Andrew Geddis: Good reasons for odd House rule

The allegations raised in Parliament by Winston Peters against Auckland bookshop owner Jim Peron have thrust the issue of parliamentary privilege into the spotlight.

Mr Peters has been accused of misusing this privilege in order to mount a defamatory attack on a private individual for political gain. In response, the New Zealand First leader claims that he has acted as an MP should by raising concerns about how the country's immigration system is operating. (Act's Rodney Hide helped Mr Peron, a United States citizen, to apply for residency here.)

Coincidentally, Parliament's privileges committee is studying the issue of Parliament's free-speech privilege following the Privy Council's recent decision in Jennings v Buchanan.

This judgment held that an MP can be sued for effectively repeating a defamatory claim outside of the House. (It is also the reason Mr Peters refuses to discuss his accusations in interviews, lest he be found to have effectively repeated them.)

The focus on parliamentary privilege makes it worth taking a step back and considering just what is at stake.

Parliament's free-speech privilege gives all participants in parliamentary proceedings, whether an MP or otherwise, full immunity from legal liability for anything said during the course of those proceedings. In particular, they cannot be sued for defamation, nor can anyone who subsequently reports their words.

At first blush this seems an odd rule. But there are two good reasons for exempting parliamentary participants, and MPs in particular, from the legal consequences of the words they speak in the course of Parliament's business.

The first rationale stems from Parliament's purpose: to serve as society's chief lawmaking institution, and hold the actions of the executive government to account. Both of these functions require full freedom of speech for those taking part in parliamentary proceedings. Better laws will be made, and the government made more accountable, if parliamentary participants are able to speak (and be reported) in an uninhibited and robust fashion.

And because the potential threat of legal action might constrain, or chill, some participants' preparedness to speak, it is necessary to remove that threat.

Obviously, this first rationale involves a trade-off. While society as a whole benefits in the long run from free parliamentary speech, it carries the cost of depriving any individual who is falsely and unfairly maligned of legal recourse.

Such an individual thus might ask why the trade-off is not struck in a different way. Why not protect parliamentary participants from ordinary defamation actions but still allow them to be sued in situations where a false claim is made in Parliament without any evidence?

This leads to the second rationale for Parliament's absolute free-speech privilege. Any sort of legal action resulting from parliamentary speech would necessarily involve the courts adjudicating upon the activities of Parliament.

In turn, this raises the potential for conflict between these two institutions of government. From a constitutional point of view, such conflict is something to be avoided whenever possible.

In the same way as MPs or ministers are not supposed to criticise individual court decisions, the courts are not to put themselves in judgment over what happens in Parliament.

The consequence of this absolute nature of Parliament's privilege is that an individual who believes she or he has been defamed in Parliament can only seek a remedy through Parliament's internal procedures. Standing orders provide that such an individual may have a statement read into Hansard. This measure at least allows their side of the story to become a part of the public record.

However, it can only occur if the Speaker permits. The response also is unlikely to attract the same degree of media attention as the original accusation. Nor does it finally determine the truth or otherwise of the accusation, in the same way as a defamation case can.

All of which means that having a statement read into Hansard is but cold comfort to an aggrieved individual.

Whether additional remedies should be made available is a question that the privileges committee will have to decide in its review. Should, for instance, there be some power introduced that enables the committee to require an MP to apologise to Parliament for making a claim it deems to be defamatory?

(At present an MP may choose to apologise in Parliament for a defamatory statement about an individual, as John Tamihere did in 2000. But there is no way to require such an apology if not offered voluntarily.)

However, MPs may be reluctant to give themselves such oversight over their fellows, for the simple reason that they will never know when or how it might be used against them.

The consequence is that the free-speech privilege gives our MPs a real power without any real immediate accountability. Therefore, MPs ought to show a degree of circumspection before making use of this power.

And the final judges of parliamentary behaviour, the voting public, should take note of those who misuse it. In the final analysis, only we can make sure that the free speech needed for Parliament to flourish does not become a licence to slander.

* Andrew Geddis is a senior lecturer in law at Otago University.