PARLIAMENTARY PRIVILEGE BILL- DEPARTMENTAL REPORT- PART 1

Transcription

1 (; ~ ;,' M I N I ST R Y O F :~ ~~~ JUSTICE ~~. 1(1/ni o u '/ilre 7 Apri12014 Hon Chris Finlayson Chairperson, Privileges Committee Parliament Buildings WELLINGTON Dear Hon Finlayson PARLIAMENTARY PRIVILEGE BILL- DEPARTMENTAL REPORT- PART 1 1. This is part 1 of the Ministry of Justice's departmental report on the Parliamentary Privilege Bill (the Bill). The Office of the Clerk of the House of Representatives, Parliamentary Counsel Office and the expert adviser were consulted. As agreed with the Privileges Committee (the Committee) this report addresses overarching issues for the Committee's consideration. Detailed drafting issues will be addressed in part 2. Part 2 will also address submissions regarding powers of the House and out of scope issues. Part 2 will be available for the Committee next week. 2. This report covers the following: Section Page Summary of recommended changes 2 Overview of submissions 4 Purpose of the Bill 5 Interpretation of parliamentary privilege 8 Effective_ repetition 13 Protections for publishing and broadcasting 18 Appendix: particular examples of 'proceedings in Parliament' raised by 22 submitters Parliamentary Privilege Bill - Departmental Report- Part 1

2 SUMMARY OF RECOMMENDED CHANGES Purpose of the Bill 1.1 Insert the Clerk's recommended purposes as primary purposes of the Bill and retain the existing purposes in clause 3 as subsidiary purposes. Incorporate the principle of comity. Inserting the two new primary purposes will ensure that the Bill, when enacted, will be a new principal act that sets the overarching framework for the legislature. Incorporating the principle of comity is a critical reference to the relationship between the legislature and the judiciary. Retaining the current purposes of the Bill provide useful indicators as to the origin of the Bill. Interpretation of parliamentary privilege (purpose of parliamentary privilege and scope of "proceedings in Parliament") 2.1 Insert an interpretive principle into the Bill stating that it must be interpreted in a way that promotes its purposes, and the purposes of Parliamentary privilege. 2.2 Redraft clause 6 to refer to upholding the integrity of the House as a democratic legislative assembly and securing the independence of the House in performing its constitutional functions. 2.3 Amend clause 8 to provide that notwithstanding any enactment or rule of law to the contrary (including any rule in Attorney-General v Leigh) a necessity test is not to be applied in deciding whether words were spoken or actions were done in the course of, for the purposes of, or incidental to transacting the business of the House. Together these amendments clarify the proper scope of parliamentary privilege and remove the risk that the courts will use the necessity test in assessing the scope of proceedings in Parliament in future litigation. The operation of the Australian provision since 1987 suggests that the definition of "proceedings in Parliament" has sufficient flexibility. The examples provided by submitters raise issues at the extreme margin of the definition, which remain for the Courts to resolve in the light of statutory guides in the Bill. Changes to the definition are not recommended. Effective repetition 3.1 Delete clause Delete clause 8(4). 3.3 Amend clause 8(3) to explicitly include additional purposes of: Proving or disproving facts necessary for, or incidental to, establishing liability, Resolving a matter before the courts, or supporting or resisting a judgment, order, remedy, or relief sought in the courts. The recommended changes involve both content and drafting changes. In terms of content the changes will ensure that effective repetition is dealt with through an evidentiary barrier. Amend clause 8(3) to ensure that Parliamentary proceedin s cannot Parliamentary Privilege Bill- Departmental Report - Part 1

3 be used to prove or disprove facts that tend to establish liability, or resolve any matter, or support or resist any judgment, order, remedy or relief arising or sought in court or tribunal proceedings. Protections for publishing and broadcasting 4.1 Delete clauses 11-13, 15-19, and Insert new provisions establishing: Stay of proceedings where the House or a committee has authorised or required broadcast or publication of proceedings in Parliament (including copies and documents relating to proceedings in Parliament). Procedural provisions for stay to be based on the Legislature Amendment Act (part 2 of the departmental report will address modernisation of these provisions) Qualified immunity from civil or criminal liability for unauthorised broadcast or publication of proceedings (including fair and accurate reports, fair and accurate extracts and summaries, and documents relating to proceedings that have been published under the House's authority (or under law)). Leave section 13 of the Defamation Act in that Act. Create a simplified framework for protecting people who publish and broadcast proceedings in Parliament. Protections will be against any civil or criminal liability, although defamation actions will continue to be governed by the Defamation Act. Protections for publishing and broadcasting to focus on proximity of the broadcast or publication to the House. If the House has authorised or required broadcast or publication, the courts should not allow a case to proceed based on that broadcast or publication. A stay of proceedings is the most direct way of achieving that policy objective. People disseminating proceedings in Parliament (whether by broadcast, podcast, comment, or excerpt) without the House's authorisation should have a qualified immunity against any civil or criminal proceedings. If the immunity is established, it would be a bar to further proceedings. Qualified immunity would not be available if the person claiming it had been motivated by ill-will or had taken improper advantage of the situation. Part 2 of the departmental report will address terminology, including "broadcast". Part 2 will a/so consider what needs to be done to modernise the procedural provisions for stay that are being brought over from the Legislature Amendment Act. Parliamentary Privilege Bill- Departmental Report- Part 1

4 OVERVIEW OF SUBMISSIONS 3. The Committee received 7 submissions on the Bill. An overarching issue raised by most submitters was the need to be clear about the purpose of parliamentary privilege, and the purpose of the Bill. The expression of these purposes guides the definitions of key concepts including "proceedings in Parliament", "effective repetition", and protections for publishing and broadcasting. 4. Submitters expressed concerns as to whether the Bill as drafted clarified the key concepts without in fact expanding the scope of privilege beyond that intended or justified. These issues are discussed in this part of the departmental report. 5. In addition, submitters made comments about various detailed aspects of the drafting of the Bill. These issues will be addressed in part At the time of preparing this report the seventh submission was yet to be accepted by the Committee as it was provided after the submission deadline. Should the Committee accept this submission we will address any issues it raises in part 2. # Submitter 1 Clerk of the House of Representatives (the Clerk) 2 Legislation Advisory Committee (the LAC) 3 New Zealand Law Society (the NZLS) 4 Professor Andrew Geddis (Professor Geddis) 5 Standing Committee of Privileges and Members' Interests, Australian House of Representatives 6 Lord Sewel, Chairman of Committees, United Kingdom House of Lords (Lord Sewel) 7 Kevin Barron, Chair of Committee of Privileges, United Kingdom House of Commons Parliamentary Privilege Bill- Departmental Report- Part 1

5 PURPOSE OF THE BILL 7. The purpose clause sets out the core legislative values underpinning the specific provisions of the Bill. It is also a central guide on any question of interpretation. Intention of clause 3 8. The Bill implements the recommendations from various Privileges Committee and Standing Orders Committee reports since As a result of these recommendations the Bill: 8.1. clarifies (without codifying) the scope of parliamentary privilege (clauses 3(a) (e)); and 8.2. repeals and replaces existing legislation (clause 3(f)). 9. To clarify the scope of parliamentary privilege the Bill sets out specific purposes relating to Parliament's freedom of speech. The Bill: 9.1. ensures Article 9 of the Bill of Rights 1688 has a specified effect; 9.2. defines "proceedings in Parliament" to replace the necessity test in Attorney General and Gow v Leigh (Leigh); 9.3. ensures that effective repetition statements are protected by parliamentary privilege; and 9.4. ensures that broadcasts and publications of Parliament are given the protections necessary to promote the use of parliamentary materials in public debate. 10. Clauses 21 and 22 state a further purpose: to clarify the House's power to fine and the power to expel Members. Submissions on the purpose of the Bill COMMENTS FROM SUBMITTERS ON CLAUSE 3 The Clerk The purpose clause of the Bill should reflect that the Bill, when enacted, will be a new principal act that will become part of the overarching legislative framework for the legislative branch of government. The purpose clause of the Bill should make clear that it: clarifies the nature, scope and extent of the House's privileges, powers and immunities that it possesses to ensure its independence from the other branches of government and to enable it to carry out its constitutional role and functions; and provides statutory protection for the publishing and broadcasting of parliamentary proceedings. The Bill provides an opportunity to establish a framework for parliamentary privilege, its scope and extent. The operation of Parliamentary Privilege Bill- Departmental Report- Part 1

6 privilege is a matter for the House and the Bill should not seek to define or deal with House procedures. Professor Geddis LAC Lord Sewel Re-word clause 3(e) as it is currently expressed clumsily. Also noted that while clause 8(2) of the Bill will overturn the particular ruling in Leigh it does not overturn the legal analysis applied in that case. Clause 6(1) will be read in a way that is consistent with the Supreme Court's decision. This undermines one of the Bill's purposes, to return the law to what was commonly understood before Leigh. Clause 6 may create an inadvertent ambiguity as to the status of the common law necessity test and seems to be in conflict with the Bill's stated purpose. Noted that the Joint Committee expressed regret at the decision in Leigh, but that the decision is not binding in the United Kingdom. Discussion 11. Advisers agree with the Clerk's suggestion to clarify the purpose of the Bill. The Bill currently deals with the "nature, scope and extent of privilege" in clauses 3(a), (b), (d) and (e), 6(1) and in the admissibility rules for Hansard in clause 8(3). In addition, advisers consider the principle of comity should be given more weight. This is the fundamental principle from which Parliament's freedoms arise. That would recognise the important role of the courts in the relationship between Parliament and the Courts. 12. The Clerk recommended that the second purpose of the Bill is to provide statutory protection for the publishing and broadcasting of parliamentary proceedings. Although a substantial amount of the Bill deals with publishing and broadcasting it is not referred to in clause 3. We agree that this needs to be given more prominence in the purpose section. 13. Both Professor Geddis and the LAC questioned whether the wording of clause 6(1) of the Bill invites the courts to continue to apply a strict necessity test in determining the scope of parliamentary privilege. This is addressed later in the report. 14. Professor Geddis' submission about the wording of clause 3(e) is a minor drafting matter and will be addressed in part 2 of the report. 15. Clause 3 of the Bill lists six purposes. There is no hierarchy, each purpose is equally important. Advisers have identified two options for responding to the Clerk's recommendation: Option 1: replace the current six purposes in clause 3 with the two purposes put forward by the Clerk. Incorporate the principle of comity Option 2: insert the Clerk's recommended purposes as primary purposes of the Bill and retain the existing purposes in clause 3 as subsidiary purposes. Incorporate the principle of comity. Parliamentary Privilege Bill- Departmental Report- Part 1

7 16. While there is merit in a very simple statement of the Bill's purpose (option 1 ), it is desirable to retain the existing purposes in clause 3 (option 2). Those purposes record the context in which the Bill was developed and help to articulate the Bill's policy intention. RECOMMENDATION: PURPOSE OF THE BILL 1.1 Insert the Clerk's recommended purposes as primary purposes of the Bill and retain the existing purposes in clause 3 as subsidiary purposes. Incorporate the principle of comity. Parliamentary Privilege Bill - Departmental Report- Part 1

8 INTERPRETATION OF PARLIAMENTARY PRIVILEGE 17. Parliamentary privilege preserves Parliament's independence in carrying out its constitutional functions. Parliamentary privilege has evolved from a time when Members' participation in proceedings could be (and often were) impeached in the Sovereign's Courts as sedition. While those days are long past, the protection of parliamentary privilege remains as a strong constitutional marker in the law and conventions as to the separation of power. It ensures our elected representatives can make law, scrutinise the government, and debate the important issues of the day on our behalf without inhibition from sources or influences outside the House. 18. The Bill is particularly concerned with one aspect of parliamentary privilege: Parliament's freedom of speech and the associated function of communicating with the public. Article 9 of the Bill of Rights 1688 is the cornerstone of Parliament's freedom of speech. It prohibits the questioning or impeaching of "proceedings in Parliament" in any court or place out of Parliament. 19. The Bill: states a general purpose of parliamentary privilege (clause 6); and specifically, in relation to freedom of speech, defines "proceedings in Parliament" (clause 8(2)). Intention of clauses 6 and 8(2) 20. Clause 6(1) states the purpose of parliamentary privilege while clause 6(2) directs the courts to take that purpose into account when determining the scope or extent of privilege. Clause 6(3) is for the avoidance of doubt. It states that clause 6 does not limit the rest of the Bill. Clause 6 provides context for the more specific guidance set out in clause Clause 8, as a whole, specifies the effect of Article 9 of the Bill of Rights It does this by defining and providing guidance on the key phrases in Article 9: "proceedings in Parliament" and "impeached or questioned". 22. Clause 8(2) has been closely based on section 16(2) of the Australian Parliamentary Privilege Act Clause 8(2) also aims to ensure that Leigh does not set a precedent narrowing the scope of Parliament's freedom of speech. The circumstances in Leigh (provision of information and advice to a Minister for a parliamentary question) are captured by the general definition in clause 8(2), as well as by clause 8(2)(c). Submissions COMMENTS FROM SUBMITTERS ON CLAUSE 6 The Clerk Delete clause 6(3). LAC The current drafting of clause 6 may create inadvertent ambiguity as to the status of the common law necessity test. This ambiguity could be addressed by inserting a more generalised statement as to the purpose of privilege in clause 6(1) such as privilege exists to Parliamentary Privilege Bill- Departmental Report- Part 1

9 "safeguard the ability of Parliament, its members and those who appear before it or its committees to carry out the business of Parliament." Omit clause 6(2). Query whether the House should be able to waive privilege. Professor Geddis Clause 6(1 ): the Court will have no choice but to read this purpose in light of the decision in Attorney-General and Gow v Leigh i.e. that the purpose of enabling Parliament to carry out its functions will be taken to mean something like 'it is necessary for the proper and efficient conduct of the business of the House for the occasion in question to be covered by privilege'. The general purpose of parliamentary privilege, as spelt out in clause 6(1) is non-controversial. Clauses 6(2) and (3): unclear how these sub-clauses fit together. Cannot use the purpose for which privilege exists to limit any of the privileges specified in the Bill. What is the difference between determining the extent and scope of a privilege and determining whether an occasion of privilege exists? Clause 6(3): query whether the House's right to legislate is a matter of privilege. Right to legislate is a matter of Parliamentary Sovereignty. COMMENTS FROM SUBMITTERS ON CLAUSE 8 The Clerk LAC Recommends that the following amendments be made to clause 8: Clause 8(1 ): delete final part of sub-clause in brackets Clause 8(2)(d): delete "including a report" Clause 8(4): delete "(including without limitation Hansard)" Clause 8(5) delete "or a report of that oral evidence" Clause 8(5)(a)(i) replace "as private evidence" with "in private" Clause 8(6)(a) delete "of a report" Clause 8(6)(b) replace "that report" with "those proceedings" Invites Committee to consider whether clause 8 can be redrafted to better indicate the limits of parliamentary proceedings. LAC has two concerns. First, it is important that the public and Parliament know what is covered by parliamentary privilege. Provided several examples as to what may fall within the wide scope of clause 8. Second, current wording of clause 8 could lead to parliamentary privilege protecting wrong doing. Example of English case Chaytor provided. Suggest new sub-clause 6A: nothing in subsection (6) requires any Parliamentary Privilege Bill - Departmental Report- Part 1

10 court or tribunal to admit in evidence any item referred to in that subsection. Interaction with perjury Query whether clause 8(3) impliedly repeals section 108 of the Crimes Act insofar as it applies to evidence given before the House under oath. Employment issues and contracting out Consider a prohibition on contracting out or imposing any condition of employment that negates the effect of clause 8(3). NZLS Professor Geddis Australian House of Representatives, Standing Committee of Privileges and Members' Interests Query whether the definition of 'proceedings in Parliament' in clause 8 is as clear as it could be. Suggested a number of scenarios for the Committee to consider. Most of clause 8 has been taken from the Australian Parliamentary Privileges Act, section 16. Consider investigating how the Australian provision has operated since enactment. Issue with clause 8(3) and the implied repeal of the offence of perjury when giving evidence on oath before the House or its committees. Clause 8(2): this has been based on section 16(2) of the Australian Parliamentary Privileges Act Noted that it has been unnecessary to expand the items specified in section 16(2). Accordingly, consider that clause 8(2) should serve the New Zealand Parliament effectively. Discussion 23. The submissions on clauses 6 and 8 raise two issues: Whether the current drafting of the Bill inadvertently allows the necessity test to continue to apply in determining the scope of Parliament's freedom of speech Whether the definition of "proceedings in Parliament" is too broad. 24. These issues are interlinked and relate to what test the courts will use when interpreting the words "in the course of, or for purposes of, or incidental to, the transacting of the business of the House or of a committee" (clause 8(2)). Inadvertent inclusion of necessity test 25. Submitters noted that clauses 6 and 8 might invite the courts to impose the necessity test when considering whether something is a "proceeding in Parliament". Professor. Geddis notes that although clause 8(2) overturns the particular decision in Leigh, it does not have the effect of overturning "the underlying legal analysis Parliamentary Privilege Bill - Departmental Report- Part 1

11 applied by the Court". The LAC notes that, while the Bill adopts the Australian approach to include steps ancillary to (or connected with) proceedings in Parliament, a court may read down the provision by reference to strict necessity test. 26. The policy intention of the Bill is to ensure the necessity test is not used in determining the extent of Parliament's freedom of speech. Advisers accept submitters' concerns that the Bill does not currently achieve this policy intention. We recommend the Bill be amended in the following ways: Interpretive principle: insert an interpretive principle into the Bill stating that it must be interpreted in a way that promotes its purposes, and the purposes of parliamentary privilege Purpose of parliamentary privilege: re-frame clause 6 to make the constitutional significance of privilege absolutely clear. Clause 6 should refer to upholding the integrity of the House as a democratic legislative assembly and securing the independence of the House in performing its constitutional functions Definition of proceedings of Parliament: insert into clause 8 an interpretive clause stating that, notwithstanding any enactment or rule of law to the contrary (including any rule in Attorney-General v Leigh) a necessity test is not to be applied in deciding whether words were spoken or actions were done in the course of, for the purposes of, or incidental to transacting the business of the House Certainty as to the boundaries of the definition of "proceedings in Parliament" 27. The LAC and the NZLS were both concerned with whether clause 8(2) is clear as to what falls within the definition of "proceedings in Parliament" and what falls outside. Both submitters provided a list of examples for the Committee to consider. These examples are considered in the Appendix. 28. The examples provided by the LAC and the NZLS raise issues at the extreme margin of the definition. With any statutory definition, in applying the law to circumstances 'associated with' or 'incidental to' a core function there will be questions of application. These remain for the Courts to resolve, in the light of statutory guides in the Bill and not on the basis of Stockdale v Hansard. The evidence from the LAC 1 illustrates that, regarding the Australian definition, context is critical when determining the status of particular words, actions, advice and papers. 29. Professor Geddis' submission suggested considering how the Australian provision has operated since enactment. The submission from the Australian House of Representatives, Standing Committee of Privileges and Members' Interests notes that it has been unnecessary to expand the items in section 16(2) of the Australian Act. We consider that the Australian experience has illustrated that section 16(2) provides sufficient flexibility. 30. Given the Australian experience we recommend that clause 8(2) should remain as currently drafted. However, the New Zealand legal context is different (particularly 1 Evidence resented to the Committee on 18 March Parliamentary Privilege Bill - Departmental Report- Part 1

12 after Leigh) so we consider it appropriate to supplement the Australian definition of "proceedings in Parliament" with an interpretive clause to ensure the necessity test is not applied by the Courts when determining whether words spoken or acts done fall within the definition of "proceedings in Parliament". Other matters raised by submitters 31. Submitters raised a number of other issues regarding clauses 6 and 8. Some of these issues may be overtaken in the re-drafted Bill if the Committee agrees with the amendments suggested above. Any outstanding issue will be dealt with in part 2 of the departmental report. 32. The amendments to clause 8 recommended by the Clerk reflect related recommendations regarding the deletion of various definitions such as the definition of "report". The Clerk's recommendations regarding clause 8 will be addressed in part 2 of the departmental report, together with the Clerk's other recommendations about statutory definitions. However, we note here that these recommendations from the Clerk are aimed at ensuring that the Bill does not inadvertently open up the operation of parliamentary privilege to judicial scrutiny. The changes recommended above should reduce the risk that this may happen. 33. The submissions from the LAC, the NZLS and Professor Geddis relating to drafting in clause 8(3) will be considered in the part 2 of the departmental report. RECOMMENDATIONS: INTERPRETATION OF PARLIAMENTARY PRIVILEGE 2.1 Insert an interpretive principle into the Bill stating that it must be interpreted in a way that promotes its purposes, and the purposes of parliamentary privilege. 2.2 Redraft clause 6 to refer to upholding the integrity of the House as a democratic legislative assembly and securing the independence of the House in performing its constitutional functions. 2.3 Amend clause 8 to provide that notwithstanding any enactment or rule of law to the contrary (including any rule in Attorney-General v Leigh) a necessity test is not to be applied in deciding whether words were spoken or actions were done in the course of, for the purposes of, or incidental to transacting the business of the House. Parliamentary Privilege Bill- Departmental Report- Part 1

13 EFFECTIVE REPETITION 34. 'Effective repetition' is a specific issue relating to Parliament's freedom of speech and article 9 of the Bill of Rights. Effective repetition involves a statement made in the House (made during "proceedings in Parliament") which is then effectively repeated outside the House through a statement such as "I stand by I do not resile from what I said in the House". Actual repetition would involve repeating the statement made in the House. In the context of defamation, the statement outside the House when viewed in isolation is not, in and of itself, defamatory. In order to give meaning to the effective repetition statement a court must look to the statement made in the House. In the view of successive Parliaments (but not the Courts) this breaches article 9 by amounting to "impeaching or questioning" proceedings in Parliament. Intention of clauses 8(4) and Clause 8(4) of the Bill prohibits statements made during parliamentary proceedings from being used to determine criminal or civil liability in respect of a statement made outside Parliament. It is an evidentiary barrier to the questioning or impeachment of parliamentary proceedings by a court, which would be in breach of Article 9. Clause 8(4) is a detailed elaboration of clause 8(3) which provides guidance on the scope of impeaching or questioning. 36. Clause 8(4) of the Bill prohibits statements made during parliamentary proceedings from being used to determine criminal or civil liability in respect of a statement made outside Parliament. It will not prevent people from trying to pursue a claim, but will prevent people from using the proceedings in Parliament as evidence to support a claim before the courts. Clause 8(4) is a more detailed elaboration of clause 8(3), which provides guidance on the scope of impeaching or questioning. 37. Clause 10 declares that effective repetition statements have absolute privilege. It means that the courts cannot consider an action based on an effective repetition statement. To do so would contravene article 9 of the Bill of Rights Submissions on effective repetition COMMENTS FROM SUBMITTERS ON CLAUSE 8(4) AND 10 The Clerk LAC The Bill currently addresses effective repetition through both an evidential prohibition and an absolute privilege protection. Consider whether the evidential prohibition is sufficient on its own. The application of absolute privilege could be construed as an extension of parliamentary privilege to words spoken outside the House. Invites Committee to consider whether clause 8(4) achieves its stated intention (abolishing effective repetition) or whether it goes beyond this by also covering effective repetition statements made by any person. It is not clear that enabling others (aside from MPs) to rely on this new privilege is necessary for the purposes of Parliament. The Committee should also examine the intended interaction Parliamentary Privilege Bill- Departmental Report- Part 1

14 between effective repetition and the current defamation rules that effectively restrict third party reporting of statements in the House to that which is fair and accurate (qualified privilege). Clause 8(4) and 10 provide absolute privilege. LAC query whether it is good policy for those who are reporting a statement in the House to be held to a higher standard than those who endorse those statements. NZLS Australian House of Representatives, Standing Committee of Privileges and Members' Interests Lord Sewel Clause 8(4)(b) will apply even when the person who does the affirming or repeating is not the person who made the original statement. The extensions of the effective repetition rule may have the unintended effect of establishing a 'currency' that allows numerous persons to repeat defamatory material by saying, for example, that they too support and affirm what was said in the House by a member. A fair and accurate report will be given qualified privilege while the effective repeater gets absolute privilege. Also possible that a CEO or any other person could make defamatory allegations against others to Members or Ministers (that are not spoken in the House) which would attract absolute privilege and be repeatable with impunity. Although Australian case law is a little ambiguous, section 16(3) [clause 8(3) of the Bill] "seems to provide some impediment to a successful 'effective repetition' case. Cited the Joint Committee report, at paragraph 205 the Joint Committee noted that extending absolute privilege to repetition by Members outside Parliament of statements made by them in the course of proceedings might create a temptation for Members to make reckless or defamatory statements in the House, with a view to repeating them outside. This could bring parliamentary proceedings into disrepute. Discussion 38. Submitters raised two broad issues which need to be addressed: How to ensure there is protection for effective repetition statements: whether evidentiary prohibition is sufficient (clause 8(4)); whether clause 10 is really needed, and whether it goes too far in applying absolute privilege to effective repetition statements Who should be covered: clarifying whether the protection should only apply to Members, or to other participants in parliamentary proceedings and to third parties who are unconnected with the proceedings. This raises an issue Parliamentary Privilege Bill - Departmental Report - Part 1

15 about the link between the current defamation rules regarding fair and accurate reports and the potential protection afforded under the Bill. How to ensure effective repetition statements are protected? 39. Officials had invited the Committee to consider whether clause 10 is needed, given its limited effect once clause 8(4) is applied. We consider that clause 10 may inadvertently extend privilege beyond "proceedings in Parliament" as it focuses protection on the statement made outside of proceedings in Parliament, rather than on protecting the records of the House. We recommend that clause 1 0 is deleted. 40. An evidentiary barrier is the most direct way of dealing with effective repetition. As noted above, clause 8(4) currently creates an evidentiary barrier. However, we consider that clause 8(4) is not the best means of creating this barrier and recommend that it is deleted. 41. The Committee's expert adviser has observed that clause 8(4) is a detailed clause focused on a legal fiction developed in the context of defamation pleadings. It does not sit comfortably in a constitutionally significant Bill articulating the nature, scope and extent of an important aspect of parliamentary privilege. The expert adviser suggests deleting clause 8(4) and avoiding using the phrase "effective repetition" in the Bill. This concern is similar to the Clerk's recommendation to omit the defamation concepts of absolute and qualified privilege from the Bill. 42. Furthermore, clause 8(4) is an elaboration of clause 8(3). It articulates the specific effect of the more general principle in clause 8(3). Arguably, therefore, clause 8(4) is not needed. That is the tenor of the submission from the Australian House of Representatives, Standing Committee of Privileges and Members' Interests. 43. We also note that, although effective repetition is a fiction developed in defamation law, an effective repetition issue could conceivably arise outside defamation law (e.g. in a contempt of court context). Removing clause 8(4), which is specific to defamation, will ensure the broader clause 8(3) can cover such an issue. 44. For these reasons, we consider the best way to protect the House's records from being used to lend meaning to an effective repetition statement is to create an evidentiary barrier through clause 8(3). To ensure the barrier covers effective repetition statements, we recommend adding to clause 8(3) to include the use of parliamentary proceedings in establishing liability, and in resolving matters or supporting or resisting relief or remedies sought in court proceedings. 45. A strengthened clause 8(3) will be supported by a clause in the purpose of the Bill that the Bill overturns Jennings. 46. In re-drafting clause 8(3) it will be necessary to ensure that the scope of "impeaching or questioning" does not inadvertently go too far, for example, by prohibiting the use of Hansard to establish fact or historical record. The Bill does not entirely prevent the use of proceedings in Parliament. Part 2 of the departmental report will address these matters. Parliamentary Privilege Bill - Departmental Report- Part 1

16 RECOMMENDATIONS: EFFECTIVE REPETITION 3.1 Delete clause Delete clause 8(4). 3.3 Amend clause 8(3) to explicitly include additional purposes of: Proving or disproving facts necessary for, or incidental to, establishing liability Resolving a matter before the courts, or supporting or resisting a judgment, order, remedy, or relief sought in the courts. Who should be covered? 4 7. Several submitters were concerned about the risks of extending protection to a person who effectively repeated a statement made in proceedings in Parliament that was made by somebody else (a 'third party effective repetition statement'). If the Committee accepts recommendations 3.1 to 3.3 above, that will remove the provision that caused the concern (clause 8(4)). The following analysis is for the sake of completeness. 48. There are three classes of people who might repeat statements made in proceedings in Parliament. They are: Members; non-members who participate in proceedings (e.g. witnesses or submitters) or who support Members or Ministers in proceedings (e.g. parliamentary and departmental officials); and Third parties (e.g. journalists or commentators who report on and express views about proceedings in Parliament). 49. Submitters seemed to draw a particular distinction between Members and third parties. In this context, they questioned whether a third party effective repetition statement should be protected by absolute privilege. In contrast, a third party report or extract of a report is only protected by qualified privilege, provided it is fair and accurate. Given the definition of "report" in the Bill, it would be difficult to view an effective repetition statement as a "report". 50. The purpose of parliamentary privilege is to enable the House, its committees and Members to carry out their functions, and to ensure the dissemination of information about parliamentary proceedings without distortion or interference. Focusing on the class of person who repeats a statement made in proceedings misses the conceptual focus of the protection. The focus should be on protecting the House's records from impeachment or questioning. From this perspective, it does not really matter who made the effective repetition statement. 51. We recommend that the Bill should not distinguish between those who effectively repeat their own statements and those who effectively repeat the statements made by others. If the Committee accepts recommendations above, no further Parliamentary Privilege Bill - Departmental Report- Part 1

17 amendments to the Bill are required because the clause that caused the concern will be deleted. Parliamentary Privilege Bill - Departmental Report- Part 1

18 PROTECTIONS FOR PUBLISHING AND BROADCASTING 52. New Zealand's open democracy requires public access to proceedings in Parliament. This is achieved through the broadcasting of proceedings in Parliament (whether live or delayed) and through publications of parliamentary material, reports or extracts of parliamentary material. 53. In the digital age, records of parliamentary proceedings are pervasive and enduring, and open to editing and rebroadcast far from the House's control. Web-based and electronic media now mean that information can be obtained immediately and is much harder to manage or control. Once material is published on the web it is nearly impossible to be retrieve or delete. As a result, broadcasters and publishers themselves have changed. Bloggers and social media users have a reach that was previously limited to well-resourced, traditional broadcasters. Intention of clauses 11-13, 15-19, The policy objective of the Bill is to ensure that fear of legal liability does not get in the way of public dissemination of parliamentary proceedings. At the same time, it is important that Parliament's message is not distorted. Therefore, the Bill distinguishes between unabridged publications authorised by the House and unauthorised publication of edited versions. The Bill uses the Defamation Act as a model for introducing a range of absolute and qualified immunities in relation to the broadcast and publication of parliamentary proceedings and papers. Submissions on protections for publishing and broadcasting COMMENTS FROM SUBMITTERS ON CLAUSES 11-13, 15-19, 33 The Clerk The Committee needs to ascertain whether the statutory publishing and broadcasting protections remain relevant in the world of century information communication technology. These protections are currently contained in the Defamation Act 1992 and the Legislature Amendment Act 1992 (LAA). The Committee may wish to consider whether the Bill should include the concepts of absolute and qualified privilege. Alternative is to use a stay of proceedings technique used in the LAA. This would avoid any suggestion that parliamentary privilege is in some way being extended beyond what is currently understood as proceedings in Parliament. Recommended that the Committee consider the adequacy of section 13 of the Defamation Act in the century information communication technology environment. Consider omitting clauses 9 to 13 and the cross heading 'Absolute privilege'. Re-draft clauses 15 and 16 to provide protection for live broadcasts and rebroadcasts of parliamentary proceedings made by order or under authority of the House and correct copies thereof. Re-draft clause 17 and 19 under the cross heading 'Qualified immunity from civil or criminal liability', refer to fair and accurate Parliamentary Privilege Bill - Departmental Report- Part 1

19 LAC Discussion reports or extracts of proceedings in Parliament, and that clause 19(2)(b) be deleted. Delete clause 18. Delete clause 33. In order to avoid confusion, the references in clauses 9 to 13 to 'absolute privilege' could be replaced with 'parliamentary privilege'. A separate clause could state that parliamentary privilege is an absolute privilege. Where a member or submitter knowingly breaches a court suppression order the live broadcast is protected by absolute privilege. It would seem appropriate that the House prevent or withdraw its authority for the re-broadcast of such a statement. Consider adding a new sub-clause to clause 12, 'this clause does not apply if the broadcaster knows or reasonably shou ld have known that the order or authority for the delayed broadcast or rebroadcast has been withdrawn'. r I 55. The main focus of the submissions on this part of the Bill was on terminology, and whether the Bill inadvertently confused matters by introducing Defamation Act concepts of "privilege" into a Bill concerned with parliamentary privilege. The Clerk was also concerned about whether the Bill adequately protects live broadcasts and responds adequately to changing technology. 56. The submitters were not comfortable with the Bill's use of Defamation Act language. The simplest way to deal with that concern is to leave the Defamation Act provisions in that Act, so that defamation remains a self-contained framework. We would then need specific protections in the Bill to address other forms of criminal and civil liability arising out of the publication or broadcast of proceedings in Parliament. 57. The remainder of this section explores the most effective way of protecting broadcasts, and how that will interact with the Defamation Act. A single framework for broadcasting and publications 58. Advisers recommend simplifying the Bill by creating one regime for both publications and broadcasting (in its widest sense). This approach would not set up separate protections based on the form of the record of proceedings. Instead, the level of protection given to a publication or broadcast would depend on its proximity to the House, and how much control the House had over it. 59. The Bill already contains the core of this approach, by creating a two-tiered approach (absolute and qualified privilege). Advisers recommend strengthening the approach, so that the level of protection turns on whether or not the House had authorised or required the publication or broadcast. This approach reinforces that Parliament's freedom of speech is fundamentally concerned with protecting Parliament's record from questioning or impeachment. Parliamentary Privilege Bill- Departmental Report- Part 1

20 60. Except for the particular language used (qualified and absolute privilege), the submitters seemed to accept the Bill's approach of two tiers of legal protection. Stay of proceedings and immunities 61. The Bill currently refers to both stays and defences of absolute and qualified privilege. The stay of proceedings provisions have been carried over from the Legislature Amendment Act. The concepts of absolute privilege and qualified privilege have been carried over from the Defamation Act and applied more broadly as a defence to all forms of civil and criminal liability. 62. Advisers suggest that an approach that uses stays and immunities would achieve the Bill's purpose and avoid the problems identified by submitters. The approaches can be contrasted: A stay of proceedings prevents court proceedings from progressing. The Legislature Amendment Act 1992 provides for a stay of proceedings where a publication was made by order of the House of Representatives or the publication was of an authorised parliamentary paper An immunity, if established, bars further proceedings. This contrasts with the Defamation Act which, in relation to "proceedings in Parliament", applies two defences: absolute and qualified privilege. The defence of absolute privilege cannot be rebutted. The defence of qualified privilege may be rebutted where the plaintiff proves that the defendant was predominantly motivated by ill will or otherwise took improper advantage of the occasion of publication. 63. It seems appropriate to make a stay of proceedings available where a publication or broadcast (or rebroadcast) is very close to the House's control (e.g. the House has authorised or required publication of a parliamentary paper or a live broadcast of proceedings). Stays should also be available for correct copies of an authorised publication. This approach is consistent with comity: the courts should not entertain a case involving publication of material that the House has authorised. 64. Where the House had not authorised a publication or broadcast, a qualified immunity would be available. It would cover, for instance, extracts and summaries of proceedings (including excerpts uploaded onto the internet), and reports of proceedings. Reports, extracts and summaries would have to be fair and accurate. Any person making a broadcast or publication could claim the immunity, but it would not be available if they were predominantly motivated by ill-will, or had taken improper advantage of the occasion of publication. How will the Bill interact with the Defamation Act 1992? 65. The Bill currently replaces section 13 of the Defamation Act with a new section. It also repeals relevant parts of Schedule 1 of the Defamation Act (clause 33). The Clerk has recommended keeping the Defamation Act as a self-contained framework and reviewing the adequacy of section 13 as part of a general review of defamation. The Clerk is concerned with whether section 13 is adequate given modern information and communications technology (ICT). 66. Advisers agree that the Defamation Act should continue to provide the framework for causes of action based in defamation. For other kinds of civil and criminal liability, th e Bill should provide a framework of stays of proceedings and qualified Parliamentary Privilege Bill - Departmental Report- Part 1

21 immunity as outlined above. A wider review of the Defamation Act to consider whether it is adequate in light of modern ICT is beyond the scope of this Bill. 67. Part 2 of the departmental report will explore drafting issues arising out of these changes, including definitions of "broadcasting" and "document", and modernising the procedural provisions relating to stays of proceedings. RECOMMENDATION: PROTECTIONS FOR PUBLISHING AND BROADCASTING 4.1 Delete clauses 11-13, 15-19, and Insert new provisions establishing: Stay of proceedings where the House or a committee has authorised or required broadcast or publication of proceedings in Parliament (including copies and documents relating to proceedings in Parliament). Procedural provisions for stay to be based on the Legislature Amendment Act (part 2 of the departmental report will address modernisation of these provisions) Qualified immunity from civil or criminal liability for unauthorised broadcast or publication of proceedings (including fair and accurate reports, fair and accurate extracts and summaries, and documents relating to proceedings that have been published under the House's authority (or under law)). Fiona lllingswor Policy Manager, Electoral and Constitutional Parliamentary Privilege Bill- Departmental Report- Part 1

22 Appendix: particular examples of 'proceedings in Parliament' raised by submitters Example Analysis by submitter Advice (with reference to comparable cases in the United Kingdom and Australia) LAC Officials pre-emptively briefing a I Might arguably fall within 1 Minister on a matter that may or the wide scope of clause 8 may not eventually be discussed in Parliament. Pre-emptive advice from officials may be privileged if it is used to inform the Minister's participation in debate or answeri ng oral questions. If it is not used, the material may not be privileged. Explanation NZLS If a conversation of the type involved in Leigh had been prompted not by a Parliamentary question but by the quite reasonable apprehension by a Minister and his or her advisors (say over the Christmas break) that a parliamentary question was likely to be asked on a certain topic at the next scheduled meeting. What if the anticipated question was never asked? To be "proceedings in Parliament", acts or information must arise in the course of or for purposes of or incidental to parl iamentary business. Unsolicited information provided by third pa rties does not automatically fall within the definition of "proceedings in Parliament". Usually necessary that some act have been done to procure or use the information for the purpose of transacting parliamentary business. 2 W hether or not something is 'proceedings in Parliament' is a question of fact. Determining whether a particular act was done for a parliamentary purpose requires an assessment of the pu rpose as it stood when the act was done. In principle, making prudent 1 Advice from officials may be privileged if it is used to inform the Minister's participation in debate or answering oral questions. If it is neither solicited nor used by the Minister, the material may not be privileged. preparations for likely events in the House is capable of being seen as for the purpose of I Explanation transacting the business of the House, and no less so if the eventuality does not occur. This could be put beyond doubt by appropriate amendment. Whether or not material is privileged is a question of fact. The Australian Government Solicitor notes that it is usually necessary for some act to have been done to procure or use information for the pu rpose of transacting parliamentary business before the information becomes privileged. Amending the Bill in the way suggested by NZLS may make the application of privilege over-inclusive. 2 Australian Government Solicitor No June (Australian Government Solicitor: Parliamentary Privilege Bill- Departmental Report- Part 1

23 Example Analysis by submitter Advice (with reference to comparable cases in the United Kingdom and Australia) NZLS Unsolicited information is tendered by a CEO to a Minister relating to current events that might be the subject of a parliamentary question. Initiative taken by CEO 1 Advice from officials may be privileged if it is used to inform the Minister's participation rather Minister. If the in debate or answering oral questions. If it is neither solicited nor used by the Minister, question is asked the result the material may not be privileged. is the same as the above scenario. Explanation Whether or not material is privileged is a question of fact. Unsolicited information provided by third parties does not automatically fall within the definition of "proceedings in Parliament". Usually necessary that some act have been done to procure or use the information for the purpose of transacting parliamentary business. 3 LAC Formal or informal discussions I Might arguably fall within 1 between Ministers or Members and the wide scope of clause 8 former Parliamentarians, former officials or interested members of the public who want, expect or anticipate their comments to be used on an attributed or unattributed basis in asking or answering parliamentary questions, raising matters in estimates consideration or in general debate. For reasons given above, advice and information may be privileged if it is used to inform Ministers' or Members' participation in Parliamentary business (e.g. asking or answering questions, or participating in debates). If it is neither solicited nor used, the material may not be privileged. LAC NZLS Unsolicited letter written by a I Might arguably fall within 1 member of the public to a Member the wide scope of clause 8 of Parliament that discuss matters related to business in the House. What if a member of the public writes to a Minister or member with Unsolicited information (including from constituents) is unlikely to be privileged unless it is actually used for parliamentary business. Information solicited for parliamentary busin ess will likely be privileged. This will be the case whether the information is oral or written... Explanation Possible to env1sage cases I where the member of the As noted above, unsolicited information provided by third parties does not automatically fall e. No. 95, 26 June (Australian Government Solicitor: Canberra.. Parliamentary Privilege Bill - Departmental Report - Part 1

24 Example facts or allegations of a type that are adjudged capable of giving rise to a Parliamentary Question? What if persons approach opposition members with allegations that they hope will become 'business of the House'. Are documents prepared for their purposes "incidental to the business of the House"? Analysis by submitter public brings information that it is in the public interest to know and where iniquity is exposed. Other cases can be envisaged where motivations and outcome may not be so benign. Advice (with reference to comparable cases in the United Kingdom and Australia) within the definition of "proceedings in Parliament". McGee notes that generally, "communications between a member and the public, even a member's constituents, are not proceedings in Parliament. A person sending information to an individ ual member is not engaged in a parliamentary proceeding." 4 LAC Submission of allegedly false "... an argument could be expense claims by members (R v made that such Chaytor). administrative matters could be covered by clause 8 of this Bill, as matters 'incidental to the Administrative documents generated within Parliament, such as expense returns and swipe card records are not generally proceedings in Parliament. Those documents may become privi leged if they are used or discussed in transacting the business of the House. Explanation transacting of the business I The Australian approach suggests that the status of an expense return will depend on of the House'." whether the information is used for administrative purposes or in parliamentary business. Even though the same information may be used and disclosed for both administrative and parliamentary purposes, only the parliamentary use will attract the protection of privilege. Information prepared purely for administrative purposes may come to be disclosed in Parliament. The original, non-parliamentary use of the information will not be protected by privilege, notwithstanding its subsequent parliamentary use. Conversely, the use of the information in Parliament will attract privilege. 5 The situation may differ for the register of pecuniary interests. The nature of that register, the role of the Registrar, and the publication of the Registrar's booklet as a parliamentary paper, all suggest that the register of pecu niary interests may be viewed as part of parliamentary business. Rost v Edwards [1 990} 2 QB 460 held that the R~gister of Members' Interests was not a 4 McGee D (2005). Parliamentary practice in New Zealand (third edition). (Dunmore Pu blishing: Wellington), p Australian Government Solicitor, above. Parliamentary Privilege Bill- Departmental Report- Part 1

25 Example Analysis by submitter Advice (with reference to comparable cases in the United Kingdom and Australia) proceeding in Parliament. Doubt was cast about the correctness of the decision in Prebb/e v TVNZ. The UK Joint Committee on Parliamentary Privilege considered the Rost decision should be reversed because Rost represents "an inappropriate encroachment on an area that should be subject to Parliament's exclusive cognisance". The redrafted Bill brings the reg ister closer to the Joint Committee's preferred position by emphasising comity (clause 3) and stating that the purpose of privilege is to uphold the integrity and independence of the House (clause 6). The reg ister of pecuniary interests is a mechanism for upholding the integrity of the House and its members, and its operation seems to be at least incidental to the transacting of the business of the House, which would tend to bring it within the ambit of clause 8(2). NZLS Material submitted by a CEO (whether solicited or not) becomes important in employment proceedings against the CEO. The material might contain evidence of dishonesty by the CEO relating to the subject matter of the contemplated question or it may disclose negligence by the CEO. Is it then covered by the privilege in clause 8 such that it cannot be inquired into and its honesty or effect queried? Similar facts to Chaytor. 1 Material may be privileged if it is used to inform the Minister's participation in debate or Reasoning in that case answering oral questions. If it is neither solicited nor used by the Minister, the material relied substantially on the may not be privileged. fact that members' remuneration arrangements 1 If the material is privileged, it may not be used in proceedings against the CEO. If it is could be separated from not privileged, the material may be used in proceedings. the proceedings in Parliament itself. This might 1 The CEO's conduct in submitting material is not immune from investigation or action by not be as easy in the situation where the CEO's report was generated for the purposes of proceedings in Parliament and not incidental remuneration claims. other authorities. Rather than relying on the parliamentary material, authorities could question the CEO and others. W itnesses can be summonsed by the court and asked questions in the ordinary way. Explanation As explained in earlier examples, whether or not material is privileged is a question of fact. It is usually necessary for some act to have been done to procure or use information for the purpose of transacting parliamentary business before the information becomes privileged. The Bill implements a clear policy choice that Parliament is the most appropriate bod y to deal with people who mislead it. Dishonestly advising a Minister preparing for an oral question, or providing false information to a committee or to the House raises issues of contempt of Parliament, which can be dealt with by the House under Standing Orders. That advice and information will be privileged and, therefore, cannot be I Parliamentary Privilege Bill- Departmental Report- Part 1

26 Example Analysis by submitter Advice (with reference to comparable cases in the United Kingdom and Australia) impeached by a court or tribunal. That is the effect of the Parliamentary Privileges Act 1987 (Australia). The Privileges Committee's report into a Question of privilege relating to TVNZ (Oct 2006) found that conduct revealed in parliamentary evidence is not immune from investigation or action by other authorities simply because it is the subject of evidence to a committee. Legal action would still need to be supported by evidence obtained from outside Parliament (e.g. examination of non-parliamentary records and witnesses). There would be no contempt in starting a separate inquiry. NZLS What if the CEO is publicly called a liar on the basis of that material? Can he or she sue for defamation and can the Minister (or anyone sued) rely on the material as part of the Minister's defence? Prebble would suggest not. 1 If the statement about the CEO is made outside the House and is defamatory in and of There might be cases in itself, then the CEO may sue in defamation. which the inability of a defendant to adduce 1 If the statement about the CEO is made in the House, it will likely fall within the parliamentary material definition of "proceedings in Parliament. The revised Bill would prohibit the statement precluded a fair trial. from being admitted in evidence to establish liability or support (or resist) court proceedings. If the statement is made in the House but is referred to outside (e.g. "I stand by what I said"), the revised Bill would prohibit the statement inside the House from being admitted in evidence to lend meaning to the effective repetition. Explanation The Privy Council in Prebble recognised that there is a balance to be drawn between individual rights such as access to justice and the need to ensure the legislature can exercise its powers freely. In Prebble, the court concluded that, while individual rights are important, the greater public interest of the legislature exercising its powers freely on behalf of electors with access to all relevant information should prevail. The courts have the power to stay proceedings if the inadmissibility of parliamentary records materially disadvantages one of the parties. Parliamentary Privilege Bill - Departmental Report- Part 1