Parliamentary Privilege Bill

I move, That the Parliamentary Privilege Bill be now read a second time. I want to begin by endorsing what the deputy leader of the Labour Party said about the excellent work done by the officials, because they really did do a tremendous job on this bill. I particularly acknowledge Debra Angus. I think in her we have, as Mr Parker said, a foremost Commonwealth authority on some of these difficult issues. I also acknowledge John Pike QC, who has probably conducted more litigation in this area than any other lawyer in the Commonwealth.

I also acknowledge the assistance provided by the submitters, all of whom gave very helpful submissions to the committee. I acknowledge David Cochrane for the Legislation Advisory Committee and the helpful submissions and reports received from overseas Parliaments, including the Joint Committee on Parliamentary Privilege, of the House of Lords and the House of Commons. Although that committee recently considered that extensive codification is not required in the United Kingdom at the present time, it concluded that legislation should be used only where absolutely necessary to resolve uncertainty or in the unlikely event of Parliament’s exclusive cognisance being materially diminished by the courts. The bill recognises that in New Zealand we have actually now reached that point.

Before turning to the bill I just want to say something about the importance of the issue. Parliamentary privilege is not about giving a licence to members of this House to defame outsiders without having to suffer the consequences. Such a cynical view of parliamentary privileges, probably to be expected from some in the community—and I can just about read now some of the portentous editorials and opinion pieces on the subject that can be expected to be produced any day now. I just want to say they are wrong. I support what the report of the committee says. Parliamentary privilege is in fact one of the building blocks of our democracy; it is the cornerstone of an effective Parliament, and protection of parliamentary privilege safeguards democracy itself. It ensures that we, the people’s representatives, can debate and deal with the issues of the day freely and frankly, without fear of coercion or punishment and without concern that matters of accountability will be adjudicated on by bodies outside the House. It ensures our democracy remains robust and strong.

It is also important to emphasise three key points: firstly, that parliamentary privilege belongs to Parliament, not its individual members; secondly, that others who interact with Parliament, such as the media and members of the public or officials, may also benefit from the existence and the protection of parliamentary privilege; and, thirdly—and this is very important for all of us—that with these privileges come obligations. We must be circumspect in the use and application of these privileges. We have got to be mindful of their source and purpose when we invoke them.

As can be seen from a cursory reading of the bill, we have extensively restructured it to make it easier to interpret, easier to navigate. Instead of two parts, one dealing with substantive provisions and one dealing with savings provisions, related amendments, and repeals, there are now in fact five parts. Part 1 deals with preliminary provisions. What we have done is recast the purpose clause in clause 3 into a main purpose clause and subsidiary purposes. That is there for all to see.

Clause 3(1) sets out the main purposes of the bill—that is, to reaffirm and clarify the scope and extent of parliamentary privilege as it applies to the House, its members, and committees, and to ensure adequate protection from civil and criminal liability for communication of, and documents relating to, proceedings in Parliament. Yes, indeed, they are high-level statements of the principles, but they were not so clearly and cogently expressed in the original clause. Clause 3(2) sets out the subsidiary purposes to help it achieve the main purposes. I will speak about them a little later on.

Then what we have done is insert new clause 3A, and that stipulates that the bill has to be interpreted in a way that promotes its main and subsidiary purposes and, importantly, that it must be interpreted in a way that promotes the principle of comity. Comity requires that the separate and independent branches of Government, the legislature and the judiciary, show mutual respect and restraint in the other’s sphere of influence. This is not a legislative innovation, because this principle of comity has long been recognised. New clause 3A emphasises the importance of understanding this constitutional context when dealing with questions relating to parliamentary privilege or proceedings in Parliament.

Then we come to new Part 1A. It is the very heart of the bill. Clause 6 sets out the purpose of parliamentary privilege—that is, the privileges, immunities, and powers of the House are exercisable to uphold the integrity of the House as a democratic legislative assembly and to secure the independence of the House, the members, and the committees in the performance of their functions.

Clause 8 of the bill as introduced broadly followed section 16 of the Australian Parliamentary Privileges Act 1987. But what we have done is work to make this provision clear, simple, and easy to understand. That, of course, is very important when one is considering a major constitutional piece of legislation like this. We have recommended changes for a new Subpart 2 of Part 1A of the bill to separate the key components of clause 8 into eight separate clauses. We have also recommended changes to simplify and modernise the language.

What will happen is that these clauses still broadly follow section 16 of the Australian Act. They do not replace but declare the effect of article 9 of the Bill of Rights 1688, which states: “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:”.

We had an interesting discussion about some of the terminology and whether or not it could be updated, but after some deliberation the committee suggested that the bill continue to reflect the original language of article 9, and this is reaffirmed by clauses 8A to 8H. These provisions do not directly override or amend article 9; rather, they sit alongside it. So although clauses 8C to 8F make clear what is intended by impeaching or questioning in relation to a proceeding in Parliament, the bill does not limit the full extent and the richness of the meaning of the Bill of Rights 1688, which is one of our most important constitutional documents.

Clause 8B is an extremely important clause because for the first time, I think, we actually try to define “proceedings in Parliament” for the purposes of article 9 in the Bill of Rights. It is important to note the committee recommended changes to ensure that proceedings include matters that relate to the “transacting of reasonably apprehended business”. It is also made explicit that necessity is not—I emphasise that it is not—the appropriate test to apply when determining what may be a proceeding in Parliament.

The changes recommended by the committee make it clear beyond any doubt whatsoever that the reduction in the scope of parliamentary privilege resulting from the decision in Attorney-General and Gow v Leigh is reversed. I quote again from the committee’s report: “Our proposed definition recognises that much of the vital business of Parliament is transacted away from the floor of the House, or in reasonable anticipation of parliamentary business, and it is critical that privilege apply to such proceedings.” The necessity test is, with the greatest of respect, utterly misconceived. “We consider the advice provided to Ministers in preparation for reasonably expected questions in the House”—as occurred in the Leigh case—“are proceedings in Parliament under this definition.”

Let me also say something about another case that went off to the Privy Council after arising out of something here: Buchanan v Jennings. That was a defamation action against an MP who, after making a statement in the House, was said to have effectively repeated it when he said outside the House that he did not resile from the statements made in the House. The case established that where such a statement was made, it was an effective repetition, and that the proceedings of Parliament could themselves be used in evidence. In its 2013 report, the Privileges Committee recommended the abolition of the doctrine of effective repetition, and this was included in the bill as introduced. What we have done here is recommend changes to clause 8C, including the addition of new paragraphs (d) and (e), to prevent proceedings in Parliament from being relied on to prove or disprove facts necessary to establish liability in court or otherwise being used to resolve, support, or resist court proceedings.

The bill as introduced also included a statement in what was clause 10 that effective repetition statements were protected by absolute privilege as well as establishing an evidential barrier. The committee recommends removing all provisions relating to absolute privilege and relying on a strengthened evidential barrier against the courts using proceedings in Parliament.

Part 1B further simplifies the framework for protecting the broadcasting and publishing of proceedings in Parliament. The new clause 15 replaces clauses 11 to 13 and 15 to 16 of the bill as introduced. It provides for a stay of court or tribunal proceedings that have been brought on the basis of a proceeding in Parliament or of a document related to a proceeding in Parliament communicated under the authority of the House, such as broadcasts made under the authority of the House. Subpart 2 of Part 1B deals with the qualified immunity available as a defence to proceedings based on fair and accurate reports of proceedings in Parliament. Of course, being a qualified immunity, it will not be available where a defendant was motivated by bad faith or ill will.

Time prevents me from dealing with the remaining parts, so I will leave that to other members of Parliament to address, but I simply say this in conclusion: parliamentary privilege stands as an independent and vital part of our constitutional arrangements. What this bill does is address incremental infractions on that constitutional principle over the years and affirms the principles that help ensure a strong democracy. I commend the bill to the House.

Again, can I endorse the Attorney-General’s comments in respect of the Parliamentary Privilege Bill, which is probably one of the more important bills that we will pass in this Parliament. It will not be seen by a lot of people to be that, but in my opinion it is. Democracy is a very fragile thing. Democracy involves this complex web of societal settings including respect for the rule of law, protection of property rights, prosperity, a fair division of income, a fair division of wealth, an educated population, a healthy population, freedom from corruption, transparency—all of these ingredients that you have to get right in order to have long-term democracies.

There are very few long-term democracies that are unbroken in the world. New Zealand is one of the longest unbroken democracies in the world, and, indeed, most of the long unbroken democracies in the world have their roots in the Westminster model of governance and the separation of powers. If you look around the world, there are very, very few countries that have our record of 150 years of unbroken democracy. That is the record in New Zealand—over 150 years of unbroken democracy. None of the countries in South America, none in Africa, and none in Asia have it. There are virtually none in Europe, with a couple of exceptions there in respect of, you might say, Switzerland and you would certainly say the United Kingdom. Then the other exceptions include the likes of Canada, Australia, New Zealand, and the United States. Even the United States democracy in an unbroken sense is not as long as ours because it, of course, had its Civil War.

The length of democracy that we have in some of these countries that are based on the Westminster model has proven to stand those countries in good stead, and at the heart of the balance of these different relationships that you need to protect in order to achieve a long and fair democracy lies, as one of its principles, the balance of power between Parliament and the courts. The elucidation of that relationship—if you want to look at that in a historical context for New Zealand—goes back to the Bill of Rights 1688. At that time there was conflict between the King and Parliament. The King had effectively usurped some of the powers of Parliament. He had overridden some laws without the approval of Parliament and had written some new laws without the approval of Parliament. There was a scrap going on in the UK between these different arms of the country, these different powers within the country. I do not pretend to be an expert on these historical issues so I will probably get some of the detail wrong, but essentially there was this contest between the powers of Parliament and the powers of the King, then there was also the questions of where the power of the court lies in this and what the limit is to the court’s powers. Is it an arm of the King, is it an arm of the Parliament, or is it a separate arm that should stand alone, and where does this intersection of powers exist between Parliament and the court?

It was sorted out, essentially, through the Bill of Rights 1688. Freedom of speech was set out in article 9. It said: “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.” That is a pretty general statement. Sometimes these statements are actually best left a little bit general, because at times there are grey lines that are very, very hard to completely codify in a way that answers all possibilities into the future, because they cannot all be thought of and circumstances change, and if you go down that particular codification route, you can actually get yourself into a pickle. In reality, if you have an irresponsible Parliament that is going too far, then I want the courts to push back against the way that Parliament is acting against the interests of the people. If you get courts that are going too far, and they are writing too much law or going too far by effectively entering into the political realm, then I want Parliament to push back against the courts.

I quite like the generality of the provisions that sit in the Bill of Rights 1688, because it enables that mature sort of pushing backwards and forwards where these two incredibly important spheres of influence within society occasionally push up against each other. When that circumstance arises, then we rely upon our traditions to make sure that we do that in a respectful way. If we think the courts have gone too far, we respectfully push back a little bit, and if they think Parliament has gone a bit far—as they have recently expressed in respect of issues relating to taking voting rights away from prisoners that this Parliament did, against the opposition of the Labour Party, I have to say, but it did none the less—they gently push back the other way. They do it respectfully, and this is the principle of comity that the Attorney-General was referring to.

That for me is the generality of what we are dealing with. We have a fantastic system in New Zealand. We do not need to codify all of these things. We would be worse off if we did codify everything. Occasionally, we still need to push back against the other, and then through that respectful process we use to get there we actually get to a decent outcome that we can all live with. We get this balance of interests right, which means our democracies endure and we have a peaceful, prosperous, and happy country. That is essentially what democracy should be trying to achieve. When you go from that to the specifics of this bill, the specifics are dealing with what we in Parliament think has been a push a little bit too far by the courts, into undermining what we think is the true intent of that freedom of expression set out in article 9, which guarantees “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.”

We think that two recent decisions of the New Zealand courts—namely, the decision in Attorney General and Gow v Leigh and the decision in Buchanan v Jennings—in their own ways go a little bit too far. That is what this legislation tries to fix. It does so by choosing at the same time to set that out in statute and codify it, in respect of what is absolutely privileged in terms of parliamentary proceedings. Parliaments in the Westminster tradition have been pretty slow to do that because we like the generality of rules, but the Australians led the way and they seem to have got to a pretty sensible place. So the way in which we are trying to get back to what we think is the underlying intent in article 9 of the Bill of Rights is by codifying what we think is a parliamentary proceeding that ought to be subject to absolute privilege, not for the benefit of members of Parliament but for the benefit of democracy. The legislation that the Attorney-General has brought forward does that.

I also, again, repeat the thanks that I gave in an earlier contribution on a report of the Privileges Committee in respect of, in particular, the contributions of Debra Angus, and I would also add my thanks to the Legislation Advisory Committee, in particular David Cochrane’s contribution in respect of that. I think the suggestions they made that we were actually creating a bit of a problem in respect of importing defamation concepts into our parliamentary privileges legislation were wise, and that is why in the bill as reported back from the select committee we fixed that in the manner that the Attorney-General has explained.

In respect of Buchanan v Jennings, the problem with that decision was that it—not in a deliberate way—took advantage of the liberty that Parliament is given in New Zealand and some other jurisdictions for matters that are absolutely privileged in Parliament to be used in court. We do allow that at times, but it actually took that a step further and said that allowing that to happen should be seen to be allowing those statements in Parliament to be used to prove defamation in respect of effective repetition outside of Parliament. From our perspective that was the logical error in that decision, and so we are trying to reverse that and say that it is a nonsense, and it would be seen as being a nonsense by people outside of Parliament, to think that a member of Parliament would be defaming—it might be the rich and famous who feel that they have been wrongly treated by a statement in Parliament—by saying nothing more than “I do not resile from what I said in Parliament.”

If you say outside of Parliament what you said in Parliament and you actually repeat it, of course, that is another defamation and you can be sued for it. But not to be able to say “I don’t resile from these comments.” is a nonsense and actually makes politicians look silly, which in itself would undermine public confidence in democracy, which is what we are trying to achieve here. So I and the Labour Party support the second reading of this bill.

I do not intend to take up too much time in this second reading. I will reserve my more substantive comments on the bill for the third reading, but I just say that the Green Party is very pleased with the progress in the Privileges Committee on the Parliamentary Privilege Bill. I do also want to join others in acknowledging the work of officials, particularly Mary Harris, Debra Angus, and Meipara Poata. It is a privilege—if you will allow the word—to be a member of a committee served by officials of that calibre.

The Parliamentary Privilege Bill is a most massive piece of work and it focuses on the most fundamental matters affecting the constitution that I think we have undertaken, certainly in the 50th Parliament and possibly for some time before. It also involves the most intricate threads of reasoning that I have experienced in committee work in my time in the House, and I pay tribute to colleagues Chris Finlayson, David Parker, Grant Robertson, and others as well as the officials for collaboratively producing this bill.

I want to make just one or two points of a general nature. We have been talking this morning about the principle of comity underpinning this bill and the relationship between the executive and the judiciary. I would wish to emphasise—and I am sure I speak for others—that the bill is not intended in any way as a sign or a gesture of disrespect to the judiciary. It is taking on some of the judicial decisions that have been made. As David Parker said, there is a fundamental reason for that. The principle of comity rests on mutual respect and it is that that is driving, to some extent, this bill. But there is, if I may say so, a related principle, and that is the principle of self-respect of the branches of government—self-respect by the legislature of the legislature and the interests of the legislature, self-respect by the judiciary of the status and interests of the judiciary itself. And I think the mutuality that underpins the principle of comity rests on a recognition of the need for self-respect on both branches as well. I think it is very important that this bill—presuming it passes through the House—is embraced in that spirit by everybody in New Zealand and all branches of government.

My second point picks up on something the Attorney-General has said about parliamentary privilege. I totally agree that privilege in this House is not a licence. It is not a licence granted to members—to insiders—to defame members of the public outside. It is precisely the opposite. It is not a licence; it is a protection. It is a protection that is exercised by the representatives who are elected by the people to ensure that the rights and the freedoms of the people are respected in perpetuity. So privilege is actually, in a sense, vicariously the privilege of every member of the New Zealand society and, provided it is exercised with responsibility, we should all be embracing it. With privilege, of course, comes obligation, not least the obligation to ensure that we get this bill right.

I would just want to make one last comment and that is in response to—at the risk of wafting into seminar-like ratiocination but I blame David Parker for that—

💬 Hon Todd McClay: You wouldn’t do that, Kennedy.

Yes, it is David’s fault. It is true that bills of this nature underpin and secure the democracy that prevails in this country and it is incumbent on us to cherish and celebrate the status of democracy in this country. But I think there is an equal counter-requirement on our part not to overstate that and not to perceive our democracy as being superior to others. I think, in fact, that the moment we start to do that is the moment we start to take on the risk that you could undermine it.

I say that because the Westminster model that we have inherited, which Mr Parker mentioned, has tremendous strengths, but I personally think it also carries with it some weaknesses. I worked in an organisation that you, Mr Assistant Speaker, might possibly be aware of when I was in New York, and my job was to relate to parliamentarians around the world and to parliaments. When you visit 30 or 40 parliaments you get a feel for the constitutional structures that underpin the politics and the society in those countries but also the dynamics and the chemistry day to day that give the blood to the veins of that kind of particular democracy. You go away concluding that every democracy has its strengths and its weaknesses, and we have to recognise that ours has weaknesses.

We talk about the separation of powers but we have just devoted the last couple of sessions—not so much with consideration of reports on the New Zealand Security Intelligence Service and the police but with the Henry report—to exactly this issue: the separation of powers and the problems that the merger of executive and legislature in the Westminster system gives to us. I think we could have regard, actually, to the republican constitutional status and the civil law code, which have strengths that we lack. It is as simple as that.

I think if we look at 30 or 40 Parliaments around the world that reflect the republican status, the one defining conclusion I have drawn from visiting 30 or 40 of them is that a little bit of carpentry is not a bad idea for democracy. Those legislatures are hemispherical, but the Westminster system is almost World War I trench warfare. There are times when I have concerns, looking at the fine member of Parliament—and I really mean that—in the form of Grant Robertson and the fine member of Parliament in the form of the Attorney-General. They are two sword-lengths apart, more or less. It is trench warfare, and it undermines the ability to form a social consensus that can be sometimes quite critical to issues of defining importance where we must play down the adversarial nature of relationships between parties and the differentiation of policy between parties.

Some things are too important for politics, and we need to find an underlying consensus on which we can base a national policy that can move marginally from Government to Government, not in the fundamental way that can happen in Westminster systems, and in Australia and New Zealand probably more than anywhere else. I go through Europe, as I did at the end of last year, and I see the underlying consensus. Take climate change, which I am devoting a lot of time to. There is a consensus there on which policy can rest that is lacking in this country and in Australia, in Canada, and in the United States. So I just mention that in passing because I think when it comes to supporting a bill like this it is critically important that we do support it, and that we get it right. But let us also think about some of the other broader issues of defending the democracy that we do so cherish in this country. Thank you.

I rise to speak briefly to the Parliamentary Privilege Bill. I think, from listening to the debate so far, the collegiality that we see in the House, even in the order of speakers, is proof that it actually was an extraordinary privilege to come together in the Privileges Committee and talk about issues that have nothing to do with the day-to-day politics that we are all consumed with on a daily basis here, but to be able to delve into quite critical issues for democracy. At times, I have to admit, as a non-lawyer, it was a very esoteric discussion. But there were two very clear issues that we were addressing. One was the relationship between Parliament and justice—the courts—and that is, of course, defined as “comity”. That was actually around a decision made in the courts about how Ministers and MPs can get advice from officials and what protections there are for the performance of politicians to be able to rely on free and frank advice from their officials. The second issue again related to the ability of Ministers and MPs to speak freely in this House. Both issues need to be protected under parliamentary privilege, and have a long history.

Of course, as a lover of history, that fascinated me. Even though we think we are modern, in the 21st century, actually much of what we discussed goes right back to the 1600s and the Glorious Revolution, which was to overthrow the Stuarts. Of course, that is all tied up in religion, but politics is at the heart of it. So we went right back to that Bill of Rights that was passed on 16 December 1689. That restated, in statutory form, the Declaration of Rights that was presented by the Convention Parliament to William and Mary, inviting them to become the joint sovereigns of England. It laid down the limits of the powers of the Crown, and set out the rights of Parliament and the rules then for freedom of speech. When you dig right down into what was a very simple matter that went to court, about the ability of an official to give a Minister free and frank advice, without fear of being taken to court for that advice, it goes right back to William and Mary and the Bill of Rights.

When you look at the Bill of Rights, it laid out certain basic rights. The first was that there could be no royal interference with the law. Although the sovereign remained at the head of justice, they could not unilaterally establish new courts or act as a judge. There were two other provisions that were of note for us. One was that there was to be no royal interference in the election of members of Parliament, and, secondly, 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. That went to the heart of the second issue that we were dealing with. So MPs are able to stand in the House and ask questions to hold the Government to account and make statements, and they are able to do so without fear of court action against them, so that they have the right, under parliamentary privilege—always taking into account that we have a huge responsibility not to abuse that privilege—to be able to stand by those statements that are made in Parliament without the fear of being taken to court.

So those two particular issues—firstly, being able to get free and frank advice from officials and, secondly, protecting that right to stand in the House and ask questions and make comments and statements without fear of the courts—were about the balance between the rights and privileges of parliamentarians versus the rights and privileges of the courts. In the end, we felt that the balance was wrong and this bill attempts, then, to put back in place those privileges that we deem to have been granted to parliamentarians, dating right back to 1689 in the new dating.

It was a long and interesting discussion. I agree with the previous speakers that we were well led by the Attorney-General and David Parker, but in the end all members were able to contribute to what turned out to be a most interesting parliamentary bill. It had a number of changes. We were extremely well served by the staff, and the recommendations that we have made, I think, are of importance for all parliamentarians, because they do restore the rights that we all assumed that we had and better protect the privileges that we hold dear in our New Zealand democracy. So it is a privilege to stand in the House and speak to the second reading of this bill and I recommend the bill to the House.

I too join with other members in commending this Parliamentary Privilege Bill to the House. I will speak more generally in this contribution about the changes that we have made to the bill and save the details for the Committee stage when we come to that.

I want to acknowledge the previous speaker, Anne Tolley, as one of the other non-lawyers on the parliamentary Privileges Committee. We were a small club in the room, but we attempted throughout to try to ensure that what we were writing was not only legally correct but also understandable to a range of people. This was a challenge, but we took it up. I agree with Anne Tolley that all members of the committee contributed strongly to the piece of legislation that is in front of us today.

I will make some reference to the comments that Kennedy Graham made towards the end of his speech, because I think they are important. I am not sure that the difference between what he said and what David Parker said is large, but there are a couple of critical elements that I think are different and are very worthy of debate. One of those I will mention now. I respect the points that he made particularly about the adversarial nature of this debating chamber and the way in which politics plays out under our system. I think it is important to note that this bill and this report of the select committee are an example of where some of the personalities that Dr Graham mentioned actually were able to come together in a way that is, I think, what he would like to see as the ideal operation of our system—we sat down and we talked through the issues and came up with a solution that was one we could all agree on. We did that on the basis of the fact that this was a debate about the principles of how we run our system. There is no need in my mind for that to be done in an adversarial manner.

What we can never do, in my view, is take the politics out of politics. That is actually a debate about ideas and different ideas for how to achieve the things we believe in. I believe we should be respectful when we are doing that—I will put my hand up from time to time under strong provocation from the Attorney-General—which, occasionally, perhaps may not be evident when people are watching us in the House, but that is not to undermine our agreement on the importance of the principles of our democracy and our ability to be here.

💬 Hon Christopher Finlayson: He’s fixated on me.

I think it might be the other way round. I have just got a feeling that it is the other way round—from the Attorney-General. But this is a serious point.

Kennedy Graham mentions the issue of climate change and it is an issue where I would like to be able to say there is a core set of agreements within this House, but, actually, in a question that the member himself asked yesterday, there is still a debate about the legitimacy of the scientific evidence around climate change. I find it utterly ridiculous that there would be a member of Parliament who might think that, but they do. The debate about that will become passionate, it will become strong, but that is part of what we do here. I do not think we should be unnecessarily adversarial, but the notion that there is a consensus out there on most things is one that I find challenging by the empirical evidence of what I see in the community. But in terms of the processes and the systems that we set up to manage that, yes, I think there is a lot of scope for us to find ways that we can work together. This bill is an example of that.

Our system is not static. I think that is very important. Kennedy Graham used the phrase of “using some carpentry” on the system. I think that is absolutely valid. If you look at the New Zealand system, we have constantly done that. You can walk out the back doors of this debating chamber and see the empty Legislative Council Chamber. We can stand in here today and know that there is a multiplicity of parties represented in this Parliament as a result of a fundamental change that we made to our system. So of course the Westminster system evolves and of course the model of it that we practise is unfamiliar to those who actually sit in Westminster, because of the changes we have made. It is not to say that we remain static. What I think is important, certainly to me and, I think, to my colleague David Parker, is that the core principles of our system have served us well. We must make them the best they can be when they are operationalised.

The point that David Parker was making that is relevant to this bill is around the relationship between the judiciary and this Parliament and the push and pull that we see within that. I think there is something within the New Zealand psyche that is not too keen on making hard and fast rules and that likes the idea of there being a little bit of give and take and challenge based on a respectful set of principles, and that is what I believe this bill does today. It provides us with the clearest possible explanation of those principles. As the commentary to the bill says, “the bill seeks to restore and reaffirm understandings of the scope of aspects of parliamentary privilege, and to consolidate and modernise existing legislation.”, and it does do that. Underpinning it is the principle of comity, which is the mutual respect of the legislature and judiciary, which is what I have just been discussing. I think it is very important that that respect is noted and that we note that it is the core of this bill.

The fact is that parliamentary privilege is a vital part of our democracy and not for us as individual members—a point made by others and also made in the report of the committee. We have it on behalf of Parliament and on behalf of the people whom we serve. Otherwise we cannot debate issues freely and frankly. Although from time to time there may be members of Parliament who misuse the parliamentary privilege process that we have, that is rare. The reality is that it is incredibly important to us to stand up on behalf of our constituents and to be able to use this place knowing that we can speak freely and that we have freedom of speech, and that there is not a sense of coercion or punishment—to go back to the history lesson that Anne Tolley gave us before. We need to stand up for those principles. The Labour Party and I believe that we have done that in this bill. We will ensure, as the bill passes through this reading, that we make some substantive comments on one or two of the aspects where I think the bill needs explanation.

In my remaining time on this reading, I want to do two things. The first of those is to go back to Attorney-General and Gow v Leigh, which is the case that started this particular process off. There is no doubt that the business of Parliament is beyond what is necessary for the operation of and speaking in this Chamber. We all know that in preparing material to come to this House, it is a proceeding of Parliament and that it is part of what we do. In another life I was one of those people who prepared material for Ministers to answer questions. That is a proceeding of Parliament. It is very much part of the process. Ministers, in performing their role as part of this parliamentary democracy, need free and frank and fearless advice, and when it is used, they need to know that they are using it as part of parliamentary business. So we have righted a wrong here, in my view, in terms of what was decided in Attorney-General and Gow v Leigh. That is important. This is not disrespectful of the courts; it is merely reasserting the fact that the business of Parliament is larger than the necessity of what takes place in this Chamber. It involves the people who work here and the business that is transacted in and around this building. I will come back to some details of that in the Committee stage.

The other point is the one that has been raised already, which is the other case, Buchanan v Jennings, around “effective repetition”. I think we have made that very clear in this bill—much clearer than it has been before—and I think that both members of Parliament and those outside will be able to see that simply saying that you stand by a statement that you have made in here is not repeating that statement. It is ridiculous. We are asked every single day by journalists whether we stand by statements. We cannot avoid that. If a member of Parliament, having exercised their privilege to say something in this House that they know could cause them difficulties then goes outside of the House and expands on it, they will bear the responsibilities of doing so. What we have done in this bill is ensure that we now have a clear definition of effective repetition and have put to bed that case as well.

I commend the work of the select committee. I particularly appreciate the support that we have had from all of the officials. Mary Harris, Debra Angus, and Meipara Poata have been mentioned. I want to particularly mention Ross Carter and John Pike, who gave us excellent advice on both the drafting and content of this bill. This is a very important piece of legislation and I commend it to the House.

People listening to this debate need to understand that the Parliamentary Privilege Bill is not just about protecting MPs from legal action in respect of statements they make, nor just about protecting their support staff, and it is not a self-serving measure for MPs or their staff. It is about protecting the right of representatives’ freedom of speech, and it is about ensuring that advice given by their support staff cannot be used in legal proceedings brought by others. Nothing could be more important for our democracy. It is also important that it be noted that there is no real change here. The bill really just clarifies and partly codifies the operation of parliamentary privilege.

The bill seeks to restore and reaffirm understanding of the scope of aspects of parliamentary privilege and to consolidate and modernise existing legislation, following the judgment of the court in the defamation action Attorney-General and Gow v Leigh. Underpinning this is the principle of comity—the mutual respect that the legislature and the judiciary must have for each other. It is about reciprocal courtesy and respect between the courts and Parliament.

The bill does not set out to limit article 9 of the UK Bill of Rights 1688, the first formal instrument from a Parliament protecting the freedom of speech and debates or proceedings in Parliament. Nor does the bill seek to codify comprehensively or replace entirely with legislation every aspect of parliamentary privilege. It is particularly concerned with one aspect—Parliament’s freedom of speech and the associated matter of communicating proceedings in Parliament to the public.

New clause 3A emphasises the importance of understanding context when dealing with questions relating to parliamentary privilege or proceedings in Parliament. It would provide clear direction that the Act must be interpreted so as to promote the purposes of the bill and the purpose of parliamentary privilege. The Privileges Committee has revised clause 6, which sets out the purpose of parliamentary privilege, to make clear the underlying justifications for parliamentary privilege. The privileges, immunities, and powers of the bill exist to uphold the integrity of the House as a democratic legislative assembly, and to secure the independence of the House, its committees, and its members in the performance of their functions. Without that protection it has been suggested that Parliament would probably degenerate into polite but ineffectual debating societies, and that puts the matter in a nutshell.

Concerning the statements made outside Parliament, the approach taken in the amended bill is an evidential prohibition approach regarding liabilities from statements that effectively repeat statements made in proceedings in Parliament, commonly known as effective repetition, and relies on reinforced provisions for stays of court or tribunal proceedings in respect of specified authorised communications of proceedings in Parliament. I agree that this traditional approach, together with retaining the pertinent provisions of the Defamation Act, should provide sufficient protection.

New clauses 8A to 8H reaffirm and clarify article 9 of the Bill of Rights 1688 in accordance with the main purpose of the bill. They also would make clear what “proceedings in Parliament”, as used in article 9, means, and, in particular, seek to alter the law in the decision in Attorney-General and Gow v Leigh and would stop evidence being offered or received, questions being asked, or statements, submissions, or comments being made about proceedings in Parliament to inform or support effective repetition claims and liabilities in court or tribunal proceedings.

The main purpose of this bill is to reaffirm and clarify the nature, scope, and extent of the privileges, immunities, and powers of the House. Article 9 of the Bill of Rights 1688,which is part of the law of New Zealand, says: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any … place out of Parliament:”. The approach taken continues to reflect directly some of the wording of article 9, particularly those words that “proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament:”.

New clauses 8C to 8F would make clearer what is covered or excluded from the term “impeaching or questioning” in respect of proceedings in Parliament. I think that is the right approach. Although article 9 excludes evidence where the reason the evidence is offered or admitted is to impeach or question, it does not prevent evidence from being used, with no impeaching or questioning, to establish that something was said or done in Parliament as a matter of fact.

New Part 1B deals with communication of proceedings in Parliament. It would simplify the framework for protecting the publishing and broadcasting of parliamentary proceedings. New clause 15 provides for a stay of court or tribunal proceedings that are commenced on the basis of a proceeding in Parliament or a document related to a proceeding in Parliament communicated under the authority of the House, such as broadcasts made under the authority of the House. This clause would also provide for a stay of court or tribunal proceedings for which a copy of such a document was the basis. Subpart 2 deals with qualified immunity. Qualified immunity would be available as a defence for fair and accurate reports of proceedings in Parliament or extracts or summaries of documents published under the authority of the House.

The bill strikes a harmonious balance in the area where the privileges necessary to protect the independence of Parliament and the important role of the courts intersect. It is of the utmost importance that conflict is avoided by careful and respectful consideration of each other’s constitutional roles. This bill strikes the right balance and reverses the decision in Attorney-General and Gow v Leigh and partly codifies the law of parliamentary privilege.

New Zealand First wholeheartedly supports the amended bill and commends the committee for the very good work it has done on it.

Just before I call the next member, I wish to advise members regarding the use of laptops. They may be used only when on the dropdown work surface, except when a member is speaking in debate, when they may be placed on the top surface of the member’s desk.

Bill read a second time.