Parliament is planning to pass a law saying how much freedom its members (and others involved in its proceedings) have from legal liability. What's more, it's telling the courts that they've stuffed that issue up.
I'm away to Australia for an academic junket (cough, cough ... very important conference on high-level matters of constitutional law and theory), so won't be Punditing for a few days. To ease your withdrawal symptoms, here's a draft of an analysis piece I'm preparing on the Parliamentary Privileges Bill - something that I've yet to see any commentary on in our media. Enjoy!
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The privileges of New Zealand’s Parliament—or, more accurately, those of its House of Representatives—primarily derive from two statutory sources. The first is the Bill of Rights 1688, Article 9. The second is the Legislature Act 1908, s.242.
Neither legislative instrument defines exactly what parliamentary privilege consists of, meaning that the existence (and ambit) of any particular privilege is a matter of legal interpretation. And as legal interpretation is the responsibility of the judicial branch of government, the courts have on a number of occasions been called upon to decide whether or not a given matter is covered by privilege.
While such judicial intervention is unavoidable, given the nature of the issue at hand, it does create the potential for inter-branch conflict. Simply put, the courts may be of the opinion that parliamentary privilege applies (or does not apply) in a particular way, while the members of Parliament disagree with that conclusion. This potential for disagreement then sets up a clash of authority. The courts’ role as interpreters and appliers of the law means that any judicial decision on whether and how parliamentary privilege applies in a given case effectively will define how it operates in future such cases. However, because parliamentary privilege has its basis in statute, and because New Zealand’s Parliament is a sovereign lawmaker, it always is open to it to legislate to overturn the judiciary’s interpretation of the law and impose its own.
What then makes this clash different to other areas where the judiciary and legislature disagree over the optimal form that law should take is the subject matter involved. In short, a court decision on parliamentary privilege involves the judicial branch deciding the extent of the legislature’s freedom from external intervention; whilst a legislative decision to overturn such a decision inevitably involves an element of self-dealing, as the individuals who are deciding what parliamentary privilege ought to mean are the same people who gain the most from it.
These sorts of concerns have come to the fore in the form of the Parliamentary Privilege Bill, introduced into the House at the start of December. While the proposed legislation would accomplish a number of ends, the primary reason for its introduction is to give effect to a series of Privileges Committee reports that recommended overriding the effect of two particular decisions by the Privy Council and the New Zealand Supreme Court. As these bodies were and are the highest bodies in New Zealand’s curial hierarchy, the Bill represents a significant assertion of parliamentary authority over the views of the judiciary.
1. Jennings v Buchanan and the end of “effective repetition”
The first judicial decision in Parliament’s sights is the Privy Council’s decision in Jennings v Buchanan. The case involved a defamation claim, brought after an MP (Owen Jennings) in a parliamentary debate accused a named public official of misusing public money to pursue an affair. While this parliamentary statement could not itself found a cause of action, as it fell under by the absolute protection afforded by Parliament’s “free speech” privilege, the Privy Council accepted that a later “effective repetition” of the statement could be relied on in court. (The exact words used by Owen Jennings in that "repetition" were that he “did not resile from his claim about the official’s relationship.”)
The Privy Council did not believe this approach improperly intruded into the internal affairs of the House, or to interfere with Parliament’s free speech privilege, as:
reference is made to the parliamentary record only to prove the historical fact that certain words were uttered. The claim is founded on the later extra-parliamentary statement. The propriety of the member’s behaviour as a parliamentarian will not be in issue. Nor will his state of mind, motive or intention when saying what he did in Parliament.
The response of members of Parliament to this decision was less sanguine. A report from the Privilege’s Committee, later unanimously accepted by the House of Representatives, concluded that: “taking no action at all in response to the [Privy Council’s] decision is [not] practicable. Members are being challenged in media interviews in terms directly derived from the 'effective repetition' principle. Unless public debate is to be stymied, this must be addressed.”
It went on to recommend that “the Legislature Act be amended to provide that no person may incur criminal or civil liability for making any oral or written statement that affirms, adopts or endorses words written or spoken in proceedings in Parliament where the oral or written statement would not, but for the proceedings in Parliament, give rise to criminal or civil liability.” This recommendation was repeated in two later Privileges Committee reports.
The Government has now taken it up by including in the Parliamentary Privilege Bill a provision (cl. 8(4)) to the effect that:
it is not lawful for evidence (including, without limitation, Hansard) to be offered or received, questions asked or statements, submissions, or comments made, concerning proceedings in Parliament, by way of, or for the purpose of, ascertaining any content, effect, or meaning of a statement … —
(a) made outside proceedings in Parliament by any person; and
(b) to the effect (regardless of its form or terms) that the person affirms, adopts, endorses, or refers to the content, effect, or meaning of a statement or an action that a participant in proceedings in Parliament (who may, but need not, be the person) made or took in those proceedings; but
(c) that, if considered alone, does not in and of itself repeat that content, effect, or meaning.
Furthermore, for the avoidance of any doubt, the Bill also states in cl.10 that any such statements “are protected by absolute privilege.” The net effect is thus to undo the Privy Council’s ruling, meaning that legal liability will only attach to those extra-parliamentary statements that when considered by themselves contain some defamatory meaning (or, indeed, attract any other legal consequences).
2. Attorney General and Gow v Leigh and widening parliamentary proceedings.
The second judicial ruling threatened with a parliamentary override is the Supreme Court’s decision in Attorney General and Gow v Leigh. I've posted on this before, but for those still in the dark, the case involved a defamation claim brought by a communication’s advisor, Ms Leigh, after Trevor Mallard questioned her professional competence during his answer to a parliamentary question. Once again, this ministerial answer could not directly found a legal claim, due to Parliament's free speech privilege. However, Ms Leigh instead sought to sue the departmental advisor, Mr Gow, who provided Trevor Mallard with the information on which his answer was based. In turn, Mr Gow (joined by the Attorney-General, representing the Speaker of the House) sought to have the action thrown out, on the basis that his advising the Minister was a “proceeding in Parliament” to which absolute privilege attaches.
The Supreme Court ruled in Ms Leigh’s favour, for two reasons. First, it found that the correct test for whether privilege applied was whether it was “necessary” for the proper and efficient functioning of the House of Representatives that the occasion on which Mr Gow communicated with the Minister be regarded as an occasion of absolute privilege. In other words, had Mr Gow shown that without this kind of occasion being regarded as absolutely privileged, the House could not discharge its functions properly?
And having isolated this question, the Court then concluded that it was not necessary to give Mr Gow the protection of absolute privilege: “It cannot be conducive to the proper and efficient functioning of the House to give those communicating with a Minister in present circumstances a licence to speak with impunity when predominantly motivated by ill will, nor a licence to take improper advantage of the occasion by using it for an improper purpose.”
Once again, the members of Parliament disagreed with the judiciary's understanding of the law. In a Privileges Committee report, they rejected the Court’s approach to whether privilege applies (the “necessity” test) and also concluded that without the clear guarantee of absolute privilege, not only public servants but also other participants in the business of Parliament faced the risk of subsequent legal action. Quoting the Chair of the New Zealand Law Commission, Sir Grant Hammond, the Committee concluded that: “The Leigh decision does not appear to be grounded in the facts of parliamentary life, but rather it attempts to apply the law in the abstract. The reality of parliamentary life is that it is a set of complex interactions leading to expression in debates and select committees and it is not necessarily easy to draw sharp lines between these interactions and expressions.”
Consequently, the Committee recommended legislating to overturn the Court’s “necessity” test for “proceedings in Parliament”; a step the Parliamentary Privilege Bill takes in cl. 8(2) as follows:
For the purposes of Article 9 of the Bill of Rights 1688, and for the purposes of this Act, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of the House or of a committee, and therefore includes (without limiting that general definition) the following:
(a) the giving of evidence (and the evidence so given) before the House or a committee:
(b) he presentation or submission of a document to the House or a committee:
(c) the preparation of a document for purposes of or incidental to the transacting of any business of the House or of a committee:
(d) te formulation, making, or publication of a document, including a report, by or pursuant to an order of the House or a committee (and the document so formulated, made, or published).
3. Additional matters.
While the primary purpose of the Bill is to fix the problems that Parliament believes the Courts have created, it does also accomplish a couple of other interesting matters of note.
It specifically provides (in cl. 21) legal authority for the House of Representatives to levy a fine of up to $1000 on persons it finds to be in contempt. Although the House has made use of this purported power in the recent past, the legal basis for it doing so was a matter of some doubt. By explicitly authorising such punishments through legislation, Parliament removes any questions as to the enforceability of such an order.
In addition, the Bill clarifies (in cl. 22) that the New Zealand House of Representatives does not possess the power to expel from membership of the House, and that members’ seats become vacant only in the specific circumstances provided in the Electoral Act 1993, section 55. There again had been some doubt about this issue, with disagreement amongst academic commentators as to whether the House’s “composition privilege” still permitted it to take such a step against one of its members. Parliament is now moving to clarify the matter by disavowing any such legal power.