Attorney-General and Gow v Leigh: Lifting the veil of parliamentary privilege and parliament's response

Parliament in its exclusive cognizance can legislate for anything it sees fit. However this paper finds that the New Zealand Parliament had the opportunity in Attorney-General and Gow v Leigh¹ to balance political needs and respect for individual rights rather than to adopt a reactionary attitude in enacting the Parliamentary Privilege Act 2014.  It would be appropriate for Parliament to closely examine the efficacy of the “necessity test” in Leigh in the light of the implication of the codification of the definition of “proceedings in parliament” on the scope of parliamentary privilege as the experiences by the Australian jurisdictions showed. On the other hand, the court’s obligations under the Bill of Rights Act, 1990 might result in the Parliamentary Privilege Act 2014 being interpreted in ways that the lawmakers might not have intended.  This paper examines the public/private dichotomy between the public interest justification for parliamentary immunity and the individual’s right to have access to remedy, in the context of the underpinning features of the “necessity” test that give precedence to basic individual rights. The test being; any claim for absolute privilege for an occasion that occurs outside absolutely privileged spheres (Parliament and its committees) that could result in depriving citizens of their basic rights, had to be necessary as in the sense of “essential” for the proper functioning of the core roles of the House.  In conclusion, this paper finds that the contentious issues revolve around comity. It then attempts to address the interests of the three stakeholders in the Leigh decision; the individual citizen, the judiciary and the legislature by recommending a number of comity “best practice” reforms to the House’s Standing Orders and the Parliamentary Privilege Act 2014.  ¹ Attorney-General v Leigh [2011] NZSC 106, [2012] 2 NZLR 713, (Leigh).