Chapter 46 Types of Privileges
There is no definitive list of the types of privileges enjoyed by the House. They are a collection of powers and immunities (often referred to as freedoms). This chapter discusses the specific powers and immunities enjoyed by the House, its members and other participants in the parliamentary process.
Freedom of speech
Everyone in New Zealand enjoys a general right of freedom of expression guaranteed by law.
Although the idea of freedom of speech is now regarded in this sense as a general or human right, it first appeared as a specific privilege of the members of the House of Commons rather than of the public generally.
“Freedom of speech” as enjoyed in a parliamentary context, while containing elements of such freedom of expression, is both older and more amorphous than this right. Indeed it is not possible to describe freedom of speech in parliamentary proceedings in specific terms as a single privilege of the House. Rather it is an idea that is expressed in specific legal powers and exemptions enjoyed by the House, its members and other participants in parliamentary proceedings.
The House’s freedom of speech in debate is expressly mentioned in the Speaker’s claim submitted to the Governor-General at the beginning of every Parliament.
It has been said that the first Speaker to lay claim to this freedom on behalf of the House was Sir Thomas More in 1523.
However, this has been disputed on the grounds that the principle precedes this date, More’s contribution being merely to give expression to it,
and that More’s claim was limited to asking the Crown to give a “favourable interpretation” to speeches made in the House rather than for freedom of speech in general. (A petition seeking recognition of freedom of speech in general was not addressed to the King until 1541.
) However, in the sixteenth century, seeking a favourable interpretation from the Crown of its proceedings was tantamount to the House claiming freedom of speech in general, given that infringements of freedom of speech were likely to emanate from the Crown anyway. Certainly since Sir Thomas More’s time an express claim to freedom of speech has been made by each Speaker almost without exception. Though its precise effect was uncertain, consistently making the claim may have contributed to the growing acceptance that speech in Parliament ought to be free of legal repercussions. This principle is said to have been established by 1667.
Thus when the New Zealand Parliament was established a principle of freedom of speech was understood to apply in respect of its proceedings. A practice of expressly claiming the privilege was initiated in New Zealand in 1861.
The privileges connected with the House’s freedom of speech have been seen as part of a set of rules reflecting the respective constitutional functions of Parliament and the courts, and specifically as aiming to avoid any conflict between their respective jurisdictions.
Thus the courts will uphold and refuse to question the House’s control of its own internal proceedings and its exercise of its power to punish for contempt, and will not visit legal liability on the contributions that members and others make to parliamentary debates and other proceedings (though these contributions may be legally relevant or admissible in legal proceedings). In these ways a principle of freedom of speech in Parliament is maintained.
While to assert freedom of speech in Parliament is not to say anything very specific about the precise legal position in any particular case, the principle is an important expression of legislative independence. Without it, the House’s ability to proceed with a legislative programme and the scrutiny of the Government’s activities would be subject to legal challenge and judicial control. Freedom of speech in the abstract entails that these activities are not justiciable.
Exemption from liability for parliamentary actions
There can be no legal liability for words spoken or actions taken in the course of parliamentary proceedings as part of those proceedings, except insofar as this protection may have been statutorily abrogated.
For most practical purposes, this specific exemption from legal liability now derives from a provision in the Bill of Rights 1688, though it predates its restatement there. The Bill of Rights is only a part of the wider compact between the legislative and judicial branches of Government, whereby their respective spheres of action are respected.
The exemption from legal liability is wider in extent than just removing the possibility of legal liability arising out of a contribution to public debate made in Parliament; it also entails exemption from having to answer or account in legal proceedings for one’s parliamentary contributions, even where personal liability is not in question. It is this latter aspect of the privilege that may be regarded as having been established (though not without some modern vacillations
) by the Bill of Rights and the political settlement out of which that legislation arose.
The ninth article of section 1 of the Bill of Rights declares: “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.” From this famous statement of parliamentary privilege flow a number of immunities which apply to the House, its members, and other participants in parliamentary proceedings. The basic concept underlying article 9 has been described by the Privy Council as “the need to ensure so far as possible that a member of the legislature and witnesses before Committees of the House can speak freely without fear that what they say will later be held against them in the courts”. The important public interest, it went on to say, is to ensure that members or witnesses at the time of speaking are not inhibited from stating fully and freely what they have to say.
However, article 9 is also to be seen as only one of a collection of legal principles that give effect to the constitutional relationship between the legislature and the judiciary, though it is not itself a comprehensive statement of that relationship.
The protection expressed by article 9 is not conferred for the personal benefit of any individual, even a member of Parliament; it is conferred for the benefit of the parliamentary system. While freedom of speech may protect members and others from liability that would otherwise exist, it operates even-handedly and may equally prejudice a member in an individual capacity. This was the case, for instance, with a member who was unable to give evidence of parliamentary proceedings to support his legal action when to have done so would have been in breach of article 9.
House’s disciplinary control and electors’ democratic control
The freedom of speech expressed by article 9 is a freedom from legal liability and a freedom from having to account to bodies outside the House. Freedom of speech is not an exemption from liability to account to the House itself. Nor is it a freedom from having to account for one’s parliamentary actions, ultimately, to the electors through the regular process of election. The fact that such a legal immunity exists does not prevent the legislature proceeding against its own members (or anyone else) for a breach of privilege or contempt.
Furthermore, the fundamental democratic right of free election to Parliament cannot be inhibited by parliamentary privilege. A political party does not breach privilege by withdrawing electoral support from a sitting member of Parliament on account of that member’s actions, whether they occurred within Parliament or in the country at large.
The privilege of freedom of speech is thus not a licence to be free of all restraint in how one conducts oneself. Rather, it is an assertion that the jurisdiction to exercise that restraint in a legal context belongs exclusively to the House during the period of the member’s service as a member of Parliament, and belongs in a political context to the electors at the end of that service.
The House exercises restraint over its members prospectively by general rules, and retrospectively in dealing with particular incidents. Prospectively, the House’s rules of debate impose constraints on what members may say and how they must conduct themselves – for example, that they must be relevant, that they may not refer to matters awaiting adjudication in a court, that they may not use “unparliamentary” language. These are general, internally imposed restraints on members’ freedom of speech. They could not be imposed or enforced by the courts, but they can and are imposed by the House on its own members and are entirely unaffected by article 9, which is not directed to limiting the House’s powers at all. Similar restraints in general rules apply to select committee proceedings and to other persons – officers, witnesses, petitioners – participating in parliamentary proceedings.
Any infringement of these general rules and any other particular conduct which the House on reflection considers to be an obstruction or impediment to the performance of its functions, is liable to be punished by the House as a contempt.
This is regardless of the fact that such conduct occurs in the course of parliamentary proceedings and is therefore exempt from legal liability. The exemption from accounting to a court for one’s actions is not an exemption from accounting to the House; it is merely a manifestation of the fact that the exclusive jurisdiction for holding such actions to account lies with the House.
Criminal acts committed within Parliament
The principle of exemption from legal liability for parliamentary conduct does not mean that criminal acts are exempt from prosecution merely because they are committed in a parliamentary environment. Speech, uttered in debate or in evidence to a select committee, that would otherwise be subject to criminal liability will be exempt from legal sanction, but criminal actions taken in the face of the House or a committee are not part of their proceedings and are liable to be dealt with by the criminal law.
Thus persons protesting in the galleries of the Chamber or at select committee meetings are not participating in parliamentary proceedings and are not entitled to any protection from the criminal law on that account. Prosecutions for trespass and disorderly conduct have proceeded in such circumstances. Such incidents may also be dealt with by the House as contempts.
Freedom of debate
Article 9 declares that the “freedom of speech and debates or proceedings in Parliament” ought not to be questioned or impeached outside Parliament.
“Freedom of speech” has been described as permitting members to say what they wish to say, and “freedom of debate” to enable them to discuss any subject that they wish to discuss.
Freedom to debate any subject was formerly given expression in New Zealand by the pro forma first reading of a dummy bill (called the Expiring Laws Continuance Bill) – a bill not mentioned in the Speech from the Throne. This practice symbolised the right of the House to discuss any business it wished to discuss and not just business that the Crown invited it to transact. The practice of giving a pro forma first reading to a bill in this way was discontinued in 1985. It is still followed in the United Kingdom.
The priority given by the House’s rules to the debate on the Address in Reply is another assertion of the House’s right to decide what it wishes to debate rather than having to turn its attention immediately to the Government’s legislative programme. Indeed this practice has even led to a challenge to the validity of legislation passed before a House has finished the Address in Reply debate, though such a challenge would itself appear to be a contradiction of the House’s privilege to debate what it will, when it will.
In New Zealand, while priority is still given to the debate on the Address in Reply,
the debate is liable to be adjourned to permit other legislation to proceed before it is finished.
Freedom of debate in the sense of the House’s ability to discuss whatever it wishes and to decide for itself when it wishes to discuss particular matters, is also part of the House’s exclusive control over its own proceedings.
Proceedings in Parliament
Article 9 extends to protect “proceedings in Parliament” from external review.
Freedom of “debate” in article 9 may be seen as merely an identification of the most common and obvious occasion on which the privilege of freedom of speech is exercised. In this sense the addition of the phrase “proceedings in Parliament” to article 9 is understandable as extending the scope of the protection of freedom of speech from parliamentary debates to all other transactions of parliamentary business. By 1688 committee proceedings were well established as modes of parliamentary proceeding. Exchanges between members at such meetings might have been regarded as falling within the term “debate” (though not obviously so), but the examination of witnesses most certainly would not. The House would also have been aware that it had recently been established that no legal liability applied to the circulation of petitions to members of Parliament in the ordinary course of transacting parliamentary business.
Parliamentary business was thus coming to comprise a number of disparate activities and communications, many of which were not transacted on the floor of the House in the course of debate.
Article 9 makes it clear that these other modes of transacting parliamentary business are entitled to a similar protection from legal liability or examination as that which applies to parliamentary debates. Today, a much higher proportion of parliamentary business is “non-debate” and is transacted off the floor of the House than was the case in the House of Commons of the seventeenth century or even in the recent history of the House of Representatives itself. The extension of the privilege of freedom of speech and debate to proceedings in Parliament is therefore of critical importance to the effectiveness of that privilege given the way in which the House carries on its proceedings.
Meaning of proceedings in Parliament
The meaning of the term “proceedings in Parliament” has never been the subject of definition by legislation in the United Kingdom or in New Zealand, nor has its meaning been declared by the House. In Australia a definition of the term has been enacted,
and this statement is the most detailed official exposition of what proceedings in Parliament comprise, although even it is not intended to be comprehensive. The Australian legislation in respect of article 9 of the Bill of Rights has been accepted by New Zealand and English courts as representing a statement of the law in those countries too.
It thus may be taken to indicate the types of transactions falling within the term “proceedings in Parliament”.
The Australian description of proceedings in Parliament is—
… proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes—
(a)the giving of evidence before a House or a committee, and evidence so given;
(b)the presentation or submission of a document to a House or a committee;
(c)the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d)the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
Actions of the House, committees, members, officers, witnesses and petitioners which are either the transaction of parliamentary business themselves or which are directly and formally connected with the transaction of such business are proceedings in Parliament and are thus subject to the privilege of freedom of speech. This encompasses all actions taken by the House itself whether of a legislative or non-legislative nature. That does not mean that such actions automatically authorise otherwise unlawful activities to be perpetrated outside the House.
(Though an activity undertaken with the House’s authority may be lawful when that same activity undertaken without the House’s authority would be unlawful.
) Nor does it mean that the courts would necessarily enforce activities undertaken with the House’s authority. But the House itself cannot be impeached or questioned for having taken them.
Committee proceedings are as equally parliamentary as are proceedings on the floor of the House.
Such proceedings cover giving evidence orally and in writing to a committee and the advices and draft reports generated during a committee’s work, provided that these are published in the course of the committee’s proceedings. Publishing such documents outside the confines of the committee is not a proceeding in Parliament. Tendering a committee’s report to the House is a parliamentary proceeding.
But press conferences by the chairperson and members following the presentation of a report are not formal proceedings of the committee and are not protected.
Although it is not a committee established by the House and its proceedings would therefore not normally be considered proceedings in Parliament, the proceedings of the statutory Intelligence and Security Committee are deemed to fall within the compass of article 9.
Members draft and lodge questions, present petitions, give notices of motion and prepare bills and amendments. Many of these actions were formerly carried out on the floor of the House itself, but rule changes have enabled them to be executed administratively, and they now tend to be performed outside the Chamber. They nevertheless retain their essential quality as proceedings in Parliament. The statutory process of the Attorney-General examining and reporting on bills for conflict with the rights and freedoms confirmed by the New Zealand Bill of Rights Act 1990 has been held to be a proceeding in Parliament and thus exempt from judicial review as an internal legislative process of the House.
Communications involving members of Parliament
By no means all actions of a member of Parliament constitute proceedings in Parliament. Proceedings in Parliament cover a much narrower range of activities than those performed by members generally, even actions performed in the capacity of a member.
While actions taken in or towards the House are proceedings in Parliament, actions taken in relation to constituents or other persons, or which constituents or other persons take in relation to the member, are usually not proceedings in Parliament. Thus, generally, communications between a member and the public, even a member’s constituents, are not proceedings in Parliament.
A person sending information to an individual member is not engaged in a parliamentary proceeding. Such a communication is not a proceeding in Parliament,
unless the communication is directly connected with some specific business to be transacted in the House, such as the delivery of a petition to the member for presentation to the House, or was solicited by the member for the express purpose of using it in a parliamentary proceeding.
Other than in these circumstances, no parliamentary privilege applies to a communication to a member of Parliament.
A communication’s status after it has been received by the member depends upon the use made of it by the member. If the member takes some action in respect of it for the purpose of transacting parliamentary business, it may, at that point, become part of a proceeding (whether it is referable to a particular debate or not).
But, even so, that will not have any retrospective effect so as to afford protection in respect of the original communication to the member.
Where a member communicates with another member, such as a Minister, regarding parliamentary business (for example, forwarding an amendment to a bill before the House or a question that the member is contemplating lodging) this will be regarded as a proceeding in Parliament.
But a member’s action in releasing information outside the House attracts no parliamentary privilege,
even where the material released is a copy of a speech delivered in the House by the member
or a question submitted by the member.
Nor is a person (such as a journalist) who receives information from a member protected by any parliamentary privilege if that person publishes the information.
A letter to the Speaker raising a matter of privilege is a proceeding in Parliament, but circulating or disclosing the letter otherwise than in the course of the House’s procedures for dealing with such a matter, is not.
Statute may also forbid any interference with a person’s right to communicate with a member of Parliament and with the member’s right to communicate with that person.
Qualified legal privilege
While not protected by parliamentary privilege, the law may accord a qualified legal privilege to certain communications. Qualified legal privilege affords a defence to actions for defamation. As has been said, this privilege has nothing but its name in common with parliamentary privilege.
Where qualified privilege applies, it protects proceedings from liability in defamation provided that the person who published the defamatory material was not motivated predominantly by ill-will towards the person defamed or otherwise took improper advantage of the occasion of the communication to defame that person.
Qualified privilege attaches to a fair and accurate report of parliamentary proceedings. “Fair and accurate” does not mean verbatim – a good summary is enough. A report can concentrate mainly on one speech, but there must be some summary or acknowledgment of contrary views if these were expressed in the debate.
(However, no contrary views may have been expressed.) Nor do immaterial inaccuracies cause the protection to be lost.
But qualified privilege for a fair and accurate report does not apply where the publication is made in defiance of the House’s rules on keeping proceedings confidential. Qualified privilege is not a licence to flout lawful orders.
A qualified legal, not parliamentary, privilege may also apply to communications between members and constituents
and to a disclosure to the proper authority of a letter which contains otherwise defamatory material sent from a constituent to a member.
Meetings of caucus
Meetings of party caucuses are not proceedings in Parliament. They are meetings which are attended by members of Parliament because they are members, and parliamentary business may be under discussion at such meetings, but they are not transactions of parliamentary business as such.
The absolute legal protection given by the Bill of Rights does not apply in respect of such meetings.
Actions taken by officers of the House in carrying out the orders of the House or its committees are also proceedings in Parliament.
Persons delivering petitions to members, or written evidence and other material to a select committee, are engaged in proceedings in Parliament.
But circulating a proposed petition to the public for signature is not a proceeding in Parliament and no privilege attaches to it.
A report of what occurred in Parliament (other than the official report made under the House’s authority) is not itself a proceeding in Parliament and is not protected by parliamentary privilege from any legal liability that may thereby arise, though other protections, such as a qualified legal privilege against defamation liability may be available.
The fact that something occurred in Parliament House, even in the Chamber, does not thereby confer immunity on that action. It must still be a “proceeding in Parliament” in terms of article 9. Parliament House is not a sanctuary. The Speaker has reminded members that serious allegations made in the course of a private conversation in the Chamber may not be protected outside the House. The important test in determining whether they are proceedings in Parliament is the occasion on which they were used, not the place in which they were spoken.
The fact that a document is delivered within the parliamentary precincts does not immunise it from judicial scrutiny if it is not connected with any proceeding in Parliament.
Nor is a press conference protected just because it is held in the parliamentary precincts.
Similarly, any necessary legal approvals for the exhibition of films and videos to be shown within Parliament House must be obtained, unless the showing is confined to a meeting of a select committee.
Application of article 9
Article 9 of the Bill of Rights is not confined to members in its effects. In fact, it does not refer to members or any other person at all; it refers to speeches, debates and parliamentary proceedings and prevents these occasions from being called into question. The main group of persons affected by this privilege is, incidentally, members, but other persons who take part in the House’s proceedings are also within the provision.
The most obvious of these other persons are officers of the House who, in their official capacity, are constantly engaged in proceedings in Parliament. Also included are witnesses to select committees and petitioners to the House. The publication of defamatory words in a petition to members of Parliament, provided such publication is made in the ordinary course of proceedings, is not actionable.
Publication of defamatory material in a petition to members otherwise than in the ordinary course of proceedings is not protected.
It is open to the House, however, to refuse to accept a petition if it is abusive (petitions are required to be respectful and moderate in their language
), or to treat the publication of scandalous material in a petition as a contempt and to punish it as such.
It is well established that no action, civil or criminal, will lie against a witness in respect of evidence given to the House or one of its committees. The position of witnesses is similar to that of members in respect of words spoken in parliamentary proceedings.
It does not matter whether the witness appears voluntarily or is summoned to appear before the House or a committee, parliamentary privilege applies in either case.
Questioning or impeaching parliamentary proceedings
The Bill of Rights 1688 was passed to reflect in law a political settlement concerning the respective jurisdictions of the executive and the legislature.
Freedom of speech in Parliament was not created by the Bill of Rights. Rather, the dispute over its sphere of operation was settled by its crystallisation in a statutory provision. Although a settlement of executive and legislative powers, the legislation involved the judiciary too, by (amongst other things) prohibiting the executive from using the courts to undermine the legislature’s freedom of speech.
Article 9 thus ordains that freedom of speech is not to be questioned or impeached outside Parliament.
It may be that at the time the legislation was passed there was considered to be little, if any, distinction between the injunction in article 9 that freedom of speech ought not to be “questioned” and that it ought not to be “impeached”. The word “impeach” did not come to have a specific association with a charge at law until a century or so later. Legislative drafting was also prolix at that time. It tended to employ what we would today regard as synonymous terms but which to the drafters of the day, dealing with courts inclined to a more literal and formal interpretation of written provisions, were often words of genuine, though small, gradations of difference of meaning that are now lost to us.
For the seventeenth-century parliamentarians, article 9 was a declaration not only that they could not be held criminally or civilly liable for their actions in Parliament – something which would have been asserted to be the law in any case (though there had been notorious breaches of this principle) – but also that their parliamentary actions could not be used to support a cause of action against them, even one arising from events outside Parliament. If the latter were to be permitted, members would be answerable to the courts for their actions in Parliament. The application of article 9 thus goes much further than operating as a complete defence to a prosecution or to an action brought against someone in respect of their parliamentary actions. More often it will affect the evidence that can be tendered to the court, and limit the submissions that may be made to it, in respect of proceedings that have their origin outside Parliament.
Although it may not be an historically correct analysis of the phrase “questioned or impeached”, this two-pronged modern meaning of article 9 is conveniently expressed by today’s understanding of the two words. Freedom of speech is understood to be “impeached” where it is sought to make a member or another person liable in criminal or civil proceedings for what they have said or done in Parliament. Freedom of speech is understood to be “questioned” when it is sought to use what a member or another person has said or done in Parliament in criminal or civil proceedings in a way that involves a critical examination of that statement.
A New South Wales case which challenged this distinction and would have confined article 9 to the former class of case has now been discredited.
It is convenient, if unhistorical, to discuss article 9 in these terms.
Impeaching freedom of speech – direct attack
Impeaching freedom of speech or proceedings in Parliament in the sense of holding someone liable for their parliamentary actions or speech means that article 9 confirms rather than adds to the recognised freedom of speech of members and others participating in parliamentary proceedings. Conduct in parliamentary proceedings cannot be the foundation of legal liability, either criminal or civil, except to the extent that statute has expressly or by necessary implication taken this immunity away. Thus the speech of a member of Parliament in a parliamentary debate cannot found an action for defamation
and documents held by a member that are part of a proceeding in Parliament cannot be subject to the compulsory process of a court.
Since 1688 this immunity from liability in respect of one’s actions or speeches in Parliament has rarely been challenged and has come to be recognised as trite law.
Questioning proceedings – indirect attack
But the prohibition on “questioning” proceedings in Parliament in the sense of undertaking a critical examination of parliamentary proceedings so as to support legal proceedings arising from events outside Parliament, while not lacking the constitutional significance of its companion term “impeaching”, is more elusive in its application.
The prohibition on a court questioning parliamentary proceedings is, in a consti-tutional sense, an assertion that goes to the separation of powers between the legislature and the judiciary. It has been said that its object is to avoid conflict between Parliament and the courts and that it consequently prevents condemnation by a court of what is said in Parliament because a court has no legitimate occasion to pass judgment on such proceedings.
It is wrong too for a court to make judgments on the quality or sufficiency of the reasons given in Parliament for the enactment of a particular measure or the transaction of particular business; that is a matter for Parliament.
In deference to this principle a court considered it would be improper for it to comment on a member’s speeches in Parliament even where the body under review before it (possibly itself in breach of article 9) had done so.
This principle of non-intervention or non-intrusion by the courts in parliamentary proceedings is mandatory. Where a questioning of proceedings in Parliament would occur, it is not for a court to judge whether freedom of speech would actually be infringed in that particular case. The court’s duty is to give effect to the principle as embodied in law.
The fact that there may be no attack on the propriety of a parliamentary statement also makes no difference. If a court is invited to examine it and draw inferences from it, it is inadmissible.
The principle underlying article 9, from the point of view of those participating in parliamentary proceedings, has been seen as being to promote the freedom of their contributions to those proceedings, by ensuring that at the time they speak they are not inhibited from stating fully and freely what they have to say. Article 9 is thus designed to remove uncertainties about whether a member’s (or witness’s) statement may be subsequently challenged in legal proceedings, and to give members and others confidence in making their parliamentary contributions that this will not be so.
Cases subsequent to the enunciation of this principle have emphasised this rationale as the basis for the extended operation of article 9.
Using parliamentary proceedings to support legal proceedings
There is therefore an inhibition on using speeches or proceedings in Parliament for the purpose of supporting a cause of action, even though that cause of action itself arose outside the House.
Article 9 means that the parties to litigation cannot bring into question anything said or done in the House by suggesting that the actions or words were inspired by improper motives or were untrue or misleading. This involves a prohibition on direct evidence, cross-examination, inferences or submissions having this effect.
Thus a court refused to allow a former Minister who was facing prosecution on a criminal charge to be cross-examined on remarks made by him in Parliament that appeared to contradict the evidence he had given to the court.
A judge has refused to admit extracts from Hansard where the purpose of putting them in evidence was to examine the motives of what had been said and done in the House.
It has been asserted that if a court were to be presented with two parliamentary statements and invited to infer that they were incompatible, that would be a breach of article 9.
If the operation of parliamentary privilege makes it unjust for an action to proceed (for example, by preventing the introduction of evidence which is crucial to its defence), the court may order a stay of proceedings.
There is no “questioning” of proceedings in Parliament in a legal action that is based on a member having distributed a copy of his or her parliamentary speech to a newspaper or other publication.
Members therefore distribute copies of their speeches or other parliamentary contributions (such as questions they have asked)
at their own risk.
It has also been held that if a member subsequently refers outside the House to a speech he or she had made in Parliament in a way that can be interpreted as “adopting” or “effectively repeating” it, the speech can be examined in a court and support legal proceedings. In these circumstances, it is said, it is the member’s own action that releases it for examination. The member was free from review at the time he or she made the original speech.
A member who merely acknowledges having made a speech, would not adopt or effectively repeat it in these circumstances and it could not thereby support legal proceedings. Cases of repetition or effective repetition thus may involve the use of evidence of parliamentary proceedings. Such use is not purely “historical” in the sense discussed below, since there may be serious dispute as to the meaning or effect of the words used in Parliament. In this case the justification for admitting the parliamentary material rests on the republication, or deemed republication, of parliamentary speech outside Parliament.
But a member is not liable for the use that another person makes of the member’s speech in Parliament (for example, reporting or repeating it), even though when the speech was made the member may have known that it was defamatory and was likely to be reported. To hold a member liable in these circumstances for even a forseeable repetition would defeat the member’s freedom of speech.
However, the person defamed can have a response entered in the parliamentary record. (See Chapter 39.)
Collateral examination of proceedings
The fact that the House has expressed its view on a matter does not at all preclude a court making its own finding on that matter if it subsequently arises before it in judicial proceedings. It is no abuse of the process of the court or breach of parliamentary privilege to litigate a matter merely because that matter has also been considered by the House or one of its committees. Despite the fact that it has received parliamentary attention, the court must still make its own finding on the issue if it is relevant to the proceedings before it.
It is thus conceivable that entirely different conclusions may be reached by a parliamentary inquiry into, and a judicial consideration of, the same matter.
The fact that such an inconsistent judicial conclusion implies a view about the parliamentary finding is irrelevant.
Indeed, an earlier parliamentary inquiry is not even persuasive, much less binding, on a court.
At the most, an earlier parliamentary inquiry would be relevant as part of the factual matrix out of which the legal proceedings before the court have emerged. But the court must be careful to make no finding on the parliamentary treatment of the matter.
Not all references to debates or proceedings in Parliament are contrary to the Bill of Rights. Evidence of proceedings in Parliament may be admitted before a court, provided that the evidence is used in a way that is consistent with article 9 and does not involve an examination of the propriety of the proceedings or of the motives or intentions of those taking part in the proceedings. Evidence of the occurrence of events or the saying of certain words in parliamentary proceedings, without any accompanying impeaching or questioning of proceedings, so-called “historical” use, is permissible.
Examples of historical uses which are not contrary to the Bill of Rights are: the use of parliamentary proceedings to prove material facts, such as that a statement was made in Parliament or made at a particular time or that it refers to a particular person;
the use to prove that a member was present in the House on a particular day;
and the proof that a report of a speech is fair and accurate and is thereby subject to qualified privilege in the law of defamation.
Statutory interpretation and judicial review
It is well established both in New Zealand law and in United Kingdom law that parliamen-tary statements and other materials may be used in aid of statutory interpretation.
In Australia use of parliamentary statements and material are themselves regulated by statute.
Such use is regarded in all jurisdictions as compatible with article 9, and occurs frequently, though if a court were to be drawn into comparing conflicting parliamentary statements and appraising them it could violate that provision.
However, this does not mean that a court will find all parliamentary statements or material equally valuable to it or, indeed, of any value at all.
Thus a court has declined to have regard to such material because a select committee was not unanimous in its views
and has ignored statements from members opposing the legislation that is in question.
In Australia, the interpretation legislation gives particular weight to the speech of the Minister moving the second reading of the bill.
It has also been stated that parliamentary proceedings may be used to assist in determining applications for judicial review, particularly by reference to ministerial statements to the House.
On the other hand, an attempt to construe an enforceable legitimate expectation from such a statement was rejected by one judge on the ground that to do so would infringe article 9.
The distinction may lie between, on the one hand, using a parliamentary statement in judicial review proceedings to establish precisely what the Government policy or position that is being reviewed is and, on the other hand, using the statement as itself giving grounds for review. A parliamentary statement made by a Minister can be introduced as evidence of the Government’s position on a matter and that position can be criticised and (if need be) demonstrated to be unlawful. The announcement of the policy in Parliament is no different to its announcement by means of a letter.
But the parliamentary statement cannot in itself give grounds for relief (for example, by creating a legitimate expectation or being impugned as actuated by bias), for so to use it would be to impeach it and thus act contrary to article 9.
Court or place out of Parliament
The prohibition on speeches and parliamentary proceedings being called into question outside Parliament applies to such questioning before a court or in any “place” outside Parliament. Proceedings before a court are self-evident. The reference to any place outside Parliament, if taken literally, could be used to inhibit criticism or examination of Parliament on any occasion outside Parliament and thus unacceptably infringe the citizen’s freedom of speech. There have occasionally been judicial statements of a rhetorical nature imputing this extreme meaning to the phrase.
Fortunately, these suggestions have not been taken seriously, either by the House or by the courts themselves.
It seems likely that what the parliamentarians of 1688 had in mind by the phrase was the jurisdiction of the councils previously established by Royal prerogative to exercise executive and judicial functions that were, in regards to the latter, in conflict with the jurisdiction of the common law courts. Members, in enacting the Bill of Rights, wished to ensure that these councils, as well as the regular courts, could not examine parliamentary proceedings. In a modern state these parallel, non-curial, executive and judicial functions are exercised by tribunals and other bodies established mainly by legislation. It is to such bodies (as well as the courts) that the prohibition on questioning proceedings in Parliament is taken to be addressed today. Thus a statutory arbitrator has been held to be “a place out of Parliament” and thus bound to observe article 9, since the arbitrator was required to act judicially and in accordance with the law.
The Human Rights Commission
and the Ombudsmen
have accepted that they are bound by article 9 and have refused to investigate complaints that related to proceedings in Parliament. In Western Australia, the Legal Practitioners Complaints Committee and the Legal Practitioners Disciplinary Tribunal (both statutory entities) have also accepted that they are subject to the restraint against impeaching or questioning proceedings in Parliament.
In 1978, following the report of a commission of inquiry which had been charged with investigating, amongst other things, public statements made by a member of Parliament (the “Moyle affair”), and the interpretation by the commission of its terms of reference as authorising it to examine statements made in the House, it was argued in a learned article that the commission had “acted in breach of article 9 of the Bill of Rights and thus (in this respect) in excess of jurisdiction”.
At the time the commission of inquiry sat, Parliament was in recess and the matter was never raised as a matter of privilege in the House. Regardless of whether a breach of privilege was committed in that case, there would seem to be little doubt that a commission of inquiry or a Royal Commission does fall within the expression “place” in the Bill of Rights, and so is potentially subject to the restrictions of parliamentary privilege in carrying out its task.
For this reason, in 1980, the commission of inquiry into the marginal lands affair requested that the House give leave for it to refer to Hansard during the course of its inquiries.
But the phrase “place out of Parliament” may not be restricted to bodies carrying out statutory functions. In 1978 the Press Council, which was set up by agreement between associations representing newspaper proprietors and journalists, refused to pursue a complaint against a member of Parliament in respect of a motion he had moved and a speech he had made in the House, which, it was alleged, seriously reflected on a newspaper and the probity and professional reputation of its editor. The council accepted legal advice that it could not inquire into the appropriateness of proceedings in the House, including a parliamentary question (it was in fact a motion that was involved in that case) or a discussion on it, and that if it did so it would be guilty of a contempt.
The House has treated an attempt by the Legislative Council to examine a member about a speech he had made in the House to be a breach of privilege.
The House’s exclusive right to control its own proceedings
One of the incidents of freedom of speech is the right of the House to control its own proceedings free of outside interference. It has been said that this right must be regarded as so essential a part of a legislature’s procedure that it inheres in the very notion of being a legislative chamber in the first place.
The House is said to have “exclusive jurisdiction” or “exclusive cognisance” over how its proceedings are to be conducted; the conduct of those proceedings is not subject to examination elsewhere.
This right is not dependent on article 9 of the Bill of Rights (though it is clearly associated with it). Indeed in the leading cases on the right to control a legislature’s proceedings none of the judgments refer to article 9 at all. The courts do not enforce or review internal parliamentary procedures – that is a matter for the House itself. Rather the courts as a matter of law recognise the House’s internal decisions as being conclusive within that sphere.
The House’s internal rules – its Standing Orders – were originally required to be submitted to the Governor for approval before coming into effect, but this requirement was repealed in 1865 and the Standing Orders of the House are now a matter for the House alone to determine. It is solely for the legislature to decide what its Standing Orders and other procedures should be.
In cases of alleged non-compliance with the House’s rules of procedure, the courts disclaim all power to intervene. The Standing Orders are examples of the House giving orders to itself and it has exclusive authority to do this. Questions of this nature have arisen in cases in which it has been alleged that the legislature has passed a bill in contravention of its Standing Orders,
or has been induced to pass a bill by fraud or deceit and, therefore, contrary to its own rules,
and that in each case the validity of the resultant Act was thereby vitiated. The courts have declined to examine the internal proceedings of the legislature in such cases, referring litigants to Parliament itself for any redress. As has been said, “the remedy for a parliamentary wrong, if one has been committed, must be sought from Parliament, and cannot be gained from the courts”.
It is a matter for the House to decide what business to consider, legislation to pass, and resolutions to adopt.
This is so even though any resulting legislation will be invalid or ineffectual and the House will have been effectively wasting its time.
While, if a resolution is relied on as having legal significance in a particular case, a court must determine if it has the significance claimed,
the court will not allow itself to be drawn into giving relief (even of a declaratory nature) against the House for having adopted the resolution in the first place.
It is also exclusively for the House to decide how to discipline its own members, for example, whether to suspend or admonish them, and not for the courts to intervene in its decisions on such matters.
Reports to its committees on internal disciplinary matters by one of its officers are also regarded as being part of its internal proceedings and are therefore unsuitable subjects for judicial review.
On the other hand, if a statute prescribes a mode of dealing with a matter, this is a case where Parliament has given an order to the House. The House and its members are subject to the law of the land as promulgated by Parliament, just as is everyone else in the state, and they must comply with any statute which applies to the House’s proceedings, notwithstanding any Standing Order or practice of the House to the contrary.
Where the statutory mode of dealing with a matter is a prescription of the forms to be followed in enacting legislation (a “manner and form” provision), compliance with the prescription is an essential condition of legal validity. A court must therefore satisfy itself that the prescription has been complied with, otherwise there will be no valid statute to apply.
(See Chapter 27.) However, even in such a case a court will accord the House a wide latitude to determine how the manner and form provision is to be applied in practice to the House’s procedures.
Where no manner and form provision is involved, it was said in an English case that the House of Commons had the exclusive power of interpreting a statute (which allowed a member to make an affirmation rather than take an oath before taking a seat in the House) so far as the regulation of its proceedings within its own walls was concerned, and that even if that interpretation was erroneous the court had no power to interfere with it directly or indirectly.
Thus a court has held that it had no authority to review the discharge of the Attorney-General’s function of drawing the House’s attention to the provisions of any bill which appear to conflict with the fundamental rights and freedoms confirmed by the New Zealand Bill of Rights Act 1990, since this is a function discharged as part of a proceeding in Parliament. Any control of it therefore fell to be exercised exclusively by the House.
Similarly, with those rights and freedoms guaranteed by the Act, so far as they fall to be exercised within parliamentary proceedings, it is for the House to devise procedures and practices to give effect to them and to decide in individual cases how these are to be applied.
It has been emphasised, however, that in respect of proceedings outside Parliament a court could substitute its interpretation of the statute for that of the House’s if it felt that the latter’s was wrong, and protect such rights as flowed from this interpretation to the extent that they were exercisable outside the House.
The House’s right to interpret how a statute applies to its own proceedings cannot affect one’s status or the exercise of legal power outside Parliament.
Evidence of debates and proceedings in Parliament
Authority to refer to debates and proceedings
Historically, the House of Commons took a very restrictive view of attempts to report its debates or proceedings. Even though by the nineteenth century such reports had come to be tolerated and, indeed, officially produced and sanctioned,
it remained until 1971 a technical breach of privilege to report the House’s proceedings.
If it was regarded as a breach of privilege even to make a report of the House’s proceedings, to raise such proceedings before a court was potentially regarded as even more serious by the House of Commons, and any litigants who did so ran the risk of being held to be in contempt by it. Possibly for this reason, a practice began to develop of litigants petitioning the House for leave to refer to its proceedings where this was necessary in litigation in which they were engaged. By obtaining the House’s prior agreement to their use, they insured themselves against the possibility that the House would hold them in contempt for referring to its proceedings without its permission.
This practice was not a means of securing release from the strictures of the Bill of Rights 1688. Any proposed use of materials that would involve impeaching or questioning proceedings in Parliament was unlawful and the courts, in applying the law, would prevent it. But the courts would not forbid uses of parliamentary materials that were consistent with the Bill of Rights, and parliamentary authority for such materials to be used was never essential to their admissibility in legal proceedings. Rather, parliamentary authority was seen as an assurance for those persons using parliamentary materials that they would not come into conflict with the House of Commons for a breach of its privileges. The House of Commons, in 1980, formally abandoned the practice of litigants petitioning it for leave to refer to its proceedings, by giving a general authority for its proceedings to be referred to. The general authority specifically reaffirms the continuing applicability of article 9 of the Bill of Rights to any use of those proceedings.
It is doubtful whether the practice of petitioning for leave to refer to parliamentary proceedings was ever truly applicable in New Zealand. The House of Representatives never took the restrictive view of the publication of its debates and proceedings that was formerly taken by the House of Commons and never considered it to be a breach of privilege to report or publish its proceedings (except secret sessions). Indeed, from its foundation it was concerned to encourage reports to be made of its proceedings. For example, New Zealand instituted an official report of parliamentary debates in 1867, while Hansard was not made an official report of the House of Commons until 1909.
Nevertheless, there were occasional petitions to the House seeking leave to refer to its proceedings. Indeed, in one early application for leave to produce as evidence a petition and minutes of the evidence on the petition, the House refused permission.
In later cases leave was invariably granted but there was no settled practice of litigants applying for leave in all cases.
Since 1996 the House has resolved any uncertainty for litigants by adopting the House of Commons’ practice of giving a general leave for its proceedings to be referred to in legal proceedings and abolishing any requirement for its permission to be obtained.
At the same time, it made it clear that by granting a standing permission to refer to its proceedings it was not intending to waive or abrogate article 9 of the Bill of Rights, and it reiterated that any use of parliamentary proceedings in court must be in accordance with that provision.
It also made it clear that such permission was subject to any rule or order of the House extending confidentiality to its proceedings, such as the rules on confidentiality of select committee proceedings prior to their report to the House.
Evidence by members
Members of Parliament are in no special position regarding the evidence that they may give of proceedings in Parliament, though they have entitlements to obtain exemption from court attendance as witnesses.
If the evidence which they give to the court is permissible in terms of the House’s privilege of freedom of speech and particularly article 9, it is evidence that it is competent for a court to receive. If it is inconsistent with that privilege, then the fact that a member proposes to give it makes no difference; it is still inadmissible.
Nor does a member of Parliament have any parliamentary immunity from producing, or giving evidence of the source of, information received by the member, even if that information has been used in Parliament.
However, the court may take account of the wide functions of a member of Parliament in exercising a discretion whether to order production or to compel a member to give evidence.
The question has arisen as to whether a member of Parliament can be compelled to give evidence of proceedings in Parliament.
The Speaker of the Irish House of Commons was called to give evidence about what the plaintiff (a member) had said in Parliament. The court held that the Speaker was bound to answer as a fact whether the plaintiff had spoken but was not bound to disclose what he had actually said, though if the Speaker did give such evidence it would be accepted by the court.
The point in that case appears to have turned on the House’s former prohibition of reporting its debates, which a court would not compel a witness to disobey. On this ground it is thus no longer relevant. In later cases courts have allowed members to refuse to give evidence of what had occurred in Parliament where they did not have the House’s permission to do so.
But evidence of proceedings in Parliament has been given by members voluntarily without the express permission of the House. Providing such evidence is otherwise admissible in terms of article 9, the courts have held that it could be received by them. Even more, it was said that mere factual evidence of what has occurred in Parliament can be compelled from a member by a court.
Clearly, evidence of proceedings in Parliament that is consistent with the House’s freedom of speech can be given by members and neither the courts nor the House require that the House’s express permission be obtained.
In the United Kingdom, the House of Commons’ former practice of attempting to suppress reports of its proceedings has received acknowledgment from the courts in the sense that permission of the House has been regarded as necessary where a member objects to giving such evidence. The House’s concurrence to evidence being given has been seen, in these circumstances, to be an aspect of its privilege of control over its own proceedings.
But in New Zealand (and Australia) a general practice of suppressing reports of proceedings has never been asserted. In these circumstances there seems to be no reason in principle why such evidence should not be compellable as a matter of the court’s discretion, though the fact that the House has not been consulted would be a relevant factor for the court to take into account in exercising that discretion. It would be the case too that any confidentiality attaching to specific parliamentary proceedings ordered by the House or applying by virtue of the Standing Orders should be observed by the court both in exercising its discretion to compel evidence and in admitting evidence in the first place. It would certainly be the duty of any member giving evidence to object to giving evidence of confidential parliamentary proceedings. This point is expressly reserved by the House in its general permission for evidence to be given of its proceedings.
If a member subject to the compulsory order of a court feels any difficulty in giving evidence of parliamentary proceedings, this can be raised with the House which, if it sees fit, can seek to intervene in the proceedings.
Evidence by parliamentary officials
In the case of evidence by parliamentary officials the House does have a special rule about its own proceedings being tendered in evidence to a court. This arises when it is desired that an officer of the House give evidence (in person or by affidavit) of parliamentary proceedings. (Indeed it may be that it was confusion with the House’s interest in its own officers not tendering evidence about its proceedings without the House’s authority that led litigants to begin petitioning the House for authority to refer to its debates even where it was not proposed that an officer give evidence.
By Standing Order, the House has provided that neither the Clerk, any other officers of the House (which includes all staff of the Office of the Clerk
), nor any other person employed to make a transcript of proceedings before the House or any committee of the House, may give evidence of proceedings in Parliament without the authority of the House.
This Standing Order is directed solely to the manner in which evidence of parliamentary proceedings may be obtained. It does not prohibit the use of parliamentary proceedings before a court or other tribunal. Where such use is prohibited, that is dealt with by the Bill of Rights 1688.
Applications for officers to give evidence can be made by way of petition to the House or they can be dealt with on a motion for which notice is necessary. During an adjournment of the House, where it is not convenient to wait until the House will next sit, the Speaker may give authority on behalf of the House unless, in the Speaker’s opinion, the matter should await consideration by the House itself.
Any evidence given by a parliamentary official must be consistent with the House’s own rules on the disclosure of its proceeding.
Control over the parliamentary precincts
The House, through the Speaker, exercises such control over the parliamentary precincts as is necessary for the proper functioning of its work as a legislature. This control can include excluding persons from the parliamentary buildings. (See Chapter 11.)
Power to control access to its sittings
As an aspect of its privileges, the House possesses the power to control access to its sittings by regulating the attendance and conduct of members and non-members at sittings and excluding strangers if it sees fit.
Proceedings in the House
The House’s privileges include the power to effect (at least) the temporary removal of members insofar as this may be necessary to allow the House to conduct its business in an orderly fashion.
The House has rules for the maintenance of order and for the circumstances in which members can be excluded from the Chamber. (See Chapter 11.)
Strangers are normally allowed to be present during all sitting hours of the House. However, it is open to any member of the House to move, without notice, “That strangers be ordered to withdraw”.
A debate, but not a member speaking, may be interrupted to deal with such a motion.
The motion is decided immediately, without amendment or debate.
If it is carried, the public galleries are cleared immediately, the broadcasting of the debates is discontinued, Hansard reporters and members of the press gallery withdraw, and no official report of the debate is made; a record only of the formal motions moved and questions put while strangers were excluded is noted by the Clerk for the journal.
During the Second World War, the House occasionally went further than merely ordering the exclusion of strangers, and after strangers had withdrawn it sometimes ordered that the remainder of the sitting should be a secret session. Under regulations, it was an offence to publish a report or description of any of the proceedings of the House at a secret session in any newspaper, periodical, circular or other publication, or in any public speech, except a report or description officially authorised by the Speaker.
Members themselves were not able to discuss or comment in the House on what had been said at secret sessions.
However, anything said at a secret session could be repeated outside the House if it did not constitute giving information to the enemy, was not itself confidential and was not attributed as having been discussed at a secret session.
The first secret session was held on 5 June 1940
and 17 further secret sessions were held during the war. In addition, the galleries were cleared on one occasion on the Speaker’s own authority.
However, officials, such as the chiefs of staff, and even members of the press (“who were forbidden to report anything”)
were admitted to some secret sessions.
The secret sessions regulations were revoked along with a number of other emergency regulations in 1947.
Subject to any order of the House, the Speaker controls admission to the galleries and may make rules for the conduct of those admitted to them.
The Speaker has ordered all strangers to withdraw from the galleries when the Speaker felt that the nature of the subject under debate warranted this.
The Speaker and the Serjeant-at-Arms may, as part of the power to keep order in the galleries, require strangers who interrupt proceedings or otherwise misconduct themselves to withdraw.
Select committee proceedings
The admission to, and exclusion of members and strangers from, meetings of select committees is dealt with earlier, as are the circumstances in which reports of proceedings at select committees may be divulged before being reported to the House. (See Chapters 23 and 24.) The House will hold the divulging of select committee proceedings or a select committee report in a way that is contrary to the Standing Orders to be a contempt. (See Chapter 47.)
The House’s privilege of keeping material confidential is recognised in those statutes that provide for access to information. Requests for such information or access may be declined if to release it would lead to a contempt of the House.
Amongst other things, this protects Ministers and their officials who have confidential select committee documents circulated to them in the course of their duties from having to disclose them and thereby commit a breach of privilege.
Power to hold inquiries
The House has inherent power to inquire into any matter that it considers requires investigation. (See Chapter 30.)
Power to obtain evidence
In support of its power to inquire, the House has power to obtain information and evidence by summoning witnesses and requiring the production of documents. This power may be delegated to a select committee as the power to send for persons, papers and records. (See Chapter 30.)
Power to administer oaths
The House and its committees have the power to administer oaths to witnesses. (See Chapter 30.)
Power to delegate
The House has always exercised a power to form committees of members and to delegate to those committees parliamentary functions and powers. The functions thus delegated include the examination of legislation, estimates, treaties and petitions and the conduct of inquiries. The powers delegated to committees are ancillary to carrying out these functions. These powers include disciplinary authority over members of the committee and authority to regulate access to committee proceedings. Coercive power to require persons to attend such committees and produce papers to them is no longer generally delegated to committees. Parliamentary committees have been described as extensions of the legislature, deriving their authority from it and, insofar as they act within the scope of the authority delegated to them, being every bit as “parliamentary” as the legislature as a whole.
But the House may also delegate powers to individual members in their own right. It does so particularly with regard to the Speaker, who is given considerable power, both within the House and outside the Chamber, to make decisions that would otherwise have to be taken by the House itself. These delegated powers include the power to issue a summons at the request of a select committee requiring a person to appear before the committee or to produce documents to it. The House also delegates its powers to non-members. Principally these delegations relate to powers to be exercised by officers of the House, such as the Clerk of the House and the Serjeant-at-Arms, on its behalf. These delegated powers are exercised subject to the oversight of the Speaker on behalf of the House. But the House does not delegate the power to punish for contempt. (See Chapter 47.)
It is also doubtful how far, if at all, the House can delegate its functions, as opposed to its powers, to non-members and give them parliamentary authority, without legislative authorisation. Where the House has desired that another body or group of persons carry out its functions, it has legislated for this,
and the concept that officers of Parliament carry out functions on behalf of the House
is underpinned by legislation authorising those officers to carry out that work. (See Chapter 6.) It is likely, therefore, that an attempt by the House to delegate the carrying out of its functions to a body of non-members would not (in the absence of legislation) be recognised as according to the activities of that body the status of a proceeding in Parliament with the legal authorities and protections that are attendant on that status.
Power to punish for contempt
The House’s power to punish for contempt is discussed in Chapter 47.
Power to exercise discipline over members
Members are exempt from being punished or disciplined by anyone outside the House on account of what they may have said or done in the course of parliamentary proceedings. But members are subject to being held accountable to the House for their conduct in parliamentary proceedings. Thus the House’s rules of order in debate and its rules for disciplining and ultimately suspending members from service in the House and on committees subject members to the power that the House possesses to exercise disciplinary authority over its own members. (See Chapter 11.)
Power to expel
The extent to which the House may have the power to expel members from the House and thus cause a vacancy to arise is discussed in Chapter 48.
Power to fine
The House’s possible power to fine members or others is discussed in Chapter 48.
Power to arrest
The House’s power to arrest or commit persons into custody is discussed in Chapter 48.
Power to control reports of its proceedings
One of the incidents of freedom of speech is the power of the House to control the extent to which its proceedings may be reported. The House of Commons was, at one time, extremely suspicious of reports of its proceedings getting abroad, and treated such reports as technical breaches of privilege until as late as 1971. The House of Representatives has never been jealous to protect the confidentiality of its debates – indeed, quite the opposite – but it has consistently exercised the power to control the release of reports of its proceedings. Proceedings of committees have always been treated on a different basis from proceedings in the House itself as far as disclosure is concerned, for the House has taken the view that it should be the first body to learn of the deliberations and conclusions of its own committees. The report and certain other proceedings of a committee are confidential until the committee reports to the House. Disclosure of such matters before this time may be treated as a contempt.
The House’s proceedings have been broadcast on radio since 1936 and have been available for television broadcasting since 1988.
Exemption from jury service
The House of Commons has always claimed that its members are exempt from being required to serve on juries. In New Zealand the law goes even further than this and provides that members of the Executive Council and members of Parliament are not to serve on any jury in any court on any occasion.
Rather than being exempt from serving on a jury, members are now disqualified from doing so.
Exemption from liability for parliamentary publications
At common law no privilege existed protecting any parliamentary publication from legal liability. It was thus no defence to a legal action that the document in respect of which the action related was published by order of the House.
In order to overcome this situation the United Kingdom Parliament in 1840 passed specific legislation protecting such publications from legal liability.
The New Zealand Parliament first passed equivalent legislation in 1856.
The present exemptions attaching to documents and extracts from documents published by order or under the authority of the House are set out in specific legislation.
(See Chapter 38.)
The House has also, since 1962, ordered that its proceedings be broadcast.
(Though proceedings have been broadcast since 1936, this was done without an order of the House until 1962.) Re-broadcasts of extracts from debates are afforded qualified legal privilege in defamation.
The publication of an official report of proceedings (Hansard) was not initiated in 1867 by or under the authority of the House. Rather it was done on the Government’s authority. Today it is carried out by order of the House under the control of the Speaker.
Members of Parliament who publish outside the House copies of speeches they have made in the House are liable for any defamatory statements contained in the speech, subject to any legal privilege they may be able to claim.
Protection from liability for infringement of copyright is provided for anything done for the purposes of parliamentary proceedings or for the reporting of such proceedings.
In regard to use of copyright material in the course of parliamentary proceedings, it is likely that no liability would arise in any case.
Republication of documents generated in the parliamentary process (other than as a report of parliamentary proceedings) for commercial purposes or private gain is unlikely to be protected from liability.
Freedom from arrest
Members of Parliament enjoy freedom from arrest in civil process. The privilege of freedom from civil arrest runs from 40 days before the start of each parliamentary session to 40 days after its termination.
The 40-day period after the end of the session continues to run even though Parliament is dissolved
and even though the person claiming the privilege was a member of the old Parliament but is not a member of the new Parliament.
The significance of this privilege has been considerably reduced by the practical abolition of imprisonment for debt in New Zealand. Legislation passed in 1874 abolished imprisonment for failure to pay a sum of money, except in very restrictive circumstances.
Nor are members immune from detention under an inpatient order in a case of mental disorder.
A similar privilege of freedom from arrest in civil process applies to witnesses summoned to attend before the House or a committee; to witnesses in attendance upon the business of the House, and while they are coming to, or going from, the House on parliamentary business; and to officers in personal attendance on the House.
The privilege of freedom from arrest applies only to arrest in civil proceedings; it does not protect members from arrest in criminal matters or from detention under emergency powers.
There is no general immunity from the criminal law for members of Parliament in New Zealand. The only privilege that members enjoy in criminal matters is that words used by them in proceedings in Parliament cannot be made the subject of criminal proceedings or be used to support a prosecution. A court will therefore be concerned to ensure that a member has not been arrested on account of anything said in the House.
But otherwise a member convicted of a crime is in the same position as any other convicted person and will, in addition, lose his or her seat in the House if the crime carries a penalty of imprisonment for two years or more or if the member is committed to prison and is unable to attend in the House for a whole session without obtaining leave of absence from the House.
Indeed, the fact that a member who is lawfully detained stands in danger of losing his or her seat for not attending the House is no ground for a court to give relief against that detention.
Although members have no freedom from arrest in criminal matters, the House expects to be informed of the arrest or detention of any of its members. This is done by the arresting or sentencing authority informing the Speaker of the circumstances by letter.
Quite apart from other rights to communicate from detention, a member who is detained is entitled to communicate with the Speaker on parliamentary business.
Contempt of court
It has been said that members’ immunity from arrest does not apply in respect of contempt of court.
This appears to depend upon whether the contempt is of a criminal (or “quasi-criminal”) or civil nature .
Members are not exempt from being proceeded against for a contempt of court of a criminal nature and such proceedings are not a breach of privilege.
Members in New Zealand have been proceeded against for contempt of court and a member has been found to be in contempt.
The distinction between civil and criminal contempt has been said to be that the former is brought to compel performance of a civil obligation, while the latter punishes conduct “which has about it some degree of criminality, some defiance of the general law”.
In Australia, the commitment to prison of a member for failure to pay court costs awarded against him following a civil action was considered by a committee of the House of Representatives to be a breach of privilege, but this view has been challenged on the ground that commitment for costs is criminal in nature.
Exemption from attendance as a witness in legal proceedings
The Legislature Act 1908 (in provisions, most of which were first enacted in 1866) lays down detailed provisions dealing with the exemption of members and certain officers of the House (the Clerk of the House, the Deputy Clerk, the Clerk-Assistant, and the Serjeant-at-Arms
) from attending courts of law as witnesses during a session. These provisions are seen as having codified and superseded any exemptions that would have applied at common law. In no case, however, is the general power of the House to grant leave for its members or officers to attend court to give evidence limited or abridged by the statutory provisions.
Members or officers not in attendance on the House
Any member who already has leave of absence from the House may be exempted from attending civil or criminal proceedings before the Court of Appeal, the High Court or a District Court, during a session or within 10 days of the commencement of a session, by the court concerned.
If applied for, exemption must be granted unless it appears to the court that “the ends of public justice would be defeated or injuriously delayed or irreparable injury would be caused to any party to the proceedings by the non-attendance”.
There can be no exemption where the member or officer is a defendant in criminal proceedings. If exemption is granted, the member or officer is discharged from attending the court until an appointed time, which is at least 10 days after the end of the session.
Members or officers in attendance on the House
In the case of members or officers in attendance on the House, exemptions from court appearances may be granted by the Speaker or the House itself. Once again, no exemption may be granted where the member or officer is a defendant in criminal proceedings.
If the Speaker is served with an order to attend a court, the matter may be submitted to the House for it to decide what action is to be taken. The House may make any order it thinks fit. In particular, it may resolve to exempt the Speaker from attending the court. If it does, the Speaker is exempted from attendance until 10 days after the termination of the session.
Speakers have been so exempted by the House on three occasions.
During an adjournment, the Speaker may sign a certificate that exempts the Speaker from attendance but in this case the matter must be submitted to the House at the first available opportunity.
Other members of the House who are required to attend court in civil or criminal proceedings during a session or fewer than 10 days before the commencement of a session may apply to the Speaker (or Acting Speaker) for exemption.
To claim exemption the member must apply to the Speaker certifying that it is necessary for the member to attend to parliamentary business and provide any other information that may be relevant to the Speaker’s consideration of the application. The Speaker may seek the views of other parties involved in the proceedings and give them an opportunity to comment.
The Speaker must grant exemption unless justice would be defeated or injuriously delayed, or irreparable injury would be caused to another party.
But the length of time and the dates claimed for the exemption will be relevant considerations. An exemption granted at or near the beginning of a session (given the length of sessions nowadays) or for days on which the House will not be sitting, is unlikely to be justifiable, for instance.
When the Speaker’s certificate has been issued, the member is exempted from attending at the court until 10 days after the termination of the session.
Right to have civil proceedings adjourned
At one time it was regarded as a breach of privilege merely to bring a civil action against a member of Parliament or the member’s servant during a session. During the course of the eighteenth century such privileges were abolished by legislation, although the House of Commons (and by extension the House of Representatives) can still, in any appropriate case, treat as a contempt the bringing of legal proceedings against a member in respect of conduct in the House and punish it accordingly.
The privileges of members in New Zealand in respect of civil proceedings instituted against them depend now upon the provisions of the Legislature Act.
In 1872, it happened that a member’s personal attendance at a civil action against him was not actually required by process of law (which would have entitled him to invoke the sections of the Act already considered to have the action postponed), yet it was desirable from his point of view that he attend the trial personally, which he was unable to do by the necessity for him to attend the House.
Legislation was consequently enacted to enable members and officers in this situation to obtain a stay of the action.
Where a civil action against a member or officer is to come on for trial during the course of a session or 10 days before or 30 days after a session has ended, the member or officer may apply to the court, if he or she is not in attendance on the House, and to the Speaker, if he or she is, for the trial or hearing to be adjourned. Any such application must be supported by an affidavit from the member concerned. The court or the Speaker must grant the application unless irreparable injury would be caused to any party.
As with an application for exemption from attending court as a witness, on an application for an adjournment the Speaker may make inquiries in order to establish that an adjournment is justified. This may involve giving other parties an opportunity to comment. Also, as with an exemption, the stage of the session and whether the House will actually be sitting are relevant factors for the Speaker to consider in deciding whether irreparable injury would be caused to any person.
Where such an application is granted, the trial or hearing is adjourned to a sitting of the court to be held at least 30 days after the end of the session.
Exemption from service of legal process
The issue of court documents against members of Parliament (service of process) from courts other than the Court of Appeal, the High Court and District Court, is restricted. The service of process out of any other court, on any member or officer during a session or within 10 days before or 10 days after a session (except a summons or warrant on a charge of a criminal offence) is invalid and of no effect.
While members are not immune from the service of process out of the Court of Appeal, the High Court or a District Court, how and where such process is served is material in determining whether it constitutes an affront to the dignity of the House and should be treated as a contempt.
Power to determine the qualifications of members to sit and vote in the House
The House of Commons has exercised a number of privileges in regard to its own constitution, such as the power to order writs to be issued to fill vacancies in its membership, trying controverted elections and determining the qualifications of members to sit or to continue to sit in the Commons. It is doubtful how far the first two of these powers have ever been possessed by the House of Representatives as an aspect of privilege, for the New Zealand Constitution Act 1852 (UK) provided, from the beginning of representative government, for how vacancies were to be filled and how disputed elections were to be determined (at first, by the House itself).
The power of determining the qualifications of its members to sit in the House, however, has been exercised on a few occasions. If there is a doubt whether a person claiming to be a member is entitled to take a seat in the House or if it appears that a member may have become disqualified from membership, the House may inquire into the matter. Thus, when a member appeared at the Chamber claiming to have been elected but without producing the returned writ, the House inquired into the affair as a matter of privilege. It was only on the House being satisfied that he had been elected, that he was admitted.
Two of New Zealand’s most famous parliamentarians have had their right to sit in the House challenged in exercise of this privilege. The question was raised as to whether Sir George Grey had become disqualified by reason of his absence from the House, but a motion to refer this matter to a select committee for investigation failed.
Sir Joseph Ward’s bankruptcy in 1897 (bankruptcy of a member was then a disqualification) caused the House to set up a committee to inquire into whether he was disqualified as a member.
In its report the committee recommended that the matter should be referred to the Court of Appeal for its opinion on the subject.
Because there was no machinery for this to be done, Parliament passed a special Act referring the question of Ward’s bankruptcy to the court on a case stated.
The court certified that the seat had not become vacant.
In 1997 the Privileges Committee conducted an inquiry into whether a member had resigned from the House. The committee found that she had not resigned.
In 2003 a similar inquiry into whether a member had incurred a disqualification by applying for the citizenship of another country found that he had done so.
While the power of the House to inquire into the qualifications of its members to sit in the House and, as an aspect of its exclusive control of its own proceedings, to admit to or exclude from its presence any person claiming to be a member remains, the House does not make legal determinations of membership of the House. Ultimately, this is a matter of law, which may be determined by a court of competent jurisdiction. Statutory procedures exist, for example, for determining disputed elections.
In the case of members who incur or may have incurred disqualifications, the Speaker, on being satisfied that a vacancy exists, must notify that vacancy in the Gazette and commence the process of filling that vacancy.
But, even so, it is not the Speaker who determines authoritatively that a vacancy has arisen; rather the Speaker’s role is a consequential one. Whether a vacancy exists could be established independently of any action of the Speaker.
The House may also suspend its members from service in the House. It has never exercised a power to expel a member. (See Chapter 48.)
Freedom of access to the Governor-General and favourable construction of the House’s proceedings
The right to freedom of access to the Governor-General and the right that a favourable construction be put on the House’s proceedings are two privileges specifically included in the Speaker’s claim to the privileges of the House immediately after the Governor-General has confirmed the Speaker in office.
It may be that the claim to a favourable construction of its proceedings was part of the formation of a general principle of freedom of speech. (See p.617.)
Neither privilege has been regarded as being of practical importance in New Zealand, having been adopted, it has been said, “through the desire of our early parliamentarians to follow as closely as possible the procedures and precedents of the Commons”.
However, in 1877 the House did protest that, contrary to its privileges, the Governor of the day had taken notice of its proceedings and used this as a reason for declining to follow advice tendered to him by his Ministers.
This could be significant if there was uncertainty over the confidence of the House in the Government in office.
The privilege of freedom of access also emphasises that individual members do not have a right of access to the Governor-General; only the House as a whole does, through its Speaker. The proper form that communications between the House and the Governor-General take is that of an Address. Otherwise advice to the Governor-General is tendered solely by the Crown’s responsible advisers, its Ministers.