Man in the middle a power in the House

David McGee

David McGee is in a prime position to observe and record the way Parliament has changed over the years - he's been Clerk of the House for two decades.

Mr McGee sits in the middle of Parliament's debating chamber, directly in front of the Speaker. If you watch question time on television, he is the person popping up and down throughout, offering the Speaker advice on the hundred and one rulings she must make each day.

He is also the person who MPs approach for advice on procedure.

When he is not in the House, he may be making decisions about some other aspect of the running of Parliament, such as select committees, in his role as chief executive of the Office of the Clerk.

From his prime position Mr McGee has observed and recorded changes, most recently in the third version of New Zealand's parliamentary Bible, the book called Parliamentary Practice in New Zealand (Dunmore Publishing).

Mr McGee does not set the rules, but he has tried to reflect the evolving changes in parliamentary procedure since the last edition, written in 1994 in the dying days of the first-past-the-post electoral system.

Some areas of significant change since then are matters which an observer might assume were already taken for granted, such as fairness.

Mr McGee says the principle of fairness operates to a greater degree now in the way Parliament organises itself - such as the requirement for natural justice in select committees.

There weren't any natural justice concepts in parliamentary procedure back in 1994.

"You may have got some natural justice out of a parliamentary committee but the rules wouldn't have required it," says Mr McGee.

But since the mid 1990s, if committees hear any evidence or bring down a conclusion and a report that adversely affects somebody's reputation, "they have got to allow that person to comment before they publish it".

And the House has a provision for people maligned by an MP to have a response tabled.

Another area of change is in the recognition of political parties in Parliament's rules.

Despite the fact that parties existed long before the first MMP election, they were studiously ignored in Parliament's rules.

"They had to find the ways of recognising the fact that parties existed that were consistent with rules that denied their existence," says Mr McGee. "It was a strange situation to be in."

Now a party's size determines how many questions it has in question time, speaking opportunities in debates and representation on select committees.

Another big change in the past 10 years has concerned parliamentary privilege - the set of immunities and powers that allow the Parliament and its members to perform their duties: freedom of speech, exclusive control of the House's proceedings, power to inquire, power to obtain evidence, power to discipline members, power to arrest and punish, and control of the parliamentary precincts.

A breach of privilege can be declared a contempt of Parliament, punishable by imprisonment, a fine or an order to apologise.

Mr McGee says that in the past 20 or 30 years, few privilege cases were generated. But New Zealand - like Australia and Canada - has seen an increase in litigation in which issues of parliamentary privilege have become involved.

Since 1992, Parliament has been involved to some extent in three defamation cases over the extent to which the courts can use statements made in the House under privilege, in litigation.

Mr McGee appeared as a defendant in another case in 1995 in which a voter tried to prevent the Electoral Reform Bill from being given the Royal Assent.

Court judgments over Act's expulsion of MP Donna Awatere-Huata were peppered with argument over the extent to which the courts could involve themselves in Parliament's business.

As a result of a successful defamation case against former Act MP Owen Jennings, the privileges committee has recommended the law be changed in order to assert a privilege it believes it has lost in the courts - the ability of an MP to effectively repeat what he or she said in the House - "I stand by what I said", for example - without losing immunity.

It proposes the change on the grounds that the successful defamation case was made only by relying on what was said in the House, and that that is a breach of privilege.

Parliamentary privilege, says Mr McGee, exists to help Parliament do its job, not for the benefit of individual MPs.

In fact it can disadvantage an MP. In the book he cites a case, Rost v Edwards, in which a British MP, pursuing a defamation suit against a newspaper, was not allowed to support his case by introducing evidence from Parliament showing he had lost the chairmanship of a select committee.

"The court wouldn't allow that because that would have been the court examining parliamentary proceeding contrary to parliamentary privilege."

Mr McGee says Parliament is much more open to legal challenge than it was even 10 years ago.

Although he believes the courts made the wrong decision about parliamentary privilege in the Jennings case, he would not say there had been a consistent line in the courts challenging Parliament's authority.

"I think the courts' record is a bit mixed sometimes."

Despite the important role he has in the exercise of parliamentary privilege, Mr McGee says he is not a "parliamentary privilege extremist".

"I feel that parliamentary privilege has to be exercised in a moderate way, in a moderate manner.

"I would be on the side of counselling against a too-ready use of the weapon of parliamentary privilege. It's a very strong weapon."


 


Job description


Clerk of the house of representatives:


* Is the principal officer (chief executive) of the Office of the Clerk of the House of Representatives.


* Appointed by Governor-General on advice from the Speaker.


* Provides procedural advice to the Speaker and MPs in the House.


* Prepares and presents bills to the Governor-General for Royal Assent.


* Has custody of all election ballot papers and is responsible for destroying them after they have been held for six months.


* Salary: $240,000 - $249,999.