MPs clamouring to put Supreme Court in its place

VERNON SMALL
Last updated 07:45 29/11/2012

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OPINION: Change the law or clap a bench full of Supreme Court judges in irons?

Ah decisions, decisions.

Fortunately (but for the alternative's sensational news value) MPs seem to be opting for a legislative solution over charging the sharpest beaks in the land with contempt for trespassing on Parliament's privileges.

The standoff was sparked by the defamation case Attorney-General & Gow v Leigh where the Supreme Court found that statements by an official to minister Trevor Mallard, when he was preparing to answer an oral question, were not part of parliamentary proceedings.

That meant they could be brought into court proceedings because they were not protected by Parliament's absolute privilege.

Speaker Lockwood Smith decided the court's ruling raised a question of privilege and referred it to the Privileges Committee.

And if the tenor of yesterday's committee hearing is any guide, a law change is on the way that will put the Supreme Court back in its box and define more clearly the boundary between the jurisdictions of the courts and Parliament.

Committee chair, Attorney- General Christopher Finlayson, said the court was treating parliamentary privilege in the way it treated other types such as diplomatic or legal privileges, and it had raised the issue of whether it had "trespassed on our jurisdiction".

Labour's David Parker, who is clearly hot under the collar about the issue, put it more strongly. In the grey area between the role of the courts and Parliament, where by convention mutual respect and restraint hold sway, "there's a bit of push and pull and it's time to push back a bit".

And he even argued for Parliament to go further than simply passing a law to define its privileges.

He said it should make it clear it did not concede the court was right in the first place.

Clerk of the House Mary Harris, advising the committee, said that also of concern was "an apparent trend to place the rights of individuals ahead of the interests of our system of representative parliamentary democracy" in balancing differing public interests.

She said much of "the business of Parliament" these days takes place away from the floor of the House, so a narrow construction of parliamentary privilege would have wide implications.

It is a point well made. The House must be able to conduct its business without external interference and without the threat of legal sanction hanging over it or its advisers.

Otherwise, would public servants advising ministers hold back on full disclosure of what they know, for fear they might face actions?

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How would that contribute to an open, fully-informed debate?

And what about its impact on the exercise of free speech inside the House?

And where should the line be drawn on the so-called "necessity test" that requires something to be "necessary for the proper and efficient conduct of the business of the House" before it is protected by absolute privilege?

The Supreme Court's ruling also has potentially broader impacts than briefings to ministers, because a wide range of departments and officials give advice to a wide range of legislative and parliamentary proceedings.

Justice Minister Judith Collins did argue that under any new regime there would need to be protections for members of the public where there was malice involved.

MPs will need to consider protections beyond those that already exist, which give a right of reply in the House, although to maliciously defame someone would in itself be a contempt of Parliament as well as an employment issue for a public servant.

But wait, there's more.

Any changes Parliament makes could yet go beyond addressing issues from the Erin Leigh case.

In the slipstream of that, MPs are also looking at the implications of an earlier ruling involving former MP Owen Jennings. In that case the court found that by simply saying he did not resile from something he said in the House, Jennings had repeated a statement outside the House. That meant he had lost his protection of absolute privilege, opening him to defamation action, even though his original statement in the House was protected.

The "repetition" doctrine also extended to the media, Law Professor Philip Joseph told the committee.

It had an unwelcome chilling effect because the public expected the media to quiz politicians outside the House about what they had said. And he suggested MPs could "sell" the idea to the media because the House was being altruistic.

Sold! I rest his case.

- The Press

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