Speaker’s Rulings

Madam SPEAKER Link to this

Last week I received letters from the Leader of the Opposition raising a matter of privilege arising out of a report to the Prime Minister on matters relating to Taito Phillip Field. I have found that no question of privilege is involved. Normally in these circumstances the Speaker does not give reasons for such a finding. But the Speaker does have authority to make a statement to the House if the Speaker considers that circumstances warrant this—see Speaker’s ruling 171/2. Because of the widespread interest in this matter, this is a case in which I have decided to explain the basis for my decision to the House.

One aspect of parliamentary privilege is the power of the House to punish conduct that it considers to be a contempt of the House. Before 1996 the circumstances in which the House might invoke this power were ill-defined and were the subject of justifiable criticism on this ground. In an attempt to meet this criticism, the House adopted what are now Standing Orders 399 and 400, defining the circumstances in which the House might use its power. Standing Order 399 makes a general statement about contempt being an act or omission that: “(a) obstructs or impedes the House in the performance of its functions, or (b) obstructs or impedes any member or officer of the House in the discharge of the member’s or officer’s duty, or (c) has a tendency, directly or indirectly, to produce such a result.” Standing Order 400 then gives a number of specific instances of specific actions or omissions that may treated as contempt. These are not exhaustive and any other conduct that falls within Standing Order 399 can be treated as a contempt if the House decides that it is worthy of censure.

The Leader of the Opposition does not allege that any conduct revealed in the report falls specifically within Standing Order 400. He alleges that Mr Field has used his position as a member to secure a financial benefit and that this has brought the House into disrepute, thus constituting a contempt under the general provisions of Standing Order 399. The particular conduct that it is alleged Mr Field has engaged in is in receiving services on his properties in Auckland and Samoa in return for assistance Mr Field provided for immigration applications. This assistance took the form of submissions to Ministers considering those applications.

Standing Order 399 and parliamentary privilege generally are designed to protect the integrity of the parliamentary process. Actions that obstruct or impede the House “in the performance of its functions” may be a contempt. If a member of Parliament accepts a benefit for actions that a member has taken, or is to take, in respect of proceedings in the House or at a committee, that would be a contempt. Standing Order 400(i), (j), and (k) describes actions that fall into this area. If any evidence had been presented to me showing that Mr Field used parliamentary processes—such as a question or debate—to advance the immigration applications, a question of privilege would then arise. But no such evidence has been presented. His interventions appear to have been confined to making submissions to Ministers—a common practice amongst members. As the services that Mr Field received are not linked to the parliamentary process, there is no question of privilege on which I can act.

However, it is appropriate that I add something to this finding. The allegations against Mr Field really amount to questions about the general standard of conduct expected of someone who holds the office of member of Parliament. Parliamentary privilege covers some of this ground, but by no means all. Privilege does not, for example, extend to most of a member’s interactions with constituents. Thus, communications with constituents are not subject to absolute privilege in the law of defamation. Only where interactions lead a member to take a parliamentary action—such as lodging a question or speaking in debate—is privilege engaged. Nor does privilege extend to other activities engaged in by members outside the House. Thus, in recent years, members have been charged with crimes or found in contempt of court without any question of parliamentary privilege being involved.

In 1994 the House of Commons, recognising that parliamentary privilege did not cover members’ general conduct adequately, adopted a code of conduct for members with the purpose of providing “a framework within which acceptable conduct should be judged”. The Privileges Committee was converted into a Standards and Privileges Committee, and a parliamentary officer, the Parliamentary Commissioner for Standards, was created to investigate complaints of breach of the code. These rules operate alongside, but distinct from, parliamentary privilege. Most Australian legislatures have also adopted codes of conduct that supplement the parliamentary privilege rules.

In 1997 the Government Administration Committee recommended that there be a study of this system in New Zealand and successive Standings Orders Committees have heard submissions on whether there should be a code of conduct, even as recently as last week. But to date, apart from where the privilege rules set out in Standing Order 400 apply, the House has not adopted any rules or guidelines relating to the standards of conduct expected by members. This is a matter for the House to attend to.

GERRY BROWNLEE (Deputy Leader—National) Link to this

I raise a point of order, Madam Speaker. I think it would be an understatement to say that we are disappointed by your ruling. It would be a further understatement to say that we are surprised by your ruling. Although you have given us a reasonably extensive rationale behind your reasoning, I do not accept that what you said in relation to Standing Order 400(i,), (j), and (k) is relevant in this case, or that this case is excluded from scrutiny under those paragraphs. We did not supply you with a list of alleged breaches, because we thought that the 180 pages of Mr Ingram’s report would be relatively self-explanatory.

You will note, Madam Speaker, that in one part of the report Mr Ingram goes into discussion about the way in which Ministers of Immigration over a period of years have dealt with requests from members of Parliament—a subject that is a cause of a degree of angst by those who represent people in immigration cases who are not members of Parliament. Essentially, the Ministers who were spoken to said that if a member of Parliament makes an application, then that application carries a great deal more weight than if it were to come from someone else. Indeed, Mr O’Connor went into some explanation in the report as to why he felt a member of Parliament listing pleadings on behalf of someone who wanted an immigration preferment carried a great deal more weight if it were supported by a member of Parliament. Surely that is part of the privilege of being a member of Parliament, and it surely is part of the requirement of being a member of Parliament that a privilege like that is not abused.

The concern that we have is that this is a case where a large percentage of the public believe there is an element of corruption involved. In many ways that taints the whole of Parliament. So our disappointment is that Parliament, through its Privileges Committee, will not be able to protect itself from the allegation that Parliament is now complicit in the cover-up of that corruption. I would accordingly ask you, Madam Speaker, to reconsider Standing Order 400(h) on the basis of the testimony given by Mr O’Connor in Mr Ingram’s report, which is testimony that I understand is backed by previous immigration Ministers and which makes it very clear that the opportunity to advocate very directly on the part of someone in an immigration matter is a privilege of this House.

Hon Dr MICHAEL CULLEN (Deputy Prime Minister) Link to this

I think the member quite simply confused two different meanings of the word “privilege”, and in one of those was extending the use of the word “privilege” to mean something rather more than it does in the circumstance. Clearly, people have an assumption that approaches from members of Parliament on immigration matters will be dealt with with some care by a Minister of Immigration. That is why the member’s colleagues frequently make representation to the Minister of Immigration on immigration matters.

In that respect, however, a member does not have a specific parliamentary privilege in the sense that parliamentary privilege is covered by the Standing Orders. Parliamentary privilege covers a much narrower range of matters than matters that we might regard as privileges held by members of Parliament in the broad and common-language sense of that word. That includes, for example, a privilege in relation to parliamentary travel, in relation to telephones, and in relation to a whole number of matters that are themselves not necessarily matters of parliamentary privilege at all.

In relation, of course, to Standing Order 400(h), that merely relates quite specifically to the declaration of pecuniary interest. Nothing in the Ingram report comes anywhere close to that, nor, indeed, do the matters raised by the Leader of the Opposition, as I understand the letter he has sent from what I have heard about it within the House here and from statements made by members opposite about that particular complaint. The member is stretching the bow far too long in that regard.

For example, in your own statement, Madam Speaker, you refer to being found guilty of a contempt of court, which, of course, the Hon Dr Nick Smith was. When he entered this House he was applauded by his parliamentary colleagues for having received that conviction. One might well regard it as some form of breach of privilege that people could make such a public display of affirmation of support for breaking the law. But that, of course, is not in itself a breach of parliamentary privilege. It might be regarded as bad form, bad behaviour, or, indeed, even perhaps a contempt for the law, but not a breach of parliamentary privilege. Your order, Madam Speaker, quite properly, confines itself to matters of parliamentary privilege.

RODNEY HIDE (Leader—ACT) Link to this

I do not want to contest your ruling, Madam Speaker; it is not appropriate that this Parliament do that. You have received a complaint of breach of privilege and you have ruled accordingly. Of course, I accept that 100 percent. But perhaps I could be helpful to the National Party and, indeed, to this Parliament by pointing out, and asking through you, that it would be quite within the bounds of the appropriate select committee to undertake an inquiry into, say, the Minister of Immigration’s discretions in granting permits and how that process might be done. I am thinking of the Commerce Committee or such a committee that would draft the terms of reference and undertake an inquiry. That inquiry would be quite within order. Indeed, you may recall that the Finance and Expenditure Committee with Mr Clayton Cosgrove, who has some responsibility now for immigration matters, I think spent two parliamentary terms trying to undertake an inquiry into my good self as a way of getting around the question of privilege.

So it is quite possible for Parliament to make an inquiry into what has gone on here, through a wider inquiry within the terms of a select committee. We could indeed achieve the aims that we seek to achieve.

Hon BILL ENGLISH (National—Clutha-Southland) Link to this

It is a question of clarification. In the course of this discussion, reference has been made to Standing Order 400. Standing Order 400(h) states: “as a member, knowingly providing false or misleading information in a return of pecuniary interests:”. My question for you, Madam Speaker, is should further investigation of matters raised in the Ingram report give rise to the possibility that the member did make a false and misleading return of pecuniary interests, is it possible for you then to reconsider the matter of privilege? The Ingram report lays out circumstances in which the member received what amounts to a gift—that is, in the terms of the Members of Parliament (Pecuniary Interests) Bill, there was something of benefit to him for which he did not pay. In the same way as we have to declare free plane trips offered by a lobbyist, the member had his house painted at rates well below the market rates, or for which he did not pay at all, and the scope of the pecuniary interests legislation is such that he should have declared that as a gift. It is not clear whether that is exactly the case—it would take some investigation to establish it. You have dealt with the application that was put to you, Madam Speaker, but in the interests of demonstrating to the public that Parliament does have an interest in the standards of conduct of an MP, and in enforcing its own rules, would you consider a privilege application based on that Standing Order?

Hon MURRAY McCULLY (National—East Coast Bays) Link to this

I do not rise to contest your ruling. There is a proper process by which members can do that, and that will, obviously, lead members on this side of the House to reflect on the written version of your ruling over the next day or so. But, as we do so, I ask whether you will give some further thought to elaborating on the ruling you have made.

What you have done, Madam Speaker, if I might say, is take a narrow view of Standing Orders 399 and 400. The provision in Standing Order 399 that refers to obstructing or impeding the House in the performance of its functions is a very general one, and some members certainly put the Ingram report in that context and regard it as having very considerable application. Standing Order 400 contains some very narrow examples of the types of contempt that might be held to exist by the Speaker. It does not seek in any way to clarify the very general terms of Standing Order 399.

Madam Speaker, if your ruling is to stand as the standard for the House, then I am sure that members on this side will at least want to consider making some changes to the Standing Orders. In order that we might have a strong base for doing so, I invite you to be a little more definitive as to why the behaviour outlined in the Ingram report cannot be held by you to be covered by the very general provision in Standing Order 399(a) as it refers to obstructing or impeding the House in the performance of its functions. That will give us a more certain base on which to consider some representations to the Standing Orders Committee. I believe that members of the public, when confronted with this ruling, would expect us to do that. I simply invite you, Madam Speaker, to give us that further assistance as we give serious consideration to the matters you have outlined to us today.

Hon Dr MICHAEL CULLEN (Deputy Prime Minister) Link to this

I raise a point of order, Madam Speaker. I think it is fairly difficult to take seriously that submission, because it relates to, as the member said, the House in the performance of its functions. Those functions obviously include such matters as conduct at question time, the examination of Ministers, consideration of legislation, the work we carry through select committees, and so on and so forth. Nothing in this whole matter, at all, in any shape or form, has obstructed or impeded the House, or indeed any select committee, in the performance of its functions. Indeed, one might suggest that it has actually assisted the House in the performance of its functions, as it has clearly given the Opposition the opportunity to ask many parliamentary questions and to engage in other behaviour in terms of parliamentary activity. But nothing could possibly be presented to this House that shows that the House has in any way been unable to carry out its functions as a result of whatever actions Taito Phillip Field undertook, or of the Ingram report on those actions.

GERRY BROWNLEE (Deputy Leader—National) Link to this

I raise a point of order, Madam Speaker. If I am to accept the comments made by the Deputy Prime Minister and Leader of the House earlier this afternoon when he said that I am confused about the ruling that you have given, then I guess that confusion would be about the privilege that someone has as a member of Parliament, and the privileges that go along with being a member of this House. For many outside, that will be something that is not easily considered; nor are the two easily separated. That is where the whole House risks being brought into disrepute by virtue of the corruption allegations made in this particular case.

So I seek leave for the Ingram report to be referred to the Privileges Committee in order that the committee might bring down a determination that makes it clear just what the difference is between the privileges of this House and the privilege that comes with being a member of Parliament.

Hon Dr MICHAEL CULLEN (Deputy Prime Minister) Link to this

I raise a point of order, Madam Speaker. I was going to respond to that point of order. I will take it as a separate point of order. If the member cares to refer to Standing Order 23, he will find reference to the fact that the Speaker lays claim to the privileges of the House: “On being confirmed by the Governor-General as Speaker of a new Parliament, the Speaker, on behalf of the House, lays claim to all the House’s privileges; especially to freedom of speech in debate, to free access to the Governor-General whenever occasion may require it, and that the most favourable construction may be put on all the House’s proceedings.”, which is a somewhat separate matter.

Those parliamentary privilege matters do not include issues like a Minister taking care to ensure that he or she considers carefully submissions from a member of Parliament. It does not cover issues such as personal privileges in relation to, for example, telephones, airfares, or whatever they may be. The Speaker does not go to the Governor-General to lay claim to those things under the guise of parliamentary privilege. Parliamentary privilege exists at a higher level and for a broader public purpose than that and, specifically, with the right to free speech within this House, without that being brought into consideration externally within the courts.

Hon BILL ENGLISH (National—Clutha-Southland) Link to this

I raise a point of order, Madam Speaker. If we are going to have to listen to Dr Cullen’s version of privilege, then he needs to think more broadly. The reason Parliament has privileges of the nature that Dr Cullen refers to is that the public believe that that is the best way to expedite democracy and public affairs to create a privileged environment in which some things can be done that cannot be done outside. But those privileges are earned; they are not written in the constitution. They are a convention, and they are earned by members of Parliament acting in a way that is consistent with the public interest.

That is why it is such a regret to the National Party that the Speaker has taken a narrow procedural view of this matter. The privilege of Parliament is earned; it is not written in concrete or handed down from above. It is a function of the behaviour of the people who inhabit Parliament. As long as we behave ourselves consistent with the public interest, then this institution will be accorded those privileges. When a member behaves in a way that is totally inconsistent with the public interest, and entirely in his private interest, he is undermining absolutely the reason why Parliament has privileges. That is why we take such exception to the ruling and the behaviour.

Hon Dr MICHAEL CULLEN (Deputy Prime Minister) Link to this

It is quite right to take a narrow view. Indeed, the member is completely mistaken in his view of the origins of parliamentary privilege. I saw two of his legal colleagues in the second row looking somewhat askance when those claims were made. They, of course, arise out of the assertion of our privileges vis-à-vis the king, the role of Government, and our ability to speak freely and to raise matters without let or hindrance than to be dealt with in the king’s courts in punishment for matters raised within this House. The member, unfortunately, by going into that further area really does cast aspersions upon his colleague Dr Nick Smith. If being found guilty of a contempt of court and having one’s colleagues clap in this House in support of that conviction is not exactly the kind of matter he has just raised, then I have failed to understand what possibly was.

Madam SPEAKER Link to this

I think I have heard enough, if Mr Brownlee does not mind. I have appreciated the points that all members have made. May I suggest to members that they do look at the ruling and look perhaps a little more generally at the difference between the way in which the word “privilege” is used in a general sense and parliamentary privilege as it is defined within our Standing Orders. I would also suggest to members, and in fact they have suggested it themselves, that this matter is the responsibility of members, and that is why I took the opportunity to make that distinction and perhaps suggest a way forward for members, because it is a serious matter.

Hon Dr NICK SMITH (National—Nelson) Link to this

I raise a point of order, Madam Speaker. Twice in the debate on this point of order Dr Cullen has chosen to make mention of the issues involving myself with regard to some constituents, which led to contempt of court charges being laid—in fact, when you were Attorney-General. There is a world of difference between a member of Parliament going the extra mile for constituents who wanted to see their child—in which there was absolutely no personal interest or gain for myself; in fact, exactly the opposite—and the actions that were taken by Phillip Field that were to benefit him privately. I think that needs to be put on the public record.

Hon MAURICE WILLIAMSON (National—Pakuranga) Link to this

I raise a point of order, Madam Speaker.

Hon Dr MICHAEL CULLEN (Deputy Prime Minister) Link to this

Putting aside the consideration of whether there was any financial interest—I make no comment on that—the key point, of course, is: “before participating in the consideration of any item of business,”. That refers to the consideration of any item of business in Parliament, not outside Parliament.

Madam SPEAKER Link to this

Exactly. I again ask members perhaps to take the time to consider the ruling and also, perhaps more generally, the distinctions between the general use of privilege and parliamentary privilege.

GERRY BROWNLEE (Deputy Leader—National) Link to this

I raise a point of order, Madam Speaker. My colleague the Hon Maurice Williamson may have been a little hard on Mr Field in this circumstance. I think Mr Field probably did think he had made it clear that he was getting a pecuniary interest, because he actually conducted a field trip of Ministers to his house in Samoa. The Hon Phil Goff and the Hon Paul Swain went there and met the painter—the Hon Paul Swain was the Minister of Immigration at the time. So I think Mr Field did, in fact, think he had told his ministerial colleagues that he had all these Thai people working for him on his properties throughout the country and that he was putting pecuniary gain directly into his pocket. However, if that is not a breach of this House, then what is?