Thinking through the deep stuff:
The Privileges Committee Report and ‘parliamentary protections’
Every now and then we MPs are challenged to think. Yesterday was such a moment – actually, for the preceding 12 months, on and off.
In 2005-06, an issue arose in the House in which a cabinet minister made comments about a Kiwi citizen who judged herself to have been defamed. The Minister, who later apologised, was protected by the doctrine of ‘absolute privilege’. That means that any MP can say anything in the House (within the procedural rules) that may be politically contestable but can never be legally actionable.
Not so the official who advised the Minister, on Parliament’s precincts but not in the House itself. He enjoys only ‘qualified privilege”. So the aggrieved chose him for the defamation case. The official was acquitted because conviction under qualified privilege requires proof of malice, which was not proven.
The constitutional point here is that the case went to the Supreme Court which, while reaffirming the judgement, employed reasoning which members of the Parliament, and qualified legal experts, held to be faulty. It was held that the judiciary had encroached into the ‘privileges’ (freedoms) of the legislature.
So the Speaker referred the matter to the Privileges Committee.
That was in September 2011. Through 2012 and into 2013, the Committee laboured through the issue. It presented its report to the House yesterday.
In short, the Committee recommends that a new bill, the Parliamentary Privilege Bill, be introduced by the Government ‘to clarify’, for the avoidance of doubt, the nature of parliamentary privilege in New Zealand’.
This is a big step, for New Zealand. We Kiwis are not naturally given to exploring the fine points of constitutional law. We tend to see ourselves as a casual and decent, practical bunch who can get along with one another without the need for high-sounding phraseology.
Yes and no. We are one of only three countries (UK, Israel, NZ) without a codified constitution. That (personal view) is something of a risk. Not a bad idea to clarify things if and when an appropriate occasion arises.
I shall not go into the fine detail. That is in the report.
The report went to the House with unanimous support. In supporting it, I offered the view that there was both a legal and a political dimension to the issue.
On the political dimension, the court of final opinion is the people, who are sovereign. It is important that the people understand the nature of the issue at stake, and the purpose of the recommendation.
And in that respect, we may do better to drop the phrase ‘parliamentary privileges’ and use ‘parliamentary protections’. Here is what I said.