Privilege — Buchanan v Jennings—Question of Privilege

I move, That the House take note of the report of the Privileges Committee on the question of privilege referred on 21 July 1998 concerning Buchanan v Jennings. The Privileges Committee has many matters referred to it, and all are important, but this matter, I would suggest to the House, is possibly more important than a number of others because it deals with a fundamental issue of the House, and that is the question of free speech in the House, the protection of that free speech, and what should be the responsibility of members outside the House.

The question of free speech in terms of the New Zealand Parliament is often built around article 9 of the Bill of Rights, which was passed in the latter period of the 17th century in England. Dr Cullen will explain whether it was 1688 or 1689—

💬 Hon Dr Michael Cullen: 1689.

—but it has been there for quite some time, and, flowing from that, has built up the privilege that has meant that in the New Zealand House of Representatives what a member says, even if it could be actionable for defamation outside, is privileged, and no defamation action should take place.

In the case of Buchanan v Jennings it is possibly useful for this House—in fact, I would say that it is useful for this House—just briefly to look at how that arose and why the matter then came before the House. In 1998 Mr Jennings, a member of the ACT party in this House, made reference to officials of the Wool Board, and they considered that what he had said was defamatory. When he went outside the House he was asked by reporters, basically, whether he stood by his statement, and he used the words: “I do not resile from the statement.” He did not say any more; he did not say any less. The matter was taken by the people concerned to be defamatory, and it went to the High Court. At that stage the leader of the ACT party, the Hon Richard Prebble, went to the Speaker of the House and submitted that, in his opinion, there was a breach of privilege—the breach of privilege being that a member of the House was being sued for defamation for something that he had said in the House. Members should bear in mind that at that stage there was no repetition of the words “in the House”—nothing more than “I stand by my statement.” The Speaker referred the matter to the Privileges Committee in 1998. This case was not like Jarndyce v Jarndyce in Bleak House; it did not go on for decades, but it did go on, in terms of legal action, for 6 years. In 1998 the Privileges Committee decided it would wait until the legal action had been finished. It finished in 2004, which is when the present Privileges Committee took up the matter.

The Privy Council upheld the judgment of the High Court of New Zealand and the Court of Appeal that the matter was actionable, even if a member only said: “I stand by my statement.” One judge at the Court of Appeal, Justice Tipping, dissented and upheld the view—which is largely the view of the academic experts who submitted to our committee, and I will name them in a moment—that the privilege, as had been understood before the various court actions, was that merely saying that one stood by a statement did not make it a matter that could be actionable.

The report, I believe, is very, very clear on the key issues, and I will move straight to the recommendation, then mention some of the key aspects of the report. The recommendation is from the whole committee: “The Privileges Committee recommends that the Legislature Act be amended to provide that no person may incur criminal or civil liability for making any oral or written statement that affirms, adopts or endorses words written or spoken in proceedings in Parliament where the oral or written statement would not, but for the proceedings in Parliament, give rise to criminal or civil liability.” That was the recommendation of Professor Joseph, which was adopted by the committee. The two other legal experts who gave advice on this issue were Professor Burrows, who is well known for his work on defamation in particular but also is a legal expert on constitutional matters, and Mr Geddis of Otago University. All three were in unanimity that it was a privilege for the greater public good, and that for constitutional reasons that should stand.

The key issues are set out on page 5 of the report, and the first issue that Parliament should become apprised of is that what is being looked at is whether the courts should adjudge parliamentary proceedings. It is a very longstanding constitutional provision that there is separation between Parliament and the courts. Historically, if we go back to the Tudor period, I believe, the courts were often seen as the instruments of the King. The struggle was between Parliament, as the representative of the people—or, at least, at that stage, in the nascent parliamentary democracy that was developing, the very small class of people who could vote; it took it upon itself to represent everybody else, as well—and the King. It was a very fierce struggle. There was nothing academic about it. For instance, King Charles II, taking exception, I think, to the Speaker of the time, paid a group of ruffians to slit the Speaker’s nose, when he stepped outside the House, from one end to the other. Members of Parliament thought that that was something they did not want to happen all the time, and that they would prefer to have their free speech protected, both inside and outside Parliament.

We have moved on since then, and we have developed wider democracy, universal suffrage, and the role of the media, which is important. But the key issue is that the constitutional provision in New Zealand is that the courts will not then adjudicate on the proceedings of Parliament, just as Parliament is not adjudicating on what happens in the courts, how decisions are arrived at, etc.

The effect on free speech itself had to be taken up by the Privileges Committee, because what has evolved is a doctrine of “effective repetition”. It is a fiction, and much of the law, of course, is built on fiction. Just as a company, although not really a person, is considered a person because it helps to say it is a person, similarly what the court has held is the fiction that although one did not say outside Parliament the words that are taken to be defamatory, they would be taken as then allowing the court to say that, well, the actual defamation was what was said inside the parliamentary Chamber, and it is going to look at those words. Once the court looks at words said inside the Chamber, it is taking part in, and evaluating the merits or otherwise of, the debate inside Parliament.

We could give a more current example. Yesterday a New Zealand citizen was claimed by a member of Parliament to be somebody who was connected to the murderous Saddam Hussein regime. That was said inside Parliament. If the member who said it then stepped outside Parliament and talked about it, that could be seen to be actionable. If, for instance, a press statement is issued that repeats those words, and it is found to be actionable, the person then can have, under this doctrine, the right to sue for defamation. So it is a matter of degree; it is a matter of whether the words are repeated, whether they are actionable. So it is very important to members of Parliament.

Without this proposed amendment, there can be a chilling effect on debate. The media too, if they carry the “effective repetition”, can be sued as well and become a party to the defamation. What it means, in effect, is that members of the media, if they follow up on a member’s statement and ask whether the member stands by the statement—because the public by then are interested—and ask whether the member has any more evidence, etc., they can be also “effectively repeating” what was said in Parliament. On page 14 of the report—I do not have time to read it out—Professor Burrows has helpfully set out how journalists could be drawn into this.

Finally, I wish to say that the Privileges Committee deliberated long and hard, but not, I would say, as members of Parliament looking after themselves. That is why three academic experts were brought in—so that we could have the benefit of advice on this matter from people outside Parliament with expertise in constitutional matters.

I want to talk on this issue not from a parliamentary point of view—and of course I am not a lawyer—but from a layman’s point of view, and to talk about the possible impact it could have on the freedom of speech of the general citizen of this nation. That is, to my mind, the most important issue. The issue is not about parliamentarians, actually, although it does impact on us. If that were all this issue was about, it would be a much less difficult issue for us to deal with. But the fact is that this decision could well impinge on the freedom of speech of a citizen who wishes to come and make a comment to Parliament in a select committee under what is considered to be a privileged situation. Indeed, it is important for us to recognise that this decision actually reaches out beyond Parliament and may well impact into the courts. That to me is also awfully important—that this decision could impact both on our parliamentary system and on our court system.

I will give an example relating to a member of the public—and let us remember that most people are not as familiar with matters of privilege, litigation, and defamation as members of Parliament are. A person could well be called as a witness in a court case, and go into the court to make the statement: “I absolutely and genuinely believe this is what I saw.” in a murder case, for example. The Mona Blades murder case is a classic one that has come up again recently. A witness could tell the courts what he or she saw. That witness could then step outside the court, and a reporter could ask whether the witness stood by what he or she said in the court. Of course, the witness would not deny what he or she said in court. The witness would not say that no, it was a lot of baloney, a lot of nonsense, or a lot of silly hoo-ha. The witness would say: “Yes, I stand by what I said. I do not resile from what I said.”

Having made that comment in the context of a court case, the precedent has been set by this decision of the Privy Council to allow the accused person—in particular, if the court case then gets thrown out, and it may be thrown out if there is not enough evidence to convict the person who has been accused—to then say: “That person defamed me, because he or she made a public statement about his or her comments outside the court.” The reporter, of course, would have taken the note that the person did not resile from what he or she had said. Under this precedent, it would be deemed that the person could well have repeated what he or she had said in the court publicly, outside of privilege. The person who was accused, but who was found to be not guilty because there was not enough evidence in that case, then could potentially have the right to have the person who gave evidence up for defamation. It worries me that that then starts to impinge, if you like, on the right of people in court to give evidence without fear or favour, and nothing we do in this Parliament must ever stop that from happening. It is absolutely imperative that people have the right—and indeed know that they can do this, without any concern—to give evidence fully and freely, as they believe they saw events happening, in a court case.

Similarly, the public must have the right to come before Parliament and give a point of view on an issue, whatever it may be. It may well be, again, that a person who gives evidence in a select committee may not have the situation right, but from his or her perspective that person genuinely believes that what was said was absolutely true—from his or her perspective. Then, when the person goes outside, a reporter may ask: “Mr Jones, did you say X, Y, and Z?”, and he may say: “I don’t resile from what I said in the select committee.” Again, under this decision, that person could be deemed to have repeated what he said in the select committee. Such a person’s privilege, under this case, is now gone, and then if he or she has made a statement that is defamatory—maybe innocently, because people in this land are not as familiar with the laws of defamation as members of Parliament are—he or she could well be liable to be sued. That could well mean that the citizens of this nation are suddenly fearful of coming before Parliament to give a point of view. It could actually impinge on their ability to give this Parliament the knowledge that we need in order to make decisions.

It goes even one step further than that, of course. We then start to ask about the fourth estate, and its role in repeating or writing about a statement made by somebody in a select committee, who then makes the statement: “I don’t resile.” If that person has been deemed to have repeated the statement he or she made in a select committee, or in a court case, then surely it follows that the representative of the fourth estate who made the statement: “I don’t resile.” and then talked about the story, has actually repeated the story outside a privileged area, as well. Logic has it that it would be so. Therefore the media could possibly also be liable for defamation. Although the fourth estate, and journalists particularly, are well aware of the issue around defamation—and they often have far more resources than the average citizen to fight against it—nevertheless, we have to be mindful that we do not want to curtail their ability to report the activities of this Parliament. We do not want to limit the fourth estate’s ability to have the right to report what happens in a court case, although there are always some restrictions deemed necessary by the court, of course.

But, generally, this issue to me is about an absolutely fundamental and basic tenet of our democracy: the freedom of speech. If it were about only Parliament and parliamentarians, then, quite honestly, it would be an issue that we may well have to live with. But it goes well, well beyond us, the 120 parliamentarians. This issue goes to the fundamental right of a citizen of New Zealand to be entitled to come and give a point of view in this Parliament on a particular issue or matter, or to go before a court and give evidence as that person genuinely believed he or she saw matters, without fear or favour. That is why I think it is absolutely imperative that this Parliament today corrects what has happened as a consequence of the Privy Council’s decision.

I think this is probably the most important Privileges Committee report for many years, and it concerns, clearly, as members have said already, the proper scope of parliamentary privilege and the implications of that for the workings of our kind of democracy.

That parliamentary privilege, of course, is affirmed in article 9 of the Bill of Rights Act 1689, or, to give it its formal title, 1 William and Mary Sess. 2.c.2., passed on 16 December 1689. As I have said many times, unfortunately lawyers keep repeating a mistake made by one of their own in the 18th century, and at the end of my speech I might explain how that mistake arose. What article 9 does is prevent proceedings in Parliament from being impeached or questioned in any court. It is part of New Zealand law. It is a privilege jealously guarded by Parliaments for over 300 years.

In the Jennings case, as Mr Robson rightly pointed out, although what Mr Jennings said, if he had repeated it outside, was undoubtedly defamatory, he was caught, in terms of the rulings by the Court of Appeal and the Privy Council, simply by the fact that he said he did not resile from his statement. This was taken to be “effective repetition”, although, clearly, not actual repetition, of the statement made in the House. So the Court of Appeal and the Privy Council ruled against Mr Jennings, and in so doing, despite what I have said about Mr Jennings’ statements, ruled against the interests of Parliament and, at the end of the day, of free speech, because, of course, the essence of arguments about free speech is not defending free speech when what is said is undeniably true and incontrovertibly so; it is defending the right of free speech of people who say unpopular things, and even, occasionally, things that are incorrect. Even in this House, on occasions we have seen attempts to shout down members whose views are not popular with the majority of those within Parliament.

There was clear evidence of the chilling effect that that will have on free speech from the leading constitutional lawyers who appeared before the select committee. Firstly, because of this, as the report rightly says, the court begins to directly challenge the quality of parliamentary proceedings, and that is an inappropriate extension of the court’s powers in relation to Parliament. I do say, however, that sometimes within this House we had better be more careful about some of our comments about court proceedings and court judgments, as well, because this is traditionally a two-way street and not a one-way street. Secondly, the judgment renders nonsensical the right of free comment within the House, because, in effect, all it enables a member to do outside the House with safety is to say “No comment.” in response to any question. If a member of Parliament is placed in that position, then it renders stupid the ability to make statements within the House, and, indeed, is not in the interests of free debate. That chilling effect does, then, as Mr Carter has explained in more detail, extend to public debate, including debate within the media. The final point made by the witnesses to the select committee, which I think was the important one, was that the nature of the ruling was such that it could well extend beyond defamation to other matters, and that would further add a chilling effect on the ability to operate free speech within Parliament.

I cannot allow this occasion to pass without allowing some small piece of self-indulgence, because our own statute book refers to the Bill of Rights 1688, and historians remain continually baffled as to why lawyers have kept repeating that error for, now, something like 250-plus years. The reason is quite simple. The bill was introduced into the English Parliament in February 1689. The fact that it is 1 William and Mary should tell people immediately that it could not have been passed in 1688, as James II would scarcely have given the royal assent to the Bill of Rights. But in 1689—indeed, until early in the 18th century—the New Year did not begin until Lady Day, and that is March 24. So, in the old style, February 1689 actually would have been reported at the time as February 1688. Somewhat lazy lawyers in the 18th century read the introduction of the bill in February 1688, and ever since lawyers have referred to it as the Bill of Rights 1688. However, it was not passed until 16 December 1689, so it is incontrovertibly the Bill of Rights 1689. I hope that some day a future Government will take the opportunity via a Statutes Amendment Bill to correct that error within our own legislation.

Anyone who listens to this debate will think that parliamentarians are taking their responsibilities very, very seriously, except that anyone who understands the background to this debate will know what an indictment it is on doublespeak, doubletalk, and worse when it comes to this Privileges Committee. The reality, of course, is that we have a decision of this committee that is not unanimous, and those members who were on the committee—and I am one of them—knew from the word go that I was opposed to the Buchanan v Jennings thing being considered by the committee, because I believe that Jennings was guilty, and I will tell members why.

Effective repetition as a test is a very serious test, but it is totally different, utterly different, and utterly opposite to say the following, as opposed to the last thing I will say, and that is this. To say “It is true that I said that in Parliament.”, is nothing like saying “What I said in Parliament is true.” All the same words are there, but the reality is that the meaning is utterly different, and those members should know it.

Mr Jennings said that what he said in Parliament was true. He said: “I don’t resile from anything I said.” In short, he was affirming, and reaffirming, his belief that what he had said was correct. That is utterly different from someone saying “It is a fact I said that in Parliament.”, or “It is true I said that in Parliament.”

Why those members of the committee should be brought to account is to explain how they have had a Damascus experience on this matter. What makes the Jennings case special when he was as guilty as sin for repeating his allegation, when in fact another member of Parliament—namely, myself—went to this committee, and those arrogant sods had the effrontery to say: “Well, why don’t you suck it and see.”?

💬 Pita Paraone: Is that what they said?

That is what they said. If members look at the decision of the Privy Council appeal with regard to the case of Jennings v Buchanan, the first reference to Peters v Cushing is on page 18. It is dealt with in a short paragraph that states: “For his first cause of action”—that is, Cushing—“based on these defamatory remarks”—that is what he claimed—“the plaintiff could not succeed with relying on the naming of him in the House. This was held rightly, in the opinion of the board, to be impermissible.” So tell me how come I got sued and how come I had all those cases all the way up to the Court of Appeal where I was recommended to get a strike-out at the District Court? I went to my parliamentary colleagues and they would not raise a muscle. The Privy Council is saying that I am innocent, and people like Mr Robson, his party, Labour, and National—

💬 Edwin Perry: Hidden agenda.

They did their best to bankrupt me. What do members think of that? They talk about lofty principles, which they are forever going to be fighting for, for the rest of their parliamentary life! If people believe that, they will believe anything. This is what the Court of Appeal said about that case: “Thus the defendant had to be free to name the plaintiff in Parliament if he judged it right to do so without fear of adverse civil consequences. Such a case is, however, to be distinguished from a case such as the case of Jennings, a precedent case where the extra-parliamentary confirmation followed the parliamentary publication.”

How do members like that? What will Mr Robson say about that, or his colleagues, the Labour Party, and people like Mr Caygill who sat on that committee and told me to suck it and see, and $250,000 later they sit there with that precious lazy look on their face as though they are men of honour? What a disgrace!

I shall tell members what I see in this judgment. I shall go back to it, because it is very pertinent. This is the matter I brought to the Privileges Committee on 11 June 1996. This is what the committee said, amongst other things: “Mr Peters seeks to distinguish Hyams v Peterson on two grounds—first, that in that case identification in the House occurred before any defamatory statement was made”. What does the Court of Appeal state right there? It states that I am right on that matter, for a start, and that illustrious little committee should not be given any respect whatsoever when it comes to doing a thing that is honourable and right, or upholding the law.

The committee went on to state: “first, that in that case identification in the House occurred before any defamatory statement was made and, secondly, that no member was a party to the action, and hence the member’s statement was there called into question.” It stated: “Judge Willy”—this is a District Court judge, I might add, not a High Court judge, a Court of Appeal judge, or a Privy Council judge—“has rejected Mr Peters’ argument” and that I therefore had invited the committee to intervene. It is a great committee, when one thinks about it. It goes on: “What this committee has to determine is whether to recommend that the House should seek to intervene as amicus curiae.” What did it do? It could not wait to try to bankrupt the member, and they would not raise a finger.

Here is what it went on to state: “A decision to intervene should never be made lightly and only when it is in the public interest to do so.” Where is the apology for the disgraceful victimisation of a member of Parliament, simply because he did not hold to their views about flogging off all the State assets to every foreigner and every one of their friends and hiding every bit of corrupt action in this country, and that is how the case started in the first place?

The decision goes on to state: “The House’s role is, in an appropriate case, to protect its privileges if a case of sufficient importance arises and if it appears that the court can profit from arguments adduced on behalf of the House.” Tell me, how was Jennings’ case more meritorious than mine? It was not, was it?

💬 Dail Jones: He lost.

Of course, he lost. I had to appeal all the way back to the High Court. There were two courts. I had already been to the Court of Appeal, and the Court of Appeal said to me: “No, Mr Peters, we think that a District Court can decide this issue on a case such as a strike-out.”, and then a bum at the District Court was saying that the Court of Appeal does not know what he is doing. That is what was going on, and there was a Privileges Committee with experienced members of Parliament saying: “We’ll ignore the Court of Appeal. We’ll just go out there and see whether we can get this guy stiffed up as hard as we can.” That is what happened.

The committee went on to state that it “does not consider that the conditions for the House to intervene are satisfied here.” No, they rushed off to defend Prebble in London, even though he was not a member. He was just plain Richard Prebble, citizen. They rushed to the Privy Council at all that expense and paid for it themselves to defend him, but they could not raise a finger for a member who had a meritorious case.

Then, of course, they joined this action. At all points they made sure that they were represented. Is that not amazing. There is a word for that that starts with “h” and it stinks.

There was a clear attempt on the part of one of the litigants to question the motives behind statements. Members should listen to this. They were distinguishing my case: “In Prebble’s case there was a clear attempt on the part of one of the litigants to question the motives behind statements that members had made in the House. There is no evidence that such a question will arise in the present case.” Members should look at the District Court judgment against me. I did not turn up, of course. I knew it was a contempt of this Parliament. I knew that it was a breach of my civil rights. I knew the Bill of Rights 1689 was being held in contempt by that court, but not one of those flash Harrys over there, or behind me, in that committee was prepared to raise a finger. Therefore, I am utterly opposed to this report, because it goes far too far. They seek to usurp to themselves a right that no other citizen can have.

If one says: “It is true I said that in Parliament.”, one should be safe, as I was eventually proven to be safe. But if one says: “What I said in Parliament is true.”, one should not be.

People who listened to the Rt Hon Winston Peters might have assumed that this report is not unanimous. In fact, it is unanimous. The Rt Hon Winston Peters sits on the Privileges Committee—

💬 Rt Hon Winston Peters: I raise a point of order, Mr Speaker. I want to make it very clear that if a member was not there, silence is not consent in any part of the law as I understand it, so you should stop the member right now.

The ASSISTANT SPEAKER (H V Ross Robertson): I say to the member that that is a debatable matter.

It is a unanimous report—

💬 Rt Hon Winston Peters: No.

It is a unanimous report.

💬 Rt Hon Winston Peters: No, it’s not.

It is very interesting, is it not, that New Zealand First wants to call out that somehow it is Rodney Hide’s report. No, it is a report of the Privileges Committee, which the Rt Hon Winston Peters sits on. I think we met about 10 times on this matter, and I think that Mr Peters turned up twice.He had plenty of weeks—

💬 Rt Hon Winston Peters: Wrong.

That is a debatable point. I tell Winston Peters to sit down.

💬 Rt Hon Winston Peters: No, no.

Yeah, yeah, the member should give up. Mr Peters had every opportunity to object to this report. We had several weeks in which to get back to the chairman on it. The Privileges Committee met several times. [Interruption] Mr Peters’ brother calls out, saying that Mr Peters has objected to the report. I have been across the Chamber and spoken to the chairman of the Privileges Committee, Matt Robson, who says that not once did Mr Peters object to the chair about this report. Mr Robson is over there, nodding his head and saying that that is right. It is quite a surprise to us, having had Mr Peters on that committee, that he has come down to the House—[Interruption] No, he is not right, because he is saying that it is not a unanimous report, when it is. His name is on it. Mr Peters is on the Privileges Committee, he did not object to the report, and he did not write a minority report.

I have to correct quite a few things that Mr Peters had to say about this issue. The committee took its work very seriously, and that is why we got the help of Professor Burrows—[Interruption] If the New Zealand First member wants to sit beside me in order to try to chip in and say that Professor Burrows has got matters wrong, I suggest he stand up and take a call. Any honourable member would do that, rather than sitting on one side and chipping in.

💬 Rt Hon Winston Peters: I raise a point of order, Mr Speaker. This is a public debate that Mr Hide is making that statement in. I would ask him to withdraw now, and I will then continue my speech and enliven this debate again. What we are hearing now is just total drivel and rubbish.

The ASSISTANT SPEAKER (H V Ross Robertson): The member will be seated. I do not think Mr Hide was offering to yield.

No, I was not offering to yield. I was suggesting that Mr Jim Peters take a call to speak, rather than sit to my right and chip in. Professor Burrows, Professor Joseph, and Mr Geddis came to the committee. They had prepared reports for the committee, which are appended to its report.

Professor Burrows made this point—and I will accept from the history professor that the year is 1689, and that there is a principle—[Interruption] Well, I have never had to apologise to TV3 for 2 hours and offer a correction, as the Acting Prime Minister has had to—not once. I accept that the year is 1689, and the principle is that the courts cannot look into Parliament. That is the principle that has been overridden here. Although Mr Peters may say he can go out and say: “Oh well, it is true that I said that in Parliament.”, I do not believe that Mr Peters would actually be safe if he said that. I do not think he would be safe if that went out on the media.

💬 Rt Hon Winston Peters: Of course I would be.

He may be, but the court case would be very interesting, because the advice we had is that if Mr Peters said that, he would not be safe at all. We have a very interesting situation. When someone says, as Mr Jennings said: “I don’t resile from what I said in Parliament.”, none of those words are defamatory. Not one of those words is defamatory.

💬 Rt Hon Winston Peters: Yes, it is.

No, it is not. Not one of those words, taken on its own, is defamatory. What we then have to do is to get the Hansard and find the bit that is defamatory, and when someone goes out and says: “I don’t resile from that.”, the decision states that he or she is actually repeating the whole speech. That cannot be right, because it is not a repetition, and we can see that in the language used. The decision states that it is an “effective repetition”. An “effective repetition” is not a repetition in the way that I understand the English language.

The decision has an immediate impact, as John Carter pointed out. If a member of the public comes along and makes representations to a select committee, and if that person is then called out of the meeting and asked about them, that person can be pinged immediately for what he or she says outside the select committee and be up on a defamation charge. Interestingly, I remember going on Morning Report with Mr Peters. He would not stand by what he had said, nor say that what he had said was untrue, or anything like that, on Morning Report. Sean Plunket put this question to Mr Peters several times: “Do you stand by what you said in Parliament?”. Mr Peters dodged all over the place, and said he would not answer it. The interesting thing is that if Mr Peters had said: “Yes, I do.”, Radio New Zealand would have been in the cart, as well as Mr Peters. Radio New Zealand could have been subject to a defamation proceedings. If someone stands up and says: “I don’t resile from what I said in Parliament.” and a newspaper prints that, under this ruling that is defamation by the newspaper. There is no parliamentary protection applying.

We can imagine the impact of that. The impact is that politicians who get up and exercise the privilege of this House cannot then go out and talk to journalists, and journalists cannot report what politicians were talking about afterwards. It is not because what they are saying outside the House is in any way defamatory; it is because if they say anything outside the House that has any possible link back to Parliament, then they can be pinged. [Interruption]

The ASSISTANT SPEAKER (H V Ross Robertson): The member is not in his rightful seat. He cannot interject from there.

That has a huge impact on the conduct and business of this House. It is interesting that this ruling will have a potential impact, we heard, on our courts. This report does not address that issue, but if someone is appearing in a court and he or she makes representations in the court, sure that person is protected by privilege. But what happens when that person goes outside the court and is interviewed? What happens when a judge says something outside a court? In fact, the understanding we have of the law is that judges, too, could be in trouble, following the principle that was established in this court case.

This is not an easy case to deal with. The committee took its duties very, very seriously. I think it is a shame that Mr Peters did not turn up and hear the various arguments and the debate that took place in that committee. I certainly appreciated the efforts that Professor Burrows, Professor Joseph, and Mr Geddis went to, and I certainly appreciate the efforts that the chairman, Matt Robson, went to in giving the opportunity for all members of the committee to have a say, and giving extra time for them to take this report back to their caucuses, for their opinion to feed back into the committee. I am just very, very sorry that Mr Peters did not avail himself of that opportunity. This is a difficult issue. I think the report is a good one. We support it.

I am also a member of the Privileges Committee. First, I want to thank the chair and the select committee staff, the other members on the committee, and particularly the Clerk of the House, who provided the committee with exceptional advice and assistance in dealing with such a serious issue.

This report concerns the extent to which members of Parliament can affirm, outside the Parliament, potentially defamatory statements made inside the Parliament. Parliamentary privilege is a very old principle, established to protect the freedom of speech of members of Parliament in the House. It derives from article 9 of the Bill of Rights 1689, which prevents proceedings in Parliament from being impeached or questioned in court. This right ensures that MPs are able to explore, debate, and investigate within Parliament any relevant issues and concerns, without fear of legal proceedings being brought against them. This privilege plays a crucial role in what we like to think is our open and transparent democracy.

The issue before the Privileges Committee arose out of legal proceedings taken against Owen Jennings for a statement he made in the House. While in Parliament, Owen Jennings made a defamatory comment about the actions of an employee of the Wool Board. That statement was protected by parliamentary privilege, but later Mr Jennings said to a reporter outside Parliament that he did not resile from his claim about the official’s relationship. The employee took an action in defamation against Mr Jennings on the basis that, because he said to the reporter he did not resile from the defamatory statement, he was effectively repeating it.

Mr Jennings pleaded the protection of parliamentary privilege, but eventually the Privy Council agreed with the employee that, by saying he did not resile from his statement, Mr Jennings had effectively repeated his statement outside the House and, therefore, his statement was not protected by parliamentary privilege. Now the law is that if members of Parliament say they do not resile from what they said, without repeating the defamatory words in any way, they can still be held liable in defamation proceedings.

John Carter is quite right in raising the concern that this ruling will also now apply to members of the public who come before select committees. For many people outside this House, parliamentary privilege is an unjustifiable protection that allows MPs to get away with saying vile, defamatory, and inflammatory things in the House, without suffering any consequences. Those who are the subject of those comments suffer the most, as they have virtually no ability to force a retraction or apology from the MP. They do not always have access to the media, and are not necessarily able to tell their side of the story to the public. Their reputations can be seriously and permanently impugned, with their having no recourse, at all.

The Privileges Committee did consider Parliament’s internal controls on the abuse of freedom of speech. It said that such persons can comment on any accusations and that the provisions in the Standing Orders strike an appropriate balance. But I want to consider in more detail those internal controls. There is no doubt that parliamentary privilege comes with a responsibility. It should not be used to incite ethnic tensions. It should not be used to make personal attacks for political purposes that serve only the interests of the MP and not those of the community. Many MPs are careful and measured in their use of privilege, but many are not.

Just this week New Zealand First has named various individuals and impugned their reputations, suggesting that they are part of the Saddam Hussein regime. The truth of those accusations will come out in due course, but we must remember that those accusations were made under the protection of parliamentary privilege. We must ask whether those individuals are being named, their places of residence identified, and their families exposed to xenophobic abuse for legitimate community purposes, or simply to drive up ethnic tensions and to use those people and their families as scapegoats to justify a draconian election immigration policy that is even worse than the dawn raid crimes committed against the Pacific Island community.

💬 Rodney Hide: I raise a point of order, Mr Speaker. I am sorry to interrupt the member’s speech, but Winston Peters to her right and New Zealand First members all around her are interjecting continuously.

💬 Dail Jones: That’s not true. I didn’t say a word. Neither did Winston Peters.

💬 Rodney Hide: Now they interrupt on points of order.

The ASSISTANT SPEAKER (H V Ross Robertson): I remind members that points of order are to be heard in silence.

💬 Rodney Hide: When the member giving a speech has people behind and beside her interjecting continuously, it makes it very, very difficult for her to speak, and it is against the Standing Orders.

💬 Rt Hon Winston Peters: Speaking to the point of order—

The ASSISTANT SPEAKER (H V Ross Robertson): I do not really need any help, but I will hear the member.

💬 Rt Hon Winston Peters: First of all, Mr Hide’s complaint is not correct with regard to a number of the members about whom he made it. I am happy to say that I was interjecting. If that member gets on her feet and starts accusing people of raising xenophobic expectations and all sorts of racism, she will get bounced around this House, because she is not telling the truth and is saying something highly inflammatory herself. She is bound to get that reaction. That is what previous Speakers would have ruled on these Standing Orders. Why should that member not have the same treatment?

The ASSISTANT SPEAKER (H V Ross Robertson): I thank the member. The second part of your remarks on the point of order actually got into debating material. I refer members to Speaker’s ruling 57/5, which states that back-benchers should not interject when they are in close proximity to the member speaking. It is a longstanding convention. The reason is quite simple: it muffles the microphones.

Are those people being used by some parties as scapegoats to justify a draconian immigration policy—a policy that rivals the unjust dawn raid crimes that were committed against the Pacific Island community in the 1970s? Are the actions of New Zealand First a highly irresponsible use of parliamentary privilege? How are MPs to be held to account for pejorative, prejudiced statements made within Parliament?

One mechanism is that under the Standing Orders a person who is impugned may respond to the allegations recorded in Hansard. While that may be useful, it does not hold the MP himself or herself to account. An MP may take a complaint to the Privileges Committee if it fits into one of the established grounds, but, again, the person impugned does not get an effective defence.

The Green Party has been a strong advocate for the establishment of a member of Parliament code of conduct, to be incorporated into the Standing Orders, setting out the standard of behaviour that we and the community expect in this House. This code would be enforceable as an internal control within Parliament. It would assist in controlling the currently very high level of unpleasantness, aggression, and verbal abuse that simply would not be tolerated in any classroom, playground, workplace, or home in this country.

Of course, the community has other opportunities to hold members of Parliament to account for their irresponsible misuse of parliamentary privilege—at the ballot box. New Zealanders expect a much higher standard of behaviour from their highest and most privileged representatives than, for example, that demonstrated by Winston Peters, who used the term “Ying Tong” to refer to Asian members of the New Zealand community. That sort of intolerant, vicious, extreme abuse is not acceptable.

💬 Rt Hon Winston Peters: I raise a point of order, Mr Speaker. With the greatest respect, you ask us not to interject but when a member, and a new member at that, gets to her feet and starts talking about parliamentary standards—she does not say, of course, whether that includes pot smoking, marijuana, and every other illegal activity—

💬 Dail Jones: And what else she does over the holidays.

💬 Rt Hon Winston Peters: She does not say what else she is going to do with her holidays—going around universities and cursing and swearing, using the foulest language. If that is the standard of Parliament now—

The ASSISTANT SPEAKER (H V Ross Robertson): The member will come to the point of order. This is debating material.

💬 Rt Hon Winston Peters: Then she makes an allegation with regard to “Ying Tongs” and Asians. That cannot be correct, can it? Asia goes all the way to Turkey, and only certain people in the whole of Asia would have that sort of name. Of course, that member would not know that.

The ASSISTANT SPEAKER (H V Ross Robertson): I refer the member again to Speaker’s ruling 35/3, which deals with misrepresentation. If the member feels that he has been misrepresented, then he does not take a point of order now; he waits until the end of the speech. He should also look at Standing Order 106.

That sort of intolerant, vicious, extremist abuse is not acceptable in this community and it is not acceptable for members of Parliament to espouse.

Parliamentary privilege is a very important constitutional protection and responsibility. The Privileges Committee, which has considered the issue in great depth, recognises both the freedom of speech principles and the public interests in the fair and responsible use of privilege. The committee recommends that the Legislature Act be amended to return Parliament effectively to the situation that existed prior to the Privy Council ruling.

The Green Party agrees with the principle of free speech. Should such legislation come before the House, the Green Party would give it very serious consideration, in light of the mischief it is designed to remedy and the public interest in retaining freedom of speech and protecting members of the public from unjust, unfounded, intolerant, and extremist personal attacks.

I raise a point of order, Mr Speaker. The member who has just resumed her seat seems to be in some uncertainty. The first dawn raids were made under the Kirk Government in 1974.

The ASSISTANT SPEAKER (H V Ross Robertson): That is not a point of order.

It is a privilege for me to participate in this debate concerning the report of the Privileges Committee on this very, very important landmark decision of the Privy Council in Buchanan v Jennings. Had the Hon Peter Dunne, the leader of United Future, been here today, he would have been making this speech, because he would have liked very much to contribute to the debate. He has been a member of the Privileges Committee in the many years that have elapsed since this matter first went to the committee, in 1998. I have had the privilege of a briefing from Peter Dunne, which has been very, very helpful, but the words that I will use in this speech, nevertheless, I claim as only my own.

First of all, I agree with the recommendation of the committee. I think the actual wording of that recommendation is extremely important, because it does not give carte blanche, in any shape or form, for members of Parliament to repeat outside this House statements they have made under privilege inside this House. The proviso is: “but for the proceedings in Parliament,”. In other words, if members use words outside this House that are in themselves defamatory, then they remain open to the possibility of an action for defamation. I think it is very, very important to discuss that point, absorb it, and take it on board in relation to what Owen Jennings, a member of Parliament at the time, actually said. He said outside the House that he “did not resile from his claim about the official’s relationship”. Even if the recommendation of the committee is acted upon, which I support, a member of Parliament who uses those kinds of words in the future could still be open to a defamation action. Since I have been here I have heard a number of members quote Owen Jennings as having said that he “did not resile from” his remarks. That is only a partial quotation of what he said. He went on to say, in terms of those remarks, that they were about “his claim about the official’s relationship”. That second part of his quote would not be protected by the recommendations made by the committee. I think that is an important point to make.

However, let us go back to the implication of this whole question of “effective repetition”. As I have said, I very much support the right of Parliament to ensure that the traditional understanding of its privileges is maintained into the future. But we would, of course, have a quite ridiculous situation if the opinion of the Privy Council were interpreted to say that, for example, if a member, after having spoken in the House under privilege, says to a journalist that what was said is on the record, in Hansard, that member could be in trouble. It is not clear from the Privy Council report that even those remarks would not get a member into trouble in terms of a defamation case. It is completely ridiculous for a member not even to be able to say: “Well, what I said is recorded in Hansard.”—in other words, simply to point a journalist to the public record of this House, which is all that would be being done there. There would be no repetition whatever of any defamation statement contained in that, yet, according to the decision of the Privy Council, we could be caught in that regard. It is very, very important that that kind of uncertainty is removed. As other members have said, even the words: “I do not resile from what I said.” should, in my view, not be the cause of a defamation action.

That is in terms of the privileges of this House, but, as other members have pointed out, the decision also has implications in relation to the privilege that is contained in court actions. Let us consider a person who is a witness in a case before the court; in that context, he or she may be deemed to have defamed somebody. If that person were to go outside the court and say to a journalist—who had said that the evidence was very interesting and had asked the person to elaborate—that what he or she had said is in the record of the court, then under the Privy Council ruling even that may land that person in trouble, because he or she had referred back to proceedings in the court. In my view, the Privy Council has even risked restricting the privileges of information given before a court of law, which is an extremely serious matter. That is plainly something we should not allow to happen.

When we think about it, there are also implications arising from that situation—where privilege relates to statements made in Parliament, and also relates to statements made in court—for there to be a blurring of the line of the separation of powers that we have always had between Parliament, on the one hand, and courts, on the other. That separation of powers is a cornerstone of the whole Westminster tradition on which the parliamentary and democratic system in virtually every genuinely democratic country in the world is based. We would be risking the undermining of that by allowing, in both situations, statements made under privilege to become the subject of a defamation action. We cannot and must not allow that to happen.

As the member Rodney Hide has pointed out, there are also implications for the press. If the press was subsequently to print, for example, exactly what Owen Jennings had said, then it also would come under the “effective repetition” principle and also would open itself up to defamation proceedings. In fact, Mr Buchanan could have taken to court for defamation not only Owen Jennings but also all the media that repeated the statement. That would really threaten the whole role of the fourth estate in our democracy.

Really, this is an amazing debate. We are talking about the privileges of Parliament and the privileges of the court, and also about the freedom of the press to make its important contribution to the functioning of a free and open, democratic society. In one fell swoop, the Privy Council looks to have impeded all three, and really has completely upset our traditional understanding of what privilege means, and what is and is not the possible subject of a defamation case.

The other thing I will mention is that I was flabbergasted, in reading the report of the Privileges Committee, to see that the Privy Council made such a mishmash of its interpretation of our Standing Order 396(1). That Standing Order states: “Subject to this Standing Order, permission of the House is not required for reference to be made to proceedings in Parliament in any proceedings before a court.”

💬 Dail Jones: Have you got the right one?

If Mr Jones does not think I have the right one, then he can take a call later and dispute what I have said, but I am quoting from the right Standing Order. [Interruption] OK, but I am still quoting from that Standing Order.

💬 Dail Jones: 2004?

Yes, the 2004 version. [Interruption] OK, but I do not think that Standing Order has been changed. But I am open to correction on that point. I say to Mr Jones that that is not really central to my argument, if he will just let me finish it.

I make two points about the Privy Council decision. First of all, no evidence was presented to it on behalf of this Parliament as to the interpretation of that Standing Order, and, secondly, it made no reference to Standing Order 396(2), which specifically states: “Reference to proceedings in Parliament is subject always to article 9 of section 1 of the Bill of Rights Act 1688,”. That seems to me to be an amazing oversight on the part of what we have always regarded as being a very, very fine court. On this occasion I think the Privy Council clearly did a less than stellar job in terms of coming to its decision.

In summary, United Future strongly supports the recommendation on this matter made to the House by the Privileges Committee.

The recommendation of the Privileges Committee does not really offer any clear or silver bullet to members of Parliament who speak outside the House following comments made inside the House that subsequently may prove to be untrue and thus defamatory. What can be said outside the House that does not adopt the words spoken in the House, and thus becomes able to be litigated, is not clear. I think that if we look at what “effective repetition” and defamation really mean, we can get a clearer guide on the effect of the Privileges Committee report.

“Effective repetition” is a key concept to explain the effect of publication. Every time a defamatory comment is published, that creates a separate cause of action. So when someone goes outside the House and adopts the defamatory words that he or she said in the House, it is the comment made outside the House that is the subject of the publication and thus the defamation. The way that the Privileges Committee unfolded and came to its very prudent decision was simply by saying that the words used by Mr Jennings by themselves amounted to nothing that could amount to defamation. They could be found to be defamatory only by going to the words used in the House, which Mr Jennings adopted by his comments made outside the House. Any court case—as, in fact, did happen—would be a litigation as to the truth of what was said in the House.

That brings into play the privilege of Parliament. It is one of the few absolute privileges we have in our law. It has been suggested by some members in this debate that this decision of the committee usurps to parliamentarians a right that no other citizen has. Privilege in Parliament is an absolute privilege, but it is not an absolute privilege that sits on MPs; it is an absolute privilege belonging to the institution. Whilst MPs are members of the institution, then the privilege extends to them. But it is a privilege that protects freedom of speech in this House, and thus the freedom of expression, challenge, and robust debate.

Of course, there is a tension between that and the equally important rule of law and principle that no man’s reputation will be sullied without some factual basis. Each of us is entitled to go about our business without having our reputation attacked. The law of defamation essentially protects that. As the advisers to the committee identified, there is a very uneasy tension between the right to free speech and the right to a good reputation. The right to free speech was considered to be of greater public interest when it came to the parliamentary situation, because in Parliament members are entitled to raise any matter they are interested in and to make any allegation they think will advance the matter they are arguing. They should do so without fear of subsequent recrimination or litigation. Of course, effectively the media convey to every New Zealander what is being said in Parliament. It is part of that process that the media will engage with a member of Parliament and seek some comment.

Of course, every time a member of Parliament is engaged by the media, every person who votes tries to make an assessment on the veracity or reliability of that member. If that then puts a member in the position whereby he or she prevaricates, or tries to avoid the issue, that member is in the very difficult position of having made a statement that he or she believes should be made in the House but that can then reflect badly on his or her public persona outside the House.

If the member remembers that the “effective repetition” is to protect the second publication that is outside the House, and if the member does not elaborate on what that publication was but simply says that he or she accepts or adopts what was said in the House, then this rule will protect that second publication under the rule of “effective repetition”. It is a very restrictive finding of the select committee. It is a finding that goes beyond the law of defamation—it extends to criminal law and, perhaps, to other civil liabilities—but it is still a very restrictive law. I have some difficulty in grasping the concept, which has been enthusiastically bandied around this Chamber, that it should extend to courts of law. A witness in any proceeding is supposed to be a witness as to fact, not an advocate. We, as members of Parliament, speak as to fact and opinion, but essentially we are advocates for our cause. So we must take positions whereby we break eggs, we break ground, and we push the envelope in the effort of challenging what has been going on, or of leading to a greater insight into what really should happen.

That is a different position from a witness in a court of law. I would hesitate before we gaily say that this also applies to a court of law, because a witness as to fact should not feel any obligation, when confronted by media outside, to make any statement about what was said under oath in court. It may well be that it could extend to that, but I think the committee’s recommendation should be looked at very carefully before it is extended to a court of law.

The real beneficiaries of this recommendation are not parliamentarians, but all New Zealanders. This is because the immediate beneficiary is the press. Members of the press can approach people outside Parliament and speak to them about matters in Parliament, and enable the public to see how those people respond to that—whether they are prepared to stand their ground, or prevaricate, or resile from the matter. If members remember that they are not elaborating on what they have said in Parliament, or repeating out of Parliament the words used, but that they are just confirming their position, then they are committing no greater sin that will lead to any defamation, and the public at large can debate issues that are often overlooked, not heard, and not read about, by what is actually said in Parliament. That gives the press an opportunity to link in the public space that which is discussed in Parliament.

Of course, that is how voters can decide who they should elect to Parliament. This is the extent to which I disagree with my friend from the Greens, Metiria Turei, when she advocates a code of conduct. The privilege that we all have as members of Parliament carries with it a responsibility. One cannot have a privilege without a responsibility. But a responsibility is a personal thing, and we make our own decisions as to how we accept that responsibility. The public at large can make their decision on how we conduct ourselves under the privileges afforded to us as members of Parliament by what they read in the media and watch on TV. This is a channel for the media to portray to the reading public and the television public what goes on in this House. It is a method for those who vote to assess the veracity and character of those who appear in the House.

Although I would hesitate to limit the right of free speech in this House, I think the sense of responsibility that most of us carry means that we can speak to what has been said in the House, without elaborating, and the matter can be taken to the public at large by way of this recommendation of the Privileges Committee.

The experts advising the committee spoke of the tension between the right to a good reputation and the right of free speech. That is fundamental to this country. It is also fundamental to the separation of powers, as referred to by other speakers. The separation of powers is important, because courts cannot attempt to curb the way Parliament does its business. It is not a question of the supremacy of Parliament versus the supremacy of courts. It recognises that what is said in this House can be said without hindrance and control, except that of good sense and a sense of responsibility.

I endorse the recommendation of this committee. It proposes to amend the Legislature Act rather than the Defamation Act. It does that because it will enlarge the privilege to cover acts other than those of defamation. But it does not give members of Parliament free licence to act irresponsibly in the House, and it does not give them free licence to elaborate outside the House on any untrue statements that may have been made in the House, under some guise of extended privilege. All of this is a sensible carry-over to the second publication—that is, when speaking to the media—of what is being said in the House. As long as what is said is not elaborated on, then the “effective repetition” remains privileged.

This is a very thoughtful recommendation of the Privileges Committee. It was well assisted by three experts who are acknowledged as such in this country. I believe this will lead to a sensible amendment and will be a shining light in our Commonwealth countries—our common law countries.

The heart of this issue is undoubtedly freedom of speech and democracy. Although it would be very easy for the issue to be characterised as parliamentarians claiming some privilege for themselves beyond all else, it is, in fact, about the protection of the nation’s freedoms.

Parliamentary privilege exists for two basic reasons. The first reason is that if it did not exist, courts would be able to intervene in the proceedings of parliaments on a regular basis. I ask the simple question of how on earth this Parliament would be able to conduct its business if that were the case. It would set up a continuing clash and contest between Parliament and the judiciary, whereby each was trying to judge the other all the time. That would not be good for our democracy.

The second reason is that parliamentary privilege enables parliamentarians to deal with issues of public interest, and to discuss the major issues in a forthright and direct manner. Frankly, sometimes that discussion will be defamatory. I had only to listen to Metiria Turei, who was defamatory in calling another member a racist.

💬 Metiria Turei: I raise a point of order, Mr Speaker. I did not at any time use the word “racist” in the speech that I just gave. I would like the member to apologise for that misrepresentation.

The ASSISTANT SPEAKER (H V Ross Robertson): I refer the member to Speaker’s ruling 35/3 and Standing Order 106(1). If she is claiming misrepresentation, there is a time and place to do it.

If those words were said, then quite clearly that would be defamatory. Yet the member would certainly not expect to be sued for that and, indeed, neither should she. This is a robust Chamber, and people have to have freedom to speak in it.

But more than that, sometimes not every single statement that a member of Parliament might say will be accurate. Even if a statement is broadly accurate, one has to be wrong only in some minor aspect to be in breach of the laws of defamation, and, of course, that would mean the issues could not then be discussed. I acknowledge, for instance, the whole issue around the wine box, and the difficulties that Mr Peters found himself in, in regard to that issue. Without those documents being tabled, there would never have been a commission of inquiry. We have only to recollect the number of court proceedings that were undertaken to try to stop that process. I say that because I myself, in terms of legal advice, was quoted in that report some years ago, so I am quite conscious of the importance of that issue.

A fundamental truism is that the law should not be so difficult that one has to be an expert in defamation law to be safe. Surely, that is sensible, and I would like to refer to Professor Burrows, who stated in the report: “It is harmless to say ‘Yes, I did say that’ but not, apparently, to say ‘Yes I did say that and I still believe it.’ ” The first statement would not have breached the Buchanan v Jennings rule; the second statement would have. The expert in defamation law would, of course, understand that difference, but a large number of people would not understand it, at all.

As Professor Burrows said, when the courts provide such fine distinctions, it makes it extremely difficult not just for parliamentarians but also for members of the media, to operate. When one is asked whether one stands by a statement one has just made, it is a natural response to say yes. It is a normal thing for anyone to say, and the law should not trap people for saying normal things or for simply acting as in the normal course of events. That is the problem that the Privileges Committee was fundamentally confronted with, and that is why we had to deal with it.

The solution is to change the Legislature Act. Members might question why there should be a change to that Act and not to the Defamation Act, because, after all, the Defamation Act would cover courts, local authorities, and all commissions of inquiry and the like, where privilege would be normally expected. Our Privileges Committee recommendation is essentially a recommendation for the Government. It has to draft law and put it before this House to be debated in a select committee. It may be that through that process, and after a full debate and discussion, people will conclude that parliamentary privilege ought to be extended. In the space and process of the Privileges Committee, we were not able to deal with that issue directly, but through the legislative process—through the select committees themselves—we will be able to deal with it.

I mentioned that it is not just a protection for parliamentarians but that it is also a protection for the media. I note that just 2 or 3 weeks ago a radio journalist tried to trap a member of Parliament into saying that he stood by what he said in the Chamber. It was put to Mr Peters three times on National Radio, but I also note that he was far too wily to be caught out by that ruse. What surprised me was that the journalist was attempting to trap not just Mr Peters but also his own employer—and, indeed, himself—because that would have been the effect of the repetition, and I suggest that Radio New Zealand probably has somewhat deeper pockets than Mr Peters has. So the media themselves will be protected now, because they will be able to ask reasonable questions, like the common-sense question: “Do you stand by what you said in the Chamber?”.

💬 Rt Hon Winston Peters: It was fair range.

Fair range—well, there we are. [Interruption] That is interesting. So it is a broad protection of the public.

The final group to be protected is the group referred to by Mr John Carter—members of the public. Every member of this Parliament knows full well that large numbers of the public come to select committees. Some people say some quite amazing things, particularly in the course of inquiries or petitions. Which members of the public, if asked by journalists outside whether they stood by what they said, would not say yes? It would be the natural, human course to say precisely that. The change to the Legislature Act will protect the citizens of New Zealand who exercise their democratic rights.

I think that this is one of those issues—and we have had a lot of them in recent times—in which, once again, Parliament and the courts have a bit of a tussle going on and members of Parliament find themselves having to defend their privileges. The only one way in which they can do that is through legislation. The courts, being the independent branch of Government that they are, obviously have their methods through their decisions. We have seen plenty of examples in recent times where quite a tense constitutional tussle—if I can put it that way—is happening between our courts and Parliament. I guess that this is not the last time we will have to deal with that issue, but at some point there needs to be a better understanding of the relationship between our superior courts and our Parliament, in order to reduce that level of constitutional conflict. We need to think very seriously about how we go about that.

Pursuant to Standing Order 106 and Speakers’ rulings, I want to correct a misrepresentation by Mr Mapp of what I said in a previous speech. Mr Mapp said in his speech that I had called Mr Peters a racist. In fact, in describing a number of comments made by Mr Peters I used words such as “xenophobic”, “extremist”, “intolerant”, “vicious”, and “derogatory”—

💬 Dail Jones: Mr Speaker, the member is abusing the privilege. She did not say he was a racist, and that is where the matter should end. Instead, the member is abusing the system.

The ASSISTANT SPEAKER (Hon Clem Simich): No, the member may make a correction. This is similar to the issue we are debating in the House now. The member may not repeat what was said, but may simply give her explanation for it. The member may indicate what her explanation relates to, and then refute it and give the correct version.

That is what I was doing. The correct version of my description of Mr Peters’ statements included the words “xenophobic”, “extremist”, “intolerant”, “vicious”, and “derogatory”, but did not include the word “racist”, which he himself used in an interjection.

This debate is about the extension of the right to exercise free speech in Parliament, which we call parliamentary privilege, to outside Parliament, as well. As members of Parliament, we currently have the right to say things within Parliament about people outside Parliament without being sued. However, currently, if we go outside Parliament and make a statement such as: “I do not resile from the statement I made in Parliament.”, we can be sued, and the Judicial Committee of the Privy Council can find us liable for damages.

Some members of Parliament do not like that. New Zealand First takes the view that we should restrict the right of parliamentary privilege to what is said in Parliament, and that when we are outside Parliament all we should be able to say is: “It is true that I said that in Parliament.” The other parties in this Parliament want to go further than that. They want to go into greater detail about how they can extend that right of parliamentary privilege to outside Parliament. But that would not be free speech; that would be an abuse of free speech. Those members who support the Privileges Committee report want to extend the right that exists in Parliament to abuse people—if I can put it like that—to include the ability to abuse them outside Parliament without being sued. That is what this report is all about.

There was a member of Parliament who made a defamatory statement inside Parliament. He went outside Parliament, but he did not just say: “It’s true that I said that in Parliament.” He threw on a bit of salt and pepper and a bit of garnish. He built it all up and said: “I—big man; macho man—don’t resile from any of that.” It was real macho stuff. But he did not realise that he could not do that, because it was an abuse of his position as a member of Parliament.

I am in New Zealand First, and we do not want to be able to do that, but other members and parties—Rodney Hide, Metiria Turei of the Greens, Labour, and National—want to be able to go outside Parliament and repeat, in a broader way, the defamatory, abusive statements they make in Parliament. That is what this is all about. That is what Mr Jennings did—big-noting—and he got caught up in it. Those Labour members and the Greens want to keep on big-noting outside the House.

Well, New Zealand First says no. We as members of Parliament have the privilege to be able to make those statements in the House. Our judgment day comes on election day. If we abuse those rights, we are out on the street. We will be turfed out. That is when our judgment day is. If members want to make those statements outside the House, their judgment day should be in court. That is where their judgment day should be. They cannot have it both ways. United Future, ACT, National, and Labour members want to have it both ways. They want to be able to say defamatory things in Parliament and be able to repeat them, in a way, outside Parliament. Well, they are two different arenas.

💬 Dr Wayne Mapp: Not true.

It is absolutely true, because Dr Mapp said that Mr Jennings should have been entitled to say what he said and not be sued. Well, Mr Jennings should have been sued. The Privy Council said he was defamatory. It does not matter what Dr Mapp says about what the Privy Council said; he should read the judgment. What the Privy Council said is correct. It is as if someone were bowling to Geoffrey Boycott and, say, Mr Peters were the umpire. Someone comes in and bowls to Geoffrey Boycott, and hits him on the pads. Winston Peters says: “You’re out, Geoffrey.”, and Geoffrey Boycott says: “No, I’m not out. You can’t give me out.” We would tell him to look at the scoreboard, and if it said he was out, he was out. When the Privy Council says that one is defamatory, one is defamatory. That is all there is to it. The Privy Council is the referee and the umpire.

The other parties in this House want to be able to be defamatory inside the House and outside the House, but we in New Zealand First do not support that. Listening to the Green member was quite amusing. We have just heard her repeat words about New Zealand First. But, effectively, what she is doing is allowing members of Parliament to repeat statements outside the House. In supporting this report, that is what she is doing. To take up the Green member’s comment, the Privileges Committee’s decision will effectively enable any member of Parliament to make unjust, intolerant, extreme, or racist statements outside Parliament. A member can be asked outside Parliament whether he or she stands by the racist, intolerant, xenophobic, etc., etc., statements the member has made, and the member can say: “Yes, I do, and I don’t resile from them.” We should not be allowing that to happen. That is quite wrong.

New Zealand First is opposed to the committee’s recommendation: “… to provide that no person may incur criminal or civil liability for making any oral or written statement that affirms, adopts or endorses words written or spoken in proceedings in Parliament where the oral or written statement would not, but for the proceedings in Parliament, give rise to criminal or civil liability.” MPs should not be allowed to big-note outside the House without paying the penalty in the courts. If members big-note in the House and make a defamatory statement, or even a not so defamatory statement, their public—the voters—will decide the matter for them.

Dr Mapp was saying how grateful the media will be for the Privileges Committee’s decision. Of course the media will be grateful, because it will extend their right to be more and more defamatory. At times, there is nothing so unctuous as newspaper reporters. They say how dreadful the behaviour in Parliament is and how members of Parliament should not say this, that, or the other thing, but they splash it all over the newspapers. They love dwelling on it while, at the same time, saying how bad it is. The committee’s decision will enable the media to get a member outside the House and put him or her on radio or TV in order to relive the whole experience all over again, without the media being liable in any way for the consequences of the statement given.

I say to members of the House that it will be very, very dangerous to try to live within that new rule. We know what the present rule is. It is very clear. As a lawyer, I would advise a member of Parliament who may have gone over the edge in a debate one night or day and said something that perhaps was defamatory, and who was then held up by a reporter outside and asked whether he or she would repeat what was said inside the House, not to say a thing—not one thing, at all. This particular decision, if it is given effect, will encourage some members to try to say something, and that would be an absolutely tremendous trap. There would be an awful lot of litigation to decide what Parliament meant by allowing parliamentarians to say some sort of thing outside the House. It is best to say nothing at all. This particular provision, if it is ever given legislative effect in any particular way, will be an absolute trap for members of Parliament. We will create a real problem for ourselves if we adopt this provision.

The situation is quite simple as it stands at the moment. As the Rt Hon Winston Peters said in his speech—and the point was confirmed by Dr Mapp—the simplest thing to do currently, if one is asked about what one has said in the House, is to say: “It is true that I said that in Parliament.” That is fine. However, if one says: “What I said in Parliament is true.”, then one is in trouble. That is exactly what the Rt Hon Winston Peters said at the opening of his speech, and the point was confirmed by Dr Mapp. But my advice to any parliamentarian is just to not say anything at all, because otherwise one starts to get too subtle. In the heat of the moment, with the microphone under the nose and some TV interviewer having a go, one is never quite sure of what one is saying, let alone of remembering what one has said afterwards. I cannot really understand why parliamentarians would want this amendment, but they think it will help them.

💬 Dr Wayne Mapp: It’s also for the public.

It is not there for the public. It is there only so that those members of Parliament who make a mistake outside the House have a better chance of not being sued for damages. That is all it gets down to. The Labour, National, ACT, United Future, and Green members of Parliament just want another safety net in case they get into trouble by saying too much on the radio or the TV. New Zealand First does not want a bar of it.

This Chamber is where we speak. If we say something here, the electors will decide for us—we should just keep our mouths shut outside the House. Those are the simple rules. We do not want to go outside the House and start abusing people. That is quite the simplest way of it, even though Ms Turei said that we should be able to go outside and do that. She made an extraordinary speech; she did not really understand what she was saying.

When the Independent says “Parliament strikes a blow for free speech”, it is not striking a blow for free speech; it is striking a blow to save millions of dollars in legal fees and damages for the newspapers, and the backsides of those members of Parliament who just have not been able to control themselves when they have walked outside this Chamber.