Before I outline the process followed by the Committee, and summarise its findings, I wish to place on record the contribution made by members of the Committee, over the former and present Parliaments, as well as by the office of the Clerk of the House and by those who gave evidence to the Committee.

Members who served on the Committee after the referral of the question to it during the last Parliament, but who no longer sit as members of Parliament, are the Rt Hon Winston Peters and Russell Fairbrother.  Hone Harawira sat as a member of the Committee until 8 November 2008.  Members who have served on the Committee throughout the process are the Hon Gerry Brownlee, the Hon Wayne Mapp, the Hon Lianne Dalziel, and the Hon Simon Power, who chaired the Committee until 8 November last year.   Members not already mentioned who are members of the current Committee are the Hon Murray McCully, the Hon David Parker, Dr Kennedy Graham, Te Ururoa Flavell, and David Garrett.  The Committee was chaired from 17 December 2008 until 30 April this year by the Hon Dr Michael Cullen.  I am sure that members will join me in acknowledging the contribution to the work of the Committee of the 13 members whom I have just mentioned, particularly that of Mr Power and Dr Cullen as the two immediate past Chairmen of the Committee.

I am also sure that the House would want to acknowledge the very valuable assistance provided to the Committee by Mary Harris, Debra Angus and Catherine Parkin, and by the Solictor-General, Dr David Collins, Professor Philip Joseph, of Canterbury University, and Professor Andrew Geddis, of the University of Otago.  Members might also note that the Committee heard evidence from Messrs Pankhurst and Murphy from the New Zealand Section of the Commonwealth Press Union.

The work of the Committee covered a number of key areas.  First, we discussed the constitutional principle that the judicial and legislative branches ought to maintain comity in their relations, and as a subset of this work, we considered the much misunderstood sub judice rule. The Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown was passed by the English Parliament in 1689.  After that Parliament passed the Short Titles Act in 1896, it has been referred to simply as the Bill of Rights.  That the Act is part of the laws of New Zealand is beyond doubt.  The position was affirmed by Chief Justice Wild in the 1976 case of Fitzgerald v Muldoon and Others.  The Imperial Laws Application Act 1988 of this Parliament refers to the legislation as the Bill of Rights 1688, and is the most recent re-affirmation that it is in force here. The preamble to the Bill recites that James II “did endeavour to subvert .... the laws and liberties of this kingdom .... By prosecutions in…Court…for matters and causes cognizable only in Parliament”. Article 9 of the Bill of Rights goes on to provide:

“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.”

So it is that members of this House, and others participating in the proceedings of Parliament, have a constitutional right to freedom of speech in the course of those proceedings that may not be controlled or limited by any external body, but only by the authority of this House itself.  In particular, the courts are constitutionally limited from performing their usual role in preventing or otherwise regulating breaches of the law when it comes to what is said in parliamentary proceedings.

Because of the breadth of this constitutional exception, and the scope for abuse that it contains, it follows that Parliament ought to make every attempt to ensure that the privilege of free speech is exercised responsibly.  It does so via standing orders, and via legislation.  These should embody the principle that, although Parliament is without a shadow of a doubt sovereign in our system, this does not mean that each branch of Government should wilfully or discourteously impinge on the functions of the others.  It is this balance that is known as the Comity Principle.  

An aspect of this Principle is that the other two branches of Government should not act in a way so as to prejudice the administration of justice in any individual case that is before the judicial one.  This is known as the sub judice rule.  It applies particularly when a court has been persuaded to make an order that varies the usual position that justice must be done openly – in other words, when the court has suppressed some evidence, or the name or other details of a witness. 

At the moment, Article 9 of the Bill of Rights means that such an order has no legal force in the House or in proceedings before a select committee, except in so far as Standing Orders and the discretion of the Speaker or the Chairperson of a committee determines otherwise.

And we think that if a member sincerely believes that the public interest requires that member to breach a suppression order, or otherwise refer to a matter in front of a court, there should remain a facility for this.  However, we seek in our recommended amendments to Standing Orders to make it clear that this would be exceptional, as a breach of the ordinary conventions.  We also seek to make the reference subject to the discretion of the Speaker to first consider whether the statement that is sought to be made is truly in the public interest.
If the member ignores these strictures, then as with other breaches of standing orders, the matter will become one for the Privileges Committee.

Having considered the position in relation to proceedings of Parliament, we discussed whether there are sufficient protections for the reporting and broadcasting of parliamentary proceedings.  In common with representatives of the media who came before us, we were surprised to learn that these are inadequate. 

As has been noted, members have absolute freedom of speech for any statements they may make in the House.  However, parliamentary privilege does not extend in a complete sense to protecting the publication of records of the proceedings of the House

The Legislature Amendment Act provides protection for “parliamentary papers” that are published by or under the authority of Parliament.  To date, our courts have placed a wide construction on the term “parliamentary papers”.  But it seems that not all broadcasts of Parliament’s proceedings are covered by the Legislature Amendment Act.  The gaps in legal protection mean that publishers and broadcasters could face civil or criminal liability for publishing for broadcasting, even if inadvertently, in breach of a court order.

The Committee considers it unsatisfactory that the broadcasting of Parliament’s proceedings under the direct authority of the House may leave the Clerk of the House, or any person later authorised by the House, open to legal action.  We have therefore recommended to the Government that it introduce legislation to amend the Legislature Act 1908 to provide that all live and delayed broadcasting of Parliamentary proceedings under the authority of the House, including select committee hearings, is protected by absolute privilege.

No doubt, in considering the design implications of this recommendation, the Government will also consider the advent of new media, such as the internet.

The Committee also considered the broadcasting and publication of extracts from a broadcast of proceedings or from parliamentary papers, along with the publication of fair and accurate reports or summaries of proceedings in the House.  The media play an important role in providing the public with information about the business of the House.  In recognition of this role, some protections are provided in the Defamation Act to allow fair and accurate reports or summaries of the proceedings of the House to be covered by qualified privilege, which applies to delayed broadcasts of proceedings, publications of fair and accurate reports of proceedings, and publications of fair and accurate extracts, or summaries of a report of proceedings.

Therefore the Committee recommends that the Government introduce legislation to amend the Legislature Act 1908 to provide that a fair and accurate report of proceedings in the House, or summary using extracts of proceedings of the House, by any person is protected by qualified privilege.  However particular issues arise from the use of extracts – they can be taken out of context, or timing repetition can be manipulated in a manner that is unfair, or misleading.  In recognition of these issues, the Committee suggests that the lesser protection of qualified privilege apply to the broadcasting and other publication of extracts of Parliament’s proceedings, including select committee hearings, in a manner consistent with the provisions of the Defamation Act 1992.

Finally, the Committee has considered the effect of the decision of a majority of the Court of Appeal, and of the Judicial Committee of the Privy Council in Buchanan vs Jennings.  We agree with the report of the Privileges Committee of the 47th Parliament, and with the minority reasons for judgment in the Court of Appeal of Tipping J, that this decision is excessively broad in scope.  We reiterate the former Committee’s recommendation that its application should be narrowed.

Unusually, because the recommendations of the Privileges Committee on this occasion relate not to a specific breach of privilege, but to a wider issue, I am not proposing a wider motion encapsulating the recommended changes to standing orders.  Under Standing Order 6, a standing order may be amended or revoked only by a motion with notice.  If I were to move the Committee’s suggested amendments by way of opening the debate on this report, that would effectively allow for the negation of SO 6, since there would be no notice of the proposed amendments.  Instead, I understand that the Government intends to move later in the week a notice of motion incorporating the suggested standing order changes, so I have moved only that the House take note of the Committee’s report.

I look forward to the Government promoting the sessional orders and legislative amendments recommended, and I commend the Committee’s report to the House.