Editorial: Tightening of free speech rule goes too far

Opinion

Absolute freedom of speech legally exists in only two places in this country: Parliament and the courts. Only members in Parliament and sworn people in court are free to criticise and condemn others with no liability for defamation or damages if what they say turns out to be wrong. News media enjoy almost as much immunity for fair and accurate reports of what they say.

But even members of Parliament and witnesses in court can be gagged by the rules of their respective institutions. One rule of both asks that each respects the role of the other. MPs are not supposed to comment on cases before a court, and judges are not supposed to discuss or decide issues before the legislature.

It is a rule sometimes honoured in the breach, as when an MP discloses in the House details of a court case that a judge has ordered not to be published. Just such an incident last year has caused Parliament's privileges committee to propose a tightening of the rules.

Its proposals, tabled in the House this week, go too far. The committee would rewrite the sub-judice rule in Parliament's standing orders so that members would not be permitted to raise any matter awaiting adjudication in a New Zealand court except at the Speaker's discretion, which the member would need to seek in advance. Members in this Parliament - some of whom may be there for only one term - seek to restrict a right of MPs dating back centuries.

Their proposal seems too restrictive both in the requirement for prior approval and in its application to matters awaiting adjudication rather than simply awaiting trial. The only justification for judicial suppression orders is, or should be, the interests of a fair trial - and even that justification can be taken too far in this country. Research has found well-directed juries need little protection from external influence; judges surely do not.

Yet the proposed muzzle of MPs would extend to cases awaiting sentencing or other decisions by judges alone. The reason, says the privileges committee, is not just the interests of justice but also to recognise the "principle of comity between Parliament and the courts".

A degree of mutual respect between the legislature and the judiciary is much to be valued but this is taking it to an extreme. Both are institutions trusted with public authority and both should expect to withstand critical public scrutiny by the other.

Judges do not enter political debate for the very good reason that they do not want to appear partisan in their public role. But often enough they find ways to chide the legislature when they think its work deficient, and it is healthy that they do. The way in which they interpret and apply legislation certainly influences the decisions of Parliament, as it should.

Likewise, MPs should be allowed to raise concern about the court's handling of a case, particularly if the subject can safely be raised only under parliamentary privilege. No MP should lightly breach a suppression order - a contempt of court that would be punishable outside the House - but, sadly, court suppressions in this country sometimes deserve contempt. Orders readily granted frequently fail on appeal to a higher court.

The privileges committee proposes to confirm the right of news media to report a contempt of court uttered in Parliament without fear of judicial punishment. Newspapers have long operated on example from Britain that fair and accurate reports of House proceedings were protected from all legal reprisals, but the committee says this is not so. Parliament must clarify this question before all others. The freedom to speak fearlessly in the chamber is of little public value unless what is spoken can be published more widely.

Most MPs use their privilege rarely and responsibly and courts can survive the criticism. A little less mutual deference might better serve the public interest.