The Privileges Committee Report and ‘parliamentary protections’

Thinking through the deep stuff:

 The Privileges Committee Report and ‘parliamentary protections’

 Every now and then we MPs are challenged to think.  Yesterday was such a moment – actually, for the preceding 12 months, on and off.

In 2005-06, an issue arose in the House in which a cabinet minister made comments about a Kiwi citizen who judged herself to have been defamed.  The Minister, who later apologised, was protected by the doctrine of ‘absolute privilege’.  That means that any MP can say anything in the House (within the procedural rules) that may be politically contestable but can never be legally actionable.

Not so the official who advised the Minister, on Parliament’s precincts but not in the House itself. He enjoys only ‘qualified privilege”. So the aggrieved chose him for the defamation case.  The official was acquitted because conviction under qualified privilege requires proof of malice, which was not proven.

The constitutional point here is that the case went to the Supreme Court which, while reaffirming the judgement, employed reasoning which members of the Parliament, and qualified legal experts, held to be faulty.  It was held that the judiciary had encroached into the ‘privileges’ (freedoms) of the legislature.

So the Speaker referred the matter to the Privileges Committee.

That was in September 2011.  Through 2012 and into 2013, the Committee laboured through the issue.  It presented its report to the House yesterday.

In short, the Committee recommends that a new bill, the Parliamentary Privilege Bill, be introduced by the Government ‘to clarify’, for the avoidance of doubt, the nature of parliamentary privilege in New Zealand’.

This is a big step, for New Zealand.  We Kiwis are not naturally given to exploring the fine points of constitutional law.  We tend to see ourselves as a casual and decent, practical bunch who can get along with one another without the need for high-sounding phraseology.

Yes and no.  We are one of only three countries (UK, Israel, NZ) without a codified constitution.  That (personal view) is something of a risk.  Not a bad idea to clarify things if and when an appropriate occasion arises.

I shall not go into the fine detail.  That is in the report. 

The report went to the House with unanimous support. In supporting it, I offered the view that there was both a legal and a political dimension to the issue.

On the political dimension, the court of final opinion is the people, who are sovereign.  It is important that the people understand the nature of the issue at stake, and the purpose of the recommendation.

And in that respect, we may do better to drop the phrase ‘parliamentary privileges’ and use ‘parliamentary protections’.  Here is what I said.





36 Comments Posted

  1. I think if we look forward without a true reflection of the past we may miss out on seeing the mistakes that took us to our troubles.

    An Hindu Indian I worked with years ago on a farm, was an immagrant, and came from a university educated family. He said something that I will never forget. He pointed out that those that came to a new land to make new beginnings may not be as constructive an influence as anticipated. He said that those who packed up and moved on were basically individualists or otherwise they would stay with their community and make it work, whatever the situation. This is not judging individuality but it may be the opposite to those who are making the treaty claims. To let go the past difficulties and move on may be brave in one aspect but maybe shutting out some of the total picture to move on. The Maori had only a desecrated habitat and little opportunity to go somewhere else. They sort of went to the cities to work, and this didn’t help much either.

    Maybe to stay and try and rebuild dignity and see the truth may be a much braver path but it also helps to keep perception whole. All processes, while seeming linear at times are all cyclic, and tribal cultures closer to the natural cycles more readily reflect that. Maybe the Maori believed deep down that from all this disruption would emerge a new golden age, and probably the claims are the start of this? Maybe those that move on have a tenancy to take their past with them?

    I believe the claims will end as the Maori turn around the full cycle and do something more positive. I am sure that a large part of that process of moving on will carry an underlying respect of the past and the natural processes that sustain us. Forcing things may be inhibiting the healing?

  2. oldlux,

    Problem you are not addressing is that people just don’t care anymore about the past grievances.

    Sure call them unenlightened (pious of you) but that don’t change their point of view.

    As one who grew up in immediate post war Europe one is left a different set of values where looking forward is more constructive then looking back. Looking back shows family graves, white crosses marked execution sites, bombed out homes, businesses and infastructure. Not to mention loss of land and property.

    Can I relate to Maori, absolutely as one whose society had lost everything and absolutely no chance of recompense for injustices.

    However the attitude regarding the past was (and I believe still is) hugely different.

    Everyday walking to school, past the white crosses, I heard the voices of the murdered not to seek retribution or to somehow redress the injustice, just encouragement to do the best for my and future generations, so that their sacrifice was not in vain and that their lives would be celebrated through my actions in the betterment of society.

    I guess it is a different attitude that drives those who look forward.

    I see the same attitude within immigrant groups to better themselves, their families and their society.

    As opposed to the attitude of people who too have lost but have an,impossible to fill, need to line up all past injustices for rectification.

    My feeling is that even if every Maori injustice was rectified, Maori would be looking forward to the rest of us miles ahead again for it is not possible to look back and forwards at the same time.

  3. Gerrit
    I am saying we cannot tell others to forget something and move on. It is only ignorant bullies that try it this way. People forget injustice and move on when they see something more positive.

    It is just like the state taking your assets and saying you’ll be right so no grisling. Maybe people that can’t see that parallel aren’t looking at life as I do, but I think it reflects an enlightened view where injustices don’t get created so peace is more attainable. I am a 6th generation Kiwi with no Maori blood but I relate easily with Maori, even the rascals, and I believe it is because they see my genuine heart. Too big a proportion of Pakeha can’t relate to Maori at their more spiritual place, so they learnt a long time ago to stand back and accept the injustice. They are finally getting some finallity.

    Kiwis that can’t relate to that maybe don’t see their own sense of injustice properly.

    By the way, growing up on the Coromandel, it was mainly the Maori folk who helped me when the chips were down. They are too generous for their own good at times, as others take advantage.

  4. oldlux,

    I don’t think it is our right to now say forget the injustice and move on.

    Most New Zealanders have already moved on. It is a mute point to ask if we had the right to. Most have just moved on regardless, looking back to try and right the injustices done by previous generations is immeasureable in todays society and thus impossible to achieve.

    So people simply move on.

    When we get our act together they may feel ok about sharing at another level with us.

    Well that is very magnanimous of Maori to ask the 85% to get their “act” together so that ALL New Zealanders may think about a constitution.

    What does “getting their act together” mean?

    85% of the people just dont care anymore so there is not much chance of the 85% “getting their act together” for Maori to think about sharing (sharing what?).

    I guess you are advocating for is that ALL grievances need to be settled before a constitution can be discussed?

    Not going to happen.

  5. Isn’t the issue Maori feel with the Treaty that it is the only Legally verified point of reference to what they agreed to and thus justifies their historical claims of injustice, and in many casesthis included murder, rape, and the taking of their livelihood, and probably more importantly their spiritual sense of reality.

    I don’t think it is our right to now say forget the injustice and move on. This will come if we truly show respect for their truths and for their efforts to reestablish themselves in a world far different to what they agreed to.

    When we get our act together they may feel ok about sharing at another level with us.

  6. …as the treaty itself is INHERENTLY a race dividing document.

    Are we allowed to do that? Isn’t race discrimination (which must be what race dividing is, otherwise the blacks can just sit at the back of the bus) bad, and don’t we have rules to prevent it?

    (And Frogblog appears to be under strain at the moment, difficulties establishing a database connection)

  7. The problem is that the Treaty cannot be unilaterally abrogated, as you and DBuckley appear to wish it to be

    I’d actually like Maori to see the sense of putting the treaty behind us all.

    Which is why we need to come to a settled position.

  8. The concept of two houses is surely to set up a checks and balances process. The issue of private property in any process of government has to be subserviant to the proven and justifiable need of the community to keep balance, otherwise a government with even the best constitution has no purpose. A good constitutional arrangement has then to have good checks and balances between the opposed needs of new generations, and those with the resources we all need. Population growth increases the need.

    Thats why I like a good rating system based on productive land value. rather than income taxing for our social financing. If the need of the community assistance increases, then resources need to be better spread. Rates then go up creating an incentive for those with the most basic resource to divest what they don’t need, a process that creates a balance year by year, instead of having revolutionary change.

  9. BJ,

    I have no idea why the English “upper house” exists either so why should the New Zealand constitution reflect an “elite overlord” setup?

    Maori sense of responsibility for the land? Do you think the rest of us don’t have that?

    Again this seperatism where some mythical sense of responsibility is to be placed into the hands of a few.

  10. I suggest a constitutional solution that better reflects society at present. We are all reflecting at times the distance between ourselves and the decision process, and all action has been to centralise, something less helpful in a world needing to get closer to daily process for climate/peak oil. I also feel we need to reflect the treaty in how we do things.

    So lets make iwi equivalent of local District Councils with the ability to veto central government imposition, as long as a clear local mandate can be shown. This could be co-ordinated under Regional Councils who also take on central government rolls in social welfare, health, policing, education, lower courts.

    District Councils and iwi would then appoint MP’s to central government who would look after defence, foreign affairs, and maybe central planning/co-ordinating. They would be limited by local veto so planning would have to reflect true community need. Supreme Court linked here to a good constitution,

    Each area would then develop systems to suit their own needs and the best options would be taken up elsewhere. The starting point would be what we have now and priorities of change would reflect community need.

  11. The problem is that the Treaty cannot be unilaterally abrogated, as you and DBuckley appear to wish it to be. Ethically and morally this CANNOT be held up as the solution, in spite that the actual arrangement that results has a “racist” component to it. That is not something that can be helped, as the treaty itself is INHERENTLY a race dividing document.

    Nor is the notion of a separate house, with defined and limited responsibilities that correspond with the Maori sense of responsibility for the land and some of the separations of the treaty, so outrageous. What the hell is the “House of Lords” in the first place? It is a place where people inherit positions of some limited power for reasons far less relevant than being party to a treaty between two peoples.

  12. The only constitutional solution (other than becoming a Republic) that has a chance of working is to have a process that finalizes grievances, in a fixed (and reasonable) timescale. One more bite of the cherry.

    Then we draw a line under the whole treaty thing, and have a New Zealand constitution that reflects one New Zealand.

  13. BJ,

    I really cant see a Maori only “upper” house to lord over the parliament will be acceptable to people.

    You simply cant have a constitution where race is the divining element.

    But it will be interesting to see the final recommendations and the acceptance there off by the people.

    So far the Terms of Reference for the Consideration of Constitutional Issues

    in reporting back to parliament is, as expected of a National party sop to the Maori party, heavily biased towards incorporating Maori issues into a constitution.

    Once the report is in (due end of 2013) it will no doubt go to wider reference and input to the other 85% of the population not as yet consulted.

    I simply cant see them excepting a Maori (race based) upper house.

  14. but the tribes property ownership was by conquest and occupation. How can a constitution take into account tribal property ownership gained by conquest?

    1. Over other tribes.

    2. That’s what ALL our “ownership” amounts to in the first instance, we’ve been trading for money for a long time but we TOOK land from other people by force and protected it by force, for far longer.

    Catherine Delahunty paints a romantic picture of peace loving, agrarian Maori tribes

    Somehow I suspect that you are misreading Ms Delahunty, and I am sure she is just as aware as you are that they were warlike enough to make a treaty seem a lot cheaper than the alternatives.

    how can a constitution incorporate the Treaty of Waitiangi?

    – by being formed in such a way that the equality underlying the treaty negotiation is reflected in the Constitution, and in its negotiation. My previous suggestion of a Maori upper house (quasi-equivalent to the House of Lords?) remains. The essential aspect of this is to get the inequality into the parliamentary process and out of daily life.

  15. “One could argue that Ngati Tauiwi conquered and occupied these lands just as pre treaty Maori tribes did.”

    True, that is exactly what happened. Only this time around all parties (allegedly) signed a Treaty to bring an end to the conflicts. However, because of the two entirely different interpretations of that treaty there can be no constitution that satisfactorily resolves the differences. Two constitutions are required.

    Actually 3 constitutions – one for Maori (including their descendants), one for Pakeha (and their descendants), and one for the rest of us who did not sign the treaty and are neither Maori nor Pakeha.

    Unless of course we decide to agree that each person has the same inherent value.

  16. BJ,

    True, but the tribes property ownership was by conquest and occupation. How can a constitution take into account tribal property ownership gained by conquest?

    One could argue that Ngati Tauiwi conquered and occupied these lands just as pre treaty Maori tribes did.

    Though Catherine Delahunty paints a romantic picture of peace loving, agrarian Maori tribes pre treaty for the Greens, this is not factual history.

    Question is how can a constitution incorporate the Treaty of Waitiangi?

    I’m saying that it cant for the very reason that the treaty has no relevance in today’s secular society.

    Sure in the romantic minds of the Cathrine Delaunty’s of this world it does but to great swathes of people it matters not a jot.

    So getting accord on a constitution based around the treaty is never going to fly.

  17. A tribe (society) is different, and more long-lived than an individual. The rights you are comparing are clearly NOT the same.

  18. greengeek,

    So you want a constitution to say that ALL land is state owned?

    or howabout the tribe Ngati Tauiwi owning tribal land? Define tribes?

    .Not many people will buy into a constitution based on that principle.

    Buying a worse fight then Labour did with the seabed and foreshore.

    Would you extend the principal to water rights? How about access to fish stock?

    You in favour of having a constitution based on the state owning everything?

    Where do you draw the line?

  19. “People dont “create” land. It is there irrespective of people.”

    My point exactly. The concept of private property rights deprives future generations of the ability to utilise what God (or nature) gave us all to share.

    With regard to the idea of tribal ownership, I would venture to suggest that tribal ownership is better than private ownership (due to larger numbers of beneficiaries) and that national ownership is better than tribal ownership (for the same reason).

    However there is always a critical point beyond which the “controllers” lose their natural feeling for the beneficiaries (being so distant) and that is a danger when considering national ownership (or communism). Probably “land tribalism” (communal ownership?) is best.

  20. greengeek,

    People dont “create” land. It is there irrespective of people.

    Private property rights existed pre exposure to the “white” man culture. Tribes had private rights to land.

    Read this piece about private (as in one tribe owning land) land confiscation

    From the late eighteenth century Ngati Toa and related tribes, including Ngati Raukawa, were constantly at war with the Waikato tribes for control of the rich fertile land north of Kawhia.

    Are you confusing private property rights as individually owned landed versus private property rights when owned as tribal community owned land?

    Note that land ownership pre the treaty was by conquest and occupation, not by recognized boundaries.

    To set those boundaries 200 years later is going to lead to confusion for who “owns the rich fertile land North of Kawhia”?

    Where the tribe that sold the land to settlers entitled to sell the land?

    Truly a great minefield.

  21. Good point. No – I was really only referring to land that is protected by our current concept of “private property rights”.

    I don’t like the idea of one group of people living comfortable lives because they have at their disposal land that they did not create, and which was taken from another group of people who struggle because they no longer have current access to this piece of land.

    I am a “communist” where land is concerned – I believe all land should be vested in public ownership.

    Other than that – I am a capitalist where it comes to wealth that one creates oneself.

    And anyone who purchases real estate for the purposes of making profit should be hung, drawn and quartered. Landlords and other investors alike.

  22. greengeek,

    Any item previously stolen (including land) must be returned to it’s rightful owner.

    Presuming that also means any land stolen (or more correctly colonised) by successful waring tribes over a conquered tribe, PRIOR to the Treaty of Waitangi, will also need to be handed back?

    Oh dear, we are going to have to relive the whole Maori history pre and post the Treaty Of Waitangi to sort out who owned what, where the boundaries were, who are the rightful descendents are, etc.

    Yep, we are never going to have a constitution.

  23. I don’t think there will ever be a constitution in New Zealand. Simple reason is that the Treaty of Waitangi is trying to be woven into the constitution.

    Any constitution that I wrote would include two important factors:

    1) Every person has the same value (regardless of parentage)

    2) Any item previously stolen (including land) must be returned to it’s rightful owner.

    Although it may have been a founding document for our past, the Treaty is a terrible document to ratify as a founding document for our future.

  24. Dave – The countries with written constitutions by and large follow the US model, in which the law can’t even be TESTED until someone tries to enforce it. This is something a lawyer has to love. Particularly in a litigious society like the USA. However, most laws in the USA are written with a very keen awareness of the limitations of the Constitution and as a result the massive expenses you cite as owing to having Constitutional tests are NOT common features of most litigation.

    There is no requirement to handle it that way, and having the Supreme Court vet a law before it takes effect and veto it if it falls foul of the Constitution seems a whole lot cheaper to me. The Constitutional Court should be about testing laws, not case details.

    Which is not a difficult thing to arrange.

    However, most laws HERE are just as vague or MORE vague than our unwritten constitution, and that is something I find utterly inexcusable. The law is defined first by the cop deciding how he will apply it and then by the judge deciding if the cop is right… but in no way can it be understood by what is actually written into the law. A body of precedents has to be built up before ANYONE (including the cop and hte Judge) actually knows what the damned things mean.

  25. Dave Stringer,

    I don’t think there will ever be a constitution in New Zealand. Simple reason is that the Treaty of Waitangi is trying to be woven into the constitution.

    A constitution that includes any reference to the Treaty of Waitangi will not sit well with a sizable portion of the populace.

    Simply will not fly.

  26. BJ Said

    If we do not work through the process of codifying our “Constitution” into a real Constitution, we will forever wonder whether any given action is legal or not,

    I never thought you were a lawyer BJ. Let’s face it. In countries with a written constitution, the legal costs of determining if any given action is legal or not are humongous, because no matter how clever the wording, the law is always a matter of interpretation.

    The United Kingdom has had an “unwritten” constitution since Magna Carter, and seems to do OK, without many expensive issues being tortuously haggled through successive layers of courts. Common Law, (something Americans do not benefit from,) is based on determining what the “common Man” would deem acceptable, and so, while offering significant precedent, allows what is “right” to be determined based on todays mores, not just the opinions of judges in the past!

  27. greengeek – it has happened a few times, I believe some members of the Exclusive Brethren used the procedure after they were attacked in the House, and it’s been used a couple of other times as well.

  28. “the Standing Orders do allow a victim to respond to a defamatory statement in Parliament with the protection of absolute privilege.”

    Interesting, thank you for that information. I’ve never heard of such a response being made. Are you aware of this having happened?

  29. If we do not work through the process of codifying our “Constitution” into a real Constitution, we will forever wonder whether any given action is legal or not, because without a clear LAW the “rule of law” is really “the rule of the policeman making the case and the Judge having jurisdiction” and that is, very unfortunately, EXACTLY what is provided from the NZ Parliament. The “vague guidelines overseen by lower level functionaries and organizations” model.

    Not a good plan… but then, who says there is actually any planning done? 🙂

  30. Despite being an extremely dry topic this is one of critical importance to democracy.

    If parliamentary privilege allows perceived defamatory comments to be made, then surely the ledger must be balanced by affording the “victim” of such comments an opposing opportunity to respond in the same forum with the same right of privilege (“protection”).

    You hit the nail on the head with this observation : “in the final analysis, it is the people, the true source of all sovereignty, who must decide on the relationship between their various branches of Government” but I wonder to what extent ordinary kiwis might be able to keep the power of the Supreme court in check??

    (And thanks for introducing me to the word “comity” – that is actually a hugely important principle if we are to have a strong democracy in the future)

  31. “Every now and then we MPs are challenged to think.”

    Well, that would explain a lot. What do you all do the rest of the time and what are we paying you all for??!!

  32. So the aggrieved chose him for the defamation case. The official was acquitted because conviction under qualified privilege requires proof of malice, which was not proven.

    The official was never charged. And you can’t be convicted, or acquitted, of defamation.

    The matter also never went to trial, so saying malice had not been proven is extremely misleading; rather the matter was settled after a preliminary matter (whether absolute privilege, or just qualified privilege, applied) was determined by the Supreme Court.

  33. Why worry about the weighty matters of law, when the basic matters of law are ignored? I have in my possession 3 supposed ‘decisions’ forged by 3 different corrupt court officials at Palmerston North and Levin Courts. I’ve made these statements public knowledge plenty of times, naming the corrupt officials, and all the corrupt officials refuse to sue me, because telling the truth is not a crime, yet.

    So what if the Parliament disagrees with the Supreme Court, big deal! You people need to have a real investigation into real Court corruption that is rampant in New Zealand, then deal with these weightier matters that mean nothing to the general public you claim to represent.

    And so long as you hold the view that corruption is impossible in New Zealand’s Courts, the corruption will continue.

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