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And speaking of defamation lawsuits involving fisheries…

By Steven | September 25, 2008

The Simunovich case (discussed below) isn’t the same as Winston Peters’ defamation lawsuit against TVNZ, Radio NZ and others about the fisheries issues – the case that saw Rodney Hide ejected from the House late last month. Peters fumed that Hide was improperly trying to raise issues during question time that were being contested in that case. Peters insisted that this breached Standing Orders. Hide wasn’t inclined to agree, and there ensued, over the course of a couple of days, an amusing ping pong battle.

The rule is contained in Standing Order 111:

Matters awaiting judicial decision

Subject always to the discretion of the Speaker and to the right of the House to legislate on any matter, matters awaiting or under adjudication in any court of record may not be referred to—

(a) in any motion, or

(b) in any debate, or

(c) in any question, including a supplementary question,—

if it appears to the Speaker that there is a real and substantial danger of prejudice to the trial of the case.

In the end, the Speaker ruled in Peters’ favour, saying Hide was in breach. “Nothing said in the House should prejudice, however slightly, the decision of any court,” the Speaker said. “The House applies more rigorous inhibitory standards on itself than apply to the media in reporting judicial proceedings.” This is because the legislature “should take extreme care not to undermine confidence in the judicial resolution of disputes by intruding on individual cases”.

I don’t know what precisely is in issue in the lawsuit. But I think that ruling is wrong. I’m worried about the phrase “however slightly”.  It’s a ridiculously low threshold, far lower than that applicable to the media. The rules applying to them say they can’t create a “real risk of prejudice” to an upcoming trial. That’s nebulous and chilling enough. This “however slightly” nonsense goes much further.Is it required by a sensible reading of the rules? Nope. In fact it flies in the face of the language that demands “a real and substantial danger of prejudice”.

Is it required by the needs of the administration of justice? Nope. If the courts can tolerate the media commenting on cases as long as they don’t create real risks of prejudice, then they can put up with MPs doing the same.

Is it good policy? Nope. There seems even more reason to cut our elected representatives some slack when conducting the business of the nation than there does for the media.

Is is good law? Nope again. The Speaker has forgotten that the Bill of Rights Act, which was passed by Parliament and says explicitly that it applies to Parliament, requires any restrictions on free speech to be demonstrably justified. You’d think that might be a relevant factor when considering how to interpret Standing Order 111. Apparently not.

Topics: Defamation, General, Parliamentary privilege | 1 Comment »

One Response to “And speaking of defamation lawsuits involving fisheries…”

  1. lyndon Says:
    September 26th, 2008 at 4:41 pm

    Observing it in practise, it also just doesn’t work. If some honourable member declares some matter is before the courts therefore it can’t be talked about, for one thing it leads other members to disagree (and they can’t BOTH have their word accepted) and eventually requires proceeding to come to a halt while the speaker works out what the case in question is and sends out for the details.

    It led to disorder. I assume practically the only thing to do is let members take it on their own judgment and deal with all but the most obvious breaches after the fact.


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