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An unprivileged position?

By Steven | September 15, 2010

The DomPost seems to have deliberately breached a name suppression order. And now I probably have too, having merely linked to it. What the hey. The paper is reporting that ACT MP David Garrett has admitted that he obtained a false passport in his halcyon days, using the time-honoured Day-of-the-Jackel method of finding the tombstone of a dead baby who was born roughly when you were and applying for a passport in its name.

I have to say, I think that’s kind of cool. But illegal. Fair Go has done it too, and with better motivation: to prove how easily it could be done. Also illegal.

Anyway, David Garrett was found out much later, pleaded guilty and was discharged without conviction and given name suppression. (Question: what is ACT’s position on criminals who receive this treatment?)

Garrett says he’s currently trying to have the name suppression withdrawn. Apparently that hasn’t happened yet. But the DomPost has still named him. Also… illegal. You’d think it might have picked up on that, having covered the Whale Oil case so assiduously.

Ah, they’ll be saying. But Garrett said it on the floor of the House of Parliament. We were just reporting that. It’s privileged. Isn’t it?

I don’t think so. Privilege applies to Garrett. (Though technially he could be answerable to the Privileges Committee for using his Parliamentary rights to breach a suppression order, I don’t think anyone’s going to get too exercised about him fessing up to his own crime). Privilege also exempts the media from defamation actions when reporting what’s said in the House. Lord Denning – but only Lord Denning – has suggested that privilege may also insulate media Parliamentary reports from contempt actions. But not name suppression laws.

I don’t think anything will come of this. I’m not saying anything should. When Winston Peters revealed the identify of a child in a family court battle, for instance, no-one batted an eyelid when that was reported. Let me heroically opine that I should not be prosecuted either.

But Whale Oil occasionally rails about the way that the media often gets away with flouting suppression laws, while he gets prosecuted. Well, they’re not thumbing their nose at the law the way he does, but let’s grant that he has a point.

Topics: Name suppression, Parliamentary privilege | 16 Comments »

16 Responses to “An unprivileged position?”

  1. Graeme Edgeler Says:
    September 15th, 2010 at 5:02 pm

    Not just the DomPost, Parliament TV too.

    ref: Privileges Committee report

  2. geoff Says:
    September 15th, 2010 at 5:36 pm


    Can a blogger claim in effect to be a journalist?

  3. Steven Says:
    September 15th, 2010 at 5:40 pm

    Bloggers can claim anything they like. I’ve seen them do it!

    In what context? Do you mean, might they qualify for the defamation privilege I mentioned? Probably yes, but not because they are journalists exactly, but because it covers fair and accurate reports of Parliament, and (if they’re fair and accurate, which will be a stretch in many cases) that’ll probably cover bloggers too.

  4. geoff Says:
    September 15th, 2010 at 5:44 pm

    I was thinking in regards to being compelled to reveal their sources.

  5. Steven Says:
    September 15th, 2010 at 5:57 pm

    Ah, well check out the new provisions in the Evidence Act, which is one of the rare occasions where journalists are singled out for special treatment. (That special treatment relates to protection of confidential sources and information). The key definitions:

    journalist means a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium

    news medium means a medium for the dissemination to the public or a section of the public of news and observations on news

    Doesn’t seem to cover most bloggers. Might cover David Farrer or Cameron Slater or Norightturn though, if it can be said they deal with news AND observations.

  6. geoff Says:
    September 15th, 2010 at 6:11 pm

    Even if that information has been suppressed by court order?

  7. Steven Says:
    September 15th, 2010 at 6:40 pm

    Um. Not sure what you’re talking about. The source privilege relates to the identity of, and information from, confidential informants. The confidentiality stems from the promise from the journalist, not any court order.

  8. Andrew Geddis Says:
    September 15th, 2010 at 6:46 pm

    For anyone interested and with access to a law library/westlaw subscription, there is a useful analysis piece on just this in the latest issue of the UK journal, Public Law. I mention it only because Steven CLEARLY isn’t going to and I wrote it.

    For what it is worth, I think the media won’t have a defence here. But equally, there isn’t a chance in hell that they’d ever be prosecuted for it. The police have bigger Whales to chase (see what I did there?)

  9. Steven Says:
    September 15th, 2010 at 7:11 pm

    Blogs are the new law journals, Andrew. Or haven’t you heard?

  10. geoff Says:
    September 15th, 2010 at 7:21 pm

    What I’m getting at is where is Whale Oil getting his information from?

    Quite possibly from an informant who happened to be in court when the suppression order was made .

  11. Steven Says:
    September 15th, 2010 at 7:23 pm

    Possibly, though likely not. As for his sources, if anyone tried to extract them from him (though no-one has), he might be able to invoke the Evidence Act privilege.

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