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Parliamentary Privilege Bill (Consistent) (Sections 25, 27) [2013] NZBORARp 50 (20 November 2013)

Last Updated: 21 April 2019

Parliamentary Privilege Bill

20 November 2013 Attorney-General

Parliamentary Privilege Bill (PCO 17876/1.10) — Consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/209

1. We have examined this Bill for consistency with the New Zealand Bill of Rights Act 1990. We conclude that while the Bill raises questions under ss 25 and 27 of that Act and under the implicit right to a remedy in the Act, no inconsistency arises.
   
2. In short:
   
   • 2.1 The Bill restates and affirms principles of parliamentary privilege, including in response to the decisions of the Supreme Court and the Privy Council in Attorney- General v Leigh [2011] NZSC 106; [2012] 2 NZLR 713 and Jennings v Buchanan [2004] UKPC 4; [2005] 2 NZLR 577.
     
   • 2.2 It is open to debate whether issues of parliamentary privilege fall beyond the scope of the Bill of Rights Act altogether. However, and accepting for the purpose of analysis that privilege issues are subject to the Act, two issues arise:
     
   • 2.2.1 First, the affirmation by the Bill of the absolute immunity of proceedings in Parliament, including matters excluded from immunity under Leigh and Jennings, means that where statements made in such proceedings affect rights affirmed by the Act, there is no judicial remedy. The Bill is therefore a limit upon the rights affirmed by the Act. We conclude, however, that the limit is justified by the need for Parliament to discharge its fundamental democratic responsibilities.
     
   • 2.2.2 Second, the Bill confirms the power of the House of Representatives to fine for contempt. Such fines are not susceptible to the procedural protections for criminal charges affirmed by s 25 of the Act or to judicial review under s 27(2). We conclude, however, that the limitation on those rights is a necessary incident of the discharge by Parliament of its responsibilities and of the principle of comity.
     

ANALYSIS

The Bill

3. The Bill is broadly directed to reaffirm and clarify aspects of parliamentary privilege, in particular in light of the Leigh and Jennings decisions. The Bill follows the unanimous findings of the recent Privileges Committee inquiry that followed the Leigh judgment [1].
   
4. In particular, and in addition to reenacting and clarifying the broad principles of parliamentary privilege, the Bill provides for:
   
   • 4.1 The interpretation of the words “proceedings in Parliament” in art 9 of the Bill of Rights 1688 (UK) to include the preparation of a document for the purpose of or incidental to the business of the House of Representatives or a parliamentary committee (cl 8(2)(c)). The effect of that interpretation is to accord such preparatory work absolute privilege, rather than qualified privilege as found in Leigh, above [2].
     
   • 4.2 A prohibition on the production of evidence of parliamentary proceedings in a court or tribunal for the purpose of ascertaining the meaning of a statement made outside parliamentary proceedings (cll 8(4) & 10). The effect of that prohibition is to preclude claims based upon “effective repetition” of parliamentary statements, as permitted by Jennings, above [3].
     
   • 4.3 The power of the House to impose a fine of up to $1,000 for contempt, with such fines to be enforceable as if a fine for contempt of court (cl 21). While the House most recently imposed a fine in 2006, the provision is intended to address doubt expressed in commentary [4].
     
5. More broadly:
   
   • 5.1 These provisions are expressed to declare and enact, for the avoidance of doubt, the “true construction” of article 9 of the Bill of Rights and of s 242 of the Legislature Act 1908 (cll 7(7) and 21(4)). Any current proceeding is, however, not subject to the new provisions of the Bill (cl 31).
     
   • 5.2 The Bill also emphasises that it reaffirms the privileges, immunities and powers conferred by parliamentary privilege but is not a comprehensive codification (cl 3(b) and also cl 21(3), relating to other sanctions for contempt).
     
6. Last, the Bill reenacts or updates various specific aspects of the law of parliamentary privilege:
   
   • 6.1 Broadcast and publication of parliamentary proceedings and publications, including provision for Hansard and for qualified privilege (cll 11-19 & 32);
     
   • 6.2 The exclusion of any power to vacate a member’s seat (cl 22);
     
   • 6.3 The administration of oaths or affirmations and consequent privileges and immunities (cll 23-24);

• 6.4 Provision for exemption of a member from personal attendance at a court or tribunal (cll 25-30); and
  
• 6.5 Consequential amendments to the Defamation Act 1992 and the Intelligence and Security Committee Act 1996 and the repeal of the Legislature Act and the Legislature Amendment Act 1992.

Application of the Bill of Rights Act

7. It has been suggested in other jurisdictions that parliamentary privilege, as a common and longstanding constitutional doctrine, is of such a fundamental character that it falls altogether outside or is an inherent and unavoidable limit upon the rights affirmed [5].
   
8. However, it may also be suggested that such an approach does not sit well with the

application of the Bill of Rights Act in s 3(a) to “acts done by the legislative ... [branch] of the Government of New Zealand”. We assume for the purpose of analysis that the Bill is subject to the Act.

Issue raised in respect of absolute privilege

9. In restating the absolute privilege of proceedings in Parliament, including in terms contrary to the findings in Gow, above, and Jennings, above, the Bill precludes civil or criminal recourse against such proceedings, as defined.
   
10. The effect of the Bill – and of parliamentary privilege more broadly – is to place statements made in or, as proposed by the Bill, for the purpose of or in respect of parliamentary proceedings beyond civil or criminal review, remedy or sanction.
    
11. The effect in terms of the Bill of Rights Act is that, if such a statement were alleged to amount to a breach of that Act – for example, if a statement were alleged to have

undermined an individual’s right to a fair trial affirmed by s 25 or to give rise to interference with an individual’s rights to expression or religious observance, in terms of ss 13 to 15 – it is not possible to seek recourse through civil or criminal proceedings. Privilege may more broadly limit rights: for example, in Prebble v Television New Zealand [1994] 3 NZLR 1, where the Privy Council noted that the unavailability of parliamentary material to defend defamation proceedings might deter journalists’ exercise of their right of freedom of expression under s 14 [6].

12. The availability of an effective remedy is a necessary attribute of any right affirmed by the Act [7]. Further, and while recourse is, however, available through parliamentary procedures [8], an effective and available remedy must not be dependent upon the exercise of political decision [9]. It follows that the exclusion of other remedies limits the rights affirmed by the Act.
    
    13. As to whether that limitation is permissible in terms of s 5 of the Bill of Rights Act, the question is whether the limitation can be justified under s 5 of the Act as a rationally connected and proportionate measure to serve a sufficiently important objective [10].

14. The short point, applying that analysis, is that parliamentary privilege and, particularly, immunity for parliamentary statements serves a legitimate and, in fact, fundamental objective:
    • 14.1 In Prebble, above, 10:
      
    
    

“... the present case and Wright's case illustrate how public policy, or human rights, issues can conflict. There are three such issues in play in these cases: first, the need to ensure that the legislature can exercise its powers freely on behalf of its electors, with access to all relevant information; second, the need to protect freedom of speech generally; third, the interests of justice in ensuring that all relevant evidence is available to the Courts. Their Lordships are of the view that the law has been long settled that, of these three public interests, the first must prevail.”

14.2 In A v United Kingdom, a decision of the European Court of Human Rights [11]:

“... while freedom of expression is important for everybody, it is especially so for an elected representative of the people. He or she represents the electorate, draws attentions to their preoccupations and defends their interests. In a democracy, Parliament or such comparable bodies are the essential for political debate. Very weighty reasons must be advanced to justify interfering with the freedom of

expression exercised therein.”

15. The further question is whether the immunity conferred by the Bill is rationally connected and proportionate to that objective. Two questions arise under the Bill:
    
    • 15.1 First, and as noted above, the Bill provides for privilege beyond statements made on the floor of the House, which is therefore wider than the terms in which privileged was discussed in A, above [12]. However, the Court also indicated its acceptance of the varied terms of parliamentary immunities across the states parties to the European Convention and, particularly, to the broad immunity accorded parliamentarians for any action in exercise of their functions [13].
      
    • 15.2 The second and more difficult question is that in respect of the provision for the issues canvassed in Jennings, above, and in Leigh, above, the courts in both cases concluded that the application of privilege to effective repetition and to preparatory material, respectively, was not necessary [14]. Those conclusions raise the issue of whether the absolute immunity under the Bill is proportionate or whether, as for example in Leigh, qualified immunity suffices. We conclude that the limitation under the Bill may nonetheless be regarded as proportionate for three reasons:
      
      • 15.2.1 As noted in A, broader immunities do exist and have been accepted as compliant with human rights standards [15].
        
      • 15.2.2 The conclusion reached in Leigh was made without the provision of evidence as to any adverse effect of the denial of absolute immunity upon the proper functioning of Parliament [16], and the Jennings conclusion was similarly reached only on the evidence available in that proceeding [17]. The

Bill, by contrast, proceeds from two inquiries by the Privileges Committee, including in respect of Leigh substantial evidence from within New Zealand and more broadly, the unanimous expression by the Members of Parliament comprising that Committee of their views [18], the receipt in the House of those reports [19], and the consideration and provision of a response by the government [20].

15.2.3 Further, and as noted in the Leigh report and in the Explanatory Note to the Bill, the report considered and rejected the assessment of necessity made in the Leigh decision. In light of the fundamental nature of parliamentary privilege and of the place of Parliament in the exposition of the law of parliamentary privilege, that conclusion warrants due deference [21].

16. It follows that we conclude that this limitation is justifiable in terms of s 5.
    

Power to fine for contempt

17. The second issue that arises under the Bill is the affirmation of the power to fine for contempt in cl 21. Two related issues arise:
    
    • 17.1 By analogy with contempt proceedings before the courts, contempt proceedings – even where susceptible only to a limited fine – can be regarded as, or as analogous to, a criminal charge [22]. However, and while noting the procedural protections accorded those appearing before the Privileges Committee [23], it remains that contempt proceedings are not conducted by a court or judicial body acting in accordance with s 25 of the Bill of Rights Act.
      
    • 17.2 In accordance with the requirements of comity as affirmed by the Bill (at cl 3(a)), contempt findings are also not subject to judicial review in accordance with s 27(2) of the Act.
      
18. The limitation is, however, justified on two grounds:
    
    • 18.1 First, and applying caselaw concerning contempt in the face of the court by analogy, the exercise by the House of Representatives of its contempt jurisdiction is necessary to the discharge by the House of its responsibilities [24]; and
      
    • 18.2 In any case, and in contrast to authority that, in proceedings for contempt in the face of the court [25], the issue should be transferred to another judge or court, the principle of comity precludes such recourse here. As with the discussions in Prebble, above, and A, above, the comity principle must take precedence and cannot be accommodated by any other means.
      

19 .It follows that these limitations are again justified under s 5.

Yours sincerely

Ben Keith Crown Counsel

Footnotes

[1](2013) AJHR I.17A.

[2] Explanatory note, 6.
[3] Explanatory note, 6.
[4] Explanatory note, 25.
[5] See, for example, New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly) 1993 CanLII 153 (SCC); [1993] 1 SCR 319, 373 & 390 and A v United Kingdom [2002] ECHR 811; (2003) 36 EHRR 51, [83].

[6]At 10.

[7] Simpson v Attorney-General [Baigent's Case] [1994] NZCA 287; [1994] 3 NZLR 667, 676 and art 2(3) of the International Covenant on Civil and Political Rights.
[8] See Jennings, above, [18].
[9] See, for example, M Nowak CCPR Commentary (2ed: Engel, 2005) 64. [10]R v Hansen [2007] 3 NZLR 1.

[11]A, above n 5, [79].

[12]A, above n 5, [84]: “...the immunity attaches only to statements made in the course of parliamentary debates on the floor of the House of Commons or House of Lords. No immunity attaches to statements made outside Parliament, even if they amount to a repetition of statements made during the course of Parliamentary debates on matters of public interest. Nor does any immunity attach to an MP’s press statements published prior to parliamentary debates ...”.

[13]A, above n 5, [34]ff & [84].

[14] See Jennings, at [17]: “the paramount need to protect freedom of speech ... does not require the extension of absolute privilege to protect” extra-parliamentary statements; and Leigh, [22]: “the risk ... does not persuade us that absolute privilege is necessary for occasions of this kind”.
[15] Above n 13.

[16]At [22].

[17] At [20], citing the “infrequency of cases on [the] point.”
[18] Above n 1, 10 and Privileges Committee, Question of Privilege referred 21 July 2998 concerning Buchanan v Jennings (2005) AJHR I.17G, 4.

[19](2013) 691 NZPD 11067ff.

[20] See, in respect of the Leigh report “Government Response to the Report of the Privileges Committee on Question of Privilege concerning the Defamation Act Attorney- General & Gow v Leigh (2013) AJHR, J.1.
[21] See, for example, Hansen above n 10, [116]:

“How much latitude the Courts give to Parliament’s appreciation of the matter will depend

on a variety of circumstances. There is a spectrum which extends from matters which involve

major political, social or economic decisions at one end to matters which have a substantial legal content at the other. The closer to the legal end of the spectrum, the greater the

intensity of the Court’s review is likely to be.”

[22] See, for example, Siemer v Solicitor-General [2010] NZSC 54; [2010] 3 NZLR 767, [14]ff and [54]ff. [23]See, for example, D McGee Parliamentary Practice in New Zealand (3ed: 2005), 667 (noting rights to counsel and to cross-examine and referring to “proceedings in accordance with normal judicial principles”, including as to the applicable standard of proof).
[24] See, for example, above n 22, [29]-[32], upholding fairness of summary contempt procedure.
[25] See, for instance, Kyprianou v Cyprus (2007) 44 EHRR 27.

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