Parliament's privileges committee is meeting on Thursday this week to discuss a High Court judgment after a complaint from former deputy prime minister Winston Peters that it was unlawful.
The case could mark a new development in the ongoing tension between Parliament and the courts, which arises when judges assert power beyond that intended by Parliament.
The judgment was referred to the privileges committee by Speaker Trevor Mallard.
The privileges committee, chaired by Attorney-General David Parker, is holding its first meeting on the matter on Thursday afternoon in private session. Mallard does not sit on it. It usually comprises senior and/or legally trained MPs.
The judgment at issue, by Justice Jan Doogue, is on a defamation case taken by Bryan Staples against Richard Freeman for comments made on Facebook in 2014.
She found for Staples, who helped homeowners with unresolved claims from the Canterbury earthquakes and ordered Staples be paid $350,000.
But in the judgment, issued last month, Doogue examines a speech made in Parliament by former deputy prime minister and New Zealand First leader Winston Peters in 2014 – a speech which is critical of Staples.
She sets out Peters' speech in full and declares that it is also defamatory of Staples, but concludes that because he made the comments under parliamentary privilege, he was protected from legal action.
The trouble is that Article 9 of the Bill of Rights 1688, which is part of New Zealand law, says "the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament."
It is part of the "comity" between the courts and Parliament where each is expected to respect the other's and not to encroach on the other's domain.
But to ensure there could be no doubt about how the courts should treat proceedings of Parliament, the New Zealand Parliament passed a law in 2014, the Parliamentary Privilege Act, codifying that part of the Bill of Rights, The statute says, under a subheading Facts, liability, and judgments or orders:
In proceedings in a court or tribunal, evidence must not be offered or received, and questions must not be asked or statements, submissions, or comments made, concerning proceedings in Parliament, by way of, or for the purpose of, all or any of the following:
(a) questioning or relying on the truth, motive, intention, or good faith of anything forming part of those proceedings in Parliament:
(b) otherwise questioning or establishing the credibility, motive, intention, or good faith of any person:
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament:
(d) proving or disproving, or tending to prove or disprove, any fact necessary for, or incidental to, establishing any liability:
(e) resolving any matter, or supporting or resisting any judgment, order, remedy, or relief, arising or sought in the court or tribunal proceedings.
To include a parliamentary speech in a court judgment and to declare it defamatory appears to be a prima facie breach of the act.
Winston Peters, when contacted for comment this week on the privileges case, said he had referred the judgment to the Speaker.
He had also written to Justice Doogue suggesting she may not have received the right advice when drawing up her judgment and asked her to set it aside.
Neither Justice Doogue nor Chief Justice Helen Winkelmann would make any comment on the judgment.
The Parliamentary Privilege Act was Parliament's response to previous court cases (Gow vs Leigh and Buchanan vs Jennings) and in which Parliament believed the courts had got it wrong, and issued judgments contrary to what Parliament intended.
In the matter of Gow vs Leigh, the act corrects a Supreme Court ruling that would have allowed officials subject to the defamation act when giving ministers advice to carry out their jobs, such as answering questions in Question Time or at a select committee.
Parliament believed that unless that unless the correction was made, it would have had a chilling effect on ministers receiving free and frank advice from officials.
The expansion in statue of what Article Nine of the Bill of Rights means in New Zealand law was a response to a case in which the courts allowed a defamation case on the basis of an MP having said outside the House that he did not resile from a statement he had made (under parliamentary privilege) inside Parliament.
Former attorney-general Chris Finlayson shepherded the Parliamentary Privilege Bill through the House but with the full support of his deputy, and successor, David Parker.
Parliamentary privilege is not about individual privileges but relates to a set of rights, including free speech within the House, without which MPs collectively could not carry out their work.
There is plenty of debate about whether an MP individually has used parliamentary privilege responsibly or fairly and Peters has been subject to much debate. But the law is very clear that the courts cannot question what is said in the House.
In New Zealand, Parliament is supreme. The courts do not have the power to strike down laws as happens in the highly politicised United States Supreme Court - or to ignore laws.
Parliament makes the law and the courts interpret it and if Parliament does not like the way the courts have interpreted it, it changes it.
The privileges committee needs an explanation from the judiciary on the Doogue judgment without hauling the judge before it – that would certainly breach the principle of comity.
The least the committee can do is to call Winston Peters and constitutional lawyers to examine whether this is a one-off or not.
But it needs to be satisfied as to whether this was an error by a judge or whether there is a loophole in the law that needs closing in setting clearer boundaries for the judiciary.