Privilege — Question of Privilege Concerning the Defamation Action Attorney-General and Gow v Leigh

I move, That the House take note of the report of the Privileges Committee on a question of privilege concerning the defamation action Attorney-General and Gow v Leigh. This is a very important piece of work that has been undertaken by the Privileges Committee since September 2012. We finally reported to the House just a few days ago. It raises some very important questions arising out of a decision of the Supreme Court in September 2011.

Throughout this debate we are going to hear comments about parliamentary privilege, but it is important to emphasise what this word “privilege” means and what it does not mean. Parliamentary privilege is not there as a special benefit for a particular person. Parliamentary privilege is there to enable this Parliament to conduct its functions. It is vitally important for New Zealand’s constitutional health. I sometimes think it is unfortunate that the term “privilege” is used, because it does have a connotation of it being for the benefit of the individual. Far from it. It is just as legal professional privilege is there to enable clients to be upfront with their lawyers so that lawyers can properly represent them. But the idea of a privilege contains the connotation of some kind of favour. The Privileges Committee and this Parliament are not concerned with parliamentary privilege in that kind of characterisation; they are concerned with privilege to enable this place to run properly in the interests of the New Zealand democracy.

Another term that is going to come up in the course of this report is what exactly is a proceeding in Parliament. I think for too long there has been vagueness about the metes and bounds about what a parliamentary proceeding is. We say in this report that the time has come for a parliamentary privilege piece of legislation that addresses that particular question. They are the high-level issues that were confronted by the Privileges Committee as it undertook its task, as I said, between September 2012 and June of this year.

The background to the proceeding, which ultimately went to the Court of Appeal, is set out in the report of the Privileges Committee, pages 8 and 9. I do not need to go through it at any length. Most members know the background. Ms Leigh was contracted by the Ministry for the Environment as a communications adviser on climate change issues, and in 2006 she was told that another communications expert, a certain Clare Curran, was going to be appointed to oversee the strategy on which Erin Leigh was working. There were a number of questions in the House concerning these appointments. A Mr Gow from the Ministry for the Environment would have gone across to the Beehive office of the then Minister for the Environment, given that particular Minister a written briefing, and orally taken him through the particular issues, and the Minister gave answers in the House. In due course he apologised for some of the statements he made, but in any event the critical issue here is that proceedings were commenced by Erin Leigh against the Attorney-General, in respect of the Ministry for the Environment, and against Mr Gow, the public servant, alleging that the statements that were made in the House constituted a republication of the statements that he had given to the particular Minister.

Then there was what could be called interlocutory warfare for a number of years. There was an application to strike out parts of the statement of claim. Eventually it found its way to the Court of Appeal, which dismissed the appeal of the Attorney-General, and concluded that statements made by an official to a Minister for the purposes of replying to questions for oral answer were not themselves parliamentary proceedings. So that very critical issue of what is a parliamentary proceeding arose.

The court rejected the submissions of counsel for the Speaker, John Pike, that the proper test was whether the occasion in question was reasonably incidental to the discharge of the business of the House. They also disagreed with some statements made by David McGee, then Clerk of the House, in his book about the nature of the particular privilege. They preferred to rely on the basis of necessity as being an essential underpinning for parliamentary privilege in New Zealand. With the greatest respect, what I think they did was they referred to some of the cases on barristers’ immunity, public interest immunity, and so on, which have been pared back over the years, and they have simply applied a test of necessity to parliamentary privilege.

As a result of this very important, albeit interlocutory, decision, the Speaker indicated that he wanted the Privileges Committee of Parliament to look at the issue and provide some advice to the House. That is exactly what we did.

I think the process undertaken by the committee was exemplary. I particularly want to recognise the Deputy Clerk of the House and Catherine Parkin, the clerk of the committee, for the excellent work that they did in assisting the committee. We not only wrote to a number of legal experts in New Zealand, like the President of the Law Commission, Sir Grant Hammond, we spoke to Professor Philip Joseph, and we also spoke to the State Services Commission. I think as a result of that we got a pretty good idea of where we needed to go. Importantly, we also undertook some inquiries overseas. We were very grateful to receive advice from the Standing Committee of Privileges from the Australian Senate, the Standing Committee of Privileges and Members’ Interests in the Australian House of Representatives, and the United Kingdom House of Commons, and I think we had some answers from Canada. All in all, the comments and the advice that we received were very helpful indeed.

And so, as I say, the committee met, and it has decided that the time has come—and the conclusions are set out in the report itself—for Parliament to bite the bullet and pass parliamentary privilege legislation that addresses some of these questions that have hung around for too long, frankly. What exactly is parliamentary privilege? What exactly is a proceeding in Parliament? If we can address these questions, then I think we will be doing this institution a big favour.

It is not as though the issue has not been on the agenda for many years. I know that David Caygill, when he was in Opposition, went to the time and trouble of preparing a draft bill on the subject, but it went no further. The Privileges Committee has looked at this issue from time to time, but I believe that the time has come for Parliament to deal with this matter once and for all. We say that the Australian legislation of 1987 provides a good model.

In conclusion, let me say this: I saw today that the New Zealand Herald has said that we are striking back at the Supreme Court. No, we are not. We are recognising that as between the various branches of Government there has to be comity, we have to show respect for the court system, which is why there are very stringent rules on the sub judice rule and matters such as that. But, likewise, we say that it is a two-way street, and the committee respectfully says that on this occasion we think that the courts have got it wrong. They have misinterpreted what exactly parliamentary privilege is all about. It is a hugely important question—not for individual members of Parliament but for the institution and, ultimately, for the parliamentary democracy in which we work and live. So may I conclude by once again thanking the officials and my colleagues on the committee for what I think is a very important report.

Can I begin by thanking the Attorney-General for his chairing of the Privileges Committee. I thought it was a very considered approach that was taken by the select committee, as he has outlined. We garnered information from the Law Commission and from constitutional experts from Commonwealth jurisdictions and other parts of the world, including Professor Joseph. We came to the view that the decision of the Supreme Court was wrong on this occasion. We do so with respect. We are careful in the choice of language that we use, but we are firm in our view that the Supreme Court has got it wrong on this occasion.

The privileges of Parliament go through a rather convoluted route, but in the end are founded on the same principles of privilege that are afforded the United Kingdom Parliament, pursuant to article 9 of the Bill of Rights 1688. It took a while for New Zealand to get to the position that those were also the privileges of the New Zealand Parliament, and the history of how the New Zealand Parliament came to have those same privileges is set out in detail in the report. I do not have time to go through that.

Suffice it to say, the privileges of the New Zealand Parliament in respect of parliamentary privilege are the same as those of the House of Representatives in the United Kingdom, where article 9 of the Bill of Rights provides “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” It is a very, very important principle, and it is one of the ways in which we avoid conflict between Parliament and the courts.

There will always be a grey line as to what the end of parliamentary jurisdiction is and what the limit to the jurisdiction of the courts is. I am a person who thinks that that grey line between these two spheres of democracy should never be specifically defined, because it is impossible to do so with a particularity that would cover all eventualities. At one level, I like the greyness of that line, which enables both of those venerable institutions to push against the other where one goes too far. I think that I like the fact that the courts can push against abuses by Parliament where Parliament goes too far. I think back to the time of the courts responding to some of the excesses of the executive at the time of the Rt Hon Robert Muldoon, when the courts pushed against the executive in a way that they had not previously because the exigencies of the time made it appropriate to do so.

However, on this occasion I think that the courts have got it wrong, because they have imported this new test of necessity in assessing whether parliamentary privilege is as broad as it was until the Supreme Court decision was laid down. I, for one, have never accepted the principle that the Supreme Court was within jurisdiction to make that ruling, because its jurisdiction does not go so far as to limit the privileges of Parliament. It can appropriately say that there are occasions that fall outside the privileges of Parliament. We have had instances of that in the United Kingdom, where some of the behaviour of parliamentarians over there in respect of their personal expenses were justiciable, and they were appropriately found not to be covered by parliamentary privilege, because they were not part of a parliamentary proceeding. But this case is different. Here we have the Supreme Court trying to introduce a new legal principle that limits the privileges of Parliament—in particular, the extent of what is a parliamentary proceeding in respect of, in the facts of this case, question time.

The effect of the Supreme Court decision was to say that it was not necessary for Mr Gow to have absolute privilege in respect of his statements, because they were a parliamentary proceeding, and to find that on the basis of this newly introduced doctrine of necessity, all that was necessary was for him to have the benefit of qualified privilege. We at the Privileges Committee heard evidence from Professor Joseph and from the Hon Sir Grant Hammond, amongst others, to say that that writing down of the privileges of this Parliament was inappropriate and that it will have a chilling effect on the frankness of advice from officials to Ministers as they prepare for question time.

We have very, very low levels of corruption in New Zealand. One of the ways that we keep that freedom from corruption is having the ability of this Parliament to get information for question time when the Government’s conduct is being questioned, which could include accusations of corruption or incompetence. With Government officials advising Ministers for question time, there is a very strong public interest that they can be completely without risk of suit if they say things that are defamatory of people, because these things are defamatory if you allege outside parties to be corrupt. Those statements ought to be able to be made to a Minister of the Crown as that Minister prepares for question time.

We have seen very litigious behaviour in New Zealand recently in respect of some of the finance company fallout. We have seen Mr Hotchin and others—and I can say this in this Parliament, protected by absolute privilege—sue people in defamation, including Brian Gaynor, who wrote an article in the newspaper alleging that there was poor practice on the part of Mr Hotchin and others in Hanover Finance and that they have profited handsomely privately. You can see that those sorts of accusations once made by Brian Gaynor have got him caught up in very complex litigation, and you can see that that would have a chilling effect on the media.

Well, if those sorts of questions were being asked of Ministers, I want officials within the ministries to actually make those sorts of statements to Ministers if they believe them to be true. I do not want them to have the risk of facing defamation proceedings by the likes of Mr Hotchin or others who have got very deep pockets and who are very keen to use their rights at law in order to try, on occasions, to gag criticisms. That was the effect, in my opinion, of the Supreme Court decision.

As I have said previously, I think the Supreme Court went beyond its jurisdiction when it did this, and so I actually do not accept that the decision in Attorney-General and Gow v Leigh, from a principle point of view, is binding on Parliament or was effective at law. But there is no way to fix that other than through legislation. We do not have contempt proceedings where we drag people whom we disagree with before us in Parliament and then lock them in chains in the dungeons; we actually have a civil way of resolving these issues. The most practical way through this, as the Attorney-General has said, is through legislation that defines parliamentary proceedings in a way that includes the advice of officials like Mr Gow to Ministers as they prepare for question time.

There is not time in this contribution to make reference to the Buchanan v Jennings case, which was also raised again with us, other than to say that the view of the committee was that prior committees were right when they said that effective repetition ought not to give rise to a suit in defamation, as opposed to defamatory statements themselves being repeated outside the House, which, of course, are defamatory. That rule exists for the protection not just of members of Parliament but also of the media, in case people think that we are being self-interested in that regard.

This Parliament has shown considerable comity for the courts in recent years. It has changed its Standing Orders to make it more difficult for members of Parliament to breach suppression orders. Although we have the right to do so with our absolute privilege, we take care to respect the decisions of the court. And on this occasion, we think that the court has gone too far the other way, and that the appropriate way to remedy this is through legislation.

The Green Party concurs with the Privileges Committee’s report on the question of privileges concerning the defamation action Attorney-General and Gow v Leigh. The House is invited to note our disagreement with the Supreme Court decision in that case. Our disagreement concerns particularly the court’s use of the test of necessity as the means for ascertaining the scope of Parliament’s privilege of freedom of speech. In remediation, the committee invites the Government to introduce a parliamentary privilege bill into the House. Such a bill would clarify, for the avoidance of doubt, the nature of parliamentary privilege in New Zealand. This is an unprecedented move, I think, in New Zealand’s constitutional history, and I am pleased that we have come to the place we are at.

Allow me to make a few ancillary comments by way of support. This exercise, I suggest, has both a legal and a political dimension to it. On the legal merits, it might be queried—not least by members of our judiciary—by what authority members of our legislature would presume to judge the validity of a Supreme Court decision. It is a fair question. The answer, I think, lies not in any self-assumed level of knowledge and insight on the part of legislators. Few among us are qualified lawyers. I am not one. Among the few, there is, I think, not one complete authority in constitutional law. So it is not any competitive notion of superiority in the trade that prompts the legislature and its Privileges Committee in the first instance to consider this constitutional move. It is, in fact, the obverse: the notion of cooperation between the two branches of Government in finding the constitutional balance between them. It rests on an underlying notion that the political branch—that is, the legislature—and the legal branch—that is, the judiciary—must maintain a seamless, if differentiated, unity in the public interest.

It is, perhaps with a touch of irony, the principle of comity that drives our response to the Supreme Court decision. The notion of mutual respect and restraint requires that in the occasional event that one branch, always with the best of intent, encroaches, in the opinion of the other, marginally too far across that threshold of mutuality, then it is the right and responsibility of the other to restore the balance. That mutuality works both ways. In this case, it is the legislature responding to the judiciary. In another case, the judiciary is responding to the legislature when it makes its views known that a member’s bill currently before the Justice and Electoral Committee requiring a Register of Pecuniary Interests of Judges is unnecessary, albeit well intended, and could venture too far into the judicial realm, even though such a thing exists in certain other jurisdictions.

Both responses from one branch to the other require mutual respect. That is the underlying basis of constitutional stability, the glue that holds society together on a civil basis. And so it is that the Privileges Committee has been careful to lay out its reasoning underpinning its view of the wrongful application of the doctrine of necessity in the case of Attorney-General and Gow v Leigh. It is careful to note that such a critique rests on the advice of expert legal opinion, some of the nation’s top constitutional lawyers, members of the Law Commission, and Parliamentary Practice in New Zealand, which is perhaps the ultimate authority on the subject in this country. Although the reasoning and the conclusions and recommendations in our report are, of course, our own responsibility, we are careful to ensure that they directly rest on, and derive from, such advice that we received. The issue is too important to do otherwise. And so we cite the general principles of parliamentary privilege—namely, freedom of speech and exclusive cognisance. We recall the basis for parliamentary privilege in New Zealand. We acknowledge the relationship between Parliament and the courts, and the need to balance parliamentary privilege with common law rights. We considered the appropriateness of applying the doctrine of necessity to parliamentary privilege, and whether, as a consequence, the same test would apply to other privileges.

We convey our concern that the approach of the Supreme Court in this respect appears to narrow the protections of the Bill of Rights, article 9. It confuses, we think, parliamentary privilege, which is an absolute privilege protected by article 9, with qualified privilege. Much depends, in this respect, on the meaning of the phrase “proceedings in Parliament”. The court’s decision, we feared, moves the interpretation of this phrase in New Zealand away from the interpretation followed in other comparable jurisdictions, and could have a chilling effect on the ability of the House to receive information from advisers. Indeed, we go further, as the Hon David Parker has said, and question whether it is even within the jurisdiction of the courts in this country to challenge the extent of parliamentary privilege in the manner done in Attorney-General and Gow v Leigh. This, dare I say it, plumbs the depths of constitutional reflection as far as I think it is possible to go. In advancing the observation, members of the committee intend no disrespect, and we trust that members of the judiciary accept that assurance.

So much for the legal dimension; there is also the political dimension of such a far-reaching foray into constitutional law, for, in the final analysis, it is the people, the true source of all sovereignty, who must decide on the relationship between their various branches of Government. To adapt an observation of the Law Commission in commenting on the pecuniary interest issue, neither the judiciary nor the legislature exists in isolation. They are institutions in a particular society. Their persons must have the respect and faith of the communities they serve, in order to be effective. The court of public opinion supersedes all others.

On that matter I have only one observation to make. It is of paramount importance that the public understand the true meaning of the phrase “parliamentary privilege”, as the Hon Chris Finlayson has noted. This does not mean undue or unearned material benefit for members of Parliament; it is almost the reverse. It means the protection of their freedom of speech and, in this case, that of officials advising them for the sake of liberty and democracy, which is the inherent right of the people they represent. If this is clearly understood, there should be no problem expecting the people to understand why this Parliament has been so moved, why the Speaker felt compelled to refer the matter to the Privileges Committee on the first parliamentary day after the Supreme Court’s decision, why the committee has laboured so long and so carefully, and why its recommendations are so far-reaching. But if there is any doubt on the part of the public about this, we would do well to consider a change of phrase. We could use the phrase “parliamentary protections”, rather than “parliamentary privileges”, if it were to make the critical difference in the political context. I am aware of the weight of tradition that supports the current phrase, but there are two meanings to the word “privileges”, and one seems to get lost in the static.

The Green Party concurs with the report of the Privileges Committee on Attorney-General and Gow v Leigh, and commends its recommendations to the House.

First of all, I want to recognise the Attorney-General and my fellow members of the Privileges Committee, who considered what was, and is, a very serious issue. The committee’s consideration of this issue is an example of how Parliament should work when people put the best interests of the institution they belong to, and a great tradition that they have been part of establishing, to the forefront and forget about party politics. It may be pure serendipity that there was no politics involved in this at all, which is probably why Parliament acted as it did—not in a surprising manner but in a far too infrequently seen manner.

First of all, article 9 of the Bill of Rights of 1688 is an ageless beacon for our democracy, and it is often misunderstood in terms of how important that is. The right for an MP—in short, we interpret it—to speak in Parliament openly and honestly without fear of later legal action is fundamental to sound debate and the expansion of knowledge and argument on which parliamentarians collectively can make a decision. There has been, over the years, a slow erosion of parliamentary privilege in this country in two respects. First of all, as to the public’s understanding of it, an MP is frequently portrayed as hiding behind parliamentary protection, when everyone knows, particularly in the press gallery, that without that parliamentary protection not one media outlet would publish what that MP is saying, not in terms of any consideration of the merit of what that MP is saying but simply a blanket embargo, because they themselves, the media, fear the cost of publication being a later lawsuit. That is the first misunderstanding. Often a member of Parliament will say something in Parliament because that is the only way that the communication or media industry can actually broadcast without fear of a lawsuit what has been said.

I want to emphasise that. Far too many journalists will say to you: “Why are you saying it with parliamentary privilege?”. My response always has been, personally, to say: “That is because you’re too gutless to report it without fear of being sued. You have all the resources, you are backed by millions, and you are putting that up as some sort of act of temerity or even cowardice when in fact it is a protection of you as well.” If you trace back the recent history of this country, you see how often that allegation has been made, when, in fact, at the end of the day, the MP has been proven to be reserved in the extreme about the allegations he or she made.

The second thing is that the courts have taken the view that their arena—and it has been a slow erosion—is the appropriate place where an MP can fairly defend him or herself for something said in Parliament. For example, it may be in respect of the connectedness of a statement, whereby a parliamentary speech is made first and the MP is asked about what happened in Parliament and he has merely said words to this effect: “Well, you have heard him and you have heard me. Make up your own mind.” That has been as thin a connection or link needed for a court to seek to hear an action that it should not be hearing in the first place, and it is an affront to parliamentary privilege in my view.

It also invites the use of a gagging writ to shut down further disclosure, and there have been some serious examples of that in recent time. Every one of them has failed, except for one—or, rather, two. But that one went on appeal to the High Court and got half turned over. I am frequently met by law students all around this country who say: “Well, why didn’t you go the whole way?”, which is a marvellous question to ask someone when that person is financing the whole action from his own resources—after paying tax—and all himself. It is quite shocking to hear that, because, of course, one would have loved to go the whole way to clarify the law, and that is what I would like to say to the judiciary. It is as clear as daylight and the message is this: “Yes, you sit there with all the resources of the taxpayer, at no expense on this matter whatsoever, and you’re hearing before you an MP who is funding an action all by himself or with the support of like-minded people in the community.”

There are good examples of that. Nick Smith had a legal fund in respect of a defamation case he was facing that emanated out of the top of the South Island. John Banks, similarly, had a legal fund that emanated from, I think, a case relating to Truth magazine, in which he was involved. The extraordinary thing about that, of course, is that I had one as well. That became a fund that in law, I was told by this Parliament, I could not have, and that was the kangaroo court of the Privileges Committee, the august committee that got it right this time but got it wrong back then.

We all know how hypocrisy works, but all I am saying to the court and to the members of the judiciary who think we are wrong is this: who is funding the MP to defend something he or she has properly put to the Parliament of the country? The answer is no one. So they—that is, the judiciary—are not in the shoes of someone who sits here with a protection that is 100 years old and emanating from the UK, and thank heavens for that.

I also say this to my colleagues who have heard this argument before, and they heard it before the Privileges Committee inquiry back in 2008. Do you understand the risk you take when you go down that path of denying an MP to obtain not for political reasons—there are no votes in it—the right to start a fund to defend him or herself, and when frequently up against the very wealthy, the extraordinarily wealthy? If you as an MP have ever faced millions and millions of dollars of defamation writs from some of the wealthiest people in the country, then you might know what I mean. But I am sad to say that back then, the committee decided to restrain and curb their rights to fight such defences, and I believe they acted in a most inappropriate way.

The great thing about this committee and this report is that I think there is a view across the committee that we need to correct this erosion and restore the situation to what it should be legally. We commend this to the rebalance of Parliament, not on the basis of some venal self-interest but on something far more important by way of principle, and that is the right of an MP, whether wrong or right, to honestly state his or her view in the hope that that adds to the public debate and the quality of decision making in Parliament. That is an important right. I want to thank the Attorney-General for chairing the committee in an extraordinarily competent way. Thank you.

I want to take a call on this very important Privileges Committee report, and I would like to acknowledge the work of both the Attorney-General and the Privileges Committee itself for producing, I think, a very good discussion of the background to it, and bringing perhaps to a head years of concern about a lack of clarity and understanding about the nature of both parliamentary privilege and parliamentary proceedings. This, as the Rt Hon Winston Peters said, is not just a constitutional issue; it is one of the most important constitutional issues, and I might say that, in the context of what is meant to be apparently a time of national debate about our constitution and whether we should have a written one or not, this at least is a matter of real constitutionality. It is about how power is distributed and how it is represented, and it is about the relationship between the different branches of government. These are questions that go to the core of what makes up a constitution, and it is good that we are having an open discussion, at least in this House this afternoon, on this important issue.

As has been clear from previous speakers, the heart of this debate is about what constitutes the proceedings of Parliament. The case that went to the Supreme Court and has led to the Privileges Committee considering the matter and writing this report was a defamation case. The Defamation Act itself—a piece of legislation with which I have recently become familiar, along with a colleague of mine—uses the term “privilege”.

💬 Hon Trevor Mallard: That will put both these cases in common.

There is not a great deal in common with the Leigh case, because in that case, of course, there was a Minister being advised, and it was the Minister’s adviser who was really in the gun because of what he said, or is alleged to have said, in advising the Minister. In the more recent case involving Mallard and Little, it was a Minister who took umbrage at comments made, the veracity of which have never been tested, and, indeed, the case has been pulled and we will never know what the result would have been.

But the Defamation Act itself uses the term “privilege” in terms of absolute privilege, qualified privilege, and parliamentary privilege, notwithstanding that those terms have different meanings in each case, or, at least, qualified privilege and absolutely privilege on one hand, and parliamentary privilege on the other. As the Attorney-General said, parliamentary privilege is about protection—protecting members of this House, who, having been elected to come here, must be allowed to do so, to fulfil their obligations and duties without fear of being harassed and harangued by the powerful, the mighty, and the wealthy as they do so. So it is accepted that MPs must be able to prosecute their role. We must be able to fulfil our duties and obligations without fear from others in the community who would seek to prevent us from doing so.

It is also important that there are safeguards for citizens, because, as the Attorney-General correctly pointed out, parliamentary privilege is about protecting members, but it is not about elevating members to an unnatural status within the community, so that they are beyond reach or cannot be touched if they transcend or transgress either the law or other accepted rules and principles. So there must be safeguards for citizens as well. Although I am new to this House and I have not been here during the development of the existing Standing Orders, there are Standing Orders that do go to the extent of protecting citizens, so that if a citizen who would not have otherwise had a voice here is referred to, particularly if they are referred to in disparaging terms, there is a process by which they can have their reputation protected, or at least have a version represented. Likewise, when it comes to the relationship between this House and the other branches of government, principally the judiciary, there are Standing Orders that seek to preserve and protect the relationship between them.

Sitting behind this report and the recommendation of it, which is to provide a statutory clarification of parliamentary privilege, we have the case of Attorney-General and Gow v Leigh, which focused on the necessity principle—what is needed to make the absolute privilege of Parliament functional and workable. That was the focus of the Supreme Court, as opposed to what I think, with great respect, was really at the heart of that case, which was more about what inquiry was needed to ensure that the Minister could fulfil, in that case, his obligation to answer fully and properly to the House, and what was needed to protect the citizen. So a Minister must be free, in taking advice, to pose questions and to obtain advice, both orally and written, from officials on whom they are dependent and reliant to get advice. That must be able to be conducted in a “free and frank way”, as the expression is given, and, indeed, reflected in the Official Information Act. The free and frank expression of officials must be preserved and protected to enable the role or the function of the Government to be carried out.

It appears, in my humble view and respectful opinion, that the Supreme Court conflated the test needed to protect the right of the citizen, who in this case is Ms Leigh, with the manner in which Parliament must conduct it business. So I think that the Privileges Committee has correctly struck the balance and concluded that it is right for this House, to enable it to conduct itself properly and its members to conduct themselves without fear of harassment from others in the community, to legislate for a definition of parliamentary privilege and parliamentary proceedings. That need not cut across citizens’ rights and the ability of citizens to stand up to preserve and protect their reputation. That can be accommodated in the Standing Orders of the House, as, in my view, it already is. But we do need to be aware, at least in the public debate that will happen about legislation, that there will be a tension between citizens and their representatives in this House as we seek to protect our ability to do our job.

It is interesting that the origin of the Bill of Rights 1688 was more about the relationship between the Crown or the monarch and Parliament, and that was a Bill of Rights that was about preserving and protecting the role of Parliament, as against the monarch of the day, and ensuring that the Crown could not unduly interfere in the conduct of Parliament as it went about raising taxes and passing laws, and that it could not be gainsaid by the monarch of the day making their own dictates and passing their own laws unilaterally, without the proper involvement and consent of Parliament, and likewise levying taxes. That is what the Bill of Rights 1688 was about, and that is what it was referring to when it talked about the proceedings of Parliament in article 9, where it sought to preserve and protect those. It is clear from a reading of that 1688 document that the reference to the proceedings of Parliament was intended to be broad and was intended to give effect to Parliament, in all its dimensions, conducting itself and fulfilling its business.

So I want to once again acknowledge what is, I think, a very good piece of work in the document that has been reproduced and that we are discussing now, and I look forward to the legislation as it is drafted and as it comes before this House for more considered and detailed debate.

Motion agreed to.

Consideration of Interim Report of Privileges Committee

Question of Privilege Concerning the Agreements for Policing, Execution of Search Warrants, and Collection and Retention of Information by the NZSIS