Judge issues new decision after getting law wrong on parliamentary privilege

Former Deputy Prime Minister Winston Peters sought a recall with the Attorney-General. Photo / Tania Whyte

UPDATED: A High Court judge, Justice Jan Doogue, has had to issue a new decision in a defamation suit after getting the law wrong regarding parliamentary privilege in a case highlighted by Winston Peters.

But it has broadened the coverage of parliamentary privilege to anyone preparing a dossier on a person for the purposes of launching an attack on someone so long as the MP has requested it.

The judge says that falls within the definition of “proceedings in Parliament” and cannot be questioned by the courts.

The case centres on the free speech MPs have in Parliament, termed parliamentary privilege. It is part of a sum of rights without which it is said MPs could not perform their functions.

And it centres on the long-established comity between the courts and Parliament in which each is expected to respect the other and not encroach on the other’s domain.

In Parliament last week, for example, the Speaker would not allow questions to be asked about the destruction of huts in Te Urewera because an interim injunction has recently been granted by the High Court to stop the planned programme of destruction, pending a full hearing.

Peters, the New Zealand First leader and former deputy Prime Minister, along with Crown Law on behalf of the Attorney-General sought to have Doogue’s original judgment issued last year set aside.

Crown Law went as far as saying that the circumstances were “sufficiently exceptional to amount to a miscarriage of justice that justifies recall of the judgment.”

Peters welcomed the revised judgment saying it was a vindication and respected parliamentary privilege.

The error centred on a speech that Peters gave in Parliament in July 2014. His speech followed defamation action initiated by Bryan Staples against Richard Freeman for comments made on Facebook in April 2014.

In her original decision, Justice Doogue found for Staples, who helped homeowners with unresolved claims from the Canterbury earthquakes, and ordered that he be paid $350,000 by Freeman.

Peters’ speech repeated some of the claims by Freeman that were critical of Staples.

The judge originally said Peters’ speech had been defamatory and said that while he was protected from legal action, those that repeated it were not. She ran his speech in full in her judgment. She also said Freeman had arranged to give him the material he used in his speech.

As well as the Facebook comments, Peters’ speech was among the factors she cited in assessing the damages to be $350,000.

It was evident from her original judgment that she did not realise that parliamentary privilege did not only give MP immunity from legal action but that their statements could not be questioned in a court of law, under Article 9 of the Bill of Rights 1688.

Former Attorney-General Chris Finlayson.Photo / Mark Mitchell

In 2014, Parliament reinforced the principle in Article 9 by passing the Parliamentary Privilege Act codifying parts of the Bill of Rights in legislation promoted by then Attorney-General Chris Finlayson.

The act includes the following provision: “In proceedings in a court or tribunal, evidence must not be offered or received, and questions must not be asked or statements, submissions, or comments made, concerning proceedings in Parliament, by way of, or for the purpose of, all or any of the following:

(a) questioning or relying on the truth, motive, intention, or good faith of anything forming part of those proceedings in Parliament:

(b) otherwise questioning or establishing the credibility, motive, intention, or good faith of any person:

(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament:

(d) proving or disproving, or tending to prove or disprove, any fact necessary for, or incidental to, establishing any liability:

(e) resolving any matter, or supporting or resisting any judgment, order, remedy, or relief, arising or sought in the court or tribunal proceedings.

The original judgment of Justice Doogue breached that law by questioning Peters’ speech.

In a decision last year allowing the application for recall of the judgment, she put the blame on the lawyer of the plaintiff for not drawing the court’s attention to the Parliamentary Privilege Act.

One of the reasons parliamentary privilege was spelled out in statute was because Parliament disagreed with a Supreme Court decision, Gow vs Leigh. If the court’s decision had not been overturned, it would have allowed officials to be subject to defamation when giving ministers advice to carry out their jobs, such as answering ministerial questions.

Parliament thought that would have a chilling effect on advice given by officials.

In the revised judgment, Doogue has extended that privilege to Freeman providing information to Peters for a speech in Parliament – meaning it is protected against inquiry.

“I find the provision of information by Mr Freeman to Mr Peters comprises a proceeding in Parliament as defined in the act because there is evidence that Mr Peters sought the information in question and did so for parliamentary purpose.”

The judge referred to “unresolved evidential uncertainty” as to whether the document provided by Freeman to Peters was outside of preparatory work for parliamentary business. But in the interests of comity she was “erring on the side of finding privilege.”

The judge said she would have to revise the damages, and issued a separate revised judgment, reducing the damages from $350,000 to $120,000.

Peters said the freedom of speech in Parliament was the bedrock of democracy and was a vital tool to uphold the integrity of the House as a democratic legislative assembly.

“Today that vital tool and important responsibility have been recognised, restored and protected.”