Andrew Little’s recent High Court victory, finding his commentary on aspects of a Niue holiday resort’s financing to be qualifiedly privileged from defamation liability, casts light into the shadows of Her Majesty’s Loyal Opposition’s constitutional role.
In response to media enquiries, Mr Little had questioned the coincidence of a Mr Hagaman’s $100,000+ donation to the ruling National Party, his obtaining a hotel management contract for a Niue resort administered by a trust including NZ government appointees, and the NZ government’s $7.5m funding for the resort’s expansion. Mr and Mrs Hagaman alleged Mr Little’s comments defamed them as corrupt. In Hagaman v Little  NZHC 813, Justice Clark held Mr Little’s statements were subject to qualified privilege (that is, still open to being defeated by any improper motive), as “made in pursuance of his role as Leader of the Opposition and on a matter of public interest”. As Leader of the Opposition, Mr Little has a constitutional role to call government to account, and the public (for which the media is assumed a proxy) has a corresponding interest in knowing of that scrutiny. And, because a critical assessment is whether the communication is made for the “common convenience and welfare of society”, even without that reciprocity, Mr Little’s constitutional position alone afforded him qualified privilege – that is, his proactive criticism would also be protected.
Justice Clark’s decision heavily relies on University Professor at New York University School of Law (and New Zealand lawyer) Jeremy Waldron’s paper “The Principle of Loyal Opposition” (New York University Public Law and Legal Theory Working Papers, Paper 328 (2012)). Described as “the greatest contribution of the nineteenth century to the art of government”, ‘loyal opposition’ is “the institutionalization within the workings of everyday politics of a standing alternative to the government of the day”. Waldron considers “the propriety of opposition” a leading constitutional principle, and a prerequisite for democracy. It serves to normalise criticism, and to facilitate presentation and defence of governmental policy “in an explicitly and officially sanctioned adversarial environment”. Electoral victory and defeat is not to be considered analogous with military annihilation. The inevitability of losers in democratic political competition, while retaining fundamental rights and tolerating dissent, also offers opportunity for their “constitutional empowerment” as a “vigilant watchman over those in power”, going well beyond any more recumbent role of a government in waiting.
Waldron distinguishes the Commonwealth model from the US’s ‘checks and balances’, where diverse centres of power mean “piecemeal” and “fractal” opposition participation in government. Such participation only empowers losers in terms of affirmative government functions, risking their co-option; ‘loyal opposition’ empowers the losing party to oppose, criticise, and prepare to supplant the incumbent. Loyalty is not a threshold qualification required to be demonstrated by the opposition, but “a sort of admonition to the ruling party”: the opposition’s loyalty is not to be doubted for its alternative allegiances, but is to be assumed to motivate its conduct in support of constitutional democracy.
[This article was first published in The Capital Letter (40/16, 9 May 2017)]