Parliamentary privilege reaffirmed

A fundamental constitutional facet of a liberal democracy is freedom of speech in the legislature. In the Westminster system this is protected by Parliament's absolute privilege of freedom of speech, contained in art 9 of the Bill of Rights 1688. The privilege provides a cloak of immunity from judicial proceedings linked to statements and actions in parliamentary proceedings. Recent years have seen the courts move away from the traditional interpretation of this privilege. As a consequence, Parliament has been reaffirmed and clarified the privilege in the Parliamentary Privilege Act 2014. This Act was originally introduced to overturn the Supreme Court decision Attorney-General v Leigh [2011] NZSC 106, [2012] 2 NZLR 713. In that case the Court interpreted the scope of the privilege by using a common law necessity test, which unduly restricted the privilege and its protection. This article argues why this legislative step is a necessary response. Broadly, it posits that this judicial treatment has altered the privilege's underlying rationale: to provide absolute protection for those contributing to parliamentary business. In this way the courts have risked disrupting the constitutional balance by shifting the jurisdictional boundaries between Parliament and the courts and weakening Parliament's independence. It is hoped that, in practice, the statutory restatement of this privilege will be the final word on its proper interpretation, leaving no room for future misapplication.