Tuesday, June 22, 2021

An attack on parliamentary privilege

Today the Speaker referred the High Court judgement in Staples v Freeman to the Privileges Committee. Its not surprising. The court in its decision finds that a speech by Winston Peters in Parliament was defamatory. That seems to violate s11 of the Parliamentary Privilege Act 2014, which prohibits the courts from questioning or establishing facts on the basis of proceedings in Parliament. While it notes that Peters is protected by parliamentary privilege, it claims that "those who republish these statements outside Parliament, including Mr Peters, are not protected". This seems to ignore s17 and s19 of the Act, which protect broadcasts and fair reporting of parliamentary proceedings. It then assigns damages against the defendant for Peters' speech and a subsequent rebroadcast by Campbell Live, on the basis that the speech was effectively incited by the defendant. Again, this seems to violate the protections of parliamentary privilege. The decision was made after an undefended hearing, so privilege was never argued, but you'd still expect the judge to be aware of and appropriately cautious of it.

Parliamentary privilege exists so MPs can do their jobs. Holding their sources liable for what MP's say in parliament (and for subsequent reporting of those proceedings) seems to pose a pretty direct threat to that. To point out the obvious, no-one is going to expose wrongdoing to an MP if the cost is being bankrupted for doing so. So Parliament is right to be concerned. It is unclear whether they can intervene and appeal this decision; if not, or if it is upheld by the courts, I expect them to legislate immediately to overturn it.