Parliamentary Privilege First Report

Memorandum by the Clerk of the House of Representatives, New Zealand



  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 mandatory protection.

  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.


  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 state.

  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 Article IX.


  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 offence.


  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.

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Prepared 9 April 1999