Legal Beagle by Graeme Edgeler


Low-Hanging Fruit

In a couple of months, the 53rd Parliament will meet in Wellington, and approximately 120 MPs will be sworn in, many of them for the first time.

They will all have political goals, some aligning with their party platforms, some not, some complex, and some simple, but they will gain one thing that every non-MP, not matter how political or motivated, does not have – the ability to legislate.

The process of turning a political idea into draft legislation can be complex. For some policy proposals, it’s something that an individual MP cannot seriously do, without the assistance of a government department, or a pre-existing Law Commission Report the government is being slow in adopting. Others will be doable, but will take years of work. Ministers have a head start, but even the newest MP has the privilege has at least the chance to put a bill in the members’ ballot. And that privilege is something all eligible MPs should do, at every opportunity. If they are not trying to change New Zealand’s laws for the better, why did they choose to become legislators, instead of say, activists, or farmers? Even if they are working on a bigger project – one that will take months or years, there simply has to be some small way that they, as an MP, could make New Zealand law less capricious. At the very least, it will mean I am unlikely to note on twitter, in response to a claim there is some problem with the law, that they don't have a bill in the members' ballot!

One MP who recognises the enormous privilege that being an MP brings is National MP Chris Bishop, who has been a prodigious drafter of simple bills that have been entered into the ballot in his name, and in the names of various of his colleagues who have adopted them (MPs can have at most one bill in their own name in the ballot). He’s had substantial success in getting bills passed, including one I suggested, and has several others that seem very worthy in his name or others'. A recent-ish addition is a bill to amend the lawyers and conveyancers act to permit employed lawyers (eg those who work in companies, not law firms) to provide pro bono legal services for people other than their employer: not a massive change, but an obviously good one.

11 and a bit years ago, blogger Idiot/Savant from No Right Turn started the progressive bills project, a wiki designed to allow, I guess progressives, to draft legislation that could be picked up by MPs (at the time, the biscuit tin of democracy seemed to be significantly less well-used than it has become in the years since). I/S was covering member’s bills, and the members’ ballot, when others often weren’t, and wanted to provide an opportunity for people to make it easy for MPs to advance law changes they want, to suggest simple law changes – of the type you can advance as a back bench MP – so that MPs looking for ideas could just take them up. The project has seen a number of bills taken up by MPs, some unlucky at the ballot, and some even passed into law (some of that may be coincidence, but I understand at least some potential legislation has come directly from the project).

Over the last few years, the site has mostly been me, occasionally having an idea, and getting motivated enough to spend an hour or two drafting short bills. A lot of these ideas have come from Twitter conversations I’ve been involved in – sometimes people complaining about egregious happenings overseas, where I’ve had the sad duty of letting them know “yeah, that’s the law in New Zealand too”.

I get that MPs – new MPs especially – will have lots of calls on their time and their focus, but the first members’ ballot could be on them quickly, and while they are working on whatever grand plan they bring with them, there are simple changes they could advance in the interim. There will be some draft bills lying around Parliament: those advanced by retiring MPs who had bills that never got drawn, but more will be needed, and in the spirit of Milton Friedman, I offer the following ideas, mostly from me, some from I/S.

The Crimes (Wage Theft) Amendment Bill.

This would amend the offence of theft by person in a special relationship to make clear that it can be used to prosecute the intentional withholding of monetary entitlements owed to an employee, in the same way that an employee can be prosecuted for stealing from an employer.

It is, like a lot of the legislation I have drafted, the low hanging fruit. There is a lot that could be done in the wage theft area, including beefing up enforcement within the Labour Inspectorate, but that is harder, and probably involved spending money, which makes a member’s bill a more difficult prospect. But knowing that the perfect should not be the enemy of the good, something can be done that is simple – adding a few words to a pre-existing criminal offence to confirm it applies to wage theft.

The Maori Community Development (Unruly Behaviour Repeal) Bill

I’ve written about this before. It would repeal a set of criminal offences that can only be committed by people who are Māori. It’s another simple bill – the Maori Community Development Act could probably use a general update, but criminal offences, one of the elements of which is that the person is Māori simply should not exist.

The Criminal Procedure (Interim Suppression Pending Appeal) Amendment Bill

I’ve written about this one too. In December 2018, there was a high-profile case where a person charged with offending was refused name suppression. They informed the judge in the District Court that they intended to appeal, so that judge was required to impose an interim suppression during the appeal period. You have 20 working days to appeal such a decision, and with Christmas getting in the way, this prevented journalists publishing the name until well into the new year, even though a judge had decided they should be able to. It is somewhat ridiculous, but had the judge in the District Court granted suppression, media would have been better off: they could simply have appealed the following day, and probably had the appeal heard before the holidays. I propose reducing the normal 20 day appeal period to 5 working days.

The Crimes (Exploitative Sexual Conduct with Person in Detention) Amendment Bill

This bill would create a criminal offence of exploitative sexual connection with people in detention. A lot of people assume that there is necessarily a crime involved when, say, a police officer has sex with a person whom they have placed under arrest. While there’s certainly a serious employment issue, any prosecution would have to be under a standard criminal law, such as rape, and arguments about consent would arise (with no presumption that consent is impossible, and the prosecution required to prove the absence of consent, beyond a reasonable doubt, just as in other rape trials). Sex between a detainer, and someone detained seems inherently exploitative, so having a specific law, where consent doesn’t enter into it, seems justifiable.

There are lots of other good ideas (and probably some bad ones, or at least out of date ones), including many that don’t fit within the basic idea of small changes with a good prospect of passing, but for some brave MP, the project also has a bill to drop the voting age to 14, and this bill to abolish the offence of bigamy.

There are others I've been meaning to work on (I started drafting one to port over the secrecy provisions that apply to the IRD to MSD, but it was more complex than anticipated), and have a mind to try one around criminal records arising out of convictions at Courts Martial, but anticipate some complexity there too (clearly not all convictions in the military justice system should port over the MOJ system, given that you can get a conviction in circumstances where employment law, not criminal law would apply to a civilian), but some seem like they should.

Anyway, if you are an MP, hope to be one soon, or know a candidate or MP who doesn't yet have a policy proposal ready to go in the ballot, I am more than happy for any of the idea above to be adopted by anyone. As a backbench MP, it will be difficult to change the world, but you certainly have the power to change one small part of it, and it's a privilege you should take seriously.


Compensation for pre-acquittal remand; or, The Blog Post Ten Years in the Making

i. David Bain

Ultimately, David Bain was acquitted. To be able to lawfully punish him the Crown had an onus to prove, at a fair trial, that the jury could be sure he was guilty. This, the Crown never did. Bain had spent a little under 13 years in prison, as a result of his flawed conviction, and upon being acquitted, he sought compensation for the time he spent in prison.

Because he was acquitted at a re-trial, and not at the appeal that got him the retrial, his road to compensation for the time spent in prison was a little harder. The Cabinet guidelines that have been set required extraordinary circumstances, in addition to Bain establishing his innocence.

This led to a report from Ian Binnie, a retired Canadian Supreme Court Judge, and a dismissive response from the then Minister of Justice, but my view on compensation didn’t turn on any of the legal complexity. I know what the guidelines say (and they’re largely in-line with other countries), I just simply disagree with them. Bain spent thirteen years in prison, and the Crown never actually proved in Court, what it needed to prove in Court to get the convictions that would see him sentenced to prison. For me, that should be enough.

It isn't for the Government. It isn't for most similar governments. 

I am mostly happy to proceed on the basis that a person is innocent until proved guilty. I am certain that the Government should proceed on that basis. A man whom the Government could not prove guilty – and whom the government should therefore recognise as innocent – spent nearly thirteen years in prison, when he should not have: compensation should follow. (Ultimately, the Government paid Bain a shade under $1m, not as compensation, and significantly less than he would have received in compensation, but enough to ensure his legal action went away)

ii. The rise in pre-trial remand

Remand prisoners (those who have been charged, but not convicted, and also those convicted, but not sentenced) make up a large, albeit apparently falling, proportion of New Zealand’s prison population. In the early-mid 2010s, there was a sharp increase in the remand population, more than doubling over only a few years.

This increase is usually, but misleadingly, attributed to National’s 2013 Bail Amendment Act. The law itself cannot be the direct cause – it made no material change to the onus or test for bail for the vast majority of people who appear before the Courts - but I do not think the timing is mere coincidence. There was a narrow change in the law, but Police, prosecutors and judges got the sense that Parliament (and perhaps the public too) wanted bail to be harder to get, and acted accordingly. The rest was history. It’s New Zealand’s version of Clinton Crime Bill – blamed for the vast increase in the size of the imprisoned population in the US, but clearly not to blame (it only increase penalties in the federal system, but the majority of the increase in incarceration rates that followed it was in state prisons).

For the most part, the increase in remand prisoners is not the cause of the increase in the prison population. Someone who is convicted and sentenced to four year imprisonment for burglary, and who serves two years before being paroled is just one prisoner, serving two years in prison, whether that imprisonment is one year as a sentenced prisoner and one year as a remand prisoner, or two years as a sentenced prisoner. It matter for them (remand prisons are worse), but the numbers are mostly the same.

Of course, this isn’t true for one small, but very important group of remand prisoners: those who are acquitted, and those who are convicted, but who do not receive prison sentences.

iii. Interim injunctions in civil proceedings

As a general rule in civil proceedings, if you sue someone for something, you go to trial, and if you win, you may be able to enforce a judgment. If the claim was for money, it’s enforceable against assets if necessary, if the claim was for some sort of court order, breach of it can be punishable by contempt of court, and potentially imprisonment.

But there are times when this isn’t enough. If someone is using one of your trademarks, then an 18-month wait until a full trial of your application for an order that they stop using your trademark may be too long to wait. Your business may have folded, or employees had to have been let go, and the person whom you claim has caused you loss may not be in a position to fix things if ordered to pay financial damages.

So sometimes, you can obtain an interim orders. In my trademark hypothetical, you could apply for court order stopping use of your trademark before you even get to trial. Because the other side won’t get a full opportunity to defend itself, the legal test for getting interim orders is more involved than you would need at the trial itself, but if you can make the case, you can get one.

But getting interim orders comes at a risk: you might not succeed at trial. And if that happens, you are liable for the damage caused by the interim order: at your request, and for your benefit, there was a court order stopping from doing what it turns out they were entitled to do. And they might have been put to great expense because of it. So one of the things you have to do when applying for interim orders is to provide an undertaking as to damages: a promise that, if you fail to obtain final orders, you’re good for the financial consequences. And this even applies when it is the Government seeking interim orders.

iv. Privatising the losses

The criminal justice system exists to pursue societal goals – society at large is supposed to benefit when people who seriously breach society’s standards are held to account – which is why the Crown prosecutes, and not individual victims.

But when the Crown fails to establish guilt, it isn’t society that bears the cost, even when the Crown has opposed bail.

The government has come to the Court: it has told a judge, we are confident that we have the evidence needed to convict this person of a serious offence, and are confident that upon conviction, we can show that a prison sentence at least as long as the time spent in remand will result. And we think it is really important, for the benefit of society, that this person be detained now, before we have actually proved beyond reasonable doubt that they are guilty.

Being prosecuted is a massive imposition. Being denied bail for any length of time is orders of magnitude worse. You will likely lose your job, if you have one. If you didn’t, you immediately lose any welfare benefit, which may mean you lose your home, which may break up your family. Even a short remand in prison can have devastating personal and financial consequences.

And if the Crown got it wrong, if it prosecuted you in circumstances where actually, it shouldn’t have been so sure it had the evidence necessary to convict, it doesn’t have to make it right. If it sued you, and got interim orders, it would, but because the claim was a prosecution, and the interim imposition was imprisonment, the Crown washes its hands.

I’ve long thought this distinction was unjustifiable. Interim orders detaining someone in prison pending a criminal trial aren’t so different from interim orders stopping a tort, or another civil breach, that society should bear the costs of the failed civil claim, but not the costs of the failed criminal one.

v. Compensation for pre-acquittal remand

I have been meaning to write this blog post for maybe a decade. And if you’ve read this far, you’ve probably guessed my proposal. Not only do I think compensation should be awarded to all those who have their convictions overturned – itself a relatively radical proposal – I also think that when the Government prosecutes you, and fails, then it ought to bear the financial cost of putting right any restrictions it imposed in the interim. Society claims the benefit of the criminal justice system, it shouldn’t privatise the unjust losses.

Why has it taken me so long to write this up? Well, it seemed so unlikely, and so likely to be so unpopular, that it always seemed a long way off. But I now wonder whether that is the case.

In a piece on Kiwiblog, opposing any loosening of bail laws, Jess McVicar of the Sensible Sentencing Trust argues:

Assertions of widescale injustice are also exaggerated. Time spent on remand is credited against any eventual term of imprisonment, meaning the impact on most defendants is neutral. The only real injustices are with those who are acquitted (around 9% of cases) or who or receive a sentence that would not have seen them imprisoned for that length of time. We would be better off providing compensation to this small minority than trashing our current bail laws.

Sensible Sentencing and I will disagree on a lot, especially in relation to things that happen before conviction, but the two sentences ending the quote above give me hope for common ground. It is time for the Crown to compensate all those whom it wrongly imprisons, including the acquitted who spend time in prison on remand.


Parliamentary bungling? But by whom?

There have been a number of articles written about the voting in the final statges of the Electoral (Registration of Sentenced Prisoners) Amendment Bill, during which National MPs voted alongside the Green Party to force a change that would prevent the removal of sentenced prisoners from the Electoral Roll. You can read Geddis here.

I haven't fully thought through exactly what the law requires or allows in it's current, inconsistent form, and am not sure there's much advantage is me opining at length.

The law is somewhat of a mess, but I do not think this was a Government bungle. National plus the Greens are a majority in the House of Representatives, so if they agree on things, they've got the numbers.

But I am somewhat interested in how we got here, because it is the second time something like this has happened recently, previously inadvertantly, this time as a deliberate ploy, and I am not sure that Parliament's procedures aren't supposed to allow this to happen (rest assured though that it did, irrespective of whether the rules were followed).

I put a thread on Twitter a few hours ago, and thought to reproduce it here, with a few amendments permitted by the additional characters allowed in a blog post, in case anyone is interested. In short, I blame the Assistant Speaker, but also acknowledge that I am not an expert on all of the fine detail of Parliamentary procedure, so welcome a clear explanation of why I am wrong if you have one.


We've had a couple of instances recently of parts of legislative amendments being accepted, and parts rejected. First, an amendment by David Seymour to remove safe zones from the Abortion Legislation Bill was defeated in debate on one part and passed in a later part.

Last night, we had an amendment from Golriz Ghahraman to the Electoral (Registration of Sentenced Prisoners) Amendment Bill aimed to allow all (otherwise eligible) prisoners to vote, that was defeated in one part, and passed in another.

While it is not the job of the chair to ensure that legislation is internally consistent and logical, if a vote has already taken on an amendment, and that amendment rejected, that should be the end, if there are subsequent changes contingent on that first vote.

I'm not expert enough in Parliamentary Procedure to know the exact boundary, but I would have expected that both the safezone removal amendment, and especially the all prisoners should be able to vote amendment should have been ruled out of order after being rejected once.

It's hard to know what to search in Hansard to find examples of this, but I found one that I think is similar. In the Education Amendment Bill in 2013, Chris Hipkins moved an amendment to more fully apply the Ombudsman Act and Official Information Act to partnership school sponsors.

Hipkins' amendment was in an SOP like Golriz Ghahraman's amendment was, and amended two different parts of the Bill. It would have added a substantive clause in the bill applying those Acts, and also, in a different part of the bill, would have actually amended the acts themselves to back this up.

After the first vote was held, and lost, when the Committee of the Whole got to the second bit it would have amended, the chair ruled that the vote should not be put, because it was inconsistent with the earlier decision, because that amendment was contingent:

The CHAIRPERSON (H V Ross Robertson): OK. Well, it is out of order because it is inconsistent with an earlier decision of the Committee. The amendment to clause 43 is contingent on the amendment to clause 31 to apply the Ombudsmen Act and the Official Information Act, and the amendment to clause 31 was defeated earlier.

In my view, the safezone and all-prisoners-should-vote amendments are sufficiently similar to this example. Particularly in respect of the prisoner voting amendment, the changes proposed by Ghahraman were there to give affect to the earlier (proposed but defeated) changes allowing more prisoners to vote.

Here's what McGee says:

Amendments inconsistent with the bill or a previous decision of the committee

The second reading is the time to debate the principles of the bill. Amendments in committee that attack the very principles already agreed to by the House at the second reading are not acceptable, nor are amendments that conflict with the provisions of the bill.

Thus in a bill to implement an agreement, amendments inconsistent with the agreement (which must be taken to have been endorsed in principle when the bill was read a second time) are not permitted.

No amendment that conflicts with a decision already taken by the committee on a provision or an amendment can be accepted. An amendment that has been lost in one part of the bill cannot be proposed again on another. Furthermore, when the committee has agreed that a provision shall stand part of the bill, it cannot propose to make an amendment that is inconsistent with that provision later in its consideration of the bill.

Further, an amendment, besides not being directly contrary to a previous decision of the committee, must also be consistent with the pattern of the bill as it has come before the committee. Thus, it was not in order to insert a clause of general application into a bill dealing with specific provisions applying to individual bodies. Nor could a new part containing substantive amendments to an Act be added to a bill when amendments to that Act had already been dealt with in an earlier part of the bill.

It is, however, not part of the Chairperson’s job to redraft a bill so that it is logically consistent. A bill as it comes before the committee may have contradictory provisions. That is for the committee to correct by amending the bill if it sees fit; it is not for the Chairperson to strike one of those provisions out of the bill. The Chairperson merely rules on the admissibility of amendments offered in committee, not on the sense or consistency of the bill as referred to the committee.

The vote on the Electoral (Registration of Sentenced Prisoners) Amendment Bill seems to fall within the words in the second sentence of paragraph three (emphasis added above).

The Committee of the Whole House agreed that the provision of the bill limiting prisoner voting to those serving less than three years should be in the bill. Given this decision, the successful amendment put during the consideration of the later parts of the bill, which dealt with the process of removing certain voters from the electoral roll upon conviction, seems to me to be inconsistent with the earlier provision in the bill, which the House had agreed should be in the bill, and inconsitent with a decision the Committee had taken not to allow prisoners serving three years or more in prison to vote. Given this, I think the Chair should have ruled it out of order before the second vote on it was held.


Parliamentary Privilege, and the summonsing of Crown legal advice

The Epidemic Response has apparently resolved to call on the Director-General of Health, Commissioner of Police and Solicitor-General to provide it copies of relevant material, including legal advice prepared for the government. It is not clear whether summonses have been signed, and served on them, but this appears to be the case and a number of interesting legal questions arise.

This is going to be a long post, so I am going to start with a summary of my view:

  1. The House, and its Committees have the power to call for papers from any person.
  2. The House has the same powers and privileges that the House of Commons had in 1865.
  3. In 2018, the House of Commons exercised a power to require the government of the United Kingdom to provide it legal advice that had been prepared for the Government.
  4. The House of Commons treated the failure of Government to comply with that order as a contempt of the House.
  5. While care should be taken before directing the production of government legal documents to the House of a committee, there is a clear justification for the Epidemic Response Committee to seek the material it has sought, and there a no major concerns around comity with the Courts.
  6. The practice of the government providing the House or its committees with advice from the Law Officers is not unknown in the New Zealand Parliament, but there is an 1875 ruling of Speaker Bell that, if applied, would mean that neither the House, nor its committees could order official opinions of the Law Officer to be produced.
  7. It is not clear whether this does apply, or whether the assertion is correct, especially in light of that the UK direction, and other inroads into government legal professional privilege (including eg the Official Information Act).
  1. If summonses have been served on the Director-General of Health, Commissioner of Police and Solicitor-General, those persons should comply with them, unless or until their effect is stayed, or they are set aside.

This is one of those occasions where the distinction between the House of Representatives and the Parliament of New Zealand matters, so I will endeavour not to stuff it up, but it is useful to begin with the question of where the House gets its powers. In short, it gets them from Parliament. The House acts in a multitude of ways. Parliament acts in one way: enacting legislation.

And, both helpfully, and unhelpfully, the powers of the House are recognised in statute. At least two sections of the Parliamentary Privilege Act 2014 are relevant, although neither wholly answers the question. First is section 8(1):

8 Privileges exercisable and part of laws of New Zealand, journals as evidence

Privileges, etc, exercisable

(1) The privileges, immunities, and powers exercisable by the House, committees, and members are every privilege, immunity, or power that complies with both of the following:

(a) it was on 1 January 1865 (by parliamentary custom or practice and rules, statute, or common law) exercisable by the Commons House of Parliament of Great Britain and Ireland, its committees, or its members; and

(b) it is not inconsistent with, or repugnant to, the New Zealand Constitution Act 1852 of the Parliament of the United Kingdom as in force on (the date of the coming into operation of the Parliamentary Privileges Act 1865, namely) 26 September 1865.

The principal question is therefore: what powers did the House of Commons have on 1 January 1865 that still apply in New Zealand? To answer this, we turn to McGee’s Parliamentary Practice in New Zealand:

The power of the House to inquire into anything that it sees fit has long been held to imply a concomitant power of compulsion to obtain information necessary to carry out an inquiry. These powers—the power to inquire and the power to obtain evidence coercively—have often been regarded as synonymous. However, the House of Commons never claimed a privilege to administer an oath in aid of its inquiry power; and it is not always the case that a body with a power to inquire also possesses a power to order production of evidence. It is preferable, therefore, to regard these as separate powers. The power to secure evidence by requiring the attendance of witnesses and the production of documents is viewed as supporting the power to inquire, and is usually (but not always) co-extensive with it.

The question about whether the House can require the administering of an oath is resolved by the Parliamentary Privilege Act:

24 House or committee may administer oath or affirmation

The House or a committee respectively may, for the purpose of taking evidence on oath or affirmation from a witness examined before the House or that committee, administer an oath or affirmation to the witness.

Importantly McGee notes that:

The New Zealand Bill of Rights Act 1990 is binding on the House and controls any coercive exercise of the power to obtain evidence. Persons against whom the power is exercised have the right to be free from unreasonable search and seizure.

McGee also notes that the power to order witnesses to attend, or for documents to be produced may be delegated by the House to Committee. It has done this in standing orders 196 (which deals with committees with the power to send for person, papers, records) and 197 (which deals with committees without that power). Under the resolution adopted by the House creating the Epidemic Response Committee, the Epidemic Response Committee has the power to send for persons, papers, and records, so I quote only SO 196:

196 Exercise of power to send for persons, papers, and records

(1) A committee with the power to send for persons, papers, and records may order that a summons be issued to any person—

(a) to attend before that committee to be examined and give evidence:

(b) to produce papers and records in that person’s possession, custody or control to that committee.

(2) Every summons issued under this Standing Order—

(a) must state the time and place at which it is to be complied with by the person to whom it is addressed, and

(b) is signed by the Speaker and served upon the person concerned under the Speaker’s direction.

Importantly there is a disjunction between a summons that requires a person to attend to answer evidence, and one that requires production of documents.

This is because of section 25 of the Parliamentary Privilege Act:

25 Privileges and immunities of witness giving evidence on oath or affirmation

(1) A witness examined before the House or a committee and giving evidence on oath or affirmation has, in respect of that evidence, the same privileges and immunities as has a witness giving evidence on oath or affirmation in a court.

(2) This section is subject to any contrary enactment.

A look through the historical antecedents to this section suggests this is mostly directed at the privilege against self-incrimination, but I see no reason why this would not cover oral evidence touching on material that is protected by legal professional privilege. I wondered whether it may be an oversight in the process that adopted the Parliamentary Privilege Act that this extends only to evidence on oath or affirmation, but have concluded it was the intention.

Prior to 2014, the legislated basis for parliamentary privilege was contained in the Legislature Act 1908. It had a more extensive section on witness immunity. A person required under oath to answer questions of either House, or any committee or joint committee, could argue that requiring an answer might incriminate them. If the Committee still felt in needed answers to satisfactorily deal with the issue it was considering role, it could apply to the house for a resolution requiring answers. If such a resolution was issued, answers were then required, but the witness was provided with a certificate of immunity which could be used to stay any civil or criminal case against them for anything they revealed in their answers.

Why would this apply to oral evidence and not documents? Because there’s isn’t a privilege against incrimination in pre-existing documents. A search warrant can be used to obtain them, and a production order can be used to require a person to produce them. That simply isn't what the privilege against self-incrimination means in New Zealand.

The Legislature Act even included a near-identical immunities section to that contained in section 25(1):

(5) Every witness sworn and examined under this or the last preceding section shall have, in respect of the testimony given by him when so sworn, the like privileges, immunities, and indemnities in all respects as are possessed by or belong to any witness sworn and examined in the Supreme Court.

What does this mean? The same thing it means now. Mostly, it is about not being sued, but it too could arguably apply to allow a witness to refuse to answer questions directed at piercing legal professional privilege.

But this doesn’t get us much further toward the question of whether the House (and by extension. Its committees) has the power to require production of government documents protected by legal professional privilege. To advance this further we can look at the experience of both the New Zealand Parliament, and the United Kingdom Parliament.

In respect of the United Kingdom, the position is admirably simple. On 13 November 2018 the House of Commons adopted a resolution requiring “… that the following papers be laid before Parliament: any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union.”

The Government refused and on 4 December 2018 the House adopted a motion: “this House finds Ministers in contempt for their failure to comply with the requirements of the motion for return passed on 13 November 2018, to publish the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework for the future relationship, and orders its immediate publication.”

The Government published the material the following day.

My research hasn’t been exhaustive, but there appear to have been no substantive law changes between 1865 and now that would have created a power for the House of Commons that it could exercise in 2018 that it did not also possess in 1865. Certainly, there is a long-standing convention that advice from the Law Officers is not disclosed outside Government. Erskine May (the United Kingdom’s equivalent of McGee) records:

By long-standing convention, observed by successive Governments, the fact of, and substance of advice from, the law officers of the Crown is not disclosed outside government. This convention is referred to in paragraph 2.13 of the Ministerial Code. The purpose of this convention is to enable the Government to obtain frank and full legal advice in confidence. Therefore, the opinions of the law officers of the Crown, being confidential, are not usually laid before Parliament, cited in debate or provided in evidence before a select committee, and their production has frequently been refused; but if a Minister deems it expedient that such opinions should be made known for the information of the House, the Speaker has ruled that the rules of the House are in no way involved.

But in light of the 2018 experience, that “usually” only gets you so far, as Erskine May notes, footnoting the events listed above:

Although the opinions of the law officers of the Crown given to Ministers have generally been withheld from Parliament (see para 21.27 ), the failure of the Government to comply with a resolution calling for the production of the Attorney-General's legal advice to the Government has been judged to be a contempt.

The experience in New Zealand is not nearly so recent, but also not as non-existent as the Attorney-General suggested in his recent Facebook address. This debate has in fact come up before, and the arguments were remarkably similar. In 1875, the Public Petitions Committee of the House of Representatives was considering a petition in relation to land grant made in Wanganui for an industrial school. One member noted during the debate “that the Committee had over and over again been supplied with opinions from the Attorney-General”. Another member noted that this was the first such request he had known to be refused.

But importantly, the debate was over a motion in the following form:

Motion made, and question proposed, “That it is desirable that the Public Petitions Committee should be furnished with a copy of the Attorney General's opinion on the case of the Wanganui Industrial School Grant.”—(Mr. T. Kelly.)

This is not a motion like that in the United Kingdom House of Commons in 2018. It is more in the nature of a request, with Hansard recording the following exchange with the Speaker:

Mr. MACANDREW asked if the Committee had exercised due diligence, and used the power with which it was invested, to call for persons, papers, and reports. In this case it appeared to him that the Committee had ample power to call for papers.

Mr. SPEAKER said the Committee had not the power to order papers which the House could not order to be produced. The House could not order official opinions of the Law Officer to be produced, and therefore the Committee could not.

While the House voted in favour of Mr Kelly’s request, and the motion recording the view of the House that it was desirable that the opinion be made available, this ruling from Speaker Bell may resolve the issue: if the House of Representatives (for some reason unlike the House of Commons), lacks the power to direct the official opinion of a Law Officer to be produced, then neither can the Epidemic Response Committee.

Of course, in light of the United Kingdom experience, it is not clear that it accurately reflects the privileges of the House of Commons, at 1865 or since. And given that there are public indications that summons have already been issued, there appear to be some indications that the current Speaker, Rt. Hon. Trevor Mallard, may not be following this precedent, so it is useful to consider other matters.

First, there is the question of waiver. The Attorney-General’s Facebook address was remarkable for a number of reasons, but most pertinently that he may have gone so far in his explanation of the government’s legal advice, that he waived privilege in it. He went well beyond what might normally occur, which might include a statement that the Government had obtained legal advice, and was confident of its position. Rather the address included statements such as “on the advice we have received from Crown Law there is no gap in the legality of the powers of enforcement under levels 3 and 4.” The government’s legal position is expanded upon at some length:

I consider that subsection is apt to cover a direction to all New Zealanders for isolation and quarantine, with exceptions as mentioned and is not limited to use only in relation to specified individuals. The provision is that persons can be isolated or quarantined (with no statutory pre-condition that they may have or carry the disease), so there is no stretch of language; and this is entirely consistent with the purpose of these powers – which is to prevent the outbreak or spread of infectious disease.  I observe that the powers set out in s 70 may be contrasted with the powers in Part 3A of the Health Act, which apply to the conduct of an “individual” considered by a medical officer of health to constitute a public health risk.  In cases under Part 3A, the directions in question are directed to the “individual” concerned.

If your position is that the advice is confidential, it is odd that you would decide to publicly air so much of it. I cannot go so far as to say that this amounts to a waiver, or even partial waiver, but if the question is raised at the Epidemic Response Committee, it is something the Chair would properly consider when ruling on an objection being raised over a summons.

The Attorney-General also argued that there was no need for the Committee to see the advice, and that in investigating the legality of the Government’s response to the epidemic, it was potentially trampling on the role of the Courts. I cannot accept this.

It is the role of parliamentary committees to report to the House of action it might wish to take. If a committee considers that there is need for legislative action, it need not wait for a Court to rule that the Government behaved unlawfully.

Parliament passes more validating legislation than we would hope necessary, and while some of it arises because of Court decisions, much of it does not. Neither of the times Parliament validated the swearing-in of Police officers was its decision to do so preceded by a Court decision, and a submission I made to the Government Administration Committee on the Members of Parliament (Remuneration and Services) Bill saw the committee recommend changes to the legislation to validate several years of payments to mid-term replacement list MPs. Waiting for the Courts to rule on any challenge to the lockdown is one possibility, but it does not impinge upon the role of the Courts for a committee, or Parliament itself to form its own view.

Equally, the legal advice available to the Government when it made the decision not to request Parliament to provide new laws for the level four lockdown is relevant to the question of whether the House should maintain its confidence in the Government. Depending on the advice, the decision may have been reckless, or may show ministers being insufficiently sceptical of public servants’ assertions of power. I realise this is anathema to our political system with its very strong whip to actually imagine the House withdrawing confidence, but one option available to a Committee in the right circumstance might be to recommend that the House withdraw confidence, if for example, the committee determined the government had substantially over-reached.

I’d call this highly speculative, but of course it isn’t. We *know* that even if this was recommended, it wouldn’t happen. But the thought experiment establishes the principle. The Government’s legal advice may be relevant to the House’s decision of a matter, or relevant to a committee’s business. And this is something the House has been clear about since at least 1875.

Finally, the concern that complying with a summons might affect the Government’s position in relation to court cases that are now on foot, and that it should be careful . Of course a committee should be careful, but that decision is not one that Parliament has left wholly to the Attorney-General. The Attorney-General noted that the Official Information Act recognised the importance of legal professional privilege, providing that it is a ground upon which release of information may be refused. He did not note, but we should, that it is a discretionary ground of refusal, where release of information must be weighed against the public interest in release. Parliament has entrusted the Ombudsman – an officer of Parliament – with over-ruling government decisions on release of legally privileged material. It is not ridiculous to think that in affording the House all of the privileges and powers of the House of Commons, it might have done the same.

Of course, the House should be careful, but there will times, as the House of Commons determined in 2018, that it’s interest in conducting its business outweighs the Crown’s interest in keeping relevant material from it. I would go so far as to say that if the law does not permit to House to require the production of advice from the Crown's lawyers, it should be extended to allow it.

The government’s expressed concern is that release of its advice may jeopardise legal proceedings that are now before the Courts. I would first note that the Committee’s original requests pre-date the Court proceedings now on foot, but more importantly, in light of the new Parliamentary Privileges Act, I do not see that it would necessarily follow that acceding to a summons would require a waiver in Court. A litigant may be able to see the advice, but that is not the same as being having a right to adduce it in Court. Much Parliamentary material is protected from being used in Court, even though Parliament broadcasts it on live television. I think there is every chance that even if the Solicitor-General’s advice was provided to the Epidemic Response Committee under a summons, a Court will still find the material entitled to the protection of privilege for the purpose of court proceedings.

What next?

Well, the simple point is that three people have (apparently) been served summonses. Those summons require the production of documents. The summons may be beyond the power of the House, but that is first a question for the Epidemic Response Committee (whose chair might rule, for example, that any claimed privilege was waived), and then the House to decide.

I have seen it suggested that the Government should take the “safe” course, and decline to release the material. That course strikes me as anything but safe. Realistically, with the Privileges Committee split evenly between government members and opposition members, the risk isn’t a contempt finding, but two of those who have been summonsed currently occupy roles as the Solicitor-General and the Police Commissioner. People who hold such positions should not consider themselves free to ignore a summons issued by a body with a clear power of summons.

If you have been served a summons, and especially if you are the Solicitor-General or Police Commissioner, there are basically two proper courses of action available to you:

(1) make your best efforts to comply with the summons;

(2) challenge the validity of the summons, and while that challenge is being determined, apply for, and obtain, a stay of the summons pending the determination of a challenge to it.

I see no reason for this to be different because the summons emanates from a committee of the House of Representatives, instead of a Court, except that the process for applying for that stay is a little more opaque. McGee notes that: “The House has established procedures to be followed if individuals object to the use of the power to send for persons, papers and records.” Although it doesn’t specify what these are, and they are not obvious what processes there may be other than consideration of a possible contempt.

The Attorney-General has requested the Speaker refer the question of whether a summons directing the provision of Crown legal advice is in order the Privileges Committee, but such a reference would not automatically stay the effect of any already issued summons. Standing Order 2 provides that, where standing orders do not provide for a rule around something, the Speaker decides the issue, guided by previous Speakers’ rulings and the established practices of the House. It may be that the Speaker can stay the effect of the summons, pending consideration, or it may be that the Privileges Committee forms the view that any question of that nature is a matter for it, or even for the Committee that issued the summons, or the House.

But, assuming they have been served facially valid summonses (ie signed by the Speaker, etc.) I do not think it proper for the Solicitor-General and Police Commissioner to even technically risk being in contempt. It is not enough for them to do nothing while the Attorney-General seeks a solution, if the summons exists, has been served and has not been stayed, they should comply.