If you try to say something offensive to Parliament, it doesn't have to listen to you. But why not?

We're now unstoppably on the road to same sex marriage (and, through related amendments to other bits of legislation, same sex joint adoption). This is a good thing. I am very happy.

That said, there is one small point about the process by which Parliament is making this change to our law that makes me a tiny bit uneasy. It's not the lack of a referendum on the issue - I'm not a big fan of direct democracy to start with, and especially not where the question essentially is "do you majority folks want to keep discriminating against a minority group?" And while for some the question of who can/can't marry clearly is a Very Important One For Society's Future, I personally don't see it as being one of those fundamental, constitutional building-blocks matters that require general public ratification. Others may think different, but seeing as we all disagree about everything, that's not really a surprise.

Equally, it's not the overall select committee process used to consider the details of the same sex marriage bill that has me worried. Despite the efforts of opponents to the legislation to paint this as being fundamentally flawed and rushed, it looks pretty good to me. I'd also note that those committee members who voted against recommending the Bill to the House, and who then spoke against it on second reading, had no complaints about how the Committee did its job. After all, why would Kanwaljit Singh Bakshi sit through underhand attempts to stack the select committee process in favour of a Bill he deeply disagrees with, under the stewardship of an MP from the opposition Labour Party, only to then say this in the House:

Before I talk about the bill, I thank all the staff and officials who worked during the select committee hearings and the collection of submissions. A significant number of submissions were received both against and in favour of the bill. I would also like to thank all the submitters for their written and oral submissions. I also take this opportunity to thank the chair of the Government Administration Committee, the Hon Ruth Dyson, and other members for all the hard work they have put into this process. 

It seems to me that the real problem critics of the select committee process have is that, just like our MPs, most New Zealanders actually are in favour of this measure becoming law. But when you are convinced of the self-evident truth of your argument, the fact that others are disagreeing with you must be a sign that there's something gone very wrong. Otherwise, why wouldn't the truth prevail?

So if it isn't these parts of the legislative process that I'm worried about, what is it? Well, it's this stuff.co.nz news item.

Extreme voices have been shut out of the gay marriage debate, with some submissions deemed too offensive to be seen by Parliament.

Rejecting public submissions on a bill on grounds of offence is rare. However, about 10 submissions on the same-sex marriage bill were rejected at the select committee stage, either because of privacy breaches or because they were deemed too offensive.

Now, there's no doubt that the Government Administration Committee has the power to reject submissions on the basis that they are "offensive". The Standing Orders of the House of Representatives says so:

213 Return of evidence

A select committee may return, or expunge from any transcript of proceedings, any evidence or statement that it considers to be irrelevant to its proceedings, offensive, possibly defamatory, or suppressed by an order of a New Zealand court.

And you can see why such a power exists. Making law is, after all, a pretty serious business. Furthermore, all evidence to a select committee becomes a public document (unless a committee itself expressly agrees to keep it secret). So a submitter who expresses his or her opinion by writing to a select committee to say; "The National Party c**ts are going to f**k up our country with this piece of s**t" should not reasonably expect to have the committee take any note of his or her views. 

But that said, the power to refuse to accept a submission inevitably raises issues of freedom of expression. It does so in the context of one of the more important features of our representative democracy - the ability to directly express your views about proposed legislation directly to the MPs who are considering its merits (or otherwise). And the Government Administration Committee, like the rest of the House of Representatives, is bound by the New Zealand Bill of Rights Act guarantee of this right. Which means that the committee can only exercise its power to refuse to accept an "offensive" submission where this refusal is "demonstrably justified in a free and democratic society." 

Exactly what counts as "offensive enough" to meet this justificatory threshold is then a bit of a fuzzy issue. But some guidance can be gained from the Supreme Court's decision in Morse v R. That case revolved around the correct legal test to apply when deciding if someone had engaged in "offensive behaviour" under the Summary Offences Act. In setting a relatively high threshold for the offence, Justice McGrath stated: 

It must be borne in mind that under s 5 of the Bill of Rights Act, all rights and freedoms may be made subject to such reasonable limits prescribed by law as can be justified in a free and democratic society. In order to be such a limit on freedom of expression, proscribed offensive behaviour must be confined to sufficiently serious and reprehensible interferences with rights of others. Such conduct is objectively intolerable. 

So there's some judicial guidance that when it comes to restricting someone's right to express themselves in the way that they choose, the level of "offense" caused by such expression has to be pretty high. It can't be enough that a reader or listener simply may be made angry or upset by what they read or hear. It instead must be a "sufficiently serious and reprehensible interference with rights of others" to justify silencing the viewpoint.

If that is the case, how does the Government Administration Committee's exercise of its power stack up against what the NZBORA demands? It's a bit hard to tell, because the rejected submissions are not publicly available (because the Committee rejected them). All I could find was a bit of an exerpt from a submission from "Catholic Action", quoted in the stuff.co.nz story:

In a statement mirroring its submission yesterday, the group said every MP who voted for same-sex marriage was on "on the road to hell for all eternity".

It also called the committee that considered and supported the same-sex marriage bill "evil".

Now, maybe there was more to the submission's language than this. Kevin Hague is paraphrased later in the story as saying "Catholic Action's submission was typical, combining extreme insults aimed at homosexuals with deeply aggressive language." So I accept I'm working off a small bit of the picture here.

That said, I can't see how the Catholic Action statements above can be "offensive" enough to justify the Committee rejecting the submission. Provocative and extreme in their portrayal of the issue, sure. And maybe someone reading these words will become angered or upset by them. But that isn't (or, at least, that shouldn't be) the relevant test for whether the view gets heard.

Because here's the problem. Catholic Action are, as far as I know, perfectly sincere in their views on the matter. They genuinely think the legislation will have the cataclysmic consequences that they spell out. And they genuinely think that those on the other side of the issue are morally difficient in a very important way. In other words, this isn't a case of a troll or provocateur seeking to elicit a response simply because they delight in upsetting an audience. It's instead a case where the only way that the group can express the depth and strength of their concern on this matter is to use language that will be offensive to (at least some) others who hold a different view of the matter.

(To take a counter-example ... imagine you are penning a submission to a Congressional committee in 1850's USA on the issue of whether slavery should be abolished, and try to use language that both expresses the depth of your moral revulsion to the practice without offending white readers who happen to think they ought to be able to own black people.)

So to say, as Kevin Hague is quoted as saying, "It is hard to say how any value would be added to the debate from [their submission], and there could be substantial damage to rational debate by including it" is, it seems to me, tilting the playing field against people who view the issue with the intensity that Catholic Action do. Equally, I see dangers in Matthew Palmer's quoted claim that: 

As long as the committee has a full representation of views, there's no real harm done. If people are making irrational, objectionable or bigoted submissions, then there is no reason they need to be listened to.

After all, one man's bigot is another woman's testifier to righteous truth. And to claim that there's no need to hear or view any individual submission as long as there is enough other views to represent the general position is a bit of a slippery slope. Is there then really any need to allow more than, what, a dozen submissions on any Bill? Or 20? Or 100, at the outside?

Now, let's be clear. Catholic Action's submission (or those of any of the other submitters) would not have changed the Committee's mind, nor altered one little bit the course of the legislation. Nor is this a claim that the Committee's action has completely delegitimised its approach to the Bill. 

Rather, it's a gentle suggestion that the already rarely used power to send submissions back to interested individuals be thought about a bit more, and the level of offense required before a submission is rejected be hiked up to "very, very, very offensive".

Comments (13)

by Kevin Hague on March 14, 2013
Kevin Hague

Thanks Andrew. I think I agree with pretty much everything you've said! I guess the problem for the reporter whose story you quote in relation to Catholic Action is that he has limits around what is publishable. The bits he has quoted are typical of probably several hundred submissions that were accepted. In order to not be unacceptable a submission had to go quite a lot further. Catholic Action, for example, believes that homosexual people are "worthy of death" and told us so in some detail.

An interesting observation on the process was that we politicians seemed to have a higher threshold for offensiveness than the parliamentary staff, allowing all but a very small number to be accepted.

I do agree that there is a problem of visibility - if people don't get to see the withheld submissions, how can they know the decision to withhold was appropriate? Any suggestions?

by Andrew Geddis on March 14, 2013
Andrew Geddis

Kevin,

Yes ... that sort of detail makes the rejection more understandable, and a lot less concerning. Thanks for clarifying.

As for the "how do we know if the decision to reject is OK?" problem, I don't know. You can't really put such submissions up on Parliament's website ... after all, if they are too offensive to accept as evidence, then they ought not to given a home there. Maybe a minimum would be for a committee to note in its report on a bill not only how many submissions were received for and against it, but also how many submissions were refused by the committee? At the least, this might show how little this power really is used.

by Kevin Hague on March 14, 2013
Kevin Hague

a very good idea! I will pursue it in the review of standing orders

by Eszett on March 14, 2013
Eszett

Without publishing the whole submission, one could, as Kevin has done here, publish the "jist of it" and a more detailed reason why it has been denied. After all Catholic Action can still choose to publlish it through other means.

Otherwise these people wil always paint themselves as victims and martyrs who have been done by the "political elite"

I even think that rejected eveidence can, in fact,  be published on parlaiment's site as rejected evidence. Separately and clearly marked as such. If Catholic Action really put it in writing that homosexuals "are worthy of death" then by all means, publish such lunacy and denounce it for what it is.

by Steve on March 14, 2013
Steve

Does Kevin Hague believe unborn children are "worthy of death" ?

The committee only listened to 220 submissions out of the over 20,000 submitted. A sad reflection of NZ democracy.

by Marcelo Rodriguez Ferrere on March 15, 2013
Marcelo Rodriguez Ferrere

Andrew,

Confessing ignorance, is a Committee's discretion under SO213 completely unbridled? Is there any theoretical ability for a disgruntled submitter whose submission is rejected to seek a review of (or at least complain about) such a decision? Could the Clerk have a role here? 

If not, this seems to be one of the few instances where the NZBORA really is completely impotent: the Court's inability to scrutinise Parliamentary decision-making means there simply isn't any oversight - let alone sanction - by any independent body of a select committee's compliance with it.

by Andrew Geddis on March 15, 2013
Andrew Geddis

Marcelo,

You almost certainly couldn't get judicial review - parliamentary privilege and all that. There's authority for that in Queen v Speaker [2004] NZAR 585 ... note also the Privileges Committee response to that case. 

So any remedy would have to be either internal to the House (perhaps a privilege complaint if a Select Committee chair is thought to be impeding the business of the House by turfing out submissions in too cavalier a fashion) or else political (public outcry at the heavy-handed MPs censoring the views of the public).

by Hayden Wilson on March 15, 2013
Hayden Wilson

Andrew,

I can see why suppressed material / material that breaches privacy should be excised from the public record of submissions, at least. 

I think offensive material is a bit more difficult for two reasons.  The first is the NZBORA issue that you raise.  The second, I would suggest, is that those kinds of submissions (offensive as they may be) play a role in the debate itself; exposing those who make such submissions to appropriate ridicule when they express other (perhaps less offensive) views on the topic in other fora.  Also, if a submission on a Bill before a Select Committee is offensive enough that it should be refused under SO213, I think I would prefer it is the members of the Committee expressly rejected the substance of the submission rather than refusing to 'read' it. 

Publication also forces those who are aligned to the result sought by an offensive submission to distance themselves from the offensive detail, and to explain why.  

Some submissions might well need to come with a public health or sanity warning, I accept, but I would rather have them public.

by Andrew Geddis on March 15, 2013
Andrew Geddis

Hayden,

I can see why suppressed material / material that breaches privacy should be excised from the public record of submissions, at least.

The suppressed material issue is understandable (like you say) - comity requires that if a court has said there's good reason to keep something from being published, then the House should not second guess/overturn that decision. But on further reflection, where does the power to refuse accept submissions on the basis of "breaching privacy" come from? It's not explicitly mentioned in SO 213.

With regards "offensive submissions", I guess a lot depends on how we conceptualise the legislative process. Is it an "anything goes" forum, in which all material (well, all except irrelevant(?)/defamatory/suppressed/privacy-infringing(?) material) is allowed in so that committee members (and the public) can see what the most extreme views look like. Or is it a (somewhat) dignified forum, in which a certain basic level of courtesy/decorum is expected of all those who seek to participate in it - just as, for instance, even self-representing litigants are required not to call the other side in a court case "stupid c#*ts".

Seems to me that either view is defensible.

by Matthew Parry on March 17, 2013
Matthew Parry
I wonder if the real reason wasn't irrelevancy, i.e. offensive to the point of irrelevance. In any case, presumably one completely offensive sentence would be enough to doom an otherwise cogently argued submission? Would the committee want to be in the redaction business?
by Mike Ross on April 22, 2013
Mike Ross

"A select committee may return, or expunge from any transcript of proceedings, any evidence or statement that it considers to be irrelevant to its proceedings, offensive, possibly defamatory, or suppressed by an order of a New Zealand court."

That final clause gives me very considerable pause for thought. Parliamentary priviliege shoud be pretty much absolute, and we should not see courts attempting to bind parliament in matters of what can and cannot be said, reported, or taken in evidence.

We saw very clearly what that can lead to in the case of the 'Trafigura superinjunction' in the UK in 2009.

by Andrew Geddis on April 23, 2013
Andrew Geddis

@Mike,

It's not so much the "courts attempting to bind parliament in matters of what can and cannot be said, reported, or taken in evidence." Rather, it's the House trying to respect the separation of powers, insofar as it doesn't want to become a means by which people who want to make public matters the courts have said shouldn't be publicised can do an end run around that order. It's an example of the same "comity" that stops the courts from looking at the internal workings of the House and telling it what it can/can't do as a matter of law.

Note, but, that Standing Orders are for the House itself to apply. And SO 213 talks about what a Committee "may" do. So if a Select Committee believed the information important enough, it can choose to accept the evidence or submission irrespective of what a court has said.

by Mike Ross on April 24, 2013
Mike Ross

Andrew, thanks for that. It's certainly a different approach; in the UK, absolute parliamentary privilege has been used to good effect for that very reason; to say things which often needed to be said, but could not be safely said outside the chamber due to court orders or fear of libel litigation. This is an approach which I believe has merits; in cases such as Trafigura, doing an 'end run' around a court order was exactly what was needed.

Your clarification on Standing Orders is appreciated. 

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