Speech: A question of privilege and freedom of speech- Te Ururoa Flavell
Inquiry into a matter of privilege about the exercise of freedom of speech in the context of court orders
Te Ururoa Flavell, Privileges Committee member, Maori Party
Tuesday 2 June 2009; 3.40pm
I would have to say that when I was first appointed a Member of Parliament in 2005, I would never have considered that part of my role would be considering the principle of comity.
And yet that was essentially our key task in the Privileges Committee over these last three months; to consider the constitutional boundaries as they relate to the freedom of speech and court orders.
Mr Speaker my first experience on the Privileges Committee was a farily straight forward exercise. The matter regarding the Honorable Winston Peters was a did he or didn’t he type of issue. This one however was about interpreting the law.
If one is not a lawyer it is quite an interesting exercise listening to all of them with their “insofaras” to the furthermosts” etc. I am afraid I had to leave the discussion to those experts in the main. My contribution was in considering getting training of a kind to MPs on the issues, having tripped up myself in discussing the raids on the Tuhoe nation over a year ago and on the implications on broadcasters so I will give some overview of these matters shortly.
Mr Speaker in its most simple interpretation, I found that comity is sometimes described as the separation of powers – the desire that the legislature and the Courts should not intrude into areas reserved for each other.
It’s not as if these are new issues.
The House has already stipulated in Standing Orders 111 and 112 that matters awaiting adjudication in the courts come within the terms of the sub-judice rule.
In effect this means that Members have been encouraged to observe court orders or be accused of abusing the privilege of free speech.
The case of particular interest to our report was the instance just less than a year ago, when our colleague Heather Roy made statements in the House which another colleague, David Parker, thought constituted a breach of suppression orders - and therefore a matter of privilege.
The former Speaker ruled on 3 July 2008 that there wasn’t a case of privilege to be answered for that particular instance, but the generic issue of the constitutional relationship of respect between the House of Representatives and the judiciary was worthy of further inquiry.
As I say, having gone through this process, I suggested to the Committee that the interpretation of freedom of speech and the constraints of court orders is actually something that we could all usefully wananga about, have a discussion about.
That is, I think the chance to sit and consider together, how this relationship impacts on our every day work as MPs could be really useful.
I would suggest further that for new members in particular, a workshop outlining the extent of the respect and restraint operating between the judiciary and the legislature might quickly prepare parliamentarians for understanding the role in a far better way.
How does one check with the Speaker about the wish to raise an issue of privilege, is it in writing, when should notice be given, and so on, these are basic logistical questions that I believe need consideration now in light of the proposed changes to the rules.
Mr Speaker, a key issue for example was around whether there was any distinction that should be made if a member knowingly breached a court order.
A Parliament-wide workshop could be useful in order that all members would know the conditions around what might be considered a contempt; what might be considered likely to bring this House into disrepute; and what might be involved in breaching a court order.
We concluded as a committee that Standing Order 401 should be extended to include the question of whether a member knowingly makes reference to a matter suppressed by a court order.
Another matter that came within the terms of reference for the review was the context of reporting on the proceedings of Parliament. The increased open access to Parliament through webcasting, podcasting and televised channels, has made it even more important that we consider the publication of proceedings outside Parliament.
I have to admit Mr Speaker to having genuine empathy for broadcasters who are doing their valiant best towards providing an accurate, bird-eye view of the day in Parliament and yet could very well be flouting the rules in doing so.
The Solicitor-General in his advice to the Committee drew on a statement from Media Law in New Zealand which concluded that there is much greater doubt about whether the media are safe in publishing these types of statements either directly from Parliament of in delayed coverage.
And so I am pleased for our broadcasters that there are specific recommendations in the report which introduce the idea that legislation should be created to deal with both the live broadcast and delayed broadcasts or rebroadcasts.
It is also useful that the recommendations include the precautionary principle of ensuring the broadcasts are a “fair and accurate report of proceedings in the House”.
Finally, from the perspective of the Maori Party I want to say that this issue about the constitutional boundaries associated with the principle of comity between Parliament and the Courts came to a head, some two years ago in the context, for us at least, of the Black Friday raids upon the Tuhoe nations that happened in the Ruatoki valley.
In this matter of extreme public interest, our questions in the House were frequently shut down as being potentially in breach of Court Orders or in breach of privilege.
As Members of Parliament we have to be able to raise the issues of legitimate concern to our constituency.
There is no denial that the case of the raids under the so-called shadow of terrorism was of extreme concern not only to the people of Ruatoki but more importantly throughout the greater Waiariki electorate and indeed Maoridom as a whole.
What makes this situation even more intense is that not only was the case of particular concern in October 2007, but in the long weeks and months to follow, debate was effectively shut down by the fact that the process has been drawn out for such a length of time.
And so we need to know, if a case is held over, what are the mechanisms in place to guarantee the issues can benefit from exposure to the light of parliamentary scrutiny.
These are critical issues for any political party – when an event of major political sensitivity is unable to be debated because of the subjudice rules in the Standing Orders.
And so we fully support the clarification provided for in the procedures now outlined in this report about matters awaiting judicial decision.
The process of making application to the Speaker is described in full, and it is now clear that the discretion of the Speaker will be called on in matters where there is some doubt.
I would humbly suggest that the situation emerging out of the Tuhoe raids would have certainly constituted the exercise of particular discretion to balance the privilege of freedom of speech against the public interest in maintaining confidence in the judicial resolution of disputes.
This is even more apparent when eighteen months have passed, and yet still we appear no further along in terms of reaching a judicial resolution.
The principle of comity, the constitutional dilemmas and the application of the standing orders were all matters before the committee which required sufficient specialist skill to understand the full implications for Parliament as I stated at the outset.
And in this context I want to acknowledge the committee staff – Debra Angus and Catherine Parkin; Mary Harris – the Clerk of the House – for their professional commitment to support us in whatever capacity that was we required.
We received some excellent expert advice from as I mentioned earlier, Dr David Collins, the Solicitor-General, but also Professor Philip Joseph, Associate Professor Andrew Geddis, Tim Murphy and Tim Pankhurst from the media freedom committee of the Commonwealth Press Union.
It is real eye opener for me in my Parliamentary role, that we are able to access such excellent sources of advice.
And finally I acknowledge the chairs – the Hon Dr Michael Cullen and more recently Charles Chauvel – for their leadership as others have mentioned and all the members of the committee for a job well done.
Mr Speaker, when and if we sit again, I hope we can keep it to a “yes they did”, “no they didn’t” question. It will save me from having to listen to that foreign language of lawyer-speak again, that is with all due respect to my lawyer colleagues!!!