Administration of Justice (Reform of Contempt of Court) Bill

I move the Administration of Justice (Reform of Contempt of Court) Bill. I nominate the Justice Committee to consider the bill.

ASSISTANT SPEAKER (Adrian Rurawhe): Sorry, those aren’t the correct words. Can you—

I said them.

ASSISTANT SPEAKER (Adrian Rurawhe): That it “be now read a first time”.

I move, That the Administration of Justice (Reform of Contempt of Court) Bill be now read a first time. This is a neglected but incredibly important area of the law. The word “contempt” is perhaps misleading but there’s probably no better term to describe just what exactly the law of contempt seeks to do. First, as the explanatory note says, it seeks to ensure that court hearings are not disrupted; secondly, that trials are not unfairly prejudiced by an excess of publicity; thirdly, that jurors decide only on lawfully admitted evidence; and, very importantly, that court orders are enforced.

The other aspect of the law of contempt—and I’m going to spend a little bit of time on it this afternoon—deals with ensuring that the judiciary is protected from abuse, and, as I will say time and time again, that does not mean that judges should be mollycoddled. It’s very important in our system that judges are able to be criticised and that their judgments can be criticised. So we’re not talking about encasing the judges in cotton wool but ensuring that they are not subject to unfair and excessive abuse.

Let me begin by explaining the history of this particular area, because, as is tolerably clear, what I have done is pick up the draft bill which was appended to the Law Commission’s report on the law of contempt, and I have introduced that as a member’s bill. It may be regarded as a somewhat cheeky thing for a member to do, but I need to explain why: because for 10 years I have been very involved in trying to get this issue resolved.

Shortly after I became Attorney-General, I asked the Crown Law Office to start to look at this issue because I was concerned at the increasing abuse of judges and the many cases that seemed to be going to the courts, dealing with suppression orders being broken, and so on. The Crown Law Office engaged Professor Tony Smith from Victoria University of Wellington, who wrote a report on the subject, and then after his report was produced it was referred to the Law Commission. In due course, after a great deal of consultation of the general public and of the judges and also of the Law Society, the Law Commission published a report and appended to it a bill.

Because I strongly believe that this is an issue which calls for very careful consideration by the Parliament, I decided to put the bill in the ballot, and I was fortunate that it was pulled out. It constitutes the most important reform of the law of contempt in our country’s history. It draws on much of the work which has been done in other jurisdictions, like England and Wales, and what it seeks to do is put into one single piece of legislation all relevant issues relating to contempt. So, for example, the bill proposes the abolition of the common law contempts of contempt in the face of the court, publishing information that interferes with a fair trial, contempt by jurors, disobeying court orders, and what they call scandalising the court, while preserving the inherent jurisdiction of the court to deal with any novel issue that may arise.

There are numerous parts of the legislation that I know some of my colleagues are going to address, but, in the time available, I want to go straight to the part of the bill that deals with the publication—this is Subpart 6, “… the publication of untrue allegations or accusations against Judges or courts”.

When this bill was drawn out of the ballot, there were a number of newspaper articles on it, and there was a critical editorial in the New Zealand Herald, which of course broke my heart—which basically said that I was seeking unnecessarily to protect the judges. I’ve always agreed with what the Lord Chief Justice of England and Wales said just at the end of 2017, and I quote what he said because I think it hits the nail on the head: “judges must earn … respect, and should not be immune from criticism for their decisions; but fair criticism is different from abuse. By this I mean those cases where judges face a torrent of personal abuse for decisions they have made—increasingly online and in social media—and a growing number of cases where judges are threatened and physically abused. Some is calculated to intimidate judges individually or collectively. Such abuse is capable of undermining the rule of law. Judicial independence and impartiality is at the heart of the rule of law.”

So I don’t want to sound like a litany, but I want to emphasise the point that this legislation is not about mollycoddling judges. Of course there must be criticism, but it is about protecting them from the sort of abuse that we’ve read about in New Zealand newspapers recently, where there are various groups that are actually standing outside judges’ homes and yelling and screaming at them, and it’s even got to the stage of physical jostling. But judges have to not be too precious and there must never be an overreaction; there must be a proper and considered reaction in accordance with the legislation.

I recall many years ago someone wrote a story about a disgruntled litigant in Salisbury in 1631 who threw a brickbat at a judge and missed. What’s not quite so well known is that the litigant’s throwing arm was promptly amputated and nailed to a gibbet in the court. And the judge must have received a considerable fright, because to underline his sense of outrage the prisoner was then hanged from the same gibbet. A century or so on, a 19th century judge was in court and he had a dead cat thrown at him, and he simply remarked, “I’ll commit you for contempt if you do that again.” So apparently it was OK to throw one dead cat at a judge, but to throw two was regarded as unimpressive. [Interruption] No, I’m not talking about dead cat jumps or this Government; I am talking about throwing dead cats at judges.

So the point of the matter is that of course there is going to be criticism, and what is certainly not intended in this legislation is, as I have said, wrapping judges in cotton wool and protecting them from any criticism, because that would be totally antithetical to the sort of system that we have.

Other members, as I see it, are going to talk about various other aspects of it. I have spoken to the Minister of Justice about this matter. I have indicated to him that I am happy for him to take over the stewardship of this legislation because it is, quite properly, a Government bill, but that I wanted to do the first reading just to get the show on the road, as it were. But I have every confidence that the Minister of Justice is going to deal with this matter very carefully, because it is an important matter, and I indicate to him that I am very happy to work with him and the select committee to ensure that what comes out of the select committee and what is ultimately enacted by Parliament is an appropriate and proportionate response to some of the problems that we seem to have growing in this country in this very important area. So with those words, I thank honourable members for their interest in the legislation and I commend it to the House.

Thank you, Mr Assistant Speaker. I thank the honourable member who has just taken his seat, the Hon Christopher Finlayson, who is the sponsor of this bill at this stage, for his typically very erudite summary and adumbration of the legislation that he has brought to this House. I have to say that, actually, when told of the story of the judge who ordered the hanging of an offender from the same gibbet upon which his severed arm was attached, I did quickly consult the legislation to make sure that that member had not put that penalty in the bill itself—knowing the seriousness with which he takes the question of scandalising courts and the need to protect judges!

We follow the very fundamental principle that justice must not only be done; it must be seen to be done, and it is on the basis of that principle that our judicial system—like those in other Westminster countries—has built up a number of very important rules and principles. We have very formal rules for the administration of justice. They are very strict rules. They provide for transparency. Court must be in the open, and we have a press bench there for the many, many citizens who never get to go to court to see justice being administered, and we have accountability for our court system through the appeals process, which itself is very robust. Contempt of court, or actions that constitute the contempt of court, are actions that undermine the integrity of the court system, and are therefore to be taken very seriously and to be properly provided for.

As the honourable member who has just spoken said, contempt happens when there are breaches of orders of the court, including interlocutory orders or orders during the course of the conduct of a trial, when the court is disrupted and prevented from administering the law dispassionately and without fear or favour. Contempt happens when jurors act outside their duties and obligations to the court, and, of course, when there are malicious accusations against judges, either in court or outside court. These are all very real things which our judicial system must be protected against. The courts need to be able to respond effectively to those threats to their effective administration of justice, and I think we all understand that. The current law of contempt, as the bill acknowledges in its preface notes, is covered in statutes, and there is a lot of common law associated with it.

The Law Commission, following a reference by the previous Government, helpfully studied the law of contempt and all of the origins of it, and attempted to bring cohesion to it in their draft bill attached to their report. The Law Commission reported last year, and the Government responded, as the Government is required to do to tabled reports. The Government said in its response, in about June last year, that it agreed that the law of contempt requires modernisation and clarification and that it would give further consideration to the report’s recommendations.

However we characterise it through the effluxion of time, nothing happened, and, you know, for the great good fortune of both the Law Commission and the honourable member Chris Finlayson, his Government was booted out of office. It allowed him to then put the draft bill into the ballot. In a further stroke of good luck, his bill was drawn from the ballot, and the House is now left to consider it without the benefit of the Ministry of Justice—which I know that Minister loves so passionately—having given its due consideration to the bill. But, be that as it may, we now have the bill in front of the House.

I have said to that member that I agree with him. This is an area that ought to take the Government’s attention and energies and efforts, and, subject to Cabinet approval, I have indicated to the member that the Government will not only support the bill but is likely to adopt it so that we can give it the resources and further consideration that it certainly deserves.

I want to touch on three issues; one slightly more comprehensively than the other two. The first is, of course, it deals with suppression orders that judges must deal with from time to time. Suppression orders, of course, go against the fundamental principle of the openness of justice and the transparency of justice, but they are often needed to ensure a fair trial—that somebody is not unduly saddled with negative connotations or a negative stigma because of the yet unproven allegations that they face—and that is the right thing to do. But we do have to make sure that the correct balance has been struck between the needs of freedom of speech—the basic New Zealand Bill of Rights Act freedom that every citizen has—and the need for judges to protect the effectiveness of the administration of justice. We have to get that balance right.

The second area that the bill deals with that I think will require the select committee’s very close attention is that relating to juror misconduct. Of course, we need jurors to do their job to consider just the evidence that they have heard in court and the instructions that they have heard from the presiding judge and the guidance that counsel have provided, as well. I do wonder, however, whether the penalties provided in the draft bill go beyond what is needed to ensure better discipline amongst jurors, given that for most of them they are there, largely, on a voluntary basis and the reimbursement they get for their lost income is very, very slight, and we do not want to create a disincentive for jurors to take up that very important citizen’s role.

I regard the role of jurors and the place of jurors as highly valued in our judicial system—predominantly in the criminal jurisdiction, because that’s where they apply, but, as I had experience of more recently, the one remaining civil area in which jurors get to play a role is in defamation, of course, and it is their judgment that is very useful, I think, to the court.

The third point—and I think the honourable member Chris Finlayson touched on it—is the scandalising of the court, the making of malicious allegations about judges, whether in court or, usually, outside of court, and, of course, social media has now allowed dreadful allegations to be made about judges before anybody gets to respond. Of course, the problem with judges is that they have only one arena in which they can defend themselves, and that is their court. They cannot enter public debate and they cannot parade themselves and take on an army of PR personnel to protect their reputations, so it is right that we ensure that the law of contempt provides proper protection for judges and their reputation. But, again, I do wonder whether prison for up to two years or a $50,000 fine for a citizen who has made allegations about a judge that may not be justified is perhaps going a little too far, and whether there are other measures that could be used to restrain those who are malicious in their statements about judges. So there is that.

The final point I want to touch on, and I would be the last to want to lecture Mr Finlayson, because he is a most erudite member of the members opposite—in fact, I would say the only erudite member of members opposite—but I am going to give him a little lesson that relates to schedule 2 of the bill. It is the part of schedule 2 that deals with an amendment to the Employment Relations Act, and it is that part of the Act that declares that the Employment Court is to be considered as equivalent in rank to the District Court. In that provision alone, the Law Commission—who, I understand, drafted that part of the bill—and the member who is now sponsoring it are defying 150 years or thereabouts of history.

Let me give him the history of the current Employment Court, that had as its most recent predecessor the Labour Court in the 1987 legislation and, before that, the Arbitration Court, that was provided for in the 1973 legislation and legislation that came through in, I think, the 1950s, that ultimately traces its way back to the 1893 legislation that set up the original Arbitration Court. The original Arbitration Court—and, indeed, right through its history, down to the advent of the Labour Court in 1987—was staffed by judges from what was then the Supreme Court, now equivalent to the High Court. In fact, it was regarded as a great privilege for the senior puisne judge of the then Supreme Court, and, subsequently, the High Court, to be on the Arbitration Court.

The Arbitration Court, sadly, fell into disgrace in 1968 with its zero general wage order, but its reputation was re-established subsequently, certainly in the Labour Court and in the Employment Court. One of the reasons why I think the Government should take over the bill is to ensure that that historical anomaly is properly corrected and the proper stages of the Employment Court are preserved and left intact.

That aside, I think this bill is well worth the consideration and the effort of this House now, and I look forward to the submissions to the select committee on it.

Thank you, Madam Deputy Speaker. I rise in support of the Administration of Justice (Reform of Contempt of Court) Bill in this first reading, and I’d like to start by thanking the Hon Chris Finlayson. I think that he is an excellent shadow Attorney-General. He was an excellent Attorney-General when it was a National-led Government, and I think that his ideas are, in fact, very handy to the legal profession and law students around New Zealand. I’m not sure whether the Hon Chris Finlayson has been called a handyman before, but certainly there are a raft of bills and legislation that he has come up with that have looked to simplify the law, to codify the law, and to put in place pragmatic solutions to make the interpretation of law better in New Zealand, and this is no exception, obviously.

This is, of course, about the law of contempt. This bill is about upholding judicial process, but it brings together a raft of rules and laws relating to the law of contempt that are scattered around various other Acts—very piecemeal. It brings them together so that they can be modernised and easily understood and easily found and easily interpreted. So I congratulate the member on bringing this bill together. It’s long overdue. It’s something that is supported, of course, by the Law Society, and it’s wonderful—well, hopefully, it will go through its first reading and be further tested at select committee.

So, in particular, I wanted to focus on the modernisation of the law of contempt in relation to the digital age. Of course, going to court used to be this mysterious, mystical type of process, but with the digital age everything is demystified and that includes the court. It means that information travels fast and, without thinking, information can be placed on the internet whether it be via Twitter or Instagram or Facebook without any thought and without any thought to ramifications. Of course, the law of contempt is there to ensure that a defendant has a fair trial and has a fair go, because let’s face it, when it comes to criminal proceedings, if you are facing that burden as a defendant, you want to make sure that you are treated fairly and that the rule of law is upheld.

So it comes down to two parts in this bill: Subpart 2, with regard to the publication of criminal trial information, and also Subpart 4, relating to the responsibilities surrounding jurors. That is about the publication of information that can occur over the internet. Now, I think everybody in this House has probably been subject to armchair warriors that sit behind their computers and fire off bits of information that are untested and can, quite frankly, be very hurtful at the end of the day, and that is a serious thing when we’re talking about criminal trials.

Part 2 deals with publications relating to a defendant’s past and whether or not that could potentially affect a trial and whether that defendant would get a fair go if that information is publicly out there. Then, of course, as I’ve mentioned with regard to Subpart 4, the ability for jurors to go online and research a defendant’s history or engage in public discussion about a defendant’s history or about the case—obviously, that is prohibited. I acknowledge the previous speakers in that we need to strike a balance between allowing people to talk freely and talk about matters that are of interest to the public, but, ultimately, the rule of law must be protected, and the judiciary and the judiciary’s proceedings must be protected to give people a fair go when they are facing criminal allegations. So that will be tested at select committee and I welcome that discussion as we move forward.

I rise to take a call to support this bill. I should congratulate the Hon Christopher Finlayson. The former Attorney-General couldn’t convince his colleagues over the last 10 years, but he could manage to convince his luck to get his member’s bill drawn from the ballot, and here we are. I’d like also to thank him for referring his bill to the Justice Committee. How many bills do we have now?

💬 Virginia Andersen: Fourteen.

Fourteen.

💬 Marja Lubeck: Lucky you!

Lucky us. Probably, we will get another one from Minister Nanaia Mahuta as well. So there’s 15, probably 16. I’d like to thank the Hon Christopher Finlayson for his contributions to the Justice Committee. We have established a subcommittee specifically for the Trusts Bill, and for each session we spent a significant amount of time, good quality time, discussing legal issues—for instance, trying to find the legal definition of negligence, gross negligence, and recklessness, although some members mentioned that we may use the facial expression or the tone of the speeches of the Hon Nick Smith to help gauge for us the level of legal definition between negligence, gross negligence, and recklessness! That’s a light-hearted joke. Hopefully, Dr Smith won’t take it to heart.

Why I mentioned Dr Smith’s name is because whenever we tried to do a Google search and type in “contempt of court”, his name popped up, because as a member he was fined $5,000 for making a critical comment on a Family Court case. Whether that sort of a gesture would amount to a kind of contempt of court—if so, how to strike a balance between the protection of the integrity of our justice system and the freedom of speech and what we should do to adapt to the internet age, because the current contempt law was developed before the rise of the internet and e-commerce or e-economy. New technologies such as e-commerce, e-technology, or the development of social media have certainly changed our lives and have certainly transformed business and Government and also individuals’ behaviour.

So this bill seeks to address the three most important issues. One is the contempt of court, because at the moment our law is kind of a mixture of statutory law and case law—i.e., the court-made law or the decisions of the courts. Secondly, where and how to strike a balance between contempt of court and freedom of expression. And, thirdly, as I said, how to adapt to the current digital economy, e-commerce, or the internet age.

This bill, based largely on the recommendations of the Law Commission, seeks to address the three most important issues in such a manner. Firstly, this bill will ensure the law of contempt is accessible to those it affects. Currently, the law is not accessible because, as I said, it’s kind of a mixture—even some commentators have used the words hodgepodge—of common law and statutory law. Secondly, the bill will ensure the law is clear and easily understandable. The law is not currently clear to New Zealanders, because courts are still developing the boundary of the law, especially the line between contempt and freedom of expression. Thirdly, the bill will make the law of contempt workable. In several significant aspects, the law is not working as it should. The law for contempt was developed prior to the internet age and the enactment of the New Zealand Bill of Rights Act 1990, so the law of contempt has not kept pace with the digital age.

So I commend the member for having the luck of having the member’s bill drawn from the ballot, and I very much look forward to the submissions and progress of this very important bill. Thank you.

Thank you, Madam Assistant Speaker. It’s a pleasure to rise on behalf of New Zealand First to speak on the Administration of Justice (Reform of Contempt of Court) Bill. New Zealand First will be supporting this bill, mainly because, reading through it, it is a common-sense bill and it has a lot of provisions in the bill itself that seem quite simple and straightforward and quite essential. It’s just quite unfortunate that it wasn’t brought forward during the previous tenure of the National Government—having to come through, as everyone I think who has spoken so far tonight has said, by means of luck and not because of the drive of the National Party or what they should have done. I think that it’s a good thing that it has been pulled and I think it’s also a good thing that the Minister of Justice, Andrew Little, is going to take it over and ensure that all the resources are put towards it, because it is something that needs to be done.

We have heard already today all of the definitions of what contempt of court means in different parts of the judicial system, and what the biggest and most important parts of the bill are that the bill wants to seek to address. Really, when it boils down to it, it is ensuring that we have and maintain a robust democracy, because one of the essential parts and foundations of a robust democracy is a fully functioning, effective, and, most importantly, understood judicial system and justice system. In order for that to happen, one of the essential parts of a justice system to be effective, to be functioning fairly, is for the law of contempt to be able to be upheld, understood, easily accessible, and to make sure that it’s maintaining and keeping up with technology and the evolution of the society around it.

As we’ve heard, currently the problem that the bill is trying to solve—and it will solve, once it passes through the House—is that since 1841 or thereabouts the evolution of the law, in the way that the law of contempt has evolved, has been quite haphazard and all over the place. It resides in different Acts and in case law. That makes it extremely hard, not only for the public to understand—although they probably wouldn’t be one of the major players in ensuring that they understand what the law of contempt is—but also for the judges and counsel as well, who are finding it hard to understand and to access. What that does is it leads to a lack of coherence, and especially a vagary in the actual scope of what the law of contempt is, and that is not a good thing—especially with the rapidly evolving modern technology and environment that we are in today.

Just the three major points that this bill wishes to concern itself with, and they were noted down by the Law Commission’s report that this bill, now put through as a member’s bill, was attached to—the three main areas that the bill wants to address are the law of contempt, to make sure that it is accessible; to ensure that the law is clear and easily understandable; and to ensure that the law of contempt is workable. Those are the three main areas.

💬 Alastair Scott: Wind it up.

Like I said right at the start, those three things may seem like they are common sense and essential, so why didn’t the National Government put it through in 2013 once the report was done? That’s the question that I’d like that member to answer when he stands up and takes a call. New Zealand First will be supporting this bill.

Thank you, Madam Deputy Speaker. It’s a pleasure to rise with some energy on the Administration of Justice (Reform of Contempt of Court) Bill, which is a member’s bill, of course, at this stage, in the name of the Hon Christopher Finlayson QC. I acknowledge the member for his hard work on that bill, and, indeed, many other items of work in his time as a Minister in the previous National Government.

We’ve heard a number of different reasons that this law is very timely and, indeed, the importance of the law of contempt in general. I’d like to focus in my contribution on the one that has already been outlined by Christopher Finlayson, namely the one to ensure that jurors decide cases only on lawfully admitted evidence and not things outside that realm.

So it seems to me worthwhile to take a moment to consider the role that jurors within juries in our criminal justice, and indeed civil justice systems, play. They are laypersons, of course, invariably, and that’s a design, not an accident, of our system—or a feature, rather than a bug, I suppose you might say. They’re very much a part of the administration of justice, and yet, of course, they’re not permanent members but are chosen specifically because they can contribute in a way that reflects their ordinary nature—I suppose you might say—with no patronising intent behind that phrase.

So, providing direction in the form of this bill, which brings together a number of elements, is for the benefit of jurors, essentially, because it enables them to understand their obligations, but also for the benefit of the actors within the justice system, whether on the prosecution side or defendants or others, as the case may be, and also for the benefit of the system more generally—the rule of law, you might say. So it seems to me very important that we have this part of our system as a very robust and clear part of the system.

I mention clarity because the accessibility of the law currently is not. I suppose we might say that it’s difficult to access because it is existing in various different places, including statute, common law, and, of course, the Netflix series Suits. This point was made to me by my lecturer in criminal law—albeit without the reference to the more recent television show—Associate Professor Bernard Brown, and I’d like to acknowledge his contribution to jurisprudence, as well as various other legal academics and, of course, jurists over the ages.

So, talking to the provisions of the bill as they relate to juries—Subpart 4, for anyone following along at home, and I know they will be. First, an offence is created for jury members to investigate or research a case. So, in essence, during the period of the trial it will be an offence for a juror to intentionally research or investigate information relevant to the case, or I suppose we could say information that they consider to be relevant to the case, in the ordinary sense of that phrase, albeit that, of course, in the context of a jury trial, the only information that is, or should be, relevant to the case is that which is presented to the court in accordance with the rules of the court and the Evidence Act, and so forth.

Another offence that is created, or rather codified to the extent that the legislation merely confirms various common law provisions, is that of disclosing jury deliberations. It is an offence, under clause 20 of this bill, if a person intentionally discloses, solicits, or obtains information about statements made during the course of the trial, in essence. It’s worth noting, I think, that this offence would be committed by a person who sought to obtain that information and not merely just a juror himself or herself who would be part of that act.

So it seems to me that between that, and the other offence, which I’ll skip over very lightly, in the interests of time, which is the disclosure of jury deliberations following a trial, we have a very good suite of provisions that will protect the role of the jurors and maintain it to a proper ambit during a trial.

Thank you, Madam Deputy Speaker. I rise with great pleasure to commend this bill to the House, and I would like to congratulate the member, the Hon Chris Finlayson QC, for his work on this bill. It’s a pleasure to read a bill that has its origins in the work of the profession and is brought by a member of that profession. I enjoyed the origin story of this bill greatly: that the Law Commission, after looking into this very complex area—and the justice system is also not only complex but very fast moving. It is great to see this House take direction from those at the front lines of that system, to amend our laws and reflect their needs.

The piece of work that was done by the Law Commission recommended that the law of contempt be collected in a single piece of legislation; that the language of that law be modernised, because it was considered antiquated by the Law Commission; and, specifically, that the law be modernised to keep up with the digital age. So, essentially, we were told to bring the laws of contempt into the 21st century, and that is, in fact, what this legislation seeks to do, and I think does with great effectiveness.

The law of contempt is something that actually is essential to the administration of our justice system. It is something that protects the fairness of proceedings. It focuses the minds of jurors, who are laypersons, on what is reliable, credible, lawfully admitted evidence in a proceeding. It protects not only the accused, which it does in many cases, but it also protects prejudice from seeping into the process against witnesses, complainants, and victims and, essentially, marring that process. Simplifying that law and making it knowable to members of the public, including members of juries and members of the media, is, in fact, a component of the right to justice itself. The right to justice actually requires our law to make itself knowable—not to be vague; not to be so amorphous, as the law of contempt had become—so that contempt proceedings themselves are fair.

In fact, in New Zealand, much of the law defining contempt of court was contained in case law, which is very inaccessible to laypersons. To require members of the public to read case law in order to know how to avoid being in contempt of court proceedings is really asking too much. So what kind of activity is considered contempt and at what point and to what degree that activity would have to be undertaken before it becomes contempt was all contained in not only different pieces of legislation but case law where that type of activity had been litigated. That really was unacceptable.

So this law—and the parts of it that I do really want to focus on are the parts that focus on modernising in the digital age. Actually defining, as part of the law of contempt, where juries go off and research material to do with a trial during a trial is enormously useful. This is actually a standard direction that judges give to juries currently in New Zealand criminal trials, but it makes it clear that you can’t go off on Facebook and judge a witness or an accused person based on what they’re wearing or whether they were drinking last night and bring that into a trial. That is what happens now. Defining a publisher as an online publisher, as a blog—and most of us get our information from those types of sources—that’s essential. And not only that; protecting the impartiality of our courts by protecting judges against that kind of publication online.

So I do commend this bill to the House, because I know that, actually, we have been suffering in our trial proceedings from just this kind of thing, and courts haven’t necessarily been able to hold people to account who do undermine our system of justice in this way, but now we will be. Thank you.

Madam Deputy Speaker, I stand to speak in support of this bill, and while I congratulate the Hon Chris Finlayson on the bill, I won’t try to talk up his virtues as others have here. I know that, as an ex - head prefect of mine, he can talk up his own virtues far better than anyone else in this House could ever, so I’ll refrain from doing that. He did, though—

💬 Hon Christopher Finlayson: You’ve never forgiven me for putting you on detention.

It was only smoking. I was only smoking. But I will refer to one anecdote. Sometimes when we are talking about contempt, there’s always, around the edges, the grey area of where the threshold lies. Perhaps a good case we might like to consider—if you can imagine a defendant standing in a dock, somewhat dishevelled, quite a character; an equally character judge—I believe it may have been Judge Carruthers who was on the bench, one of the best judges I ever appeared before. He was about to sentence him, and he was going through quite a lengthy discourse about the seriousness of the offending, and it was quite clear it may be some sort of a serious sentence that he was going to be subjected to. At that stage, he pulled out his phone and said, “Beam me up Scottie, I’m in the crap.” Whether that would, under the law, or whether that, Mr Finlayson, would actually be contempt I’m not quite sure, but, certainly, it’s good to have real live cases that we can actually judge these things against.

I see the three aims of the bill being to promote and facilitate the administration of justice and uphold the rule of law. Of course, any piece of legislation—criminal legislation—we consider in this House should be about that very thing. But I’d like to focus on the second part of those aims, which is “maintain public confidence in the judicial system”, and that’s really what contempt is about. Often when people are entering the system at any stage, whether they be a complainant, a victim, or an offender going into the system, one piece of warning I always give them is don’t expect this to happen quickly. The wheels of justice do grind quite slowly, but as someone who’s been involved in those wheels of justice over the years, I believe we generally get it right. Even those who are quite critical, the closer they are to the system—and it’s quite often I see that where those who’ve been highly critical of cases believe that there may be an injustice, those who’ve actually sat through the system, sat through the cases—they are often those who become the greatest advocates for the outcome, rather than those who are taking their lead and getting the information from headlines, books that are written, and certainly those who weren’t able to avail themselves of all the facts available. So it’s important for our justice system that those involved at any level have confidence in that system.

I often hear talk about the courts not being very friendly places—they’re not comfortable places, particularly for offenders or defendants, depending on what stage of the trial they’re at or the process they’re at. Well, I don’t believe they should be that comfortable, because part of that is that many of those who end up there are people who have very little other discipline in their lives and very little else that they have any respect for. But, over my years, I’ve seen that people for whom going to court is actually quite an experience, they actually have a grudging respect for the system. They have a grudging respect for the rules, and you’ve only got to see what happens when they believe, genuinely, that injustice has happened—the outrage—to make them understand that, generally, they have a great faith in the system.

So when I look at what is being proposed—prohibiting the publication of certain criminal trial information—that’s a good system. For many of those who say, “Why shouldn’t the jury know everything about everyone that’s come in?”, I ask them to put themselves in that same situation—whether they were facing a parking ticket, if they would actually believe that, if they are going to be judged, they should be judged on the facts before them. That’s not to say there is the opportunity for similar fact evidence, which I haven’t got time to go into today, where a crime or the circumstances of a crime are so proximate, are so alike to what’s happened before, that they can be used. But, generally, innocence should be the presumption, and this certainly ensures that that is maintained.

There are many other aspects of this bill that we will have the opportunity to discuss over coming months, and, certainly, being on the overworked—well, certainly, heavily laden—Justice Committee, I look forward to actually being able to do more work on this bill. I recommend this bill to the House.

Thank you very much, Madam Deputy Speaker. It’s a pleasure to be able to take a call on the Administration of Justice (Reform of Contempt of Court) Bill in the name of the Hon Christopher Finlayson. I’d like to congratulate him on being able to progress such an important issue in regard to contempt and to reform an area of law which is in significant need of doing so, but also on the pleasure that you’ll be giving to many future students of the law who will be able to look at codified legislation rather than having to look up court cases to try and find out what the law is.

I’m also very pleased to hear that the Government is intending to adopt this legislation and take this on board as a Government piece of legislation, to allow the Ministry of Justice to be able to work alongside the select committee to ensure that this is properly analysed and implemented, because it is a large piece of legislation. I think that’s also very helpful for the Government, to ensure that they’ve got a slightly fuller Order Paper, because it’s getting quite light at the moment. I’m sure the Minister of Justice could probably take a few more leaves out of the Hon Christopher Finlayson’s book, if needed, to ensure that we can continue to help progress National Party legislation through this House.

The area of contempt of court has actually been an area of interest of mine. When I was at law school, I wrote a dissertation around name suppression, so I was interested in looking at the way that this legislation proposes to codify some of the principles around name suppression, and I think that’s something which I would like to draw to the attention of the House this afternoon, in Part 2.

Name suppression’s an important part of the proceedings of the court. It allows the courts to be able to ensure that justice can be done. It is about ensuring that there is a proper balance between open justice and also ensuring that justice is actually done, and that requires name suppression, it requires suppression of the facts, and there need to be proper principles around how that should be done. I guess that was the summary of my dissertation: to ensure that that was to be properly included in our legislation.

So I’m pleased to read in Part 2 that these principles have been included in the legislation under clause 15, “How court determines whether publication creates real risk of prejudice to right to fair trial—(1) In determining whether, for the purpose … a publication creates a real risk … the court must consider”—

💬 Dr Duncan Webb: Oh, there’ll be some good case law on that.

There’s plenty of case law on this, but this is about codifying that case law to make sure that the following principles take into account “(a) the likely effect of the publication as a whole: (b) the persons or groups of persons to whom the publication is likely to be made available: (c) the medium in which the publication is presented … (d) the character of the publication,” and a range of other factors. So I think that’s an important piece of progress in our legislation, and I’m pleased to see that that will be going through.

I think not only does that ensure that we have this balance but we also ensure that there are some teeth to give the courts the appropriate ability to back that up and that there are a range of offences and a range of provisions to ensure that if someone was to breach those offences, the courts have the appropriate statutory powers to be able to address those concerns and address those offences.

I commend this bill to the House. I think it’s an excellent piece of legislation. I’m pleased to see that, again, as the Government has indicated, they will be picking this up and taking this further and ensuring that we have legislation which appropriately addresses not only an important area of law but an area of law which has changed dramatically over the last number of years as technology has developed, as society has changed, and as the way we interact with our justice system continues to change and develop as well. So thank you very much, Madam Deputy Speaker. I commend the bill to the House.

It’s a pleasure to rise to speak on the Administration of Justice (Reform of Contempt of Court) Bill. It’s good to see agreement across the House on a bill that makes good sense. There’s been quite a few members’ bills drawn from the National Party, I acknowledge, and it’s good to finally see one that actually does something sensible. So I’m pleased to say that Labour will be supporting this bill.

I’d like to acknowledge—in terms of looking at the background, briefly—the role that Chris Finlayson has played and acknowledge that he has taken the initiative to look at the Law Commission’s report in the space of contempt of court and the draft bill that was attached to their report, and to submit this to the House in his name. Under good luck, it has been drawn.

So contempt of court—in terms of what we see is, really, an undermining of the integrity of the justice system and the court system. It’s important that we can be reassured that court proceedings will not be disrupted, that the judiciary are respected, and that good process is followed. On that note, it’s really important to see that it is important that justice is seen to be done.

I’ll briefly recall a slightly amusing story. A good friend of mine, on her first time as a duty solicitor, was representing somebody who had been charged with a minor cannabis offence who stood in the dock wearing a “legalise cannabis” T-shirt and addressed the judge by saying, “What’s the haps, Judge?” So in terms of making sure that people follow good process—it’s not at the extreme end of contempt of court, but it’s important to note that we must be pleased with the way our justice system is run and our court system is running, and that people see that it runs well.

This bill tidies up a range of legislation that’s peppered across different outcomes from court cases. It has evolved in a rather piecemeal fashion. It’s also noted here that the existing law pre-dates the digital age. One of the biggest changes I have seen is the change, really, of social media and what that means. What it has meant, in a sense, is that we have so many people that now have the ability to not only find out information but also to generate it themselves and to distribute that information. Keeping that in mind, we are also in an age where court cases are discussed frequently in the media, where online media access means that there are comments and debates around certain rulings that judges have made. So the combination of the increased access of social media and the increase of how much court cases are regularly discussed is a pretty potent combination. This gives rise to the need for this bill to take place.

So the Law Commission has made three key points in terms of what it recommends. When I read these through, it struck me how much this resonated with the fact of the increased access of social media. So the first is clearer statutory rules governing the publishing of information on an arrested person’s previous convictions and concurrent charges; the second one being new statutory powers allowing the courts to make temporary suppression orders postponing publication of information that poses a real risk of prejudice to an arrested person’s trial. Thirdly is a new statutory offence to replace the common law contempt of publishing information where there is a real risk that the publication could prejudice that fair trial. So it’s good to see that those key recommendations that relate to that are now being reflected in this bill by limiting the publication of trial-related information and by imposing fines to stop that behaviour continuing.

The last point I will touch on before finishing is that it’s good to see that there is also clear provision on how our judges are treated, to make sure that there are good processes in place, and that this law is combined in one clear readable space to acknowledge that judges do a hard job on a daily basis, and that that needs to happen as well.

So I’d like to thank the member for bringing this bill to the House, and I would like to commend this bill to the House. Thank you.

Thank you. Before I call the next speaker, can I apologise for you having to work without the clock going. Well timed.

Can I thank honourable members for their excellent contributions to this matter. It’s great to see that there is a recognition across the House that even if this bill is not perfect and will need to be worked on by the Justice Committee, the broad principles are accepted, namely the importance of clarifying the law and ensuring that in a digital age everyone knows where he or she stands in relation to what can be done.

I really appreciated the contribution of the Minister of Justice, and I have to say, on reflection, he’s absolutely right in what he said about the reference in schedule 2 “Consequential amendments to other enactments”, that refers to the Employment Relations Act 2000 and the categorisation of the Employment Court, in replacement section 196, “(a) as if the court were the District Court;”, because, actually, his analysis of the history is quite right: it is a court which is not part of the District Court system; it’s the equivalent for industrial relations matters of the High Court. So that’s the first piece of work the Justice Committee will need to do to make sure that the definition of court recognises the Employment Court as a distinct court and not treated as though it were part of the District Court.

The second point that he made is a very important one, and the select committee’s going to have to spend some time having a good hard look at these provisions—clauses 26 and 27—about whether or not that is an excessive response to contempt involving a judge. Of course, they are matters that there will be submissions on, and, hopefully, there will be an opportunity to get the balance right, because, as I emphasised and emphasised again, what I don’t want to do is shut down criticism of judges, but any criticism or any abuse that undermines the administration of justice and interferes with the rule of law.

I want to thank all speakers for the comments they have made about the current inaccessibility of the law and the idea of putting all law relating to the law of contempt in one place so that people, as I have said, know what their responsibilities are—what they can and cannot do.

It is a rather odd position, I acknowledge, for a Government to take over an Opposition member’s bill. Technically, I suppose, one could say this is not quite an Opposition member’s bill because I put it in the ballot—it’s been done before, but it does raise important constitutional questions, and that’s why I’m happy for the Government to take over the bill and work with them. I think that sounds a bit “Pollyanna-ish”, because we are an adversarial place, I suppose, but on these sorts of issues—they’re not really party political issues. It’s important for the rule of law and the separation of powers that we get this stuff right, and so I will be prepared to work with them, as indeed the National Party will, to make sure the legislation’s final product is fit for purpose legislation that will serve the interest of justice.

So, once again, I thank honourable members for their very, very helpful and generous contributions, and commend the bill to the House.

Bill read a first time.

Bill referred to the Justice Committee.