8 Jul 2018

Parliament's Privilege is absolute, but not absolutely

From The House , 7:30 am on 8 July 2018

Quick quiz. Does privilege mean:

    1.  Foie gras and champagne at the Polo.

    2.  White folk not realising skin-tone offers an inherent advantage.

    3.  Immunity from prosecution.

Parliamentary Privilege is ‘3’, and it’s pretty privileged.

It means MPs are immune from punishment by the courts for what they say inside Parliament. The other MPs might punish them, but no-one outside can.

It’s also called ‘absolute privilege’ and it’s the ultimate in free speech, but it’s not ‘absolute’. For comparison, in czarist Russia the nobility could murder peasants with impunity. See.

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The Debating Chamber of the House of Representatives, otherwise known as the House. Photo: VNP / Phil Smith

The 'absolute' differentiates it from ‘qualified privilege’, which is the second-hand, watered-down version of privilege, which is relied on by journalists who report what happens under absolute privilege.  

There was some confusion in Parliament recently about how this privilege thing works. The basic idea is that because Parliament creates the laws for the country, it also sets the boundaries on those laws - and it has ring-fenced itself from some of those laws.

Parliament has always believed that in order to be able to debate and argue without fear of retaliation it should have the ultimate form of free speech. MPs can say whatever they like in the house without getting sued. If they step outside and do the same they might get in serious trouble.

Jamie-Lee Ross

National MP Jami-Lee Ross Photo: RNZ / Alexander Robertson

Not worrying about defamation allows MPs to raise issues they feel are important. For example, National’s MP Jami-Lee Ross has been undertaking a slow, one-man investigation around a District Health Board, via Oral Questions to the Minister of Health.

As part of this he asked the House (via the Speaker) for leave to ‘table a document’ related to the allegations.  

Tabling literally means having a document put on the big table in the middle of the room so other MPs can read it. Sometimes Parliament’s language is surprisingly obvious. 

Leave (permission) was given. MPs have to unanimously agree to the unexpected offer of tabling things. They did.

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The Table in Parliament's debating chamber. Yes, The Table (with capitals) is just a table. Photo: VNP / Daniela Maoate-Cox

But Jami-Lee Ross also asked for the House to agree that the document be published under the authority (and therefore under the privilege) of the House.

Possibly he wanted the document to be able to be published by the media but feared it might be defamatory or legally privileged, and wanted to make it less dangerous. (Something is defamatory if it might damage your reputation but either isn’t true, or can’t be proven.)

Discussion, explanations and decisions from the Speaker ensued, but it was easy to get lost in the rules. And not all the MPs seemed to quite have them straight. So here’s a quick rundown on tabling and publishing under privilege...

It goes like this:

  • Documents tabled in the House are covered by absolute privilege. That’s automatic, MPs don’t have to ask for it. The documents are privileged so long as they remain in the House.

  • Tabled documents are not automatically published or made public.

  • The Clerk of the House decides whether a tabled document can or should be made more widely available (published).

  • They remain available for MPs to read even if the Clerk decides not to publish them. But they aren’t public unless ‘published’.

  • If the Clerk of the House published something defamatory they could get in trouble. The Clerk doesn’t have absolute privilege. 

  • If the Clerk can’t safely publish a document but the MPs still feels it should be published the House can decide to publish it, with privilege, under its own authority.


The Speaker indicated Wednesday that he wouldn’t seek the leave of the House for publishing the new document. He wanted it tabled first so that MPs could have a chance to read it before they decided whether or not to give leave for it to be published.

That way, MPs don’t give permission to send privileged documents into the world with no idea what they actually say.

When Jami-Lee Ross asked for leave to publish it again the next, the Speaker asked the House for its opinion but permission was not given (i.e. at least one MP said no, let’s not do that).