Crimes (Repeal of Seditious Offences) Amendment Bill

I certainly hope it is not trifling with the Chair when I say I agree with you that this is a very narrow point and I think I can be very brief on behalf of the National Party in addressing Part 2, because it deals simply with amendments to other enactments and, indeed, there is but one—an amendment to the District Courts Act 1947.

Part 2A of the District Courts Act sets up the criminal jurisdiction of that court in respect of indictable offences and it was inserted in May 1981. Section 28A sets out the extent of the jurisdiction conferred on the District Court under this part, and I am not going to go through that section in any detail. Suffice it to say, it confers on the District Court a jurisdiction to try certain indictable offences and these are more particularly referred to in schedule 1A of the District Courts Act, and in Part 1 of schedule 1A are the offences we are dealing with this afternoon. As can be seen from clause 6, it is proposed that the items relating to sections 82 to 85 of the Crimes Act in Part 1 of schedule 1A be repealed and of necessity where one deals with the proposals in Part 1, it follows that the offences be struck out of Part 1 of schedule 1A of the District Courts Act.

So that is all that needs to be said about clause 6. It is a logical clause and, of course, if one supports the repeal of the seditious offences legislation, if one supports Part 1, then—unless one is a complete moron—one has to support clause 6.

I do not want to speak in support of the previous speaker, Chris Finlayson, because of the threat in his concluding comments, although I would have trouble escaping that label on many occasions, particularly since coming here. However, I have to say that this legislation demonstrates the folly of the law of sedition. The law of sedition is a serious crime in the Crimes Act, if it ever was fully realised, because it is a crime against the State not far removed from the crime of treason in concept. But, of course, because it relates only to words, it is a rare instance when it can properly be charged and those instances cannot be morally justified.

In 1981 this crime was brought within the range of criminal trials that could occur under the District Courts Act. The District Court was created following a commission of inquiry set up by Justice Beattie, as he then was, who recommended a review of court structure. He envisaged a District Court being known as the “People’s Court” where trials would take place in as many court districts as possible so that one would have trials at District Courts that sometimes may be only 30 kilometres apart. That was a very good idea to start off with, and court rooms were modified so that 12 jurors and a range of counsel could be squeezed in, but it proved to be totally unworkable because the buildings did not accommodate that sort of activity and the staff were not so trained, so gradually the District Courts retreated back generally to the High Court jurisdiction venues and then they ran in parallel series but dealing generally with less serious offences.

So it was a little strange, and perhaps it is a reflection of the time, that in 1981 no one cast his or her mind as to whether the law of sedition was intrinsically serious enough to remain in the High Court with other very serious offences or whether it was too trivial to worry about at all. The irony is that someone could be charged with treason—as was the case then—and that would be tried in the High Court, and someone could be charged with sedition and that case could be moved down to the District Court by election of either the accused or the determination of the deciding High Court judge. In 1981, when this was placed in a schedule that is very hard to read even to this day, we had a reasonably mindless following through of what was an innovative view of the courts back then by the then Justice Beattie’s review of the court system.

My experience in Parliament now is that parliamentary counsel are rigorous—and it probably reflects the computerised age, I might say, as well as an overall high standard of competence of parliamentary counsel—and that any consequential amendments to other legislation are picked up and are generally brought before the notice of a select committee, if not to sign off then at least to consider. It would be my view that back in 1981, if this matter had been brought to the attention of the House, and if there had been a select committee considering the establishment of the District Courts and what offences they should deal with, then there would have been a more careful consideration. Someone would have asked: what are we really doing with this law of sedition; is it relevant; what prosecutions will follow; does it have the certainty required of our Crimes Act; should we be even bothering with it; and why do we not recommend in a report to the House the abolition of it? If that had occurred, given that the New Zealand Bill of Rights Act followed only 9 or 10 years later, one could imagine that this debate could have been sparked off back in 1981. I daresay then that Timothy Selwyn may have been saved from being convicted of the offence of sedition, but he surely would have been caught by other crimes, such as inciting wilful damage.

What we have today, by this concentration on Part 2, which seems entirely technical and of a very narrow compass, reflects a movement in our legislative lawmaking in this Parliament from what was obviously a cumbersome process back in 1981, to a very sophisticated process today whereby select committees are enjoined by parliamentary counsel and by their advisers to look at consequential changes and to take a more holistic approach. What we are really doing today is a clean-up of the statute book, which should have occurred back in 1981, in my view, and certainly back in 1990 when the New Zealand Bill of Rights Act went through its legislative changes. It is difficult, and I think everybody except New Zealand First agrees that there is no substance these days to the law of sedition. It is a pity that was not seen back in 1981.

As you have commented, Mr Chair, this is a very narrow debate on Part 2 of the Crimes (Repeal of Seditious Offences) Amendment Bill. But as we look at these changes that have been made to the District Courts Act, consequent upon the planned passage of Part 1, we would do well to remind ourselves that the courts in New Zealand are not established by royal prerogative. They are not established by convention. They have a very pure statutory base. In the case of the District Courts, it is a base established by the District Courts Act 1947.

Clause 6 takes away a jurisdiction that the District Court had in respect of various crimes against public order in the Crimes Act. That leaves remaining for the jurisdiction of the District Court, in connection with crimes against public order, only two offences. The first offence relates to oaths to commit offences—a rather curiously named crime. But, in effect, what happens in terms of that offence-creating provision is to set a penalty of 5 years’ imprisonment for people who administer or who are present or who consent to the administration of oaths purporting to bind others to commit any offence.

So in summary I say that it is basically a “blood brother” offence whereby people get together and swear to take part in criminal activity, and that offence remains. It remains as part of one of the crimes against public order. The other is section 90 of the Crimes Act, which deals with riotous damage. When one sees what is then left for the jurisdiction of the High Court, one finds that it is a bit of a hotchpotch of crimes against public order that continues. So there are offences like inciting to mutiny, like espionage, like communication of official information that is wrongful, like an old offence called forcible entry and detainer, like piracy, like slave dealing, and, finally, like a relatively newly created offence in section 98A of the Crimes Act that deals with participation in criminal gangs.

So there it is. Part 2 is a modest part that is, in effect, a machinery provision containing consequential outcomes that, if Part 1 is passed, will see those jurisdiction provisions removed for the District Court, its officers, and the juries that sit in judgment on criminal activity in that lower court.

I was listening to Russell Fairbrother speaking, and I say that I think it is worthwhile looking at the two streams that are leading us to this decision tonight. One is that we are removing from our democratic parliamentary system those laws restraining free speech that have been applied during the period of our democratic Government in the 1900s.

When we look at the actual provisions, we see that, in another sense, it is a case of the parliamentary system maturing and moving away from the monarchy. It is no accident to see, when we look at section 81 of the Crimes Act, which states: “To bring into hatred or contempt, or to excite disaffection against, Her Majesty, or the Government of New Zealand …”, that Her Majesty comes first. It is true that Her Majesty is the official head of State.

The CHAIRPERSON (H V Ross Robertson): This is a very narrow debate.

Yes, but it relates to our court system and our parliamentary system in that this legislation represents a maturing of parliamentary democracy, away from the traditional system that existed in earlier centuries, particularly in Britain, where the monarchy had more powers vis-à-vis the Parliament. Sedition laws were originally brought in and carried through to today to protect the monarch against the development of the Parliament and against criticism in the Parliament and amongst the people. I think it would be useful to look at this as a maturing of our democracy, in the parliamentary sense.

As has been said, the debate on Part 2 confines itself to the provisions that repeal the substantive jurisdictional provisions concerning the sedition offences. It is interesting to look, as Dr Worth began to do, at what is left on the statute book relating to what is able to be punished by the law in this broad area. As Lynne Pillay said in her contribution on Part 1, there are the thought and intention crimes relating to the incitement and conspiracy provisions in the Crimes Act. Obviously, I think as Dr Worth said, there is treason, but also there are other provisions such as those to do with riot, unlawful assembly, criminal nuisance, and there are the offences in the Summary Offences Act.

Also, I think probably of relevance in terms of what remains on the statute book is the offence of inciting racial disharmony, which, of course, is an offence under the Human Rights Act 1993. The fact that a victim of an offence was targeted because he or she was part of a particular group, such as race, colour, nationality, or religion, can be taken into account also at sentencing as an aggravating factor under the Sentencing Act 2002, which was passed in the previous term of this Labour-led Government. In such circumstances the offender may be subject to a higher sentence if it can be shown that the person incited the offence because of his or her attitude toward the victim’s race, nationality, or religion.

It is clear then, and I think that the House can be comforted, that the removal of these provisions, and also the substantive provisions that are repealed by clause 5, still leaves New Zealand’s criminal law in a position where offences that need to be dealt with by the criminal law can still be dealt with by the law, and indeed they can be dealt with more appropriately by that law. It is interesting to compare the approach that is being taken in New Zealand, where the District Court’s jurisdiction is being in part deprived, consequent on the repeal of the substantive provisions, with the provisions that obtain both in the United Kingdom and in Australia.

In the United Kingdom, presumably, the Crown Court has jurisdiction over common law seditious libel offences, at least at first instance. Of course, in the United Kingdom, prosecutions for seditious offences have been few and far between in the 20th century. There was the 1977 United Kingdom Law Commission report into sedition, where the preliminary view was that there was no longer any need for the offence. None the less, despite that, the common law offences remain in the United Kingdom, and proceedings can lie under those common law offences—which, of course, are not known to the law in New Zealand—in the Crown Court.

In Australia, I imagine, the Federal Court is the court that is seized with the first instance jurisdiction to deal with the offences relating to sedition. It is interesting to note that in 2005 the Australian Government decided to modernise sedition laws in that jurisdiction and to adapt them for anti-terrorism measures, and also to increase the penalties associated with them. That is a different approach from the one now being taken in New Zealand.

None the less, clearly Part 2 is to be commended to the House. It is an essential and sensible component to those provisions found in Part 1.