For 600 years Westminster parliaments have refused to pay the legal costs of members of parliament. Some 15 months after Trevor Mallard defamed a parliamentary staffer by falsely accusing him of being a rapist, the Speaker has sneaked through a rule change. From August, MPs who defame can have the taxpayer pay their legal expenses and any award of damages.
Given the propensity of New Zealand MPs to state reckless and malicious falsehoods, this new entitlement will be very expensive.
The indemnity has not been needed in the past. It is not needed today.
Prebble v TVNZ, a Privy Council decision with which I am familiar, is authority that MPs doing their parliamentary duty have absolute privilege and cannot be impeached by any court.
The new indemnity can only be to cover the situation where an MP is acting outside any accepted parliamentary duty. Why would we do that?
MPs already have freedom of speech in parliament. There needs to a forum where the peoples' representatives can speak truth to power. As it is, MPs too often abuse this privilege.
Truth is a full defence to a claim of defamation. MPs are being given an ability to make false statements such as falsely claiming someone is a rapist. This new indemnity is a license to slander.
No democracy in the world grants MPs the unbridled power to defame.
In parliament there are some checks. Parliament's rules require MPs, when they have made a false statement, to correct the record as soon as possible. While it is rarely done, MPs who abuse their privilege can be referred to the Privileges Committee and be disciplined.
There is no check on this new license to defame. All an MP needs to do to get legal costs and any award of damages paid by the taxpayer is to have the application signed off by the party leader, the Speaker and the head of parliamentary services.
Falsely accusing a junior clerk of rape, ruining his life, knowing within 24 hours the allegation was false but failing to correct the record until after the election is the precedent. Any slander, no matter how egregious, will be covered.
Everyone in the country, including judges and ministers, can have their decisions reviewed by a court except the Speaker. The Speaker's decisions in parliament are unimpeachable. MPs who attempt to question a Speaker's ruling are evicted from the chamber.
The Opposition appear to have never read Erskine May, the authority on parliamentary procedure. Good luck with trying to move a motion of no confidence in the Speaker. Speaker Wall opined that even putting down a motion of no confidence was out of order.
So why was it possible to have a writ of defamation issued against the Speaker without the Privileges Committee instructing lawyers to go to court demanding the writ be struck out as a breach of parliament's privileges? Trevor Mallard was not acting as Speaker when he defamed the clerk; he was acting as the minister in charge of the department that services parliament.
Uniquely in the Commonwealth, our Speaker has two roles: Speaker of parliament and minister of the parliamentary services department.
Only ministers can ask parliament to authorise the expenditure of taxpayers' money, so to fund parliament a minister has to move the motion.
In Geoffrey Palmer's reforms, the department of parliamentary services was established. The Speaker was made a minister able to move the annual expenditure motion.
Ministers do have legal indemnity. When I became a minister I was immediately in court. I inherited my predecessor's court cases.
Ministers are always being sued. Without a legal indemnity the rich and powerful could, by issuing expensive court proceedings, bankrupt ministers and paralyse government.
In undertaking the Palmer reforms it was overlooked that some future Speaker might slander. Parliament normally chooses as Speaker someone known for their rectitude. It did not occur to anyone that some future government would nominate for Speaker a serial muckraker.
In his role as minister the cabinet should have approved the payment of Mallard's legal expenses. It should be now done retrospectively, the Deputy Speakers' sign off for the payment of the Speaker's legal expenses cancelled and the rule change indemnifying MPs for defamation rescinded.
Mallard cannot have it both ways. If he was speaking as Speaker he is covered by parliamentary privilege. If he was speaking as a minister then he is covered by the ministerial indemnity.
As Speaker there is no convention of accepting blame and resigning but there is no entitlement to taxpayer assistance.
The convention of ministerial responsibility does exist. Ministers Curran, Clark and Lees-Galloway took responsibility for their less blameworthy actions and resigned.
By accepting the taxpayers' money, Trevor Mallard has to also accept ministerial responsibility for his actions and resign.