Parliamentary Privilege Bill

Mr Chair, thank you for your aide-memoire. I greatly appreciate it. I just do not carry these arcane parliamentary formulae around in my head.

💬 Hon Maryan Street: Why not?

Well, I apologise. Unlike Ms Street, I am just a totally inadequate member of Parliament. That would be the first and only time I admit that.

Speaking of adequacy, I read my second reading speech the other day and I think that that probably covers the major structural changes that we have made to the Parliamentary Privilege Bill, but there are just a couple of points that I thought should be read into the record. The first one is referred to on page 5 of the Privileges Committee report, and that deals with the interaction with defamation law. What we have done here is remove defamation concepts like absolute privilege. When one looks at the restructuring of the bill, one sees that the old clauses 9 to 13 and also clause 33(2) have been removed. What we have done there—and I am sure Mr Parker will talk about this later on—is remove defamation concepts from the legislation. They belong in the Defamation Act, and we here talk about “parliamentary privilege”.

The second point is a definition that has been inserted in clause 4, and that is the word “exercisable”. We had quite an extended discussion on a number of occasions through this bill about whether or not there were some terms we could modernise. One of the formulae referred to in section 242 of the Legislature Act 1908, which is going to be repealed by this legislation, is the phrase “held, enjoyed, and exercised”. That is the conventional terminology. What we are doing here is referring to the word “exercisable”, but in no way, shape, or form are we wanting to alter the meaning of the phrase “held, enjoyed, and exercised”. So there is a fascinating comment for the Committee.

The heart of the legislation is Subpart 2 of new Part 1A, and, as I said and as other members said in their second reading speeches, what we have done is restructure without intending to alter the meaning of what was the old clause 8 of the bill as introduced. We have broken it up into a number of clauses. We just want to clarify beyond any doubt whatsoever that our 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. Also, we make it clear through clause 3(2)(b), (c), and (d) that what we are doing here is altering the law in the decision of Attorney-General and Gow v Leigh and also dealing with the decision of the Privy Council in Buchanan v Jennings. So that is really the heart of the bill, but I think there has been quite a lot of discussion on that so far, so I will not go on at length on that question.

Coming back to terminology, we had quite an interesting discussion about the words “impeaching” or “questioning”. That great modernist Dr Kennedy Graham did not like the word “impeach”. He said: “Surely to goodness we could come up with a term that is more 20th century than ‘impeach’!”. I think he had Bill Clinton on his mind. So what we did was we had a very good look at it, but, sadly, we were unable to satisfy the legitimate demands of Dr Graham, and so the word “impeach” is still there. We thought that trying to fiddle around with language that goes back to article 9 could be an exercise fraught with danger.

Then we had the definition of “proceedings in Parliament”. All members should take a really good look at that definition to make sure that we have covered all the types of business that really relate to the everyday business of a member of Parliament. Hopefully, what we have done through that definition is make it clear beyond any doubt whatsoever that the holdings in Attorney-General and Gow v Leigh and Buchanan v Jennings are reversed by this legislation.

The only other thing I think I need to say is that there is a Supplementary Order Paper. Most of the points referred to in it are so pettifogging that it would be embarrassing to go through them. There are new definitions of “District Court”, we are extending the definition of “tribunal”, tidying up references to article 9—

💬 Hon Maryan Street: How wonderful to have that on the Hansard—pettifogging on the Hansard. Only this member would do that that.

It is a wonderful word, Ms Street—“pettifogging”. You really should memorise it and understand it, because it covers most of the contributions you make in your position as chair of the Regulations Review Committee. That is pettifoggery if ever there was pettifoggery. Then there are some references to article 9, tidying up references to that, and also to that wonderful piece of legislation—the highlight of Geoffrey Palmer’s reign as Attorney-General—the Imperial Laws Application Act 1988. But I am not going to go into that in any length. That is the sort of thing that probably would amuse and titillate Mr Grant Robertson, so I will leave it to him.

Thank you to the Attorney-General for his contribution then. For those who are listening to the radio, the man who just made reference to pettifogging on this cold Wellington day has not got his fingerless gloves on, although rumour has it that he is still sort of busy trying to finalise those appeal documents for Alldyce v Alldyce, which, of course, was the famous case in Bleak House.

I am not going to go into the detail of the Parliamentary Privilege Bill at the Committee stage. I agree with the Attorney-General that these issues as to detail in the bill have been well traversed. I want to make a brief contribution about the overall principle because I think that is what lies at the heart of why the Privileges Committee has thought it necessary to codify parliamentary privilege.

The relationship between the courts, Parliament, and the executive is a very, very important one. In my opinion history shows that the way we do that in Westminster democracies, like New Zealand’s democracy, is the best way it is done in the world. We do it through having respect for the limits on the respective jurisdictions of the different arms of democracy, or the different institutions, that between them uphold democracy and ensure that democracy endures. Occasionally, one part of democracy rubs up against another in a way that the other part thinks goes too far. As I said in an earlier contribution, I like the fact that we do not try to codify everything, because when those things happen, if you have a mature jurisdiction that has respect for the traditions, the conventions we have, the rule of law, human rights, and the separation of powers, you can effectively find a path through—not negotiate your way through, but find a path through—that is wise and that everyone can live with.

On this occasion, we are dealing with a situation where, in the opinion of Parliament, the judiciary went too far to limit the rights of the privileges of Parliament. In support of that logic, we go back to the 1688 Bill of Rights, when these divisions between what was then the King and Parliament—and also, at around the same time, the relationship with the courts—were being formalised, and they have stood the test of time for over 300 years since. One of the principles in the Bill of Rights is set out in article 9, in very brief form, and it protects the freedom of speech we have in Parliament. It says “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:”.

In respect of two decisions, the Attorney-General and Gow v Leigh and Buchanan v Jennings, Parliament thought that the court was constraining Parliament’s rights under article 9 with those decisions in a way that was undesirable. It has been said in earlier stages of the proceedings that those privileges do not exist to make life easy for parliamentarians. That is not their purpose. They exist in order to protect the ability of Parliament to do its work for the sake of democracy. We all know—or I think everyone in this House accepts—that democracy is such a complex web of settings, not all of which can be written down in constitutional documents, but when taken together that complex mix of ingredients means that you have a peaceful, happy, prosperous society that is fair to the people who live in it.

As a consequence of the decision in Attorney-General and Gow v Leigh, Parliament believes that the advice that ought to be available to Ministers as they prepare for question time—and that was the subject matter that lay behind Attorney-General and Gow v Leigh—should be all of the information that officials have and can bring to bear. We do not want those officials to edit what they know because they might fear they could be tied up in some proceeding. We do not accept the view that because they might have qualified privilege as officials, they would not be less open with Ministers than if they had absolute privilege.

We in this Parliament think that it is important to protect the information that comes to Ministers for question time, which therefore ensures that the public gets an unedited view as to what their leaders who have been elected to Parliament can say in respect of issues of public interest. If that is defamatory of the rich and famous in society, well, so be it. On occasions that is right. On very rare occasions a member of the public may suffer an injustice by being defamed by a parliamentarian and have no recourse for it because it happened in Parliament and was absolutely privileged. That might have been occasioned by an official within the Government giving advice to a Minister to that effect. That is the price that we pay to have an open democracy, which enables us—through this Parliament, which has freedom of expression—to actually make transparent things that might be going wrong in society and, therefore, to make sure, for example, that corruption does not creep into our system.

We have actually seen events in recent years where we have had some very wealthy people—in particular, in relation to Hanover Finance—where many hundreds of millions of dollars were lost by New Zealand investors in finance companies and allegations were made as to improper behaviour on the part of some of the directors. Those people who made those allegations outside Parliament were—and are being—subject to legal suit. Indeed, Mr Brian Gaynor is one of those who, notably, as a financial commentator in the New Zealand Herald, has been sued for defamatory comments.

Those same sorts of allegations ought to be able to be made in this House without risk of defamation. That sort of information, if it is held by a public official—and they are often the ones who look into these things—should be able to be passed to a Minister and be used in this Parliament, and if it is used by a Minister in this Parliament it should be absolutely privileged. This bill addresses that situation by returning us to the law as it was before the decision in Attorney-General and Gow v Leigh.

We think that a mistake was made imputing into parliamentary processes these doctrines of necessity, which seem to be in part taken, from the point of view of us in Parliament, from a view that defamation concepts should be imported into our parliamentary privilege law. It is actually one of the reasons why, in terms of the drafting of the legislation as to the principles behind it, at the select committee we took out reference to the defamation language in the bill to make it clear that this is not actually about defamation; it is about parliamentary privilege.

The second part of it is Buchanan v Jennings. I am not going to cover that in detail except to say that I think that most people thought it was silly that a member of Parliament could say something privileged in Parliament and could not say outside the House: “Well, I don’t resile from that.” if asked the question: “Do you resile from that?”. Obviously, if a member of Parliament repeats the defamatory statement outside Parliament, it is a new defamatory statement and they ought to be able to be sued in defamation. But for a member of Parliament to not be able to say “Well, I don’t resile from it.” outside Parliament and for the courts to effectively link “I do not resile from that.”, which is not in itself defamatory, to statements made in Parliament and to make “I don’t resile from that.” a defamatory statement, was actually, again, a misunderstanding of the privilege that we allow the courts to refer to things that happen in Parliament in a way that, actually, we did not originally.

So we are again returning that law to where it was before the decision in Buchanan v Jennings, and I think, again, we will be protecting the reputation of democracy. In the end, we need people to respect politicians and what we do in this House if we are to have respect for democratic institutions, of which we are an important part. I think it made politicians look foolish if they could not say outside the House: “Well, I don’t resile from that.”, because otherwise it looks like they do resile from it when in fact they do not.

I think this is an important piece of legislation. I thank again all of the officials, and I thank the Attorney-General for bringing it to the House. I have nothing further to add.

I think it is pleasing to mark the final stages of this Parliamentary Privilege Bill. It is not often that we pass legislation of a constitutional nature through this House. As the Privileges Committee put it in our report back, the importance of the bill for our country and parliamentary democracy should not be underestimated. It will form part of our constitutional framework and it will sit alongside the Constitution Act 1986.

As my colleague David Parker has just said—and the Attorney-General as well—obviously the bill concerns Parliament’s relationship with the judiciary. The case had prompted the Supreme Court to define and, as we saw it, restrict the boundary of privilege enjoyed by the legislature, based on the doctrine of necessity. That far-reaching judgment has—let us be frank—tested the principle of comity, which is the fundamental characteristic of that relationship. That, in turn, had prompted some push-back on the part of the legislature. We were concerned to ensure that the age-old rights and powers in the Bill of Rights that Mr Parker has mentioned are not encroached upon.

It was never the select committee’s intent—and it ought not be the intent of this Committee—to overreact to the decisions of the courts in the Buchanan case or the Gow v Leigh case. We did not wish to incorporate new absolute privilege protections into legislation. If we did, we may have risked inadvertently extending the privilege beyond what it has historically been. Rather, the intent with this bill is to restore the nature of the privilege to the status quo ante, pre-2005, essentially. But this defining moment presented an opportunity to formally shape and give expression to the principle of comity in New Zealand.

So the bill is essentially seeking to strike the point of optimality in the relationship between the three branches. Let us hope that the version before us is up to the task. I am certainly satisfied that the select committee has done an extremely good job, and we have no further comments to add on the precise provisions, including Supplementary Order Paper 482. We believe, in short, that it is up to the task. As it happens, I believe that is due in no small part to the quality advice the select committee received from our own officials and from scholars and advisers across the country and ancillary comment from other jurisdictions. In fact, we extensively revised the original version of the bill, and we are now satisfied that constitutional thought in New Zealand is about to take a significant step forward.

For once I think New Zealand has done itself proud in developing and articulating a major tenet of constitutional principle. It has done so on the basis of its own work, without importing work from outside. The Privileges Committee has done, I think, excellent work overall in the last 3 years. The intrusive powers protocol and the revision of the police and SIS agreements are items of achievement. But this Parliamentary Privilege Bill is certainly the major achievement. I pay tribute, in particular, to the chairman, the Hon Chris Finlayson, and the deputy chairman, the Hon David Parker.

So that is the achievement, essentially, of the 50th Parliament. It may be that the next Parliament might be able to build on this work and perhaps undertake an even more comprehensive kind of review of New Zealand legislation that makes up the constitution of New Zealand’s Parliament. It was part of the work that was undertaken in the independent constitutional review. I think there is a general recognition that although our constitutional tenets are good and robust, they should always be subject to scrutiny and review and reflection and, no doubt, improvement. I certainly think it would be in order for the 51st Parliament to build on the work of the 50th Parliament, both in the context of independent constitutional review and the fine work that this committee has done under the chairman.

I do not want to take too long at this stage of the passage of the Parliamentary Privilege Bill, but I did think it appropriate that someone make mention of the fact that if you pick up the bill as tabled here in the House, there have been a considerable number of changes made to the original bill. I felt that it was appropriate that someone actually comments on that. That goes hand in hand, really, with recognition of the outstanding work of the staff concerned with this.

The original bill was put together and came in front of the Privileges Committee. The Clerk of the House made, I think, the most substantial submission on the layout and the presentation of the bill, which resulted in an almost complete rewrite, not of the content but of the actual presentation of the bill. In her submission Mary Harris said that “The bill when enacted will form part of our constitutional framework sitting under the Constitution Act 1986 which provides for the Head of State and the three branches of Government.” She said: “The Parliamentary Privilege Bill will become part of the overarching legislative framework for the legislative branch of government.” That is a really important point when we recognise the importance of this bill today. She made the point that the threads running throughout the bill as it was originally designed were disparate, and she did not feel that we had accurately drawn all those threads together.

In fact, she again made the point that the bill was an opportunity to establish a very clear framework that explains and sets out the scope and the extent of parliamentary privilege by having a purpose clause that also explains why we need parliamentary privilege and the importance of it. Her suggestion to us was that we have an Act that had five parts. In fact, if you look at the new bill that we are debating here today, that is the advice that we took. So we have a purpose clause, an explanation, and an interpretation in Part 1. The second part talks about the purpose of parliamentary privilege and the privileges of the House of Representatives, and then defines “proceedings in Parliament”. Part 3 then deals with how we communicate the proceedings in Parliament and goes into the details of publishing. We took the opportunity, as we have all said in this House, to update some of the language where that was possible and take account of new technology, because it is not just about producing written copies of Hansard any more; it is immediately up on websites and people communicate through the internet.

Then there are a whole lot of miscellaneous provisions. We really owe a debt of gratitude to the Clerk of the House, Mary Harris, and Debra Angus, the Deputy Clerk of the House, who was an adviser to the committee, for the way that they were able to reshape this bill so that any parliamentarian could pick it up and have a read through. There is still a lot of legal terminology, as there needs to be in a bill like this, but any parliamentarian could follow the reasons, the need, and the protections that parliamentary privilege gives us all. I think that is a really good achievement. I would like to pay tribute, as I say, to the Clerk of the House and the Deputy Clerk of the House.

I also pay tribute to the Ministry of Justice staff who put the rewrite together and listened patiently to the sometimes lengthy discussions of the committee: Fiona Illingsworth, Sarah Carlin, Jessica Brown, and, of course, our specialist adviser, John Pike QC, who has had enormous experience in the courts with these types of legislative procedures and was able to give some very sage advice as we reshaped this bill and put it through its paces. That is the only point I wanted to make, and I thank all those staff for the contribution that they made.

Like other speakers, I do not want to go deeply into the detail of the Parliamentary Privilege Bill, either, and I certainly wish to avoid any “pettifog-ification”. But I do wish to emphasise a couple of things.

This bill is not just about protecting MPs from legal action in respect of statements they make, nor about protecting their support staff; it is really fundamentally about protecting the right of representatives’ freedom of speech. It is about ensuring that advice given by their support staff cannot be used in legal proceedings brought by others. Nothing, really, could be much more important for our democracy than these things. Recently in this House, Winston Peters revealed some disturbing information about a person behaving badly regarding the Christchurch rebuild. The purpose of that was to seek investigation by authorities and by the news media, and that was a proper use, I feel, of parliamentary privilege. It was something that needed to be said. People outside the House felt unable to do so for fear of defamation proceedings, so it was a proper use of parliamentary privilege. It is important that that be something that members of Parliament can do.

The second thing I want to emphasise is that there is no real change here. The bill really just clarifies and partly codifies the operation of parliamentary privilege. It seeks to restore and affirm 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. For that reason the decision of the court has to be set aside in order to restore the previous legal position. Underpinning all this, of course, is the principle of comity—the mutual respect that the legislature and the judiciary must have for each other. The courts did move a step too far, and this bill restores the balance, but the principle of comity remains.

The bill does not set out to limit article 9 of the UK Bill of Rights 1688, which is in force in New Zealand and which is the first formal instrument from a Parliament to protect freedom of speech in debates or proceedings in Parliament. Nor does the bill seek to codify comprehensively or replace entirely with rigid legislation every aspect of parliamentary privilege, and that is a good balance we have achieved.

It is aimed, of course, at one aspect, as I have said: Parliament’s freedom of speech—MPs’ freedom of speech. The bill provides a clear direction that the Act must be interpreted so as to promote the purposes of the Act and the purpose of parliamentary privilege. It sets out the purpose of parliamentary privilege, which is to make clear the privileges, immunities, and powers of the bill “to uphold the integrity of the House as a democratic legislative assembly;” and to secure its independence. Concerning statements made outside Parliament, the bill takes an evidential prohibition approach regarding liability from statements that effectively repeat statements made in proceedings in Parliament, and relies on reinforced provisions for stays of proceedings in respect of specified authorised communications of proceedings in Parliament. Other speakers have commented on the fact that MPs often get asked whether they stand by what they have said in Parliament, and it is necessary that they should be able to at least say they do not resile from that.

There was a need to clarify what the term “proceedings in Parliament”, as used in article 9 of the Bill of Rights 1688, means and, in particular, to seek to reverse the law in the decision in Attorney-General and Gow v Leigh to stop evidence offered or received about proceedings in Parliament being used to inform or support effective repetition claims and claims of liability in court or tribunal proceedings. Although article 9 excludes evidence where the reason the evidence is offered or admitted is to impeach or question, it does not prevent evidence being used with no impeaching or questioning to establish something that was said or done in Parliament just as a matter of fact. Qualified immunity is available as a defence still for fair and accurate reports of proceedings in Parliament or extracts or summaries of documents published under the authority of the House. That is very important, of course, for the news media.

The bill strikes a harmonious balance in the area where privileges necessary to protect the independence of Parliament and the important role of the courts intersect. New Zealand First wholeheartedly supports the bill. We think it is absolutely essential to preserve the integrity of Parliament and the right of MPs to make statements in the House without fearing defamation actions, and that applies also to their support staff. So we will certainly be voting in favour.

I want to make just a brief contribution to follow up on the excellent words we have heard today in the Committee stage of the Parliamentary Privilege Bill. Before I get into that, though, I do have to, sadly, correct my colleague the Hon David Parker. There is a first time for everything, and it is today. It is Jandyce v—

💬 Hon David Parker: Jarndyce—

Jarndyce. Obviously, the Attorney-General knew that, but being the compassionate man he is, he chose not to correct David Parker when he was on his feet. But do let the record show that we have clarified our knowledge of Dickens today and that David Parker told me to say that.

The CHAIRPERSON (Lindsay Tisch): But how do you spell it?

Ha, ha! I will leave that to the Hansard officers to work out.

I just want to make two or three remarks in the context of this bill, bearing in mind that we had a good debate on this in the second reading. The first of those is a general comment about the bill as it returns to the House for its Committee stage. It looks very different, and anyone reading through it would see a huge amount of struck-through material and believe that the Privileges Committee members, in analysing the bill that came before us, were somehow rather appalled or disgusted at what we had and that the bill had required a total and complete rewrite. That is not true. We were in fact incredibly well served by our advisers and officials, whom I mentioned by name in my second reading speech.

But what we decided as a committee was that it was important that the language that we used in this bill was able to be understood not only by ourselves as parliamentarians, for whom the privileges are an important aspect of our work, but also by the general public, in looking to see what is meant by parliamentary privilege and how it is to be implemented. That required a change in the structure of the bill, and we had an excellent submission from the Clerk of the House in that regard, and also in some of the terminology. So for anyone who is looking at the large amount of struck-through material in the bill that was returned to the Committee of the whole House, they can rest assured that it was about making this a more readable and more coherent bill and one that lays out the privileges of parliamentarians in a way that we hope the general public will be able to understand and appreciate. As I said in my second reading speech, on behalf of the non-lawyers on the Privileges Committee—Mr Hipkins, Minister Tolley, and me—we are very pleased to be able to put that before the Committee in a manner that we think many people will be able to understand; I mean no disrespect to the lawyers who were there.

Two other points that I really want to make are particularly around the question of Gow v Leigh and what is the business of Parliament. It is very important that when we consider the business of Parliament, what is seen by most members of the public as the business of Parliament is what is happening in here, right now, on the floor of the House. But the reality of Parliament, and indeed of most workplaces, is that what you see on the public face of it is very little of what actually goes on within a business. A business that sells widgets has a huge amount of production line, design, and innovation that goes into it. That is part of that business, just as in Parliament, part of parliamentary business is what happens immediately before we come to this House and in the preparation for what we do here.

We discussed the concept of reasonable preparation—the idea that it is more than just the necessary functioning of this House that constitutes parliamentary business; it is also the idea of reasonable preparation for being here, in business that takes place away from the floor. As members of the Committee know, I have worked in this building behind the scenes as a staff member, in the preparation of question time. I can assure members of the Committee that that is very much parliamentary business. A lot of work goes in. When the Opposition puts down the question: “Does the Prime Minister or Minister stand by all his statements?”—or in my case, when I was working in that role, it was “by her statements”—there was a lot of work that went on to decide what was in that material. In fact, it would be a great relief to those of us who prepared answers for the former Prime Minister in the Labour Government when we picked the right question. If we did not, we certainly heard about it. So it is an important part of parliamentary business to recognise the preparatory material. We believe that the court decision in the Attorney-General and Gow v Leigh case was wrong, and this goes some way to clarifying what parliamentary business consists of.

My colleague David Parker has already talked about Buchanan v Jennings. It is a farcical situation to have a member of Parliament unable to say that they stand by the words that they uttered when they were in the Chamber. We are not giving licence through this bill to MPs to go out and expand upon what they have said. We are merely allowing both members of Parliament—and the media, in reporting what members of Parliament have said—to acknowledge that it was said, and that a member of Parliament stands by what they have said. In the clauses of the bill that deal with effective repetition, it will be clear to everybody who reads them that if you choose to expand upon what you have said in the Chamber as a member of Parliament, or if you say it again in detail, you will fall foul of parliamentary privilege, and indeed of the laws of the land. But that is covered off here.

It is not just a protection for MPs; it is a protection for the news media as well, and that is important. It has been said that members of Parliament obviously experience—and this is in the commentary—the benefit of parliamentary privilege. That is not the purpose of parliamentary privilege. The purpose of parliamentary privilege is to allow our democracy to operate without fear and without favour towards anyone, and my colleague David Parker has talked at some length about that.

I just wanted to make those two particular points about this report. I believe that it is a very good piece of work.

I believe that the Privileges Committee in this Parliament has dealt with some interesting issues. I want to thank the chair of the committee, the Attorney-General, Mr Chris Finlayson, for his excellent work on this. We as a committee are very aware of the fact that, when we are on the Privileges Committee, we sit at that nexus—the comity that Kennedy Graham talked about—of being aware of what the courts are doing, and aware of what the executive is doing. We have dealt with two serious matters involving the powers of both the courts and the executive in recent times. That shows to me that the Privileges Committee is playing a very significant and important role. That necessary tension between the different branches of our constitutional democracy is important. There is an issue currently at play in Taylor v Attorney-General about the New Zealand Bill of Rights Act, and I suspect that at some point we may return to debating those matters here, and certainly, in an upcoming item of business, I will mention those two matters.

I want to lift up this debate on the Parliamentary Privilege Bill a little bit and start from a fairly basic kind of premise, and that is: what are we talking about when we talk about parliamentary privilege? I think that a lot of people listening in at home or watching this on TV, when they think about parliamentary privilege, will think about accommodation, airfares—what might otherwise be described as perks. Actually, parliamentary privilege in the sense that we are talking about it now has nothing to do with any of those things. So I want to reassure the public that we are not pulling a swiftie right before an election and making any changes to those things.

Parliamentary privilege in that sense is really about the ability of members of Parliament, when they are here in this debating chamber and when they are in select committees, to undertake the functions that the public of New Zealand elects them to undertake. One of the most important rights that we have through that is freedom of speech. We cannot actually do the job that New Zealanders elect us to do if our right to free speech is not protected. This bill certainly lends itself to protecting that right, and that right is a very important one. Freedom of speech means that parliamentarians can come to this debating chamber and speak on any number of issues. They can champion any number of causes with a degree of certainty that they are not suddenly going to find themselves up before the courts, for example.

I want to deal particularly with a challenge that has been laid down recently in the media to members of Parliament around name suppression, and I do not intend to do what Rodney Hide wants members of Parliament to do, but I do want to talk about the principle of the issue at stake here. It is that if a member of Parliament comes to the House and breaches a name suppression order issued by the court, they would not find themselves up in front of a court for breaching name suppression, but they would find themselves up in front of Parliament’s Privileges Committee. Although parliamentary privilege would afford us some protection in terms of the court’s rules, privilege itself comes with a whole lot of rules and protections around it as well.

So this bill is not about saying that members of Parliament are above the law or that we should be able to get away with anything. In fact, what it says is that Parliament itself should administer the rules around parliamentary privilege and that all members of Parliament, at the end of the day, are accountable to their colleagues in the House—the other elected members of the House—for the way they conduct themselves as members of Parliament, and that is the way it should be. We establish the laws here in the Parliament of New Zealand, and it should not be that we, in the process of doing so, find ourselves in front of the courts, basically having to justify what we have done or what we have said. Parliament is supreme in New Zealand, and should be, and the members of the New Zealand public elect us to do a job. We need to have the certainty to be able to go ahead and do that without the risk that we are going to find ourselves before the courts.

One of the issues that I particularly want to talk about, because I have been on that side of the fence, is the protection that this bill provides to officials advising Ministers. Here in Parliament one of our jobs as members of Parliament is to hold the Government to account. From time to time that can be challenging. It can be very challenging for the Government, and we will sometimes stretch the boundaries a little bit as the Opposition, and that is actually the role of the Opposition, but Ministers need to be well-prepared to be able to cope with that and to be able to answer whatever question gets flung at them. That means they need to be able to rely on free and frank advice from their officials, and if their officials will not provide them with that advice on the basis that doing so could result in that official themselves ending up in court, then the very free exchange that we have here, which we rely on as part of our democratic process, becomes compromised. If an official is sitting there briefing a Minister and they know some information that may be defamatory or that may be questionable, and they are thinking: “If I say this to the Minister, then I potentially could end up in court.”, they will not say it. Actually, the Minister needs to know that, because in order for that exchange to take place, both sides need to be able to have access to the information and need to be able to rely on that free and frank exchange.

So this bill extends a certain range of privilege to those who are providing advice to Ministers. That is vitally important, because at the end of the day I do not think that anyone in Parliament, no matter whether they are on this side or that side over there, wants a Minister to come to the House not sufficiently informed. They want Ministers to be able to answer the questions that other members want to put to them. I think that we all want that to happen, so this bill certainly deals with an issue that has come up previously.

Just in concluding, the final point that I want to highlight from this is around the inability of members of Parliament under, I guess, current arrangements to do anything outside the House that in any way even acknowledges something that they have said inside the House. We have seen situations where members of Parliament have said something in the House. They have walked out of the House and they have been stopped by a journalist. They just have this blank expression on their face and they have not been able to say anything at all because even simply saying: “I stand by what I said in the House.” or: “I’m not going to add anything to what I said in the House.” suddenly finds them potentially up before the courts. That is not right and it actually undermines the integrity of Parliament. It undermines the public credibility of Parliament.

So if they went out in public and repeated exactly what they had said in the House, then, sure, they should find themselves before the court, because they would be doing that in an open place where they are not protected by privilege. But simply saying: “Look, I’m not adding anything to what I’ve have said in the House.” or: “I stand by whatever I’ve said in the House.” is a perfectly legitimate thing for a member of Parliament to do. If anything, it actually draws a very clear line between what they are doing in Parliament and what they are doing outside Parliament. So I think that the clarifications made in this bill are very important.

I guess the final point that I would make, as I conclude this contribution—

💬 Grant Robertson: Finally and in conclusion.

Finally and in conclusion, I conclude where I began, which is that for the public, when we talk about privilege, we are not talking about the things that members of the public will think about when they think of the privileged role of parliamentarians. It is nothing to do with what the public might describe as perks. This bill is all about us being able to undertake our duty as legislators and as members of Parliament in holding the executive to account without that fear that we will find ourselves in front of the courts.

In conclusion, can I endorse what other members have generously said and thank the officials, particularly the Clerk, Debra Angus, and Ross Carter, for their wonderful work. As Mr Grant Robertson said, it may look as though there has been a complete redraft because we were dissatisfied with the earlier version. Far from it—we wanted to make this very important area of the law as clear as possible.

Can I simply say that the Committee stage of the debate has really emphasised the importance of what is now clause 8B and particularly subclauses (4) and (5). Clause 8B(4) states, for the avoidance of doubt: “In determining … whether words are spoken or acts are done for purposes of or incidental to the transacting of the business of the House or of a committee, no necessity test is required or permitted to be used.”, and clause 8B(5), very importantly, spells out what that test is. It is very, very important that all those who read this legislation understand the fundamental point that there is no necessity test, which can read down what members of Parliament say or do.

The final point that I would make, and it is picking up on something Dr Graham said about our constitutional legislation—and this is important constitutional legislation, and no one should be under any illusion as to that—is that today we are going to finally remove the last vestiges of the Legislature Act 1908. Anyone listening to this debate may say: “Well, gee, that’s a big change, to repeal the Legislature Act 1908.”, but the reality of the matter is that all but section 242 of the Legislature Act was repealed years ago. So we are removing the last remaining section of the Legislature Act, but it does give rise to a more general principle, and that is whether the time has come, at some stage, for Parliament to look at consolidating all the legislation relating to Parliament in one coherent piece of legislation. I see Dr Graham nodding. I think that that could be quite an interesting bipartisan or multipartisan project in the next Parliament because it is in the public interest that all provisions relating to our constitutional arrangements are there and are clear and easily accessible for people, and you should not have to go darting and diving for section 242 of the Legislature Act.

Under the Legislation Act, the Attorney-General has the power to set forward a programme for revision of statutes, and I have sent to my opposite number, Mr Parker, a proposed revision programme, regardless of who might be here after the election. But I think it could be a worthwhile project to bring all the legislation together, just as Ms Collins has done with the courts modernisation legislation. The Judicature Act 1908 was hopelessly out of date. Most of that had been repealed. So what she has done—and it is a very good piece of work—has brought together all the relevant court legislation into what will become known as the Senior Courts Act, and then there will be the District Courts Act. So I think that it is in the public interest that there be a consolidation of all the parliamentary legislation, and that could be something that all parties could work sensibly on. As Dr Graham said, it is in in the public interest that all our constitutional legislation be readily accessible and available, set out in clear terms, for the benefit of the public.

So this has been a very interesting debate. I echo what Mr Hipkins said. We looked at this word “privilege” because at first sight it looks as though we are, on the final day of the 50th Parliament, ramming through legislation in urgency to protect ourselves. Well, actually, let us be clear about one thing. When we talk about parliamentary privilege, it is not the privilege of individual members of Parliament; it is the privilege of Parliament.

💬 Chris Hipkins: The collective privilege.

It is the collective privilege, and it is there for very clear purposes. They have been very eloquently set out by Mr Hipkins in his previous contribution, and I do not need to repeat them. But when one looks at legal professional privilege or parliamentary privilege, it does have connotations of lawyers looking after themselves and parliamentarians looking after themselves. Get beyond the terminology. Drill down to what we have been trying to do in this debate—that is, ensuring that in the public interest important issues can be transacted in this Chamber, and that the important rights of parliamentarians to raise important matters is not curtailed or circumscribed in any way.

So, putting it bluntly, it was the unanimous view of the Privileges Committee and, I take it, of this Parliament that in two very important cases the courts got it wrong. That is why, with the greatest of respect, Parliament has needed to put it right.

The question was put that the amendments set out on Supplementary Order Paper 482 in the name of the Hon Gerry Brownlee be agreed to.

Amendments agreed to.

Parts 1 and 2 and clauses 1 and 2 as amended agreed to.

Bill reported with amendment.

Report adopted.

Third Reading