Labour would slash immigration

Andrew Little says that Labour would slash immigration, to the consternation of some on the left. It seems to be an attempt to compete with NZ First for some votes further to the right.

NZ Herald: Andrew Little: Labour will stop ‘tens of thousands’ of immigrants from coming to NZ

Labour leader Andrew Little has vowed to slash immigration by “tens of thousands” of new arrivals but won’t be more specific about exact numbers.

Speaking to Focus after the Government announced a tightening of immigration rules, Little said Labour would go much further in order to give the country a “breather”.

“The commitment I am making is we have to be serious about it, we have to cut immigration. It has got to be in the order of tens of thousands,” Little said.

“And it has got to be immigration that meets the genuine shortage of skills that we’ve got, not just the open slather policy we’ve got right now.”

Asked by how much would Labour cut immigration, Little said he did not have an exact number and flexibility was needed from year to year in order to match the right migrants with skill shortages.

Another sort of policy announcement without any specifics.

He criticised Immigration Minister Michael Woodhouse for not being able to estimate how many people the package of changes announced on Wednesday would keep out of New Zealand.

But he wouldn’t give numbers himself.

This election is shaping up as being a contest of the vaguest policies – trying to sound like something but largely meaningless.

Would another Hagaman trial be conclusive?

The defamation case taken by Earl and Lani Hagaman against Labour leader Andrew little ended in a very inclusive verdict.

The jury found that one comment wasn’t defamatory, one was but they couldn’t decide if ‘qualified privilege’ was an adequate defence, and they couldn’t decide at all on four other claims.

Lani Hagaman has indicated that they would like to have a new trial to sort out the uncertainties over the case and over qualified privilege generally, but that may be dependent on a very sick Earl living long enough.

And NZ Herald editorial says Andrew Little’s defamation action has resonated

Judges and philosophers would struggle to resolve the conflicting principles that faced the jury in the defamation action brought against the Labour Party leader, Andrew Little, by donors to the National Party, Earl and Lani Hagaman.

The jury had to decide not just whether the Hagamans’ reputation was damaged but if so, whether Little’s comments were permissible for someone in his public position. In other words they had to decide which was more important: a person’s right to be recompensed for a false personal slight, or the ability of MPs to raise matters they believe to be in the public interest.

Add to that what responsibilities are involved for politicians.

Something has come out of the inconclusive case so far.

By taking the case as far as she has, Lani Hagaman has stood up strongly for her scruples and those of her ailing husband. She has received a fulsome public apology from Little on the witness stand.

The Labour leader, and perhaps others who are too quick to suppose political donations bring material rewards, ought to be chastened by the lengths the Hagamans have gone to defend their good name.

It is to his credit that he accepted the costs of defending the case and the possibility of damages he might not have been able to afford without mortgaging his home.

It’s difficult to judge what impact the case has had on Little politically. He has been criticised and also supported.

The case has left open the possibility his comment could even be permissible under the privileges of Parliament. MPs have an absolute privilege when speaking in the chamber to impugn the reputations of individuals outside at no risk of a defamation suit. When their words are reported outside the chamber they carry the same privilege on condition the report is accurate and published in the public interest, not malice. Little invoked that “qualified privilege” for his comments outside the House.

The jury has not rejected his defence out of hand. If the Hagamans go back to court for a conclusive ruling, a jury could give MPs greater licence to speak outside Parliament in the public interest.

A jury could give MPs greater license to speak without legal risk, but a different jury could clamp down on loose political lips too.

Given the indecision of this jury, and the setting aside of the excessive award by a jury in the Jordan Williams v Colin Craig case, and the ruling by a judge that the Colin Craig v Cameron Slater trial would be judge-alone, if the Hagamans get to court again their may be no jury involved.

A judge-alone decision is probably the only way of getting a conclusive legal ruling.

This could be tested to an extent next month in Craig v Slater, but Craig used a different type of qualified privilege for his defence in Williams v Craig, the right to ‘ counter-punch’, or to fight back against attacks on him by Williams.

So that will be limited to the lengths people can legally go in waging general political attacks.

If Earl Hagaman dies before going to trial we may not get a conclusive ruling on how protected politicians are against ‘collateral damage’ from them attacking the Government with unfounded accusations.

The Spinoff on Andrew Little

Simon Wilson has a lengthy profile of the Labour leader: A man for some seasons: Andrew Little meets The Spinoff

Will Spring be Little’s season?

Andrew Little may have largely succeeded in uniting his party caucus since becoming Labour leader in late 2014, but he’ll need to find an extra gear or two to have a serious chance of becoming prime minister after September 23. In the third of The Spinoff’s election year interviews with party leaders, Simon Wilson talks to Little, and tries to work out if he has what it takes.

In summary

A decent bloke who has managed to lead in whatever he has become involved in. Who believes in being true to himself and backs his integrity, although that wobbled a bit over his Hagaman attack. Is struggling a bit with a lack of charisma and inspiration. Believes he can make a difference but so far is fairly vague on how he will achieve that.

On message

Labour has a simple message for this election: health, housing and education. Oh, and jobs. They’re going to focus on social policy.

Little has banged on about these things. It seems that every Labour candidate has repeated the boilerplate phrases when announced.

Labour believes the critical issue that will persuade voters to return is if they believe it really will make a difference on social policies.

Andrew Little put it this way: “When I talk to business meetings, the number one issue they’re most concerned about? It’s housing. And after that? Education.”

So, housing, education, health. I asked him about mental health.

“You know,” he said, “in the general meetings I have, the community meetings, that’s the thing that comes up first. Mental health. I’ve started working it into my stump speech.”

But what will Labour do? “We need to find out how big the problem is. We need an inquiry.”

Is it the biggest health issue? “I just don’t know. There’s also the pressure of an aging population.”

Little and Labour have said they will spend more on a range of big budget items, but they won’t spend much more overall.

Changing teaching without changing teachers

What he says is never revolutionary and rarely inspirational and usually it sounds like common sense.

Little wants to sound sensible, who wouldn’t? But he also needs to sound competent and motivational. He needs to make voters believe he has the ability to make the right thing happen. So he told me, “The key to education is teachers,” which is true, but blandly so because no one disputes it. He told me, “The biggest changes will come in education,” which is not so much blandly true as just blather.

One of Little’s and Labour’s biggest problems right now is having little in the way of definitive policy. Everything is waiting to be announced, or is being deferred until after the election, or waiting on an inquiry.

This is big and difficult. Little wants to reform teaching without getting grief from teachers, quite a lot of whom he will be counting on as voters. No minister in recent times has done it but that doesn’t mean it can’t be done.

Especially not National ministers. If anyone can do educational reform without a revolt by teachers it’s Labour. But what would they reform? Teachers seem to like to be politically active about things that don’t involve them having to change.

Housing

“Housing,” he said, “sits at the centre of the inequality challenge.”

Which is true. The New Zealand Initiative, a right-leaning think tank, has argued that inequality in this country has not significantly widened in decades – if you take housing out of the equation. But factor in housing, as we all have to do, of course, and the gap has widened enormously. If you own property you’re probably getting wealthier, at the expense of those who don’t.

But no, Little said, “we have no plans to bring down house prices”. I pressed him on that and he was clear.

He wants to stable the needy without scaring the horses. This seems to be a recurring credibility problem for Labour, they want people to think they can fix everything without being prepared to make hard calls.

No tax cuts

Andrew Little sat at that café table, pointed his knees out and stuck his hands on his thighs, the expansive confident man, and said that was nonsense. “We won’t pull back from our promises,” he said. “There will be no tax cuts. And spending will be phased in.”

That means they will roll out the social programme only as fast as the economy allows, given that they intend, as they did for nine years, to balance the books.

To the chagrin of left wing activists who want rapid social and economic reform.

So, again, if a centre-left government proposes to roll out reforms only inasmuch as they do not upset the country’s existing fiscal settings, which is what centre-right governments do, what is the point of voting for it? Yes, I did ask Andrew Little. Possibly with a little less of the lecture.

He was quick and sharp with his response.

“Three things. One, we’ll review the tax system.” If you earn income you should pay tax on it? Corporates, everybody? No, he didn’t say that. But tax review is a Pandora’s box and Labour is going to open it. Who knows what will come out?

That’s probably what many people think about Labour at the moment. Who knows what will come out before the election or after the election?

“A positive and constructive role for government.” That’s classic social democracy: government is, or should be, on the side of the people. But what will Labour do? Reform the way frontline welfare staff treat their “clients”? Work with local councils on transport policy, give more support to iwi social initiatives, ramp up the campaign against domestic violence, restore the status of the arts? There were no details.

Again, no details.

Is Labour driving away urban liberals? Little said he doesn’t think that’s happening. Party organiser Matt McCarten was more blunt when I asked him about it recently: “Where are they going to go?” he said. “The Greens, that’s where. And that’s fine. Their votes stay on the left.”

But it’s nowhere near that simple. They can choose not to vote. That doesn’t help Labour. They could vote for the Maori Party. For Peter Dunne. Even for National or ACT or NZ First. Politics and vote choices are complex.

Maori Party

Labour and the Māori Party are going at each other so bitterly right now, you’d think it was the main event.

Doesn’t Little want to keep the door open? The Māori Party wants to be a “permanent party of government” and he might need them.

“I don’t see it happening. It’s Greens first, New Zealand First second, and then the rest.”

I said to Little, are you saying that if it comes to it, you would forego the chance to form a government because you don’t want to work with the Māori Party?

“I’m not saying that. But I don’t think it will happen.”

Another thing they are trying to avoid considering.

What does Little think are his skills as leader?

“I’ve drawn everyone together.” That’s true, and if it sounds easy remember he’s the first Labour leader since Helen Clark to do it.

In the Labour caucus perhaps, but it’s far from evident in political social media. In fact division is what is evident.

But it’s only the first requirement, isn’t it? “Yep, that’s the baseline.” He talked about his skill in picking which fights to have. His example, from the week in which we talked, was the vaping debate. Vaping is legal now, but what does Labour think? They never said and probably nobody noticed.

Vaping is a vapid example. Little’s skill in picking fights wasn’t evident in the Hagaman defamation case, and that got a lot more attention than vaping, he was accused of crossing a legal line.

“There are lines not to be crossed. People want to know you won’t do those things.”

And there it was: the heart of Andrew Little. You stay true to yourself. You have political principles to motivate your decisions. And your personality, your way of being in the world, is what it is, so you stick with because that’s how you look yourself in the eye when you’re cleaning your teeth.

He was very confident about these things. He is, generally. Confident of who he is, what he values and what he can do. That’s why he’s a leader.

And yet there’s a problem: the integrity plan isn’t working. Labour is climbing very slowly in the polls and Little himself is stuck.

Labour’s latest attempt to address this has been to promote Jacinda Ardern to deputy leader and promote her alongside Little. It’s risky for a leader to be seem as less popular than their deputy.

He can make a good speech: his state of the nation address this year was a commanding performance and a hint of what he might produce come campaign time. But he is not naturally inspirational. That’s the quality he lacks.

I saw and heard him more or less repeat that speech in Dunedin the following week and it was quite uninspiring. Disappointingly so.

An integrity politician. Do people care?

But Little is probably not seen as having any more integrity than Bill English. And no more charisma or inspiration.

On top of this he has a challenge that his opponent doesn’t. The election is not shaping up as Little versus English.

It is English versus Little and Ardern with Turei and Shaw.

That’s probably why they are promoting ‘change the government’ and not ‘change the Prime Minister’.

Craig v Slater defamation trial to be judge-alone

Slipping beneath my radar yesterday was this news that the Colin Craig v Cameron Slater defamation case would be a judge-alone trial.

NZ City: No jury in Craig, Slater defamation case

A defamation claim by former Conservative Party leader Colin Craig and Whale Oil blogger Cameron Slater won’t be heard before a jury.

Mr Craig is suing Slater and co-publisher Social Media Consultants Ltd over 18 statements made on radio, television and on the blog about Mr Craig’s relationship with his former press secretary Rachel MacGregor.

Slater is counter-suing Mr Craig for two statements made in a press conference and booklet alleging he and the Whale Oil blog were involved in a campaign to force his resignation from the Conservative Party.

A jury had already been summoned for the trial, which is scheduled to begin on May 8, but Justice Christopher Toogood on Tuesday ordered the case be heard by a judge alone.

Slater had sought a jury hearing, while Mr Craig wanted judge-alone.

In his judgment, Justice Toogood said Mr Craig believed the question trail to assist the jury decide the issues could run as long as 100 pages and “the time, effort and expertise required to follow it should not reasonably be required of a jury”.

But Slater’s barrister Brian Henry said the case was not nearly as complex given the direction on legal matters was not controversial and the facts fell within a narrow compass.

Justice Toogood disagreed.

“Arising out of the allegations, 50 possibly defamatory meanings are asserted,” he said.

“The factual background to each of the publications is extensive.”

He said it would be unreasonable for a jury to work through the complex legal background of the case and ordered it be heard by a judge alone.

This is of particular interest because the decision was released on the same day that Katz J released her judgment in Jordan Williams v Craig that ruled that the jury award of damages was excessive and would amount to a miscarriage of justice. Katz J outlined a number of issues that the jury had had problems with or ignored despite her summing up alerting the jury to them.

Craig has said that he won’t choose to allow Katz J to decide on damages, so the only options for Williams appears to be to walk away from the case, to appeal, or to go to a new trial.

If it goes to a new trial then Craig may apply for judge-alone there too. Given the problems with the jury in the first trial, and the decision to order judge-alone in Craig v Slater, there may not be a jury second time round.

Williams will need to weight these things up when deciding what to do from here.

Craig’s and Slater’s legal teams are likely to be reassessing their approach to their cases now.

The jury in the defamation case Hagamans v Andrew Little had problems deciding on complex legal questions a week ago, resulting in a hung verdict. That case may also go to a second trial.

In that case the judge referred to the difficulties with dealing with the overlapping responsibilities of judge (on law) and jury (on facts) over deciding on whether qualified privilege could apply (judge’s decision) and whether there were sufficient grounds (ill will will or unfair advantage) for qualified privilege to be removed as a defence.

Hagamans want retrial, Little wants to campaign

Yesterday Lani Hagaman said that she favours a retrial in her and her husband Earl’s defamation claim against Andrew Little, and she may also appeal the finding on qualified privilege. This may be dependent on how long Earl stays alive.

Andrew Little wants to try to focus on campaigning for this year’s election.

NZ Herald: Lani Hagaman to push ahead with retrial in Andrew Little defamation case

In a statement, Mrs Hagaman said she had been advised the court would automatically arrange for the a retrial after the jury in the first trial was unable to reach a verdict on several of the six claims of defamation lodged by Mr Hagaman.

“While Earl is still alive I believe that it is important that every effort is made to bring his claims to completion, and I intend to do so.”

Mrs Hagaman also expected to appeal Justice Karen Clark’s decision to grant Andrew Little the defence of qualified privilege – a defence Little said was because of his “moral duty” as leader of the Opposition to question the Government.

“Because the jury was unable to reach verdicts on several of Earl’s claims, I am advised that the court now arranges automatically for those claims to be retried.

“The jury also reached a verdict that Earl was defamed by Andrew Little. However, contrary to the finding of the court on qualified privilege, my legal advice continues to be that Mr Little was not entitled to protection by that.

“As this matter remains unresolved, I believe it requires clarification.”

Clarification would help in a legal sense, but neither a retrial nor an appeal will help Little in a political sense.

Labour leader Andrew Little said he had seen Mrs Hagaman’s statement seeking a retrial.

“I have taken every opportunity to resolve this matter and I have faced up to my responsibilities.”

He said his priority now was the election and issues such as housing and health.

“Fixing these problems means changing the Government and that is my focus.

“As this matter could be subject to further court proceedings, I will not be commenting further.”

Little’s political future will depend to an extent on how long Earl Hagaman remains alive.

A retrial is unlikely before the election. I don’t know long it will take to have an appeal. But either hanging over Little over the next few months will be an unwelcome distraction for him.

Hagamans want a new trial

Lani Hagaman has said she believes every effort should be made to bring her husband’s claims of defamation to completion.

That’s not what Andrew Little will have wanted to hear, but there could be a few lawyers and judges interested in seeking legal clarification on qualified privilege.

Stuff: Hagamans will keep fighting Labour leader Andrew Little in court

In a statement on Wednesday Lani Hagaman said because the jury was unable to reach verdicts on several of Earl’s claims, she had been advised the court now automatically retries those claims.

“The jury also reached a verdict that Earl was defamed by Andrew Little.  However, contrary to the finding of the court on qualified privilege, my legal advice continues to be that Mr Little was not entitled to protection by that.

“As this matter remains unresolved, I believe it requires clarification,” she said.

“While Earl is still alive I believe that it is important that every effort is made to bring his claims to completion, and I intend to do so.”

No comment so far from Little.

Avoiding defamation: lessons for Little

Andrew Little began as Leader of the Opposition in Parliament by saying “Cut the crap!”. He has tried to present himself as a decent honest politician who would do things differently.

Instead he copied the dirty attack tactics of Winston Peters, except that he left himself open to being sued for defamation. And when he was threatened with exactly that he took far too long to back down and half apologise.

So he got dragged into court when his late offer of a settlement and half apology was turned down.

This case has been costly, ikt’s just not yet clear who has to pay all the costs, which amount to hundreds of thousands of dollars in legal fees.

It is important that opposition MPs and especially the Leader of the Opposition holds the Government to account and questions issues of democratic and public concern.

Members of Parliament have special legal protections because of this – they can claim qualified privilege.

But this also should raise their levels of responsibility.

Little could have handled this much better if he really wants to be a more honourable but effective leader.

Here is the media statement from Little that started this expensive and inconclusive political and legal exercise: Auditor-General must investigate Niue deal for donor

It is loaded with political insinuations that associate Earl Hagaman and his Scenic Circle company.

Here’s a suggestion as to how Little could have done it better:

Auditor-General must investigate Niue deal for donor

The public have a right to know if there is any connection between a donation of   $100,000 to the National Party and the tender process and awarding of a hotel management contract which led to a Government-funded, $7.5million upgrade to a Niue resort, Leader of the Opposition Andrew Little says.

“Today it was revealed that owner of the Scenic Hotel Group, Earl Hagaman made a substantial donation not long before his company was awarded the contract.”

“It is why I have today written to the Auditor-General asking her to investigate whether there was any connection between the two. I have no evidence of impropriety, but it is important that this is checked out.”

“We must have questions answered on how the tender process worked, who if anyone knew about links between donations and the tenderer, and whether Niuean people will ultimately benefit from the resort’s funding. The perception of propriety is key” Leader of the Opposition Andrew Little says.

Little should have responded to any follow up media questions by saying that it was now up to the Auditor General and he would not comment any more until the results of any investigation were known.

This would make it clear that it was holding the government to account and not an attempted political hit job.

It should have avoided any media mayhem or threats of defamation.

Earl Hagaman or Scenic Circle could have released a statement denying anything improper had occurred.

A few people on Twitter and at The Standard would have still ranted about rich pricks getting political favours but that’s normal and would have been of little consequence.

Then when the Auditor General released her finding that there was nothing to indicate any connection between the donation and the awarding of the contract Little could have said something like this:

No problem found with Niue contract

I accept the finding by the Auditor General that there was no link found between a personal donation by Earl Hagaman to the National Party and the awarding of a hotel management contract to his Scenic Circle Company.

As Leader of the Opposition it is important that I hold the Government to account and that I question possible improprieties. I apologise if any impropriety was inferred or perceived in this case.

Little would have done his job effectively, in this case with no wrong doing found,and with no egg on his face.

No direct damage would have been done, nor any unintended collateral damage.

It is very unlikely there would have been any defamation threats or actions, therefore no large costs nor distractions from Little’s job as Leader of the Opposition.

It would have improved his chances of becoming Leader of the Government.

And he would have had more time to look for actual impropriety on the part of John Key and the National Party.

He may even been able to have some success in holding Murray McCully properly to account over the Saudi sheep deal.

Little picked the wrong target – that will happen sometimes – but in attacking too strongly without evidence, either targeting a National donor or being reckless about collateral damage, failing to back off and apologise in a timely fashion, he distracted attention from fights that should have been a priority.

I hope Little has learnt something from this, eventually.

Summary: Hagamans v Little

Asher Emanuel has good coverage of the Hagaman v Little defamation proceedings in Watching the Hagaman-Little defamation trial, it felt like everybody lost.

It does feel like a lose-lose, except for the lawyers who won some big fees.

Emanuel concludes:

This is only the latest unseemly defamation parade of which New Zealand has had a few. Do you remember when Jordan Williams sued Colin Craig for defamation, won, and was awarded $1.27 million in damages?

That was a ridiculously high award. I presume that is still to be challenged on appeal.

Williams (who showed up to the Little verdict, spectator this time) is the director of an organisation founded on the idea that waste of public funds is immoral, and surely it is, but are these private wastes any more defensible? Are these really reputations worth protecting with bonfires of money?

In litigation, two sides tell two stories from which a judge or jury tries to piece together the truth. So Lani Hagaman told the jury she did not intend to bankrupt Little; that this was not about humiliating him. It wasn’t even about the money because they would give the award to charity. It was, she said, about dignity for Earl before he dies.

Earl did not get his dignity, if that’s what you could call it. And Little has escaped financial ruin, at least for today.

We will find out in about six months whether it has helped ruin Little’s chances of upgrading from Leader of the Opposition to Leader of the Country.

Andrew Geddis also covers it well in In qualified praise of the Andrew Little defamation verdict. He says:

“The defamation case against Andrew Little did not result in his having to pay any damages. All in all, I think that is a good thing for the country as a whole.

I agree. The $2 million+ claim by the Hagamans was far too high and I think a tactical mistake as well.

So Andrew Little is absolutely right when he says he had a “constitutional obligation” to make a song and dance about the issue. As leader of the opposition, it is his job to “speak out fearlessly” on matters like this – not simply because he wants to take the PM’s job for himself, but rather because the whole system of governing accountability and clean public processes depends upon him (and other opposition MPs) doing so.

I agree generally with this, but I don’t think Little handled it well, either initially or for months afterwards. He could have easily made the point without getting dragged into court.

Of course, when it turns out that the claim is wrong and that actually there was no untoward relationship between the donation and the subsequent contracting decisions, the use of this sort of language leaves egg on their maker’s face. His (or her) political judgment can and should be questioned.

And the maker really ought to put their hand up, say they got it wrong, and apologise for any wrong imputations (as Andrew Little eventually did – a bit too late, in my opinion, but there you are.)

I agree with this too. See my next post which suggests how Little could have done it effectively without the risks.

Geddis concludes:

But saying all that … yes, the bullet must be bitten. Insofar as there is any tradeoff between public accountability and private reputational interests, my sympathies lie with the former. And so I’m happy that Andrew Little walked out of court without any liability for his statements on this matter.

Yeah, but Little went too far, either deliberately causing (his initial language suggests at least a bit of this) or not caring about collateral damage (if we are to believe his claims his sole target was the Government and not Earl Hagaman and Scenic Circle).

RNZ interview: Law professor discusses Andrew Little defamation case

The dean of the University of Canterbury Law School, Ursula Cheer, analyses the outcome of the defamation case against Andrew Little. “This has turned out to be the most complicated case I’ve seen in defamation in a while.”

A case that the jury couldn’t deal with. One of the primary problems was the arguments had little guidance from previous court cases, appeals or precedents.

Guyon Espiner: So in terms of what we learnt from this and what it may set down, It’s another small step for the protection to discuss these matters of public interest, but perhaps also less protection for those possibly for those who get caught up in the collateral damage this.

Ursula Cheer: I think it doesn’t tell us a great deal actually that we haven’t already built up from other various High Court cases.

And the defence is still developing, we’re still waiting for a higher court like the Court of Appeal or the Supreme Court to look back over all the cases and say yes, we have it and it looks like this, and this is what ill will looks like and so on.

We’re still waiting for that which is partly why this case was so complicated.

And also because this was a jury decision, and jury decisions are about the facts, so it doesn’t really tell us much more about that in relation to other cases.

Guyon Espiner: So why do you think they had such a struggle with whether he was entitled to use qualified privilege if that is accepted and established?

Ursula Cheer: Well I think the evidence was borderline and it was a case of them looking at the evidence to see what Andrew Little had done in order to be responsible enough, in order not to be seen as motivated by ill will.

There can be a fine line in politics between holding to account and wishing ill will on opponents – the more illness one can associated with an opponent the greater ones chances of succeeding and winning in politics.

Ursula Cheer: But another part of that is if a person takes advantage of their opportunity to publish, in other words if they are reckless or even careless about whether the matter is true or not.

And that depends very much on the facts, and here it just wasn’t black or white.

The words were not so bad that you could say well that means there was ill will.

And then you’ve got, there was plenty of evidence in the case of Andrew Little’s genuineness.

That was in court nearly a year after it started. It is difficult now to judge how genuine Little was about wishing no ill will on the Hagamans last year, especially taking into account his refusal to qualify his accusations or offer an apology for most of the year.

Ursula Cheer: I think they just struggled with weighing that evidence up and seeing if the legal definition fitted what existed in this case.

As a result the outcome so far is quite unclear, legally and politically.

It is likely to have been difficult for some at least of the twelve jurors to put aside completely any political preferences.

When you see polarised political and legal positions in comments here, and more starkly the difference between comments on Kiwiblog (see Little wins) versus The Standard (see A basic primer on the law of defamation), it was hard to escape the political biases and potential ramifications.

Claire Trevett at NZ Herald: Andrew Little defamation trial a win for future Opposition leaders – and the lawyers

“This case is not about politics,” Earl and Lani Hagaman’s lawyer Richard Fowler said on the first day of the hoteliers’ defamation trial against Labour leader Andrew Little.

It was a rather optimistic plea in a case which was always going to be about politics.

With both sides trying to show political motivation on the part of the other, it was not so much a case of wrong and right as left and right, of political power versus personal wealth.

Yes. Political leanings ideologies were prominent in public discussions on the case, and I can imagine that personal political preferences could have had some influence in the jury room.

The jury sat impassive and infuriatingly inscrutable through most the trial, scrabbling their way through screeds of files.

When they were sent to make their decision, they were asked not to let either personal or political sympathies affect their decisions.

The reason for the inscrutable faces became clear when the string of decisions was read out – the jury found Lani Hagaman was not defamed at all, but was unable to decide on almost all of the claims by Earl Hagaman.

In the one case it did find defamation, it was unable to decide whether Little had acted in abuse of the ‘qualified privilege’ he had claimed so no damages were awarded.

As is often the case in such matters, the only winners in monetary terms were the lawyers.

It should be remembered that most people do not have anywhere near the financial resources to attempt defamation proceedings.

The other winners in the case were future Leaders of the Opposition.

Little’s present to them was Justice Karen Clark’s ruling that as Leader of the Opposition he met the criteria for the defence of qualified privilege.

The ruling acknowledges Little had a moral or legal duty to make the statements he had, in the course of holding the Government to account. It offers some protection in defamation suits, unless the person claiming it was motivated by ill-will or otherwise abused the privilege.

I don’t think the outcome as it is at the moment will have helped much, it is still unclear where the legal boundaries are.

But even if this case doesn’t go to another trial or to appeal Little and other politicians should have been able to learn something from this expensive and inconclusive exercise.

I offer some suggestions in the next post: Avoiding defamation: lessons for Little

‘Qualified privilege’ unresolved after defamation case

What ‘qualified privilege’ allows and doesn’t allow politicians to say outside Parliament remains unresolved after the Hagaman v Little defamation case.

There are questions about whether the judge should have instructed the jury to allow qualified privilege for Labour leader Andrew Little.

While the jury found that Little had made a defamatory statement affecting Earl Hagaman they couldn’t decide whether Little was protected by qualified privilege. And the jury couldn’t decide whether four other statements constituted defamation or not.

Little’s April 2016 statement Auditor-General must investigate Niue deal for donor that I presume is the one the jury found to be defamatory said:

John Key must come clean on how a donor who gave more than $100,000 to his party during a tender process, won a hotel management contract which led to a Government-funded, $7.5million upgrade to the resort, Leader of the Opposition Andrew Little says.

“Today’s revelations about the Scenic Hotel Group and its resort contract in Niue stink to high heaven following its dodgy deals with SkyCity and the Saudi sheep deal.

“It is why I have today written to the Auditor-General asking her to investigate whether Earl Hagaman – who was the largest living financial donor to the National Party – giving money to the party at the same time his company was tendering for the Niue contract was above board.

In May 2016 the Hagamans asked for an apology from Little.  Stuff: Andrew Little refusing to apologise over his comments about a Niue resort deal

Little looks set to face defamation proceedings after ignoring an ultimatum and failing to apologise to the Hagamans.

In a statement from Lani Hagaman she said she would “see Mr Little in court” after he failed to retract and apologise his comments that a Niue resort deal they were awarded “stunk to high heaven”.

Little has written to Hagaman’s lawyers saying he has a “constitutional duty to challenge the actions of the Government over the expenditure of public funds”.

He will address the issues with the Hagamans once the Auditor-General has dealt with his request, either by “concluding an investigation or declining to conduct one” regarding a Niue resort deal.

In September 2016 the Auditor-General found nothing wrong with the awarding of the contract. Stuff: AG clears contract at centre of political donations row

The Auditor General has found there was nothing unusual about the selection of Scenic Hotel Group as the operator of a Niue tourism resort at the centre of a political row over a six figure donation to National.

Auditor General Lyn Provost said from the available information her office had found there was a standard procurement process with reasoned and documented analysis for the selection of Scenic Hotel Group to operate the resort, and for the subsequent investment of New Zealand international development assistance funds in expanding the resort.

Little is now being sued for defamation by the Hagaman’s after refusing to apologise and retract a statement that the deal “stunk to high heaven”.

Little said in a statement the limits to Provost’s mandate meant she was unable to address the key issues he had raised.

“I have a duty as Leader of the Opposition to raise questions in the public interest and respond to media stories on the use of public funds.”

He would not comment further as the matter was before the courts.

No apology, in fact Little questioned whether the Auditor-General had addressed the issues he raised.

Then just over a week before the defamation was due to go to court Little issued via a media a statement an apology of sorts – Statement re Earl Hagaman

It was a matter of public record that Mr Hagaman had donated $101,000 to the National Party in that same month. This generated considerable media interest. As Leader of the Opposition, I considered I had an obligation to respond to media questions on the issues which related to government actions. I referred the matter to the Auditor-General because I believed the public was entitled to be reassured. My focus was, and has always been, on holding the Government to account.

Throughout, the Hagamans have vigorously maintained there was no connection between the award of the contract to Scenic and Mr Hagaman’s donation. The Auditor-General did not establish any connection.

In those circumstances, I thought the matter should be resolved. Over the last three months, I have made a serious effort to do that. Today I want to publicly apologise unreservedly to Mr Hagaman for any hurt, embarrassment or adverse reflection on his reputation which may have resulted from my various media statements. I have offered that apology to the Hagamans. I have also offered to make a substantial contribution towards the Hagamans’ costs; an amount I am advised, was greater than would likely have been awarded by the Court.

I want to make it clear that the object of the criticism was the actions of the National government and that I intended to reflect no impropriety on the part of Mr Hagaman. I accept that no connection has been established between the donation and the award of the management contract and the hotel upgrade.

So Little accepts that no connection was found between the donation and the contract – in other words, his accusation was unfounded. And he apologised unreservedly “for any hurt, embarrassment or adverse reflection on his reputation”.

In court Little also apologised – RNZ: Andrew Little defends efforts to settle defamation case

Mr Little told the court he accepted the Hagamans were entitled to an apology, and letters were exchanged between his lawyers and the Hagamans about that.

“As I’ve said, once the Auditor-General did her inquiry, I accepted her conclusion there was no impropriety and I was happy to give them a public apology.

I can find no indication that Little accepted the A-G’s finding, in fact he said “she was unable to address the key issues he had raised”.

Mr Little said he was sorry for any hurt he had caused the Hagamans, and apologised to Lani Hagaman in person in court today.

“I apologise for the words … causing you hurt and I stand by the efforts I’ve made to resolve this matter,” he said.

So Little acknowledged causing hurt and apologised.

Despite this the jury found that Little had not defamed Lani Hagaman, but they did agree he had defamed Earl Hagaman. Little’s defence was that he had qualified privilege.

In summing up Judge Karen Clark had said that qualified privilege was a defence that Little could use – from Stuff:

The onus was on the Hagamans to prove that Little’s comments had the meaning they claimed and that they were defamatory.

…the Hagamans were only required to prove their case on the balance of probabilities, not beyond reasonable doubt as in a criminal case.

The “crucial first step” to identify the meanings of Little’s words, as ordinary, reasonable person would understand them.

If they agreed with the Hagamans’ interpretation of the phrases, they then had to decide whether they were defamatory and had lowered their reputation in the eyes of right-thinking people.

Clark said she had ruled that Little’s comments were protected by qualified privilege as he had a duty, “whether legal or social or moral”, to comment.

However, that defence could be “defeated or effectively negated” if the jury found his comments were predominantly motivated by ill will targeted directly at the Hagamans, or if he had taken improper advantage of his privilege.

This could be legally contentious. Nick R, who I believe may be a lawyer, stated at Kiwiblog:

Earl Hagaman might yet be able to appeal the decision to allow the qualified privilege defence to go to the jury.

This is common law qualified privilege, and it is far from clear that the Judge was correct to allow it in this case. But whether Mr Hagaman appeals that is another question.

Defamation actions against politicians are not common, and this may be without precedent.

Asher Emanuel sat through the trial and wrote at The Spinoff in Watching the Hagaman-Little defamation trial, it felt like everybody lost:

Throughout the trial both sides hinted or at times plainly stated the other side was politically motivated. But wasn’t this Little’s job, as an opposition politician, to be critical of the government and its supporters?

Actually, that’s sort of what the Judge ruled, allowing Little to raise a defence which hadn’t been applied before in a similar situation in New Zealand or, as far as I am aware, in countries with comparable defamation law.

So it may be a legal first.

Little couldn’t be liable for defamation when speaking as leader of the opposition on a matter of public interest and on which questions were being put to him. (With the condition that he could be liable if he took improper advantage of the occasion or was mainly motivated by ill-will towards the Hagamans, both of these being questions for the jury.) In the arcane language of defamation law, he was speaking on “an occasion of qualified privilege”.

In summary, Little made at least one statement making unfounded allegations that he concedes hurt the Hagamans, and he has apologised for that.

The jury found that one statement was defamatory (they also found that one wasn’t and couldn’t agree on four others). A jury majority couldn’t decide whether the defamatory comment was covered by qualified privilege.

This was not a clear conclusion.

And the judge broke new legal ground allowing qualified privilege.

Lawyers often like to test new precedents in higher courts to get a definitive ruling on it.

However it was said in court that Earl Hagaman is dying, so he may not want to take this matter any further. He may not survive long enough to see it through if he did.

But if it did go to another trial or an appeal it may bring some clarification to what is currently a confusing situation on qualified privilege.

It would be beneficial for potential targets of defamatory comments, and for politicians, to know where the law stands on qualified privilege. At this stage it remains unresolved.

Little gets off defamation – sort of

 

There jury has returned a muddly verdict in the defamation case the Hagamans took against Andre Little.

Graeme Edgeler was first off the Twitter blocks with the verdicts:

Jury unanimous that Little did not defame Mrs Hagaman.

That doesn’t surprise me, Lani Hagaman wasn’t named so I presume tried to prove defamation be association. I suspect she may have involved herself because of the risk that Earl might die before the trial.

Agree he defamed Mr H. at least once.

That’s no surprise either.

But no agreement on whether he has a defence.

The jury was hung on a defence of qualified privilege.

This also isn’t very surprising, given the political element. It would only take a few jurors to have a political slant that could affect their take on the legals aspects.

In respect of other causes of action, jury deadlocked. So no order of damages as yet. Could be a new trial.

A new trial wouldn’t be good for Little in election year, but with Earl Hagaman’s poor health that seems unlikely.

Retrial limited to questions jury couldn’t agree. Still possibility of settlement, esp. as Mrs H lost, and will be liable for some costs.

I don’t know how costs could be split.

So some relief for Little, but he doesn’t come out of it unscathed politically.

Edgeler has tweeted ” I predict they now settle”. That would be wise.

Stuff: Labour leader Andrew Little cleared of defamation against Lani Hagaman, new trial possible over Earl Hagaman comments

Labour leader Andrew Little has been cleared of defaming Lani Hagaman, but could yet face another trial after the jury could not reach a majority decision on most of his comments about Earl Hagaman.

After more than 13 hours of deliberations across two days, the nine men and three women of the jury found by a majority verdict that Little had not defamed Lani Hagaman in any of the six statements he made.

However, it could not reach a majority decision for Earl Hagaman in four of Little’s six statements on whether the comments were defamatory.

For one statement, the jury agreed by majority that it was defamatory, but could not reach a decision of whether qualified privilege applied. In another statement, it ruled the words were not defamatory.

In a media standup Little said:

The disappointment is we spent six days in the High Court and lot as lot has changed. I certainly stand by the efforts I made to resolve this issue without having to go to court.

“Would you say what you said again?”

There are some other statements that I made in some of the interviews that have been the subject of non-findings that the subject of litigation so I don’t want to go heavily into that.

I understand my job, I understand that there are always risks in my job, and people will feel caught up in a way that they don’t like in my job, and I’m not so schmuckish that I’m not prepared to acknowledge sometimes people do get hurt by things that are said, even though I don’t think they’re defamatory…

The jury ruled that one of Little’s statements was defamatory, one was not defamatory and could not reach a majority verdict on another four.

  …and even though I think I make comments in good faith and in the discharge of my moral obligations.

When I hurt people, which I never intended to do, I’m happy to take responsibility and try and make amends, and I tried to do that on this occasion, but it didn’t work.

“Have you had any advice from your lawyer as to when another trial if there were one would be able to be held?”

No I haven’t had any advice on that. This took seven months to get set down on a fast track, but there’d be other issues to resolve so I don’t know and I haven’t asked.

“Now this process has for all intents and purposes is over except for the possibility of a new case do you have a message or anything to say to Earl and Lani Hagaman personally about this process?”

I’ve given them my message, I’ve been trying to since the end of last year to acknowledge that words I used have caused them hurt, I know that, which is why I was prepared to apologise and did apologise both publicly and in court last week.

“Do you stand by those apologies today?”

Yes.

UPDATE: Graeme Edgeler has clarified his tweets at Kiwiblog:

Apologies for the misleading tweet.

The jury decision was by majority.

One of the problems with editing a tweet for brevity on a phone outside a courtroom.

There were six causes of action: Little’s initial statement, and then five over statements over the following days (eg media comment and answers to questions). The Hagamans asserted that each of these six statements defamed both Mr Hagaman and Mrs Hagaman.

The jury, by majority (which means 1, 2, or 3 jurors disagreed) found that none of the statements defamed Mrs Hagaman.

They found in respect one of the statements, that Little had not defamed Mr Hagaman.

In respect of one, they found that Little had defamed Mr Hagaman, but could not agree whether he had a defence of qualified privilege.

In respect of the other four statments, they could not agree whether they were defamatory.