Privilege — Consideration of Privileges Committee Report—Conduct of Member towards Chairperson of Transport and Infrastructure Committee

I move, That the House take note of the report of the Privileges Committee on the question of privilege concerning a member’s conduct toward the chairperson of the Transport and Infrastructure Committee.

This is the fourth of four references to the Privileges Committee that we’ve had in the last couple of months, after having none in the prior 2½ years. This is an unusual event, and I will address both how the Privileges Committee chose to consider the matter and the allegations that were made. Mr Speaker, the reference to the select committee from you arose from a complaint from a member who was present at a select committee hearing, the Transport and Infrastructure Committee, at the end of a meeting of which there was a disagreement between Mr van de Molen and the chair of the committee. The reference to us was to consider whether the actions of Mr van de Molen crossed a line and were inappropriate.

The way in which the committee chose to deal with the issue was to employ the services of an experienced King’s Counsel (KC) to investigate the facts of the matter. The—

💬 Chris Bishop: She’s not a KC.

She’s not a KC? Sorry; Wendy Aldred, a senior barrister. Sorry; thank you for that correction, Mr Bishop. We already knew at the time that she was engaged, as a Privileges Committee, that there were a number of witnesses to this altercation that had taken place, being two members of Parliament in addition to the chair and Mr van de Molen. In addition to that, there were three select committee staff that were also present. We weren’t aware at the time when the reference was made to Wendy Aldred that there was also a backup tape recording of events. When select committees meet and a transcript is taken, there is a primary recording methodology, which had been turned off, but there’s also a backup methodology, which was still running. That became apparent a day or two later, and that was also provided to Wendy Aldred. Wendy Aldred then interviewed Mr van de Molen, Mr Halbert, the MPs present, and the staff, and the report from Wendy Aldred—it runs to about 17 or 18 pages, I think, from memory—is appended to the report.

Before I come to the conclusion, I will emphasise something that that was emphasised by members during our consideration of the matter, and that is that we have to be very careful in this place that we don’t make findings of misconduct too easily. It is a place of robust debate. Sometimes, a number of us, you know, lose our rag a bit. You know, we get a bit angry about how things roll in a select committee, and there are robust exchanges at select committee, quite often when the media are present, and there are complaints made about how the presiding officer chairs meetings of select committees. As the select committee recorded, Parliament is a place of debate. We recognise that this can at times involve conduct that would be unpalatable in other contexts.

We considered carefully whether Mr van de Molen’s conduct could be considered to fit within the bounds of acceptable parliamentary behaviour. For example, it’s not entirely unusual for a member to challenge a select committee chairperson’s management of a hearing or for members to exchange views in a hostile tone. There is, appropriately, a high bar for poor behaviour to attract a contempt finding. None the less, as the reviewer Wendy Aldred reported to us as the Privileges Committee, there was quite a bit of evidence that this particular conduct went too far. That included Mr van de Molen walking close to the chair of the committee, who was seated, and saying, in a way that the reviewer found objectively to be threatening behaviour, “Stand up.”, which concerned not just the other members of Parliament that were in the room but also the select committee staff, all three of whom told the reviewer that they were sufficiently concerned to contemplate calling the security staff on precinct to intervene.

The finding of the committee was that Mr van de Molen’s conduct towards Mr Halbert amounted to both threatening him and impeding him in the discharge of his duties as a member. He felt he couldn’t stand up without provoking perhaps a physical confrontation and therefore was prevented from leaving the select committee and going about his business, which included coming into this House to conduct his duties as a whip. So the committee, having considered the matter, concluded that in terms of Standing Orders, the definition of a contempt includes an act that impedes a member in the House in the discharge of the member’s duties, or “has a tendency, directly or indirectly, to produce such a result.” The fact that Mr Halbert was threatened on account of his conduct as a presiding officer has contributed to our finding of contempt. While threatening behaviour is always a serious matter, it is particularly offensive for a member to be subject to such behaviour because of how they discharge their official parliamentary duties. Select committee chairpersons are not immune from criticism or, in the appropriate manner, challenge, but Mr van de Molen’s conduct in this case was not appropriate.

Accordingly, the committee concluded that Mr van de Molen’s conduct in this case could not be condoned as normal or acceptable, and we found—and it’s quite rare for the committee to do this—that the conduct of Mr van de Molen amounted to a contempt.

Thank you, Mr Speaker, and my thanks to the chair of the Privileges Committee, the Hon David Parker, for the well-traversed explanation of what happened and the process we went through. I just want to add a couple more points.

The first is that we found this a troubling matter to deal with as a committee, for obvious reasons. We were placed in the invidious position of, essentially, being asked to find facts, and we considered right at the start of our inquiry how to do that. There were basically two options: one was to ask an independent investigator to do that for us, which is the path we went down, and the other option was to get the relevant member concerned before the committee, ask other members who were there, and, most particularly, because of the somewhat unusual nature of the alleged offending, also get the relevant staff to submit to the committee. We pondered whether or not that would be a good idea, and I think we made the appropriate decision that it would be unfair on the staff, who, at the end of the day, don’t come to work to get involved in political events, as inevitably would happen before a public committee of the Parliament—the so-called highest court in the land. The prefix “powerful” is always appended to the Privileges Committee, and so we felt like that wasn’t going to be an appropriate thing to do. So we asked Wendy Aldred, a barrister of some renown, to find the facts for us, and I commend her work, which was done very quickly, actually. There was quite a desire from members to deal with this quickly and as expeditiously as possible, and Ms Aldred provided us with a fairly comprehensive report.

Having received that report, the next question was: what to do? Basically, we just applied the facts as had been presented to us by the independent reviewer to the relevant Standing Orders, as the chair has gone through. In doing so—and this is the second point I wanted to mention—we were very cognisant of the ability to have robust debate and criticism in this Parliament. I like to play hard but fair; I enjoy the cut and thrust of debate, and I give as good as I get, and all of that. And I think it’s important that we maintain that privilege. That in itself is actually a parliamentary privilege: freedom of speech. I would never want to see this debating chamber, and indeed this Parliament, become a sterile place of non-debate. But there is a line, and the line is that the conduct of the member concerned with this committee—and the Standing Orders are very clear that impeding another member in the course of their duty is a contempt of Parliament. We found, as a committee, that that is what had happened, with the assistance of Wendy Aldred, barrister, and we applied the facts to the law. That is what we have concluded.

I’d also make a final point, which is that we were also conscious of upholding Parliament as a good place to work, as well—of being a place that staff and members of Parliament and all who work in this very important building feel safe at work in. The question before the committee was: if this wasn’t contempt of Parliament, what is? Our view was that, to maintain the integrity of the Privileges Committee and maintain the integrity of Parliament, it is important that behaviour that Mr van de Molen accepts was inappropriate and wrong—it’s important that those facts are laid out cleanly and clearly for all to see and appropriate sanction is meted out. So we considered very carefully the issue of apology versus censure. I think, if you think about the other cases we’ve dealt with in the last few weeks—the issue of Mr Wood and Mr Court—they can be fairly distinguished from this case. Mr Wood and others have been asked to apologise, and they’ve done that. This case is the next rung above and, therefore, our recommendation is Mr van de Molen be censured. We endorse that. It’s a troubling matter. But, ultimately, Mr Speaker, you referred the matter appropriately to us, and we’ve acted in a very collegial and bipartisan and consensual manner and, I think, done the right thing in this instance. Thank you, Mr Speaker.

I also rise in support of the earlier comments by my colleagues on the Privileges Committee, and, again, I’d just like to acknowledge the way that people from different parties have come together and worked through something that’s been quite difficult. We’ve been quite constructive and innovative in the way that we’ve done it, and I think that, actually, that’s something that gives a bit of hope for the way that our Parliament can function. None the less, we were forced to deal with quite a difficult issue because, on the one hand, as other speakers have outlined, this is a place of vigorous debate. New Zealanders have issues where they strongly disagree with each other and, for most of human history, most disagreements have been settled by might is right, and violence.

We have a unique system of Government, or at least a very rare system of Government, that hasn’t existed for very long in the wider sweep of human history where we, basically, send some people to settle differences amongst different groups in the community by debate—using words, not violence—under a quite arcane but quite useful set of rules to make laws, and, ultimately, people respect the process enough so that for the most part, people follow the laws that the Parliament makes and pay the taxes that it levies. That’s quite an achievement. But the whole thing doesn’t work if Parliament goes from being a place of reason and enlightened discussion using logic and facts and persuasion and appeals to people’s better angels to try and get a consensus, and it instead becomes a place where might is right and people stand over each other and use violence.

So that was the basic problem that we had to overcome, and the question was—[Interruption] My colleague and constituent Paul Goldsmith just said that it wasn’t violence, and I agree with him. But the question was whether there were aspects of this particular incident that were troubling because they would somehow impede the House or impede a member of the House from performing their duties, and it was very difficult, because on the one hand—as other members have said—because this place is really designed to resolve conflicts between different groups in society and we strongly disagree and do so peacefully, there’s often debate and behaviour that is unlike in any other workplace. It would be unacceptable in any other workplace, and that’s actually healthy for society to have this place as an outlet for those conflicts.

The question is: where is the line crossed so that it becomes unacceptable, even here? I think the committee, through a useful debate—and it’s reflected in the report—got to the point where it wasn’t necessarily the fact that the actions were hostile or that they might be offensive or rude or they made someone feel uncomfortable, necessarily. The two issues that the committee really centred on were that the person in this case—Shanan Halbert—was impeded in doing their duties. Specifically, they couldn’t leave the room, for a couple of reasons. One was that they felt they were being physically obstructed, and, two was that they felt that way because, in the words of the person who we took to do the inquiry, they felt like they were being threatened by some of the words—for example, the words “stand up” were taken as an incitement to stand up and perhaps engage in a physical conflict.

I think it’s really important—and I think the committee’s report does a good job—to be clear that the reason this is a contempt and it’s totally unacceptable is because of those specific threatening behaviours and that physical blocking and impeding of a member from leaving the committee and being able to go and do their duty. It’s important we recognise that, because it means that in the future, when somebody looks at this report from the Privileges Committee and perhaps a forthcoming decision for the House to endorse the committee in a potential censure that the Speaker may end up making, people are clear that it’s not because someone was hostile or because they were abrupt or rude or forceful—we need all of those things—but it’s because they did things that were objectively threatening and because they did things that created a situation where the person got physically unable to leave the situation, even though they wanted to, and that is completely unacceptable. That undermines the purpose of our Parliament as a place where conflicts can be resolved peacefully.

So I just wanted to get those comments on record. Certainly, I share with Chris Bishop the will that Parliament is a place that people want to come to—a wide range of people want to come to—where they feel that they can contribute to New Zealand on behalf of the communities that send them here, and feel that there’s going to be more light than heat and that we leave New Zealand as a better place after our three or however many years of service. In order for Parliament to continue functioning, it really needs to be able to keep doing that. Any actions such as those taken by Tim van de Molen, unfortunately, impede parliamentarians from being able to enjoy their job here, and that’s why I endorse this decision and report by the committee. Thank you, Mr Speaker.

Thank you, Mr Speaker. This is a difficult place—it’s been said before; it is said often. This was a difficult case for the Privileges Committee to consider, for a multitude of reasons. Obviously, we had the job of deciding, first off, how to protect the integrity of the staff members who had become witnesses, how to protect a complainant, two MP witnesses, and also how to fortify due process for the person accused—one of our own. That is always the case when the Privileges Committee meets and considers these matters, but, in this case, because the concerns were so serious and of a nature that we don’t often see, there was some delicate and, at times, really difficult questions to answer.

The finding of the fact-finder was not in any way based on the subjective fear or feeling of threat that was felt by Mr Halbert, although that was very clearly noted. It was informed by a number of witnesses and it’s been traversed by our chair the fact that even staff members had all independently said they were sitting there in their place of work, contemplating how best to contact security. It was, of course, reiterated by those MPs that were in the room.

I do want to note that we have had reports, over and over again, about the culture of this place, including details of bullying and much worse. Those conversations still have to happen; they have to be active; processes have to be in place in a way that we don’t continue to see reports, including from the Privileges Committee. But one of the things that I wanted to highlight is that we have an issue in this place where we are repeatedly faced with allegations of bullying, and that this debate should not only be focused on how to preserve the perceived right that we have to—what has been repeated over and over again—robust debate, but, actually, what impact the scale of aggressive debate, which is, I think, what people mean when they say “robust” sometimes, has on actually silencing other debaters. That is also a huge concern out in society right now. In every forum that political issues are debated, there are concerns that those debates are silenced, that people are excluded, forced out, because the debate is—and we can euphemistically call it “robust”, but it’s aggressive.

In this case, the finding wasn’t that Mr Halbert felt threatened, it wasn’t just that the witnesses in the room saw the behaviour as threatening, but that it was objectively threatening behaviour. That’s what we had to sit with and it does happen that it was at such a high degree of breach that it moved over from aggression—and I don’t even know if “bullying”, as a word, would have gotten us over the line, but “threatening behaviour” did. So I’m glad that that happened and that we had to ask ourselves where the line is drawn. But I hope that we don’t sit back and say, “The line is threatening behaviour; is physically blocking an entrance, is physically standing over a member, is missing the end of the bells”—which happened in this case—“to enter the House.”, but we have a conversation that’s actually about the ways that we treat each other and the ways that this place can be harmful to democracy, to democratic debate, including in select committees, including in this House, but also out there, because people are watching and they do deserve better of us.

So this is a good finding and it’s a good process to have had to go through, but it absolutely should not be the end of how we look at debate, how we define “bullying”, how we define “aggression”, and how we define “democracy” as an inclusive thing. Thank you.

Motion agreed to.

Mr van de Molen, the House has resolved that you be censured for threatening a member on account of their conduct as a presiding officer and impeding them in the discharge of their duties as a member. Your conduct was unacceptable in Parliament, which is a place of debate and not threatening behaviour.