LAW.COMMISSION TE.AKA.MATUA.O.TE.TURE Miscellaneous Paper 5 THE LAW OF PARLIAMENTARY PRIVILEGE IN NEW ZEALAND A reference paper THELAW OF PARLIAMENTARYPRIVILEGE IN NEWZEALAND A Reference Pajer The Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its purpose is to establish law that is just, principled, and accessible, and that reflects the heritage and aspirations of the peoples of New Zealand. The Commissioners are: Hon Justice David Baragwanath - President Professor Richard Sutton - Deputy President Leslie H Atkins QC Joanne Morris OBE Judge Margaret Lee The Director of the Law Commission is Robert Buchanan The office is at 89 The Terrace, Wellington Postal address: PO Box 2590, Wellington, New Zealand 6001 Document Exchange Number SP 23534 Telephone: (04) 473 3453, Facsimile: (04) 471 0959 E-mail: [email protected] Law Commission Miscellaneous Paper 5 ISSN 1173-9789 December 1996, Wellington, New Zealand This Miscellaneous Paper may be cited as: NZLC MP5 For other publications in the Miscellaneous Paper series, see inside back cover. Contents Para Page PREFACE INTRODUCTION 2 WHAT IS PARLLAMENTARY PRIVILEGE? Parliament in New Zealand Nature and origins of Parliamentary privilege Legal sources of privilege in New Zealand 3 CONTENT OF PRIVILEGE Introduction Powers Power to nguhte ompmceedngs Freedom of~eecband debates Ptlbkcations by order or under azlthority oftbe Howe Power to be solejudge oftbe hyfiilness of its own proceedings Power to ~eguhteits own composition Power of access to the Sovmgn and mostfavowable constmction Contenpt Immunities (and a disqualification) from legal processes Immunityfmm n'vil amst Imminity from coud summons Service ofcourtprocess Adjournment of n'vilproceedngs and &squahjfcationfrom jury service 4 REFORM Standing Orders Committee Report and the Draft Legislature Bill 1989 Parliamentary Privilege Bill 1994 Legislation Advisory Committee submission on the 1994 Bill and developments Standing Orders Committee Report 1995 APPENDIX: LEGISLATION AND STANDING ORDERS Bill of Rights 1688 (End - section 1, article 9 Legislature Act 1908 - sections 242,252-253A, 257,259-268, Sixth Schedule Legislature Amendment Act 1992 - sections 2,4-5 New Zealand Bill of Rights Act 1990 - sections 2-3,7,12,27 Parliamentary Privilege Bill 1994 - clauses 2,4-18 Standing Orders of the House of Representatives 1995 - Chapter 8: Parliamentary Privilege (Orders 384-398) Defamation Act 1996 (UKJ - section 13 Preface This paper is about the law of Parliamentary privilege in New Zealand. This paper oripated in work done in 1995 and 1996 for the Law Commission's project to codify the law of evidence and for the Legislation Advisory Committee's submissions on the Parliamentary Privilege Bill 1994. The Commission acknowledges the work of Ross Carter, a member of the research staff, who drafted this paper, and the assistance and advice of Dr Jim Allan, the Hon David Caygll, Mr Grant Huscroft, and Mr David McGee, Clerk of the House of Representatives, who provided helpful comments on the draft. The Commission presents this work as a miscellaneous paper. It contains no proposals for changes to the law of New Zealand. It is a paper for reference use. We expect it to be used by members, officials and witnesses in the House of Representatives. Judges, public sector officials, the legal profession in general and law students may also find it helpful to refer to. Its purpose is to make the law of Parliamentary Privilege, a little-known but sometimes controversial area of the law, easier to find, interpret and understand. 1 Introduction 1 Recent New Zealand events have renewed interest in the law of Parliamentary privilege. 2 Court cases on this area of the law have gained notoriety. In 1993 the Judicial Committee of the Privy Council advised on the use of Hansard in defending members7 defamation actions apstthose outside the House: Prebble v TVNZ.' 3 The Pnbble case may not be the Committee's last advice on New Zealand's law of Parliamentary privllege.2 The District Court's Cashing v Peten decisions3 (that Hanrard may be used to prove that a member's allegedly defamatory statement identifies a plaintiff) raise serious questions about the scope of the privilege of free Parliamentary speech. These decisions have aroused considerable news media4 and academicS interest. They may well be considered further by courts6 and the ~ouse'alike. 4 Between the Prebble and Ctl~hingcases, representatives of a political party, in lawfui actions which can still amount to a contempt of the ~ouse,8applied without success to the High Coua for declarations and interim injunctions to prevent the House enacting clauses of the Electoral Reform Bill 1995: Thornas v ~ttorneyGeneral.~The Privileges Committee report on the [l9941 3 NZLR 1, [l9951 1 AC 321. For discussion see para 27. Despite the New Zealand Courts Structure Bill 1996, which would abolish appeals to the Judicial Committee of the Privy Council. Chuse 13 provides htin "any proceeding commenced in any New Zealand Court before the commencement of this Act" appeals to the Committee mycontinue as if the Bill hsd not been emted. The Bill wu included in the carry+ver motion for further consideration by the 45th Parliunent: (1996) 553 NZPD 14361 (27 August 1996, Rt Hon Don McKinnon). For discussion see pua 40. See, for example, "Cushing sues Peters in debtionaction", EwmingPod, 17 June 1996,3; "Hanuardreport at centre of Peters' Defmtion case", TbcDommon, l8June 1996,2; yudge Rules Peters can't use privilege", EwningPod, 18 June 1996,l; Teters renews bid to rule out remarks", EwningPosf, 18 June 1996,2; "Peters refuses to defend claim of debtion", TbeDominim, 19 June 1996, 1-2; "Caygill Tackles Privilege", Ewming Post, 20 June 1996.3; "Cushing increases chto $200 W, Tbc Dominion, 20 June 1996, 1-2; 'yudge unlikely to have the last word", Evming Post, 21 June 1996; "Peters to 6ght $50 000 awud", Tbc Dominim, 4 July 1996, 1; "Cushing wins $50 000 off Peters for Dehtion", Tbc Dominim, 4 July 1996,3; "Clear-cut case of malice -Judgen, EvmingPosf, 4 July 1996,2; 'Tarty stands by Peters; backs appeal", E&g Pod, 4 July 1996,3; "Benchk Rules", Tbc Dominion, Saturday 6 July 1996, 14; 'Xefoming Parliamentay Privilege" 119961 19 TCL 25; "The Lowest of the bar", Tbe Dominion, 9 July 1996,6; "Irnportmce of Being Honest', Domimm, 12July 1996,6. See, for example, Joseph, 'Why Peters could not use Pults privilege in his debtion cue", Cbdc6neb Prru, 27 June 1996: 'WO, the judge did not get it wrong", Kim Hill interviews Gnterbury University Associate Law Professor Philip Joseph, 9m- Noon, 19 June 1996, Newztel transcript Joseph, 'Tarliamentary Privilege: Cwsbing v Petns" [l9961 NZLJ 287; compare Allan, Tarliamentay Privilep in New Zealand" forthcoming 119961 6 Canterbury LR: (Czsbing decision takes statements in the Prrbblc case advice out of context and is incorrect); Dr Andrew Ladley: "[tlhere are three legs to this [defamation] stool, and [if the third comes From Hmwdand is protected] it can't stand on WO": Geoff Robinson interview with the Hon David Gygill and Victoria University of Wellington Senior Law Lecturer Andrew Ladley, Moming ILpmt, X)June 1996. Both pardes have indicated willingness to appeal decisions lgvnst them, to the highest level if necessary. An appeal to the High Coua could not progress at least until a mling was made on who was to bear the costs of the District Coua hearing see, "Cushing to Privy Council", NndodBwn'ncu %m, 21 June 1996, 1; "Peters to fight $50 000 awud", Tbr Dominion, 4 July 1996, 1; "Party stands by Peters; backs appeal", Evming P04 4 July 1996, 3; "Peters appeal in dehnation case stdled", Tbe Dominion, 16 August 1996,3. On 21 November 1996 Dllmer DCJ awarded Mr Cushing $75 000 in costs and disbursements, see "Peters ordered to pay $75,W, Tbc Dominion, 22 November 1996,l. Rcpott of thc Pnilegcs Commitlrc m ,?be Question of Priyilcgc Rrfmd m 1 1 Jm1996 (1996) AJHR I.15A. For discussion, see "Privileges Committee Ponders Peters' he", GrymozthEwning Sfur, 13June 1996; 'Teten loses privilege cue - Wsattempt to stall defvnation action fails", N&'onafBusirr*r &m, 14 June 1996, 11; 'TviPs have second thoughts about bushwhacking Peters - In their rush to dunage a fiery opponent, National and Labour politicians myhlve shot themsehres in the foot", N&'onolBnkss RNiew, 21 June 1996, 13. See also the call by Prime Minister the Rt Hon Mr James Bolger (reportedly octing on a suggestion from AmNZ political party leader the Hon Mr Richard Prebble), for the Hon Mr Peters MP to be summoned by majority resolution of the House before the Privileges Committee of the House and censured and/or fined for abusing free Parliamentay speech: "Bolger considers cue against Peters", Tbc Domiion, 10 July 1996,2; "Censure bid unlikely to gun Labour help", TbcDominion, 11July 1996,2; 'Teters points to 'a little conspiracf', Tbc Dominim, 12July 1996,2 Report of the Privileges Committee on the Question of Privilege Referred on 28 November 1995 (1996) AJHR I.15A (unreported, High Court, Wellington, CP 289/95,27 November 1995, Gallen J); For a discussion see Joseph, "Constitutional Law The High Court Challenge to the Ballot Paper Legislation" [l9961 NZ Law R 1. For news reports see: "Court rejects Thornas case confirms that the fact that it is usually. -perfectly lawful to seek declarations and injunctions from a court is not a complete answer to an allegation of contempt of the House. 5 On the advice of the Privileges Committee the House, in 1994, accepted that it had power to override court orders for non-disclosure. It ordered the publication of the 'Wine box" documents tabled by the Member for Tauranga, despite the documents being the subject of court orders prohibiting their publication.10 6 Other events in the House itself have, in two ways in particular, renewed interest in Parliamentary privilege and contributed to developments.