If it is so wrong, Rodney, fix it yourself

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.


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.