Crimes (Repeal of Seditious Offences) Amendment Bill

It is good to have this bill back before the Committee of the whole House from the Justice and Electoral Committee. It is an opportunity for us to perhaps have a more careful and extended look at the provisions of the Law Commission’s report and its recommendation that New Zealand finally set aside the laws of sedition.

The Law Commission was asked to review the seditious offences provisions set out in sections 81 to 85 of the Crimes Act 1961 and to make any recommendations that it considered to be necessary or, indeed, desirable. The commission concluded in its report that the seditious offences are overly broad and uncertain, and that they infringe on the principle of freedom of expression and have the potential for abuse. I am sure that is a matter that a number of members will want to consider in more detail as we look at this important legislation.

The Law Commission report recommends that sections 81 to 85 of the Crimes Act 1961, which contain these offences, should be repealed. The commission believes that nothing should replace those sections. To the extent that conduct that would be covered by existing sedition provisions needs to be punished—and there are a number of areas that that may well apply to—the commission suggests very strongly that it can be more appropriately dealt with by other provisions of the criminal law. Abolishing sedition, therefore, will better protect the values of democracy and free speech.

It is perhaps appropriate that we visit briefly some of the historical background that sits behind the sedition law, because I think it affords members a better understanding of the law’s origins and, therefore, how and why the Law Commission reached the conclusion that it did. Of course, New Zealand inherits its common law on sedition from the British common law. If we go back to the English Statute of Treasons of 1351, we see that it defines many types of offences against the king, as the authority was then, as treasonable. It looked at the offences that were increasingly used in those times to prosecute people who spoke or wrote words publicly in opposition to the king. Those watching The Tudors on Tuesday evenings would find it interesting that in 1534 an Act declared that it was treason to act or write anything to the prejudice, slander, or disturbance of the king’s marriage to one Anne Boleyn. I think we see an indication there of how specifically this sort of measure could be applied.

A court decision somewhat later, in 1606, created the very wide offence of seditious libel. I know that Dr Worth is likely to discuss this at some length later on; it is a matter I have heard him canvass on occasion. There was the prosecution of seditious libel for people who used words that could urge insurrection against those in authority, censured public men—and it was men—for their conduct, or criticised the instruction of the country.

As I indicated, New Zealand inherited the British common law on sedition, and our own experience is, therefore, well illustrated with appropriate references. The Criminal Code Act of 1893 codified the law on sedition, and it was set out again in the Crimes Act 1908 and then in the Crimes Act 1961, which we now find ourselves focusing more directly upon. Of course, if we go back to the end of the 19th century and the beginning of the 20th century, we see that a number of charges of sedition were laid in New Zealand. A number of those charges were successfully prosecuted; one or two not so.

Most of these charges, it is fair to say, were laid during times of political or civil unrest, or during war. For example, charges were laid against Māori in land disputes, against striking workers, against those opposing conscription during World War I, and against those possessing communist literature. Interestingly, there are a number of references to successful prosecutions against those possessing communist literature—and I will come to those later. One or two examples of that literature can be found in the very library of this institution. How times change.

If we go back to 1881 we see that arrests were made at Parihaka over a land dispute. Te Whiti said: “Mine is the land from the beginning.”, and he went on to make a very famous quote. He was, indeed, charged with sedition for allegedly uttering words and language calculated to promote disaffection.

A little later on, in 1913, Henry Holland make a speech at a strike of waterfront workers in Wellington. The Court of Appeal concluded that the jury would have been justified in regarding counsels of that kind as intending to promote feelings of ill will and hostility between the waterside workers and their employers.

During World War I, as I indicated previously, sedition charges were laid for making speeches in relation to opposition to conscription under the Military Service Act 1916. If we go on to 1917 we find that one Herbert Armstrong was convicted for an anti-conscription speech, in which he said: “I claim the right to criticise the Government of the country.” He was convicted. In another case a Rev. James Chapple was charged with sedition for making comments against the war. Again, he was successfully convicted.

In another case a young woman was convicted in 1921 for the possession and circulation of communist literature. Not only was she convicted and fined ₤10 but, perhaps more significantly, her studentship was terminated. Of course, better known names like Walter Nash were charged with bringing into New Zealand a document entitled The Communist Programme of World Revolution and another pamphlet. Both of those documents were said to encourage violence and unlawfulness. Walter Nash was fined ₤5. Those documents are amongst the works held in the Parliamentary Library; I suggest them to members for their reference.

I think all of this illustrates a very different time. It is equally important to acknowledge that until very recently, apart from a couple of very notable examples after the 1920s, the offences of sedition had appeared to have fallen into disuse in New Zealand until the famous, and some would say infamous, case in 2006 when Timothy Selwyn was prosecuted for sedition.

I know that a number of my colleagues intend to explore some of the arguments for repeal, following my brief introductory remarks, but there are two arguments that I will touch on because I think they serve as something of a launching pad for wider discussion. First, the legal profile of the offence is broad, variable, and unclear. The meaning of sedition has changed over time. This is one of the five principal reasons that the Law Commission gave for its view that the time to put aside and to repeal the law of sedition in New Zealand had come.

Secondly, and most overwhelmingly in my view, the Law Commission has argued that the law is not needed because those elements of it that should be retained are more specifically covered by other offences. This is perhaps the decisive argument that the Law Commission makes. The seditious offences that should be covered by the criminal law are adequately and more appropriately dealt with elsewhere under other offences. These include incitement and conspiracy, and public order offences, along with threatening offences, and offences such as treason and riot. An argument made in support of an offence of sedition is that it is easier to establish than some of the other offences. But, as the Law Commission noted, it considers that in the interest of freedom of expression, such speech-only offences should not be easy to prove.

I leave my opening remarks there, but in doing so I strongly commend the recommendation made by the Law Commission to the Committee. The time for putting aside the laws of sedition in New Zealand is well and truly upon us.

That was an interesting speech from the Minister—more akin to a first or second reading speech. Of course, Dr Worth and I gave all those examples that the Minister has sought to repeat in the context of a Committee stage debate. But there we have it—it is good to see that he has been reading our speeches. He always quotes to me my maiden speech, and it is good to see him quoting back to me this afternoon my first reading speech on the Crimes (Repeal of Seditious Offences) Amendment Bill. What I want to do, unlike the Minister, is really to make a fairly close and detailed analysis of the provisions that we propose to repeal, because, as I have said earlier, National supports the repeal of these particular offences.

The seditious offences are dealt with in the context of Part 5 of the Crimes Act 1961. Part 5 deals with various crimes against public order. Examples include the crime in section 73, which deals with treason—an offence that the Prime Minister charged Tim Groser with when he decided to stand for Parliament for the National Party. However, a close analysis of section 73 indicates that had the Prime Minister carried through and instructed Crown Law to prosecute Tim Groser, she would have had a lot of difficulty. Section 77 lists another interesting crime against public order, and that is inciting people to mutiny, which is what is probably going on in the Labour Party caucus at the moment as people are being told that they are on their way.

But the particular offences that we are dealing with are the seditious offences that are said to be contained—I will say something about that in a minute—in sections 80 to 85 of the Act. Section 80 is not going to be repealed. That is the offence of taking an oath to commit an offence. Everyone who does that sort of thing is liable to imprisonment for a term not exceeding 5 years. It is not really a seditious offence, which is the point I made in my second reading speech, and it is entirely appropriate that that particular offence remain. But the other offences are said to be seditious offences, although section 81, as the Minister said, defines exactly what a seditious offence is. In my second reading speech I went through that in some detail, so I will not repeat myself here. But I agree with the Minister and the Law Commission that it is a very vague definition. When one looks, for example, at subsection (1)(e), which sets out one of the criteria that define a seditious intention, one sees it is an intention “to excite such hostility or ill will between different classes of persons as may endanger the public safety.” What exactly does that mean? As the Minister said, that is the kind of measure that was used to prosecute poor old Walter Nash, even though the communist pamphlet he allegedly brought into New Zealand was, as the Minister said when copying my speech, contained in the Parliamentary Library.

Then we have the actual offences that need close examination—

💬 Hon Mark Burton: Very insecure—

Oh, there is no copyright in this material, I say to the Minister, so I do not take offence; I am just mildly touched that he has decided to refer to that material and to quote yet another one of my speeches. Section 82 deals with seditious conspiracy. Section 83 deals with seditious statements, and that is the one that really has been used over the years mostly to shut down public debate. Section 84 deals with the publication of seditious documents. Section 85 is an interesting and a most extraordinary provision: the use of an apparatus for making seditious documents or statements. It deals with the sorts of things that one would have seen in Doctor Zhivago, where the revolutionaries had their printing presses and were printing posters to stick up around St Petersburg, and the like. So that is the kind of thing that section 85 is directed at.

The Minister is right; those offences have outlasted their useful stay on the statute book and it is time to repeal them. On behalf of the National Party, when dealing with Part 1 of this bill, I simply say let us get on and repeal them as quickly as possible, because I frankly do not think the Labour Party realises what wonderful instruments of oppression they really are. Of course, we have the Electoral Finance Bill, and we have the other offences the Government has introduced over the years. But the seditious offences are ones that the Labour Party, given its malignancy, could use against people in the National Party, as the Prime Minister said in relation to Tim Groser, so the sooner they are repealed the better it will be. I think that if Government members gave it more than a moment’s thought, they would realise that maybe those offences should not be repealed because they could be used, say, hand in hand with the electoral finance provisions, to destroy the freedom of New Zealanders.

It is a pleasure to stand and take a call on the Crimes (Repeal of Seditious Offences) Amendment Bill during the Committee stage. I think that it is worth reflecting on what a seditious offence is. Seditious offences are set out in sections 81 to 85 of the Crimes Act of 1961. They cover making or publishing a statement that expresses a seditious intention—publishing includes printing, selling, importing, distributing, or delivering to the public—conspiring with a seditious intention; and using apparatus for making statements that express a seditious intention. The offences hinge on a seditious intention, which is defined broadly as an intention to bring into hatred or contempt, or to excite dissatisfaction, against Her Majesty, or the Government of New Zealand, or the administration of justice; to incite the public or any persons or class of persons to attempt to procure otherwise than by lawful means the alteration of any matter affecting the constitution, laws, or Government of New Zealand; or to incite, procure or encourage violence, lawlessness, or disorder; or to incite, procure, or encourage the commission of any offence that is prejudicial to the public safety or to the maintenance of public order; or to excite such hostility or ill-will between different classes of persons as may endanger public safety.

Seditious offences have been used at times of perceived threats to the established authority. The Law Commission concluded that seditious offences, as they were set out, were overly broad and uncertain. They infringe on the principle of freedom of expression—something that we all in this Chamber hold dear—but they do have the potential for abuse. This is the potential that has been realised in some periods of our history when these offences have been used to stifle or to punish political speech.

The five main arguments that the Law Commission put forward in support of repeal were that the legal profile, as I said before, is broad, variable, and unclear, and that the meaning of sedition has changed over time. As a matter of policy the present law invades the democratic value of free speech for no adequate public reason. Specifically, the present law falls foul of the New Zealand Bill of Rights Act 1990, which, of course, the National Party members did not vote in support of.

💬 Darren Hughes: Really!

Yes, really, they did not. That is them, though.

💬 Darren Hughes: That is another flip-flop.

I know. Seditious offences can be inappropriately used to impose a form of political censorship, and they have been used for that purpose. Most important, the law is not needed, because those elements of it that should be retained are more specifically covered by other offences. Seditious offences that should be covered by the criminal law are dealt with by a number of other laws in this country, including incitement, conspiracy, and public order offences, along with threatening offences, and offences such as treason and riot.

One argument made in support of seditious offences is that they are easier to establish than some of the other offences. However, as the Law Commission noted, we consider that in the interest of freedom of expression such speech-only offences should not be easy to prove.

So will repealing seditious offences leave gaps in the law? I think not. There are currently a number of existing offences that adequately deal—as I said before—with the elements of seditious offending that should be retained; and also incitement and conspiracy, like sedition, can be a thought or intention crime. For example, one could be found guilty of incitement to an offence, even if the offence one was inciting was not actually committed. Additionally, if the inciting leads to the commission of an offence, then the inciter could be prosecuted as a party to the offending under section 66 of the Crimes Act 1961.

I must confess to having some concern when I learnt that the Crimes (Repeal of Seditious Offences) Amendment Bill was to be sent to the Justice and Electoral Committee. But my hopes rose when I saw who was on that committee, and appreciated that the merit of the legislation would be judged by Christopher Finlayson—the deputy chairperson—and Chris Auchinvole. Quite clearly, in looking at the traits of those two people, I saw that they were blessed not only with razor-sharp intellect but also unerring insight. It is the case that this bill comes back from the select committee without amendment, and I think we probably owe a debt of gratitude to those two National MPs, who saw immediately that the merit of this legislation was undoubted.

I started by saying I had expressed some concern, because in the course of the speech made by the previous speaker she described these offences that are now to be struck from the statute book as speech-only offences. But they are not that at all, and that represents a misreading and a misunderstanding of those provisions that are now to be repealed. It is quite true to say that the legislation is concerned with seditious statements, but the statements may not only be made orally but also be in writing. A particular provision in section 84 of the current law deals with seditious statements. To reinforce the point, section 85 is headed “Use of apparatus for making seditious documents or statements”.

The Minister has carefully taken us through an analysis of the history of sedition. I would simply say that sedition is a term of law that refers substantially to covert conduct that is deemed by the legal authority as tending towards insurrection towards the established order. Put in very simple terms, sedition is the stirring up of rebellion against the Government in power. Sedition is more about encouraging the people to rebel, and treason, which remains on the statute book, is actually betraying the country. I cannot help but observe that it is an interesting comment on the jurisdictions of Australia and New Zealand that Australia retains these offences on its statute book, and, as recently as 2005, transferred the sedition provisions to anti-terrorist legislation, which was then going through the House.

What we are concerned with here is, in effect, a balancing of interest, which is a role that politicians must constantly perform. We are looking at a series of offence-creating provisions that have been on the statute book for a very long time, and then looking at the New Zealand Bill of Rights Act 1990 as, I guess, the balancing point for an evaluation as to the appropriateness of this legislation. We speak a lot about the New Zealand Bill of Rights Act and its provisions—

💬 Christopher Finlayson: Except in the context of the Electoral Finance Bill.

Except in the context of the Electoral Finance Bill, as I am reminded. I think it is an important point, in noting the provisions of the New Zealand Bill of Rights Act, that although it affirms certain rights and freedoms, it makes it very clear that those rights and freedoms are not absolute. In fact, section 5 of the New Zealand Bill of Rights Act contains an ability for there to be justified limitations. Here, we are talking about a particular right called the freedom of expression. Scripted in this way, everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind, in any form.

This legislation that we are looking at in Committee is a very good example of how quickly a Government can act when faced with a Law Commission report that it favours. I note that in April 2007 the commission’s report—which, as others have said, was titled Reforming the Law of Sedition—was tabled in Parliament, and we have seen this legislation progress at speed from there.

I rise on behalf of New Zealand First, and this is rather a strange situation, actually. I am more used to the situation where another party stands alone on a point of principle; that is often the position taken by other parties in this House. But this time New Zealand First finds itself completely on its own in speaking against the Crimes (Repeal of Seditious Offences) Amendment Bill. I guess what we are saying at this part of the Committee stage is that it is timely to analyse some of the statements that have just been made in support of the bill, including the statements made by the Law Commission in advocating the need for it. I am just going through the summary that I have received, and a couple of things stand out very clearly to New Zealand First.

One of those is the reason given for repealing the sedition law: that the legal profile of the offence is broad, variable, and uncertain. That is just like the principles of the Treaty of Waitangi, which this House has had no problem in enshrining in scores of pieces of legislation. It seems to defy logic, from New Zealand First’s perspective, to say that the sedition law is broad, variable, and uncertain. I am really puzzled as to why the National Party seems to accept that argument, when it too agrees with New Zealand First that the principles of the Treaty of Waitangi are vague. Those principles are not defined, they are not clear and concise, they differ in statement of intent after statement of intent and in annual report after annual report, and they are the cause of much angst in their application. That argument does not stack up.

Let us look at the statement: “as a matter of policy, the present law invades the democratic value of free speech for no adequate public reason;”. What poppycock! The “adequate public reason” is that where sedition occurs it involves, by definition, the promotion of violence. We find it quite bizarre that Labour members advocate that the New Zealand Police’s main aim is to reduce violence in the community. Well, maybe that is why we are seeing such an escalation in violent crime, because the police actually pay only lip service to that statement. They are actually not interested in curbing people who would promote violence. But ironically, we have the police engaged in a major operation right now, bringing to the courts of this land people who are accused of promoting political objectives through the use of the force of arms. No good, adequate public reason? We would have thought that above all the things we stand to uphold in this country, freedom of speech and democracy stand supreme above all others. Democracy deserves better protections than the humdrum legislation people are alluding to that exists right now to give us that protection.

People have said that the law against sedition has not been used. Well, let us thank God for that. Just because a particular law has not been exercised, that does not mean it serves no purpose or has no place. New Zealand First says there is good public reason for keeping it. Some of us have worn uniforms and carried weapons in funny places in order to preserve freedom of speech. The last thing we in New Zealand First would ever want is to see freedom of political expression denied, curbed, or, ah—

💬 Dr Richard Worth: Interdicted.

—interdicted in any way. Thank you. But to stand up and say it is OK for someone to advocate his or her political disagreement and promote violence in achieving his or her goals is completely different from that.

We might well agree with the Government and with other parties that other laws serve their purpose, but the test is yet to be seen, is it not? We would have thought, given the events unfolding in New Zealand right now and the charges that have been laid, that we should pause, take a deep breath, and watch with interest to see to how effective those laws are. It is probably time for us to have one of those famous Labour Party cups of tea, and to sit down and watch. It should be a case of less haste, less waste, as my nana used to say. What is to be lost by pausing at this point in time? Nothing. What is to be gained? Well, a whole lot, if this move proves to be wrong. We will advocate throughout this debate that it is wrong. We do not agree with it. We will be voting against this bill and against this part of it. We look forward to hearing more of the arguments about the bill.

Looking specifically at one of the other statements that has been made—that the present law falls foul of the New Zealand Bill of Rights Act—I ask how new that is. This House regularly accepts that some of its laws and statutes stand outside the New Zealand Bill of Rights Act, does it not? Let us look at superannuation, for a start—

💬 Dr Richard Worth: The Electoral Finance Bill.

The honourable Dr Worth says the Electoral Finance Bill stands outside the New Zealand Bill of Rights Act.

💬 Hon Mark Burton: No, it doesn’t.

The Labour Party member says it does not. New Zealand First supports the Electoral Finance Bill. We say there is legislation that is in breach of the basic New Zealand Bill of Rights Act. For example, one cannot qualify for superannuation until one is aged 65. That is a breach of basic human rights, is it not? The National Party contested for years that legislation or policies aimed at closing the gaps were outside the New Zealand Bill of Rights Act. It was quite happy to campaign at election after election against State funding going towards specific ethnicities because that was outside the New Zealand Bill of Rights Act. What has happened? What has changed? Oh, I forgot; Don Brash has gone. Maybe that is the change. The fundamental principle needs to be addressed. We do accept that in some special circumstances there is justification for legislation being outside the New Zealand Bill of Rights Act. New Zealand First would advocate that this is one such occasion.

It has been argued that the law on seditious offences can be inappropriately used to impose a form of political censorship. Well, hello! We have seen that sort of thing going on in this country. That issue comes down to the role of this House, does it not? The people we have in power—the Government—are not permitted to use laws to shut down political debate or political opposition to their policies, initiatives, and philosophies. We all stand for that; let us be sure of that. Going back to the time of the 1981 Springbok Tour, I say people made it pretty clear then that they were not about to accept the policies of the Government of the day. They were successful. Not all of us agreed with them, but they were successful.

We are saying that the excuses that are touted out as reasons for repealing the sedition law do not stack up to legitimate scrutiny. We are engaged in this House in an element of feel-good legislation—probably designed to fill up a rather bleak-looking legislative agenda and suck up House time—and the National Party has fallen for it. We ask the Committee to stop, pause, take some time out, and put this bill to one side. Let us test the legal systems as they currently exist and see post the current investigations where any deficiencies lie. That may quite clearly show us in New Zealand First quarters that there is ample legislation to deal with acts of sedition going forward and that there is no reason for giving democracy an enhanced status—or the preservation of democracy—or for the protection of the judiciary or the Government institutions that underpin and give democracy an enhanced status. It may show us that there is no special case for having special legislation to protect the very things that are depicted on the walls around us—the men and women who went to the various battles and wars that are all highlighted on the walls of this Chamber. It may show us that there is nothing special that needs protecting.

If those things can all be tied up in the humdrum, everyday bits of law that we have around, then let us take a look at those humdrum bits of legislation that people say are effective. Let us talk about our non-association laws. Let us talk about the ability of the police to lay charges against people for associating with criminal elements. It could be argued that that legislation is ineffective. Maybe that is why we have seen some amendments to it. But still that offence has not disappeared from the slate, has it? A simple principle is that just because something is old, that does not mean to say it is past its use-by date. Some parties tend to have that view of our elderly and senior citizens in this country. That is why those parties consistently and persistently attack them, with cuts in their superannuation and cuts in the increases, and with an inability to meet promises made to them.

In terms of legislation, the law against sedition is very old, admittedly. It has a very specific aim. If that aim needs to be narrowed and zeroed in on to make the law a little tighter, then let us look at doing that. But to throw out the legislation at this point in time, New Zealand First would advocate, is not wise. We might actually be a lot better off to take a pause right now, put the legislation to one side, and revisit it post the police operations in the situation they are dealing with right now. Let us see just how effective the laws are in dealing with that situation and in getting convictions, before we repeal this law.

I will take just a short call because this is a Committee stage and I think it is appropriate to respond quickly to a couple of Ron Mark’s points.

Firstly, the member quite properly raises the question as to why this matter is on the Order Paper at all at the moment. The answer to that is quite simple: it is because this Government has set about clearing up years and years of neglect by the National Government, which never advanced the work of the Law Commission. Endless piles of work was done, but then nothing happened to it. This Government has set about not only tidying up the backlog but getting on with new referrals, and seeing that work progress through and something being done with it. I think that explains it, but the member raised a very fair question.

Secondly, the reason it is now appropriate to look at what is, indeed, as the member said—and I made reference to it in my own earlier remarks—law that has its genesis in very ancient law in both England and, more recently, New Zealand is that it has proven to be no longer appropriate on our statute book. There is better legislation that suits the purpose of providing a response to any such offences. That is the considered view that the Law Commission has offered to Parliament. It is why, I think, the legislation enjoys considerable support.

The member quite properly raised both of those points of concern in his contribution.

I thank my colleague Mr Worth for the perceptive and kind remarks he made, during his speech, about the presence of myself and Mr Finlayson on the Justice and Electoral Committee. It is a select committee that is a pleasure to be part of, not so much for the way it is managed but more for the opportunity it gives to discuss very interesting content that is of great moment to solicitors and legislators but also is particularly important to ordinary people. When it comes to ordinary people, one does not get much more ordinary than myself.

The Crimes (Repeal of Seditious Offences) Amendment Bill has its origins right back in the early litigious period of history in England, the period of Henry VIII and his daughter Elizabeth I— the Shakespearean period. It was a period of intrusiveness by the Government into the private life of citizens—the like of which we had not seen until the present Labour Government, someone suggested to me.

I was interested in the speech from New Zealand First. The difficulty I have with the comments made by Ron Mark is that if we simply have a pause before we remove legislation, we would still have crimes like elopement with an adulterer or the taking of a nun. Those laws from the Edward I period were not removed from the Crimes Act until the 1960s. We would still have the civil rights of convicts law of 1828, from the period of George IV. All those things would still be there. When we have legislation that is serving no great moment, I think it is a good use of the House’s time—even though Labour clearly has a problem with its legislative programme and is searching for things to do—to remove clearly redundant legislation.

But is this law clearly redundant? The New Zealand law on seditious offences is set out in sections 81 to 85 of the Crimes Act 1961—the same Crimes Act that cleaned up this business I mentioned earlier of eloping with an adulterer. The main offences are making or publishing a statement that expresses a seditious intention, or conspiring with a seditious intention. Section 81(1) states: “A seditious intention is an intention—(a) To bring hatred or contempt … against Her Majesty, or the Government of New Zealand, or the administration of justice; or (b) To incite the public … to attempt to procure otherwise than by lawful means the alteration of any matter affecting the Constitution, laws, or Government of New Zealand; or (c) To incite … or encourage violence, lawlessness, or disorder; or (d) To incite … or encourage the commission of any offence that is prejudicial to the public safety or to the maintenance of public order; or (e) To excite hostility or ill will between difference classes of persons as may endanger the public safety.”

Prosecution for sedition, as has been mentioned by other speakers, was extremely rare in the second half of the 20th century. The last recorded successful prosecution seems to have been in 1942, when the Rev. Ormond Burton published an anti-war poem.

I will give reasons why the current law is undesirable. The parameters of the offences are extremely wide. All the offences rely on establishing a seditious intention. As can be seen from what constitutes “seditious intention”, the current definition covers a wide range of types of activities, and also applies at a very low and very uncertain threshold. I know that earlier speakers have addressed this question, and I do not doubt that subsequent speakers will do so. It is a sort of catch-all job. Someone suggested to me that it is a case of if we cannot get someone on anything else, we get him or her on sedition, and that is not really justice, is it? It is a form of law enforcement.

💬 Ron Mark: You still have to prove it.

Yes, of course. But the fact that one still has to prove it does not make it reasonable to drag people through the courts simply on a whim. That is not justice, and I am sure the member realises that.

The latter point is particularly troubling, as merely encouraging these types of activities is deemed criminal under the current definition. I am put in mind of the policeman who used to say: “We know you did it, we saw you do it, and your mother said you did.” One does not have any defence, and it is much the same with this thing. The overall breadth and uncertainty make for very dangerous law. In particular, criminal law should be clear; otherwise, individuals cannot modify their conduct to ensure they stay within the bounds of the law. Thank you, Madam Assistant Speaker.

Ron Mark said we should just sit quietly and wait for the police to look at this law, and perhaps bring in prosecutions. In fact, when the police brought in a prosecution in the Tim Selwyn case, they used this law, and because of the archaic nature of the law, Tim Selwyn was wrongly convicted. That is how people will interpret what happened, once this law is taken off our statute book—that he was already punished for criminal damage for leaving an axe in window of the Auckland office of the Prime Minister. He was tried and convicted for sedition for saying that other people should engage in symbolic acts—which was the term he used—against the Foreshore and Seabed Act. As has been pointed out in the debate, the sedition laws are criminalising free speech.

It occurred to me, when I heard Chris Auchinvole reading out that bit about inciting contempt against the Government, that I have heard Mr Mark being quite contemptuous of the Government, on occasion. I would not want my good friend and close colleague here to be dragged away for the honourable role he plays in being a watchdog for wrongdoing and for sometimes bringing contempt upon the Government in doing so. Chris Auchinvole also read out something about creating hostility or ill will between different classes of people. I was listening to a speech made by my colleague Hone Harawira not long ago that quite upset Mr Peter Dunne. I think one could say that that speech incited hostility between the middle classes, the white collar, and the blue collar.

💬 Chris Auchinvole: Oh no, I am sure he wouldn’t do that.

He was. He was talking about white-collar crime and saying we were not paying enough attention to that, and I am sure he could have been sent down for sedition. In fact, one former leader of the Labour Party, Harry Holland, was convicted of sedition for that very reason—for causing ill will between the classes when he talked about the need for the working class to assert itself and rise up and take power, and all the rest of it. Harry Holland was inciting disaffection against what he would have considered to be the ruling classes or the rich classes of that day. So we have a problem here. Getting rid of the sedition laws is getting rid of thought crimes, and it is really good if we value free speech.

There is a whole parallel here between this debate and the debate on the Terrorism Suppression Act, in that if the police go down that track, the prosecutions that have been threatened to be brought under the Terrorism Suppression Act might end up in the same basket as the sedition laws. This is because people will see that that Act is, in a sense, a restriction on free speech, too, in that it is so broad in its application and could be applied to what people say, as well as to what they do. If people commit any specific crimes of incitement, the sedition laws are not required, as there are specific provisions in the Crimes Act. It is the same under the Terrorism Suppression Act: if any crimes are committed in terms of involvement in an organised criminal conspiracy, that is covered under the Crimes Act, so we do not need a Terrorism Suppression Act that has a much broader application and inhibits our civil liberties.

So it may be that what we are doing today, following on from the Tim Selwyn case, will be done tomorrow with the Terrorism Suppression Act, if the police bring prosecutions. Even if they do not do so—and we do not know the full details of the cases yet—I point out that a lot of these people do not, on the surface of things, seem to be involved in the deep level of wrongdoing that the Terrorism Suppression Act suggests. So I see that parallel there, and I support this bill wholeheartedly. It is a bill whose time has come. There has been a debate in the Chamber between National and Labour on this issue, and it is great that National and Labour are coming together with the other parties—the four minority parties that held a press conference a few months ago on this bill—

💬 Christopher Finlayson: We apply it to the Electoral Finance Bill, as well.

Yes, that is good—a dialogue across the Chamber on what to do about the Electoral Finance Bill.

The difference between the law of sedition and the Terrorism Suppression Act is that the law of sedition is entirely censorious. It censors what one can say. That law, as we heard from the Minister, derived from the English common law, but the difference between the English common law and the present law under the Crimes Act is that in the transfer to the codified Act the fact that a violent outcome had to be advocated was removed from the common law. So in the codification in 1961 the law on sedition was entirely that of committing a censorious act. That, perhaps, is the difference between the Selwyn case and many other cases that Ron Mark and others have referred to in this Chamber. Tim Selwyn was convicted of an offence on an indictment that contained the imploring of others to commit a violent act. The present law of sedition does not need that element, although that was apparently in his indictment; the present law of sedition creates a criminal offence of saying certain things.

The Terrorism Suppression Act, which has been referred to by one of the earlier speakers, includes an element of incitement, but it is incitement to commit specific outcomes, and the commission of those outcomes must be part of the message. The outcomes are not just any outcomes; the outcomes specified in that Act include bringing about the death of another person, damaging major infrastructure, and other serious offences that go to the basic infrastructure and law and order of the country for ensuring there is a peaceful country.

The time for removing the law on sedition from our Crimes Act is long past. Ron Mark said we should take more time to consider it. But we have had since 1961 to think about it; 46 years is a long time. That time has revealed that no substantial convictions have been made under that law—no convictions that probably could not have been secured under other legislation.

Ron Mark drew a parallel between the law of sedition and the Treaty of Waitangi, and he said the Treaty of Waitangi suffers because it is uncertain. That is correct, but the Treaty of Waitangi—

💬 Ron Mark: The principles of the Treaty of Waitangi.

The principles of the Treaty of Waitangi are uncertain; it is true that they are. But the Treaty of Waitangi is not a criminal sanction. Nobody is convicted for breaching any aspect of the Treaty of Waitangi or the principles in relation thereto.

When we impose a criminal sanction, it is necessary that the law be specific about what the offence is, because a criminal sanction involves two aspects. The first is doing the thing complained of, known as the actus reus, and the second is the intention to bring about that circumstance, known as the mens rea. So that requires a specificity of thought and a specificity of outcome. Under the law of sedition we suffer from a lack of specificity, unless one is talking about a general law of censorship. That is why the law of sedition so seriously breaches the New Zealand Bill of Rights Act.

Under section 14 of the New Zealand Bill of Rights Act, everybody is guaranteed the right to free speech—the right to express an opinion. That is unqualified. Mr Mark referred to the fact that it was perhaps qualified by section 5 of the Act, but that is not really appropriate in this circumstance. Section 5 allows an exception to be made if there is a greater public purpose. The greater public purpose that may have laid behind the law of sedition in 1961 has since been overtaken by the compounding conspiracy offences we find in our Crimes Act, in our Misuse of Drugs Act, and in similar legislation that has followed the passing of the Crimes Act.

A similar provision to the law on sedition is found also in the Terrorism Suppression Act of 2002. As I have said, it requires not only the incitement to action but the desire to achieve a certain outcome, and those certain outcomes are codified as well. They include the bringing about of the death of another person or the damaging of major infrastructure, and similar infrastructural safeguards.

So the New Zealand Bill of Rights Act is in direct conflict with the laws of sedition in our present Crimes Act, and it is just a tragedy that when the New Zealand Bill of Rights Act was passed back in the early 1990s, it did not include as an amendment the removal of the law of sedition from the Crimes Act as well. These days, it is hard to understand why that did not occur.

It is indeed a pleasure to rise and speak during the Committee stage of the Crimes (Repeal of Seditious Offences) Amendment Bill. It gives me great comfort to review the work of those members who were on the Justice and Electoral Committee to see that the issue has been well and truly canvassed and, in effect, has been tested.

I take reasonable comfort also from the knowledge that when representatives from the New Zealand Police were speaking to their submission, they did not give any indication that they had any concerns whatsoever. In fact, I take it from their position that they were reasonably comfortable about there being the ability to address any matters for serious concern through other parts of the Crimes Act.

When I note that the police stated that these laws of sedition are really up to the independent interpretation of the police, I take comfort that the Law Commission deemed it necessary and appropriate that we should be looking at removing these offences from the Crimes Act, by repealing sections 81 to 85. The Law Commission said it was necessary and desirable to do that, because those provisions infringed on the principle of freedom of expression.

One would like to think that over the annals of time we have progressed as a democracy to the stage where we do not need to be as concerned about freedom of speech as the monarchies and Governments of yesteryear were. I take Mr Fairbrother’s point that since 1961 we have had this review of the Crimes Act—over some 40 years. That probably lays to rest the comment made by Ron Mark that we should wait a while, should pause, and see whether this is a sound judgment.

It is very important to balance the common interests, the appropriateness of what freedom of speech and the New Zealand Bill of Rights Act attest to—that is, the justification of expressions, and the right to express viewpoints, verbally or through apparatus, be it electronic means or otherwise. Over time there is no doubt that the meaning of “sedition” has changed. We can think of Anglo-Saxon law back many, many years ago, when the offence of sedition would have been enacted originally. However, I take this opportunity to raise a concern relating to the Minister’s reply around the freedom of speech. A lot of us in the House would take a view that the Electoral Finance Bill gags freedom of speech and suchlike. On that basis, Mr Mark’s suggestion that we pause, wait and see probably has some merit.

The meaning of “sedition” certainly has changed over time. Presently, the law invades our democratic values—the freedom of speech—and that makes it all the more important that we move on. The situation around the New Zealand Bill of Rights Act has been well canvassed, with regard to the unqualified right to be able to express one’s own views and opinions.

On that basis, and considering what other members have said, especially members on this side of the Chamber, I must commend them for having given us the confidence to be able to remove this legislation from the statute book, even though we express a level of concern about the present Government’s act of bringing forward the Electoral Finance Bill. But we trust that at the end of the day the Government will live up to the true essence of democracy and allow for freedom of speech. On that basis I take great pleasure in supporting this bill. Thank you.

Having sat on the Justice and Electoral Committee and heard the submissions, I would like to speak to the Committee stage of Part 1. It seems that for once in his life Mr Finlayson did not notice me at an event! Just starting with the summary of the submissions, I have made a note that the committee received 16 submissions; 14 supported the bill and two were opposed. Interestingly, none of the submitters provided comment on the specific clauses of the bill. Three submitters made oral submissions, and we invited the New Zealand Police to give some evidence, which was extremely useful, in my view.

Of the 14 submissions that expressed support for the bill, most were short and provided comments such as that of Associate Professor Geddis of the University of Otago faculty of law. He stated: “My submission is brief. I support this bill for the reasons outlined in the Law Commission’s very thorough report. The select committee, in my opinion, should report it back to the House in an unchanged form.” Similarly, the Canterbury community law centre stated: “We support this bill and are pleased that law reform is finally happening in this area.”

There were two opposing submissions, which one member opposite has described as weak—and I think he is right. They were the submissions of Brian Anderton and the Maxim Institute. It just goes to show that Mr Finlayson can get it right on occasion. Mr Anderton submitted that the sedition provisions should not be repealed because they may one day be needed. I think Mr Mark made this point in his speech, and I would like to deal with why the committee rejected that view. It really refers back to the Law Commission’s report.

The Law Commission noted the argument that as we do not know what the future will hold, we should not remove sedition as a weapon from the law enforcement armoury. But the Law Commission’s response—and I agree—is that the concern about the offences can be described in the same vein, because we do not know what the future will hold. We must try to ensure that the law does not contain a weapon that might be used by a future regime to suppress dissent.

Another point the Law Commission noted was the importance of protecting freedom of expression to the greatest extent possible, while ensuring that inciting violence is prohibited. A balance needs to be struck, as in all matters. The commission did not think that the current law, with the broadly drawn offences that are contained in sections 80 to 85 of the Crimes Act, caught this balance correctly; hence it recommended repeal.

The Law Commission’s third point is that a number of offences dealing with the essential elements of the seditious offences are being retained. Lynne Pillay made this point in her speech. In fact, she listed most of the existing elements of offences where there is a double-up in substance between a current provision of the criminal law and the provisions relating to sedition. So that was the third limb of the argument made by the commission in favour of repeal.

We heard from the Maxim Institute, the other submitter that suggested the current offences should be amended rather than repealed. It acknowledged that the current offences are too broad and are open to misuse, but, rather than repealing the legislation, it suggested amendment. It said that the function of the sedition provisions—and again, this echoes the arguments made by Mr Mark—is to protect lawful authority. It suggested that taking away that protection would devalue lawful authority and, therefore, our constitutional system. It said that the speech that should be prohibited is speech intentionally urging violence against lawful authority and creating an immediate or direct danger of that violence.

I think it is fair to say that the committee again adopted the Law Commission’s effective three reasons for rejecting those submissions. First, rather than advocating amendment, it thought that repeal was the best course. Amending the offences so that they focused on incitement to violence against lawful authority did not add anything to the existing offences of incitement to commit other crimes that are already proscribed by the Crimes Act. The Law Commission noted that the term “sedition” has historical baggage, and that baggage alone was enough reason for getting rid of it rather than retaining it, as argued by the Maxim Institute. Again, what was suggested should be covered by sedition is adequately covered by the current law.

I would like to conclude by dealing with the submission from the New Zealand Police. It was an extremely helpful one, and it will be seen that the report of the committee records this. We asked the police to provide us with information on their current application and use of sedition laws in order to assist us in our consideration of the bill. The police provided us with information on how decisions are made, about whether to charge, and what offences should be used. Although all sworn members of the police have the discretion about which charges to lay, checks and balances are built into the system. Also, a number of factors are taken into account, including the nature and seriousness of the alleged offence, provable facts, and then those are matched with the appropriate charge. These are then reviewed before being laid in court.

The police commented on their recent use of the sedition charge. They commented that of the three known recent prosecutions, two were actually withdrawn after a review determined that they did not fit properly with the elements of a proof of a charge of sedition. In response to questions, the police rejected quite emphatically the suggestion that there was ever any political interference in these decisions, commenting that the commissioner guards his independence fiercely. I think that is an appropriate point to record in the debate on this Committee stage of this legislation.

Kia ora, Mr Chairperson. Kia ora tātou katoa. In rising to speak to Part 1, it has just occurred to me that I may be the only one in the House who has actually been charged with sedition. The charge was laid in this House, when Ross Meurant came to Parliament fresh from his dastardly deeds as head thug for the Red Squad. He warned the country in his maiden speech of a small group of Māori—10 of us—who he said had plans to overthrow the Government, who were seditious. Well, I was one of those he named, and he was right, actually. The overthrow of the Government was exactly what I had in mind in those days. It is still what I have in mind today, and it is the promise I intend to carry out. Back then, of course, Mr Meurant was trading on his reputation as a hard man to try to cast us in a seditious light. But I note that the tough guy got all quiet when he was asked to repeat his charges outside the House.

The charge of sedition is a strange one and I am glad we are getting rid of it, because it is a contradiction. The contradiction, of course, in repealing this so-called seditious offences legislation is that the act of sedition—“To bring into hatred or contempt, or to excite disaffection against, Her Majesty, or the Government”—should even be considered an offence at all. People who have been charged with sedition are often our sharpest citizens, who are passionate about their causes and patriotic about their country. They are the peacemakers, the protestors, the movers, and the shakers of Aotearoa.

The Minister himself, like others in the Committee, has already mentioned the names of our most celebrated prophets of sedition, and I would like to do so again. They are Erueti Te Whiti o Rongomai and Tohu Kākahi, who in 1881 were both charged with “wickedly, maliciously and seditiously contriving and intending to disturb the peace”. Despite their protests and demands for a proper trial, Te Whiti and Tohu were held in custody in New Plymouth for 6 months before being shunted off to the South Island with many of their followers. Then, in another contradictory and self-serving act of legislative juggling, the Government passed the West Coast Peace Preservation Act in 1882 so that Te Whiti and Tohu would not be tried for sedition but could be detained indefinitely as the Government thought fit.

Dr Ranginui Walker explained this best when he stated in Ka Whawhai Tonu Matou: Struggle Without End in 1990: “It was by violence that a tribal (Maori) society was destroyed in the first instance, and the (Pakeha) nation state brought into being.” That so-called peace preservation law resulted in peaceful prophets being assaulted, arrested, jailed without conviction, and treated like animals, all for daring to passively resist colonial land-grabbing.

I will say that again: the so-called Terrorism Suppression Act last week resulted in peaceful prophets being assaulted, arrested, jailed without conviction, and treated like animals, all for daring to passively resist colonial land-grabbing. It just goes to show that even though it has happened in the past it seems we have not learnt from it. The so-called peace preservation law was, in fact, a declaration of war against people who were seeking nothing but peace. The so-called Terrorism Suppression Act of 2002 is in fact a declaration of war against people who also seek nothing but peace.

Then, of course, there is the man immortalised in song from last century, and in a three-part series of paintings by Colin McCahon: Tūhoe prophet, Rua Kēnana, of Maungapōhatu, who was charged with sedition in 1916 for daring to call himself a prophet of peace, for daring to call his community Hiruharama Hōu—the New Jerusalem—for daring to establish a policy of non-violence, and for daring to call upon his people to hold to their faith and not enlist for World War I. The police hunted Kēnana down, killing his son in the process, and they packed him off to Auckland to stand trial for sedition.

Then there is the man likely to be immortalised in song and a four-part series of paintings by just about anybody: Tūhoe prophet Tame Iti of Maungapōhatu, who was charged under the Terrorism Suppression Act for daring to call himself a prophet of peace, for daring to call on Tūhoe to be an independent nation, for daring to establish a policy of non-violence within the borders of Tūhoe, and for daring to call upon his people to oppose State terrorism in 2007. It is likely that the police have, in fact, hunted Tame Iti down—I sincerely hope they do not kill his son in the process—and I understand he is still in jail, as we speak, for charges that remain unknown to most of us in this House.

Also, at this end of the last century, other Māori activists, including lawyer Annette Sykes, Mike Smith, Niko Tangaroa, Ken Mair, and Tame Iti again, were accused of sedition for their intentions to incite, encourage, or procure lawlessness in protesting against the creeping control and ownership of Aotearoa by foreign investors—an issue that people are only now starting to wake up to. This is the nub of the whole issue for us. Sedition has been used to quieten the natives and to suppress and oppress anyone daring to challenge the status quo. In fact, even the former Prime Minister and president of the Law Commission, Sir Geoffrey Palmer, admits that the archaic offence of sedition is too wide and too unclear, and that it has been used to muzzle unpopular political speech.

The most recent expression of this ridiculous law, of course, came when Timothy Selwyn was charged for opposing the foreshore and seabed legislation, and there is that contradiction again. The Government passes legislation to steal away people’s rights and then it charges people with sedition for daring to oppose such theft; for daring to speak up for the Treaty, which the Prime Minister herself calls the constitutional foundation of our nation; and for daring to speak out for human rights. Selwyn made submissions, he started a petition, and he sent out emails, but he was stymied by a Government that was determined to ignore due process to ensure it got its way. So he was forced to take more direct action and—surprise, surprise; not—he gets done with a charge of sedition.

Again, I would just like to honour those who have helped to bring this bill to where it is. They are those who have suffered so we can more easily see the mean-spirited, ugly, demeaning, and destructive nature of the charge of sedition; Idiot/Savant for drafting a bill and badgering us all to sponsor it; those who still speak against conscription and war; those who still speak out for their land rights and their Treaty rights; those who still speak out against colonisation and foreign control; those who still speak out against injustice; and those who still speak out against violence and the economic abuse of power. Theirs is a fight for freedom and we dedicate this bill to them all. Kia ora tātou katoa.

Part 1 agreed to.

Part 2 Amendments to other enactments

The CHAIRPERSON (H V Ross Robertson): The question now is that Part 2—clause 6, a very narrow clause—stand part.