At common law a legislature such as the House enjoyed no power to punish for contempt, though it could take direct action to coerce persons into obeying its orders (such as to leave its presence or to attend a sitting).
It was doubt about the House’s ability to take action itself to enforce or vindicate a breach of its privileges or to punish any other contempt shown to it that was the motivating factor behind a general legislative statement of the House’s powers early in its life. With the enactment of the Parliamentary Privileges Act 1865, the House was empowered to take action against persons who breached its privileges or showed contempt to it in any other way, and to punish those persons itself, rather than being forced to rely exclusively or mainly on the courts for protection. The power to punish for contempt is the power to take direct action that is sanctioned by law. (The types of punishment which the House may inflict are considered in Chapter 48.)
Application of the power to punish for contempt
The power to punish applies in respect of breaches of privilege. Any breach of one of the privileges of the House can be punished by the House. However, by the very nature of these privileges it is unusual for the House to be involved in enforcing them (except those relating to disclosure of select committee proceedings). Breaches are more likely to be raised in the context of legal proceedings before the courts and, being part of the general law of New Zealand,
are recognised and applied by the courts as may be necessary even if not specifically raised by the parties to the litigation.
Cases of breaches of specific privileges do arise before the House but they are comparatively infrequent.
But as well as the House’s power to punish for contempt extending to punishing breaches of specific privileges, the power also includes the power to punish any act which the House considers to be a contempt whether or not that act violates a specific privilege. The distinction between a contempt and a breach of privilege is not always clearly drawn; there is a tendency to refer to a “breach of privilege” when what is really meant is a contempt.
There are many acts other than breaches of privilege which, although they do not interfere with freedom of speech, freedom from arrest or the House’s other privileges, nevertheless interfere with the work of the House or its members or are a serious affront to their dignity. Not being violations of a specific privilege of the House, the courts cannot protect the House against them unless they are also crimes or in some sense unlawful. But the power to punish for contempt held by the House extends to punishing these types of acts too. They are not breaches of privilege, but just as breaches of privilege may be treated as contempts and punished, so may any other acts which “obstruct or impede [the House] in the performance of its functions, or are offences against its authority or dignity, such as disobedience to its legitimate commands or libels upon itself, its Members or its officers”.
These types of acts, along with breaches of privilege, may be treated as contempts and punished accordingly. “Contempt”, then, is a term which may embrace all breaches of privilege as well as a great many other types of conduct that the House considers to be worthy of censure.
Definition of contempt
There is no formal legal definition of what constitutes a contempt. Ultimately, the House is the judge of whether a set of circumstances constitutes a contempt. This potentially open-ended nature of contempt has led to criticism of the lack of certainty for those indulging in conduct that might be treated as objectionable by the House. An attempt has therefore been made by the House to give greater definition to the types of conduct that it may decide constitute contempts. To this end, in 1996 a general statement defining contempt was adopted by the House together with a number of other particular statements of the types of conduct that may fall within the overall definition. It was emphasised, however, that these particular statements were not intended to be exhaustive and that new situations could arise which the House may wish to treat as contempts.
Its right to do so is declared to remain unimpaired.
Using the contemporary edition of Erskine May as the model, the House has resolved that it may treat as a contempt—
… any act or omission which—
(a)obstructs or impedes the House in the performance of its functions, or
(b)obstructs or impedes any member or officer of the House in the discharge of the member’s or officer’s duty, or
(c)has a tendency, directly or indirectly, to produce such a result.
Although the statement refers expressly to the House, members and officers only, contempt can also embrace conduct involving other persons, such as witnesses and petitioners, insofar as it has deleterious effects on their participation in the parliamentary process and thus obstructs or impedes the House.
This general statement gives a context and background within which the House judges whether a contempt has occurred, but the specific examples of the types of conduct that may constitute a contempt stand in their own right as presumed obstructions or impediments to the House or its members. There is no two-stage test for contempt against both the specific examples and the general definition.
Exercise of the power
The House may declare particular conduct to be a contempt without any antecedent inquiry into it.
But, under the House’s rules, a deliberative process is usually followed before arriving at such a finding. Thus it is invariably the Speaker who decides, in the first instance, if a matter of complaint falls within the definition of contempt, as concerning a breach of a recognised privilege, or by falling within one of those areas of conduct identified by the House in its Standing Orders, or as otherwise being potentially justified for treatment as a contempt even though there is no definitional precedent of that type of conduct. But, reverting to the reason why parliamentary privilege exists in the first place, it has been emphasised that the power to punish for contempt is not a power to punish for its own sake. It may justifiably be utilised only in case of need – the need to vindicate the House’s position because of an obstruction or impediment to carrying out its constitutional functions. If there is no need to exercise the power (notwithstanding that facts that would otherwise support its exercise exist), the matter will not be pursued.
The fact that a matter may have been dealt with as a breach of order does not prevent that matter being punished as a contempt if the facts justify this. There is no “double jeopardy” rule in regard to breaches of order and punishment for contempt. (See Chapter 11.)
The view has also consistently been taken that the exercise of the power to punish, being vested in the House, is so significant a power and must be used with such deliberation that even the House cannot delegate it. It must be exercised by the House itself.
No committee, not even the Privileges Committee, has ever been delegated with the power to inflict punishment. But whatever action the House chooses to take, it must avoid acting in a disproportionate or unreasonable manner.
In Australia, a Senate committee has accepted that if a public servant refuses to answer a question or produce a document at the explicit direction of a Minister, the legislature’s remedy should lie against the Minister and that it would be unjust to impose a penalty on the public servant in such circumstances.
If there is a personal culpability on the part of a witness, the House will proceed against the witness in a personal capacity, but political culpability should be addressed at the political level. By making such distinctions a legislature applies proportionality and reason in its proceedings.
The House’s procedures for invoking the power to punish for contempt only after preliminary examination by the Speaker, inquiry by the Privileges Committee and endorsement by the House are designed to ensure that the power is used proportionately and reasonably. However, it is of the essence of parliamentary privilege that the House ultimately makes the judgment as to when to exercise its own privileges and there can be genuine differences of opinion as to whether an exercise in a particular case is justifiable.
The power to punish for contempt is a highly discretionary power and this discretion is much more commonly exercised to refrain from invoking it in circumstances where it may be justifiable, than the contrary.
Examples of contempt
The House, in its Standing Orders, has given examples of the types of conduct that it may decide to treat as contempt.
These examples do not form a code of contempts, though it would be exceptional for a case not falling within them to be treated as a contempt.
It is always possible that a situation will arise that is not explicitly contemplated in these examples but which the House will wish to treat as a contempt. Some miscellaneous examples of conduct already identified as potential contempts, even though not falling within the specified examples of contempt, are described below. But to constitute a contempt such other conduct must fall within the House’s overall definition of an act or omission obstructing or impeding the House or those executing the House’s business.
If conduct does not have this quality, it cannot be a contempt.
The types of contempt recognised by the House are discussed below under several broad headings—
•breach of privilege
•attendance of members
•records and reports
•disobedience to the rules or orders of the House
•interference or obstruction
•punishing parliamentary contributions
Breach of privilege
The House may punish as a contempt a breach of one of the privileges of the House.
Because the privileges of the House (freedom of speech, freedom from arrest, exemption from legal process etc.) are part of New Zealand law, they should be observed in applying the law. The House may wish to be represented in legal proceedings in order to ensure that a point of parliamentary privilege is not overlooked and a court, in determining what the law is, may not agree with the House’s view of the extent of its privileges.
But, given those inevitable tensions, a breach of privilege should be corrected or prevented in the same way as any other breach of law, by the parties concerned obeying the law, and, in the absence of them doing so, a court declaring and enforcing the law.
While the power to punish for contempt will not normally need to be invoked in such circumstances, it has been specifically affirmed by the House as remaining available to it,
and the House has, on occasion, reminded litigants that it remains an option, notwithstanding that the matter has also been dealt with in legal proceedings.
Attendance of members
The House’s Standing Orders imposing an obligation on members to attend the House and providing machinery for granting leave of absence were revoked in 1999.
However, it is still open to the House to resolve that a member who has absented himself or herself from parliamentary duties attend the House.
Failure to do so in response to such an order would be a contempt.
(See Chapter 3 for attendance of members generally.)
Disclosing financial interests
Members are under an obligation to disclose any financial interest that they have in the outcome of the House’s consideration of any business before participating in consideration of that business.
(See Chapter 3.) Failure to disclose such an interest is a contempt.
In all cases it is the Speaker who determines whether or not the member actually has a financial interest. The Speaker’s decision on this point is final
and is not subject to review or reversal by the Privileges Committee if an allegation that a contempt has been committed is referred to that committee.
Registration of pecuniary interests
Members are required to make initial and annual returns of pecuniary interests that they hold.
(See Chapter 3.) Knowingly failing to make a return by the due date specified for a return is a contempt.
It is also a contempt for any member knowingly to provide false or misleading information in a return of pecuniary interests.
While the Auditor-General has a review and inquiry role in respect of returns of members’ pecuniary interests and may inquire into whether a member has complied with his or her obligations to make a return,
a report from the Auditor-General is not an essential prerequisite to alleging a contempt in regard to the registration of pecuniary interests. However, it would be difficult to establish grounds for an allegation of contempt without invoking or attempting to invoke the Auditor-General’s involvement first.
Any member who receives or solicits a bribe to influence the member’s conduct in respect of proceedings in the House or at a committee commits a contempt.
Because of the serious nature of such allegations, members are not permitted to bring them up incidentally in debate but must raise them in the proper way as matters of privilege.
Also, given the seriousness of an allegation of bribery, the standard of proof needed to make it out is of a very high order. This is reflected in the Speaker’s consideration of any matter of privilege that is raised.
Such allegations are rare. In 1872 it was alleged that a member had been offered money to use his parliamentary position to advance the interests of a railway manufacturer. The allegation was not proven.
In 1912 an allegation was made that a member had been paid to support Sir Joseph Ward’s Government in a crucial vote in the House. Though this allegation was referred to a committee for investigation, no evidence to support it could be found and the matter was dropped.
In 2003 an allegation that a member had solicited funds for herself or for other persons close to her, such as her children, in return for her vote, was dismissed by the Speaker for lack of evidence.
It is a contempt to offer or attempt to offer a bribe to a member as an inducement to act in a certain way in the House or in a committee.
Though allegations of attempted bribery have been made on several occasions, there has never been a case where the payment and receipt of a bribe has been disciplined as a breach of privilege in New Zealand.
The Speaker has warned that a contempt would be committed if a member was offered payment to resign his or her seat.
To constitute a contempt, any bribe offered or received must relate to the member’s conduct in respect of business before the House or a committee or business to be submitted to the House or a committee.
But attempting to bribe a member in any capacity at all, whether in relation to parliamentary business or not, is also a crime.
Professional services connected with proceedings
It is a contempt for a member to accept fees for professional services rendered by the member in connection with proceedings in the House or at a committee.
This contempt will be committed whether or not the member concerned participates in parliamentary proceedings on the matter for which the member has received fees. Nor need there be any suggestion of corruption on the part of the member. The House is concerned to ensure that a member’s judgment may not be influenced by a professional interest (other than an interest as a member of Parliament) which may be in conflict with the member’s public duties. Whether there is a conflict or not, the House will not tolerate the appearance of one. For this reason members should be careful to keep their official and private capacities quite separate in their business dealings.
Where a newly elected member, who was also a practising solicitor, received payment for two local bills he had drafted (even though he had done the work before he entered Parliament), the House found him to have acted improperly and fined him a sum equal to his professional fees.
In another case, a comment (later withdrawn) that a member had been paid for things that a trust wished him to achieve in Parliament appeared to raise a serious question of contempt. Acceptance of a payment for parliamentary services to be rendered would be a potential contempt. However, on inquiry it was found that there was no evidence in that case that the payment in question was made, other than in recognition of past services to the trust rendered before the member was elected to Parliament.
Advocacy by members of matters in which they have been concerned professionally
Closely akin to receiving fees for professional services is advocacy in respect of business with which the member has been professionally concerned.
This type of contempt is based on a House of Commons resolution of 1858 that “it is contrary to the usage and derogatory to the dignity of this House that any of its members should bring forward, promote or advocate in this House any proceeding or measure in which he may have acted or been concerned for or in consideration of any pecuniary fee or reward”.
This is not taken to preclude members taking part in debates on matters (such as law suits) in which they have been professionally engaged.
A member was held to have acted contrary to its terms, even though the parliamentary action he took (presenting a petition) occurred five years after he had acted professionally in respect of the petition.
Records and reports
The custody of the journals and of all petitions and papers presented to the House and other records belonging to the House is vested in the Clerk of the House. Such documents may not be taken from the House or its offices without an order of the House or permission of the Speaker.
To remove, without authority, any papers or records belonging to the House is a contempt.
Similarly, to falsify or alter any such paper or record will be treated as a contempt.
It is also a contempt to publish a false or misleading account of proceedings before the House or a committee.
A newspaper headline misrepresenting the purport of evidence given before a select committee was considered to be of such a “startling and inaccurate nature” that it would tend to lower the esteem in which the House was held and, therefore, amounted to a contempt.
(It stated that a witness had made a statistical claim that four members of Parliament were probably homosexuals, although this did not accurately convey the essence of the witness’s evidence even as reported in the newspaper article.) In another case, a member complained that a newspaper article falsely accused him of attacking the integrity of the Speaker in a speech he had made in the House (which, if true, could in itself be treated as a contempt), but a motion to treat the article as a question of privilege was not proceeded with.
But merely stating one’s opinion of the effect of a committee’s decision cannot amount to a contempt under this head (though if it was a serious reflection on the character of members of the committee it might constitute a contempt for that reason).
Only a statement that purports to be a factual description of parliamentary proceedings falls within this example of contempt.
Disobedience to the rules or orders of the House
Any person who disobeys an order of the House directed to that person commits a contempt of the House.
Such an order would normally be a direction to attend the House or a committee to give evidence, or to produce to the House or a committee documents thought to be in that person’s possession. The power to treat disobedience to such an order as a contempt directly supports the House’s power of inquiry.
Orders to attend or produce documents
It is unusual for the House itself to make an order to attend or produce documents. If a committee has the power to send for persons, papers and records it may itself direct that a person attend before it to give evidence or that the person produce papers and records in that person’s possession that are relevant to a matter before it.
Only the Privileges Committee inherently has this power.
In respect of other committees the power must be specifically conferred on the committee by the House. The current practice is not to confer the power. In such cases the Speaker may order any person to attend or produce papers in lieu of an order of the committee.
(See Chapter 30.)
Any failure to comply with the order of a committee having power to send for persons, papers and records or with the order of the Speaker may be treated as a contempt.
Refusing to answer a question
A witness who refuses to answer a question as ordered to do so by the House or a committee may be held to have committed a contempt.
Witnesses have been held in contempt for refusing to answer a question in the House
and before a select committee.
Where a witness before a select committee does object to answering a question, the committee must, in private, consider the ground of objection and the importance of the question to its proceedings before deciding to insist on a reply.
Premature publication of select committee proceedings or report
It is a contempt to divulge the proceedings or report (including a draft report) of a select committee or a subcommittee contrary to the Standing Orders.
In general, the proceedings of a select committee or a subcommittee, other than during the hearing of evidence, are confidential until the committee reports to the House.
This rule is designed to promote the better functioning of the committee process and to affirm that the House is entitled to first advice of the conclusions of its committees.
Speakers have warned members and journalists from time to time about the need to respect this rule.
(See Chapters 23 and 24 for the rules on disclosure of select committee proceedings and reports.)
Strictly speaking, only members, officials, advisers and witnesses are in a position to divulge a committee’s proceedings, for it is only they who are privy to those proceedings. However, other persons or organisations who disseminate information which has been improperly disclosed to them are also considered to have committed contempt if they do so, and have been punished by the House accordingly.
In principle, all evidence heard by select committees is heard at public meetings and all written evidence received is made available to the public. Only if the committee takes special steps to protect evidence it has received from public disclosure can any question of contempt arise. Members have been found to have committed contempts by divulging select committee proceedings when they informed other persons who then gave the proceedings further publicity;
by writing a newspaper article disclosing evidence given at a select committee hearing which was not open to the public, under the mistaken impression that it was open;
by revealing what had taken place at a select committee meeting during the course of a television interview;
and by revealing the contents of a select committee report before it had been presented to the House.
Members are liable to be held in contempt if they disclose in debate in the House proceedings which they are not authorised to repeat outside the committee.
Members of the Parliamentary Press Gallery have been found to be in contempt in forwarding to their newspapers for publication confidential select committee evidence,
as have the newspapers which published such material
and a television channel in respect of a disclosure of select committee deliberations made during a programme.
In these cases, it was clear that the initial breach of confidence of the select committee proceedings was not made by these persons or parties but by some other person or persons, and in all of these cases the question of who initially divulged the proceedings to the journalists concerned has been raised, although it was not possible to establish who was to blame. It would have been possible in these circumstances for the House to hold the journalists or newspapers concerned guilty of contempt for refusing to divulge their sources, but, with one exception,
this has not been the way the House has proceeded. The House has invariably treated the publication of confidential select committee material by members or by other persons as a contempt in its own right, whether that material was obtained at first-hand or second-hand.
Interference and obstruction
The House regards as most serious any improper attempt to prevent, dissuade or inhibit anyone (member, officer, witness or petitioner) from participating fully in its proceedings. For the House to acquiesce in such conduct would be inimical to its effective functioning. It may be that an attempt to prevent participation may also be a crime (for example, a threat of assault), but it need not be, and in such cases the power of the House to punish for contempt may need to be invoked.
Members and officers
Interferences or obstructions of members or officers may be overt or covert: consisting of an assault, a threat or other form of intimidation or otherwise of an obstructing or molesting of a member or officer. In any case, if the action occurs in the discharge of the member’s or officer’s duties, it may be treated as a contempt.
One early complaint of a molestation of members was the sending of a spurious telegram to two Dunedin members which caused them to return south and needlessly absent themselves from the House.
The House took no action.
A ministerial adviser was found to have committed a contempt by molesting a member in the execution of his duty when he made an insulting remark to the member as the member was passing him in the Chamber on the way into a division lobby.
In another case a jocular remark directed by one member to another in the division lobby at which the latter took offence was held not to be a contempt.
The Speaker has warned members not to allow banter in the Chamber to get out of hand. If it tended towards verbal intimidation of members, it could ultimately constitute a contempt.
This is particularly the case when a vote is in progress.
Members of the Parliamentary Press Gallery have been reminded not to impede the free access of members to the Chamber, and a protocol regulating approaches to members on their way to the Chamber has been drawn up as a result of complaints.
A distinction must be drawn, however, between members or outside persons properly seeking to influence other members, and attempts to influence members’ actions which are intimidatory and may be held to be contempts. All members, when they speak in debate, try to influence their fellow members; so do all lobbyists when they are advancing their interests.
Such conduct is perfectly proper. There is no contempt in respect of attempts to influence members, even by bringing pressure to bear on them (such as to withdraw support from them at the next election), unless there is a threat to do something which is improper in itself or which is of such an extraordinary or exaggerated nature that it goes beyond an attempt to influence the member and becomes an attempt to intimidate. So where a Bible-in-schools league accused a member of a breach of faith in failing to give total support to Bible reading in schools, and announced that a letter of his explaining his stance would be read at every league meeting held in Canterbury and equal prominence given to his vote against a bill then before the House on Bible reading, this was held to be a contempt as attempting to intimidate the member in his parliamentary conduct.
If an article could have the effect of intimidating members in their parliamentary conduct, that is sufficient for a contempt to be made out. There does not need to have been any specific intention to threaten.
Instituting legal proceedings against members or officers seeking to restrain them from carrying out their official duties could also constitute a contempt on this ground, provided that such proceedings related to actions that members had taken or intended to take as part of parliamentary proceedings (for example, seeking an injunction to prevent a member raising a matter in the House).
But in respect of their actions outside the House members are in the same position as any other citizen.
Witnesses and others
A similar principle of protection from harassment operates in regard to witnesses. Any attempt to intimidate, prevent or hinder a witness from giving evidence in full to the House or a committee may be held to be a contempt.
Such intimidation or hindrance may take the same overt form as that relating to a member. It could also take a less overt form, such as the offering of a bribe to give false testimony, or the taking of legal action to prevent a witness from giving evidence at all or from producing all the evidence in the witness’s possession.
Petitioners and counsel appearing before the House or a select committee are also entitled to be protected by the House from molestation or obstruction while discharging their duties. Such molestation or obstruction may be treated as contempt.
Serving legal process in the precincts of Parliament
Persons come to Parliament buildings on sitting days to take part in or observe the transaction of parliamentary business. The House will hold the service or attempted service of legal process within the parliamentary precincts to be a contempt if this is done on any day on which the House or any committee of the House sits.
(The House or committee need not be actually sitting at the time service is effected; if such a sitting is held at any time on that day, a contempt is committed.) No contempt will be committed if the authority of the House or the Speaker to service of legal process is obtained beforehand. In practice, if a member is willing to accept service at Parliament House, the Speaker will give authority for process to be served. Service on a member in the Parliament buildings, even with the member’s agreement, will be a contempt if the Speaker’s authority is not obtained.
The parliamentary precincts are those areas which are legislatively held for parliamentary purposes.
They include, as well as the Parliament buildings (the main building, library and executive wing), the Bowen House building.
Service of a subpoena on a Minister in his office in the Beehive (executive wing) has been held to be a contempt, as it was effected on a sitting day. It is well established that law firms make arrangements with the Crown Law Office for effecting service on Ministers.
The limitation on serving or executing legal process within the precincts does not prevent police officers on duty within the Parliament buildings or grounds arresting persons who commit or are about to commit criminal offences, but a warrant for the arrest of a person should not be executed there without first obtaining the Speaker’s permission.
Deliberate misleading of the House
It is a contempt deliberately to attempt to mislead the House or a committee, whether by way of a statement, in evidence or in a petition.
This example of contempt, while always potential, was given explicit recognition in 1963 when, following a political cause célèbre (the Profumo affair), the House of Commons resolved that a former member who had made a personal statement to the House which he subsequently acknowledged to be untrue had committed a contempt of the House.
It has been submitted that there is an established constitutional convention that Ministers should always tell the truth to Parliament as far as this is possible without harming national security.
Whether this type of contempt embodies a convention or not, regarding lying to the House as a serious transgression of parliamentary etiquette (quite apart from any moral considerations) has been said to be the only way for Parliament to keep a check on the executive.
The contempt can be committed by anyone taking part in parliamentary proceedings. It consists of the conveying of information to the House or a committee that is inaccurate in a material particular and which the person conveying the information knew at the time was inaccurate or at least ought to have known was inaccurate.
Members deliberately misleading the House
Most commonly allegations that there has been an attempt deliberately to mislead the House involve statements made by members in the House – whether by way of personal explanation, in the course of debate or in replying to a question.
There are three elements to be established when it is alleged that a member is in contempt by reason of a statement that the member has made: the statement must, in fact, have been misleading; it must be established that the member making the statement knew at the time the statement was made that it was incorrect; and, in making it, the member must have intended to mislead the House. The standard of proof demanded is the civil standard of proof on a balance of probabilities but, given the serious nature of the allegations, proof of a very high order.
Recklessness in the use of words in debate, though reprehensible in itself, falls short of the standard required to hold a member responsible for deliberately misleading the House.
The misleading of the House must not be concerned with a matter of such little or no consequence that is too trivial to warrant the House dealing with it. A misunderstanding of this nature should be cleared up on a point of order.
For a misleading of the House to be deliberate, there must be something in the nature of the incorrect statement that indicates an intention to mislead. Remarks made off the cuff in debate can rarely fall into this category, nor can matters about which the member can be aware only in an official capacity. But where the member can be assumed to have personal knowledge of the stated facts and made the statement in a situation of some formality (for example, by way of personal explanation), a presumption of an intention to mislead the House will more readily arise.
As well as a deliberate misleading of the House arising from a remark in the House, it is conceivable that members could mislead the House by their actions: for example, from a deliberate misuse of a voting proxy, by delivering to the Clerk a totally different document from that which the member obtained leave of the House to table,
or by misrepresenting their authority to act on behalf of an absent member.
Witnesses and petitioners deliberately misleading
Witnesses giving evidence to committees are under an obligation to be truthful, whether they are under oath or not. As with members, for a contempt to arise there must be some strong indication that there is an intention to mislead the committee. This can arise out of the nature of the evidence, if it can be presumed to be within the personal knowledge of the witness, or by the circumstances of its delivery, for example, if an answer is deferred and delivered in writing on a later occasion when it can be presumed to be a more considered reply than an immediate response.
It is a contempt to present forged, falsified or fabricated documents to the House or a committee. The main form which such a contempt has taken in the United Kingdom is the affixing of forged or fictitious signatures to petitions. Any conspiracy to deceive the House or a committee in this regard will be held to be a contempt. There are no examples of these having occurred in New Zealand.
Correcting inaccurate information
It is not a contempt to make a genuine mistake and thereby give the House or a committee incorrect information. But it is incumbent on a member or any other person who has given misleading information on a parliamentary occasion to clear the matter up as soon as the error is appreciated. This applies even though the full correct information may not be available at the time that it is realised that an error has been made. Action to alert the House or committee should still be taken at that point with a full correction to follow later.
In the case of a misleading statement in the House, for example, in reply to an oral question, a personal explanation is the invariable form that the correction takes.
Misleading information given by way of a reply to a written question is corrected by the Minister delivering an amended reply to the Clerk. In the case of misleading information having been given to a committee, a written correction of the information should be given to the committee if a personal appearance before the committee cannot be arranged or if the committee agrees that it is not warranted.
Misconduct in the presence of the House or a committee
Any other misconduct in the presence of the House or a committee may be held to be a contempt.
Such misconduct may take the form of an interruption or disturbance to the proceedings of the House or of one of its committees. When a group of persons in the public gallery rose at the commencement of business and recited the prayer which the Speaker was about to read, they were held to have committed a contempt.
But if the Speaker has given permission for a celebratory contribution to be made from the galleries, there can be no question of contempt.
Members who conduct themselves in a disorderly manner may themselves be punished for contempt, notwithstanding that the Standing Orders contain specific procedures for disciplining members for breaches of order.
Punishing parliamentary contributions
The House may punish members or others on account of their contributions to the House’s deliberations, for example, if they attempt to mislead the House or a committee and in respect of breaches of order. But it is a contempt for anyone outside the House to punish anyone for what they have done in the course of parliamentary proceedings (it may also be a crime and an unlawful act to do so too).
Anyone who assaults, threatens or disadvantages a member on account of the member’s conduct in Parliament or any other person on account of evidence given by that person to the House or a committee commits a contempt.
For this contempt to be established it is essential that the action directed to the member or witness is on account of what they have done in parliamentary proceedings.
If it is not, it is not a matter for the House to be concerned with, whatever its legal effect outside the House.
On two occasions conduct complained of as a contempt has amounted to challenging a member to repeat outside the House, without protection of privilege, what the member had said in the House. The absolute protection against actions for defamation afforded members by the Bill of Rights 1688 is to enable them to speak out in the House in the public interest without fear of legal repercussions. The disadvantage which may befall an individual unjustly attacked in the House is held to be outweighed by the greater public good of permitting full, free and frank discussion in the House (though that person may apply to the Speaker to enter a response). Any misuse of the right of freedom of speech is for the House to deal with by its own internal disciplinary proceedings, and anything that tends to impair freedom of speech by unduly inhibiting members in its use is viewed seriously by the House. Challenges to repeat outside the House words spoken in debate, with the implication that what was said was untrue and a misuse of parliamentary privilege, fall into this category and can constitute a contempt. But each case must be considered on its own merits, and depends on the form of the challenge. In one case, the person who committed a contempt by challenging the member to repeat his statement outside the House explained his action at the bar of the House and apologised for his unwitting breach.
In another case, where a firm issuing the challenge published it in a letter and in the form of an advertisement accompanied by a strong attack on the member, breaches were held to have been committed, again unwittingly.
But in debate it is not automatically out of order, much less a breach of privilege, to invite a member to say outside the House what the member has just said in it. The cases involving a contempt are confined to the issuing of formal challenges to the freedom of speech enjoyed by members. Nevertheless, persistently challenging a member to repeat comments outside the House so as to imply that the member is not telling the truth may itself become disorderly.
A classic case of molestation of a member because of action the member had taken in the House occurred in 1872 when, because a certain person wished to make the member pay for the way the member had voted in a division, the person applied (as he was legally entitled to do) to purchase pastoral land held on licence by the member. The consequence of this application to purchase was that the land had to be offered for auction with no preference for the licensee, thus putting the member to inconvenience and potential expense. The House found the person to have committed a contempt by making the application to purchase, and induced him to withdraw it.
Two Prime Ministers have been the subject of complaint in the House in respect of remarks they made about the way members had voted. William Fox in 1869 wrote to a member who was a serving officer in the Army after the member had voted against the Government, saying that the member must either resign his seat or his command. A committee appointed to consider the matter found that no contempt had been committed and this was endorsed by the House, but the House went on to pass a resolution reiterating that every member of the House, without exception, was entitled to speak and vote in the House according to the member’s conscience.
In 1896 Richard Seddon made a veiled remark that he would not forget how two West Coast members had voted (they had voted against the Government on the previous day). The remark was complained of, but after some discussion the House dropped the subject.
Legal proceedings against witnesses
The House of Commons in 1818 passed a resolution declaring that witnesses were entitled to its protection in any legal proceedings brought against them in respect of testimony given by them to the House or a committee.
Legal proceedings in such circumstances also constitute a breach of privilege by infringing the freedom of speech guaranteed to persons taking part in proceedings in Parliament by the Bill of Rights 1688. Legislation also provides a legal indemnity for parliamentary witnesses who incriminate themselves while giving evidence on oath.
Speeches or writings which reflect on the character or conduct of the House, or of a member in the member’s capacity as a member of the House, may be treated as a contempt.
This is seen as a longstop means for the House to protect itself and its members against attacks which would lower it in public esteem and thus compromise its ability to function effectively. But it is not a means of inhibiting legitimate political debate. It has been emphasised that for any statement to constitute a contempt as a reflection it would have to allege corruption or impropriety of some description. Hard-hitting and contentious statements to which members might well object fall within the boundaries of acceptable political interchange.
It is also the case that as social mores change, the limits of acceptable comment change too. To accuse members of engaging in homosexual conduct when such conduct was not regarded as publicly acceptable (and indeed was still criminal) was regarded by the House at the time as a serious reflection on members. These days it is likely to be viewed very differently. All examples of comments reflecting on the House and members must be considered in this light; they are not indications that similar comments will contemporarily be regarded as contempts.
Reflections on the House
Speeches or writings which reflect on the character or proceedings of the House may be treated as contempts. The fact that the prohibition on publication of reports of its debates formerly applied by the House of Commons has never operated in New Zealand does not authorise reflections on members in their parliamentary capacity or on the propriety of the House’s procedures.
An article criticising the practice of pairing in the House was held to be a contempt as containing incorrect statements which falsely represented the proceedings of the House.
Reflections on members of the House in their capacity as members which do not identify the particular member or members who are the subject of attack may also be treated as contempts. Thus, where unnamed members of Parliament were accused of homosexuality and bisexuality, the person making the allegation (which she admitted was baseless) was found to have committed a contempt by tending to lessen the esteem in which the House was then held.
Reflections on members
Speeches and writings reflecting upon the character or conduct of individual members in their parliamentary roles have been punished as contempts. To establish that a contempt has been committed on this ground, however, the words complained of must reflect on the member in the discharge of his or her duties in respect of some proceeding in the House or in a committee, and not merely arise out of the member’s status as a public figure. It is not a contempt, for instance, if a member is attacked in respect of the discharge of his or her constituency duties, for although this is an integral part of being a member of Parliament, it is not an aspect of a member’s work that is directly concerned with proceedings in the House. Similarly, most functions performed by Ministers are not performed as members of Parliament (other than introducing a bill and answering a question, for example) and do not involve any question of parliamentary privilege.
A reflection on the Speaker in his capacity as chairperson of the Parliamentary Service Commission was found to relate to his capacity as a member of Parliament because this is an ex officio position held by the person who is Speaker.
To constitute a reflection on a member, it is not necessary that the words used against the member should amount to defamation as a matter of law.
Nor does the fact that a member may have good grounds for taking legal action for defamation preclude the member raising the reflection as a matter of privilege.
A member is not bound to seek redress in the House only. If the remarks are defamatory, the member may bring an action for damages in the courts instead of or in addition to pursuing the matter of privilege
(though the fact that a member has taken action in the courts will be relevant for the House in considering what penalty to impose
). Any member may raise a reflection on a member as a matter of privilege, even though the reflection is on another member.
Reflections on members in their parliamentary roles have been found where a member was accused of perjuring himself in an election petition case,
where a report which was submitted to the House accused a member of not having told the truth in some statements he had made to the House
and where a member was accused of being in the pocket of the tobacco industry.
The House also found that the Attorney-General had been libelled in his place in Parliament and a contempt was committed when a newspaper editorial accused him of bringing forward a bill to further his claims to certain property.
No contempt was found where two members were accused of hypocrisy over atomic bomb tests, because the reflections did not concern the conduct of the members as members but related to statements made by them outside the House.
Reflections on the Speaker and other presiding officers
Some of the most serious reflections on members that can be made concern those against the character of the Speaker or any other presiding officer – in particular, accusations that presiding officers have shown partiality in discharging their duties. Reporting on a question of privilege concerning a reflection on the Speaker, the Privileges Committee has said, “[The] Speaker is in a special position. Being the embodiment of Parliament, reflections upon [the Speaker’s] character or conduct directly attack the very institution of Parliament itself, and have been dealt with accordingly here and in England”. The committee refused to consider the reasons “why” the attack which was before it on that occasion had been made, confining itself to a consideration of “whether” such an attack had been made.
Reflections upon the Speaker have been censured on six occasions, five on which members attacked the character or conduct of the Speaker, and one on which newspapers did so: in 1967, when the Speaker was accused in a newspaper article of racial prejudice;
in 1975, when a member wrote a newspaper article criticising the matter in which the Speaker was presiding over the House;
in the following year, when a member in a radio interview advocated the replacement of the Speaker and accused the Speaker of weakness;
in 1982, when a member in a press statement criticised the Deputy Speaker’s failure to call him to speak in a debate and stated that it was difficult to believe that the Deputy Speaker was not affected by his politics in the line he had taken;
in 1987, when a member in a press statement made reflections on the way in which the Speaker was presiding over the House;
and in 1998, when a member accused the Speaker (as chairperson of the Parliamentary Service Commission) of selectively releasing personal information to disadvantage a political party.
The examples of contempts set out in the Standing Orders are not exhaustive. A number of other circumstances have arisen which it has been acknowledged could amount to a contempt even though these do not fit clearly into the listed examples. But in all cases the conduct could only amount to a contempt if it obstructed or impeded the House or members in the course of their functions and duties or if it had a tendency to do so.
Abuse of the right of petition
In the United Kingdom, the submitting of a petition containing false or scandalous allegations against a person, the inducing of signatures to a petition by false representations and threatening to submit a petition against a member have been treated as contempts. There are no examples of abuses connected with the right to petition occurring in New Zealand and being treated as a contempt by the House of Representatives.
Advice to the House
There is no convention that the House will be advised of important policy announcements by Ministers.
But the circumstances in which prior publication outside the House of a matter to be submitted to the House can constitute a contempt has been considered on a few occasions.
If a document or statement (such as a departmental report) intended for first promul-gation in the House is improperly obtained or intercepted and then published before its promulgation in the House, that may be regarded as a contempt.
But the Privileges Committee has recommended that the House not treat as a contempt the premature release of parliamentary papers presented to the House under statute.
Where a Minister prematurely released the contents of a message to the House from the Governor-General containing the text of a bill His Excellency was transmitting to the House for introduction, it was held that a breach of privilege (contempt) had been committed.
(This method of introducing bills has been abolished.) On the other hand, it is no contempt for the Government to disclose in advance of any formal parliamentary steps the terms of a bill about to be introduced into the House. This may be a matter for criticism from members of the House who learn of a bill from the news media in advance of its introduction, but it is not a matter of privilege.
But where formal parliamentary steps have been taken in respect of a bill, such as notification to the Clerk that a bill is about to be introduced (or notice of intention to introduce having been given in respect of a member’s or a local bill), to disclose or improperly abstract copies of such a bill after that time could be treated as a contempt.
Other examples of acts that may have a tendency to obstruct or impede the House in carrying out its functions are: unauthorised use of the name of the House or its crest on an unofficial publication,
the placing of material in the bill boxes reserved for members in Parliament House without the Speaker’s permission,
and improperly attempting to induce a member to resign from the House.
Legal significance of contempt
The power to punish for a contempt of the House is a power that inheres in the House. The power is exercisable only by the House itself. The courts do not punish for contempt of the House, nor do they enforce punishments meted out by the House. The fact that a contempt may have been or may be about to be committed does not give rise to a cause of action for which relief can be obtained from a court.
Contempt is an extra-judicial proceeding, though, as it is a power possessed by the House pursuant to law, its lawful exercise by the House will be recognised and, if need be, vindicated by the courts (for example, as a defence against legal liability that would otherwise arise).
But apart from the fact that the power to punish for contempt is of legal significance as justifying actions that might otherwise be unlawful, the power can be legally significant in some other ways.
The fact that compliance with a request for official information or personal information held about an individual, if satisfied, would constitute a contempt of the House is a good ground for refusing to provide that information.
One obvious circumstance in which these provisions reinforce the House’s privileges is in respect of confidential select committee information which is in the hands of a Minister or a government department and which otherwise might be obtainable as official information. Indeed, as far as official information is concerned, the legislation goes further than making the commission of a contempt a good ground for refusal to produce such information. It recognises that a positive obligation to avoid committing contempt can arise, by also providing that nothing in the legislation authorises or permits the making available of official information that would constitute a contempt of the House.
In reviewing decisions to withhold official information on the ground of contempt, the Ombudsmen and the Privacy Commissioner may be required to make judgments in accordance with the legislation as to whether a contempt would be committed were the information to be made available.
Similar provisions apply to protect the House against contempt arising in the course of meetings of local authorities and committees of district health boards. In each case it is a good ground for the exclusion of the public from their meetings that admission would be likely to result in disclosure of information which would constitute a contempt of the House.
Even apart from these explicit legislative significances, the fact that an otherwise lawful or unexceptionable decision or action may constitute a contempt can, it is submitted, itself imbue that decision or action with legal significance and may be a governing factor in whether the action can legally be taken or what decision should actually be made. Thus the Human Rights Commission has accepted advice that it should not embark upon an inquiry where to do so would inevitably lead it into committing a contempt of the House (such an inquiry may also have been unlawful on other grounds too).
It may also be the case that the fact that a contempt will result would be recognised by the courts as legally justifying other legal positions that are taken, for example, resisting inspection of documents in the course of legal proceedings where they are subject to parliamentary confidentiality, unless the permission of the House or the relevant committee is obtained first.
In such ways (an aspect of comity between the legislative and judicial branches of government) the fact that a contempt of the House has been or may be committed can be significant in determining legal outcomes, without contempt giving rise to a cause of action itself.