NEW ZEALAND IMMIGRATION SERVICE AGAINST NEW ZEALAND HERALD

Case Number: 984

Council Meeting: JUNE 2004

Verdict: Not Upheld

Publication: New Zealand Herald

Ruling Categories: Privacy

The New Zealand Immigration Service lodged complaints against The Press and The New Zealand Herald, respectively, arising out of both newspapers publishing the name of a man claiming refugee status who had been identified by Mr Winston Peters in the House of Representatives in the course of a Parliamentary debate.

The Press Council’s job is not to set legal precedents. It is primarily to decide ethical issues on complaints received. It therefore accepts the complaints from the Immigration Service to that extent.

It does not uphold the complaints for the reasons now set out.

The central point of the complaints against both newspapers was that publication of the man’s name was prohibited by s129T (5) of the Immigration Act 1987 and is a breach of a claimant’s right to confidentiality. The Service also complained about the tone of the response of the editor of The Press to their first letter of complaint. The response was robust but no more, and this complaint is not upheld.

Section 129T of the Immigration Act states:


“Section 129T. Confidentiality to be maintained –(1) Subject to this section, confidentiality as to the identity of the claimant or other person whose status
is being considered under this Part, and as to the particulars of their case, must at all times, both during and subsequent to the determination of the claim or other matter, be maintained by refugee status officers, the Authority, other persons involved in the administration of this Act, and persons to whom particulars are disclosed under subsection (3) (a) or (b)….

(5) A person who without reasonable excuse contravenes subsection (1), and any person who without reasonable excuse publishes information released in contravention of subsection (1), commits an offence.”

There was a further and separate complaint against The New Zealand Herald in that it had published the name after there had been a court order prohibiting publication of the identity of the person.

Both complaints against both newspapers can conveniently be dealt with in one adjudication.

The facts are these. There was a debate in the House on immigration issues on 12 November 2003 and in the course of that debate Mr Peters disclosed the name of one individual who had on arrival in New Zealand claimed refugee status at the border. Next day on 13 November 2003 both The Press and The New Zealand Herald published reports of the debate and both included the name of the claimant. There is no complaint about either the accuracy or fairness of the respective reports, only that the name was published.

After a traveller claims refugee status there is a procedure that follows to deal with the claim, but that does not concern us here, except that on 19 November 2003 when the named person appeared in the Manukau District Court the judge made an express order suppressing publication of the identity of the person. By this time both newspapers had published reports of the 12 November parliamentary debate that included the name, and application by claimant’s counsel in seeking the order had clearly been influenced by the prior publication. Also on 19 November 2003 there was another debate in the House when Mr Peters again repeated the name of the claimant for refugee status. Only The New Zealand Herald published the name in the course of reporting the further debate of 19 November. The complainant alleges this publication on 20 November 2003 amounted to contempt of court. In a separate part of the same edition The Herald on 20 November 2003 reported the court proceedings and the fact of the suppression order having been made. The Press in its report of the further debate on 19 November and the court proceedings did not repeat the name of the claimant.

The Press in its response to the complaint stated it was not prevented from publishing the report of the proceedings in Parliament by s129T (1) and (5). The Press said it “had more than a reasonable excuse for publishing the statements by Mr Peters. Accurate reports of parliamentary debates have never been objected to in New Zealand.”

The New Zealand Herald takes the position that the Press Council has no jurisdiction to entertain the complaint made by the Service and says that no breach of the Council’s Statement of Principles has been named. That is true, but the objection is covered by the Preamble to the Statement, which is part of the Principles: “A complainant may use other words, or expressions, in a complaint, and nominate grounds not expressly stated in these Principles.”

Close analysis of section 129 T was made in the Council when it received the response of the editor of The Press. The preliminary conclusion was that the defence would succeed, but as it was a question of statutory interpretation the Council sought the opinion of Mr W.M. Wilson QC which on this point was as follows:

“Sub-section (1) does not impose a blanket prohibition on any disclosure
by any person of the name of the applicant. To the contrary, the sub-section
specifically provides that it is only those within a series of specified categories
(Refugee Status Officers, the Refugee Status Appeal Authority, others involved in the administration of the Act and those supplied with information under sub-section (3a) and (b) who are subject to the obligation of confidentiality. The newspapers which published the name of the applicant
in question do not come within any of these categories and, accordingly section 129T has no application to them.”

That is not the end of the matter for then the Council must go to sub-section (5) to decide whether the newspapers had a reasonable excuse for publishing the name. Whilst acknowledging this was a matter for the Council, Mr Wilson was of the opinion that as a matter of law an accurate report of the Parliamentary proceedings could constitute a reasonable excuse for the purposes of s129T (5). In the circumstances of publishing an accurate report of the debate in the House the Council finds that was a reasonable excuse within the terms of the statute and therefore no breach was committed in publishing the name.

The position in regard to the contempt of court issue of publishing the name following a specific court order is more complex. This part of the complaint relates only to The New Zealand Herald and its report of 20 November. The Press never published the name after the court order of 19 November 2003, but the Herald did so on 20 November 2003.

Before laying the complaints with the Press Council the NZIS had apparently asked the Solicitor General to prosecute The New Zealand Herald for contempt. In the complaint against The Herald the Service said: “ Legal advice is that in such circumstances the reporting of Mr Peter’s comments amount to a prima facie case of contempt.” The supplier of this opinion was not expressly named. However a few sentences on from that remark the Service said: “The Crown Law Office have advised that contempt prosecutions are rare and reserved for the most serious of breaches. In the circumstances they have advised that they do not intend to proceed with prosecution in this case.” There is an ambiguity in the way this has been made part of the Service’s complaint to the Press Council against The Herald. It is unclear which legal adviser said the “comments amount to a prima facie case of contempt” Clarification was sought from the Service about these statements but it refused to supply verification claiming legal privilege. It seemed to the Press Council that the Service had already waived privilege when it made the opinion of the Solicitor General part of its case to the Press Council. In the circumstances it is unclear what the exact position of the Crown Law Office was and therefore it must be put to one side for our purposes.

Mr Wilson’s opinion was that the law is uncertain as to how any conflict between the legislature and the courts is to be resolved in a situation where there is an accurate publication of what was said in Parliament that could otherwise amount to a contempt of court. The uncertainty is reflected in this country’s leading text on media law, Burrows and Cheer’s Media Law in New Zealand (4th ed.) at page 242:

“ A matter yet to be determined is the effect of parliamentary privilege on name suppression orders. On several occasions Members of Parliament have openly stated in the House the names of persons whose names have been suppressed by a court. Moral considerations aside, there is no doubt that those MPs are protected from legal action by the absolute privilege of Parliament. But there is much greater doubt whether the media are safe in publishing such statements made in Parliament. The media's qualified privilege to report Parliament may have no application outside the law of defamation. While direct broadcasts of such statements are probably protected, delayed reports in the media may be more at risk.”

The starting point for the consideration of the relationship between Parliament and the Courts requires examination of art 9 of the Bill of Rights 1688, which is in force in New Zealand and states:

Freedom of speech – That 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.

Relevant authority is the reasoning of Lord Denning M.R. in Attorney-General v Times Newspapers Ltd [1973] 1 All ER 815 at 823 which mentions the Bill of Rights and quotes art 9, and on the same page goes on to say: “Whatever comments are made in Parliament, they can be repeated in the newspapers without any fear of an action for libel or proceedings for contempt of court.” This statement of the law was agreed to by Lord Justice Scarman and not referred to when the case went on appeal to the House of Lords.

Another matter for the Press Council to decide is whether the publishing of the name by the Herald on 20 November carried any inference that the motive for publishing the name was to circumvent the court order. The Council finds that no such inference can be made in the circumstances of the publication.

In the absence of direct New Zealand authority the Council considers it prudent to follow the English case. To do otherwise might suggest primacy of the courts over Parliament. The Council will not take that step and leaves it to be decided elsewhere.

The final matter to be disposed of is the point of the newspapers that the complaints of the Immigration Service were lodged a few days after the expiration of the three months from publication specified in the Council’s procedure. The Council decided in a complaint of this importance, and because there was a reasonable excuse on the part of the Service for the delay, it would go ahead and accept the complaints for disposal.

For the foregoing reasons the complaints against both newspapers are not upheld.

Ms Ruth Buddicom and Mr Jim Eagles took no part in the consideration of this complaint.