Points of Order — Privilege—Procedure for Raising Breaches

I raise a point of order, Mr Speaker. I think your office has been given notice of my intention to raise a point of order as to the decision of the Table Office not to accept a notice of motion from Clare Curran relating to a breach of privilege, which she attempted to lay yesterday, and was rejected by the Table Office. The grounds that were used for that—and I will go back to them—were the feeling that such a notice of motion breached Speakers’ rulings 180/2 and 180/5.

I draw your attention to McGee, page 665, where he makes it absolutely clear that a member can raise a matter of privilege by way of notice of motion in the House, and that that can be done whether or not it has been lodged with the Speaker. This is the latest edition—the third edition—of McGee, which postdates the Speakers’ rulings on the matter. He refers to cases in Erskine May where, in fact, the House of Commons has found a breach of privilege without having a hearing, and he draws attention to the case in 2000 in Hansard, Volume 585, at page 3,457, where the House of Representatives censured a member for remarks that he offered—both cases not having hearings of the Privileges Committee.

What is well established is that there is an ability for members, by way of motion, to move such a motion in the House and, in the unusual event that the business gets to members’ motions—and I accept that that would be unusual—to have it referred. The Wall ruling, 180/5, says: “Once a matter of privilege has been raised with the Speaker it is out of order to refer to it in debate in the House.” My submission to you, Mr Speaker, is that that is a matter of general or other debate and if we came to a debate on that particular issue, it would be then be in order. I think all of us know that one should not casually refer to matters that are before you, Mr Speaker, but if one goes back to McGee and looks at previous cases in New Zealand and previous cases in the United Kingdom, one will see that it is clear that there is an ability to do a parallel process, both through reference to you and also directly through the House.

My submission is notwithstanding the comments of the Office of the Clerk. Speaker’s ruling 180/2 is entirely irrelevant. There is no doubt from my perspective that if we apply this ruling and Speaker’s ruling 180/5, the matter cannot be brought on for debate. But we have a number of places where, for example, reports of select committees and bills are introduced that are below the line, so we have items that are on the Order Paper but not available for debate. My submission is that having a motion on the Order Paper does not necessarily involve debate. In fact, I think we would agree that where it is a members’ notice of motion it is most unlikely.

My colleague feels there has been a breach; I think it is fair to say that she is pretty motivated about the 2-year breach—I know because I have seen a copy of the letter—that she has written to you about in the Telecom structural separation case.

Mr Speaker, I do not think I am asking you to rule immediately on this question, but I ask you to go away and consider whether, in fact, when you look carefully at Speakers’ rulings 180/2 and 180/5; McGee page 665; Hansard, Volume 585, at page 3,457; and Erskine May page 132, there is an ability for a member to take what has been regarded as a right, and that is to set down a notice of motion—not to have it debated—on matters of privilege.

Just very briefly, I say that Chapter VIII of the Standing Orders deals with parliamentary privilege. An allegation of breach of privilege is a very serious allegation. There is a very clear procedure set out in Chapter VIII as to the way in which issues of breach of privilege are dealt with, including procedural aspects of reference to you, Mr Speaker. It is entirely appropriate that once the matter has been raised with you by letter, until it is determined—whether in a threshold way by you, or referred on to the Privileges Committee—it is inappropriate to have those matters canvassed in the House. That is what lies behind Speaker Wall’s ruling at Speaker’s ruling 180/5.

I thank both honourable members for the constructive way they have raised this issue. I must agree with the Hon Chris Finlayson that he has come to the heart of the issue. The Hon Trevor Mallard is quite correct that these matters can be raised by notice of motion in the House; that is very clear. But I disagree that Speaker’s ruling 180/2 is irrelevant. I believe it is totally relevant to the situation and the point made by the Hon Chris Finlayson is relevant. Once a letter of complaint has been lodged with the Speaker, then until the Speaker determines the outcome of that complaint, it cannot be raised in the House. Certainly if the Speaker declines to refer it to the Privileges Committee, then it can be raised in the House once the Speaker has determined the matter. But as in all issues that involve judicial decisions, once the matter is before the Speaker, then it is inappropriate for it to be raised in the House in any way whatsoever until the Speaker has made the relevant decision on the matter. Of course, the alternative mechanism remains available to members. They can raise the matter by notice of motion in the House, rather than refer it to the Speaker.

I think the Hon Chris Finlayson made the very pertinent point that once the matter is referred to the Speaker, then it should be a matter that is not discussed in this House. It would be my preference that the matter is not discussed in the media, either. If members are serious about issues of privilege, it is my view that they should not try to make a case to influence the decision of the Speaker one way or the other in the public media. To some extent, it is a measure of the seriousness of these issues. Where members do try to gain political coverage for them in the media, it is hard to then treat them with the same seriousness as a case that is laid before the Speaker in a serious manner without trying to make the case for it in front of the media.

The situation, to me, is very clear. There is nothing wrong with these matters being raised by a notice of motion instead of referring them to the Speaker. There is nothing wrong with raising a matter in that way after the Speaker has decided the matter, but while the Speaker is considering a matter it is not to be dealt with in that way in the House.

I raise a point of order, Mr Speaker. Just one further point: I think the gap in the reasoning from both the Attorney-General and you is that raising it with you is a private matter. It is generally not in the media. There are over 120 members here. The fact that one member has raised it with you should not, and in my opinion cannot, stop other members raising it by way of notice, because, as happens on a number of occasions—and I have written you a number of letters; I have not consulted my colleagues about those—their right to raise the matter as well, through whichever method they choose, should not, and cannot, be limited by a complaint unknown to them through your channel.

I hear what the honourable member is saying, and what is notable in some cases is that it is the very member who lays the complaint who actually pursues the matter in the media. But I accept the point the member makes: that other members may well raise matters because they do not necessarily know that an issue has been referred to the Speaker. I accept the point the member makes, but the fact remains that while a matter is in front of the Speaker—and the Office of the Clerk does know when it is—the Office of the Clerk will not accept a notice of motion. I have ruled on the matter today and I do not think there is a need to take any further time on it, because, as I read the Speakers’ rulings, this maintains the status quo.

I raise a point of order, Mr Speaker. I am not challenging that ruling. I am raising a different issue, and that was your reference to publicity surrounding privilege complaints undermining the case for the complaint to be referred to the Privileges Committee. I make two points: the first is that historically most of the contentious complaints that have gone to the Privileges Committee have had publicity outside that process, and the Winston Peters case is a good example. The second point I would make is that in cases where—and this may well be a case in point—the media have had an involvement in the facts that have led to the Privileges Committee complaint, then there is actually no way that a member can effectively stop the media reporting on these issues.

I understand the point the member makes. That is a perfectly reasonable point indeed.