Information withheld in response to parliamentary questions—Ombudsmen have no jurisdiction over Ministers’ answers—Parliamentary privilege—Bill of Rights Act 1688
A Member of Parliament lodged a series of related written parliamentary questions. The Minister’s replies to these questions withheld some of the information sought, in reliance on section 9(2)(a) of the OIA. In addition, the reply incorrectly informed the Member of a right to seek, by way of complaint to an Ombudsman, an investigation and review of the refusal to provide the information.
The Ombudsmen have no jurisdiction to investigate and review any Minister’s answers to parliamentary questions. The basis for this is found in the Bill of Rights Act 1688, which is, by section 3(1) of the Imperial Laws Application Act 1988, part of the laws of New Zealand. The ninth article of the 1688 Act reads:
That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament.
Although the office of an Ombudsman is an ‘Office of Parliament’, and the Ombudsmen are ‘Officers of Parliament’, this status alone does not confer on the Ombudsmen any power (including under either the Ombudsmen Act or the OIA) to question the proceedings of Parliament.
The ninth article of the Bill of Rights Act 1688 goes to the heart of parliamentary privilege. Thus, any purported exercise of the Ombudsmen’s functions under the OIA in relation to any Minister’s response (or refusal to respond) to a parliamentary question, which could include making a recommendation binding on the Minister to release information, would be unlawful. It could also, although this would be a matter for Parliament to decide, be a contempt of Parliament, given the Minister’s refusal to release that same information to Parliament.
It is for this reason that section 52(1) of the OIA could apply:
(1) Nothing in this Act authorises or permits the making available of any official information if the making available of that information would constitute contempt of …the House of Representatives.
Section 18(c)(ii) of the OIA provides that a request may be refused if ‘the making available of the information requested would constitute contempt of ... the House of Representatives’.
However, section 52(1) does not by itself prevent a Member from requesting information from a Minister under the OIA separately from the proceedings of Parliament, being information that has been the subject of such proceedings. A subsequent refusal would then be a matter that the Ombudsmen would be able to investigate and review under the OIA.
This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.