This is a fascinating case, largely because of the defence that the defendant in it tried to raise. To understand it requires going back a little way in history.
Most of you will know that the English Civil War involved a conflict between the sovereign, King Charles I and the Parliament as to their respective legal powers and authority. A large part of this was due to Charles' interference in the freedoms of Parliament (for a curious historical anecdote and a lasting tradition, search for the fantastically titled Gentleman Usher of the Black Rod). Subsequent to the Civil War and the Commonwealth headed by the Cromwell's protectorate, the Restoration of the Stuarts with Charles II, there was another conflict with James II over Parliamentary sovereignty, effectively a second civil war. That led to the Parliament inviting William and Mary to take the throne. One of the acts passed to complete as part of the settlement that led to them taking power was the Bill of Rights 1688/9 (depending on which calendar one chooses to use). One of the particular provisions is:
"That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament."
The effect of this means that, in general, what is said and done within Parliament cannot be tested or be used as the basis for a legal proceeding in the courts as that would infringe upon Parliament's sovereignty.
There are some creative interpretations of this rule, such as here:
[4] Mr Terry was charged that on 7 July 2006 he used a telephone for the
purpose of disturbing, alarming, or offending the recipient by making references to
delivering a child’s head to Parliament and to two truck bombs. The
Private Secretary for Damien O’Connor MP, Mr Coburn, gave evidence of the call.
He said that he received a telephone call from Mr Terry on 7 July 2006. He
recognised Mr Terry as he was a relatively regular caller. The call lasted
approximately 10 minutes. During the call Mr Terry made two threats, one
concerned two truck bombs being delivered to Parliament, the first to blow up
Parliament, the second to get the survivors when they came out. The second threat
was to deliver a child’s head to Parliament.
...
[12] Mr Terry then sought leave to appeal. He advanced four grounds (which he
repeated in his application to this Court):
(1) Evidence presented at trial by the police was challenged;
(2) William Young J’s ruling in a case in 2001 was wrong in law;
(3) Judge Walsh’s ruling in a Greymouth District Court trial in 2005
regarding privilege;
(4) The Crown cannot rewrite the Bill of Rights 1688 in New Zealand.
The point is that Mr Terry is seeking to argue that his communication with the MP's staff is a "proceeding in Parliament" and therefore cannot be questioned in a court of law, including by way of charging him with a crime. As his argument went:
[14] Fogarty J then considered that the second, third and fourth points related to
Mr Terry’s reliance on art 9 of the Bill of Rights Act that “the freedom of speech and
debates or proceedings in Parliament ought not to be impeached or questioned in any
court or place out of Parliament”. Fogarty J noted the argument was that the right
applied when making a telephone call to Parliament and the evidence of the person
receiving the call should not be admitted in the ordinary courts at all, let alone in
criminal proceedings, because to do so is a restriction on that freedom. Fogarty J
held that was essentially the same point taken by Mr Terry in previous proceedings:
Terry v Police HC GRY CRI 2003-418-000008 5 May 2004 when he appealed
against another conviction under the Telecommunications Act 2001.
The Court of Appeal turned him down however, noting that this was Mr Terry's second attempt at such an argument:
To the extent that Mr Terry seeks to reargue the issue of the admissibility of
evidence in purported breach of art 9 of the Bill of Rights, the argument has been
considered by this Court before in another case involving Mr Terry: R v Terry
CA177/04 22 July 2004.
