The concept of parliamentary privilege is often misunderstood to mean that politicians acquire personal privileges simply by being elected to Parliament. In fact parliamentary privilege applies to Parliament as a whole rather than the individual members. It enables the House of Representatives, as the democratically elected House of the people, to go about its business, such as law-making, without interference from outside. Over several centuries of the development of Westminster-style democracy in Britain, this has involved certain exemptions from general law. These were considered essential for parliamentary supremacy over the Crown. They were hard won in times when elected representatives might suffer severe consequences for what they said in the House or be prevented from attending the House.
The removal of those privileges, even today, could result in Parliament being prevented from carrying out its functions on behalf of those it represents without impediment.
LEGAL BASIS OF PARLIAMENTARY PRIVILEGE
The Parliamentary Privilege Act 2014 (section 8) provides the legal basis for parliamentary privilege. It deems the privileges held by the British House of Commons in 1865 to be applicable in New Zealand. These privileges include Article 9 of the Bill of Rights 1688, which provides for freedom of speech in Parliament. The Bill of Rights 1688 also forms part of New Zealand law by virtue of the Imperial Laws Application Act 1988.
Some of the immunities and powers collectively known as parliamentary privilege are set out below.
Absolute freedom of speech in Parliament
In New Zealand’s democracy there are limits on freedom of speech, such as those in the Human Rights Act 1993 and the Defamation Act 1992. However, words spoken as part of parliamentary proceedings are subject to absolute freedom of speech. Article 9 of the Bill of Rights 1688 provides “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.” This protects not only members of Parliament, but also witnesses and advisers at select committee meetings, from being sued for defamation or otherwise being held legally liable for what they say in a parliamentary proceeding. The Parliamentary Privilege Act 2014 (section 10) defines what “proceedings in Parliament” are, that is “all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of the House or of a committee.”
However, if the words said in parliamentary proceedings (the House and its committees) are repeated elsewhere, the protection of parliamentary privilege does not apply. Procedures are in place for both the House and select committees to ensure natural justice (fairness of process) is observed. These allow right of reply to those who consider their reputation has been damaged by statements made under privilege. Arguments continue about whether there are enough protections against unfair allegations. This must be weighed against the need for the House and committees to be free to hear of any matters that may affect the business under consideration.
Elected representatives make important decisions and they are better able to do this where information and opinions can be disclosed without fear of legal consequences.
The privilege of free speech in Parliament carries an obligation to use it responsibly. The House has the ability to punish for contempt; an example of contempt would be to mislead the House or a committee deliberately (see below).
Matters before courts
Avoiding comment on matters before the courts is an important principle of our constitutional system, and it is one respected by Parliament. The sub judice rule recognises the distinct relationship between Parliament and the courts, and the danger of prejudice to a fair trial. Members wishing to refer in the House to a matter that is being considered, or suppressed, by a court, must first write to the Speaker, who will then exercise his or her discretion to decide whether the member should be allowed to refer to the matter.
The sub judice rule does not, however, prevent the House and its committees from dealing with legislation. The fact that a matter is before a court does not stop Parliament passing legislation dealing with the matter.
Court proceedings not to hinder parliamentary proceedings
To enable the House to go about its business effectively, its members must be free to attend its meetings without being detained by court processes. These include civil arrest, summonses to appear as a witness or juror, and serving papers of a civil process upon members or officers of the House.
These immunities do not protect members of Parliament from being arrested or charged with a criminal offence. Neither do they place members above the law. Legal process should be served outside the parliamentary precincts, but if it is not possible to do so, members can be served with court papers within the precincts so long as the permission of the House or Speaker is obtained first. Members would be expected to appear in court as witnesses, if required, when the House is not sitting.
Attendance of witnesses and the production of records
The House has extensive powers to call for persons, papers, and records (evidence). Select committees need to request a summons from the Speaker to do so. The Privileges Committee, which is a specialist committee of the House, has the power to order that a summons be issued. Committees would be unable to carry out their functions effectively if attendance to give evidence was optional. Likewise, the House could not be expected to pass quality legislation if full disclosure of information and compulsory attendance of witnesses could not be enforced. The power is rarely used because people invited to appear or to produce documents generally comply or negotiate an agreed process to provide a committee with the necessary information.
Because the power is a coercive power the House has built in some safeguards on its use. When a committee requests a summons the Speaker is required to first consider whether the evidence is necessary, and whether the committee has taken reasonable steps to obtain the evidence without recourse to a summons.
Power to punish for contempt
Sometimes people use the term ‘breach of privilege’ when they actually mean ‘contempt of the House’. The link between contempt and parliamentary privilege is that one of the privileges of the House is the power to punish for contempt. An example of contempt might be the failure of a person to attend, having received a summons (see above). Others might be the deliberate misleading of the House or a committee, or obstructing a witness appearing before a committee. These are not breaches of privilege because they do not breach any particular privilege established in law. Nevertheless, they impede and obstruct the House in carrying out its functions and can be punished accordingly, in much the same way as contempt of court.
While the House has the ability to imprison, this has not been exercised in New Zealand. Punishments today can be expected to take account of the New Zealand Bill of Rights Act 1990 and are more likely to involve a censure, a requirement to apologise, or perhaps restrictions on access to the parliamentary precincts. In very serious cases, a fine of up to $1000 may be imposed. In the case of members of Parliament being found in contempt, punishment could be as severe as suspension.
MATTERS OF PRIVILEGE REFERRED TO THE PRIVILEGES COMMITTEE
A matter of privilege, including an alleged contempt, is raised by a member of Parliament making a complaint to the Speaker at the earliest opportunity.
The Speaker makes an assessment of whether a question of privilege is involved. If so, the Speaker rules on the matter in the House and it is referred to the Privileges Committee, which is a select committee of the House. That committee investigates the matter and makes a recommendation to the House, which then decides whether to adopt the recommendation.
- Interim Report of the Privileges Committee, Question of privilege on the action taken by TVNZ in relation to its chief executive, following evidence he gave to the Finance and Expenditure Committee, April 2006, AJHR, I.17A
- Joseph, Philip A, Constitutional and Administrative Law in New Zealand, 4th edition, Thomson Reuters, Wellington, 2014
- May, Erskine, Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 24th edition, Lexis Nexis Butterworths, London, 2011
- McGee, David, Parliamentary Practice in New Zealand, 3rd edition, Dunmore Publishing, Wellington, 2005
- Parliamentary Privilege Act 2014
- Report of the Privileges Committee, Question of privilege concerning the defamation action Attorney General and Gow v Leigh, June 2013, AJHR, I.17A
- Report of the Privileges Committee, Question of privilege relating to the exercise of the privilege of freedom of speech by members in the context of court orders, May 2009, AJHR, I.17A
- Standing Orders of the House of Representatives, 2014