Factual and Procedural Background
The Appellant, a former cabinet minister in the Fourth Labour Government of New Zealand, issued libel proceedings against the Respondent, a national broadcaster, over a televised programme that alleged the Appellant had engaged in a wide-ranging conspiracy to sell state-owned assets for the benefit of certain business leaders and to secure political donations.
The Respondent denied the defamatory meanings and, in the alternative, pleaded justification in an amended defence that extended to 104 pages and contained 476 particulars. Some particulars relied on speech and legislative activity within the House of Representatives. The Appellant successfully applied before Judge Smellie to strike out those portions said to infringe parliamentary privilege under Article 9 of the Bill of Rights 1688.
The Respondent appealed. The Court of Appeal of New Zealand upheld the striking-out order but, on its own motion, stayed the entire action unless the House and affected members waived privilege. The Appellant appealed to the Judicial Committee of the Privy Council. The Respondent, with no formal cross-appeal, nevertheless invited the Board to revisit the privilege ruling.
Legal Issues Presented
- Whether the Respondent’s pleaded particulars—relying on parliamentary speeches and the passage of legislation—would, if pursued, “impeach or question” proceedings in Parliament contrary to Article 9 of the Bill of Rights 1688.
- If Article 9 is infringed, whether the action should nevertheless be stayed on the ground that the exclusion of this material makes a fair trial impossible.
Arguments of the Parties
Appellant’s Arguments
- Article 9 bars any court inquiry into motives, veracity or propriety of parliamentary speech or proceedings, regardless of who brings the claim.
- The Respondent retains ample non-privileged material to defend the action; therefore a stay deprives the Appellant of access to justice.
Respondent’s Arguments
- Article 9 should not prevent a defendant from using parliamentary material “as a shield” in libel proceedings brought by the very member who uttered the words.
- Alternatively, if privilege applies, the exclusion of key evidence makes a fair trial impossible and the proceedings should be stayed.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Burdett v. Abbot (1811) 14 East 1 |
Courts will not scrutinise parliamentary proceedings. |
Reaffirmed as part of the “wider principle” supporting Article 9. |
| Stockdale v. Hansard (1839) 9 Ad & E 1 |
Non-intervention in legislative proceedings. |
Cited to illustrate historic consistency of the rule. |
| Bradlaugh v. Gossett (1884) 12 QBD 271 |
Parliament alone judges its internal matters. |
Relied on to support the absolute nature of Article 9. |
| Pickin v. British Railways Board [1974] AC 765 |
Statutory validity cannot be questioned by courts. |
Used to emphasise judicial restraint towards Parliament. |
| Pepper v. Hart [1993] AC 593 |
Permissible use of Hansard; approval of Johnson-Smith. |
Cited to distinguish between historical reference and impermissible “questioning.” |
| R. v. Murphy (1986) 5 NSWLR 18 |
Narrow reading of Article 9 (allowed challenge to committee evidence). |
Expressly rejected as inconsistent with Commonwealth practice and principle. |
| Church of Scientology v. Johnson-Smith [1972] 1 QB 522 |
Statements in Parliament cannot be impugned in court. |
Approved; contrasted with R. v. Murphy. |
| Comalco Ltd v. ABC (1983) 50 ACTR 1 |
Same principle as Johnson-Smith. |
Used to reinforce rejection of R. v. Murphy. |
| Wright & Advertiser Newspapers Ltd v. Lewis (1990) 53 SASR 416 |
Privilege said not to apply when member sues. |
Disapproved; Board held privilege cannot be waived by individual member. |
| Adam v. Ward [1917] AC 309 |
Qualified privilege where statements echoed outside Parliament. |
Distinguished; no challenge to parliamentary statements involved. |
| News Media Ownership v. Finlay [1970] NZLR 1089 |
Defamation involving parliamentary conduct. |
Considered unsound on privilege point. |
| Derbyshire CC v. Times Newspapers Ltd [1993] AC 534 |
Public interest in freedom of political speech. |
Acknowledged but subordinated to Article 9. |
| Rost v. Edwards [1990] 2 QB 460 |
Scope of Article 9 and use of Hansard. |
Questioned; possible confusion noted. |
Court's Reasoning and Analysis
1. Scope of Article 9. The Board held that Article 9, read with the long-standing constitutional principle of non-intervention, prevents any court from examining motives, veracity or propriety of parliamentary speech or proceedings. This protection is institutional; it cannot be curtailed because a member is the plaintiff.
2. Rejection of Narrow or Conditional Privilege. The Board rejected the approaches in R. v. Murphy (narrow liability-based test) and Wright (privilege lost when member sues). Parliament’s collective privilege cannot be overridden by individual litigation choices.
3. Permissible Historical Reference. While questioning is barred, mere proof of what was said or that legislation was enacted is allowed to establish historical facts. The impugned defence, however, went further by alleging that parliamentary acts were dishonest elements of a conspiracy; this was impermissible and properly struck out.
4. Stay of Proceedings. A stay is an exceptional remedy justified only where exclusion of privileged material makes a fair trial impossible. The Board found the struck-out material peripheral: it related mainly to secrecy allegations and implementation through legislation, whereas the central libel focused on conduct outside Parliament. The Respondent retained “the overwhelming majority” of its justification particulars. Accordingly, justice did not require a stay.
Holding and Implications
HELD: Parliamentary privilege under Article 9 bars the Respondent from alleging that parliamentary statements or legislation were dishonest or conspiratorial; the strike-out order is affirmed. The Court of Appeal’s stay of the libel action is SET ASIDE. Costs awarded to the Appellant throughout.
Implications: The decision re-affirms the absolute nature of Article 9 across the Commonwealth, rejects contrary Australian state authority, and clarifies that even when an MP sues, courts cannot entertain allegations impugning parliamentary conduct. Libel defendants may still rely on extensive non-privileged material, but they must frame justification without questioning proceedings in the House. No new precedent was created on freedom of speech; rather, existing privilege doctrine was forcefully restated.