Cross-Examination: Parliamentary Privilege & Individual Liberty
Cross-Examination is a blog series about current legal issues in New Zealand produced by EJP Communications volunteers.
At the end of last year the Parliamentary Privilege Bill 2013 was presented before the House of Representatives. This bill seeks to redefine the concept of parliamentary privilege in the NZ context. It overrides numerous case law precedents and effectively grants greater immunity to Members of Parliament, affecting the ability to bring a claim for defamation committed in the House. The balance between the needs of individuals to have access to justice and the needs of parliamentarians to speak freely will be compromised.
This Bill is likely to be passed before the 2014 general election, having received unanimous party support.
WHAT IS PARLIAMENTARY PRIVILEGE?
An eclectic assemblage of protections from the law provided for the benefit of MPs, Parliamentary Privilege in NZ stems from the Legislature Act 1908, s 242:
“[The House of Representatives] shall hold, enjoy and exercise … privileges, immunities, and powers …. [And] such privileges, immunities and powers …. Shall be judicially taken notice of in all Courts”.
Article 9 of the Bill of Rights 1688 (incorporated into NZ law from Britain via the Imperial Laws Application Act 1988) provides:
“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”, where the policy justification for this right of Parliament is to encourage uninhibited intellectual contributions in House discussions.
Beyond freedom of speech and debate in the House, powers exclusive to Parliament include:
- Power to arrest (in certain circumstances);
- Power to fine (in certain circumstances); and
- Power to obtain evidence.
Despite the more eccentric nature of some of these powers, the consequences of freedom of speech have certainly been the most controversial in recent times.
PRECEDENTS OF NECESSITY
The explanatory note of the Parliamentary Privileges Bill 2013 proclaims to:
“Abolish the effective repetition principle from Jennings v Buchanan”, and to prescribe the meaning of “proceedings in Parliament” beyond the manipulation of the Courts (contrary to R v Chaytor).
Whilst defamation within the House is undoubtedly invulnerable, in Jennings v Buchanan, the Privy Council examined issues pertaining to whether an MP is liable for defamation when they repeat the defamatory comments outside the House, or at the very least state that they do not resile from their original statements. This is precisely what occurred when Jennings was interviewed by a newspaper. It was then before the Privy Council to decide if parliamentary privilege was extinguished, or if it extended to media interviews, protecting him from judicial review.
By way of rationalisation, a test for necessity was implemented. The Court deemed that Jennings’ remarks to the media added no substance to his ability to contribute to House discussions, and in doing so, the defence of parliamentary privilege was quashed.
The Canadian Supreme Court in Canada (House of Commons) v Vaid, in the same year as Jennings, adopted a similar line of reasoning. Absolute immunity was to be awarded only on the merits of necessity to the internal workings of Parliament, and it was on this basis that the Court held that the employment of the chauffeur to the Speaker of the House was not immune to legal scrutiny.
R v Chaytor in 2010, also made use of a necessity test in regards to MPs who had submitted false expense claims, who argued that to criminally charge them for the offence was to breach the aegis inherent in their parliamentary privilege. The UK Supreme Court, however, held that judicial review of such matters was not an unnecessary interference, and thus, parliamentary privilege cannot be invoked. This case simultaneously ruled that the phrase “proceedings in Parliament” was susceptible to interpretation, furthering the notion that the scope of parliamentary privilege was determinable by the Courts.
The tests of necessity carried out in the above cases made the law more nuanced, enabling the Courts discretion in properly balancing the competing interests of individual liberty and parliamentary discussion. However, the new Act will override the role of the Courts completely, transferring all power to Parliament, and totally compromising the rights of individuals.
ATTORNEY-GENERAL V LEIGH
As the spark behind Parliament’s innovative bill, this case arose in 2011, where a subordinate of the Minister for the Environment supplied him with information in which it was claimed by Ms Leigh to contain defamatory statements towards her. On appeal to the Supreme Court in 2011, counsel for the Attorney-General failed to persuade the Court that the absolute immunity provided by parliamentary privilege should extend to advice given to a Minister.
The Supreme Court dismissed the Attorney-General’s appeal on the grounds that parliamentary privilege should be invoked only in occasions of necessity, affirming the formerly discussed precedents. The Court acknowledged parliamentary privilege in NZ as being the same in nature as that of the UK – whereby necessity “remains the essential underpinning and test for parliamentary privilege”.
The explanatory note of the new Bill will “alter the decision made in Attorney-General v Leigh”. Necessity will no longer be a restriction imposed upon parliamentarians.
THE LAST REMEDY
With the imminent passing of the Parliamentary Privilege Bill, the requirement of necessity affirmed by the highest courts in Canada, UK, and NZ will be abolished. What can someone who is unjustly defamed in the House do when the Courts no longer have jurisdiction over these issues?
Standing Orders 156-159 allow a person who is defamed to approach the Speaker and ask for correction of the damaging statements in Hansard. This, however, remains only a partial remedy, in any case a relatively ineffective recompense for a person who has borne the cost of parliamentary privilege. After initial loss of good-standing within the community, any attempt at redemption through Hansard is of course at the discretion of the Speaker who engaged in the defamation, and even if successful, is likely to be unnoticed by the wider public.
Upon reflection, this Bill is open to remonstrance as to whether such a departure from both domestic and international precedent, resulting in the removal of judicial jurisdiction, will result in the most appropriate outcomes of future scenarios of the same vein. Eliminating the test for necessity with regards to defamation by MPs will significantly hinder equal access to justice.
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 David McGee Parliamentary Practice in New Zealand (3rd ed, Dunmore Publishing, Wellington, 2005).
 Jennings v Buchanan  UKPC 36  2 NZLR 577.
 Canada (House of Commons) v Vaid 2005 SCC 30,  1 SCR 667.
 R v Chaytor  UKSC 52,  1 AC 684.
 Attorney-General v Leigh  NZSC 106,  2 NZLR 713.