Why should Parliament protect malicious officials?

Trevor Mallard: Accused of defamation in 2007
Clare Curran, who is now a Labour MP

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.

janderson@nbr.co.nz

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4 Comments & Questions

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Looks like the potential for corruption in NZ is going to thrive regardless of whether Labour or National is in power.

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This is nothing to do with corruption. It is whether politicians like Trevor Mallard are going to be able to throw muck at people in Parliament, with the support of their officials, with those officials protected from the consequences to the same extent as the Minister or MP. What about the often innocent people defamed by the muck thrown by people like Trevor Mallard??

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Totally agree #1. Also, she didn't actually tell the reporters. She told John Key's office (who were in Opposition then) and they then told the reporters. However, now they are the Government, they like to forget the fact they cashed in on her being a political football for them and, while they have been the Government, have been fighting against Leigh in the courts to actually defend the Environment Ministry's defamatory actions. Also, the case was never 'settled', as this article states, as she had to drop the case because she had no money to take it any further in the courts. She received no settlement. Hilarious that David Parker, who was the subject of this whole scandel in the first place, apparently has no 'conflict of interest' and is on the Privileges Committee to make a ruling on this matter.

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Yeah - agree #2. If the Privileges Committee succeed in their quest to change the law it would mean every single employee, contractor or supplier to any Government department or agency (past or present) could have their reputation completely destroyed within seconds in Parliament (which is recorded in history forever) and they have absolutely no right to defend themselves or dispute it as being untruthful. This can and will happen to them even if the comments said about them in Parliament are complete lies and the Government know it is completeley untrue. So, even if you were a plumber that repaired a bathroom sink in a Govt Department ten years ago and had a disagreement with one of the officials in Government over the job, that official could, at any time, tell a Minister they thought your work wasn't up to parr and the Minister could then go to Parliament and name and shame you and make up anything they like about you and there is nothing you can do about it. Even if it destroys your entire business, your good name, and you eventually top yourself - the Government Official and the Minister will never be held even remotely responsible for what they have done to you. They will never have to retract or apologise. Remember, a Minister does become accountable for their actions in the public eye and can lose an election if people don't like them. However, a Government official is far more dangerous and is accountable to no-one - especially not the public. Regardless of what the public think of different politicians, they still have their job. A Minister doesn't. So if the law changes the Govt tand Govt Officials are going to have a field day with this and will love being able to defame anyone they like if that person has different political views, speaks up and complains about the Government's actions. The Ministers will use their Govt officials to do all this dirty work for them who will knowingly provide their Minister with false and misleading information just to please their Minister and to help them achieve their political agendas. It happened to Madeiline Setchell, it happened to Erin Leigh, it happended to Owen Glenn and so on.

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