Constitutional doctrines

Parliament has additional functions beyond lawmaking:
- Providing government (executive legitimacy).
- Controlling public finances.
- Holding the executive to account.
These functions reinforce that parliament represents democracy and legitimizes/scrutinizes the executive.

Parliament is the source of executive legitimacy, while the Governor-General is the source of executive power.
Executive legitimacy is provided through "confidence," a motion showing parliament believes the executive is doing its job.
To continue functioning, the executive must maintain the confidence of Parliament.
Losing confidence can result in the resignation of the executive or dissolution of government and re-election.
Confidence is typically secured through coalition agreements under MMP, where a majority of MPs agree to support the executive.
Confidence and supply agreements are another mechanism, where a smaller party agrees to support the executive on confidence and finance votes without being part of the executive itself.
- Example: In 2008, the National Party had confidence and supply agreements with the Māori Party, United Future, and New Zealand First.
A no-confidence vote represents one of the ultimate checks that Parliament has over the Executive.

Parliament holds the "Power of the Purse," the authority to legitimize government expenditure.
The legitimization of this power can be found in the Constitution Act Section 22 and the Public Finance Act 1989.
The executive cannot spend money without parliamentary approval, primarily through estimates and appropriations bills and the passing of the Budget.
These bills typically pass easily with coalition or confidence and supply agreements.
This is another check over executive power, as Parliament can refuse to pass appropriations bills if concerned about executive spending.

Parliament holds the executive to account through public questioning, inquiry, reporting, and investigations.
Question Time: MPs from all parties ask questions of ministers regarding current policy, projects, decisions, and scrutiny of actions.
- Also used by MPs from the minister's party to offer softball questions to make the minister look good.
Debates and Motions: MPs question the background, research, and crafting of bills and specific clauses.
- Motions allow MPs to interrogate ministers further, with the Speaker determining whether they pass.
Select Committees: Heavily utilized to check the executive, focusing on bills and incorporating public participation and expert submissions.
Reports and Inquiries: Parliament commissions reports into specific executive actions, differing from Crown commissions focused on broader historical events.
Power to Compel Witnesses and Demand Papers: Parliament can compel witnesses or experts to provide reports or evidence if they believe information is not being fully disclosed.

Parliamentary privilege consists of legal immunities that allow Parliament and its members to perform their constitutional functions without outside interference.
Legal immunities mean freedom from being taken to court or suffering legal punishment for actions during specific scenarios.
The source of these immunities comes from the UK and is now found in the Parliamentary Privileges Act of 1865 (updated in 2014).
The purpose is to protect democratically elected officials from interference from other branches of government and support the separation of powers doctrine.
Common privileges include:
- Freedom of speech and debates (absolute privilege).
- Control over internal proceedings.
- Control over their own order papers.
- Power to discipline members (Privileges Committee).
- Parliament also maintains control over its own precinct.

Freedom of speech means MPs are legally immune from defamation suits for statements made in parliamentary debates, even if they defame individuals outside of Parliament.
This creates tension with the rule of law, which suggests laws should apply evenly, and separation of powers, which protects Parliament from judicial interference.
Professor Fox-Decent describes this privilege as creating a "sphere beyond law" for parliamentarians.
Privileges are in statute, creating a circular issue where the law says parliamentarians are free, but they may also be breaking the law.
There's continuous interaction between the courts and Parliament regarding the boundaries of these privileges.

Act MP Owen Jennings made a defamatory allegation in Parliament and later agreed with the comment outside the House. Roger Buchanan, the defamed individual, sued Jennings for defamation based on the agreement with the comment.
The court had to determine if the agreement was effectively a repetition of the defamatory comment and if this repetition removed the shield of privilege.
The case went to the High Court, Court of Appeal, and Privy Council in the UK, which all determined:
- You cannot be sued for what you say in Parliament.
- You can be sued for defamatory statements outside of Parliament.
- Saying "I agree with what I said in the House" is defamation and removes the privilege.
This became known as the doctrine of effective repetition.
The case shows the tension within the separation of powers and the courts' role in asserting the limits of parliamentary privilege.
MPs, including Chris Finlayson, opposed the decision, worrying about the chilling effect on their ability to speak to the media about parliamentary matters.
They proposed a legislative change to allow for effective repetition, but it did not pass.

Those who support the decision:
- The courts drew a line in the sand to protect the individual.
- Separation of powers includes the judiciary's power to interpret statutes.
Those disagreeing felt the decision was too aggressive because Owen Jennings did not repeat the defamatory comment, but simply referred to his previous statement in the house.
If such speech is protected by immunity, it becomes difficult to assert it becomes unprotected by referencing the prior speech. However, a cynical MP could abuse this loophole by making defamatory comments in the House, then agreeing with them outside the House as a way of amplifying those statements while being protected.
The purpose of these privileges is to allow free and open debate for lawmaking, not for parliamentarians to say whatever they want all the time, and get away with it if they're gonna continue behaving like that outside of the house.

"Privilege merely implies that legislatures and their assemblies, as well as judges, are entitled to interpret constitutional norms."
Parliament and the judiciary both interpret the constitutional norm of separation of powers through parliamentary privilege.
Parliament protects its freedom to scrutinize laws without external influence, while judges interpret laws, including constitutional norms, and determine the scope of privilege.
Both asserting interpretations leads to a middle ground and boundaries.
Parliament has the power to legislate against decisions of the judiciary, but the judiciary can then interpret the new legislation back, creating ongoing tension.

Parliament does more than make laws, providing government through confidence, controlling public expenditure, and holding the executive to account.
Parliament protects its autonomy, parliamentary sovereignty, but cases like Buchanan and Jennings show that it has limits.
Parliament's powers support their supremacy while ensuring executive accountability and legal coherence.