Tis the season to apologise

December 10th, 2015 at 12:00 pm by David Farrar

Stuff reports:

What’s this? Detente? Or has Christmas cheer arrived early for our politicians?

As Parliament met for the last time this year, Prime Minister John Key finally backed down and gave a heartfelt apology for tarring Labour as the party that “backs rapists”.

Labour leader Andrew Little rose in return to apologise for criticising Speaker David Carter as being too partisan.

The dual apologies was a nice end.

Smart politics on Labour’s part also. The privilege complaint against Little was for saying that the Speaker is too partisan, but a very specific allegation that he conspired with the Government to disqualify his members’ bill.

As the Clerk of the House had revealed that he had advised the Speaker that the bill should be disqualified (as it was near identical to another one that had been voted on this year), then Little was facing the unedifying possibility of a hearing where he either has to call the Clerk a liar, or admit he made the conspiracy theory up. So it is a smart move to make it go away.

A demob happy Steven Joyce delivered chocolate santas around the press gallery.

Even Annette King’s two fingered salute to Health Minister Jonathan Coleman was done in good humour.

It all felt like a strangely cheerful end to what has been a particularly toxic political year.

 Even the spectators who dropped paper from the public gallery onto the heads of MPs seated below them seemed to enter into the spirit of things. They were there to protest the Trans-Pacific Partnership. But from a distance, the paper could have passed for confetti. 
People who do that are idiots. If ever our public galleries get turned into cages where large plastic screens separate people from the chamber, it will be due to these morons.

Young calls Labour MPs bullies

December 7th, 2015 at 11:00 am by David Farrar

The Herald reports:

The committee often known as the “powerful” privileges committee has an unusually full agenda owing to some blatant breaches of parliamentary standards by the Labour Party.

Labour leader Andrew Little has led a mini-revolt against the established protocol of showing respect to the Speaker, or at least not demonstrating disrespect.

The problem with the leader instigating such a revolt is that it leaves no place for the party’s wiser heads to go.

Little has dragged Chris Hipkins, chief whip, and Grant Robertson, shadow leader of the House, into the fray with him.

They must back up Little publicly or leave the leader out on a limb. There is really no choice. Instinctively they back him.

With all three on the case of the Speaker, it leaves Labour looking petty, always arguing the toss, not concentrating on the issues that matter, blaming the referee.

They may have convinced themselves their attacks on the Speaker define them as fighters to the core, but they often come across as bullies.

It’s a good way to view it. They are picking on the only MP in Parliament who can’t fight back – the Speaker. His job doesn’t allow him to respond to their jibes. They can’t actually win against MPs who can answer back, so they go for one who can’t.

There has been one egregious error by the Speaker this term, in letting the Prime Minister get away with claims that Labour supported murderers and rapists.

But Labour and Little’s constant clash with the chair smacks more of frustration that the party is not making gains where it wants, in hits against the Government or its own policy triumphs.


The matter that has the Labour leader and senior whip, Little and Hipkins, before the privileges committee is even more serious than Dyson’s.

They suggested widely in media interviews that the Speaker had acted on the instructions of National to postpone a private member’s bill in the name of Little from being introduced, after it had been drawn out of the ballot.

It went further than a general allegation of bias to a specific suggestion he had taken instructions from the Government.

It’s one thing to make a general accusation of unfairness or bias, but Little just invented a conspiracy theory that is defamatory.

The rules clearly state that a bill that is substantially the same as another cannot be introduced again in a calendar year – and Little’s bill on a warrant of fitness for rental property was virtually the same as his colleague Phil Twyford’s that had been tied 60-60 on a vote taken before Winston Peters won Northland and brought in another list MP for the Opposition.

Little wanted to have another go with a similar bill in the hope of embarrassing National with a 61-60 victory for the Opposition after Peters’ win, excepting his bill was not different enough.

The Government agency in charge of WoF standards would be the Ministry of Business, Innovation and Employment, not Energy Efficiency and Conservation Authority, as in Twyford’s bill. The policy was the same.

Labour deserved to be annoyed and disappointed. Its staff had sought advice from the Office of the Clerk on the bill and had been assured by someone in the Tables Office (where members’ bills are lodged) that Little’s bill would be acceptable.

But straight after it was drawn, the new Clerk of the House, David Wilson, decided otherwise.

He told me this week he became aware of the Tables Office advice only on the day it was drawn from the ballot: “I did not agree with the advice. Since all staff of the Office of the Clerk act on behalf of the Clerk, if they make a mistake, it’s up to me to correct it. It was on that basis that I advised the Speaker [to postpone the bill to the next calendar year].”

Instead of accepting the Clerk’s word, Little and Hipkins went straight for the Speaker’s jugular with no evidence of wrongdoing.

So unless Little is claiming the Clerk of the House is lying, then he should withdraw his allegation against the Speaker. The Speaker merely acted of the advice of the Clerk.

Satire rule to go

September 17th, 2015 at 5:49 am by David Farrar

Stuff reports:

Parliament looks set to ditch a controversial and unused provision against using television footage from the debating chamber for satire or to ridicule or denigrate them.

The “anti satire” rule came about during the previous Labour government and was apparently aimed at preventing people from using Parliament TV footage for you-tube videos mocking MPs and Parliament.

The rule has never been used and the Clerk of the House and Parliamentary Press Gallery said in submissions to the Privileges Committee that it risked making Parliament “seem out of touch and weary of criticism”.

The Privileges Committee agreed though expressed reservations about people using Parliament TV footage to present a “false or misleading account of parliamentary proceedings”. 

Glad to see the Privileges Committee agree the ban on satirical use should go. Was also good to see the Clerk of the House advocating for its removal.

The committee’s report followed an inquiry into the use of social media as a growing number of MPs use twitter, live streaming and Facebook to communicate with voters. 

Recent examples including criticism of Parliament’s Speaker sparked the inquiry, which looked at whether there should be rules slapped on social media that made it a contempt to make certain comments or use video or photographic footage in some instances. Speaker David Carter had asked them to consider the matter.

But the committee backed away from new rules governing what MPs posted on social media when the House was sitting, saying any comments made by MPs on social media, including comments made from the debating Chamber, were not part of parliamentary proceedings.

However, it also warned that MPs were not protected by Parliamentary privilege, so should be aware that anything they said on social media was potentially actionable in court.

Also that MPs could be found in contempt under existing rules for what they say about other MPs.


Two Privileges Committee reports

July 12th, 2014 at 1:00 pm by David Farrar

The Privileges Committee has reported back to the House on two issues.

The first is around the fiasco around the GCSB report leak. It sets out four principles:

  1. There should be a presumption that information held on parliamentary information and security systems should not be released. 
  2. Individual members should retain complete control over the release of any information that relates to them. That is, material relating to individual members should only be released where that member specifically agrees to its release. 
  3. Journalists working in the parliamentary precinct should retain complete control over the release of any information that relates to them. That is, material relating to a journalist or group of journalists who work in the parliamentary precinct should only be released with their specific authorisation. 
  4. For information requests that do not relate to an individual member, the Speaker of the House of Representatives should be the ultimate decision-maker.

They seem very sound principles.

They also report back on issues around Police and SIS access. Mainly just a series of clarifications.


MPs tweeting and privilege

May 21st, 2014 at 1:00 pm by David Farrar

The Herald reports:

The MP whose tweet caused the Speaker to refer the issue of Twitter to the Privileges Committee does not resile from his description of the Speaker as a “Mafia don”.

The Speaker has referred the use of Twitter and other social media by MPs in Parliament to the Privileges Committee to consider how social media use affects Parliament’s rules, such as contempt and privilege.

It followed concern from National’s Gerry Brownlee about an MP using Twitter to criticise the Speaker. He did not name the MP, but Labour’s Trevor Mallard had just objected to a decision by the Speaker, tweeting: “2nd week in a row where the Speaker looked like Mafia don running his @NZNationalParty protection racket.”

In his ruling, Mr Carter said MPs needed to be clear about the rules, which should be reviewed. Tweets were actionable in court and could result in findings of contempt in Parliament.

“Accusations that the Speaker has shown partiality in discharging his or her duties have in the past been judged very seriously, given the special position the Speaker holds.”

I think that generally what an MPs says on Twitter should not an issue for the House.

But I do think it is unacceptable to have MPs live tweeting from the House, making extremely derogatory comments about the Speaker, in response to his rulings. The place to interact with the Speaker is in the House – not to character assassinate him in Twitter.

The Privileges Committee will consider this issue. I don’t think they should over-reach and try to generally bring MPs tweets under Standing Orders. But I do think there has to be some restrictions around being derogatory of the Speaker during sessions of the House.

The Privileges Committee inquiry into the leak inqiuriy

August 23rd, 2013 at 1:00 pm by David Farrar

My interpretation of the two days of hearings into the leak inquiry is that it was basically a SNAFU. By that I mean there was no malicious intent by everyone – just that many parties involved made incorrect assumptions, and/or didn’t check.

I think the first error was not an appreciation that this inquiry was a bit different to other leak inquiries as the major focus was on whether a Minister leaked it, not a government employee (like in the MFAT leak). When you are dealing with employees a leak inquiry is on far more solid ground – the employers have total authorised access to all work data around their employees – their swipe card records, their e-mails, their photocopier logs and the like. But Ministers and MPs are different, as are journalists when it involves their use of parliamentary resources.

So some criticism to DPMC for not seeing (but hindsight is wonderful) that this inquiry is different to others, and having more specific terms of reference and powers about what the inquiry should and should not be able to seek.

Some criticism also to David Henry for not setting clear processes around seeking of data with agency chief executives. It seems the approach as along the lines of let’s ask for everything we can think of, and up to them to say no. Again, no appreciation of the senstivity when dealing with MPs that they are not in the same constitutional position as employees.

And also some criticism for Parliamentary Service for not having clear policies on when data can and can not be released, and who should be consulted or approve any release. Also the fact that data was being exchanged it seems at pretty much a junior staff level. PS should have recognised the sensitivity of such requests and made sure no data was handed over unless it was operating on a clearly understood basis of who should be saying yes to what.

So no malice involved anywhere, just a lack of overall co-ordination both within agencies and between them. I hope Privileges Committee will have some useful recommendations on how to avoid a repeat.

Privileges Committee to look at swipe cards

July 12th, 2013 at 3:00 pm by David Farrar

Claire Trevett at NZ Herald reports:

Speaker David Carter has asked the Privileges Committee to draw up rules setting out the circumstances under which information such as security access details can be released, after concerns were raised that such details were used without permission to track the movements of United Future’s Peter Dunne and Fairfax reporter Andrea Vance. …

Mr Carter dismissed a complaint by Green Party co-leader Russel Norman against the Prime Minister over the issue, but said Dr Norman’s complaint did raise serious issues that the Privileges Committee was best-placed to look into.

“The exercise of intrusive powers against members threatens members’ freedom to carry out their functions as elected representatives and the House’s powers to control its own proceedings and precincts without outside interference.”

He said the release of information relating to journalists working in Parliament also raised concerns.

“While the media do not necessarily participate directly in Parliamentary proceedings, they are critical to informing the public about what Parliament is doing and public confidence in Parliament. Actions which may put at risk journalists’ ability to report freely are a significant concern.”

However, Mr Carter said Parliament was also a workplace for Parliamentary and Government department staff, so access to such data also had to pay regard to the rights of employers and employees.

“I believe some common understanding is required to ensure that on the one hand, the functioning of the House and discharge of members’ duties is not obstructed or impeded, but on the other hand the maintenance of law and order and the ability to investigate and prosecute offences committed within the Parliamentary precincts is preserved.”

This is a good decision. Some clarity on this issue would be welcome. As I previously said, I thought the decision to access and release the swipe card details of a journalist was the wrong call.

F for consistency

June 19th, 2013 at 3:07 pm by David Farrar

Kate Shuttleworth at NZ Herald reports:

A privileges complaint has been laid with the Speaker of Parliament over the behaviour of two veteran Labour MPs at last week’s Law and Order Select Committee.

Committee chairwoman Jacqui Dean is unhappy with the way Trevor Mallard and Phil Goff behaved during the appearance of Police Commissioner Peter Marshall and Deputy Commissioner Mike Bush.

Labour MP Trevor Mallard stormed out of the committee during a fiery exchange about the eulogy given by Mr Bush at the funeral of former detective inspector Bruce Hutton in April. …

Mr Goff argued with Ms Dean and swore after his questions about police redundancies and station closures were stifled.

Mrs Dean said both outbursts were unacceptable.

I understand Goff used the F word, which is definitely not allowed in Parliament.

Mr Mallard said: “The only comment I will make is the fact that Jacqui Dean has been public [about the complaint] is an indication that she’s not taking it seriously.

“You either let the Speaker decide if you’ve got a case or you make a fuss about it publicly, you don’t do both,” he said.

Does no one in Labour think about their record before they open their mouth? So according to Trevor you shouldn’t make a fuss about privilege complaints if you are serious about them. Well let’s look at some recent cases:

Here’s his own leader David Shearer just a few days ago:

New Zealanders are still none the wiser as to who leaked the Kitteridge Report. All we have is an MP who has resigned as minister but refuses to cooperate with the inquiry. The matter cannot lie here. This is why we have taken the matter to the Privileges Committee to get to the bottom of who leaked the report.

So according to Trevor’s own words, David Shearer is not serious about his privileges complaint as he went public about it!!

And if we go further back we have:

  • 10 Oct 2011 – Press Release by Phil Goff about how Labour is laying a privileges complaint against the PM over comments in the House
  • 1o July 2011 – Press Release by Trevor Mallard about how Labour is laying a privileges complaint against Bill English over comments in the House about asset sales 
  • 30 July 2009 – Press Release by Clayton Cosgrove about how Labour is laying a privileges complaint against ACT MP David Garrett over comments in a select committee 
  • 7 July 2009 – Press Release by Grant Robertson about how labour is laying a privileges complaint against Nick Smith over comments in Parliament relating to ACC redundancies

Trevor gets an F for consistency!

Privileges recommendations

June 12th, 2013 at 10:00 am by David Farrar

The Privileges Committee has made some significant recommendations around the law of parliamentary privilege, the main one being that it be set out in statute. Their full report and arguing is very interesting, including where they slap down the Supreme court for their ruling in AG and Gow v Leigh.

As the Attorney-General chairs the Privileges Committee, I think it is safe to assume the Government will accept the report and act on it. The recommendations are:

  1. We recommend to the House that it note that we respectfully disagree with the Supreme Court decision in Attorney-General and Gow v Leigh in applying the test of necessity to ascertain the scope of Parliament’s privilege of freedom of speech.
  2. We recommend to the Government that it introduce a Parliamentary Privilege Bill to clarify for the avoidance of doubt the nature of parliamentary privilege in New Zealand.
  3. We recommend to the Government that the Parliamentary Privilege Bill contain a clear statement of purpose to aid in determining the extent and scope of parliamentary privilege.
  4. We recommend to the Government that the Parliamentary Privilege Bill replace the 

    Legislature Act 1908, the Legislature Amendment Act 1992, and section 13 of the 

    Defamation Act 1992.

  5. We recommend to the Government that it consider and where appropriate incorporate the recommendations in the Second Report of the Standing Orders Committee on the Law of Privilege and Related Matters, November 1989 (I.18B) in drafting the Parliamentary Privilege Bill.

  6. We recommend to the Government that the Parliamentary Privilege Bill provide for 

    the avoidance of a doubt a definition of “proceedings in Parliament” and what is meant by 

    “impeaching and questioning” such proceedings, as set out in article 9 of the Bill of Rights 


  7. We recommend to the Government that the Parliamentary Privilege Bill provide for the power of the House to fine for contempt.

  8. We recommend to the Government that the Parliamentary Privilege B

    ill provide for

    the power of the House to administer oaths or affirmations in respect of witnesses giving


  9. We recommend to the Government that the Parliamentary Privilege Bill confirm that the House does not have the power to expel its members.

  10. We recommend to the Government that the Parliamentary Privilege Bill provide that the live broadcast of Parliament’s proceedings, including select committee hearings, is protected by absolute privilege.
  11. We recommend to the Government that the Parliamentary Privilege Bill provide that delayed broadcasts or rebroadcasts of Parliament’s proceedings, including select committee hearings, that are made by order or under the authority of the House of Representatives are protected by absolute privilege. 
  12. We recommend to the Government that the Parliamentary Privilege Bill provide that a fair and accurate report of proceedings in the House, or summary using extracts of proceedings in the House, by any person is protected by qualified privilege. 
  13. We recommend to the Government that the Parliamentary Privilege Bill provide that 

    the broadcast and other publication of extracts of Parliament’s proceedings, including 

    select committee hearings, that are not made by order or under the authority of the House 

    of Representatives are protected by qualified privilege, in a manner consistent with the 

    provisions of the Defamation Act 1992. 

  14. We recommend to the Government that the Parliamentary Privilege Bill make 

    explicit that a member of Parliament, or any other person participating directly in or 

    reporting on parliamentary proceedings, who makes an oral or written statement that 

    affirms or adopts what he or she or another person has said in the House or its committees 

    will not be liable to criminal or civil proceedings unless the statement in and of itself could 

    be defamatory.

  15. We recommend to the Government that once enacted the Parliamentary Privilege Bill be administered by the Clerk of the House of Representatives. 

  16. We recommend to the Government that it work with the Clerk of the House of Representatives to draft the Parliamentary Privilege Bill.

Andrew Geddis on Privileges Committee

June 10th, 2013 at 4:27 pm by David Farrar

Andrew Geddis blogs at Pundit:

In other words, the first call on this issue is going to be Speaker David Carter’s. And I suspect it’s going to be a pretty tricky one to make. There is the question of whether there is sufficient evidence to suggest that Peter Dunne actually lied when he said he was not the source of the leak. Because while the Henry Report said that it couldn’t rule Dunne out as the leak’s source, it didn’t say he was. So while a number of commentators have joined the dots and concluded he did it (and therefore lied in his response to Peters), there isn’t any official finding that this is the case.  

Furthermore, even if there is some evidence in the Henry Report to support a conclusion that Dunne may have lied when he said he wasn’t the leak’s source, did he “deliberately attempt[] to mislead the House or a committee” by doing so? Recall that he was before the Finance and Expenditure Committee in his role as Revenue Minister, to answer questions relevant to his responsibilities in that portfolio. Winston Peters then began badgering him with questions relating to the Kitteridge Report leak.

Geddis continues:

Given this fact, the question then becomes whether a witness before a select committee misleads it if she or he falsely answers a question that wasn’t relevant to the committee’s proceedings in the first place. Or, instead, did Peter Dunne simply deliberately attempt mislead Winston Peters … in which case, there’s no contempt of Parliament involved. Because contempt relates to the work of the House of Representatives as an institution, not to the individuals within it: it isn’t, for example, a contempt of Parliament for an MP to tell a barefaced lie to another MP during a public debate on the campaign trail … but it is for a Minister to lie to an MP who asks her or him a question in the House.

So there’s an at least tenable argument that even if you think Dunne lied, he didn’t lie to the House (or a committee of the House). I which case, there is no contempt and so no question of privilege to be considered.

I agree it i going to be a tricky call to make. No doubt if Carter declines, he will be attacked by the Opposition as Geddis notes:

Hanging over all this is another issue, however. It isn’t even a week since the Speaker, David Carter, made his decision that United Future could continue to be recognised as a party for parliamentary purposes. As I noted in this post, and as others have noted elsewhere, the reasoning for that decision is  somewhat odd. Furthermore, it caused a (probably overdone) eruption of opposition anger against the Speaker. In the light of this, can David Carter really afford to find that the complaint against Peter Dunne doesn’t involve a question of privilge? What future for his role in the Speaker’s chair if he is seen to make two quick rulings in Peter Dunne’s favour?

I would hope the decision is made on its merits, not on how it will be perceived.

Latest on Dunne

June 10th, 2013 at 12:33 pm by David Farrar

Stuff reports:

Shearer said he had lodged a privileges complaint with the Speaker regarding Dunne’s statement to a select committee that he did not leak the Kitteridge report into the GCSB.

Took them long enough. I indicated on Saturday that a complaint to the Privileges Committee was logical. Much more sensible that the hysterical rushing to the Police to try and get a Police investigation, for something that is not a criminal matter.

Fairfax Group executive editor Paul Thompson said politicians should tread carefully before embarking on a witch hunt. That could have a chilling effect on how journalists covered politicians.

Fairfax would protect the communications between its journalists and any contacts, regardless of whether they were the source of sensitive information or not.

“The protection of our sources is paramount,” Thompson said.

“We will resist any attempt to force us to release that sort of information.

If the issue is referred to the Privileges Committee, I don’t expect they would ask Fairfax to co-operate. And Fairfax should not.

But they can ask or order the Department of Internal Affairs to reveal the e-mails between Dunne and Vance.

Thompson also rejected suggestions there was more to the relationship between Dunne and Vance.

NZ First leader Winston Peters has claimed to see emails that were personally embarrassing but Thompson said Fairfax was “absolutely” backing Vance.

Claims are easy. He should produce them if he has them.

“Andrea is a very talented journalist, she has done some terrific work this year,” he said.

“Her handling of the GCSB report was absolutely faultless and there was nothing improper going on. We are 100 per cent behind her.”

Which is what I said on Saturday.

He also rubbished a claim by former National Party president Michelle Boag that Vance leaked the emails to Peters.

“That’s ludicrous,” Thompson said.

With respect, yes it is.

Opposition parties were likely to lodge a complaint with Parliament’s Speaker that Dunne misled Parliament last week when he told a select committee he did not leak the GCSB report.

Dunne maintained he did not leak the report, although he canvassed the prospect with Vance.

That is the issue of privilege. Whether Dunne lied to the select committee.

Prime Minister John Key said today he did not believe Dunne should quit Parliament, regardless of whether he leaked the report.

If leaking means resignation from Parliament, then the only MP left in Parliament would be Ross Robertson.

Also the PM gets no say on whether an electorate MP from another party resigns or not.

Dunne was not the first MP to leak information and he said Labour MP Lianne Dalziel had remained in Parliament after being sacked as minister for leaking material to the media.

And Winston Peters was found by the Privileges Committee to have misled Parliament (and everyone else) on his knowledge on the donation from Owen Glennto his lawyer to cover his legal expenses. He did not resign in the face of that finding. Ultimately the voters make their judgement, as they did on Peters in 2008 and will on Dunne in 2014.

“An investigation by the Privileges Committee is required to get to the truth of the matter. New Zealanders are still none the wiser as to who leaked the Kitteridge Report. All we have is an MP who has resigned as minister but refuses to co-operate with the inquiry,” Shearer said.

“The matter cannot lie here. This is why we have taken the matter to the Privileges Committee to get to the bottom of who leaked the report,” Shearer said.

That is not the role of the Privileges Committee. However their role can be to investigate if Peter Dunne lied in his select committee testimony. There is a difference.

It will be interesting to see how the Speaker rules. On the face of it, it would seem an appropriate issue to be referred to the Privileges Committee. Misleading a select committee is a serious issue.

Geddis on parliamentary privilege

December 1st, 2012 at 3:00 pm by David Farrar

Andrew Geddis blogs on the issue of privilege for what civil servants say to MPs:

The central issue that the Privileges Committee is considering is relatively straightforward to understand, but tricky to resolve. It arose out of the Supreme Court’s decision in Gow v Leigh – a case I discussed in a previous post here, so won’t cover in detail again. In the course of that judgment, the Supreme Court ruled that the absolute privilege against any legal consequence that attaches to those who speak during a proceeding in Parliament does not extend to public servants who are advising Ministers of what to say to Parliament. Consequently, if a civil servant gives a Minister information about an individual or organisation that is false and defamatory, and the Minister subsequently repeats it in Parliament, then the civil servant potentially can be sued for defamation (even though the Minister cannot be, because the Minister enjoys absolute privilege with respect to her or his remarks).

I’m a fairly simple guy, and think it is a good thing if civil servants do not tell Ministers things that are defamatory and incorrect. I also think it is a good thing if there are some consequences for doing so.

This fact then means that the sole justification for extending absolute privilege to the public servant when providing information to the Minister lies in the consequentialist-based harm that may be done to that institution if public servant’s do not have the benefit of that privilege. In other words, if public servants don’t feel able to speak fully and freely with Ministers without fear of attracting subsequent legal liability, then they may hedge and trim their communications in a way that denies Ministers the information they need to fully answer questions posed to them by the House.

Obviously, this would be a bad outcome for the House as an institution. But how likely is it to occur? Remember first of all that under the Supreme Court’s reading of the law, public servants still enjoy qualified privilege to protect them when speaking with Ministers (as, indeed, does anyone who is speaking to an MP in the course of their duties). This fact means that unless a plaintiff can prove that a public servant abused that privilege by acting out of ill will or otherwise taking advantage of the opportunity, the public servant enjoys the same degree of legal protection as if the privilege was absolute. Therefore, the only speech that will attract actual liability is where a public servant sees a chance to settle some score with an individual or group that the public servant doesn’t like and gives a Minister false and defamatory information, which the Minister then passes on to the House .

 Well summarised. The fact that such civil servants have qualified privilege is sufficient in my opinion.
I suppose it could be the case that individual public servants become so risk-averse that they deliberately run the risk of sending their Minister into the House with less information than they themselves hold. But I wonder if this fear does not misread public service culture – my observation of “inside the beltway” practice is that public servants are more terrified of being the cause of a Minister’s embarrassment and wrath than anything else in this world. Furthermore, we need to remember what a public servant becoming liable for a defamatory statement to a Minister actually means in practice. The public servant won’t have to hire lawyers and worry about damages. Those will be covered by the public servant’s department. So at most the public servant will be somewhat inconvenienced by having to provide affidavits in defence of the action. And that would seem to be a risk that public servants face on a daily basis, insofar as their advice may result in Ministerial actions that are subject to judicial review and the like.
It will be interesting to see what the Privileges Committee recommends.

Audrey on reading and driving

September 23rd, 2009 at 1:00 pm by David Farrar

Audrey Young takes a trip down memory lane to the last MP accussed of reading while driving. It was Richard Prebble, who was then Transport Minister and it turned into a Privileges Committee hearing!

The case of Dr Paul Hutchison reading while driving may remind some of you with a few grey hairs of the furore some years ago over the claims that Richard Prebble had been seen driving while reading – a serious allegation for a Transport Minister as he was at the time. …

It was the subject of a privileges committee hearing though the privileges case was not about the driving perse, but commentary and questions around it. Both Prebble and Radio Windy broadcaster Chris Gollins were “charged” with contempt of Parliament. …

On September 22 1986 Mr Chris Gollins in his regular commentary on Wellington’s Radio Windy stated that the Minister of Transport, the Hon Richard Prebble, had been observed on the previous day driving for a considerable period through Wellington while reading what appeared to be a copy of a Sunday newspaper spread across his steering wheel. …

The Radio Windy commentaries had two immediate consequences. Mr Winston Peters, MP, who had asked the question, raised the Minister’s reply as a matter of privilege on the ground that it had been given with the intention of deliberately misleading the House. At almost the same time, the Minister raised the commentaries as a matter of privilege on the ground that they misrepresented the proceedings of Parliament and reflected on him as a member by libelling him in his capacity as a Member of Parliament.

The committee heard evidence from Mr and Mrs Gollins, senior, the parents of Mr Chris Gollins who had observed Mr Prebble driving on the Sunday, from Mr Chris Gollins and from Mr Prebble. Mrs Prebble, who was a passenger in the car on that day, was unable to appear, but stated by telegram that Mr Prebble had not been reading while he was driving.

The committee has no doubt of the honesty of the evidence given by Mr and Mrs Gollins senior. They were both truthful witnesses endeavouring to assist the committee to the best of their ability. It was in fact only Mrs Gollins who had observed Mr Prebble for any period of time – Mr Gollins having concentrated on his own driving and only having glanced into Mr Prebble’s car while both cars were waiting at a set of traffic lights. Mrs Gollins testified
that she had seen Mr Prebble driving though Wellington central with a newspaper on the steering wheel and that at one point while the car was at a traffic light, he had made what she took to be a remark to Mrs Prebble based on what she had seen in the newspaper.

Mr Prebble strenuously denied that he had been reading the newspaper at any time. He gave evidence that he had purchased groceries and a number of newspapers on the day in question and had placed the newspapers in his lap towards the steering wheel but that he had not read these papers while he was driving the vehicle.

Mrs Gollins rang her son shortly after she arrived at her home that day. This was done in the expectation that Mr Chris Gollins would use the item in his commentary. …However although the first commentary expressly states that Mr Prebble had been observed reading a newspaper while he was driving, it is clear from the evidence that neither at that time or later, did Mr and Mrs Gollins state to their son that Mr Prebble had been reading the newspaper.

This was a conclusion drawn by Mr Chris Gollins, it was not a statement made by the principal witnesses themselves even though Mrs Gollins agreed in evidence that the conclusion was reasonably drawn by her son. Mrs Gollins stated that her son added this conclusion in broadcast on his own initiative.

And the conclusion:

Mr Prebble’s answer to the question in the House was a completely accurate reply and the allegation against him of contempt by lying completely insupportable….A minority of the committee considers that Mr Prebble’s reply was misleading…he was observed driving for a considerable period and a newspaper was spread across the steering wheel. The minority considers that it is a natural inference from the position of the paper that Mr Prebble was reading it at some point on his drive. In these circumstances a minority of the committee would find that Mr Prebble did mislead the House.

It finds [Chris Gollins and Capital City Radio] to have committed a contempt in the broadcast of September 24. The committee believes it was a misunderstanding as to the nature of the Minister’s reply which led Mr Chris Gollins to broadcast the offending remarks….in these circumstances the committee is disposed to recommend to the House that no further action be taken.

Geoffrey Palmer chaired the committee. Also on it were Bill Birch, Michael Cullen, Doug Kidd and Frank O’Flynn.

I presume Kidd and Birch were in the minority. Regardless a fascinating trip down memory lane.

Parliament and contempt orders

June 2nd, 2009 at 9:00 am by David Farrar

The Privileges Committee tabled a report at the end of last week titled:

Question of privilege relating to the exercise of the privilege of freedom of speech by members in the context of court orders

And they make significant recommendations to the House:

Matters awaiting or under adjudication in any New Zealand court may not be referred to in any motion, debate, or question, including a supplementary question, subject always to the discretion of the Speaker and to the right of the House to deal with legislation on any matter or to discuss delegated legislation.

This would make it a contempt of Parliament for an MP to breach a supression order in the House.

They also recommend to the Government:

The Privileges Committee recommends to the Government that it introduce legislation to amend the Legislature Act 1908 to provide that
• the live broadcast of Parliament’s proceedings, including select committee hearings, is protected by absolute privilege (p. 25)
• delayed broadcasts or rebroadcasts of Parliament’s proceedings, including select committee hearings, that are made by order or under the authority of the House of Representatives are protected by absolute privilege (p. 26)
• a fair and accurate report of proceedings in the House, or summary using extracts of proceedings in the House, by any person is protected by qualified privilege (p. 27)
the broadcast and other publication of extracts of Parliament’s proceedings, including select committee hearings, that are not made by order or under the authority of the House of Representatives are protected by qualified privilege, in a manner consistent with the provisions of the Defamation Act 1992 (p. 28)
• the criticisms made of the decision in Buchanan v Jennings be addressed so that a Member of Parliament, or any other person participating directly in or reporting on parliamentary proceedings, who makes an oral or written statement that affirms or adopts what he or she or another person has said in the House or its committees will
not be liable to criminal or civil proceedings (p. 22)

The extension of parliamentary privilege is useful, as it will include Internet broadcasts of the House.

The Buchanan v Jennings is a case when MP Owen Jennings was able to be sued because he said outside the House that he stood by or affirmed what he said in the House. Up until then it was thought you only lost liability if you actually repated what you said.

The Committee also turned down a suggestion by Andrew Geddis that the broadcast feed of Parliament have a five minute delay to allow the Speaker to bleep out any words that breahc a supression order. Thank God they turned that down – it would be ridicolous to have Parliament broadcast with such a delay.

I will be very interested to hear the debate, when the report is received by the House.

Why no decisions by Police on electoral breaches?

December 24th, 2008 at 9:25 am by David Farrar

The Herald reports today that the Police have rejected the NZ First complaint against the Director of the Serious Fraud Office. They were very upset that he told the truth to the Privileges Committee about the funding of the $40,000 Peters paid Clarkson. It showed that both Peters and Henry had given false evidence to the Privileges Committee, so no wonder they were upset.

But this got me thinking about the Police, and the election. The Electoral Commission has referred multiple alleged offences to the Police this year, and with one exception (the false donation returns from NZ First) it has not announced an outcome for any of them.

The earliest referral was on 27 June in relation to unauthorised banners in Tauranga. This was as simple a case as you can get. How is it the Police have not been able to reach a conclusion in six months?

There was also the Progressive adverts referred on 1 August, the EMA adverts on 26 August, the late Social Credit donations return on 4 Sep 2008, and a further Progressive ad on 18 Sep 2008.

It is difficult to not conclude that the Police just have no interest in enforcing electoral law (as they showed in 2005), when they can’t even make a decision within six months on an unauthorised billboard.

Woolerton shamed by Glenn saga

October 22nd, 2008 at 2:33 pm by David Farrar

NZ First MP Doug Woolerton has revealed that he felt shamed by the Owen Glenn saga and that he thought the Privileges Committee did its job:

The Owen Glenn donation scandal, which almost capsized Winston Peters, deeply embarrassed his NZ First colleague, Hamilton MP Doug Woolerton.

List MP Mr Woolerton made the revelation during last night’s Waikato Times candidates’ debate for Hamilton East.

He was responding to a question from the floor on the subject and dropped characteristic good humour to answer openly and honestly.

“I was hugely embarrassed. That was unfortunate but the parliamentary committee did its job,” he said.

Doug will be gald NZ First has already had their list ranking!

It is good to see some signs of intelligent life in NZ First – I mean no-one (not even Helen) really could have heard all the evidence and think there was anyway Winston was telling the truth about not knowing.

Now we know what Tommy Gear does

September 29th, 2008 at 6:33 am by David Farrar

The Dom Post reveals that Tommy Gear is the NZ First staff member who pressured Te Ururoa Flavell to vote for Winston.

We always wondered what Mr Gear does for his taxpayer funded salary. Now we know – it is to lobby MPs not to find Winston guilty.

Field on Peters

September 27th, 2008 at 12:00 pm by David Farrar

Taito Phillip Field explains why he voted to censure Peters in the Herald.

Mr Peters has claimed the privileges committee was biased and hit out at the Maori Party for betraying him and at Mr Field, saying theMangere MP “did not understand loyalty”.

This is loyalty, as practised in Siciliy I suspect?

Mr Field acknowledged Mr Peters had supported him. “I have a lot of time for Winston and I am supportive of him. I’ve always considered Winston a friend, but I had to make an honest decision which had respect for the privileges committee process.”

Winston thinks it is all about him, but for many MPs it was about recognising the fact the Privileges Committee heard all the evidence, and reached fair conclusions.

In the same report:

Meanwhile a complaint to the Advertising Standards Authority about a Tui billboard saying: “When Winston says no, he means no. Yeah right.” has failed.

The complainant, N. Keesing, said it was “defamatory and racially discriminating towards Winston Peters”.

The authority ruled that it would be seen in a humorous light and did not meet the “threshold to effect a breach of the code of ethics”.

How is the Tui billboard racially discriminating??

It may however be an election advertisement. I have asked the Electoral Commission to rule on whether or not it is.

Russell Brown on Peters

September 25th, 2008 at 11:43 am by David Farrar

Russell Brown is not too happy with Labour on Peters:

The failure of the Labour members of the privileges committee to find with the multi-party majority that Winston Peters had provided “false or misleading information on a return of pecuniary interests” was pathetic, and they know it.

And later on:

I hold no brief for Peters, and I suspect there will be worse to come on his and his party’s affairs. I think Chris Trotter’s comparison of the privileges committee’s action to a lynching (he even has a picture of a man being lynched on his blog) is revolting.

There is an interesting split occurring on the left. There are those who are disgusted with Labour and willing to say so. And there are those who are hugging Winston closer and closer and trying to turn him into a martyr and a hero.

Russell of course also has a go at John Key, linking to the editorial in today’s Herald about him. I have previously blogged my criticism of the Tranzrail responses, along with my relief that unlike Peters and Clark who never admit they do anything wrong, Key did admit his mistakes.

I have said for some time that this election is National’s, unless they stuff up. This is not an impossibility, to put it mildly. It would be an incredible shame if they do stuff up, and we get a fourth term of Clark and Peters. They say we get the Government we deserve but seriously we’re not that bad are we?

QC backs SFO Director against attacks

September 25th, 2008 at 10:00 am by David Farrar

QC Jim Farmer has criticised Helen Clark and Michael Cullen for their attacks on the Director of the Serious Fraud Office. Farmer is a past president of the Bar Association.

Jim Farmer said criticism of Mr Liddell’s judgment by Prime Minister Helen Clark and her deputy, Michael Cullen, was wrong and unwarranted.

Mr Liddell’s evidence was uncovered in the SFO investigation and showed that Mr Peters had a $40,000 debt paid for him by the Spencer Trust, contradicting his version that he paid it himself.

Dr Farmer said Mr Liddell had a simple choice: whether it was responsible to “sit on” relevant information, or to hand it over.

And Labour wanted the information supressed, because it reveals that Peters broke the Cabinet Manual and Register of Interests even more blatantly than in the Owen Glenn case.

“He has obviously taken a responsible decision. It is very defensible on its merits and it doesn’t warrant attack from politicians, particularly personal attacks in the form of saying he has poor judgment.”

Dr Farmer may not understand that for Clark and Cullen, a public servant exercises poor judgement if they do not act in the best interests of the Labour Party, as opposed to acting in the public interest. You see they have convinced themselves that nothing is more important for the public good than them remaining in power, so anything that may damage that is automatically poor judgement by the public servant involved.

Dr Farmer said there was no formal requirement for Mr Liddell to consult Crown Law and he had “no idea” why Helen Clark and Dr Cullen were suggesting this.

“In carrying out the investigative duties, the SFO and the director are intended to be independent and operate without influence from anyone,” he said.

“Running off to Crown Law or the Solicitor-General to get advice – or approval, if that’s what Dr Cullen is suggesting – doesn’t seem to be obvious or even right.”

Indeed. And in fact a growing number of Government Departments no longer even use Crown Law for their legal advice or representation in court.

At Back Benches last night

September 25th, 2008 at 7:17 am by David Farrar

Further to the the two stories yesterday from lifetime Labour voters who will not vote Labour this time due to Labour’s condoning of Peters’, I had an interesting encounter at the Backbencher last night, after Back Benches.

A gentleman came over to me and asked if I was David Farrar. He was in his 50s I would say. When I responded that I was he said he wanted to tell me something but put it in context.

He told me how he hates the National Party and would never vote for them. In fact his exact words were “I would rather take out a knife, cut off my cock and stuff it down my throat than vote for National”. He also went on to say he does not agree with any of my political views, which he finds repugnant. In fact he joked (I hope he was joking) that if I was crossing a road and he was in a car, he would speed up.

After having got that out of the way, he then went on to say how disgusted he is with Labour over Winston Peters (and ironically Winston was in the room as he had turned up to watch Back Benches), that their tolerance and implicit condoning of his activities verges on corruption, and how they need to be thrown out of office for a couple of terms.

Voting to defend Winston was a step too far even for Jim Anderton. And it seems for a growing number of lifeling Labour voters.

Espiner on the Vote

September 24th, 2008 at 6:37 pm by David Farrar

I missed an update Colin Espiner did on the vote yesterday. It is worth repeating in full:

Labour and NZ First voted against the privileges committee motion to censure, but every other party in Parliament – including independents Philip Field and Gordon Copeland – voted in favour, so the motion passed comfortably.

This was a relief, as it meant Labour and Winston Peters failed to pervert the cause of justice and will of the majority despite the most underhand of tactics. As I’ve said below in this post, Labour’s attempt to politicise the committee and discredit its findings was shameful – amongst the worst things the party has done in the past nine years, in my opinion.

That is really strong language, but justified. This is why lifelong Labour voters are saying they can stomach no more. You had the Attorney-General of New Zealand repeating Winston’s conspiracy theories about how Owen Glenn was coached by his Fay Richwhite supplied lawyer. Yes, seriously. I will blog the Hansard when it is available.

As for Peters, his utter lack of contrition, humility, and failure to show even the slightest respect for the judgment of his peers was nauseous. He has become a parody – a caricature of belligerence, contempt, hubris, and narcissism. His address to Parliament last night was ugly, brutal, and sad. The shame of it all is that if just 5% of New Zealanders either believe him or feel sorry enough to vote for him he will be back triumphant.

It was ugly. There was not even a small fraction of contrition from Winston. Quite the opposite. As MPs such as Russel Norman were making dignified serious to the point speeches, Peters was barracking them almost non stop. It was an insight into how truly ugly this man is. Muldoon was benign by comparison.

Labour have chosen to put all their eggs in with Winston. There is no less deserving person. It wasn’t even that Peters has no respect for the judgment of his peers. He has no respect for anyone but himself. He does not accept in any way he is bound by rules or accountability or obligations. Sadly this is partly because Helen Clark has freed him from all the normal Ministerial obligations such as telling the truth, disclosing interests, following the Cabinet Manual.

Sharples says Labour tried to “pervert the course of justice”

September 24th, 2008 at 1:04 pm by David Farrar

Not only were Labour turning a blind eye to Peters corruption, they were threatening and lobbying other parties to do the same.

NZPA reports:

Maori Party co-leader Pita Sharples says a New Zealand First staffer and Government minister tried to put pressure on his party over how it would vote in yesterday’s censure motion against Winston Peters. …

“I personally had two separate phone calls from a senior minister urging me to vote in favour of Winston, and suggesting that there would be unpleasant repercussions from Maori people if I didn’t,” he said in a statement….

“Both (fellow co-leader) Tariana Turia and myself were disgusted with this kind of activity, aimed at perverting the course of justice and fair play.”

Labour First are quite simply a corrupt party, and they should go.

The Prime Minister’s hypocrisy is unmatched on this. She claims the outcome of the Privileges Committee was not credible because of partisan politics, and her own Ministers are trying to heavy and threaten the Maori Party to vote against, despite their belief in the evidence.

The same Prime Minister who has not even read a copy of the Privileges Committee report, yet says there is nothing in it that would casue her to drop Winston.

UPDATE: the full press release from Sharples is over the break


Editorials on Peters

September 24th, 2008 at 8:10 am by David Farrar

The three major editorials are all on Peters today. First the Herald:

It is stating the obvious to say Winston Peters should have resigned as a minister some time ago. And that he should go now, after the censure delivered by Parliament’s privileges committee. He will not, of course, and, the New Zealand First leader may even see a silver lining in that dark cloud. The Prime Minister has said she will not reinstate him as Foreign Minister, but that he will remain a minister without portfolio. As such, Mr Peters is free to hit the campaign trail with the salary and perks of a minister but none of the responsibilities.

All baubles, no work.

The Prime Minister sought to construct one by calling the committee “tainted” and suggesting most of its members were politically motivated. The criticism was tawdry. No representatives on the committee had, out of necessity, a more highly politicised view of Mr Peters than those of Labour.

And she admits she has not even read the report.

Now The Press which has a simple headline of “Sack Peters”:

The seriousness of the report means that Peters should not be reinstated as foreign minister, a position in which the qualities of credibility and trustworthiness are crucial. So why is it that for the next two months or more, until the shape of the next government is known, he is allowed to retain his ministerial salary and the other perks of the job? The only answer is that it is still politically expedient for Labour to let him cling to the baubles of office.

I think they are worried if they take his baubles off him, he will remove their ones.

Peters, after weeks of self-righteous bluster and confusing problems of recollection, reacted in typical fashion. He slammed the committee members who found against him, claiming that they had prejudged the issue for political reasons and applied retrospectively a new interpretation of Parliament’s rules. This, according to Peters, had “echoes of Zimbabwe” and, oddly enough, he was right.

In Zimbabwe, after all, there is a certain political leader whose stock response to any criticism is to clamp down on the news media and to claim that he is the victim of murky conspiracies. And that same leader has exhibited a grim determination to hold on to the trappings of power.

We’re just fortuntate that most of his supporters are too elderly to invade farms!

The Government has clearly taken a gamble. It believes that Peters will return to Parliament after this year’s election, courtesy of him persuading 5 per cent of voters to believe him, and that with his support in some capacity Labour could lead a fourth consecutive administration. But it is far more likely that voters will be aghast that Peters has not been sacked or stripped of his baubles and judge Labour itself to be guilty by association.

As the saying goes, a vote for Labour is a vote for Winston in Government and a vote for Winston is a vote for a Labour-led Government.

Finally the Dom Post:

Pared back to its essentials, what that means is that the committee did not believe the evidence presented to it by Mr Peters and his lawyer Brian Henry. There is another, shorter, word to describe what the committee made of their testimony.

They lied. Many many times in fact.

The committee was presented with two conflicting versions of events. One was internally consistent and supported in material parts by documentation; the other was subject to frequent revision and unsupported by documents. Mr Peters and his lawyer were given multiple opportunities to come up with a version of events that fitted plausibly with the known facts. Their inability to do so left the majority of the committee with no option but to conclude their evidence was unreliable.

Except for Labour First MPs.

In Mr Peters’ case, Miss Clark has the power to demonstrate that such conduct is not acceptable for ministers in her government. That she has not done so because she harbours the hope that support from NZ First might enable her to form a fourth government after the election is a matter of regret.

You have to wonder if there is any conduct that Clark would sack Peters for. Any at all?

Well done Gordon

September 24th, 2008 at 7:50 am by David Farrar

It is worth noting that Gordon Copeland also played a very useful role in the decision to censure Peters.

Gordon filed the Privileges Complaint that Peters got caught on. Rodney filed one relating to payment of a debt while Gordon’s was on receiving gift. And in the end it ws Gordon’s complaint that held up.

Now I suspect that even if Gordon’s complaint had not gone in, the Privileges Committee would still have have made the findings they did, as even if the original complaint was under one section of the rules of the Register, they would not ignore a breach under a different rule.

But regardless worth noting Gordon’s useful role in this.