If Parliament's rules say you aren't even allowed to refer to the existence of a particular court case, then how can the Speaker enforce those rules without letting everyone knows that the court case exists?

The following interchange with the Speaker took place today in the middle of Andrew Little's reply to the Prime Minister's statement to the House.

ANDREW LITTLE: ... What about the standards of Government? What about the promise of 2008: “The Government I lead will be a Government of good standards.”, and its chance to do something; its chance to demonstrate that they actually are a party of standards in Government. They were confronted with it at the end of last year. One of their MPs is under a police investigation. One of their MPs is under a police investigation.

Mr SPEAKER: Order! I invite members throughout this debate to be very careful. We know there was a court case, and we know that all details were suppressed. [Interruption] Order! There is Standing Order 115. Should any members think I should consider this matter differently, I invite them to use that Standing Order and write to me. At this stage no member has done so. I invite Mr Little to continue.

ANDREW LITTLE: Thank you, Mr Speaker. I understand and appreciate the caution you are expressing. I make no reference at all and make no comment beyond the fact that it is on the record that an MP was under a police investigation. He is not the first. That Government well knows, because they have drawn the attention of the public to other MPs under a police investigation—a police investigation that led to no outcome at all. But here is the point. We had an MP under investigation, who was then allowed by this Government to chair the parliamentary committee—

Mr SPEAKER: Order! I have given a ruling that I had given considerable consideration to. If the member continues in this vein, I will have no choice but to terminate his speech. I have given a ruling whereby we acknowledge there is a court case of which all details were suppressed. [Interruption] Order! This is a time when this Parliament has a responsibility—a duty—to respect the jurisdiction of the court, and I expect that to occur today. I invite Mr Little to continue.

ANDREW LITTLE: I absolutely understand the principle of comity between Parliament and other branches of Government. That is absolutely crucial. I have made no reference to any core process. I just want that to be on the record—none whatsoever—but standards of public life are important. Standards of public life are important. ...

I'm not going to embellish this report with any further comment on its subject matter. In particular, I'm not going to speculate which particular individual might be the subject of the discussion. (And note carefully - any such speculation in the comment thread will attract immediate editorial intervention and suspension of commenting privileges!) All I will say about the exchange between Mr Little and the Speaker is that it conveys information of a nature that no news organisation has felt able to report on, no doubt because of the particular nature of the judicial order that "details were [to be] suppressed" referred to by the Speaker.

And yet here I am, communicating it to you now. How can I do so? Am I risking the wrath of the courts through this action?

Well, hopefully not. Up until August 7 last year, I wouldn't have done it. Because up until then there was no legal protection available to someone who reported something said in Parliament that might breach a "suppression" (really, non-publication) order issued by the courts. The person who said it in Parliament had absolute legal protection, but those who repeated what was said outside of Parliament didn't have any.

However, with the coming into force of the Parliamentary Privileges Act 2014, such  legal protection does exist. Under section 20 of that legislation, this post qualifies for a "qualified immunity". And under section 18, the nature of that protection is an "immunity from any civil or criminal liability for the relevant communication". Sure, that protection would be lost if a prosecutor were able to prove that I had "abused the occasion of communication" - in particular by acting in "bad faith", or with "a predominant motive of ill will". But I have been careful not to say anything beyond what a bald transcript of the words in the House says, have deliberately refrained from speculating on the identity of any individuals involved, and have cautioned anyone wishing to comment to do likewise. So I'm confident I haven't abused the occasion.

Furthermore, there's an important point I want to make by way of reproducing the exchange between Mr Little and the Speaker. Note that the Speaker was trying to do the right thing in this exchange. He was trying to make sure that Mr Little did not, whether deliberately or by accident, say something that the courts had ordered not to be published. In so doing, the Speaker was seeking to uphold the House's own rules:

Matters awaiting or under adjudication in, or suppressed by an order of, any New Zealand court may not be referred to in any motion, debate, or question, including a supplementary question, subject always to the discretion of the Speaker and to the right of the House to legislate on any matter or to consider delegated legislation.

That rule exists for good reason - it is not healthy for MPs to use the privilege they enjoy in parliamentary proceedings to talk about live court proceedings, lest such discussion be seen to influence (or attempt to influence) the outcome. And it is just as bad for MPs to use their privileges to air matters that the courts have determined ought to be kept out of the public arena (especially now that what MPs say in the House can be reported on with legal protection).

But the way that the Speaker did so - himself making reference to the existence of a case that has not been publicly reported - is highly problematic. Which makes me think that the Speaker's office is going to have to think of a new way of dealing with similar issues if and when they arise in the future; a different form of words that allows the MP speaking to know they must exercise discretion (or even must cease speaking altogether) without explicitly detailing the reason why. Otherwise the act of trying to ensure that the House's rules are followed ends up creating the very situation that the rules of the House are designed to avoid.

[Final note: This is somewhat fraught terrain in which to be rambling, so please exercise self-control when commenting. Also, a precautionary approach will be taken to editing comments - so if yours gets pruned/redacted, sorry. But there's a bunch of good reasons why everyone needs to be careful what they say in this situation.]

Comments (19)

by Tim Watkin on February 10, 2015
Tim Watkin

Except... and I'll word this carefully... there have been media reports in recent weeks about just such a case. Stories such asthis have appeared just hours ago. So how come there can be that sort of discussion about that particular case in the media, but parliament can't talk about a case like that?

[AG: You'll note that the story you originally linked to doesn't mention any court case at all. It mentions a police investigation, which is all Little talked about as well. The Speaker then added additional information in his comments ... information that many, many people were aware of (in the media and wider), but no-one published because (I'm guessing) of the existence of "suppression" orders.

You'll also note I've disabled your link. I'm being hyper-cautious in doing so ... but hyper-caution is better than the alternative.]

by Anne on February 10, 2015
Anne

Methinks Mr Speaker is being a little over zealous. I noted there was nothing in Little's comments that broke the suppression order surrounding the issue being suppressed. Indeed if anyone broke it, it was Carter himself by effectively acknowledging there is a link between a certain issue and another issue around Key's claims concerning when he knew or didn't know about yet another set of issues. That is the issue.

[AG: I agree - the Speaker jumped in to pre-emptively warn Little not to talk about a case that couldn't be talked about, thereby revealing that there is such a case, even though (it transpires) Little obviously wasn't going to do so. That's the problem that needs fixing!]

by Tim Watkin on February 11, 2015
Tim Watkin

Gotcha. Thanks for making the distinction.

by Pete Sime on February 11, 2015
Pete Sime

It is a curious state of affairs where individuals can rapidly draw connections in the privacy of their own heads and are compelled to tiptoe around wider issues should they give voice to the connections they have drawn. We saw this in the UK with the Trafigura super-injunction in 2011.

With the exception around issues of national security and some intellectual property issues, the US courts cannot gag third parties from commenting on cases there. While there are many criticisms of the US justice system, I am not aware that this is one in respect of their processes. Perhaps we should follow suit.

by Rich on February 11, 2015
Rich

I'm not sure how one is supposed to have the information not to breach the suppression order. All the details of the case are suppressed, so how do we know if any other events concerning a public figure are related? Maybe there should be a website into which one can type the name of an individual and it will tell you if one is allowed to discuss or speculate on the nature and disposition of their crimes?

Some suppression orders are extraordinarily wide - while one can understand this in the case of s.201 orders to protect the identity of the complainant in a sexual abuse case, it seems unreasonable in an s.200 case?

(I hope I haven't crossed any lines here. Given the nature of the ban, it's hard to, given that all material that identifies which case you must not mention is suppressed).

by mickysavage on February 11, 2015
mickysavage

Do you think Andrew that the Speaker's statement will now have the either intended or unintended effect that questions regarding the said person will be verboten?

by william blake on February 11, 2015
william blake

It's a bind, and the continuance of name suppression that provides necessary protection to victims of specific crimes,will mean that justice can not be seen to be done.

by Rich on February 11, 2015
Rich

It is possible that a hypothetical future MP might one day be charged with crimes serious (carrying a sentence over two years imprisonment) enough to vacate their seat under s.55 of the Electoral Act, but not resign before their conviction. If the case was subject to a suppression order, would any details of why the vacancy and by-election arose be suppressed? And how then could the by-election even be announced?

 

by Andrew Geddis on February 11, 2015
Andrew Geddis

@mickysavage,

I guess we'll find out with question eight today? But I can't see how what the Speaker said yesterday should affect questions solely about the police's investigation.

[Update: Turns out no - they found another way to avoid answering the questions!]

by Graeme Edgeler on February 11, 2015
Graeme Edgeler

if a judge suppresses all details of a criminal case, in what sense is the discussion of a police investigation not a detail of that case? It would ordinarily be mentioned in the statement of facts, and will get referred to in any evidence filed.

The existence of police investigation would, to me, be suppressed in any instance where blanket suppression orders suppressing all details of a case were issued.

by Pete Sime on February 11, 2015
Pete Sime

@Graeme but how is it known to a third party that the suppression order from a case is linked to a particular investigation?

If all the public gets is that somewhere in NZ a case against some unnamed person has been placed under a suppression order, wouldn't that mean they are prevented from discussing all criminal investigations? Because as far as the general public is concerned that order could apply to any Tom, Dick, or Harry. And all they have is inference, allusion and innuendo.

by Ross on February 11, 2015
Ross

Are overseas based websites subject to the same restrictions? Hypothetically, let's say that numerous overseas websites were to discuss cases here which involve name suppression and suppression of other details. In other words, the population here could have easy access to the suppressed details....could we then expect the Speaker to tread so carefully?

by Ross on February 11, 2015
Ross

"@Graeme but how is it known to a third party that the suppression order from a case is linked to a particular investigation?"

That seems a valid question. In the case of the prominent Central Otago man in his 60s who enjoys name suppression, the obvious question is: how many such men are there in Central Otago and is it fair that all of them get tarred with the same brush?

by Andrew Geddis on February 11, 2015
Andrew Geddis

The existence of police investigation would, to me, be suppressed in any instance where blanket suppression orders suppressing all details of a case were issued.

True, if the order really were along the lines of "don't say anything connected in any way at all to this case". But we can be pretty sure that this isn't what the order said, because of previous reporting that a case does exists (without in any way connecting it to any identifiable individual). That being so, isn't it more likely that the order simply relates to not publishing anything that may identify the defendant in it (or, perhaps, even that the particular defendant has been charged with anything at all)? So people can publish that X was under police investigation (and ask who knew that fact when), and they can publish that there is a case in existence with an un-nameable defendant - but they can't say what has happened as a result of the investigation into X, or link the X's investigation in any way to the case with the un-nameable defendant (as doing so would reveal X as the defendant in the case). Which is what the Speaker did ... wasn't it?

by Bruce Thorpe on February 12, 2015
Bruce Thorpe

On the principle that justice must be seen to be done, I look forward to the day this country reviews the concept of suppression orders.

A few years back in a trial of a high ranking police officer, there was a complete publication ban on the convictions of his co-defendants, but the court heard evidence on the not guilty verdicts in cases based on the key witnesses evidence. That senior officer was found not guilty.

In a current investigation, both the prime minister, and an m.p. at the time, made public statements providing significant information on the identity of any victim of that complaint.  

It would seem there are one or more cases afoot where justice is very unlikely to be seen.

by Rich on February 12, 2015
Rich

I look forward to the day this country reviews the concept of suppression orders

It did:

http://www.lawcom.govt.nz/sites/default/files/publications/2009/11/Publication_149_453_R109.pdf

http://www.justice.govt.nz/courts/modernising-courts/documents/cpai-documents/cpai-consultation/Fact%20sheet%209%20-%20suppression_2.pdf

Do you think the identities of sexual abuse victims should be made public? What about where revealing the identity of their alleged abuser (e.g. a family member) would allow the victim's identities to be inferred?


by Lee Churchman on February 12, 2015
Lee Churchman

Do you think the identities of sexual abuse victims should be made public? What about where revealing the identity of their alleged abuser (e.g. a family member) would allow the victim's identities to be inferred?

In general, no. If – and this is purely hypothetical – it were someone like the Prime Minister or the Archibishop of Canterbury who stood accused of a sexual assault, the public right to know might well outweigh the right to anonymity, depending on the case. Another sort of case – again purely hypothetical – would be where a cabinet minister is accused of a sexual assault. If the accusation was immediately reported to the PM under the "no surprises" rule and PM suspended that minister immediately upon learning of the accusation – and this is what any reasonable person would expect the PM to do – then I would think that the public had no right to know about the nature of the charges, because the accused would have been immediately removed from his or her position. There would be no question about the integrity of the government. On the other hand, if the PM were made aware of the accusation and did not suspend the minister, then there is an obvious public interest in knowing why the minister was not suspended and what the charge was, because the integrity of the government has been brought into doubt, and that matters a great deal more than anonymity for a particular victim. We can't allow a society where people accused of serious criminal offences are allowed to continue in public office.
by Bruce Thorpe on February 13, 2015
Bruce Thorpe

Do you think the identities of sexual abuse victims should be made public? What about where revealing the identity of their alleged abuser (e.g. a family member) would allow the victim's identities to be inferred?

 I think publication should be the norm, but the complainant should have adequate rights to seek suppression. In practice I believe the accused and the larger family are much more likely to benefit from suppression, and the air of secrecy encourages a sense of guilt in the victim.I applaud the courage of those who ask for their abuser to be publicly identified, and suspect most victims are more likely to be supported by peers and the general public.
by stuart munro on February 15, 2015
stuart munro

The unspeakable acts of he-who-is-not-to-be-named, formerly matter for Lovecraft and Clark Ashton Smith, are now realised in government by the Gnats - they're like a bad horror movie.

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