CHAPTER 45 Types of Privilege - New Zealand Parliament · CHAPTER 45 Types of Privilege There is no definitive list of the types of privileges enjoyed by the House. They are a collection

CHAPTER 45

Types of Privilege

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 committees, its members and other participants in the parliamentary process.

FREEDOM OF SPEECHEveryone in New Zealand enjoys a general right of freedom of speech guaranteed by law.1 Although freedom of speech is now regarded as a universal or human right, it first appeared as a specific privilege of the members of the House of Commons, rather than of the public generally.2 “Freedom of speech” in a parliamentary context, while including elements of a right of free speech, is both older and more amorphous. Indeed, freedom of speech in parliamentary proceedings is not a single, discrete privilege of the House at all; 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 one of three privileges expressly recited in the Speaker’s claim to all of the privileges of the House submitted to the Governor-General at the beginning of each Parliament.3 It has been suggested that the first Speaker to lay claim to this freedom on behalf of the House was Sir Thomas More in 1523.4 However, the principle of Parliament’s freedom of speech in debate precedes this date and it is thought that More’s claim was limited to asking the Crown to give a “favourable interpretation” to speeches made in the House. A petition specifically seeking recognition of freedom of speech in general was not addressed to the King until 1541.5 Nevertheless, More’s claim to a favourable interpretation from the Crown was tantamount to the House claiming freedom of speech in general, as infringements of freedom of speech were most likely to emanate from the Crown. Since Sir Thomas More’s time, an express claim to freedom of speech has been made by each Speaker at the commencement of a Parliament, almost without exception. Making the claim was symbolic only,

1 New Zealand Bill of Rights Act 1990, s 14. 2 Geoffrey Marshall “Press Freedom and Free Speech Theory” [1992] PL 40 at 41. 3 SO 23. Freedom of speech “in debate” (as mentioned in SO 23) is just one (important) example of

freedom of speech in proceedings in Parliament. 4 Richard Marius Thomas More—A Biography (Harvard University Press, Cambridge, Massachusetts,

1984) at 206–207. 5 Geoffrey Marshall “Press Freedom and Free Speech Theory” [1992] Public Law 40.

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723Types of Privilege

but its repeated assertion contributed to the growing acceptance that speech in Parliament ought to be free of legal repercussions. By 1667 this principle was firmly established, although not always respected.6 When the New Zealand Parliament was established almost two centuries later, the principle was understood to apply to all of the proceedings of the two Houses. The practice of expressly claiming the privilege at the beginning of each Parliament was established in 1861.

The privileges associated with the House’s freedom of speech are part of a set of rules reflecting the respective constitutional functions of Parliament and the courts. Their primary aim is to prevent any conflict arising between the respective jurisdictions.7 Thus, the courts will uphold and refuse to question the House’s control of its own internal proceedings or the exercise of its power to punish for contempt, and will not visit legal liability on members and others who contribute to parliamentary debates and proceedings. These contributions may be legally relevant and admissible in legal proceedings but they cannot be the basis for or subject of legal proceedings on their own. In these ways, a principle of freedom of speech in Parliament is maintained.

Parliament’s freedom of speech is an important expression of legislative independence. Without it, the House’s ability to facilitate the Government’s legislative programme and scrutinise its executive actions would be subject to legal challenge and control in the courts. The fundamental principle of freedom of speech in debate ensures that these functions are not justiciable.

ExEMPTION FROM LIABILITY FOR PARLIAMENTARY ACTIONSGeneralThere can be no legal liability for words spoken or actions taken as part of the proceedings of the House, except insofar as this protection may have been statutorily abrogated.8 The legal basis of this exemption from liability is article 9 of the Bill of Rights 1688, although the privilege of freedom of speech in debate predates that enactment. The Bill of Rights is but a part of the wider compact between the legislative and judicial branches of government that secures mutual respect of their respective spheres of action.9 Article 9 of the Bill of Rights 1688 is part of the laws of New Zealand,10 and its effect is reaffirmed and aspects of its operation are clarified in the Parliamentary Privilege Act 2014.11

The protection article 9 offers extends beyond exempting legal liability for things said or done in debates or committees of the House. It entails also exemption from having to account “in any court or place out of Parliament”12 for one’s parliamentary words or actions, even where no personal liability is in question. This latter aspect of the privilege was established by the Bill of Rights 1688 and the political settlement out of which that legislation arose. The prohibition is against impeaching or questioning proceedings in Parliament (questioning arguably has a broader scope than impeaching), although this injunction has not always been respected.13

6 Henry Hallam Constitutional History of England (Garland Publishing Inc, New York, 1978) vol 1 at 423–425 (citing Eliot’s case).

7 Hamilton v Al Fayed [1999] 1 WLR 1569 (CA) at 1587–1588 per Lord Woolf MR; Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816 at [55] per Lord Nicholls.

8 For statutory abrogation, see the Crimes Act 1961, ss 102 (corruption and bribery of Minister of the Crown), 103 (corruption and bribery of member of Parliament), and 108 and 109 (perjury committed in a proceeding of the House or one of its committees).

9 (1988) 489 NZPD 4322 Burke; (1999) 576 NZPD at 16210 Kidd. For judicial acknowledgement, see Prebble v Television New Zealand [1994] 3 NZLR 1 (PC) at 7; R v Parliamentary Commissioner for Standards, ex parte Al Fayed [1998] 1 WLR 669 (CA). See also SO 115(3)(b) (matters subject to judicial decision).

10 Imperial Laws Application Act 1988, s 3 and sch 1. 11 Parliamentary Privilege Act 2014, pt 2, sub-pt 2. 12 Bill of Rights 1688 (Eng), art 9. 13 See: R v Murphy (1986) 5 NSWLR 18 (SC).


Parliamentary Practice in New Zealand724

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”. Several immunities flow from this famous statement of parliamentary privilege, which apply to the House, its members and other participants in parliamentary proceedings. The Privy Council described the basic concept underlying article 9 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”.14 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.15 Article 9 is one of a collection of legal principles that give effect to the constitutional relationship between the legislature and the judiciary.

The protection article 9 confers is not for the personal benefit of members of Parliament or of any individual; it is conferred to promote the autonomous operation of the parliamentary system. Freedom of speech may protect members and others from liability that might otherwise arise, but equally it may prejudice a member in an individual capacity. For example, a member was held to be unable to give evidence of parliamentary proceedings to support his legal action because to have done so would have been in breach of article 9.16

House’s disciplinary control and electors’ democratic controlParliament’s freedom of speech under article 9 is a protection against incurring legal liability and having to account to bodies outside the House. Freedom of speech is not an exemption from liability to account to the House itself. Nor, in a political sense, is it a freedom from having to account to the electors for one’s parliamentary actions. The legal immunity does not prevent the legislature proceeding against its own members (or anyone else) for a breach of privilege or contempt.17 Furthermore, parliamentary privilege cannot inhibit the fundamental democratic right of free election to Parliament. A political party does not breach privilege by withdrawing electoral support from a sitting member on account of that member’s actions, whether they occurred within or outside Parliament.18

Parliament’s privilege of freedom of speech is not a licence to free members from all discipline and restraint, whether in their capacity as politicians or as members of the House. Rather, it is an assertion that the jurisdiction to discipline and restrain belongs exclusively to the House during the period of the member’s service as a member of Parliament. At the end of that service, the right to sanction belongs in a political sense to the electors, when members must seek re-election.

The House exercises restraint over its members prospectively by the general rules it adopts, and retrospectively by the penalties it imposes for breach of the rules. The House’s rules of debate impose constraints on what members may say and how they must conduct themselves: for example, their speeches must be relevant, they must not refer to matters awaiting adjudication in court,19 and they must not use “unparliamentary” language. These are general, internally imposed restraints on members’ freedom of speech. They are imposed and enforced, not by the courts, but by the House itself. Article 9 does not affect the power of the House to discipline its members but is directed at repelling outside interference in its proceedings. Similar restraints under general rules apply to select committee proceedings and to other persons—officers, witnesses and petitioners—participating in parliamentary proceedings.

14 Prebble v Television New Zealand [1994] 3 NZLR 1 (PC) at 8. 15 Prebble v Television New Zealand [1994] 3 NZLR 1 (PC) at 8. 16 Rost v Edwards [1990] 2 QB 460. 17 Narasimha Rao v State [1998] AIR (SC) 2120. 18 Peters v Collinge [1993] 2 NZLR 554 (HC). 19 SO 115.



Any infringement of these general rules, and any other conduct that the House resolves obstructs or impedes the performance of its functions, may be punished by the House as a contempt.20 It is no answer that such conduct occurs in the course of parliamentary proceedings and is exempt from legal liability. The exemption from accounting to a court is not an exemption from accounting to the House, which exercises an exclusive jurisdiction to discipline and sanction affronts to its dignity and authority.

Criminal acts committed within ParliamentThe principle of exemption from legal liability for parliamentary conduct does not exempt all criminal acts from prosecution, merely because they are committed in a parliamentary environment. A distinction is drawn between “ordinary” crimes (such as murder, theft or rape), and crimes committed in exercise of members’ freedom of speech in debate.21 “Speech” crimes might include using threatening or offensive language,22 inciting mutiny23 or ridiculing people on racial grounds.24 Such crimes committed in debate or in evidence to a select committee will be exempt from criminal prosecution in the courts, but ordinary crimes committed in the House or a committee are not part of their proceedings and may be dealt with under the criminal law.25

No exemption from the criminal law may be claimed by people who protest in the galleries of the Chamber or at select committee meetings. Such people are not participating in parliamentary proceedings and are not entitled to the protection of parliamentary privilege. Article 9 is not directed at permitting strangers to the House to enter the Chamber and disrupt its proceedings, or at allowing the exercise of collective or individual rights of free speech.26 People have been prosecuted for trespass and disorderly conduct in such circumstances,27 although such incidents may also be dealt with by the House as contempts. Parliament is able to legislate to create an offence for a matter that might equally be adjudged a breach of privilege or a contempt.28

Freedom of debateArticle 9 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”.29 “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.30 Freedom to debate any subject was formerly asserted at the commencement of a new Parliament in New Zealand by the pro forma first reading of a dummy bill (called the Expiring Laws Continuance Bill), which was purposely not mentioned in the Speech from the Throne. This practice symbolised the right of the House to discuss any business it wished, not just business that the Crown invited it to transact. The practice of giving a pro forma

20 SO 409. 21 R v Chaytor [2010] UKSC 52, [2011] 1 AC 684 at [113]. Chaytor is the leading decision on crimes

committed within Parliament. See Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers Ltd, Wellington, 2014) at [13.6.4].

22 Summary Offences Act 1981, s 4. 23 Crimes Act 1961, s 77. 24 Human Rights Act 1993, s 63 (racial harassment). 25 Malcolm Jack (ed) Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament

(24th ed, LexisNexis, London, 2011) at 241. 26 Highway v Tudor-Stack [2006] NTCA 4. 27 See, for example: (25 October 2007) 643 NZPD 12721; (6 November 2007) 643 NZPD 12761; “Private

lives to be out of order” The Press (7 November 2007); “Mallard pleads guilty to fighting charge” The Dominion Post (18 December 2007).

28 Highway v Tudor-Stack [2006] NTCA 4. 29 Bill of Rights 1688, art 9 (emphasis added). 30 Pepper (Her Majesty’s Inspector of Taxes) v Hart [1993] AC 593 (HL) at 638 per Lord Browne-

Wilkinson.



first reading to a dummy bill was discontinued in 1985, although it is still followed in the United Kingdom.31 The priority the House’s rules give to the debate on the Address in Reply is another assertion of the House’s right to decide what it wishes to debate. This priority obviates the need for the House to turn its attention immediately to the Government’s legislative programme outlined in the Speech from the Throne. In an Australian state, this practice led to a challenge to the validity of legislation that was passed before the House had finished the Address in Reply debate. However, such a challenge would itself appear to be in contradiction of the House’s privilege to debate what matter it will, when it will.32 In New Zealand, priority is still given to the debate on the Address in Reply,33 although it is liable to be adjourned to permit legislation to proceed. Freedom of debate—in the sense of the House’s ability to discuss what it wishes when it wishes—is a manifestation of the House’s exclusive control over its own proceedings.

Proceedings in ParliamentArticle 9 protects “proceedings in Parliament” from external review. “Freedom of debate” in article 9 identifies the most common and obvious occasion on which the privilege of freedom of speech is exercised. The additional phrase “proceedings in Parliament” in article 9 extends the scope of the protection to cover 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” (although not obviously so), but the examination of witnesses would not have been. The House would also have been aware that the Court of King’s Bench had recently held that no legal liability applied to the circulation of petitions among members in the ordinary course of transacting parliamentary business.34 Parliamentary business was thus coming to embrace a number of activities and communications that were not transacted on the floor of the House.

Article 9 accords these other modes of transacting parliamentary business the same protection from legal liability or examination as that which applies to parliamentary debates. Today, a much higher proportion of parliamentary business is “non-debate”, transacted off the floor of the House, than was the case in the House of Commons in the 17th century, or even in the House of Representatives itself until recent times. The phrase “proceedings in Parliament” in article 9 is therefore critically important to the effectiveness of the privilege, given the modes of operation of the House today.

Meaning of proceedings in ParliamentThe meaning of the term “proceedings in Parliament” (as used in article 9) has never been legally defined in the United Kingdom. In Australia, a statutory definition of the term has provided a detailed official exposition of what proceedings in Parliament might cover. However, even this definition is not intended to be exhaustive.35 Until the decision of Attorney-General v Leigh,36 New Zealand and English courts had accepted the Australian definition as representing a correct statement of the law.37 Two key stated purposes of the New Zealand

31 Malcolm Jack (ed) Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (24th ed, LexisNexis, London, 2011) at 159. See also: (27 May 2015) 596 GBPD HC 30; and Mark Sandford “Traditions and customs of the House: House of Commons Background Paper” (2 August 2013) at 16–18.

32 Namoi Shire Council v Attorney-General (New South Wales) [1980] 2 NSWLR 639 (SC) (the objection to the legislation on this ground was dismissed).

33 SO 353. 34 Lake v King (1667) 1 Saund 131 (KB). 35 Parliamentary Privileges Act 1987 (Cth), s 16(2). 36 Attorney-General v Leigh [2011] NZSC 106, [2012] 2 NZLR 713. 37 Prebble v Television New Zealand Ltd [1994] 3 NZLR 1 (PC); Hamilton v Al Fayed [2001]

1 AC 395 (HL).



Parliamentary Privilege Act 2014 are to define “proceedings in Parliament” for the purposes of article 9 and to alter the law as expounded in Attorney-General v Leigh.38 The definition section is based on the Australian legislation, and may be taken to indicate the types of transactions that fall within the phrase “proceedings in Parliament”. The definition of “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 the House or of a committee”.39 The Act then gives to the phrase an extended definition: “[W]ords spoken or acts done for purposes of or incidental to the transacting of reasonably apprehended business of the House or of a committee must be taken to fall within [this definition]”.40

“Proceedings in Parliament” include:41

(a) the giving of evidence (and the evidence so given) before the House or a committee:

(b) the presentation or submission of a document to the House or a committee:

(c) the preparation of a document for purposes of or incidental to the transacting of any business of the House or of a committee:

(d) the formulation, making, or communication of a document, under the House’s or a committee’s authority (and the document so formulated, made, or communicated):

(e) any proceedings deemed by an enactment to be (or a thing said or produced, or information supplied, in an inquiry or proceedings, if an enactment provides the thing or information is privileged in the same way as if the inquiry or proceedings were) for those purposes proceedings in Parliament.

Actions of the House, committees, members, officers, witnesses and petitioners that transact parliamentary business, or are directly and formally connected with the transaction of such business, are proceedings in Parliament, and are subject to the privilege of freedom of speech. This encompasses all actions taken by the House itself, whether legislative or non-legislative, although that does not mean that such actions may authorise otherwise unlawful activities to be perpetrated outside the House.42 An action taken with the House’s authority may be lawful when that same action taken without the House’s authority would be unlawful.43 The courts may not enforce or otherwise recognise actions taken with the House’s authority, as the House itself cannot be impeached or questioned for having taken them.44

Committee proceedingsCommittee proceedings are as equally “parliamentary” as proceedings on the floor of the House.45 Such proceedings cover the giving of evidence orally or in writing to a committee, and the tendering of advice and preparation of draft reports generated during a committee’s work (provided that such reports are communicated in the course of the committee’s proceedings).46 Presenting a committee’s report to the House is a parliamentary proceeding,47 although communicating such documents

38 Parliamentary Privilege Act 2014, ss 3(2)(c) and 10. 39 Parliamentary Privilege Act 2014, s 10(1). 40 Parliamentary Privilege Act 2014, s 10(3). 41 Parliamentary Privilege Act 2014, s 10(2). 42 See, for example: Stockdale v Hansard (1839) 9 A & E 1, 112 ER 1112 (QB). 43 See, for example: Parliamentary Privilege Act 2014, s 17 (communicating proceedings, etc.). 44 Hamilton v Al Fayed [1999] 1 WLR 1569 (CA). 45 Attorney General (Canada) v MacPhee 2003 PESCTD 6; Office of Government Commerce v

Information Commissioner (Attorney-General intervening) [2008] EWHC 737 (Admin), [2010] QB 98; Makudi v Baron Triesman of Tottenham [2014] EWCA Civ 179, [2014] QB 839; Parliamentary Privilege Act 2014, ss 5 and 10.

46 Flegg v Hallet [2014] QSC 278, at [10] (a document tabled at or submitted to a committee protected). 47 New South Wales Branch of the Australian Medical Association v Minister for Health and Community

Services (1992) 26 NSWLR 114.



outside the committee is usually not. Any press conferences by the members following the report’s presentation are not formal proceedings of the committee, and are unlikely to be protected.48

The Intelligence and Security Committee is a committee established by legislation to perform the functions ordinarily discharged by select committees.49 It is not a committee established by the House but its proceedings are declared to be proceedings in Parliament for the purposes of article 9.50

Parliamentary documentationMembers 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 allowed them to be executed or performed administratively outside the Chamber. They nevertheless retain their essential quality as proceedings in Parliament.51 Parliamentary questions for oral answer by Ministers in question time are proceedings in Parliament, as are the answers given to such questions in the House.52 Briefing notes and materials prepared by officials to assist Ministers in answering parliamentary questions are likewise proceedings in Parliament and protected by parliamentary privilege.53 Such notes and materials are prepared for the purposes of or are incidental to the transacting of parliamentary business.54 Not surprisingly, the introduction of bills has been held to be a proceeding in Parliament.55

Similarly, the Attorney-General’s examining and reporting on bills for conflict with the rights and freedoms confirmed by the New Zealand Bill of Rights Act 1990 is a proceeding in Parliament. This function is an internal legislative process of the House and exempt from judicial review.56 Where matters are disputed, evidence may need to be provided or submissions made to satisfy a court that the disputed matter falls within the statutory definition of proceedings in Parliament.

Communications involving members of ParliamentNot all actions of a member of Parliament constitute proceedings in Parliament. Proceedings in Parliament cover a much narrower range of activities than are performed by members generally. Even actions performed by a member in his

48 Malcolm Jack (ed) Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (24th ed, LexisNexis, London, 2011) at 836; Re Ouellet (No 1) (1976) 67 DLR (3d) 73 (CS); Privileges Committee Question of privilege referred on 14 February 2001 relating to Stonhill v Mackey (11 December 2001) [1999–2002] AJHR I.17B.

49 Intelligence and Security Committee Act 1996, ss 5–6. 50 Intelligence and Security Committee Act 1996, s 16; Parliamentary Privilege Act 2014, s 10. 51 Parliamentary Privilege Act 2014, ss 5 and 10. 52 Office of Government Commerce v Information Commissioner (Attorney-General intervening) [2008]

EWHC 737 (Admin), [2010] QB 98 at [47]; Janssen-Ortho Inc v Amgen Canada Inc [2005] 256 DCR (4th) 407 (ONCA) at [78].

53 Re Stiller and Department of Transport [2009] QICmr 8; Re Saffioti and Minister for Transport; Housing [2012] WAICmr 10. But see: Attorney-General v Leigh [2011] NZSC 106, [2012] 2 NZLR 713 (an official’s oral and written briefing on a parliamentary question held to be protected, not by the absolute protection of parliamentary privilege, but by qualified privilege under the law of defamation). A primary purpose of the Parliamentary Privilege Act 2014 was to nullify the rulings in Leigh and reaffirm the more expansive understanding of Parliament’s privilege of freedom of speech. See Philip A Joseph “Constitutional Law” New Zealand Law Review 515 at 527–533 for critical analysis of the Supreme Court’s decision.

54 Parliamentary Privilege Act 2014, s 10(1)(3). 55 R (on the application of Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin) at [49].

See also: Mangawhai Ratepayers’ and Residents’ Association Inc v Kaipara District Council [2015] NZCA 612 at [134], [147]–[150] per Miller J, and [208]–[210] per Harrison and Cooper JJ (promoting local bill).

56 Mangawaro Enterprises Ltd v Attorney-General [1994] 2 NZLR 451 (HC); Boscawen v Attorney-General [2009] NZCA 12, [2009] 2 NZLR 229 at [36] and [42]; Taylor v Attorney-General [2014] NZHC 1630 at [79] and [87]; Mangawhai Ratepayers’ and Residents’ Association Inc v Kaipara District Council [2014] NZHC 1147, [2014] 3 NZLR 85 at [102] (see also: on appeal, [2015] NZCA 612 at [34] per Miller J). See also: Taylor v Attorney-General [2015] NZHC 1706 at [65] and [69] per Heath J.



or her capacity as a member may not qualify for protection.57 Although actions taken in or in relation to the House are proceedings in Parliament, actions taken in relation to constituents or other persons (and vice versa) are usually not proceedings in Parliament. Communications, for instance, between a member and the public, including even a member’s constituents, are not proceedings in Parliament.58 Such a communication might become a proceeding in Parliament

only if the communication were directly connected with some specific business being transacted, or about to be transacted, in the House or a committee. The delivery of a petition to a member for presentation to the House would qualify as a proceeding in Parliament (being proximately connected to business that the House is about to transact), as would a communication solicited by a member for the express purpose of using it in or for specific business of the House or of a committee.59

The question is whether words are spoken or acts are done for the purposes of, or are incidental to, transacting the business of the House or a committee. The Parliamentary Privilege Act 2014 requires consideration of what is “reasonably apprehended business of the House or a committee”.60 There must be a serious or realistic prospect of the House entertaining the business before a communication to a member will be protected. A communication’s status after it has been received by the member depends upon the use the member makes of it. 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 or not it is referable to a particular debate before the House).61 Even so, that will not have any retrospective effect so as to afford protection in respect of the original communication to the member.

Members’ communications between themselves might qualify for the protection of privilege. A communication will be regarded as a proceeding in Parliament where a member communicates with another member, such as a Minister, regarding parliamentary business: for example, where the member forwards an amendment to a bill before the House or a parliamentary question that the member is contemplating lodging.62 However, a member’s action in releasing information outside the House attracts no parliamentary privilege,63 even if the material released is a copy of a question submitted by the member 64 or a speech the member delivered in the House.65 Nor does privilege protect a person, such as a journalist, who receives information from a member, if that person publishes the information.66 It is immaterial that the member disclosing the information may be covered by parliamentary privilege. A letter to the Speaker raising a matter of privilege is a proceeding in Parliament, but circulating or disclosing the letter otherwise than through the House’s procedures for dealing with the matter is not.67

57 Attorney General of Ceylon v De Livera [1963] AC 103 (PC); Re Ouellet (No 1) (1976) 67 DLR (3d) 73 (CS); Crane v Gething [2000] FCA 45, (2000) 169 ALR 727; Rowley v Armstrong [2000] QSC 88.

58 Buchanan v Jennings [2002] 3 NZLR 145 (CA) at [64]; Pankiw v Canada (Human Rights Commission) [2007] 4 FCR 578 (a member’s constituency newsletter was not protected by parliamentary privilege); Rivlin v Bilainkin [1953] 1 QB 485; R v Ponting [1985] Crim LR 318 (QB).

59 Erglis v Buckley [2005] QSC 25; Terry v Police [2004] NZAR 489 (HC); Joint Committee on Parliamentary Privilege (UK) Parliamentary privilege: report of session 2013–14 [2013] HL Paper 30, HC 100 at [242].

60 Parliamentary Privilege Act 2014, s 10(3). 61 Erglis v Buckley [2005] QSC 25. 62 House of Commons (UK) Select Committee on the Official Secrets Act [1938–1939] HC 101; Fowler

& Rodrique Ltd v Attorney-General [1981] 2 NZLR 728 (HC). 63 (1994) 539 NZPD 470 Tapsell; (1997) 558 NZPD 718 Kidd; (1997) 563 NZPD 4019 Kidd; (18 February

2014) 696 NZPD 15974–15975 Carter. 64 Jatish Chandra Ghosh v Hari Sadhan Mukherjee [1961] AIR (SC) 613. 65 R v Lord Abingdon (1794) 1 Esp 226, 170 ER 337 (KB); R v Creevey (1813) 1 M & S 273, 105 ER 102

(KB); Suresh Chandra Banerji v Punit Goala [1951] AIR (Calcutta) 176. 66 Re Clark and Attorney-General of Canada (1977) 81 DLR (3d) 33. 67 (1988) 489 NZPD 4436 Burke; (2003) 609 NZPD 6543 Hunt.



Finally, statute may 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.68 However, such protected communications do not qualify in themselves as proceedings in Parliament.

Qualified immunity from legal liability Certain communications not protected by parliamentary privilege may nevertheless enjoy a qualified immunity from legal liability under the Parliamentary Privilege Act 2014. The qualified immunity protects from civil or criminal liability specified communications of proceedings in Parliament (that is, communications not made under the House’s or a committee’s authority), or of related documents not authorised by the House or a committee.69 Similar communications that are made under the House’s or a committee’s authority are protected by both absolute privilege under the Defamation Act 1992,70 and a stay of proceedings procedure under the Parliamentary Privilege Act 2014.71 Where the qualified immunity applies, it exempts the relevant specified communication from liability, unless the plaintiff or prosecutor proves that the person communicating the material abused the occasion of the communication. A person abuses the occasion of communication if he or she acts in bad faith or with a predominant motive of ill will. The qualified immunity protects a delayed communication to the public, by any communicator, of proceedings in Parliament, if the communication was not made under the House’s or a committee’s authority.72

The qualified immunity also protects a fair and accurate report of parliamentary proceedings.73 It need not be a verbatim report. A report can concentrate on one speech, but a fair and accurate report must include a summary or acknowledgement of any contrary views expressed in debate.74 Immaterial inaccuracies do not cause the protection to be lost.75 However, qualified immunity for a fair and accurate report is lost if it is published in defiance of the House’s rules on keeping proceedings confidential. Qualified immunity is not a licence to flout lawful orders.76

The qualified immunity also protects the communication of a fair and accurate extract from, or summary of:77

(a) a document communicated under the House’s or a committee’s authority; or

(b) a document relating to proceedings in Parliament, and communicated under—

(i) the House’s or a committee’s authority; or (ii) the authority of any enactment.

A legal defence of qualified privilege (which is not part of parliamentary privilege)78 may protect communications between members and constituents against liability in defamation.79 The qualified privilege may also protect the disclosure to the

68 See, for example: Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 58; Corrections Act 2004, ss 69(1)(e) and 114.

69 Parliamentary Privilege Act 2014, s 18. 70 Defamation Act 1992, s 13(3)(a), (c) and (d). 71 Parliamentary Privilege Act 2014, s 17. 72 Parliamentary Privilege Act 2014, s 19. 73 Parliamentary Privilege Act 2014, s 20(a). 74 See “Exam question leads to apology” The Evening Post (30 January 1988) (the member who made the

comments was not identified and contrary views were not given). 75 See, generally, Stephen Todd (ed) The Law of Torts in New Zealand (6th ed, Brookers Ltd,

Wellington, 2013) at [16.11]. 76 Parliamentary Privilege Act 2014, s 18(3) (proved abuse by defendant of occasion of communication). 77 Parliamentary Privilege Act 2014, s 20(b). 78 Buchanan v Jennings [2002] 3 NZLR 145 (CA) at [40] per Keith J, citing DL Keir and FH Lawson

Cases in Constitutional Law (4th ed revised, Clarendon Press, Oxford, 1954) at 126. 79 R v Rule [1937] 2 KB 375; Rowley v Armstrong [2000] QSC 88. The defence in New Zealand is

preserved by s 16(3) of the Defamation Act 1992.



proper authority of a letter containing otherwise defamatory material sent from a constituent to a member.80

Confidential communicationsThe law provides for a range of statutory protections in court proceedings for privileged communications. A statutory protection may apply to confidential communications between a member and a constituent,81 although this protection has no relationship to parliamentary privilege. Some of these protections will also apply to other situations, such as formal inquiries.82 Confidentiality will not necessarily apply to all communications between members and constituents. Whether or not communications are confidential is a factual matter to be assessed case by case. The conduct of the parties, or previous dealings between them, would need to support a reasonable inference of an expectation of confidentiality in the communication.

Arguments for extending special protection for members’ correspondence have been advanced but not adopted. They followed concern about the growth of members’ constituency work and the inability to protect information disclosed in confidence to members by constituents (where the information disclosed has not become part of the business of the House).83 Although not all information generated, received or possessed by members will be entitled to the high level of protection given to proceedings in Parliament, concern has been expressed about protecting members’ information from arbitrary release. This led to the House adopting a protocol for the release of information from the parliamentary information, communication and security systems.84

Meetings of caucusMeetings of party caucuses are not proceedings in Parliament. They are meetings that are attended by members of Parliament because they are members of a particular party that is represented in Parliament. Parliamentary business may be under discussion at such meetings but they are not transactions of parliamentary business. The absolute legal protection given by article 9 of the Bill of Rights 1688 does not apply to such meetings.85

Other proceedingsActions taken by officers of the House in carrying out the orders of the House or its committees are proceedings in Parliament.86 A “parliamentary inspector” appointed to assist Parliament in the supervision of a corruption and crime commission was held to be an officer of Parliament, and proceedings could not be brought that would impeach conclusions reached in the inspector’s report.87 Proceedings brought to restrain such an officer from reporting to Parliament would be non-justiciable, and might themselves amount to a contempt of Parliament.88

80 Beach v Freeson [1972] 1 QB 14. 81 Evidence Act 2006, s 69. 82 Inquiries Act 2013, s 27. 83 Joint Committee on Parliamentary Privilege (UK) Parliamentary privilege: report of session 2013–14

[2013] HL Paper 30, HC 100 at [242]. 84 Privileges Committee Question of privilege regarding use of intrusive powers within the parliamentary

precinct (11 July 2014) [2011–2014] AJHR I.17C; (22 July 2014) 700 NZPD 19325–19338. 85 R v Turnbull [1958] Tas SR 80 (SC); Awatere Huata v Prebble [2004] 3 NZLR 359 (CA) at [63], [64]

per McGrath J (endorsing at [63] the views of Philip A Joseph “Constitutional Law” [1998] New Zealand Law Review 197 at 219–220, and David McGee “Parliament and Caucus” [1997] New Zealand Law Journal 137). The British House of Commons has expressed a similar view: House of Commons (UK) Committee of Privileges [1946–1947] HC 138.

86 Hamilton v Al Fayed [1999] 1 WLR 1569 (CA) (Parliamentary Commissioner for Standards); ZL v Secretary of State for the Home Department [2003] EWCA Civ 25, [2003] 1 All ER 1062 (Clerk of the Parliaments); Parliamentary Privilege Act 2014, ss 5 and 10.

87 Jenkins v McCusker [2010] WASAT 100. 88 Re Parliamentary Inspector of the Corruption and Crime Commission, ex parte Corruption and Crime

Commission [2008] WASC 305.



People delivering petitions to members, or written or oral evidence or other material to a select committee, are engaged in proceedings in Parliament.89 However, circulating a proposed petition to the public for signature is not a proceeding in Parliament and is not protected by privilege.90 The connection between circulating a proposed petition and any future business of the House is too remote to satisfy the statutory test of “transacting the reasonably apprehended business of the House”.91 It has been held that an email exchange between an adviser to a member of Parliament and a departmental official was too remote from the transacting of any likely business of the House to attract parliamentary privilege. Something more must occur than the mere creation of a document for a member of Parliament.92

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. However, other protections, such as a qualified immunity from legal liability, may be available.93 The tabling of a Government response in the Australian Senate has been held to be protected by parliamentary privilege, but this protection did not extend to publication of the response on a departmental website.94 The fact that something occurred in the parliamentary precincts, including even the Chamber, does not thereby confer immunity on the action.95 The action in question must be part of a “proceeding in Parliament” in terms of article 9 (as clarified by section 10 of the Parliamentary Privilege Act 2014). Parliament House is not a sanctuary from the law. 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 or not the allegations are directed at proceedings in Parliament is the occasion on which they were made, not the place in which they were made.96 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.97 Nor is a press conference protected just because it is held in the parliamentary precincts.98 Similarly, any necessary legal approvals must be obtained for the showing of films and videos within Parliament House, unless the showing is confined to a meeting of a select committee.99

In 1990 an English decision determined that a register of members’ interests was not a proceeding in Parliament and covered by parliamentary privilege.100 However, the correctness of that ruling has been questioned.101

Application of article 9The protection that article 9 of the Bill of Rights 1688 affords is not confined to members of Parliament. The provision does not refer to members or to any person;

89 House of Commons (UK) Committee of Privileges [1977–1978] HC 624, App IV (disclosure of information to the House or a committee would not breach the Official Secrets Act).

90 Senate (Aust) Committee of Privileges The circulation of petitions (11th report) [1988]; Legislative Council (WA) Select Committee of Privilege, report concerning petition of Brian Easton [1992].

91 Parliamentary Privilege Act 2014, s 10(3). 92 Smith v Department of Foreign Affairs and Trade [2007] AIRC 366. 93 (1988) 489 NZPD 4315–4316 Burke; (19 November 2003) 613 NZPD 10146 Hunt; Parliamentary

Privilege Act 2014, ss 17–21. 94 British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011]

FCAFC 107. 95 Rivlin v Bilainkin [1953] 1 QB 485. 96 (1988) 489 NZPD 4436–4437 Burke. 97 Rivlin v Bilainkin [1953] 1 QB 485. 98 Re Ouellet (No 1) (1976) 67 DLR (3d) 73 (CS). 99 (1989) 498 NZPD 10595 Burke. 100 Rost v Edwards [1990] 2 QB 460. 101 Prebble v Television New Zealand Ltd [1994] 3 NZLR 1, [1995] 1 AC 321 (PC); Joint Committee on

Parliamentary Privilege (UK) Parliamentary privilege: report of session 2013–14 [2013] HL Paper 30, HC 100 at [233].



it refers to parliamentary speeches, debates and proceedings, and prevents these occasions from being called into question. Members, who are most proximately involved in the business of the House, are the main beneficiaries of the privilege. Nevertheless, other persons who take part in the proceedings of the House or its committees are also afforded the protection of article 9. Officers of the House, for example, who in their official capacity are constantly engaged in proceedings in Parliament, obviously qualify for protection. Witnesses to select committees and petitioners to the House also qualify, as being engaged in the proceedings of the House. The publication of defamatory words in a petition to members of Parliament is not actionable, provided such publication is in the ordinary course of proceedings.102 Publication of such defamatory material to members, otherwise than in the ordinary course of proceedings, is not protected.103 However, the House may refuse to accept an abusive petition, as petitions are required to be respectful and moderate in their language.104 The House might also treat the publication of scandalous material in a petition as a contempt, and punish it accordingly.

No action, civil or criminal, may be taken against a witness in respect of evidence he or she gives to the House or one of its committees.105 The position of witnesses is no different from that of members in respect of members’ words spoken in debate.106 The protection of privilege applies whether the witness appears voluntarily or is summoned to appear before the House or a committee.

The protection of witnesses before select committees is a fundamental aspect of parliamentary privilege. The freedom of witnesses to give evidence is absolute, leaving it to the committee to decide whether or not to accept the evidence and weigh its probative value. Although evidence given before a select committee cannot be admitted into legal proceedings, conduct revealed in such evidence is not immune from investigation or action by other authorities. However, a civil action or criminal prosecution would need to be supported by evidence obtained independently of Parliament.107

Questioning or impeaching parliamentary proceedingsThe Bill of Rights 1688 was passed to secure in law a political settlement reached between Parliament and the courts over their respective jurisdictions.108 However, the Bill of Rights did not create Parliament’s freedom of speech; rather, it crystallised the respective jurisdictions of the Crown and Parliament, thus settling the long-standing dispute over executive and legislative power. The settlement was principally between the executive and the legislature but it also affected the judiciary, as the third branch of government. Article 9 of the Bill of Rights 1688 prohibited the executive power (the Crown) from using the courts to undermine the legislature’s freedom of speech.

As of 1688, there may have been little, if any, distinction understood between the injunctions in article 9, prohibiting the “impeaching” and “questioning” of parliamentary free speech. It was not until a century or so later that the word “impeach” acquired a specific association with a charge at law (meaning then to subject parliamentary proceedings to some criminal or civil liability). At the time, legislative drafting was prolix and typically duplicated meaning with what we would today regard as synonymous terms. With courts inclined to literal and formal interpretations of the written law, it was natural for the drafters of the day

102 Lake v King (1667) 1 Saund 131 (KB). 103 Rivlin v Bilainkin [1953] 1 QB 485. 104 SO 367(1). 105 Privileges Committee, final report on question of privilege on the action taken by TVNZ in relation to

its chief executive (17 October 2006) [2005–2008] AJHR I.17B. 106 Goffin v Donnelly (1881) 6 QBD 307; R v Wainscot [1899] 1 WALR 77 (SC); Prebble v Television New

Zealand Ltd [1994] 3 NZLR 1 (PC); Parliamentary Privilege Act 2014, ss 5 and 10. 107 Privileges Committee, final report on question of privilege on the action taken by TVNZ in relation to

its chief executive (17 October 2006) [2005–2008] AJHR I.17B. 108 Declaration of Rights 1688.



to juxtapose words with minor, if not infinitesimal, gradations of meaning. It was serendipitous that the separate injunctions against impeaching and questioning gave to article 9 its modern meaning and scope.

Article 9 has further application beyond operating as a defence to a prosecution or a civil action brought in respect of parliamentary actions. For the 17th-century parliamentarians, article 9 was a two-fold declaration: parliamentarians could not be held criminally or civilly liable for their actions in Parliament (this would have been asserted to be the law in any case, notwithstanding notorious breaches in the past), and their parliamentary actions could not be used to support a cause of action against them arising from events outside Parliament. Were the latter to be permitted, members would be answerable to the courts for their actions in Parliament.

This two-pronged meaning of article 9 is now conveniently expressed in today’s understanding of the words “impeached” and “questioned”. Freedom of speech is “impeached” where it is sought to make a member or person liable in criminal or civil proceedings for what they have said or done in Parliament; whereas freedom of speech is “questioned” when it is sought to undertake a critical examination in legal proceedings of what a member or person has said or done in Parliament.109 A New South Wales decision challenged this distinction and sought to collapse the scope of article 9 to attempts to impeach parliamentary words or actions. However, the Privy Council discredited that approach in an appeal from New Zealand, and held that the phrase “impeached or questioned” established distinct prohibitions.110

The Parliamentary Privilege Act 2014 clarifies the scope of the prohibition on impeaching or questioning the proceedings of Parliament by providing as follows:111

In proceedings in a court or tribunal, evidence must not be offered or received, and questions must not be asked or statements, submissions, or comments made, concerning proceedings in Parliament, by way of, or for the purpose of, all or any of the following:(a) questioning or relying on the truth, motive, intention, or good

faith of anything forming part of those proceedings in Parliament:(b) otherwise questioning or establishing the credibility, motive,

intention, or good faith of any person:(c) drawing, or inviting the drawing of, inferences or conclusions

wholly or partly from anything forming part of those proceedings in Parliament:

(d) proving or disproving, or tending to prove or disprove, any fact necessary for, or incidental to, establishing any liability:

(e) resolving any matter, or supporting or resisting any judgment, order, remedy, or relief, arising or sought in the court or tribunal proceedings.

These provisions clarify and supplement the operation of article 9 without depriving it of potentially broader application.112

Impeaching freedom of speech—direct attackThe article 9 prohibition on impeaching freedom of speech or proceedings in Parliament (that is, holding someone legally liable for their parliamentary actions or speech) was a confirmation of the recognised freedom of speech of members

109 Attorney-General’s submission in Pepper (Her Majesty’s Inspector of Taxes) v Hart [1993] AC 593 (HL) at 638 per Lord Browne-Wilkinson.

110 R v Murphy (1986) 5 NSWLR 18 (SC); declared not to represent the law in New Zealand (or the United Kingdom) in Prebble v Television New Zealand Ltd [1994] 3 NZLR 1 (PC).

111 Parliamentary Privilege Act 2014, s 11. 112 Parliamentary Privilege Bill (179–2) (commentary, 5 June 2014) ([2011–2014] AJHR I.22C). See also

the references in the Parliamentary Privilege Act 2014, ss 3(2)(b) and 9, to “any other operation” of art 9. Section 15(2) refers similarly to the operation of art 9 “independent of” the 2014 Act, pt 2, sub-pt 2.



and others participating in parliamentary proceedings. Conduct in parliamentary proceedings cannot support legal liability, either criminal or civil, except to the extent that statute has expressly or by necessary implication overridden the article 9 immunity. Thus a member’s speech in a parliamentary debate cannot support an action for defamation,113 and documents held by a member that are part of a proceeding in Parliament cannot be subject to the compulsory process of a court.114 Since 1688 this immunity for one’s actions or speeches in Parliament has become so ingrained as to have been rarely challenged.

Questioning proceedings—indirect attackThe prohibition on “questioning” proceedings in Parliament (critically examining parliamentary proceedings in support of litigation arising from events outside Parliament) is as constitutionally significant as the prohibition on “impeaching”. However, it is of more uncertain scope and thus reach.

The prohibition on questioning goes to the constitutional separation of powers between the legislature and the judiciary. Its object is to avoid conflict between Parliament and the courts, and to prevent courts censuring what is said in Parliament. A court has no legitimate occasion to pass judgement on parliamentary proceedings.115 It is wrong, for example, for a court to pass judgement on the quality or sufficiency of the reasons given in Parliament for the enactment of a measure or for the transaction of particular business. The justification and utility of parliamentary business is a matter for Parliament alone.116 Thus, 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 had done so (arguably itself in breach of article 9).117

This principle of non-intervention by the courts in parliamentary proceedings is mandatory. If a questioning of parliamentary proceedings should occur, it is not for a court to judge whether or not freedom of speech would actually in the particular circumstances of the case be infringed. The court must give effect to the principle of non-intervention as embodied in law (article 9).118 The fact that there may be no attack on the propriety of a parliamentary statement does not displace the principle. The parliamentary record is inadmissible if a court is invited to examine it and draw inferences from it.119 Parliamentary privilege prevents a challenge to the accuracy or veracity of anything said in parliamentary proceedings.120

The courts have emphasised that they cannot consider allegations of impropriety, inadequacy or inaccuracy in the proceedings of Parliament, as these are matters for Parliament to address and sanction as it sees fit.121 They have declined to take into

113 Dillon v Balfour (1887) 20 LR Ir 600. 114 Crane v Gething [2000] FCA 45, (2000) 169 ALR 727. 115 Hamilton v Al Fayed [1999] 1 WLR 1569 (CA) at 1586 per Lord Woolf MR; R (on the application of

Bradley) v Secretary of State for Work and Pensions [2007] EWHC 242 (Admin); Office of Government Commerce v Information Commissioner (Attorney-General intervening) [2008] EWHC 737 (Admin), [2010] QB 98 at [46]; R (on the application of HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3 at [78]–[79] and [206]; Boscawen v Attorney-General [2009] NZCA 12, [2009] 2 NZLR 229 at [36] and [42]; Taylor v Attorney-General [2014] NZHC 1630 at [79] and [87]; Mangawhai Ratepayers’ and Residents’ Association Inc v Kaipara District Council [2014] NZHC 1147, [2014] 3 NZLR 85 at [102].

116 Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816 at [117] per Lord Hope and [143] per Lord Hobhouse; R (on the application of Wilson) v Wychavon District Council [2007] EWCA Civ 52, [2007] QB 801 at [31]; R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin) at [51].

117 Peters v Davison [1999] 3 NZLR 744 (HC) at 765–767; Office of Government Commerce v Information Commissioner (Attorney-General intervening) [2008] EWHC 737 (Admin), [2010] QB 98 at [54].

118 Rann v Olsen [2000] SASC 83, (2000) 172 ALR 395 at [114], [124] and [125]. 119 Rost v Edwards [1990] 2 QB 460. 120 Office of Government Commerce v Information Commissioner (Attorney-General intervening) [2008]

EWHC 737 (Admin), [2010] QB 98 at [39]. 121 R (Federation of Tour Operators) v Her Majesty’s Treasury [2007] EWHC 2062 (Admin) at [121]–

[123]; Office of Government Commerce v Information Commissioner (Attorney-General intervening) [2008] EWHC 737 (Admin), [2010] QB 98 at [47].



account evidence given at select committees, select committee reports, or answers to parliamentary questions. This evidence was inadmissible under article 9 and on the basis that the courts and Parliament must each recognise their respective roles.122

The object of article 9 is to promote the freedom of members, witnesses and others participating in parliamentary proceedings to contribute fully without fear of repercussion: “to ensure that the member or witness at the time he [or she] speaks is not inhibited from stating fully and freely what he [or she] has to say”.123 Article 9 is designed to remove uncertainty over whether a member’s or witness’s statement may be subsequently challenged in legal proceedings, and to give people confidence when making their parliamentary contributions that they will be immune from any reprisal or repercussion.124 The Privy Council has emphasised this rationale for the expansive operation of article 9.125

Using parliamentary proceedings to support legal proceedingsSpeeches or proceedings in Parliament may not be used to support a cause of action, even where the cause of action arose outside the House.126 Under article 9, 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 imposes a prohibition on direct evidence, cross-examination, inferences or submissions intended to have such effect.127

The law reports contain many illustrations of the expansive application of article 9. For example, a court refused to allow a former Minister, who was facing prosecution on a criminal charge, to be cross-examined on remarks he had made in Parliament that appeared to contradict the evidence he had given in court.128 Similarly, a judge refused to admit extracts from Hansard where the purpose of putting them in evidence was to examine the motives behind what had been said and done in the House.129 Likewise, a court refused to admit correspondence between a parliamentary committee and witnesses, which recorded evidence given by a witness to the committee, correspondence clarifying an answer given to the committee and answers to questions the committee had asked. The purpose for citing the correspondence was to invite the court to draw inferences about proceedings in Parliament.130 Simply to invite a court to infer that two parliamentary statements were incompatible would be a breach of article 9.131

Questions have arisen concerning the relief to be given where parliamentary privilege renders evidence inadmissible. If the operation of privilege makes it unjust for an action to proceed (for example, by excluding evidence that is crucial to a party’s defence), the court may order a stay of proceedings.132

RepetitionThere is no “questioning” of proceedings in Parliament in a legal action that is based on a copy of a member’s parliamentary speech that the member has supplied to a

122 British Railways Board v Pickin [1974] AC 765 (HL) at 799. 123 Prebble v Television New Zealand Ltd [1994] 3 NZLR 1 (PC) at 8 (emphasis in the original). 124 Prebble v Television New Zealand Ltd [1994] 3 NZLR 1 (PC) at 10. 125 Prebble v Television New Zealand Ltd [1994] 3 NZLR 1 (PC) at 8. 126 Church of Scientology of California v Johnson-Smith [1972] 1 QB 522 (attempt to show member’s

parliamentary speech evidence of malice in a comment made by the member on television); (29 October 2003) PD LA (WA) 12804–12806 (personal explanation by member used to support disciplinary proceedings against member in his capacity as a lawyer).

127 Prebble v Television New Zealand Ltd [1994] 3 NZLR 1 (PC) at 10. 128 R v Jackson (1987) 8 NSWLR 116 (SC). 129 Kable v State of New South Wales [2000] NSWSC 1173. 130 Habib v Commonwealth of Australia [2008] FCA 1494 at [6]. 131 Privileges Committee Question of privilege referred on 14 February 2001 relating to Stonhill v Mackey

(11 December 2001) [1999–2002] AJHR I.17B at 5–6. 132 Prebble v Television New Zealand Ltd [1994] 3 NZLR 1 (PC) at 11 (albeit the stay granted by the

Court of Appeal was overturned on appeal); Allason v Haines [1995] NLJR 1576; Hamilton and Greer v Hencke High Court of Justice, Queen’s Bench Division, 21 July 1995.



newspaper or other publication.133 Members distribute copies of their speeches or other parliamentary contributions (such as questions they have asked)134 at their own risk (even if qualified immunity may apply to the communication in question).135 Likewise, before the Parliamentary Privilege Act 2014, there was no “questioning” of proceedings in Parliament if a member referred outside the House to a speech he or she had made in the House in a way that could be interpreted as “adopting”, “reporting” or “effectively repeating” it.136 Under the law of defamation, an “effective repetition” is a fresh cause of action, which allowed the parliamentary speech to be examined in court to support legal proceedings. Following prolonged criticism of the effective repetition principle as it had been applied in the parliamentary context,137 the Parliamentary Privilege Act 2014 abolished the principle in its application to Parliament.138 Adducing Hansard to ascertain the parliamentary words that were effectively repeated was an insidious form of “questioning” proceedings in Parliament, contrary to the text and spirit of article 9.139 The 2014 Act prohibits evidence being offered or received, questions being asked, or statements, submissions or comments made, concerning proceedings in Parliament in support of legal proceedings, including claims of effective repetition as exemplified by the Privy Council decision in Buchanan v Jennings.140

A 2005 report of the Privileges Committee’s inquiry into Buchanan v Jennings141 provided the impetus for reform. It dealt with the parliamentary implications of effective repetition and recommended that the law be changed, which later Privileges Committees reiterated.142 A recent United Kingdom joint committee inquiry also highlighted the uncertainty about the extent to which members or others could repeat or refer to statements they had made in Parliament.143 The Privileges Committee reported that there had been a “chilling effect” on public debate, with members and others reluctant to submit themselves to subsequent interview for fear of losing their parliamentary immunity.144

133 R v Lord Abingdon (1794) 1 Esp 226, 170 ER 337 (KB); R v Creevey (1813) 1 M & S 273, 105 ER 102 (KB); Suresh Chandra Banerji v Punit Goala [1951] AIR (Calcutta) 176.

134 Jatish Chandra Ghosh v Hari Sadhan Mukherjee [1961] AIR (SC) 613. 135 Parliamentary Privilege Act 2014, ss 18–20. 136 See Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers Ltd,

Wellington, 2014) at [13.5.4(2)]. 137 Privileges Committee Question of privilege referred 21 July 1998 concerning Buchanan v Jennings

(31 May 2005) [2002–2005] AJHR I.17G. See also Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers Ltd, Wellington, 2014) at [13.5.4(2)] and the criticisms of the academic writers cited therein.

138 Parliamentary Privilege Act 2014, ss 3(2)(d) and 11(e). 139 See: Buchanan v Jennings [2002] 3 NZLR 145 (CA) at per Tipping J dissenting; this judgment

represents the legislative assumption behind the abolition of effective repetition in the parliamentary context. See also: Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers Ltd, Wellington, 2014) at [13.5.5(2)(b)].

140 Buchanan v Jennings [2004] UKPC 36, [2005] 2 NZLR 577. 141 Privileges Committee Question of privilege referred 21 July 1998 concerning Buchanan v Jennings

(31 May 2005) [2002–2005] AJHR I.17G. 142 Privileges Committee Question of privilege relating to the exercise of the privilege of freedom of speech

by members in the context of court orders (28 May 2009) [2008–2011] AJHR I.17A at 6–7; Privileges Committee Question of privilege concerning the defamation action Attorney-General and Gow v Leigh (11 June 2013) [2011–2014] AJHR I.17A at 31–32.

143 Joint Committee on Parliamentary Privilege (UK) Parliamentary privilege: report of session 2013–14 [2013] HL Paper 30, HC 100 at [202]–[207]. See also the English Court of Appeal decision in Makudi v Baron Triesman of Tottenham [2014] EWCA Civ 179, [2014] 3 All ER 36, which suggested that a verbatim repetition of words spoken in parliamentary proceedings, without venturing beyond them, was protected by parliamentary privilege. Such implication does not withstand scrutiny: see R v Lord Abingdon (1794) 1 Esp 226, 170 ER 337 (KB); R v Creevey (1813) 1 M & S 273, 105 ER 102 (KB); Wason v Walter (1868) LR 4 QB 73; Sopforth v Goyer (1978) 87 DLR (3d) 373. Philip A Joseph “Parliament’s Privilege of Freedom of Speech: Still More Confusion” (2015) 131 Law Quarterly Review 12 criticises Makudi for creating gratuitous uncertainty.

144 Privileges Committee Question of privilege referred 21 July 1998 concerning Buchanan v Jennings (31 May 2005) [2002–2005] AJHR I.17G at 5; Joint Committee on Parliamentary Privilege (UK) Parliamentary privilege: report of session 2013–14 [2013] HL Paper 30, HC 100 at [202]–[207]. See also (19 February 2014) 696 NZPD 16076–16077 (Commerce Commission investigation into alleged supermarket behaviour).



Members are not accountable for what others may do. 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 the member may have known that the speech was defamatory and likely to be reported. To hold a member liable in those circumstances, for even a foreseeable repetition, would defeat the member’s freedom of speech in debate.145 The person defamed has either of two recourses: sue the person who repeated the defamatory statement, or have a response entered in the parliamentary record.146 (See Chapter 38.)

Collateral examination of proceedingsThe fact that the House has expressed its view on a matter does not preclude a court from making its own finding on the same matter if it subsequently arises before it in judicial proceedings. It is no abuse of the court’s process or breach of parliamentary privilege to litigate a matter merely because the House or one of its committees has considered it. The court must make its own finding on the issue if it is relevant to the proceedings before it.147

Different conclusions may be reached in parliamentary and judicial inquiries into the same matter.148 Whether or not a contrary judicial conclusion implies a view about the parliamentary finding is irrelevant.149 An earlier parliamentary finding is not binding on a court, and lacks any persuasive authority.150 At most, a parliamentary finding might have relevance as part of the factual matrix out of which the legal proceedings emerged. However, the court must make no findings on the parliamentary treatment of the matter but must reach its own conclusions on questions of law or fact. In particular, it cannot adjudicate by agreeing or disagreeing with expressions of opinion in Parliament, no matter how eminent or well qualified the people expressing them.151

Not all references to debates or proceedings in Parliament are contrary to article 9 of the Bill of Rights 1688. Evidence of proceedings in Parliament may be received in court, provided the evidence does not involve examining the propriety of the proceedings or of the motives or intentions of those partaking in them. Evidence of events or words uttered in Parliament, without any impeaching or questioning of the proceedings of which they were part, is permissible.152 This is commonly referred to as the “historical” use of the parliamentary record. The Parliamentary Privilege Act 2014 declares that neither it nor the Bill of Rights 1688 prevents or restricts use of proceedings in Parliament to establish a historical event.153 The embargo is triggered only if there is an attempt to impeach or question the parliamentary proceedings.

145 Suresh Chandra Banerji v Punit Goala [1951] AIR (Calcutta) 176. 146 SOs 159–162. 147 Dingle v Associated Newspapers Ltd [1960] 2 QB 405 at 410–411; Office of Government Commerce

v Information Commissioner (Attorney-General intervening) [2008] EWHC 774 at [49]; R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin) at [51].

148 Compare, for example, Transport Committee, report on the petition of Federated Farmers of New Zealand (17 December 1992) [1991–1993] AJHR I.26A with Federated Farmers of New Zealand (Inc) v New Zealand Post Ltd HC Wellington CP661/92, 1 December 1992.

149 Rann v Olsen [2000] SASC 83, (2000) 172 ALR 395 at [25], [80], [85] and [123]; R (on the application of Bradley) v Secretary of State for Work and Pensions [2007] EWHC 242 (Admin); R (Federation of Tour Operators) v Her Majesty’s Treasury [2007] EWHC 2062 (Admin); Office of Government Commerce v Information Commissioner (Attorney-General intervening) [2008] EWHC 737 (Admin), [2010] QB 98 at [48] and [57]; R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin) at [51].

150 Hamilton v Al Fayed [1999] 1 WLR 1569 (CA) (affirmed) [2001] 1 AC 395 (HL). 151 R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC

2336 (Admin) at [51]. 152 Prebble v Television New Zealand Ltd [1994] 3 NZLR 1 (PC); Wilson v Secretary of State for Trade and

Industry [2003] UKHL 40, [2004] 1 AC 816 at [51]–[67]; Toussaint v Attorney General of Saint Vincent and the Grenadines [2007] UKPC 48 at [17].

153 Parliamentary Privilege Act 2014, s 15.



Examples of permissible historical uses are using 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;154 using proceedings to prove that a member was present in the House on a particular day;155 or using proceedings to prove that a report of a speech is fair and accurate and is thereby covered by qualified privilege under the law of defamation (now termed “qualified immunity” under the Parliamentary Privilege Act 2014).156

Statutory interpretation and judicial reviewIt is well established under New Zealand law that parliamentary statements and other materials may be used in aid of statutory interpretation.157 The Parliamentary Privilege Act 2014 explicitly allows the use of parliamentary proceedings for the purposes of ascertaining the meaning of an enactment.158 This represents the law in all of the common law jurisdictions, where the use of parliamentary materials in statutory interpretation is regarded as compatible with article 9. However, not all parliamentary statements or material will be of assistance to courts when interpreting legislation.159 For example, the courts have ignored parliamentary statements where they opposed the legislation that was in question,160 and they have disregarded select committee materials where the committee was not unanimous in its views.161 Using parliamentary materials to ascertain legislative meaning is permissible but other uses may not be: for example, comparing conflicting parliamentary statements and appraising them in litigation, which would constitute a “questioning” of parliamentary proceedings contrary to article 9.162

In Australia, the interpretation legislation gives particular weight to the speech of the Minister moving the second reading of the bill.163 The assumption is that the Minister responsible will be sufficiently informed and capable of explaining the intentions behind the bill. In the United Kingdom, background materials—including parliamentary statements—have been held admissible for the purposes of evaluating the compatibility of legislation with convention rights, and making value judgements under the test of proportionality.164 It has also been held that parliamentary proceedings may be used to assist in determining applications for judicial review, particularly by reference to ministerial statements to the House.165

154 Prebble v Television New Zealand Ltd [1994] 3 NZLR 1 (PC). 155 Forbes v Samuel [1913] 3 KB 706; Tranton v Astor (1917) 33 TLR 383. 156 Parliamentary Privilege Act 2014, ss 14 and 18–20. 157 For a recent illustration of the use of parliamentary materials, see Mangawhai Ratepayers’ and

Residents’ Association Inc v Kaipara District Council [2014] NZHC 1147, [2014] 3 NZLR 85 at [108]. United Kingdom law is to similar effect: see Pepper (Her Majesty’s Inspector of Taxes) v Hart [1993] AC 593 (HL); general principles are covered in Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816 at [51]–[67]; Toussaint v Attorney General of Saint Vincent and the Grenadines [2007] UKPC 48 at [17]; Office of Government Commerce v Information Commissioner (Attorney-General intervening) [2008] EWHC 737 (Admin) at [49]. See also Ross Carter, Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 304–306.

158 Parliamentary Privilege Act 2014, s 13. 159 Re P (a minor by his mother and litigation friend) [2003] UKHL 8, [2003] 2 AC 663 at [37] (“in the

usual hopeless attempt to obtain guidance from parliamentary debates” per Lord Hoffmann); Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816 at [67]; R (on the application of F) v Secretary of State for the Home Department [2010] UKSC 17; Assange v Swedish Prosecution Authority [2012] UKSC 22.

160 Awatere Huata v Prebble [2004] 3 NZLR 359 (CA) at [89] per McGrath J. 161 Vela Fishing Ltd v Commissioner of Inland Revenue [2001] 1 NZLR 437 (HC) at [129]–[131]. 162 R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd

[2001] 2 AC 349 (HL) at 391–392 per Lord Bingham. 163 Acts Interpretation Act 1901 (Cth), s 15AB. 164 Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816 at [110]–[111];

Salvesen v Riddell (Lord Advocate Intervening) [2013] UKSC 22 at [37]. See also Aileen Kavanagh “Proportionality and Parliamentary Debates: Exploring Some Forbidden Territory” (2014) 34(3) Oxford Journal of Legal Studies 443; Editorial (2010) 31(2) Statute Law Review at iii–iv.

165 Joint Committee on Parliamentary Privilege (UK) Parliamentary privilege: first report [1998–1999] HL 43–I, HC 214–I at [46]–[55]; Buchanan v Jennings [2002] 3 NZLR 145 (CA) at [41] per Keith J; Toussaint v Attorney General of Saint Vincent and the Grenadines [2007] UKPC 48 at [17].



However, this use of the parliamentary record has been criticised as an unprincipled attack on article 9. Drawing inferences and conclusions from ministerial statements to the House entails “questioning” proceedings in Parliament.166 On the other hand, greater fidelity to article 9 was shown in a case where an attempt was made to construe an enforceable legitimate expectation from a parliamentary statement. The court rejected that attempt, as it would involve “questioning” the statement contrary to article 9.167 The applicant, in effect, sought to create a cause of action out of a proceeding in Parliament.

The case law in this area may appear conflicting and difficult to reconcile, raising concerns about “judicial contortions” around article 9.168 The Parliamentary Privilege Act 2014 responds accordingly by declaring that evidence may not be offered or received concerning proceedings in Parliament if the purpose is to:169

o question or rely on the truth, motive or good faith of, or draw inferences or conclusions from, anything forming part of those proceedings

o question or establish the credibility, motive or good faith of any person o prove or disprove any fact material to legal proceedings o otherwise support or resist any legal liability or claim.

Leading evidence for any of those purposes would be to impeach or question proceedings in Parliament. The Act reinforces this embargo by explicitly allowing the use of proceedings to establish a relevant historical event or fact that does not amount to a questioning or impeaching.

In judicial review proceedings, a parliamentary statement made by a Minister can be introduced as evidence of the fact of an announcement of the Government’s policy or position on a matter. The announcement of the policy in Parliament is no different from its announcement by means of a letter.170 The policy or position can be criticised and (if need be) demonstrated to be unlawful, but the evidence to do so needs to be obtained independently of the announcement in the House. The parliamentary statement cannot itself give grounds for review, for to so use it would be to impeach contrary to article 9. However, just because a Government policy or position is announced in the House, rather than elsewhere, does not mean it is immune from review, but in so reviewing a court must make its own findings.

Court or place out of ParliamentThe prohibition in article 9 applies to “questioning” proceedings in Parliament “in any court or place out of Parliament”.171 Proceedings before a court are self-evident. However, the reference to any place out of Parliament, if taken literally, would inhibit criticism or examination of parliamentary proceedings on any occasion outside Parliament. Such a result would be an absurdity that would unacceptably infringe citizens’ freedom of speech. Occasional judicial statements have rhetorically imputed this extreme meaning,172 but these suggestions have not been taken seriously by either the House or the courts. The parliamentarians of 1688 probably had in mind the jurisdiction of the councils formerly established by

166 Philip A Joseph “Parliament’s Attenuated Privilege of Freedom of Speech” (2010) 126 Law Quarterly Review 568 at 583–589.

167 Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151 at [76] per Laws LJ. 168 Philip A Joseph “Parliament’s Attenuated Privilege of Freedom of Speech” (2010) 126 Law Quarterly

Review 568; Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers Ltd, Wellington, 2014) at [13.5.5].

169 Parliamentary Privilege Act 2014, s 11. 170 Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816 at [113] per Lord

Hope. 171 Bill of Rights 1688, art 9. 172 See, for example: R v Murphy (1986) 5 NSWLR 18 (SC) at 29 per Hunt J; Pepper (Her Majesty’s

Inspector of Taxes) v Hart [1993] AC 593 at 638 per Lord Browne-Wilkinson; Toussaint v Attorney General of Saint Vincent and the Grenadines [2007] UKPC 48 at [10].



royal prerogative to exercise executive and judicial functions. The latter functions were in conflict with the jurisdiction of the regular common law courts.

In promulgating the Bill of Rights 1688, members sought to ensure that councils established by the King, in addition to the regular courts, could not examine parliamentary proceedings. In the modern State, such parallel, non-curial executive and judicial functions are exercised by tribunals and other bodies established by legislation, and the prohibition on questioning proceedings in Parliament is taken to be addressed today to such bodies. The Parliamentary Privilege Act 2014 expressly applies the prohibition to courts and tribunals. Under section 5(1), a “tribunal” means:

any person or body (other than the House, a committee, or a court, but including, without limitation, an inquiry to which section 6 of the Inquiries Act 2013 applies) with power to summons witnesses and take evidence on oath or affirmation, or with power to require (by, or without, a summons) the giving or supply (on, or without, oath or affirmation) of any kind or form of evidence or information.

The Human Rights Commission173 and the Ombudsmen174 have accepted that they are bound by article 9 and have refused to investigate complaints that related to proceedings in Parliament. In Canada, the Ontario Human Rights Commission rejected a complaint about the daily recital of a prayer in the legislature as it was a matter inherently related to the conduct of parliamentary proceedings.175 However, the Canadian Human Rights Tribunal could entertain a complaint about statements made by a member of Parliament in a “householder” (a flyer to constituents), as parliamentary privilege did not attach to material distributed to the public.176 Various bodies set up to adjudicate on freedom of information requests have accepted that parliamentary privilege may prevent the disclosure of information where it would infringe the privileges of Parliament.177 In Western Australia, the Legal Practitioners Complaints Committee and the Legal Practitioners Disciplinary Tribunal (both statutory entities) have likewise accepted that they are subject to the restraint against impeaching or questioning proceedings in Parliament.178

The restraint that article 9 imposes on the executive has a long reach. An executive inquiry to investigate the possible unauthorised disclosure of information accepted that it could not interview a member who had disclosed relevant Cabinet committee papers and Government documents in Parliament. Parliamentary privilege protected the member from being asked to disclose the source of the documents, or to produce the documents, or to disclose any information pertaining to the acquisition of the documents.179 However, the restraint has not always been respected. In 1978 a commission of inquiry was charged with investigating public statements made by a member of Parliament (the “Moyle affair”). The commission interpreted its terms of reference as authorising it to examine statements that had been made in the House, prompting one commentator to conclude that the

173 Human Rights Commission “No Commission of Inquiry” (17 October 2001) (select committee inquiry); Human Rights Commission “The Parliamentary Prayer” (22 November 2004).

174 Ombudsmen Quarterly Review (March 1996) (questions); Office of the Ombudsmen, report for the year ended 30 June 2001 (19 September 2001) NZPP A.3 at 21 (questions).

175 Ontario (Speaker of the Legislative Assembly) v Ontario (Human Rights Commission) (2001) 54 OR (3d) 595 (ONCA).

176 Pankiw v Canada (Human Rights Commission) [2007] 4 FCR 578. 177 For Australian examples see: Re Stiller and Department of Transport [2009] QICmr 8; Re Saffioti

and Minister for Transport; Housing [2012] WAICmr 10; in the United Kingdom, see Information Commissioner’s Office Decision Notice FS50116013 (6 August 2007).

178 (29 October 2003) PD LA (WA) 12804–12806 (though it was not conceded that they were actually questioning proceedings in that case); Jenkins v McCusker [2010] WASAT 100.

179 Paula Rebstock Report to the State Services Commissioner on the investigation into the possible unauthorised disclosure of information relating to the Ministry of Foreign Affairs and Trade (27 November 2013) at [100].



commission had “acted in breach of article 9 of the Bill of Rights and thus (in this respect) in excess of jurisdiction”.180 At that time, there seemed little doubt that a commission of inquiry or a royal commission was a “place” as that term is used in the Bill of Rights 1688, and was subject to the restrictions of parliamentary privilege in carrying out its task.181 The Parliamentary Privilege Act 2014 removed any room for conjecture when it clarified and affirmed the meaning of article 9. The prohibition against impeaching or questioning proceedings in Parliament was expressed to apply “[i]n proceedings in a court or tribunal”,182 and “tribunal” is defined as covering all inquiries to which section 6 of the Inquiries Act 2013 applies, namely royal commissions, public inquiries and Government inquiries.

The phrase “place out of Parliament” need not be restricted to bodies exercising statutory functions. In 1978 the Press Council, which was established by agreement between associations representing newspaper proprietors and journalists, declined 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 (in fact it was 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.183 The advice acted upon was not without precedent. In 1885 the House had treated an attempt by the Legislative Council to examine a member about a speech he had made in the House as a breach of privilege.184

THE HOUSE’S ExCLUSIVE RIGHT TO CONTROL ITS OWN PROCEEDINGSExclusive cognisanceA type of privilege closely related to freedom of speech is the right of the House to control its own proceedings free of outside interference.185 This right, it has been said, 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.186

The House is said to have “exclusive jurisdiction” or “exclusive cognisance” over how its proceedings are to be conducted, and the conduct of them is not subject to examination elsewhere.187 The courts do not enforce or review internal parliamentary processes, as these are matters for the House itself. As a matter of law, the courts recognise that the House’s internal decisions are conclusive within that sphere.188 This right is not dependent on article 9 of the Bill of Rights 1688, although it is clearly associated with it. Indeed, none of the leading cases on Parliament’s right to control its proceedings refers to article 9 at all.

Difficulty has been encountered in establishing the exact limits of exclusive cognisance: what specific matters should be left to be resolved by Parliament

180 DR Mummery “Freedom of Speech in Parliament” (1978) 94 Law Quarterly Review 276. 181 In Royal Commission into Certain Crown Leaseholds [1956] St R Qd 225 it was accepted that art 9 was

binding on a royal commission. In 1980 the commission of inquiry into the marginal lands affair requested that the House give leave for it to refer to Hansard during its inquiries: see (13 September 1980) [1980] JHR 204, 205 and 208.

182 Parliamentary Privilege Act 2014, s 11 (emphasis added). 183 Editor of the New Zealand Herald v Mr AG Malcolm MP New Zealand Press Council decision

(31 August 1978). 184 (1885) 53 NZPD 714. 185 Malcolm Jack (ed) Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament

(24th ed, LexisNexis, London, 2011) at 227. 186 Egan v Willis [1998] HCA 71, (1998) 195 CLR 424 at [107] per McHugh J. 187 Stockdale v Hansard (1839) 9 A & E 1, 112 ER 1112 (QB) at 233 per Coleridge J; Bradlaugh v Gossett

(1884) 12 QBD 271; Canada (House of Commons) v Vaid 2005 SSC 30, [2005] 1 SCR 667; R v Chaytor [2010] UKSC 52, [2011] 1 AC 684.

188 Geoffrey Marshall Constitutional Theory (Clarendon Press, Oxford, 1971) at 8.



rather than the courts?189 Some matters are clearly within the House’s exclusive cognisance: the core work of what is said and done in the House or its committees is protected by parliamentary privilege. The difficulty lies in assessing how far such protection applies to ancillary matters that occur outside of the proceedings themselves. Such matters are not part of the core work of the House, but they may be necessarily connected with it. When uncertainty arises, the courts must rule on the extent of Parliament’s exclusive cognisance.

Over the years, Parliament has conceded control over a good portion of its daily business. Under legislation and administrative changes, it has largely relinquished any claim to exclusive control of the administrative business of the House.190 Moreover, not all parliamentary business falls within the ambit of proceedings in Parliament. Matters concerning members’ expenses claims, for example, do not fall within Parliament’s exclusive cognisance.191

No examination of internal workingsInitially, the House’s internal rules—its Standing Orders—were submitted to the Governor for approval before coming into effect. This requirement was repealed in 1865 and the Standing Orders and other procedures of the House became a matter for the House alone to determine.192

The courts disclaim all power to intervene in cases of alleged non-compliance with the House’s rules of procedure. The Standing Orders are examples of the House giving orders to itself, which it has exclusive authority to do. It has been alleged in the courts that the legislature has passed a bill in contravention of its Standing Orders,193 or that it has been induced to pass a bill by fraud or deceit in contravention of its rules.194 In these cases, it was argued that the departure from the House’s rules had rendered the resultant Act invalid. However, the court in each case declined to examine the internal proceedings of the legislature, holding that litigants must petition Parliament itself for any redress: “[T]he remedy for a parliamentary wrong, if one has been committed, must be sought from Parliament, and cannot be gained from the courts”.195

It is a matter for the House to decide what business to consider, what legislation to pass, or what resolution to adopt.196 It would make no difference that any resulting legislation would be invalid or ineffectual, or that the House had been effectively wasting its time.197 If the House relies on a particular resolution as having legal significance, a court may be required to determine whether the resolution had the meaning claimed.198 But 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.199 It is also exclusively for the House to discipline its own members, and it is not for the courts to intervene in such matters.200 The House might properly decide to suspend or admonish a member (matters clearly within its exclusive cognisance), but the courts would not lack jurisdiction if, for

189 See R v Chaytor [2010] UKSC 52, [2011] 1 AC 684 and Joint Committee on Parliamentary Privilege (UK) Parliamentary privilege: report of session 2013–14 [2013] HL Paper 30, HC 100 at [20]–[40].

190 R v Chaytor [2010] UKSC 52, [2011] 1 AC 684 at [89]. 191 R v Chaytor [2010] UKSC 52, [2011] 1 AC 684; Slipper v Magistrates Court of the ACT [2014]

ACTSC 85. 192 Ontario (Speaker of the Legislative Assembly) v Ontario (Human Rights Commission) (2001) 54 OR

(3d) 595 (ONCA). 193 Ram Dubey v Government of Madhya Bharat [1952] AIR (Madhya Bharat) 57; Namoi Shire Council

v Attorney-General (New South Wales) [1980] 2 NSWLR 639 (SC). 194 Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308 (PC); British Railways

Board v Pickin [1974] AC 765 (HL). 195 British Railways Board v Pickin [1974] AC 765 (HL) at 793 per Lord Wilberforce. 196 Reference re Amendment of the Constitution of Canada (Nos 1, 2 and 3) (1982) 125 DLR (3d) 1 (SCC). 197 Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] AC 1136 (PC). 198 Stockdale v Hansard (1839) 9 A & E 1, 112 ER 1112 (QB); Dyson v Attorney-General [1912] 1 Ch 158. 199 Egan v Willis [1998] HCA 71, (1998) 195 CLR 424; Hamilton v Al Fayed [1999] 1 WLR 1569 (CA). 200 Re Nalumino Mundia [1971] ZR 70.



example, the House sought to expel a member in disregard of the Parliamentary Privilege Act 2014.201 House reports to its committees on internal disciplinary matters prepared by parliamentary officers are also part of the House’s internal proceedings, and beyond the jurisdiction of the courts.202

Different considerations apply if a statute prescribes a mode of dealing with a matter. In such cases, Parliament has given an order to the House, which it, as a publicly constituted body, is bound to obey: “Parliament is subject to law just like every other person and body in New Zealand; it is bound by statutory requirements”.203 The House and its members are subject to the law as promulgated by Parliament, and they must comply with any statute that applies to the House’s proceedings. This is notwithstanding any Standing Order or practice of the House to the contrary.204

Where Parliament enacts a “manner and form” provision prescribing the procedures to be followed in enacting legislation (for example, a special majority of the House or a majority at a national referendum),205 compliance with the manner and form is an essential condition of legal validity.206 In a legal challenge, a court must be satisfied that the House has complied with the manner and form, and will not be prevented from viewing the House records to allay any uncertainty. A challenge to the validity of legislation that banned fox hunting in the United Kingdom confirmed the court’s jurisdiction to rule on questions of law, even questions concerning the internal workings of the House.207 A manner and form provision under the Parliament Acts of 1911 and 1949 (UK) authorised the enactment of legislation without the assent of the House of Lords, and it was argued that the Commons had failed to comply properly with the prescribed procedure. The House of Lords held that the issue centred on statutory interpretation of the 1911 and 1949 Acts, and that the proper interpretation of statutes is a matter for the courts, even if it relates to the legislative process.208 However, a court will accord the House latitude to determine under its established procedures how it will comply with the manner and form.

In a 19th-century English case, the question arose whether the House of Commons had the exclusive power to interpret a statute that applied to its internal procedures.209 The statute authorised members to make an affirmation rather than take an oath before taking their seat in the House. The court held that the House had the sole authority to interpret the statute so far as the regulation of its proceedings within its own walls was concerned, and that, even if an interpretation was erroneous, the court had no power to interfere with it directly or indirectly. However, this ruling was made subject to one important proviso: that the application of the statute to the House’s internal workings did not affect third-party rights that could be exercised under the general law. The court ruled: “[A]s regards rights to be exercised out of and independently of the House … the statute must be interpreted by this Court independently of the House”.210 In 2001 a decision of the Niue Court of Appeal affirmed the caveat concerning third-party

201 Parliamentary Privilege Act 2014, s 23(1) (the House has no power to expel a member). 202 R v Parliamentary Commissioner for Standards, ex parte Al Fayed [1998] 1 WLR 669 (CA). 203 Shaw v Commissioner of Inland Revenue [1999] 3 NZLR 154 (CA) at [13] citing David McGee “The

Legislative Process and the Courts” in Philip A Joseph (ed) Essays on the Constitution (Brookers Ltd, Wellington, 1995) at 84.

204 Simpson v Attorney-General [1955] NZLR 271 (CA) at 282; Jackson v Attorney-General [2005] UKHL 56, [2006] 1 AC 262 at [163].

205 Compare the Electoral Act 1993, s 268. 206 Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40 (HC). 207 Jackson v Attorney-General [2005] UKHL 56, [2006] 1 AC 262. 208 Jackson v Attorney-General [2005] UKHL 56, [2006] 1 AC 262 at [49]–[51]. 209 Bradlaugh v Gossett (1884) 12 QBD 271. 210 Bradlaugh v Gossett (1884) 12 QBD 271 at 282.



rights,211 and in Awatere Huata v Prebble the Court of Appeal indicated that the Niue decision would probably also represent the law of New Zealand.212

Subject to that caveat, the courts will not be drawn into trespassing upon the province of Parliament. They will not issue orders that require members of Parliament to act in a particular way within Parliament in their capacity as members. It would transgress Parliament’s exclusive cognisance, for example, for a court to make an order or declaration that imposed a duty on a member to introduce a bill to require a referendum on a particular Government initiative.213 In 2014, the United Kingdom Supreme Court declined to entertain a challenge to a Government decision that would have entailed the Court scrutinising Parliament’s internal workings. The issues were whether a decision to promote a high-speed rail link was compatible with an EU directive, and whether a proposed hybrid bill procedure would comply with procedural requirements of European law. Scrutinising the workings of Parliament and examining whether they satisfied externally imposed criteria would have involved questioning (and potentially impeaching) Parliament’s internal proceedings, contrary to what any United Kingdom court had ever attempted.214

Exclusive control and the New Zealand Bill of Rights Act 1990The courts have disclaimed jurisdiction to review the discharge of the Attorney-General’s function of reporting to the House any bill that appears to conflict with the rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990.215 The Attorney-General’s reporting function is discharged as part of a proceeding in Parliament and is absolutely privileged under article 9. Any control of it falls to the House to exercise, to the exclusion of the courts. Similarly, it is for the House to devise procedures and practices to give effect to the protected rights so far as they are to be exercised within the proceedings of Parliament, and to decide in individual cases how these rights are to be applied.

The Court of Appeal has held that any intrusion upon the Attorney-General’s reporting function under the Bill of Rights Act would breach the principle of comity and mutual restraint between Parliament and the courts. This would happen, for example, were a court to direct the Attorney-General to report a particular bill to the House, or that it be reintroduced with the Attorney-General affixing a report.216 However, it would not be a breach of article 9 for a court to conclude that a statute was inconsistent with the New Zealand Bill of Rights Act 1990. Nor, indeed, would the making of a formal declaration of inconsistency infringe article 9. When the High Court made such a declaration in 2015, the Court did not regard itself as infringing article 9.217 The issue of whether or not a statute is consistent with the Bill of Rights Act is a pure question of law that entails no intrusion on Parliament’s internal workings.

There is no prohibition on a court substituting its own interpretation of a statute for that of the House’s in respect of proceedings outside Parliament. The court might protect third-party rights under the statute that could be exercised outside and independently of the House.218 The House’s right to interpret how a

211 Kalauni v Jackson [2001] NZAR 292 (Niue CA). The Niue court comprised three New Zealand judges: Casey, Hillyer and Keith JJA.

212 Awatere Huata v Prebble [2004] 3 NZLR 359 (CA) at [54]–[59]. 213 R (on the application of Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin) at [49]. 214 R (on the application of HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3

at [206]. 215 Mangawaro Enterprises Ltd v Attorney-General [1994] 2 NZLR 451 (HC); Boscawen v Attorney-

General [2009] NZCA 12, [2009] 2 NZLR 229; Taylor v Attorney-General [2014] NZHC 1630; Mangawhai Ratepayers’ and Residents’ Association Inc v Kaipara District Council [2014] NZHC 1147.

216 Boscawen v Attorney-General [2009] NZCA 12, [2009] 2 NZLR 229 at [36]. 217 Taylor v Attorney-General [2015] NZHC 1706 at [65] and [69] per Heath J (a decision under appeal). 218 Haridasan Palayil v Speaker of the Kerala Legislative Assembly [2003] AIR (Kerala) 328 (penalties

imposed for sitting and voting without having taken prescribed oath; court obliged to determine if oath taken in proper form).



statute applies to its own proceedings cannot affect the exercise of legal rights or powers outside Parliament.

EVIDENCE OF DEBATES AND PROCEEDINGS IN PARLIAMENTAuthority to refer to debates and proceedingsHistorically, the House of Commons took a very restrictive view of attempts to report its debates or proceedings. Although such reports had come to be tolerated by the 19th century,219 it was nevertheless a technical breach of privilege to report the House’s proceedings220—a position that remained intact until 1971. To raise such proceedings before a court was regarded as even more serious, with litigants running the risk of being held in contempt. The practice gradually emerged of litigants petitioning the House for leave to refer to its proceedings, where the proceedings were relevant to litigation. By obtaining the House’s prior approval to report its proceedings, litigants insured themselves against the House holding them in contempt.

This practice was not a means of securing release from the strictures of the Bill of Rights 1688. Any use of materials that would involve impeaching or questioning proceedings in Parliament was unlawful, and the courts would not hesitate to prevent any such incursion. However, the courts would not forbid uses of parliamentary materials that did not trigger Bill of Rights protection. The admissibility of Hansard and the House records as evidence in court did not depend on the House having granted leave for their production. Rather, the House’s approval was an assurance for persons using parliamentary materials that they would not come into conflict with the Commons for a breach of its privileges. In 1980 the House of Commons formally abandoned the practice of litigants petitioning it for leave, and granted a general authority to refer to its proceedings. The general authority specifically reaffirms the continuing applicability of article 9 of the Bill of Rights 1688 to any use of those proceedings.221

It is doubtful whether the practice of petitioning for leave to refer to parliamentary proceedings ever truly applied in New Zealand. The House of Representatives never took the restrictive view of the publication of its proceedings that was taken by the House of Commons, and never considered it a breach of privilege to report or publish its proceedings (except secret sessions). From its inception, the House was keen to encourage reports of its proceedings, and it instituted an official report of parliamentary debates in 1867. Hansard, in contrast, 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. One early application sought leave to produce as evidence a petition and minutes of the evidence on the petition, but the House refused permission.222 In later cases, leave was invariably granted, although there was no settled practice of litigants applying for leave in all cases.

In 1996 the House resolved any uncertainty by adopting the House of Commons’ practice of granting a general leave for its proceedings to be referred to in legal proceedings.223 The House made it clear that, by granting a standing permission, it was not intending to derogate from or waive article 9 of the Bill of Rights 1688. It reiterated that any use of parliamentary proceedings in court must

219 Wason v Walter (1868) LR 4 QB 73 at 95 per Cockburn CJ. 220 Malcolm Jack (ed) Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament

(24th ed, LexisNexis, London, 2011) at 223. 221 Ibid, at 229. 222 (1880) 37 NZPD 212–215. 223 SO 411(1).



be in accordance with that provision.224 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 before their report to the House.225

Evidence by membersMembers of Parliament are in no special position regarding the evidence that they may give of proceedings in Parliament, although they may obtain exemption from court attendance as witnesses.226 The frequency of vexatious litigation means that ending this privilege could interfere with a member’s primary duty to attend Parliament.227 The question has arisen of whether or not members of Parliament can be compelled to give evidence of proceedings in Parliament.228 Members may tender such evidence as is consistent with the House’s freedom of speech, as now reaffirmed and clarified by the Parliamentary Privilege Act 2014.229 Mere factual evidence of what has occurred in Parliament, for example, would not offend against the House’s privilege.230 If the use of evidence that members give does offend against that privilege, then the fact that a member proposes to give it does not make the evidence admissible.231 Members may claim no exemption from the strictures of article 9. Nor may a member claim any parliamentary immunity from producing, or disclosing the source of, information he or she has received, even if the information has been used in Parliament.232 However, the court may take into account the broad functions of a member of Parliament in exercising discretion whether or not to order production or to compel the giving of evidence.

In the United Kingdom, members have sometimes objected to presenting evidence of parliamentary proceedings, given the House of Commons’ former practice of attempting to suppress reports of its proceedings. On such occasions, the courts have held that the express permission of the House was necessary in order to compel the member’s evidence. The need for permission was regarded as an aspect of the House’s privilege of control over its own proceedings.233 However, Australasian legislatures have never asserted a general practice of suppressing reports of proceedings, and there seems to be no reason in principle why such evidence should not be compellable at the court’s discretion. The fact that the House had not been consulted would be merely one factor the court would take into account in exercising the discretion.

A court would be expected to respect any confidentiality attaching to specific parliamentary proceedings ordered by the House or applying by virtue of the Standing Orders. This would be so whether or not the court was exercising its discretion to compel evidence or to receive it in the first place.234 Any member

224 SO 411(2). See Standing Orders Committee Review of Standing Orders (13 December 1995) [1993–1996] AJHR I.18A at 78–79; Privileges Committee Question of privilege concerning the defamation action Attorney-General and Gow v Leigh (11 June 2013) [2011–2014] AJHR I.17A at 17–18.

225 SO 411(3). 226 Parliamentary Privilege Act 2014, ss 26–28 (members) and s 29 (Speaker). 227 Joint Committee on Parliamentary Privilege (UK) Parliamentary privilege: report of session 2013–14

[2013] HL Paper 30, HC 100 at [265]. 228 See, for example: Plunkett v Cobbett (1804) 5 Esp 136, although the reasoning turned on the House’s

former prohibition on report of debates, which is no longer relevant. 229 Parliamentary Privilege Act 2014, pt 2, sub-pt 2 (especially ss 11–15). 230 Sankey v Whitlam (1978) 142 CLR 1 at 35–38 per Gibbs ACJ. 231 Rost v Edwards [1990] 2 QB 460. 232 Reference re Legislative Privilege (1978) 18 OR (2d) 529 (ONCA); Attorney-General v Lightbourn

(1982) 31 WIR 24; O’Chee v Rowley (1997) 150 ALR 199 (QCA). 233 Malcolm Jack (ed) Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament

(24th ed, LexisNexis, London, 2011) at 228–230. 234 Parliamentary Privilege Act 2014, s 12 (documents or oral evidence received in private, or received

or heard as secret evidence). The prohibitions in s 12 apply to a court or tribunal (even if a member consents or would consent to the court or tribunal using the documents or oral evidence), unless the House or a Committee has communicated, or authorised the communication of, the document or oral evidence.



giving evidence would be under a duty to object if the parliamentary proceedings were confidential. The House has expressly reserved this point in its general permission for evidence to be given of its proceedings; no reference may be made in court to such proceedings contrary to any order of the House relating to their disclosure.235 The Parliamentary Privilege Act 2014 also directs that no court may require any document submitted in confidence to the House or a committee to be admitted into evidence.236 If a member suspects that he or she may be compelled to give evidence in breach of that Act or contrary to an order of the House, the member may raise this with the House, which might seek leave of the court to intervene in the proceedings.

evidence by parliamentary officialsThe House maintains a special rule for parliamentary officials, who may be called upon to tender evidence in court of parliamentary proceedings. The rule applies whether the officer of the House gives evidence in person or by affidavit. The relevant Standing Order covers the Clerk and all other officers of the House (which includes all staff of the Office of the Clerk237), and any other person employed to make a transcript of proceedings of the House or of any of its committees. Such officers and persons may not give evidence of Parliament’s proceedings without the authority of the House.238 This Standing Order is directed solely to the way evidence of parliamentary proceedings may be obtained; it does not prohibit the use of parliamentary proceedings before a court or other tribunal. The Bill of Rights 1688 and the accompanying Parliamentary Privilege Act 2014 set out the legal prohibition on such uses. Parliamentary officials are bound by the Standing Orders and the giving of any evidence by them must comply with the House’s own rules on the disclosure of its proceedings.239

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, 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.

CONTROL OVER THE PARLIAMENTARY PRECINCTSThe Speaker as occupierThe House, through the Speaker, exercises the control over the parliamentary precincts necessary for the proper functioning of a legislature. This control can include excluding persons from the parliamentary precincts, although any control exercised by the Speaker as occupier must comply with the New Zealand Bill of Rights Act 1990.240 (See pp 158–160.) Parliament is not a sanctuary and its members are not above the law.241 The New Zealand Bill of Rights Act 1990 specifically applies to the legislative branch of government,242 which enjoins the compliance of the House as a constituent element.

Exercise of enforcement and information-gathering powersParliaments have sought to establish procedures with external agencies about the exercise of enforcement or information-gathering powers, to ensure a

235 SO 411(3). 236 Parliamentary Privilege Act 2014, s 12. 237 Clerk of the House of Representatives Act 1988, s 18. 238 SO 412; for example: see (12 September 2006) 634 NZPD 5327 Wilson. 239 SO 411(3). 240 Police v Beggs [1999] 3 NZLR 615 (HC); Rongonui v Police HC Wellington CRI-485-46,

5 October 2010. 241 R v Chaytor [2010] UKSC 52, [2011] 1 AC 684 at [80]; Field v R [2010] NZCA 556, [2011] 1 NZLR 784

at [20]. 242 New Zealand Bill of Rights Act 1990, s 3(a).



common understanding of how such powers might be exercised without infringing parliamentary privilege.243 In New Zealand, the Speaker has entered into agreements with the Commissioner of Police regarding policing functions within the parliamentary precincts, including the execution of search warrants on premises occupied or used by members of Parliament.244 The Speaker has also entered into a memorandum of understanding with the New Zealand Security Intelligence Service and the Minister in Charge of the New Zealand Security Intelligence Service, which concerns the collection and retention of security intelligence information.245 This memorandum was entered into following a report by the Inspector-General of Intelligence and Security on a complaint by a member of Parliament.246

These documents record the mutual understandings about the checks and balances that apply regarding the protection of the privileges of the House and about the ability of enforcement and surveillance agencies to undertake their duties. These agreements do not confer new powers on the agencies or protections on the House but they do provide a framework for the agencies to go about their lawful functions without breaching parliamentary privilege.

Control of parliamentary informationControl over the parliamentary precincts also extends to the management and release of information held on parliamentary information and security systems. Dealing with information within the parliamentary precincts and by members of Parliament has become highly complex. There are different categories of information, some of which have special protection, such as proceedings in Parliament. Information might also be held by people in different capacities: as ministers, as members of Parliament, as party members, or as staff or journalists working in the parliamentary precincts. Concern has been expressed that Parliament’s information and security systems might cause proceedings in Parliament to be released inadvertently, or in ways that would compromise the protection afforded by parliamentary privilege. On one occasion, much personal information was released to an executive inquiry without the knowledge or consent of the member or journalist concerned, or the Speaker. The information included the metadata of the member’s and journalist’s emails, telephone logs and security records of swipe card usage within the precincts. This prompted the House to adopt a protocol to protect parliamentary information against improper disclosure.247

The protocol takes account of the distinct roles and functions of the key groups who operate within the parliamentary precincts, and the different categories of information held on parliamentary information and security systems. The protocol sets out principles to guide the release of information so that the privacy interests of members and others working within the parliamentary precincts are not compromised. The principles are, in summary, as follows.

243 For example, see House of Commons (UK) Committee on Issue of Privilege Police searches on the parliamentary estate [2009–2010] HC 62; Memorandum of understanding on the execution of search warrants in the premises of members of the New South Wales Parliament between the Commissioner of Police, the President of the Legislative Council and the Speaker of the Legislative Assembly (November 2010).

244 See the agreement between the Speaker and the Commissioner of Police regarding policing functions within the parliamentary precincts (18 December 2007); and the agreement between the Speaker and the Commissioner of Police regarding the execution of search warrants on premises occupied or used by members of Parliament (7 November 2006).

245 See Privileges Committee, interim report on a question of privilege concerning the agreements for policing, execution of search warrants, and collection and retention of information by the NZSIS (11 June 2013) [2011–2014] AJHR I.22B at App B (Memorandum of understanding between the New Zealand Security Intelligence Service, and the Minister in Charge of the New Zealand Security Intelligence Service and the Speaker (December 2010)).

246 Ibid, at App B. 247 (22 July 2014) 700 NZPD 19325–19338.



o There should be a presumption that information held on the parliamentary information and security systems should not be released.

o Individual members should retain complete control over the release of information that relates to them and must specifically agree to its release.

o Journalists working in the parliamentary precincts should retain complete control over the release of information that relates to them and must specifically agree to its release.

o The Speaker of the House should be the ultimate decision-maker where information requests do not relate to an individual member.248

The protocol also requires the parliamentary agencies to develop guidelines for dealing with requests about parliamentary administration, that balance openness and transparency, privacy principles and parliamentary independence.

POWER TO CONTROL ACCESS TO ITS SITTINGSThe House possesses the power to control access to its sittings by regulating the attendance and conduct of members and non-members at sittings, and by excluding strangers as it sees fit.249

Proceedings in the HouseThe House’s privileges include the power to suspend members from the business of the House if this is necessary for the House to conduct its business in an orderly fashion.250 The House has rules for the maintenance of order, setting out when members may be excluded from the Chamber.251 (See pp 152–155.)

Strangers are normally allowed to be present during all sitting hours of the House. However, any member of the House may move, without notice: “That strangers be ordered to withdraw”.252 A debate, but not a member speaking, may be interrupted to deal with such a motion.253 The motion is decided immediately, without amendment or debate.254 If it is carried, the public galleries are cleared immediately, the broadcasting of 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 is noted by the Clerk for the journal.255

Exigencies during the Second World War demanded that some sessions of the House were held under secrecy. After ordering the exclusion of strangers, the House sometimes resolved that the rest of the sitting should be a secret session. Under regulations, it was an offence to publish a report of such proceedings in any public speech, newspaper, periodical, circular or other publication, unless the Speaker had officially authorised the report.256 Members were prohibited from discussing or commenting in the House on what had passed at secret sessions.257 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 confidential and was not attributed as having been discussed at a secret session.258

248 Privileges Committee Question of privilege regarding use of intrusive powers within the parliamentary precinct (11 July 2014) [2011–2014] AJHR I.17C at App C.

249 New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly) [1993] 1 SCR 319, (1993) 100 DLR (4th) 212.

250 Egan v Willis (1996) 40 NSWLR 650 (CA). 251 SOs 89–93. 252 SO 41(1). 253 SO 132(f). 254 SO 41(2). 255 SO 42. 256 Parliamentary Secret Session Emergency Regulations 1940; (1940) 257 NZPD 123. The regulations,

made by Order in Council on 5 June 1940, were never published. 257 (1940) 257 NZPD 135, 455. 258 (1941) 259 NZPD 287–288.



The first secret session was held on 5 June 1940,259 followed by 17 further secret sessions. On one occasion, the galleries were cleared on the Speaker’s own authority.260 However, officials, such as the chiefs of staff and members of the Press Gallery (“who were forbidden to report anything”)261 were admitted to some secret sessions.262 The secret sessions regulations were revoked, along with several other emergency regulations, in 1947.263

Subject to any order of the House, the Speaker controls admission to the galleries and may make rules for the conduct of persons admitted to them.264 The Speaker has ordered all strangers to withdraw from the galleries when the subject under debate warranted their withdrawal.265 The Speaker or the Serjeant-at-Arms may require strangers to withdraw where they interrupt proceedings or otherwise misbehave.266

Select committee proceedingsAdmission to and exclusion from meetings of select committees are dealt with earlier, as are the circumstances in which reports of proceedings of select committees may be divulged before the committee reports to the House. (See Chapters 22–23.) The unauthorised release of select committee proceedings or reports may be adjudged in contempt of the House. (See pp 771–772.)

Official InformationThe House’s privilege of maintaining the confidentiality of parliamentary materials is recognised in the statutes that provide for access to information. Requests for access to parliamentary materials may be declined if to release them would lead to a contempt of the House.267 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 such documents, and thereby committing a breach of privilege.

POWER TO HOLD INQUIRIESThe House has inherent power to inquire into any matter that it considers needs investigation. Select committees likewise possess this power.268

POWER TO OBTAIN EVIDENCETo facilitate the exercise of its power to inquire, the House may obtain information and evidence by summoning witnesses and ordering the production of documents. This power may be delegated to a select committee as “the power to send for persons, papers and records”. (See pp 494–497.)

259 (1940) 258 NZPD 546. 260 (1942) 261 NZPD 930. 261 Michael Bassett with Michael King Tomorrow Comes the Song—A Life of Peter Fraser (Penguin Books

(NZ) Ltd, Auckland, 1993) at 243–244. 262 (1942) 261 NZPD 423; (1943) 262 NZPD 517. 263 Emergency Regulations Continuance Act 1947, s 6. 264 SO 44; Rt Hon Jonathan Hunt MP, rules for admission to the Chamber, lobbies and galleries of the

House of Representatives during the sittings of the House (4 July 2000). 265 (1891) 74 NZPD 98. 266 SO 43. 267 Official Information Act 1982, s 18(c)(ii); Local Government Official Information and Meetings Act

1987, s 48(1)(b); Privacy Act 1993, s 29(1)(i). 268 SO 189(2). See Chapter 30.



POWER TO ADMINISTER OATHSThe House and its committees have the power to administer oaths to witnesses. This power is set out in section 24 of the Parliamentary Privilege Act 2014, re-enacting section 252 of the Legislature Act 1908. (See p 498.)

POWER TO DELEGATEThe House has always exercised a power to form committees of members and to delegate to them parliamentary functions and powers. It has been said that parliamentary committees are extensions of the legislature and derive their authority from it, and that while acting within the scope of their delegated authority they are every bit as “parliamentary” as the legislature as a whole.269 The functions so delegated to committees include the examination of legislation, Estimates, treaties, petitions, and the conduct of inquiries. The powers the House delegates to committees are ancillary to the carrying out of these functions. These powers include disciplinary authority over committee members and authority to regulate access to committee proceedings. Coercive power to require persons to attend committees and produce papers or documents is no longer generally delegated to committees.

The House may also delegate powers to individual members in their own right. It does so through the Speaker, who exercises considerable power, both within the House and outside the Chamber, to make decisions that would otherwise need to be taken by the House. For example, the Speaker is delegated the power to issue a summons at the request of a select committee, requiring a person to appear before the committee or to produce papers or documents to it. The House may also delegate its powers to non-members, specifically officers of the House, such as the Clerk of the House and the Serjeant-at-Arms, who exercise powers on its behalf. The Speaker, acting on behalf of the House, retains oversight over the exercise of the powers so delegated. However, the House does not delegate the power to punish for contempt, as this power is exercised so as to uphold the dignity and authority of the House itself. (See Chapter 46.)

It is uncertain how far, if at all, the House may delegate its functions (as opposed to powers) to non-members, and give them parliamentary authority. In the past, the House has enacted specific legislation when it has wanted another body or group of persons to carry out its functions.270 The analogous situation is where Officers of Parliament carry out functions on behalf of the House, which is invariably authorised under statute.271 (See Chapter 47.)

POWER TO PUNISH FOR CONTEMPTThe House’s power to punish for contempt is discussed separately in Chapter 46.

POWER TO ExERCISE DISCIPLINE OVER MEMBERSMembers are exempt from being punished or disciplined outside the House on account of what they say or do in the course of parliamentary proceedings. Conversely, members are accountable to the House for their conduct in parliamentary proceedings. The House’s rules of order in debate subject members to the discipline of the House, which may ultimately suspend members from service in the House or on its committees. (See pp 152–153.)

269 Attorney General (Canada) v MacPhee 2003 PESCTD 6 at [41]. 270 Awarua Seat Inquiry Act 1897 (determination of membership of the House). 271 Finance and Expenditure Committee Report on the inquiry into Officers of Parliament

(21 March 1989) [1987–1990] AJHR I.4B. See Chapter 7.



POWER TO FINEThe House’s power to fine members or others is confirmed in the Parliamentary Privilege Act272 and is discussed in Chapter 47.

POWER TO ARRESTThe House’s power to arrest or commit persons into custody is discussed in Chapter 47.

POWER TO CONTROL REPORTS OF ITS PROCEEDINGSOne of the incidents of the House’s freedom of speech in debate is its power to control the extent to which its proceedings may be reported. Historically, the House of Commons was innately suspicious of reports of its proceedings circulating, and, until as late as 1971, treated such reports as technical breaches of privilege. In contrast, the House of Representatives has never sought to protect the confidentiality of its debates but has done quite the opposite in seeking to publicise its proceedings. Nevertheless, it has consistently asserted the power to control the release of reports of its proceedings. The House treats the release of proceedings of committees differently from release of the proceedings of the House itself. It has always 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 remain confidential until the committee reports to the House. Premature disclosure of such matters may be treated as a contempt.273

The House has never sought to embargo its proceedings under confidentiality orders, except during periods in the Second World War (1939–1945) when the House ordered secret sessions.274 The proceedings of the House have been broadcast on radio since 1936 and have been available for television broadcasting since 1988.

DISQUALIFICATION OF MEMBERS FROM JURY SERVICEThe House of Commons has always claimed under privilege that its members are exempt from being required to serve on juries. The law expressly regulates this matter in New Zealand. The Juries Act 1981 provides that the Governor-General, members of the Executive Council and members of Parliament are not to serve on any jury in any court on any occasion.275

ExEMPTION FROM LIABILITY FOR PARLIAMENTARY PUBLICATIONSAt common law, no privilege existed to protect any parliamentary publication from legal liability. It was no defence to a legal action that a document on which an action was based was published by order of the House.276 In 1840 the United Kingdom Parliament passed specific legislation in order to protect such publications from legal liability.277 The New Zealand Parliament passed equivalent legislation in 1856.278 The Parliamentary Privilege Act 2014 now provides comprehensive protection for the communication of parliamentary proceedings under the

272 Parliamentary Privilege Act 2014, s 22. 273 SOs 239(1), 240(1), 241(1) and 410(q). 274 See “Power to control access to its sittings”, p 750. 275 Juries Act 1981, s 8. 276 Stockdale v Hansard (1839) 9 A & E 1, 112 ER 1112 (QB). 277 Parliamentary Papers Act 1840 (UK). 278 Privileges Act 1856.



authority of the House or a committee, in any form or medium, whether live or delayed.279 (See also pp 622–624.)

Examples of “communication” of a document or proceedings include:280

o delivery of a printed copy of the document o email of an electronic copy of the document o internet posting of an electronic copy of the document o radio broadcast of, or an audio file of, the proceedings o television broadcast of, or of a video file or recording of, the proceedings o internet webcast or podcast of, or of an audio or video file or recording of,

the proceedings o transmission of the document, or of an audio or video file or recording of,

the proceedings.

If civil or criminal proceedings are commenced against a person regarding a communication made under the authority of the House or a committee, the Speaker may grant a certificate that may be lodged in any court or tribunal, which must then stay the proceedings.281

The House has broadcast its proceedings on radio since 1936, but this did not occur by order of the House until 1962.282 The live and recorded television and webcast coverage of the House and the public proceedings of select committees is made under the authority of the House.283 The House has published official reports of its proceedings (Hansard) since 1867, but initially did so under the authority of the Government. Today it is published under the House’s authority in accordance with determinations and rules made and approved by the House or by the Speaker.284

The Copyright Act 1994 provides that copyright is not infringed by anything done for the purposes of parliamentary proceedings or the reporting of them.285 Where copyright material is used in parliamentary proceedings, liability was unlikely to arise in any event. The Copyright Act declares that nothing in the Act “affects any right or privilege of the House of Representatives”.286 It is unlikely, however, that republication of documents generated in the parliamentary process (other than as a report of parliamentary proceedings) for commercial purposes or private gain will be protected from liability.287

FREEDOM FROM ARRESTMembers 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 until 40 days after its termination.288 The 40-day period after the end of the session continues to run when Parliament stands dissolved,289 even if the person claiming the privilege was a member of the old Parliament but was not re-elected

279 Parliamentary Privilege Act 2014, s 17; SO 3(4). 280 See the examples given in the definition of “communication” in s 5(1) of the Parliamentary Privilege

Act 2014. 281 Parliamentary Privilege Act 2014, s 17. 282 SO 46(1). 283 SO 46(2). 284 SO 9. 285 Copyright Act 1994, s 59. 286 Copyright Act 1994, s 225(1)(c). 287 (18 February 2002) 2 PD HR (Aust) 380. 288 Goudy v Duncombe (1847) 1 Ex 430, 154 ER 183; In the matter of Pillalamarri Venkateshwarlu [1951]

AIR (Madras) 269; Ainsworth Lumber Co v Canada (Attorney General) (2003) 226 DLR (4th) 93 (BCCA).

289 Barnard v Mordaunt (1754) 1 Keny 125.



in the new Parliament.290 In New Zealand and also in the United Kingdom, it has been recommended that this privilege be abolished.291

This privilege has lost most of its relevance following the practical abolition of imprisonment for debt in New Zealand. Legislation enacted in 1874 abolished imprisonment for failure to pay moneys owing, except in very restrictive circumstances.292 However, members are not exempt from arrest in criminal matters (see discussion following), and are not immune from detention under an inpatient order for mental disorder.293

A similar privilege of freedom from arrest in civil process applies to the following persons: witnesses summoned to attend before the House or a committee; witnesses in attendance upon the business of the House; and officers of Parliament in personal attendance on the House.294 The privilege enjoyed by witnesses attending upon the House or a committee subsists while they are coming to or going from the House.

Criminal mattersThere is no general immunity from the criminal law for members of Parliament. The privilege of freedom from arrest applies only to civil proceedings. It does not protect members from arrest in criminal matters or from detention under emerg - ency powers.295 Parliament has never challenged the general application of the criminal law within its precincts. The fact that a crime has been committed in the House or within its precincts is no bar to the jurisdiction of the criminal courts.296 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, therefore, will be con-cerned to ensure that a member has not been arrested on account of anything said in House debates or a committee of the House.297 The United Kingdom Supreme Court has distinguished between “ordinary crimes” (such as murder, assault or theft, which can be prosecuted in the criminal courts) and crimes committed in the exercise of a member’s freedom of speech in debate (which cannot be prosecuted in the courts).298

The distinction between “ordinary” and “parliamentary” crimes has supported several prosecutions in the courts against members of Parliament. In 2003–2005, a member accepted free or low-cost labour on his properties by people who sought his assistance with immigration matters. Following allegations of corruption, an executive inquiry was commenced into the member’s conduct and the Speaker ruled that no question of privilege arose as the matter did not involve a parliamentary process.299 The police then investigated and arrested the member, who was charged and convicted at trial under the Crimes Act 1961 of bribery and corruption as a member of Parliament.300 During the inquiry, police investigation and criminal trial, no issue of parliamentary privilege arose.

290 Re Anglo-French Co-operative Society (1880) 14 Ch D 533. 291 See Standing Orders Committee Report on the Parliamentary Privilege Bill (15 October 1999)

[1996–1999] AJHR I.18C at 6; Joint Committee on Parliamentary Privilege (UK) Parliamentary privilege: report of session 2013–14 [2013] HL Paper 30, HC 100 at [257], which concurred with the recommendations of the 1999 Joint Committee that this privilege should be formally abolished.

292 See now Imprisonment for Debt Limitation Act 1908. 293 Electoral Act 1993, ss 55 and 56. Compare orders under the Alcoholism and Drug Addiction Act 1966,

proposed to be replaced by the Substance Addiction (Compulsory Assessment and Treatment) Bill (116–1).

294 Malcolm Jack (ed) Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (24th ed, LexisNexis, London, 2011) at 249–250.

295 Ibid, at 243–245; R v Chaytor [2010] UKSC 52 at [80]. 296 R v Chaytor [2010] UKSC 52 at [80]; Field v R [2010] NZCA 556, [2011] 1 NZLR 784 at [20];

Slipper v Magistrates Court of the ACT [2014] ACTSC 85. 297 In the matter of Pillalamarri Venkateshwarlu [1951] AIR (Madras) 269. 298 R v Chaytor [2010] UKSC 52 at [113]. 299 (26 July 2006) 632 NZPD 4404–4405 Wilson. 300 Field v R [2010] NZCA 556, [2011] 1 NZLR 784; [2011] NZSC 129, [2012] 3 NZLR 1.



A member convicted of a crime is in the same position as any other convicted person. However, in addition to the penalty imposed, the member will also lose his or her seat in the House if the crime carries a penalty of imprisonment of two years or more, or if the member is committed to prison and fails, without obtaining leave of absence, to attend the House for a whole session.301 The fact that a member who is lawfully imprisoned is at peril of losing his or her seat for not attending the House is no ground for a court to grant relief against the detention.302 Although members enjoy no freedom from arrest in criminal matters, the House expects to be informed of the arrest or detention of any of its members. The arresting or sentencing authority must inform the Speaker of the circumstances by letter.303 A member who is arrested or detained is entitled to communicate with the Speaker on parliamentary business.304

In 2014 a member of Parliament resigned following his conviction for an offence under the Local Electoral Act 2001, which carried a penalty that could have triggered a vacancy under the Electoral Act 1993. On appeal the conviction was quashed and a new trial ordered.305

Contempt of courtIt has been said that members’ immunity from arrest does not apply in respect of contempt of court.306 This depends upon whether or not the contempt is of a criminal or civil nature.307 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.308 Members in New Zealand have been proceeded against for contempt of court, and one member has been found to be in contempt.309

The distinction between civil and criminal contempt is key. Proceedings for the former type of contempt are brought “to compel performance of a civil obligation”, while proceedings for the latter type punish conduct “which has about it some degree of criminality, some defiance of the general law”.310 In Australia, a committee of the House of Representatives resolved that it was a breach of parliamentary privilege to commit to prison a member for failure to pay court costs awarded against him in a civil action. However, this view has been challenged on the ground that commitment for costs is criminal in nature, even if the costs are awarded in a civil action.311

Parties to legal proceedings are under an obligation not to use materials obtained in court proceedings for an extraneous purpose. In one case, a party to legal proceedings disclosed the other party’s affidavits to a Minister, which led to the enactment of legislation that retrospectively extinguished the rights of the other party. The use of the affidavits for an extraneous purpose was not protected by parliamentary privilege, and the party was held to be in contempt of court.312

It is clear that court orders do not prohibit members from making statements in Parliament. The court’s process does not “reach” the House, although the House

301 Electoral Act 1993, s 55(1)(a), (d). 302 Kunjan Nadar v State of Travancore-Cochin [1955] AIR (Travancore-Cochin) 154. 303 (9 April 1918) [1918] JHR 2; (4 November 2003) 613 NZPD 9621. 304 Re Ananda Nambiar [1952] AIR (Madras) 117. 305 R v Banks [2014] NZHC 1244 and [2014] NZHC 1807; Banks v R [2014] NZCA 575; Banks v R [2015]

NZCA 182. 306 Re Ouellet (No 1) (1976) 67 DLR (3d) 73 (CS). 307 Malcolm Jack (ed) Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament

(24th ed, LexisNexis, London, 2011) at 246–247. 308 Ibid. 309 Solicitor-General v Broadcasting Corporation of New Zealand [1987] 2 NZLR 100 (HC) (radio and

press statements by member relating to a person being tried—no contempt found); Solicitor-General v Smith [2004] 2 NZLR 540 (HC) (pressure on litigants, criticism of a court and disclosure of court proceedings—contempts found).

310 Stourton v Stourton [1963] 1 All ER 606 at 610, [1963] P 302 at 310. 311 BC Wright House of Representatives Practice (6th ed, Department of the House of Representatives,

Canberra, 2012) at 724–725. 312 Street v Hearne [2007] NSWCA 113.



might adjudge a member who wantonly breached a suppression order to be in contempt for abuse of Parliament’s freedom of speech. Material covered by court injunctions has on occasion been released in Parliament, prompting attempts to have the court lift the restrictions on account of the material being publicly available as proceedings in Parliament.313 In the United Kingdom, concern has been expressed over the use of “super-injunctions” whose very existence may not be disclosed or published. The use of such injunctions, and the use of parliamentary proceedings to flout judicial orders, has prompted concern about the principle of comity and mutual respect between Parliament and the courts. A Joint Committee set up to consider the issue in the United Kingdom concluded that instances of irresponsible use were rare and that no special procedures were necessary.314

ExEMPTION FROM ATTENDANCE AS A WITNESS IN LEGAL PROCEEDINGSThe Parliamentary Privilege Act 2014 exempts members and certain officers of the House (the Clerk of the House, the Deputy Clerk, a Clerk-Assistant and the Serjeant-at-Arms) from attending a court or tribunal as a witness during a session.315 These provisions have codified and superseded any exemptions that would otherwise have applied at common law.

The statutory exemptions of members and officers from attendance in court do not limit or affect the general power of the House to grant or withhold leave for its members or officers to attend and give evidence. However, officers and employed transcribers must not give evidence of proceedings in Parliament without the permission of the House.316 The House’s authority to give evidence of proceedings in Parliament may also be required to avoid members, officers or others breaching section 12 of the Parliamentary Privilege Act 2014, or otherwise disclosing proceedings in Parliament contrary to any Standing Order or other order of the House. Section 12 prohibits the disclosure of documents or oral evidence received by the House or its committees in private, or as secret evidence.

In the United Kingdom, a 2013 report supported the continuation of the privilege not to respond to a court summons to attend in court as a witness. There was no evidence that the privilege had caused harm, and abolishing it could interfere with the members’ primary duty to attend Parliament (see “Evidence by members”, p 747).317

Certificates of exemption from attendance Any member (other than the Speaker) or officer may apply to the Speaker to be exempted from attendance if required by a summons to attend upon any court or tribunal. The Speaker’s certificate exempts a member or officer from attending personally as a party or witness in a civil proceeding, or as a witness in a criminal proceeding.318 No exemption may be granted if the member or officer is a defendant in criminal proceedings. The Parliamentary Privilege Act 2014 contains a comprehensive definition of the term “court”. A court includes the Supreme Court, the Court of Appeal, the High Court, a District Court (including a Family Court, a Youth Court and a District Court sitting in its admiralty jurisdiction), the

313 Goodwin v News Group Newspapers Ltd [2011] EWHC 1309 (QB) at [5]. 314 See Joint Committee on Privacy and Injunctions (UK) Privacy and injunctions: session 2010–12 [2012]

HL Paper 273, HC 1443. 315 Parliamentary Privilege Act 2014, pt 4, sub-pt 4. See also: s 5(1), definition of “officer”, para (a). 316 SO 412. 317 See Joint Committee on Parliamentary Privilege (UK) Parliamentary Privilege: report of session

2013–14 [2013] HL Paper 30, HC 100 at [265]. 318 Parliamentary Privilege Act 2014, ss 26–28 (re-enacting former ss 257 and 261–264 of the Legislature

Act 1908).



Court Martial of New Zealand, the Court Martial Appeal Court, the Employment Court, the Environment Court, the Maori Appellate Court and the Maori Land Court. A “tribunal” means any person or body (other than the House, a committee, or a court, but including an inquiry under section 6 of the Inquiries Act 2013) with power to summons witnesses and take evidence on oath or affirmation, or with power to require (by, or without, a summons) the giving or supply (on, or without, oath or affirmation) of evidence or information.319 Inquiries under section 6 of the Inquiries Act include royal commissions, public inquiries and Government inquiries.

To claim exemption, the member or officer must apply to the Speaker, certifying that it is necessary for him or her to attend to parliamentary business, and provide any further 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 legal proceedings and give them an opportunity to comment.320

The Speaker must grant an exemption certificate on an application, unless satisfied (after any inquiry he or she thinks fit to make) that non-compliance with the summons would defeat or delay injuriously the interests of justice, or cause irreparable injury to another party.321 The certificate must attach a copy of the summons and identify the attendance concerned, and be signed by the Speaker.322 An exemption certificate exempts the member or officer from attending the court or tribunal until the end of the session during which the certificate was granted, or the end of the calendar year after the calendar year during which the certificate was granted, whichever is the earlier.323

If the Speaker is summonsed to attend a court or tribunal, the matter may be submitted to the House for it to decide what action should be taken. The House may make any order it thinks fit, including an order exempting the Speaker from attending the court or tribunal for the standard period: that is, until the earlier of the end of the session during which the certificate was granted, or the end of the calendar year after that during which the certificate was granted.324 Speakers have been exempted by the House on three occasions.325 During an adjournment, the Speaker may sign a certificate that exempts the Speaker from attendance, but the exemption must be submitted for the consideration of the House at the first available opportunity.

Effect of certificate or orderWhere a certificate granted by the Speaker, or an order made by the House, is presented to a court or tribunal, the member, officer or Speaker (as the case may be) is exempted from attendance. No civil or criminal proceedings may be commenced or continued against the member, officer or Speaker for not complying with the summons or for other non-attendance. Upon notification of the exemption, the court or tribunal may adjourn the proceedings on any terms it thinks convenient and just.326 A court and all persons acting judicially must take judicial notice of the Speaker’s signature on an exemption certificate.327

319 Parliamentary Privilege Act 2014, s 5. 320 The Speaker, “Service of proceedings on members of Parliament” (7 December 2005). 321 Parliamentary Privilege Act 2014, s 27. 322 Parliamentary Privilege Act 2014, s 27. 323 Parliamentary Privilege Act 2014, s 28. 324 Parliamentary Privilege Act 2014, s 29. 325 (13 September 1906) [1906] JHR 66; (16 November 1977) [1977] JHR 394; (26 April 1988) [1987–1990]

1 JHR 552. 326 Parliamentary Privilege Act 2014, s 30. 327 Parliamentary Privilege Act 2014, s 31.



RIGHT TO HAVE CIVIL PROCEEDINGS ADJOURNEDIn earlier times, it was a breach of privilege to bring a civil action against a member of Parliament or the member’s servant during a session. Such privileges were abolished during the 18th century by legislation, although the House of Commons (and by extension the House of Representatives) may still, in an 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.328 The Parliamentary Privilege Act 2014 now codifies the privileges of members in respect of civil proceedings instituted against them.

In 1872 a particular member’s personal attendance at a civil action against him was not actually required by process of law, although it was in his interests to attend the trial personally. He was unable to do so because he had to attend the House, so legislation was passed to enable members and officers in this situation to obtain an adjournment of the proceedings.329

The Parliamentary Privilege Act 2014 repealed the former statutory process allowing a member or an officer to seek an adjournment of civil proceedings where the House required their attendance.330 Now, the legislation simply provides for the court or tribunal to grant an adjournment on any terms that it thinks convenient and just.331 With the availability of air travel and pre-trial conferences, it would be unlikely that a member or an officer who wished to give evidence would be unable to do so. The matter could be dealt with by an application to the court, which would obviate the need for an adjournment.

SERVICE OF LEGAL PROCESSBefore the Parliamentary Privilege Act 2014, the law restricted the service of process and court documents against members of Parliament from courts other than the Court of Appeal, the High Court and District Courts.332 Service of proceedings out of other courts was invalid and of no effect for most sessions. The Parliamentary Privilege Act 2014 has now removed the resulting anomalies and limitations.

Members are not immune from the service of process from a court or tribunal. Nevertheless, 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.333 Serving members within the parliamentary precincts, for example, has been adjudged to be a contempt.334

POWER TO DETERMINE THE QUALIFICATIONS OF MEMBERS TO SIT AND VOTE IN THE HOUSEThe House of Commons has asserted several privileges regarding its own membership. They have included 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 in the Commons. It is doubtful whether the first two of these powers have ever been possessed by the House of Representatives as aspects of parliamentary privilege. From the inception of the colonial legislature in

328 Re Parliamentary Privileges Act 1770 [1958] AC 331 (PC). 329 Privileges Act 1866 Amendment Act 1872, s 3. 330 Legislature Act 1908, ss 265–266 (repealed by the Parliamentary Privilege Act 2014, s 38(1)). 331 Parliamentary Privilege Act 2014, s 30(c). 332 Legislature Act 1908, ss 257(1) and 267. 333 Privileges Committee, report in relation to service of subpoena on the Minister of Justice

(6 September 1990) [1990] AJHR I.15 at [12]; SO 410(c). 334 Privileges Committee, report in relation to service of subpoena on the Minister of Justice

(6 September 1990) [1990] AJHR I.15. See pp 774–775.



1854, the New Zealand Constitution Act 1852 (UK) specified how vacancies were to be filled and how disputed elections were to be determined.

Different considerations apply to the power of the House to determine the qualifications of its members. The House has exercised this power on several occasions. The House may inquire into whether a member is entitled to take a seat in the House, or whether a member has become disqualified from membership. In an early precedent, 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 and admitted him only once the House was satisfied that he had been duly elected.335

Two of New Zealand’s more famous parliamentarians have had their right to sit in the House challenged in exercise of this privilege. The question was raised whether or not Sir George Grey had become disqualified by reason of his absence from the House, but a motion to refer the matter to a select committee for investigation failed.336 However, the House did set up a committee to inquire into whether or not Sir Joseph Ward was disqualified as a member after he had been adjudged bankrupt in 1897 (bankruptcy was then a disqualification).337 The committee recommended that the matter be referred to the Court of Appeal for its opinion on the subject,338 but there was no machinery to facilitate such a referral. Parliament therefore passed a special Act referring the question of Ward’s bankruptcy to the court on a case stated.339 The court certified that the seat had not become vacant.

In 1997 the Privileges Committee conducted an inquiry into whether or not a member had resigned from the House. In the event, the committee found that she had not resigned.340 In 2003 a similar inquiry was undertaken into whether or not a member had incurred a disqualification. The member had applied for citizenship of another country, which is a ground on which a member is deemed to vacate his or her seat.341 The inquiry found that he had incurred a disqualification,342 but the Government introduced special legislation to preserve his membership intact.343

The House does not make legal determinations affecting the membership of the House. It retains the power to inquire into the qualifications of its members to sit, and, as an aspect of its exclusive control of its own proceedings, to admit or to exclude from its presence any person claiming to be a member. However, the question of a member’s legal entitlement to membership of the House is ultimately a question of law to be determined by a court of competent jurisdiction. Statutory procedures exist, for example, for determining disputed elections.344 Where a member incurs a disqualification, the Speaker, once satisfied that a vacancy exists, must notify the vacancy in the Gazette and commence the process of filling it.345 But the Speaker’s role is a consequential one, and he or she does not determine authoritatively whether a vacancy has arisen. Whether or not a vacancy existed might be established independently of any action the Speaker might take.346

335 (1856–1858) NZPD 559–560. 336 (1895) 87 NZPD 54–61. 337 (1897) 98 NZPD 122–140. 338 (8 October 1897) [1897] JHR 26; (26 October 1897) [1897] JHR 53. 339 Awarua Seat Inquiry Act 1897. It is questionable whether special legislation was needed to facilitate

the referral. The House was a legally constituted body under statute and the question of Ward’s qualification to sit in the House was integral to the business of the House. No person or body needs to be specially empowered to do what the law does not prohibit.

340 Privileges Committee, report on question of privilege relating to status of Alamein Kopu as a member of Parliament (25 September 1997) [1996–1999] AJHR I.15B.

341 Electoral Act 1993, s 55(1)(c). 342 Privileges Committee, report on question of privilege relating to Harry Duynhoven (6 August 2003)

[2002–2005] AJHR I.17C. 343 Electoral (Vacancies) Amendment Act 2003. 344 Electoral Act 1993, pt 8. 345 Electoral Act 1993, ss 129(1) and 134(1). 346 (6 August 2003) 610 NZPD 7749 Hunt.



The House may suspend its members from the service of the House (for example, for breaching the rules of debate). It has never exercised a power to expel a member. The electoral legislation may have extinguished any such power (assuming it had existed in the first place) when it specified the grounds on which members are deemed to vacate their seats, and did not include expulsion among them. The Parliamentary Privilege Act 2014 now explicitly allays any doubt by declaring that the House has no power to vacate a member’s seat by expelling the member.347 (See pp 799–800.)

FREEDOM OF ACCESS TO THE GOVERNOR-GENERAL AND FAVOURABLE CONSTRUCTION OF THE HOUSE’S PROCEEDINGSThe right of freedom of access to the Governor-General and the right that a favourable construction be put on the House’s proceedings are two privileges symbolically claimed by the House at the commencement of a new Parliament. The Speaker claims these privileges on behalf of the House immediately after the Governor-General has confirmed the Speaker in office.348 The claim to a favourable construction of the proceedings of the House may have been part of the formation of a general principle of Parliament’s freedom of speech.

Neither privilege is of practical importance in New Zealand. They are of primarily historical significance, and were adopted “through the desire of our early parliamentarians to follow as closely as possible the procedures and precedents of the Commons”.349 However, in 1877 the House protested that, contrary to its privileges, the Governor of the day had taken notice of its proceedings and used this as a reason to decline to follow the advice tendered to him by his Ministers.350 This might be significant if there were uncertainty over the confidence of the House in the Government in office.

An important aspect of the privilege is 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 for communications between the House and the Governor-General is that of an Address. Otherwise, advice to the Governor-General is tendered solely by the Crown’s responsible advisers, its Ministers.

347 Parliamentary Privilege Act 2014, s 23. 348 SO 23. 349 Charles Littlejohn “Parliamentary privilege in New Zealand” (LLM Thesis, Victoria University of

Wellington, 1969) at 116. 350 (5 November 1877) [1877] JHR at 280.


CHAPTER 45 Types of Privilege - New Zealand Parliament · CHAPTER 45 Types of Privilege There is no definitive list of the types of privileges enjoyed by the House. They are a collection

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