that witness was giving prejudicial or critical evidence. We suggested that it was a matter of balance and that it would be necessary for the House to develop some principles and guidance for use in those situations. 
Accordingly the Privileges Committee recommends to the House that Standing Order 399 be amended to include the following in the considerations that are relevant in deciding whether to invoke the power to punish for contempt: firstly the conduct of any person taking part in parliamentary proceedings; and secondly the nature of any action taken against any person on account of that person’s parliamentary actions—in particular whether that individual was disadvantaged or dealt with otherwise than he or she would be in accordance with the privilege that accrued to him or her at the time the evidence was given to a select committee. Further the Privileges Committee recommends to the Finance and Expenditure Committee that in 12 months’ time it review progress made by the State Services Commissioner in providing guidance to the boards of Crown entities and State-owned enterprises on their responsibilities in their relationships with Parliament. 
Before I deal with the last recommendation I will just pause and say that the Privileges Committee’s strong view was that people taking up appointments with Crown entities and State-owned enterprises did not have sufficient training or guidance in how to deal with institutions of Parliament. In particular there was insufficient training in giving evidence before select committees and in issues relating to contempt privilege and the like that could arise by way of that evidence being tendered. In fact as the Privileges Committee report tabled yesterday shows many of those matters are not covered in any detail at all at the time those appointments are made. The Privileges Committee did spend some time considering whether such guidance should also apply to the senior management of those agencies but we leave that matter for further consideration. 
 Important for the Government the Privileges Committee also recommends that the Government revise its guidelines—as supplied for example in the  
Cabinet Manual 
—regarding witnesses who appear before select committees. The guidance should make it absolutely clear that pressure must not be placed on individuals to deter them from giving evidence and that action cannot be taken against them as a direct consequence of their giving evidence to a select committee. 
By way of background we reviewed a number of privileges reports about the disadvantaging of witnesses in jurisdictions such as the United Kingdom Canada and Australia. We endorse the following common themes: firstly the protection of witnesses before a select committee is a fundamental aspect of parliamentary privilege secondly the freedom of witnesses to give evidence must be absolute and thirdly the protection of witnesses who appear before parliamentary committees is the single most important duty of a Privileges Committee when determining possible contempts. 
It has long been recognised that if parliamentary inquiries are to be carried out effectively witnesses who give evidence to the House or a committee have to be protected against adverse consequences they may suffer as a result of giving that evidence. That point is well understood and there is a long-held rule of law dating back to the Bill of Rights 1688 to provide immunity for parliamentary proceedings from legal liability. The absence of recent case law on the issue in New Zealand or overseas suggests—and this is important—that it is well understood that evidence given by a witness before a select committee cannot be questioned in a court of law. If Parliament is to hold witnesses liable or accountable for that parliamentary evidence that is a matter for Parliament not the courts. However that principle can as we say in our report fly in the face of reality. The House must decide on a case by case basis whether a particular action or omission has the tendency directly or indirectly to obstruct or impede the House in the performance of its functions. 
 Disadvantaging a witness on account of his or her evidence before a select committee may amount to a contempt but whether it does so requires consideration. It is on that basis that the Privileges Committee has recommended to the House that that be done by adding to Standing Order 399 a reference to the factors that the House will consider in determining whether conduct constitutes a contempt. 
It is worth emphasising one or two further points. Evidence given to a select committee cannot form the sole basis for an action against the person who gave it. The Privileges Committee looked carefully at that point and I make the following statement in support. The evidence might act as a prompt for an employer to establish a separate inquiry into the conduct of the staff member concerned but any action against the staff member should be based on the results of that separate inquiry not on the evidence given before a select committee or before Parliament. That was a fundamental point that members of the Privileges Committee worked hard to clarify starting on the basis of the interim report. 
Those recommendations are made to the House and as I said I move accordingly. 
Hon LIANNE DALZIEL (Minister of Commerce) 
: 
 I want to take a brief call on the final report of the Privileges Committee on the action taken by Television New Zealand in relation to its chief executive following evidence he gave to the Finance and Expenditure Committee. As the chair of the Privileges Committee has already stated despite what the title of the final report indicates that issue was essentially dealt with in the interim report. The final report deals with a proposed amendment to the Standing Order that gave rise to the contempt and recommends that the Finance and Expenditure Committee review the guidance that is given by the State Services Commission to the boards of Crown entities and State enterprises on their responsibilities in relationships within Parliament. Finally it recommends that the Government revise its own guidelines regarding witnesses who appear before select committees. 
Certainly I agree with the comments that the member who has just resumed his seat has made in respect of the advice we received and the evidence we considered—that there does appear to be a considerable gap in the provision of information to board chairs in that important regard. I think that that is unfortunate because it leads to results such as the one we have had in this particular case which I am sure was not the intention of anyone involved. That being said the committee did not at the time believe that it was realistic for witnesses to assume that there would be no consequences to relationships arising from prejudicial or critical evidence and this report reinforces our view in that regard. 
This report sets out some common themes that have been derived from overseas cases regarding the disadvantaging of witnesses in the UK Canada and Australia and it would appear that inadequate guidance on parliamentary privilege is not a uniquely New Zealand problem. The reality is that the relevant Standing Orders 399 and 400 state what the House may treat as contempt. It is a discretion; it is not absolute. The recommendation we have made to amend the Standing Order would add a reference to the factors the House will consider in determining whether conduct constitutes a content. Two such factors are the conduct of any person in parliamentary proceedings and the nature of the action taken against any person on account of that person’s parliamentary action. In fact the example that the chair of the committee used is exactly the example I was going to refer to—that is where evidence is given in a select committee that could not of itself form the sole basis for an action against the person who gave it but could prompt the employer to establish a separate inquiry. If that separate inquiry in itself led to cause for action to be taken against the employee then it would not offend against the principles that we have discussed in this report. 
The State Services Commissioner gave a very helpful submission saying that parties in a parliamentary process need an appreciation for each other’s positions and he highlighted the fact that Parliament has the ultimate overriding oversight of the State sector. But he pointed out that it is equally important to protect the standards of good faith loyalty political neutrality and independence of public servants and officials in New Zealand. He felt that in his view forbearance by both sides from actions that might unnecessarily undermine the positions of those involved may prevent difficulties arising and I think that that was very helpful advice indeed. The State Services Commissioner has also advised that he will be considering this report in terms of any revising of State Services Commission guidelines that may be necessary. 
In terms of the Finance and Expenditure Committee review that we have recommended take place in 12 months’ time we have suggested also that training and guidance provided to those we have described as gatekeepers within those organisations be a matter for consideration. 
The final point I make is to highlight the suggested wording that we have worked on for an amendment to Government guidelines. I think that this wording is extremely helpful in terms of laying out very clearly what we are proposing: “Parliamentary proceedings are subject to absolute privilege to ensure that those participating in them including witnesses before select committees can do so without fear of external consequences. This protection enshrined in the Bill of Rights 1688 is an essential element in ensuring that Parliament can exercise its powers freely on behalf of its electors. There must be no pressure placed on individuals to deter them or action taken against them as a direct consequence of their giving evidence to a select committee. Any such action might be regarded as contempt of the House with potentially serious consequences for those involved.” I think that if those words had been available to Television New Zealand prior to the appearance at the Finance and Expenditure Committee then perhaps this report would not have been necessary. But in many respects this has produced a good report which will be useful for all agencies and all individuals appearing before select committees in the future. I recommend this report to the House. 
SIMON POWER (National—Rangitikei) 
: 
 I raise a point of order Madam Speaker. Although this is probably not the appropriate forum I have just realised that I failed to thank the committee staff for their assistance during the preparation of these two reports. I omitted to do that at the interim report stage as well. So I take this opportunity to thank both of them for the hard work they did in putting together these two quite technical and legalistic reports. 
The ASSISTANT SPEAKER (Ann Hartley) 
: I am sure the House will accept that. Thank you. 
Hon LIANNE DALZIEL (Minister of Commerce) 
: 
 I too forgot to do that and I would like to associate the Government with those remarks. 
The ASSISTANT SPEAKER (Ann Hartley) 
: Thank you. 
SUE KEDGLEY (Green) 
: 
 The Green Party wishes to support the report of the Privileges Committee. It is an excellent report it is thoughtful and well-considered and it deals with extremely important issues. Those issues really boil down to freedom of speech in this Parliament and that is obviously something we believe we must jealously protect. 
We support the recommendations of the committee about amending Standing Order 399 and revising the guidelines to make it absolutely clear that witnesses who appear before select committees must not be subject to any pressure that would deter them from giving evidence or to action taken against them as a direct consequence of their giving evidence to a select committee. These principles are so fundamental that it might be useful that the guidelines once written up be given out widely perhaps even to witnesses when select committees have inquiries before them. The guidelines should be given maximum publicity so that not just people in the State Services Commission but also people in New Zealand are aware of the consequences that would occur if they tried to interfere with the giving of evidence or deter a witness from giving evidence. 
I have one concern. Often it is very difficult to establish that pressure has been brought to bear on a witness who has presented evidence in a parliamentary select committee. Even though the pressure that is brought to bear may have been quite intense it may not be so direct or obvious that a person can make a case to the Privileges Committee. It was very clear-cut in the case of Television New Zealand (TVNZ) because that company was foolish enough to write a letter spelling out that it was effectively punishing the previous chief executive because of remarks he had made in a select committee. So that was very clear. TVNZ made the mistake. It committed its intention to paper and we were able to make quite a clear-cut ruling in that case. 
I am aware of a situation where an employee approached a parliamentary committee and the employer sought to prevent that person from coming to that committee. It is quite possible that intense pressures were put on the employee but it would have been very difficult to sheet that home in a Privileges Committee action. There are very many ways that someone—particularly someone in a position of power such as an employer—can put pressure on or punish an employee who has approached a select committee and presented evidence that for example an employer was unhappy about. There are many ways of doing that without it being so obvious that the employee could take a case before the Privileges Committee. I am aware of specific examples where this may have happened. I am not quite certain how one gets around this situation but I hope the guidelines will be quite fulsome and try to cover cases where the pressure is intense but not overt as it was with TVNZ. 
The other principles and themes that have been highlighted here—such as the freedom of witnesses to give evidence the necessity that that freedom be absolute and that the protection of witnesses from intimidation must be absolute—are tremendously important and we strongly support them. We very much welcome this report and look forward to the guidelines and the amendments to Standing Order 399. 
One other aspect I would like to remark on is that at some point we need to consider the issue of Ministers who refuse to appear before select committees. This happened recently in the Health Committee where a Minister said she would attend the committee hearing. Basically a select committee is powerless in that situation. All other witnesses can be compelled to come before a select committee but Ministers cannot be. So that perhaps is something we need to look at in future. 
In summary the Green Party strongly supports this report. We think it is very thoughtful and well-written. We have concerns however that individuals can be subject—or may in the future still be subject—to intense pressure that is exercised by people in ways that are insufficiently direct or overt to allow for a case to be brought against them. We are still concerned about that. 
HONE HARAWIRA (Maori Party—Te Tai Tokerau) 
: 
 Kia ora Madam Assistant Speaker. Tena tatou te Whare. Well what a week it has been. Standing Order 399 is about obstructing or impeding the House in the performance of its functions. How ironic it is that the day after the Government rushed through legislation to validate unlawful expenditure we all get up on our high horses to sit in judgment on the improper conduct of others. As a member of the Privileges Committee it was interesting to receive evidence from the Clerk of the House the executive director of the Crown Company Monitoring Advisory Unit and the State Services Commission about the relationships and obligations of Crown entities and State enterprises to Parliament. It was interesting because our mania for rules and regulations matches very much the scenario we had at Television New Zealand (TVNZ) with the chief executive officer saying one thing and his bosses saying another and then the Privileges Committee coming along and smacking the bosses on the hand. 
We could look at the Auditor-General as being the chief executive officer the Government as the bosses and Parliament as the Privileges Committee. The only difference of course is that the Government rammed through a law to justify its wrongdoing regardless of the outcry from Parliament and the public. 
 It was also clear throughout the committee hearing that whatever book one turned to be it the  
Cabinet Manual 
 the State Services Commission guidelines or even the  
TV Guide  
there is not much help for people asked to come before a select committee. When we finally saw the papers that State-owned enterprises directors get it soon became clear that the directors’ responsibilities and obligations to the Crown were very hard to understand. In fact it all looked as clear as the pollution at the bottom of the lakes that the Government recently gave back to Te Arawa. Understanding responsibilities and obligations is critical because if there is one thing we should have learnt over the last couple of days it is that once the rules are agreed upon then it is the referee—the Auditor-General—who blows full time not one of the players. It is about playing by the rules. So the Maori Party is happy to support any suggestion to improve the rules for people appearing before a select committee and we offer this saying as the token of our assistance: ehara i te mea he kotahi tangata nana i whakaara i te po. It is not about only one person being awake to danger. Because as we strive in vain it seems to restore public confidence in this den of iniquity we must ensure that we are prepared to step up to the plate first—the plate of adherence to the law and accepting of the view that the referee’s decision really is final. 
The basis of much of the committee’s discussions was the notion of parliamentary privilege an idea that derives from the Legislature Act of 1908 and the 1865 rulings in the British House of Commons which themselves were the descendants of article 9 of the Bill of Rights of 1688. More relevant though to us as a Maori Party is not so much privilege but the rights that this Government is denying Maori right now in the greatest Parliament of the world the United Nations where discussions are taking place on the Declaration of the Rights of Indigenous Peoples where this Labour Government is actively opposing those rights and where this Government is doing its best to destroy a text that has been cobbled together by indigenous people from all over the world for the last 25 years. 
What exactly does this Declaration of the Rights of Indigenous Peoples say? Does it speak of terrorism? No. Does it speak of death? No. Does it speak of the denial of anyone’s rights? Hell no. It states: “Indigenous peoples have the right to the full enjoyment as a collective or as individuals of all— 
The ASSISTANT SPEAKER (Ann Hartley) 
: I am sorry the member needs to address the question. There is a question before the House. 
HONE HARAWIRA 
: Yes the question is one of privilege and I am referring to this Government’s commitment to privilege and to rights and in particular to rights that right now are being denied in another place—rights to people in this House. 
The ASSISTANT SPEAKER (Ann Hartley) 
: There is a very specific question before the House on a specific report that the member needs to address. 
HONE HARAWIRA 
: Yesterday when we were talking about the Appropriation (Parliamentary Expenditure Validation) Bill I noted that Dr Michael Cullen was talking about Don Brash being in bed with the Exclusive Brethren. That was hardly what the bill was about yet no condemnation was made of his comment. 
The ASSISTANT SPEAKER (Ann Hartley) 
: First of all one cannot compare this with another day—that should have been raised at the time. I am drawing the member’s attention to the fact that this is a specific report by a specific committee that the member needs to address—the question as raised by the Privileges Committee. 
HONE HARAWIRA 
: Here we are talking about privilege and in particular the question of privilege on the action taken by TVNZ in relation to its chief executive in this House while this Government cannot even accept the rights of its own citizens. The issue of contempt—the debate about the rightness or otherwise of conflicting statements from TNVZ’s bosses—is tied up in the dilemma that the Government has foisted upon TVNZ by demanding that it lives up to public charter requirements as well as make a bucket load of money. Should TVNZ focus on providing high-quality public-good programming or say: “Damn them all and let’s make money.”? How does TVNZ deliver on its social imperatives when the only quantifiable measure is the bank balance? 
It seems to me that the issue of contempt and the conflict in TVNZ reflects the dominance of the commercial brigade over the keepers of the flame. In considering this issue of privilege and the conflict between commercialism and kaupapa I note that it is a tension I know well. I come to this House from the world of broadcasting myself—a world hampered by limited funding and a world where my own directors were constantly challenging me to meet the requirements that the TVNZ chief executive officer was being asked to meet: get advertising on board; increase our commercial profile; become a player in the world of commercial radio. I resisted that of course because I am a kaupapa man at heart a man for whom Maori principles mean more than money. But still I pondered at length how best to resolve the dilemma between commercialism and kaupapa—that dilemma led to the dispute the dispute led to the contempt and the contempt led to the ruling from the Privileges Committee. 
Our answer was simple: we started another station to touch gently those who were not used to Maori language and to respond to commercial imperatives. By splitting our focus we were able to be successful in both worlds. The worry of course is that TVNZ already has that option Television One and TV2. So what is the problem? Well that is simple too actually. Although TVNZ has a charter and a commercial focus public service programming is still being treated with disdain. Because of that conflict still arises; because that conflict still arises the dispute arises; because of the dispute there arose the contempt. Because of the contempt it came before the Privileges Committee. 
Te Karere 
 TVNZ’s daily window on the Maori world—the so-called Maori news—is still sitting out in the kid’s programming slot of 4.35 p.m. I stopped watching it when they kept shunting it around to catch the cricket. It had been such a while since I had seen it I had to check the  
TV Guide 
 to see what time it was on. The TVNZ 2006 report said that it was working to expand its range and depth of programmes that reflect Maori language and culture to all New Zealanders. Later in the report it was noted that it was doing less for Maori programming in 2006 than it did in 2005. I hear that it is going to get its money cut so I would like to see whether it will pay out of its own pocket for a change to expand its range and depth of programming that reflect Maori language and culture or whether it will be just like Maori think it is all walk and no talk. 
 These are critical issues for TVNZ and it needs to get proactive right now or it will get run over by that award-winning station Maori Television. If I might be so bold I suggest to TVNZ that if it wants someone who knows how to deal with commercial and charter responsibilities it could do far worse than look to Maori radio for a saviour. 
The committee also took a lash at the inexcusable ignorance of some rather well-paid corporate high-flyers who are supposed to be providing the board with good advice but I recommend that the committee saves some of its sting for this House for it is the Government itself that has not properly addressed in its own mind the correct balance between commercialism and kaupapa. It is that greyness that has created the competing environment and the conflict in cultures that burnt TVNZ. 
Can TVNZ be an effective channel for the visions and aspirations of all New Zealanders or has that crown already been taken by Maori Television? Is TVNZ still a genuine player in commercial television or simply a free-to-air option for Sky television? All things are possible for TVNZ. What is desperately needed now though is clarity of vision and a commitment to excellence. Kia ora tatou katoa. 
Motion agreed to.