Rodney Hide thinks some MP should bravely do a pointless thing that he himself is not quite courageous enough to try.

In today's Herald on Sunday, Rodney Hide repeats his call for some MP to use parliamentary privilege to reveal the identity of a "prominent" New Zealander granted name supression after last year being discharged without conviction in the Dunedin District Court on an indecency charge. Here's what Hide says:

I thought [National Party MP Maggie Barry] would break the suppression order by naming the predator in Parliament.

But, of course, any MP can do that. None contacted me. The worry is that once offenders start being named, where will it end? Who would be implicated? That's it. That's our "rape culture". Parliament's suppression laws and MPs' silence sanction it.

I'm going to pass over the claim that "rape culture" in NZ amounts to no more than the factors that Hide identifies (it doesn't), and instead suggest a couple of pretty good reasons why no MP has taken up Hide's challenge.

First of all, any MP who does what Hide calls for would be committing a breach of Standing Orders:

112: Matters subject to judicial decision

(1) 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.

Now, an MP could ask the Speaker for permission to reveal this miscreant's name in breach of a judicial order ... but it's a virtual certainty that the Speaker would say no. Meaning that the MP would have to contravene Parliament's rules in order to do what Hide suggests. And that, in turn, would constitute a contempt of Parliament:

407: Examples of contempts

Without limiting the generality of Standing Order 406, the House may treat as a contempt any of the following:

...

(y) knowingly making reference to a matter that is suppressed by an order of a New Zealand court, contrary to the Standing Orders, in any proceedings of the House or of a committee.

Which in turn would open up the MP to possible sanction by the House. So what Hide is calling for isn't a risk-free action by an MP. They may suffer no legal consequences for breaching the order, but they certainly couldn't expect to escape all consequences for doing so.

Now, of course, maybe Hide would say that some MP nevertheless ought to be brave enough to risk incurring such sanctions. (Of course, if it's just a question of bravery, he himself could always be a martyr for the cause and publish the name of the miscreant in question. If his editor won't let him do so (boo - coward!), then there's always that website run by the crazy conspiracy theory guy who boldly claimed he was single-handedly going to prevent name suppression being applied in any New Zealand case ever again ... remember that?) And let's say that some MP is brave enough to take up Hide's challenge. Then the man's name can be freely reported by everyone, because anyone can repeat anything said in Parliament without legal consequences. Right?

No. Not right. In fact, wrong.

Those involved in parliamentary proceedings do possess an absolute defence against any legal consequences for what they say during such proceedings. Thus, an MP could not be charged in court for breaching the suppression order. But a person who reports on what the MP has said? Well, he or she has no equivalent legal protection - meaning that there is no difference between a person reporting what an MP has said in the House about a suppressed person's identity and ringing up Rodney Hide and reporting what he tells them about it.

Which means that, for all intents and purposes, an MP revealing this miscreant's identity in the House would be an empty gesture, as no-one else could safely publish what the MP said without running the risk of being brought into court to answer for doing so. And if a tree falls in the woods with no-one to hear it, does it really fall?

This state of affairs may be surprising to some (and Parliament is currently moving to remedy it), but it really shouldn't be to Hide. You see, back in 2009, Parliament's Privileges Committee issued a report (pdf) that examined the issue of MPs breaching suppression orders during parliamentary proceedings. That report noted that:

Under the present law, there is probably no protection against civil or criminal liability (beyond liability in defamation) for:

• live or delayed broadcasts of the proceedings of the House of Representatives

• published reports of the proceedings of the House in the print media

• published extracts from, or summaries of, papers published by or under the authority of the House.

Furthermore,

The evidence from the Media Freedom Committee of the Commonwealth Press Union (New Zealand section) suggested that the media incorrectly believed that it had protection from actions such as contempt of court or breach of statutory no-publication provisions when it reported anything said in the House, provided the report was fair and accurate. This is not the current legal protection.

But I guess it was a bit much to expect Hide to remember what the Privileges Committee had to say while he was still a member of Parliament and the leader of the fourth largest political party in it. It's just that his faulty memory has led him to call on MPs to embark on a wonky, and ultimately fruitless, jihad. Which is, I suppose, quite fitting for a Herald on Sunday columnist.

Comments (12)

by Nick Gibbs on July 20, 2014
Nick Gibbs

Of course while Rodney has lacked the courage to name this prominent NZer, others have gone out of their way to direct the public to sites which do name the individual. Is that illegal?

by Andrew Geddis on July 20, 2014
Andrew Geddis

Of course while Rodney has lacked the courage to name this prominent NZer, others have gone out of their way to direct the public to sites which do name the individual. Is that illegal?

I'm certain enough that it is that I'd ask commentators here not to do likewise!

 

by william blake on July 20, 2014
william blake

And illegal for good reason. After following the trail left in the ODT, I found a name and a face. So what? was this the name and face of someone who had just pissed some journalist off ?

That said I'm not a fan of automatic name suppression, if one has more of a reputation to loose than some others, then I think one should look after it more assiduously. 

by william blake on July 20, 2014
william blake

It was the predictive text, its fast and loose.

 

by BeShakey on July 21, 2014
BeShakey
That said I'm not a fan of automatic name suppression, if one has more of a reputation to loose than some others, then I think one should look after it more assiduously

Automatic name suppression in NZ is for victims of certain sexual offences and child victims and child witnesses. Sometimes the details that need to be suppressed include the name of the offender (e.g. there isn't any point suppressing the name of a child who was sexually abused by a parent, but revealing the name of the parent), but the whole point is to protect the victim.

Given you 'aren't a fan' of automatic name suppression because the beneficiaries of it should look after their name more assidously, do you have any helpful suggestions on the types of things children who are raped could do to deserve to have their details suppressed?

by william blake on July 21, 2014
william blake

If you had been reading about this case you would know that the perpetrator changed his plea to keep his name suppressed and that the victim wanted it publicised.

 

by Andrew P Nichols on July 22, 2014
Andrew P Nichols

If anyone who is interested doesn't know by now, they aren't looking very hard...

by BeShakey on July 22, 2014
BeShakey

If you had been reading about this case you would know that the perpetrator changed his plea to keep his name suppressed and that the victim wanted it publicised.

Your comment was about automatic name suppression. Automatic name suprression is only available in the cases I described. So again, do you have any helpful suggestions on the types of things children who are raped could do to deserve to have their details suppressed?

by Ross on July 22, 2014
Ross
Beshakey Children are victims in many crimes. Some children are murdered, yet their names are not suppressed. Moreover, innocent people are typically not afforded name suppression. But in the case in question, the victim is an adult woman.
by Rab McDowell on July 24, 2014
Rab McDowell

I think all of you, Andrew included, have missed the point here.

There is a fair chance that all the commenters here know who the "prominent New Zealander" is. If you don't then five minutes sitting in front of the computer you are reading this on and you can find out. I just did.

Was that illegeal. Probably. But I and many others have done so.

What then is the value of a law that is so restrictive and is empowered with serious sanctions but can be so easily circumvented.

 

by Andrew Geddis on July 26, 2014
Andrew Geddis

There is a fair chance that all the commenters here know who the "prominent New Zealander" is. If you don't then five minutes sitting in front of the computer you are reading this on and you can find out. I just did.

True. So did I. But it's still a stretch to say all of us know it (or are interested enough to go looking for it. Case in point - David Cunliffe clearly didn't. This would have been quite different had the media been free to report on the case.

Was that illegeal. Probably.

No. It wasn't (assuming you found the name from the same Australian website that I did). "Suppression orders" are actually orders not to publish the person's identity - they don't make it illegal to know or find it out. And obviously NZ law doesn't apply to people not in NZ.

What then is the value of a law that is so restrictive and is empowered with serious sanctions but can be so easily circumvented.

One response might be to ask whether the case at hand is "typical". Sure, you can easily find out who this person is, because of who they are. But is this true of most people who have their names suppressed"? There's a lot of cases where this takes place, but because they are non-entities, no-one from outside NZ cares.

by Ali Romanos on July 30, 2014
Ali Romanos

"Rodney Hide thinks some MP should bravely do a pointless thing that he himself is not quite courageous enough to try."

Spot on, Andrew. Those Standing Orders excepts are intriguing.

As you say, accessing the information -- even from a NZ-based site -- is not illegal. However, referring a link to others would be an actionable republication... if you're caught... 

I think this example is a good demonstration that keeping suppressed information completely under wraps -- especially where prominent people are concerned -- is very problematic in the new-media environment, and particularly with the growing use of anonymous and overseas-hosted/based websites.The fact is that people are inherently nosey and are drawn to unearth secret information, and Google "suggestions" are far too 'helpful' to keep such info being suppressed.

Speaking generally, though, I think the fact that suppression orders are adhered to, by and large, by mainstream media is the important thing to prevent them being materially undermined. Given that mainstream media is still most people's main source of news, most disinterested people will never learn of the suppressed info. People who are desperate to find out the suppressed info have always been able to attend Court trials and such to learn the suppressed names, etc.

A real issue for me is whether if bloggers are allowed to access chambers hearings -- where such information is often revealed -- they will be responsible with the information they learn. One blogger in particular.  

Rodney's case is somewhat an anomaly because though he doesn't identify the person per se, he asks enough questions of readers to get curious parties firing up Google.

As to the issue of automatic suppression orders, apart from the fact that william black walked himself into a bit of a hole -- for which BeShakey was only too happy push him  deeper -- the important point has been made: in sexual cases, it's the victim's identity which is being protected; the fact that the perpetrator's identity is also protected is a corollary. Unfortunate? Maybe, but think of the interest that's being protected. Is it worth exposing a victim to humiliation so that the perpetrator can be publicly vilified?

Save for the suggestion about the adult victim in the present case wanting the perpetrator's name publicised (which I don't have knowledge of and so won't comment), I don't think Ross' point really rings true -- sexual abuse is obviously an extremely private matter. In fact, to say that someone has been raped was held to be defamatory in England in 1934, and again in Australia in 1986 (under the "shun or avoid" limb of defamation).  By contrast, to say someone has been murdered is not defamatory -- you can't "defame" the dead.

Interesting post, Andrew.

 

 

 

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