ACT Asks: Can We Use the Dungeon?

Only for the crime of atheism, I'd suggest

It looks like ACT MP Dr Parmjeet Parmar requested legal advice on whether Parliament could imprison Te Pāti Māori MPs over their conduct during the infamous vote disruption haka. She sits on the Privileges Committee, which ultimately recommended suspensions, not jail. Still, the fact that imprisonment was even canvassed made headlines.

So, could New Zealand’s Parliament have jailed the MPs? Legally, yes. Realistically, no. The full story is quite interesting, though.

Just to be clear: Parliament does have the power to imprison people, including its own members, for contempt. The classic terminology is that the House may “commit” a person to “custody” but it amounts to the same thing. Presumably, the subject of the arrest warrant would be sent to a public jail.

The authority is an ancient inheritance from the United Kingdom.

It’s outlandish to think about the power being used in almost any imaginable circumstance. And indeed, the power of committal has never been used in New Zealand’s history. But it has never been abolished either.

In the current legal landscape, section 8 of the Parliamentary Privilege Act 2014 is the starting point. It confirms that the privileges, immunities, and powers of the New Zealand House of Representatives are those held by the House of Commons of Great Britain and Ireland as at 1 January 1865.

At that time, the House of Commons did sometimes jail people for contempt. It might be hard to imagine now, but people were sent to Newgate prison for everything from refusing to answer questions to publishing what the House considered libellous commentary.

The last known instance was in 1880, when Charles Bradlaugh was detained by the Serjeant-at-Arms for attempting to take the oath of office as an MP without swearing on the Bible. Bradlaugh, an avowed atheist, wished to affirm rather than swear a religious oath, relying on laws that allowed affirmation in court. The Commons, however, did not accept that this applied to parliamentary oaths.

After several rounds of heated debate and legal wrangling, Bradlaugh simply walked up and tried to take the oath anyway. That act of defiance—an attempt to act contrary to the will of the House—was deemed a breach of privilege and contempt. He was accordingly ordered into custody (and quickly released).

And so, because New Zealand’s Parliament inherited the same powers as the Commons, that power is also in our constitutional toolkit.

Interestingly, this is why impeachment is not a thing in New Zealand. While the House of Commons has the power to bring impeachment charges, trials are conducted by the House of Lords. But New Zealand’s upper house — the old Legislative Council — was only ever granted the same privileges as the Commons, not the Lords.

That meant there was never any New Zealand body with the legal standing to try an impeachment, so the mechanism never took root here. It’s a genuine quirk of our constitutional inheritance: the ability to jail, but not to try. Good news for Prime Ministers with an eye for high crimes and misdemeanours.

Back to imprisonment. The Crimes Act 1961 even preserves this punitive power. Section 9 abolishes criminal liability based on old English common law offences or imperial statutes unless they’ve been incorporated into New Zealand law by our own Parliament. In short, you can't be prosecuted in this country for something that isn’t expressly criminal under a New Zealand statute.

But there is a carve-out for parliamentary contempt. The law confirms that Parliament’s power to punish for contempt is not affected by the abolition. That means Parliament can still use its inherited powers to detain or otherwise punish someone for breaching its privileges, even though such punishment wouldn’t flow from the criminal code.

Incredibly, this means Parliament retains a standalone penal power that exists entirely outside the ordinary criminal justice system. No charge, no trial, no appeal. If the House resolves that someone is in contempt—whether it's a member or a member of the public—it can order that person into custody.

The Speaker would issue a warrant, and the Serjeant-at-Arms would carry it out.

So was it a silly question?

Yes. Of course it was. Not because it’s legally impossible. It’s more that the idea modern New Zealand MPs would be clapped in irons over even the worst breach of privilege is risible. It would be constitutionally nuclear and politically insane.

Asking whether imprisonment was technically available might have been “doing homework” in the narrowest possible sense. But it’s the kind of homework you do when you don’t understand the assignment.

Or mistakenly think it’s still 1872.