Privilege — Consideration of Report of Privileges Committee—Question of privilege concerning investigations of possible breaches of court suppression orders in parliamentary proceedings

I move, That the report of the Privileges Committee concerning investigations of possible breaches of court suppression orders in parliamentary proceedings be noted.

The Privileges Committee report on this issue has been presented to the House and is on the floor for members to see. On 29 August 2023, the Speaker referred a general question of privilege to the committee. This followed allegations that a member, Rawiri Waititi, may have breached a court suppression order during parliamentary question time earlier that day “by referring to potentially suppressed information in the House, which would be contrary to the Standing Orders. The Speaker noted that he did not intend to inquire into matters that might be suppressed, as doing so could be inconsistent with the principle of comity between the legislative and judicial branches of government. He noted that it was difficult to investigate whether the member had committed a contempt, as an investigation risked compounding any harm caused by potentially confirming the existence of a suppression order and possibly identifying the subject of it.”

The general question of privilege referred to the committee was how the House should deal with cases where a member may have referred to a matter in breach of a suppression order, but where investigating it could be inconsistent with the order if one exists. In the situation that led to this referral, the Speaker dealt with the member’s conduct as a matter of order. In the Speaker’s referral, he noted the requirements of Standing Order 116, which sets out a process by which a member must give the Speaker written notice of their intention to refer to a suppressed matter, so that the Speaker can consider whether to allow it. The Speaker stated that Mr Waititi did not give notice before referring to a matter that was apparently suppressed by a court and that he did not know whether Mr Waititi’s failure to give notice was because he chose not to or because there was no such order.

The Speaker noted that Mr Waititi’s comments “gave the reasonable impression that the member believed the matter was subject to suppression but referred to it anyway.” The Speaker concluded that the conduct was “grossly disorderly.” He named Mr Waititi and asked the House to suspend him, which was agreed to.

The Privileges Committee notes that “One of Parliament’s fundamental privileges is that of free speech in the House.”, which is there “to protect parliamentary proceedings from legal action. However, Parliament [also] has a responsibility to ensure that its privileges are not used in a manner that frustrates the courts’ jurisdiction or that undermines the relationship between the branches, as the relationship is of fundamental constitutional importance. The branches’ disposition towards each other’s jurisdiction is expressed in our system by the principle of comity. Comity is often understood as mutual respect and restraint, and the effort exerted by both branches to uphold the other’s privileges. The House, under Standing Order 116, has imposed an expectation that referring to matters before a court, or matters suppressed by a court order, should only be undertaken in accordance with that Standing Order as a reasonable limitation on the privilege of free speech in the House. This is an important expression of Parliament’s respect for the judicial branch’s jurisdiction; it is appropriate for the courts to be able to decide what information about their proceedings should be publicly available.”

On the day in question, the Speaker took time “to review the situation after it was raised during oral questions, and then raised it again as a matter of order at a subsequent sitting.” The Privileges Committee considered “that taking time to consider the matter, while also preventing ongoing discussion of the matter on the day, could reduce the exposure of potentially suppressed information. We consider that the approach adopted by the Speaker in this case was the most appropriate course of action, given that it was not clear that a suppression order existed and investigating the matter further might risk compromising any suppression that was in place. We encourage other presiding officers to consider taking this [action] if a similar situation arises in the future.” Thank you, Mr Speaker.

The question is that the motion be agreed to.

Motion agreed to.

Debbie Ngarewa-Packer: Point of order, Mr Speaker. Can we stand to speak to it?

Sorry?

Debbie Ngarewa-Packer: Are we able to speak to it?

SPEAKER: Well, yes—that’s why I called it, sorry. We’re in a difficult situation because we’ve just voted on it. So I think I don’t want to reverse things, but I don’t want to make things—it’s an important issue, and I’ll seek the House’s leave for there to be one speech on this matter. There appears to be leave for that.

Thank you and my apologies for the misunderstanding, and I thank the House for their support.

First of all, ka tū ahau ki te mihi ki te kaupapa i mua i a tātou. [First of all, I stand to acknowledge the subject before us.]

Te Pāti Māori stands to acknowledge the Speaker’s decision at the time and to acknowledge the mahi of the Privileges Committee. We received that and have been more aware and respectful, obviously, of the decision of principle of comity and acknowledge the process for Standing Order 116. We acknowledge the decision and the reminder of the Parliament’s relationship with the court and the utmost constitutional importance of that respect. I guess—given the week that we’ve had, with the decisions or the comments with politicians calling judges communist—it’s probably a good, timely reminder for us all politically. We acknowledge that the public has the right to know. We acknowledge what suppression orders are about. We also acknowledge the decisions of needing to know now and the suppression orders used to protect victims. And also acknowledge the fact that suppression orders aren’t always used as the fact that a person is well-known is not lightly a reason why, I guess, suppression orders continue. We acknowledge also as Te Pāti Māori that if and when suppression orders are lifted, that is the appropriate time to talk about it. Ngā mihi, kia ora.

I don’t think we need to put that vote again because the House has dealt with that. I thank the member for that contribution.