Memorandum by the Clerk of the House of
Representatives, New Zealand
A SUMMARY OF PARLIAMENTARY PRIVILEGE IN NEW
The question of legislating for parliamentary
privilege was last considered by a Standing Orders (Procedure)
Committee which reported in 1989. That committee rejected making
any attempt at codifying privilege or contempt and did not favour
comprehensive legislation. It did, however, recommend consolidating
into one statute a number of statutory privilege rules that are
presently contained in different statutes. It also recommended
some statutory amendments to the privilege rules (for example,
abolishing any power to expel and confirming a power to fine).
No such legislation has been passed.
In 1994 a private member's bill was introduced.
This bill proposed far-reaching measures. It would, amongst other
things, have: given persons outside the House a statutory right
of reply to accusations made against them; defined contempt and
made it a criminal offence; required members to obtain the Speaker's
approval before accusing persons outside the House of dishonesty
or criminal conduct; and obliged the House and its committees
to observe natural justice and due process procedures. The bill
is still before the House though the indications are that it will
not proceed. However, most of these issues have been addressed
in other ways.
The enactment of the New Zealand Bill of Rights
Act 1990 has given impetus to the adoption of procedures that
show greater concern for the interests of outside persons than
formerly (see natural justice/due process below). This was done
partly to forestall challenges to the House's exclusive jurisdiction
over its internal proceedings. While such challenges would be
resisted, the existence of the Bill of Rights which expressly
binds the legislature strengthens the argument that the court's
supervisory jurisdiction could extend to the House. It was therefore
felt that the House should give content in its rules to the procedural
rights endorsed by the Bill of Rights.
The New Zealand Bill of Rights Act 1990 applies
to the legislature. The Standing Orders Committee which reported
in 1995 accepted that this obliged the House in its procedures
to give content to the fundamental rights and freedoms confirmed
in law by the Act. At the same time it asserted that it was solely
for the House to decide how to apply those rights in individual
cases. This has led directly to a number of procedural changes
in the natural justice and due process areas. The House has chosen
to do this by changes to its Standing Orders rather than by legislation
as advocated in the 1994 private member's bill.
Contempt: The view that persons should
have reasonably clear notice of the types of conduct that might
lead to them being held in contempt was seen as compelling. Consequently,
the Standing Orders now contain a general definition of contempt
and a lists of the types of conduct that are likely to be regarded
as contempt of the House. These are closely related to "proceedings
in Parliament". Technically the list is not definitive, but
in practice it has become virtually so.
Responses: There has been some criticism
of members using the privilege of freedom of speech to criticise
persons outside the House who had no adequate right of reply.
A procedure has been introduced whereby a person who is named
or identified in the House and thereby claims to have suffered
damage to his or her reputation may have a response entered in
the parliamentary record. The procedure is modelled on that adopted
by the Australian Senate.
Bias: The requirement for members to
declare a pecuniary interest before participating in any parliamentary
business has been clarified. Members who have made serious charges
against named or identified individuals are debarred from serving
on any committee investigating that conduct. No register of members'
interests has been adopted (there is a register of Ministers'
interests administered by the Cabinet Office), although this has
been advocated for consideration in the next procedural review.
Process: Persons whose reputations are
attacked before a select committee must be informed of the attack
and given a full opportunity to respond to the attack. They must
also be given full access to any committee documents referring
to them in an adverse way. If a committee proposes to comment
unfavourably on the conduct of any person, that person must be
given the opportunity to comment at the draft report stage. These
procedures have had immediate effects on the way that committees
proceed to conduct their business, sometimes to the frustration
of members. They represent a major shift in favour of requiring
committees to follow fair procedures where reputation is in issue.
Other legal interests (for example, financial) are not accorded
Counsel: Any person appearing before
a select committee is entitled to be accompanied and assisted
by counsel. Previously representation by counsel was at the discretion
of the committee, but was common in the case of hearings before
the Privileges Committee.
ARTICLE IX OF
There has to date been no suggestion (parliamentary
or academic) that New Zealand should follow the United Kingdom's
example and permit a litigant to waive the application of Article
IX of the Bill of Rights. The decision in Prebble v Television
New Zealand has been regarded as leaving the law in a satisfactory
It is accepted, however, that there are statutory
exceptions to Article IX. Thus bribery of a member of Parliament
in the member's capacity as a member of Parliament is a crime
and false testimony on oath to the House or a committee constitutes
perjury. On prosecutions for these offences proceedings in Parliament
may be called in question in a way that would otherwise infringe
The meaning of this phrase has received little
parliamentary or judicial attention. In 1988 a Defamation Bill
was introduced containing a definition of proceedings in Parliament
for the purposes of defamation law. The definition followed drafts
recommended by House of Commons select committees. The definition
was omitted from the bill during its passage through the House.
Recently a Master of the High Court, on an interlocutory
matter, ruled that proceedings of a party caucus were proceedings
in Parliament within Article IX. This decision has been generally
regarded as wrong.
New Zealand has a statutory provision making
it an offence for a member to accept or obtain any bribe for the
member or for any other person "in respect of any act done
or omitted, or to be done or omitted" by the member in the
member's capacity as a member of Parliament. The offence carries
up to seven years' imprisonment. There is a similar provision
in respect of a Minister relating to acts done or omitted in the
capacity of a Minister. This carries up to 14 years' imprisonment.
(Sections 102 and 103, Crimes Act 1961.)
These provisions were introduced in 1961 when
the criminal code was last completely revised. (There are no common
law offences in New Zealand.) Their drafting in 1961 was influenced
by provisions of the Canadian Criminal Code. They replaced earlier
bribery offences of a general nature that did not specifically
mention Ministers or members of Parliament.
The offence in respect of bribery of members
appears to apply to conduct that would constitute a proceeding
in Parliament as well as conduct in the capacity of a member (for
example, in respect to a constituent) that would fall outside
that phrase. This was the view taken by the Speaker in a ruling
given in 1992.
There have been no prosecutions for such an
In 1989 a committee recommended that the power
to expel (if it exists as a matter of law, which is not certain)
be abolished and the power to fine be affirmed. No action has
been taken on these recommendations.
New Zealand has had freedom of information legislation
since 1982 (the Official Information Act). The Act does not apply
to parliamentary information or to information held by the parliamentary
departments. Recently, academic comment has advocated an extension
of the Act to information held by the legislature and its agencies.
Parliament has not yet addressed this issue.
Under the House's rules select committee evidence
must be heard in public unless all members of the committee agree
to sit in camera. When a committee presents its report
all of its evidence and other documentation is made publicly available
unless the committee (unanimously) or the House decides to keep
it secret. This is not unknown but occurs only infrequently. In
practice, the exemption from the freedom of information legislation
has not been significant.
12 December 1997
Note: Commonwealth Parliaments received the
original invitation to submit evidence dated 25 November 1998.
After several meetings the Joint Committee decided that it needed
more detailed information about aspects of parliamentary privilege
in Commonwealth Parliaments than had been requested in the original
invitation. Letters were therefore sent to Commonwealth Parliaments
in February 1998. The following replies were received. The replies
have been printed in total, but not all the accompanying supporting
material which is already in print, has been reproduced below.
All the material submitted to the Joint Committee is available
for consultation in the House of Lords Record Office.