New Zealand Law Society

Navigation menu

Parliamentary privilege to be clarified by legislation

28 April 2014

The New Zealand Law Society has made a submission to Parliament’s Privileges Committee on proposed legislation to clarify the scope of parliamentary privilege.

The Privileges Committee, chaired by the Attorney-General Chris Finlayson, is currently considering the Parliamentary Privilege Bill. The bill’s key purpose is to reaffirm and clarify the operation and scope of parliamentary privilege – the powers and immunities that enable the House of Representatives to safeguard its independence and carry out its functions.

The bill will alter the approach to parliamentary privilege taken by the Supreme Court of New Zealand in Attorney-General and Gow v Leigh [2011] NZSC 106 (regarding the scope of proceedings in Parliament) and by the Privy Council in Buchanan v Jennings [2005] 2 All ER 273 (the “effective repetition” rule).

The Law Society submission noted that members of the Law Society hold differing views on the merits of reversing those judicial decisions.

Some support the court’s approach which, by narrowing the scope of privilege, allowed more scope for redress by individuals claiming to have been defamed or otherwise wronged.

Others favour the policy behind this bill because it may better protect Members of Parliament and their advisers from litigation and any associated “chilling effect” as they discharge their duties.

The Law Society submission does not enter into the merits of the policy choices represented in the bill. Instead it concentrates on three key points. These are:

  • Clause 8: Is the definition of “proceedings in Parliament” as clear as it could be? How does it apply where a Minister, or any Member of Parliament, seeks information, or receives it unsolicited, from officials or members of the public in anticipation, or in hopes of, a matter being raised in the House?
  • Clause 8(4): How does the concept of privilege for effective repetition by affirmation, adoption or endorsement work when the repeater is not the maker of the original statement? Why should that attract absolute rather than qualified privilege, when it is only qualified privilege that applies to fair and accurate reports of proceedings in the House? In response to questions from the Privileges Committee, the Law Society suggested that the higher protection might be applied only to the MP who made the statement, and other MPs.
  • Select Committees and public responses: Should Standing Orders be amended to permit persons to have responses to things said about them in parliamentary committees read into the official record; similar to what they can do in respect of things said about them in the House itself?

Law Society spokesperson David Cochrane told the Privileges Committee that the threshold definition of “proceedings in Parliament” needed to be carefully considered, in light of unforeseen and possibly complex scenarios.

The Law Society submission outlined a number of potential scenarios for the committee to consider.

Recent submissions

The Law Society recently filed submissions on:

  • Psychoactive substances: proposed regulations;
  • Import and export of gametes and embryos: proposed advice to the Minister of Health;
  • Disallowable instruments that are not legislative instruments (DINLIs) – submission to Regulations Review Committee inquiry into oversight; and
  • Patent Co-operation Treaty Regulations 1992 – proposed amendment.

The submissions are available at www.lawsociety.org.nz/news-and-communications/law-reform-submissions

The Law Society recently addressed the following select committee:

  • Privileges Committee on 18 March 2014, on the Parliamentary Privilege Bill.

Last updated on the 17th March 2016