Parliament this week embarked on a radical move to protect officials from being sued when they give damaging and false information to ministers.
It could mean the absolute privilege which protects MPs from being sued for defamation for what they say in Parliament is extended to also protect their officials – even if they are malicious.
According to a lawyer whose client’s defamation case sparked Parliament’s latest move, it means officials could abuse their role intentionally and maliciously provide damaging and false information to ministers and there would be no legal recourse for those who are defamed.
Allison Ferguson, of Wilson Harle, acted for environment ministry public relations contractor Erin Leigh, who accused Trevor Mallard, then Labour's environment minister, of defamation in 2007.
Unable to sue Mr Mallard because he was protected by Parliament’s absolute privilege, Ms Leigh instead sued the then deputy secretary of the environment ministry Lindsay Gow, who had been in communication with Mr Mallard through written and oral briefings.
Ms Ferguson told NBR ONLINE the communications between Mr Gow and Mr Mallard were already protected by qualified privilege and it was only where malice was held to be present that the defence would not succeed.
Which means it is possible to sue officials, as Ms Leigh did, but Ms Fergsuon says that would rarely happen – and she is not aware of any other case like this in New Zealand history – because of the protection of qualified privilege.
For a case to succeed in these circumstances would be dependent on the claimant establishing both the claim in defamaton and the presence of malice in order to defeat the qualified privilege defence.
Ms Ferguson suspects the public would be “outraged” if they realised what Parliament now wanted to do.
The Erin Leigh Affair
Ms Leigh quit her job in 2006 when Clare Curran, who is now a Labour MP, was appointed as her superior.
Ms Curran was appointed on the recommendation of then climate change minister David Parker.
When details of Ms Curran’s appointment were coming to light later in 2007, Ms Leigh told reporters about the situation, claiming the appointment amounted to political interference.
As a result, Mr Mallard was asked a question about the issue in Parliament.
In his reply he used Parliamentary privilege to accuse Ms Leigh of "repeated incompetence" and that she was a "sad" individual, among other things.
Mr Mallard refused to repeat the allegations outside the House, meaning Ms Leigh could not sue him because he was protected by absolute privilege.
After years going through the courts the Leigh case was settled. But not before the Supreme Court sought to clarify important points of law.
The court affirmed the orthodox position against the ministry’s push to widen the scope of absolute privilege to extend to the ministry’s action.
Headed by Chief Justice Dame Sian Elias, the court held statements made by an official to a minister for the purpose of replying to questions for oral answer are not themselves parliamentary proceedings and can be the subject of court proceedings because they are not protected by absolute privilege.
The court held the extension of the privilege to these communications was not necessary for the proper functioning of Parliament – which is the legal test for absolute privilege in these circumstances.
In April last year the Supreme Court granted leave to Mr Gow, and the Attorney-General on behalf of the government, to appeal on whether the communications by Mr Gow to Mr Mallard were the subject of absolute privilege.
Because of settlement the Supreme Court never dealt with the substantive appeal and the matter was left hanging – until last week.
Speaker Dr Lockwood Smith has now referred the question of parliamentary privilege to the priviliges committee for consideration.
The privileges committee says it is prepared to look into the implications of last year's Supreme Court decision.
Specifically, the privileges committee is concerned the Supreme Court decision may inhibit the flow of information to the House and has called for public submissions by October 29.
Whether someone has been lobbying to try to get Parliament to do what the Supreme Court would not – extend the scope of absolute privilege to such delicate communications – remains to be seen.
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