The Opening Skirmish Ended, Let the Battle Proper Commence

MPs who say things in Parliament are absolutely protected from any legal consequences. The officials who tell them what to say aren't. Who'd be a public servant?

Erin Leigh's ongoing journey through the New Zealand legal process has taken another step towards some sort of resolution.

Erin who? Her what? My my, how soon our memories fade!

Back in 2007, Erin Leigh was at the center of one of those political maelstroms that sweep across New Zealand's small horizons, before being shunted swiftly aside by the next news event. In brief, she left her job as a PR person for the Environment Ministry under somewhat contested circumstances.

On her account, she resigned in protest at the (alleged) politically-motivated hiring of a Labour Party flunky, Clare Curran (now MP for South Dunedin). But according to the Environment Minister, Trevor Mallard, this hire was required to fix up Erin Leigh's sub-standard work - one of several examples of general incompetence on her part. We know this was the Minister's view because he stood up in the House of Representatives and said so.

Understandably, Erin Leigh was less than thrilled to be publicly described as incompetent. So she decided to do what anyone who believes their reputation has been untruthfully and unfairly besmirched would do ... provided they have the time and money, of course. She sued for defamation.

But she faced an immediate problem. Because Trevor Mallard's statement was made in the course of answering a question put to him in the House, it is protected by absolute privilege. That means that no legal consequences whatsoever can flow from his words - so he cannot be sued for defamation based on what he said in the House alone.

The legal basis for this absolute privilege lies in Article 9 of the Bill of Rights 1689, while the justification for it lies in the assumption that allowing all those who participate in parliamentary proceedings to speak free from any concerns about potential legal consequences will deliver a better form of governance for all. Yes, this may result in some individuals suffering harm when their reputations are untruthfully and unfairly maligned ... but that harm is a price worth paying for the greater good.

Note, however, that the freedom is just from legal consequences. There may be political consequences for anything said in the House. An MP who called for the genocide of Chinese immigrants could expect some fallout for what she or he said, even if the racial hate speech provisions of the Human Rights Act 1993 would not apply.

Equally, the House itself may respond to things said during its proceedings. For example, knowingly making an untrue statement to the House (or allowing a known untrue statement to stand uncorrected) could be treated as a contempt of Parliament ... which is perhaps why a month after his original statement, Trevor Mallard made this personal explanation to the House apologising to Erin Leigh.

However, in terms of Erin Leigh's desire to get legal vindication for the harm her reputation has suffered, the absolute privilege enjoyed by Trevor Mallard is an insurmountable hurdle to her suing him directly.

What, then, is to be done? Well, assumedly Trevor Mallard didn't decide to get up and call Erin Leigh incompetent on a whim. He must have had some basis for doing so. So what was that basis?

It turned out he had been briefed on the issue by a public servant, Mr Gow. In an oral briefing and in written advice, Mr Gow apparently indicated that Erin Leigh's professional abilities were not up to scratch. Based on this advice, Trevor Mallard then made his statement to the House.

So, if Erin Leigh can't sue Trevor Mallard directly for what he said, can she sue Mr Gow for providing the information that underpinned Trevor Mallard's claims? The Supreme Court has just answered that question, some 4 years after the event.

In short, the Court has said that Mr Gow can be sued. He had tried to get the case thrown out on the grounds that the absolute privilege protection afforded to Trevor Mallard when speaking in the House also extended to his actions in advising the Minister on what to say. (Interestingly, he was supported in this argument by the Speaker of the House.)

However, the Court dismissed this argument, on the grounds that absolute privilege only attaches to those communications that are "necessary for the proper and effective functioning of the House of Representatives". And because it is not "necessary" for Parliament's activities that public servants be able to tell porkie-pies to Ministers or others who intend to speak in the House without facing any sort of potential legal consequences for that behaviour, they don't get the protection.

So the case against Mr Gow can go ahead, as there is nothing in law to stop it. But ... because in law there always is a "but" ... this does not mean that Erin Leigh will win her case.

Even if Mr Gow's briefings to Trevor Mallard contained some inaccuracies - which appears likely, given this - he enjoys the protection of "qualified privilege". This permits a person who is communicating to another who has a right or a need to know the relevant information to pass on an untruth about another, provided the speaker is not motivated by ill-will or takes improper advantage.

Obviously a public servant briefing a Minister on a question the Minister must answer in the House is communicating information that the Minister has a right or need to know. Which means that if Erin Leigh is to be successful in showing that the briefing defamed her, she will have to do more than show the briefing contained falsehoods. She also will have to prove (on the balance of probabilities) that Mr Gow was motivated by "ill will" towards her, or that he "otherwise took improper advantage" of the opportunity to brief the Minister.

This isn't an easy test to meet. And what is more, there's another problem with her case. What harm was caused by the briefing to the Minister?

Well, obviously it caused Trevor Mallard to get up and make a statement in the House that Erin Leigh is incompetent. But remember, such statements are protected by absolute privilege ... so you can't point to it as evidence of "harm", as this would be to impugn its content. Nor can you point to media reports of Trevor Mallard's statement as evidence of harm, as this would also impugn the content of his statement.

So the only thing that counts as "harm" here is the diminished view that Trevor Mallard may take of Erin Leigh's abilities as the result of the briefing. And even if the briefing had such an effect, so what? How do you put a dollar value on a Minister of a government department for which you no longer work thinking you are not that good at the job you no longer do?

However, I suspect money isn't really the thing at issue here. There's a point of principle and personal pride at stake. Which means that this case may have a bit to run yet ...

[Update: Or not. I see here (via here) that Erin Leigh has dropped the case as she "has been caught up in the Christchurch earthquakes and felt financially unable to carry on the legal battle."]