Submission: Parliament Bill

November 8, 2024

About the New Zealand Council for Civil Liberties

The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit, organisation which advocates to promote human rights and maintain civil liberties.

We wish to make an oral submission to the Committee.

Summary

Overall, the Council supports the Parliament Bill, subject to amendment.

The Council’s submission focuses on the following issues:

Bringing various Parliamentary agencies within the scope of the Official Information Act, as has been recommended multiple times over the last 25 years;
Bringing various Parliamentary agencies fully within the scope of the Privacy Act;
The new mechanism for funding Parliament;
Functions of the Clerk; and
Parliamentary security.

The Official Information Act

The Council recommends that the various institutions of Parliament be brought within the scope of the Official Information Act 1982 (the OIA), subject to tightly drafted exclusions of certain types of information and amendment to some withholding grounds. We should immediately be clear that we are not recommending that the OIA apply to individual members of parliament.

Previous recommendations

In making this recommendation, we are far from alone. This has been recommended previously by formal reviews:

In 1999 by the Stan Rodger Review of the Parliamentary Service¹
In 2010 by the Law Commission’s review of the Civil List Act²
In 2012 by the Law Commission’s review of the Official Information Act³

It has also been recommended by previous Speakers of the House:

Extension of the OIA to Parliament has also been recommended by former Prime Minister Sir Geoffrey Palmer,⁶ former Attorney-General Chris Finlayson,⁷ and former minister Peter Dunne.⁸

Why should Parliament be brought within the OIA?

At the time of the Danks Committee’s report and the passage of the OIA in 1982, freedom of information laws were envisaged only as means of seeking information from the executive branch of the state in order to participate in policy and law making, and holding officials and ministers to account.

In the forty years since then, freedom of information has been recognised by international legal institutions as a human right, articulated in article 19 of both the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights. In New Zealand, this is implemented through section 14 of the New Zealand Bill of Rights Act 1990. New Zealand’s Ombudsman supports this interpretation of the law.

Human rights such as the right to information do not apply to only one branch of the state, but to all of them. The executive branch of the state is mostly covered by the OIA and LGOIMA (although there are exceptions that need to be remedied).

In relation to the judicial branch, the administration of the court system managed by the Ministry of Justice is covered by the OIA, while access to court documents is covered by the Senior Courts (Access to Court Documents) Rules 2017 and the District Court (Access to Court Documents) Rules 2017.

This leaves the legislative branch of the New Zealand state as an anomaly for remaining almost entirely outside the scope of a freedom of information regime. It also leaves New Zealand as an anomaly amongst Commonwealth countries, most of whose legislatures are covered by their freedom of information laws:

The United Kingdom (and the Scottish Parliament and Welsh Assembly and Northern Ireland Assembly)	Pakistan
Antigua and Barbuda	Rwanda
Bangladesh	Saint Kitts and Nevis
Fiji	Seychelles
The Gambia	Sierra Leone
India	South Africa
Jamaica	Sri Lanka
Kenya	Tanzania
Malawi	Trinidad and Tobago
Maldives	Uganda
Namibia	Vanuatu
Nigeria	Zambia

Bringing the various parts of Parliament within the scope of the OIA would not only bring New Zealand into line with most other countries, but enable the public to access information about the functioning of their legislature.

This could include information about development and prioritisation of funding bids, health and safety issues, Parliament’s website and use of video and social media platforms, spending on service providers, catering, refurbishment of facilities, transport, etc.

To deal with issues around parliamentary privilege and officials acting as agents for members, we recommend that some issues be excluded from the scope of ‘official information’, and explain these later in this submission.

Partial coverage of the OIA already

Members may be surprised to learn that the Official Information Act has applied, in part, to the Office of the Clerk since 1988, when the Clerk of the House of Representatives Act was passed. Clause 120 of the Bill continues the 1988 approach.

Section 31 of the 1988 Act applied Part 4 and section 35 of the OIA to the Office of the Clerk. This means that incorporated organisations (companies, charities, etc) can apply to the Office of the Clerk for the information that is held about them, and can complain to the Ombudsman if they are unhappy with the response they receive.

This provision is the same right that these organisations have in relation to government agencies within the scope of the OIA. It provides incorporated organisations with a parallel to the rights individuals have to information about themselves under the Privacy Act 2020. We make recommendations about broadening the rights people have under the Privacy Act later in this submission.

The Council is unclear about how frequently companies and other organisations avail themselves of their rights under Part 4 of the OIA, but no doubt the Office of the Clerk can provide members of the Committee with the relevant information. Indeed, the fact that the public have no right to information about how the existing rights have been used highlights the need to broaden how the OIA applies to Parliament.

Which parts of Parliament should be brought within the OIA?

The Law Commission’s reviews of the Civil List (2010) and OIA (2012) made recommendations about which institutions of Parliament should be brought within the scope of the OIA:⁹

The Office of the Clerk
Parliamentary Services
The Office of the Speaker, as vote minister

The Council further recommends that for the avoidance of doubt the scope of the OIA should also explicitly list the following:

The Parliamentary Corporation
The Parliamentary Service Commission

Without doing this there are risks that the Parliamentary Service may refuse OIA requests for information it holds related to the work of the Corporation and Commission on the basis that they are only holding it as agents for the Corporation and Commission.

This Bill is also an opportunity to address the Law Commission’s recommendations in relation to organisations outside the scope of the OIA, but closely adjacent to Parliament:

The Ombudsman
The Auditor-General
Parliamentary Counsel Office

The Council recommends bringing these key agencies of our state within the OIA as it would not only implement Law Commission recommendations, it would also indicate respect for a human rights based approach on access to information. The public participation and accountability purposes of the OIA are as relevant to empowering public scrutiny of these agencies as all others. They spend public money, they undertake work in our name, and in the case of the Ombudsman and Auditor-General are themselves watchdog agencies whose administrative choices can have significant effects on their ability to function as guardians of public integrity and our rights.

What information should be excluded from the scope of the OIA?

The Council acknowledges that parliament’s role in our democracy means issues of privilege and self-regulation are relevant to bringing its institutions within the scope of the OIA.

Material that is subject to parliamentary privilege has always been able to be refused under the OIA (section 18(c)(ii)). The passage of the Parliamentary Privilege Act in 2014 dealt with the Law Commission’s concerns about defining ‘parliamentary proceedings’, and this Bill re-enacts the 2014 Act.

The OIA also has an exclusion from the definition of ‘official information’ for information held “solely as an agent or for the sole purpose of safe custody, and which is so held on behalf of a person other than a department or a Minister of the Crown in his official capacity or an organisation”.

The Law Commission was clear that this means that coverage of parliamentary agencies by the OIA will not result in an MP’s communications with constituents, or that of political parties. It also means that information held by the Office of the Clerk, or the Speaker, or the Parliamentary Service as an agent for individual MPs would not be covered.

As a ‘belt and braces’ reassurance to MPs though, the Law Commission recommended the following explicit exclusions to the definition of ‘official information’:

any information held by a parliamentary agency solely as an agent for, or on behalf of, the House of Representatives or a Member of Parliament; or

any information held by a parliamentary agency about a Member of Parliament in relation to the Member’s performance of his or her role and functions as a Member; or

any information held by a parliamentary agency that relates to the development of political policies by a recognised party or an independent Member of Parliament.

In relation to bringing the Officers of Parliament within the scope of the OIA, the Law Commission noted that the Parliamentary Commissioner for the Environment is, and always has been, fully subject to the OIA. To align the situation regarding the PCE, the Ombudsman and the Controller and Auditor-General, the Commission recommended all three be covered by the OIA, but with an exclusion from the definition of ‘official information’ for ‘Information relating to any audit, assurance work, inquiry or investigation undertaken by an Office of Parliament’. The Council notes that the OIA already excludes agency communications with the Ombudsman and Privacy Commissioner in the course of an investigation from the scope of ‘official information’, so this is not a radical change.

When the Law Commission recommended that the initial exclusion of the Parliamentary Counsel Office from the scope of the OIA be rectified it noted that the Chief Parliamentary Counsel agreed with its proposal (in the earlier issues paper), with some caveats. These related to communications with clients, including drafting instructions and Bills. However the Law Commission did not think any special protections were needed, since section 9(2)(h) of the OIA already recognises the public interest in maintaining legal professional privilege.

The Privacy Act

Closely related to the human rights arguments for including Parliamentary agencies and officers in the scope of the OIA are those for applying the Privacy Act to them.

At present, the House of Representatives, the Parliamentary Service Commission, the Parliamentary Service and the Ombudsman are explicitly excluded from the Privacy Act. This means that they are not required to comply with fundamental privacy norms about the collection, use and disposal of personal information, including providing people with the right to request and correct information held about them.

The maintenance in 2020 of the Ombudsman’s exclusion from the Privacy Act was in direct contravention of the Law Commission’s recommendation in its review of the Privacy Act 1993, and the Ministry of Justice provided no rationale for this when we sought an explanation.

As noted earlier, given the application of Part 4 of the OIA to the Office of the Clerk, companies have ‘privacy rights’ in relation to parliament that natural persons do not. The Privacy Act is recognised as implementing a human right by the Ministry of Justice on its website,¹⁰ so it is time that Parliament recognised this situation and removed these exemptions from the Privacy Act.

While there is a bill to amend the Privacy Act going through the House at the moment, since the amendments we propose relate closely to the human rights obligations of parliamentary agencies, we think the Parliament Bill is the more appropriate vehicle, and this committee better suited, to consider these issues.

The Council notes that clause 231 of the Bill amends the Privacy Act 2020 to make personal information obtained by a Parliamentary Security Officer under the new powers subject to the Privacy Act 2020. Currently, the Parliamentary Service is only subject to the Privacy Act in respect of personal information held in respect of employment matters. The distinction in clause 231 of the Bill is unnecessary if MPs support the public’s right to information and bring the Parliamentary Services fully within the Privacy Act.

We recommend that the Bill amend section 8 of the Privacy Act to remove the exemption for the Parliamentary Service Commission, the Parliamentary Service and the Ombudsman.

Parliamentary funding

The Council supports the move to make funding for parliamentary agencies independent of the government. In a democracy it is vital that the legislature controls its own budget.

However, mimicking the operation to date of the Officers of Parliament Committee (OPC) is not something that we can recommend, as that committee is far from open and transparent, let alone good at involving the public in its work.

For example, in April 2024 the Council wrote to the Speaker, as chair of the OPC, earlier this year with concerns about the continuation in office of the Ombudsman following his resignation. We sought information about the interpretation of the law that the Committee, government and Ombudsman were relying on, and asked to address the committee during its work to appoint a new Ombudsman. For example, we wanted to highlight the problems having only a single Ombudsman presents in terms of managing conflicts of interest. We have not had a response, let alone the information or an invitation to appear before the committee.

In relation to budget and funding issues, the experience with the Ombudsman is relevant to using the OPC process as a model for parliamentary funding. The Ombudsman has previously said that he did not need to seek additional funding for work to investigate OIA complaints. The closed nature of the OPC’s consideration of funding bids meant that there was no opportunity for the public – and organisations like the Council – to provide information to the Committee about the increasing delays in getting OIA complaints investigated by the Ombudsman, and what that indicates about the need for increased funding of that function.

By analogy, if similarly secretive processes were to apply to development of budgets for the Office of the Clerk and Parliamentary Service, the public’s views would not be sought on the level of funding need to improve parliament’s website and video platforms, to ensure a Hansard record is produced for all public sessions of select committees, or to ensure that select committees can end their reliance on conflicted public servants for analysis of submissions on bills by the Clerk hiring sufficient committee advisors of their own.

The Council is not confident about this only being left to future revisions of Standing Orders, or to the Speaker’s discretion or personal commitment to openness and participation. We recommend this Bill be amended to require public evidence sessions on proposed budgets not only for parliamentary agencies, but also for the Officers of Parliament.

Functions of the Clerk

As can be seen from our comments above, and our submission in 2022 to the Standing Orders Review, the Council has serious concerns about shortcomings in publicising the work of the House, and about the fundamental conflict of interest that arises in having departmental public servants providing the analysis of submissions to select committees.

At their heart these arise because of a lack of resources for the Office of the Clerk. Some may argue that the Council’s concerns will be addressed when this Bill passes, because the greater independence it provides for funding will ensure that functions that the Clerk wants to carry out will now be adequately funded.

The Council is not so sure about this. New Zealand’s legislature is accustomed both to underfunding and to denying that this part of our democracy is under-resourced, even when there is ample comparative evidence that our legislature has far fewer resources than those we compare ourselves to. MPs get uncomfortable defending spending on the House doing its job, and these pressures will never go away.

The Council believes the way to address this is to amend the specification of the Clerk’s functions in clause 103 of the Bill.

We recommend the following:

that the provision ‘to produce and publish the official report of the House of Representatives and its committees’ (cl 103(1)(e)) be strengthened by adding an explicit reference to Hansard or ‘a transcript of the speeches and oral testimony to all public sessions of the House of Representatives and its committees’. The current draft – ‘official report’ – may only refer to minutes of who appeared before a committee, not what their testimony was, nor which MPs said what. In doing this, New Zealand would be catching up with the parliament in Westminster, which has for decades produced transcripts of all public sessions.

that the provision on communicating ‘to the public the proceedings of the House of Representatives and its committees’ (cl 103(1)(f)) be strengthened by adding an explicit requirement to arrange for the broadcasting of proceedings on radio and television. There are still large parts of the country without sufficiently fast broadband internet access to obtain comparable coverage by relying only on the internet. AM broadcasting needs to be ensured, not just for equity reasons but also for resilience.

that an additional paragraph is added to cl 103(1) that specifies that it is a function of the Clerk to always ensure that select committees have parliamentary officials to analyse information provided to them by the public, organisations, and the government. This does not mean that select committees cannot seek advice and input from government officials to aid their work of scrutiny or examination of a bill, but that the existing conflict of interest – which caused two incidents in 2023 where select committees expressed their displeasure at how government officials assisting them had acted – is removed.

This Bill is fundamentally about strengthening the independence and capability of our legislature, and to guarantee this, the recommendations above should be ‘baked in’ to the legislation.

Parliamentary Security

The Status Quo

Currently Parliamentary Security Officers have delegated ownership authority from the Speaker and common law rights to arrest.

The Council supports the move to put the parliamentary security function on a statutory footing. However there are several problems with the proposals and the expansion of powers is a significant concern to the Council.

Lack of open review and policy development for the proposals

The Regulatory Impact Statement (RIS) for what forms Part 7 of the Bill was finalised on 6 September 2021. As such, it pre-dates the 2022 protest that occupied the grounds outside the Parliamentary Buildings.

If any internal review was conducted of parliamentary security following the protest, it has not been published. The secrecy problems caused by the exclusion of Parliament from the OIA means that the public have had no right to request what information is held on this topic. The Council recommends that the Committee reads whatever internal analysis are available before completing its scrutiny of the Bill.

The only report we have to work with is the one produced by the Independent Police Conduct Authority (IPCA).¹¹ The IPCA report starts and ends with recommendations for broader reviews, beyond IPCA’s scope.¹²

There are 23 references to Parliamentary Security in that 225 page document, none of which are complimentary. There are 6 findings where problems resulted as a result of the separation between the Police and Parliamentary Security.¹³ And there are 6 recommendations for better integration between the Police and Parliamentary Security.¹⁴

We note that the RIS states (page 3) that:

There were time and consultation constraints over policy development because of the Speaker’s preference that the Parliament Bill be introduced into the House in March 2022. This required policy decisions to be made by September 2021, which minimised the time available for policy analysis. This constraint meant that although departmental and party consultation could take place, wider public consultation could not. The select committee process for the Parliament Bill will be an opportunity for public input.

Since the Bill was not introduced in March 2022, and given the protest and subsequent report of the IPCA on the policing of the protest, there has been ample time to undertake public consultation. The proposals concern major changes to the law governing freedom of assembly and rights to protest at parliament. The failure to be open with the public about these issues and the proposals in the Bill has been a clear policy choice of both the last government and the current one, and it is an unacceptable choice from governments that would both claim to be supporters of democracy and civil liberties.

As a result, the Council recommends that Part 7 of the Bill should be withdrawn, and the public consulted on proposals for Parliamentary Security following publication of any internal reviews of security at Parliament arising from the 2022 protest.

Comparable Westminster Parliaments

The United Kingdom

The UK is our closest comparator. Their parliament has what we have now, not what is being proposed, despite the significantly higher threats there.¹⁵

Australia

The Australian Federal Police have a Police Security Protection Diplomatic Liaison – Australian Parliament House arm who look after Parliamentary security.¹⁶

Canada

Canada has the model being proposed for New Zealand. Canada’s Parliamentary Protective Service (PPS) has an annual budget of over NZ$100 million, or $2.64 per capita. At that rate, Parliamentary Security here would have a budget of over $14 million per year.¹⁷

The Council notes that the model being proposed by this bill failed to work for Canada’s Convoy Protest, which occurred in 2022 at the same time as our parliamentary protest. While PPS kept parliament safe, the local police were thoroughly overwhelmed. Both our Parliament and Canada’s have reasonably sized lawns, and keeping the protestors from occupying the space designed for them to occupy (the lawn) increased the extent to which they disrupted the surrounding city. The Report of the Public Inquiry into the 2022 Public Order Emergency into the protest made 56 recommendations.¹⁸ Thirteen of these, including the first four, are about reducing fragmentation in the police. The first recommendation further emphasises that the fragmentation resulted in human rights violations. The very existence of PPS as a separate entity is a primary cause of this fragmentation.

The Council notes that our Canadian equivalent, the Canadian Civil Liberties Association, won their court case about the way in which the Convoy Protest was handled.¹⁹

Right to Protest outside Parliament and Right to enter Parliament

People have the right to protest, protected by sections 14, 16 and 17 of the New Zealand Bill of Rights Act 1990.

It is customary for bills approaching our rights to include “for the avoidance of doubt” clauses. For example, the Sentencing Reform Amendment Bill currently before Parliament makes 20 separate calls to avoid “manifestly unjust” outcomes. This bill fails to mention our rights, meaning there is no explicit requirement for security officers to consider the outcome of enabling protest in a democracy.

Further, while this bill copies some provisions from the Courts Security Act 1999, the Council believes that this Bill errs in not reproducing section 11A of the Courts Security Act, which provides for the public’s right to enter and remain in areas of the court that are open to the public. This institutes the practical means of effecting ‘open justice’, and it is important that our parliamentary processes are similarly open to the public.

The Council therefore recommends that Part 7 of the Bill be amended to include (a) a requirement on Parliamentary Security Officers to consider people’s rights of expression, association and assembly under the Bill of Rights Act 1990, and (b) that the Bill include a provision similar to section 11A of the Courts Security Act, recognising people’s right to enter Parliament.

Oversight of Parliamentary Security

Part 7 of this Bill is unusual in that it empowers what is effectively a new agency without establishing any oversight mechanism.

The RIS suggests that oversight would be provided by the Speaker, and that appeals would also be handled, informally, by the Speaker. This is risible, but even that insufficient control is not explicit in the Bill. The Council strongly believes that the Speaker is an inappropriate office to provide an oversight function.

The Speaker has a clear conflict of interest as he or she directs Parliamentary Security, and in the proposed model also oversees them. Frequently, the Speaker would be ruling on the legitimacy of decisions they made personally.

A basic concept of democracies is that those exercising state powers, must be subject to independent oversight, and be able to be held accountable for any mistakes or abuses. Parliament has recognised this for the Police, through IPCA, for spies through the Inspector-General of Intelligence and Security, for prison offices through the Corrections Inspectorate. The Ombudsman also has a relationship with the agencies either via the OIA or the Ombudsmen Act. It is therefore completely unrealistic for Parliament to expect the public to accept Parliament exempting itself from independent oversight and accountability for its own security force.

Although the Council has serious concerns about IPCA, we recommend that the Bill be amended to provide IPCA with the jurisdiction to investigate complaints about Parliamentary Security.

However, issues of Parliamentary privilege also arise, and the Council further recommends that a ‘for the avoidance of doubt’ provision be added to the Bill in relation to IPCA’s powers in relation to Parliamentary Security, to ensure that it has full access to information held by Parliamentary Security, and by other agencies of Parliament, such as the Office of the Speaker and Parliamentary Services.

The Parliamentary Precinct

The Bill defines the Parliamentary Precinct as covering not just the Parliamentary Buildings, but also the outdoor areas surrounding the Buildings, and also enables Parliamentary Security to have powers in relation to electorate and community offices of MPs.

These means Parliamentary Security will be able to apply its powers to people outside Parliament, on the lawn or around the Buildings.

We think this is a bad idea. Parliamentary Security should handle matters inside the Parliamentary Buildings, and the Police should handle matters outside of them.

As drafted, the Bill would allow parliamentary security to demand identification, search, temporarily detain and confiscate the property of picnickers or protesters on the parliamentary lawn. This goes well beyond the scope of the necessary powers, and will undermine both the public right to protest, and the rights affirmed by the courts. In order to protect those rights, the Council therefore recommends that the Bill be amended to distinguish between the parliamentary precincts, and parliamentary buildings, and that parliamentary security’s powers apply only within the latter.

Evidence of Address

Clause 169(1)(b) is a copy of s12(1)(b) of the Courts Security Act 1999. They both require a person to have proof of address. It is the Council’s belief that people do not ordinarily carry proof of address and nor does the law require them to do so. The Council believes that this provision is unreasonable and recommends “and address” be deleted from clause 169(1)(b) of the Bill.

The Council thanks members of the Committee for their time and consideration of its submission.

1
Report of Review Team on A Review of the Parliamentary Service Act to the Parliamentary Service Commission. February 1999. http://www.mdl.co.nz/site/mckinley/files/Roger%20Review%201999.pdf
2
NZLC R119: Review of the Civil List Act 1979. Members of Parliament and ministers. New Zealand Law Commission. November 2010
3
NZLC R125: The public’s right to know: review of the official information legislation. New Zealand Law Commission. June 2012
4
Parliament and official information: Keynote Address to Information Law Conference marking 25 years of the Official Information Act. Margaret Wilson. 15 May 2007. Openness and transparency in Government: Speech to open the 5th International Conference of Information Commissioners. Margaret Wilson. 26 November 2007.
5
Trevor Mallard, Twitter, 6 January 2022. https://x.com/NZTrevorIreland/status/1478915810336784386
6
‘Self-interest’ drives OIA review, New Zealand Herald, 5 February 2013
7
Shining a Light: Improving Transparency, foreword to a report by Philippa Yasbek for the Helen Clark Foundation, 2024.
8
Dunne Speaks: What to do with the OIA? Peter Dunne, 15 February 2018. https://www.scoop.co.nz/stories/PO1802/S00150/dunne-speaks-what-to-do-with-the-oia.htm
9
See NZLC R119 on pages 32 – 42, and NZLC R125 on pages 341 to 347
10
ʻDomestic human rights laws’, Ministry of Justice, https://www.justice.govt.nz/justice-sector-policy/constitutional-issues-and-human-rights/human-rights/domestic-human-rights-laws/. Retrieved 6 November 2024.
11
Parliament Protest Review, Independent Police Conduct Authority, (20 April 2023). https://ipca.govt.nz/Site/parliament-protest/
12
Ibid, paragraph 967
13
Ibid, paragraphs 126, 220, 221, 250, 421 and the finding following paragraph 255.
14
Ibid, paragraphs 943 to 948.
15
Parliamentary Security Department, UK Parliament, no date. Retrieved 6 November 2024 from https://parliament.uk/mps-lords-and-offices/offices/bicameral/parliamentary-security-department/
16
Safety and Security at Parliament House. Parliament of Australia, no date. Retrieved 6 November 2024 from https://aph.gov.au/About_Parliament/Parliamentary_departments/Department_of_Parliamentary_Services/Security.
17
Parliamentary Protective Service, Parliament of Canada, no date. Retrieved 6 November 2024 from https://pps.parl.ca/. The exchange rate with the Canadian dollar was CAN$1 to NZ$1.19 on 12 October 2024.
18
Final Report, Public Order Emergency Commission, 17 February 202 3Retrieved 6 November 2024 from https://publicorderemergencycommission.ca/final-report/.
19
Ottawa’s use of Emergencies Act against convoy protests was unreasonable, violated Charter, court rules, CBC News, 23 January 2024. Retrieved 6 November 2024 from https://www.cbc.ca/news/politics/emergencies-act-federal-court-1.7091891

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