Administration of Justice (Reform of Contempt of Court) Bill

I move, That the Administration of Justice (Reform of Contempt of Court) Bill be now read a second time.

Contempt of court is an important area of law. It’s fundamental to the effective functioning of our justice system. It ensures that the courts operate fairly and effectively. The law of contempt deals with a range of different actions that risk undermining the fair administration of justice and the public’s confidence in our system of justice. Contempt occurs when there are breaches of orders made by the courts. It occurs when the court is disrupted, and is prevented from dealing efficiently with a case before it, or when trials are unfairly prejudiced by excess publicity. Contempt also occurs when jurors act in breach of their duties and obligations to the courts.

What all of these actions have in common is they interfere with the ability of our courts to do justice. Contempt of court undermines the integrity of the court system. It therefore must be taken very seriously and properly addressed. The courts need powers to respond effectively to threats to the effective administration of justice. The current law is scattered across the statute book. Much of it is still found in the common law and not even in legislation. Some of that law is now outdated, and it needs modernising. Some areas also need clarification. Being found to be in contempt of court is a serious matter. People can be imprisoned or fined. Where people are at risk of such penalties, the law should be clear and accessible. The bill before the House addresses these problems. It substantially codifies and clarifies contempt of court, it brings the law together in one place, therefore making it more accessible, and it modernises and updates the law to reflect developments in the digital age.

Before I discuss the particulars of the bill as it’s come back from the select committee, I’d like to acknowledge the work of the Hon Chris Finlayson, who left the House at the end of last year, and, as this, his remaining legacy. There were other legacies too, of course, but this one had not reached fruition. As Attorney-General, he was very concerned with the state of New Zealand’s contempt laws and supported the referral of these issues to the Law Commission. As members will know, Mr Finlayson introduced the bill as a member’s bill on 22 March last year, and, because this is an area of law that I thought ought to be taken up by the Government, the bill was adopted as a Government bill after its referral to the Justice Committee, and I took over stewardship of the bill at that stage.

As well as Mr Finlayson, I’d also like to acknowledge the work of the Justice Committee in examining the bill, and I thank the committee for their hard work in bringing it back in its current form. The committee received 62 written submissions and heard 17 oral submissions. Those submissions came from the judiciary the legal profession, academics, the media, other organisations, and interested groups and individuals.

The bill covers five main areas of contempt of court. Now, I want to focus on just three of these. The first concerns juror contempt. The bill as introduced contained provisions replacing the uncertainty of the common law with two new statutory offences. One of these dealt with juror misconduct in the form of googling or researching information relevant to the trial before them. The other offence prohibits public disclosure of jury deliberations. We need jurors to do their job properly. They must consider just the evidence that they have heard in court and the instructions that they’ve heard from the presiding judge and the guidance that they’ve heard from counsel. They should not look things up on the internet—a lesson that our members opposite might want to take into account, at least before 2 o’clock tomorrow.

However, as I said during the first reading debate, I was concerned that the penalties provided in the bill as introduced went beyond what is needed to ensure better discipline amongst jurors. I was concerned that we do not want to create a disincentive for jurors to take up the very important citizen’s role, and I asked the Justice Committee to consider this issue. I’m pleased to see that the Justice Committee have addressed the concern. Changes have been made to the bill reducing the penalties a googling juror would face. The bill’s offence, which would have potentially resulted in the juror being imprisoned for up to three months, has been replaced with a statutory penalty provision allowing the judge to impose a fine of up to $5,000 where a juror is caught undertaking their own research. This change also means the juror is not convicted so does not end up with a criminal record.

The nature of a juror’s obligations will also be reinforced by implementing preventative measures aimed at better preparing jurors for their role and discouraging them from undertaking independent research. The Government will, in consultation with the judiciary, improve juror educational material and the instructions provided to jurors as part of the bill’s implementation. I regard the role of jurors as highly valued in our judicial system and think that focusing on better education and instructions, together with these amended provisions, achieves the right balance.

The second area I want to focus on concerns the contempt known as scandalising the courts, which is the making of malicious allegations about judges—probably not the most appropriate term; it sounds very Victorian, but that’s the phrase that is understood internationally. The bill as introduced contains provisions replacing the contempt of scandalising the court with a statutory offence of making false allegations against the judiciary and courts, supported with takedown orders and other measures which are designed to ensure the quick removal of such material to help limit the damage it causes. Today, with the internet and social media, unfounded allegations can be made about the judiciary before anybody gets to respond. Of course, judges can’t defend themselves in the way that politicians or others in public life can. They can’t enter public debate to protect their reputations or the reputation of the courts, and nor should they have to do so. When judges speak, they speak through their decisions. Once they’ve made their decision, they have disposed of their function, and, if they are then under attack for what they have decided and what they’ve done, they have very few avenues to respond effectively.

During the first reading debate, I said I was concerned that although we need to provide protection for the judiciary and courts as institutions, imposing prison sentences of up to two years or fines of up to $50,000 on citizens who make malicious allegations against the judiciary may not be justified. I questioned whether other measures could be used instead to restrain those who make damaging statements about judges. The inclusion of the offence in the bill has been very contentious. I understand most submitters on the bill raised a genuine concern about the risk that the offence could stifle legitimate criticism of judges and the courts. There is real concern it could have a chilling effect on freedom of expression by academics, lawyers, and others wanting to comment on the courts.

The Justice Committee has recommended the removal of the offence from the bill. In its place, the bill as reported back now makes greater provision for takedown orders. The changes mean the Solicitor-General can apply to the High Court for an order requiring untrue statements about the judiciary or the courts to be removed from the internet where they are damaging to public confidence in the judiciary or the courts. Our constitution and our courts recognise the importance of freedom of speech and the need in a democratic society for public scrutiny of the conduct of judges and for the right of citizens and the media to comment on matters of public concern. However, we also need to be able to deal with malicious allegations that injure and undermine the integrity of our system of justice. I appreciate the committee’s considerations in this respect, but I do not rule out the possibility of bringing a Supplementary Order Paper beefing up the provisions now in the bill to ensure that the correct balance is struck.

The third aspect of the bill I wish to focus on concerns publications that put a person’s right to a fair trial at risk. The bill replaces the common law with a clearer statutory offence prohibiting publication of information that interferes with a person’s right to a fair jury trial. The bill also includes new automatic suppression provisions that prohibit the publication of details of a person’s previous convictions when they may face a jury trial and enables the judge to temporarily suppress other information where this is necessary for a fair trial. Suppression, of course, also goes against the fundamental principle of the openness of justice and the transparency of justice, but suppression is often needed to ensure a person receives a fair trial, that somebody is not unfairly labelled with negative connotations due to yet to be proved allegations, and suppressing prejudicial material is the right thing to do.

The Justice Committee has narrowed the scope of the automatic suppression provisions. Changes they have made will also greatly improve the workability of the provisions. The automatic suppression will now only apply to previous convictions and not other charges, as it originally did. As reported back, the bill now clarifies that the automatic suppression provisions do not cover information published before the person was charged. It would be unfair and impractical to expect media organisations to remove all historic publications concerning the criminal history of a person against whom charges are filed to avoid breaching the automatic suppression. Suppression protects the rights of a defendant to a fair trial but restricts freedom of expression, and the bill seeks to achieve a proper balance in that respect.

In summary, the bill as reported back provides a necessary support for the administration of justice by the courts. It modernises and codifies the law, and I commend this bill to the House.

Thank you very much, Mr Speaker. It’s a pleasure to rise on this important bill introduced by—well, it was drafted by the Hon Christopher Finlayson, and we considered it on the Justice Committee. I think it’s fair to say the Minister of Justice has not had an easy time of it with justice bills. This is likely to receive an easier passage through the House, which is no surprise because it was drafted by a National member. So we look forward to future justice bills coming once he’s negotiated with his New Zealand First colleagues about what he’s allowed to get through. But this is a sensible bill.

The law of contempt is one of those strange beasts where the law is, essentially, collected through various statutes and, most notably, of course, collected in the common law. As Parliament likes to do from time to time—Parliament likes to collect together all of the various elements of the law and codify it or put it into a consolidated statute, and, frankly, actually, as someone who’s studied all this stuff at law school, it would have been a lot more helpful for people on juries—

💬 Chris Penk: That’s right.

I see my good colleague Chris Penk, who was contemporary with me at an inferior but still good law school, agreeing with me. It would have been helpful for jury members—

💬 SPEAKER: Deliberately misleading, is it?

—ha, ha!—and particularly for lawyers, if this had been done earlier.

Of course, I do just want to make a couple of remarks around the process about how all this happened. In 2009, some preliminary work was done into looking at how to bring it into a statute so that everyone knows the relevant rules, and, of course, just like we had the Crimes Act 1961, where all the crimes of New Zealand are collected together so it’s possible for everyone to go to look at this particular statute and know that a particular thing is an offence, it’s possible now with—or will be possible once this bill passes, so to bring together the law.

There was a first principles review of the law referred to the Law Commission—highly appropriate, I think members would agree, that the Law Commission does something very technical, very legally focused, as that. There was an issues paper, as the Law Commission always does, or often does, consultation, and then, of course, there was a discussion document in May 2017—kind of getting to the fag end of the last Government’s time in office. But there was a report to the Minister responsible for the Law Commission, and then the Hon Christopher Finlayson, being his hard-working and dutiful self and, I’ve got to say, someone who has a particular obsession with this area of the law, he did the hard yards in that transition from Government to Opposition, and a member’s bill duly made its way on to the ballot paper and he managed to convince the Minister of Justice, Andrew Little, to pick it up as a Government bill.

I was thinking, as I was preparing my notes for this, how many other Opposition members’ bills have become Government pieces of legislation? I cannot—

💬 Kieran McAnulty: Two.

Is it two—is it two?

💬 Kieran McAnulty: Oh, just guessing.

See, Mr McAnulty, you said it with such authority. Clearly, the junior whip job is becoming of you, Mr McAnulty, because you said that with such authority that I just immediately assumed it was credible, but we now hear it was a guess, but OK. So we don’t know it’s two, but it’s in the Hansard as possibly two. But I can’t think of another example. I mean, I’m a new member, as you know. I can’t think of another example in my time in the House when an Opposition member’s bill has been picked up by the Government as a Government bill. I can think of members’ bills that have started life as members’ bills on the same side of the House and have become Government bills. I think the civil union bill started life as Chris Carter’s member’s bill and ended up as a Government bill. I might be wrong about that, but I think that’s correct. Certainly, swapping from one side to the other, I can’t—

💬 SPEAKER: McKelvie—rustling. Rustling, recently?

Oh, no—well, that became a Supplementary Order Paper (SOP) to a separate bill, I think. I suppose it’s sort of—

💬 Hon Member: The rustling bill.

Yeah, but no—that was an SOP to another bill. So it sort of counts, I suppose. You’re sort of half right, Mr Speaker, if I may be so bold—if I may be so bold.

💬 SPEAKER: Well, it’s the nicest thing you’ve ever said to me.

Ha, ha! Aww—OK, righty-o. Anyway, I may get pulled up for relevance, so I’ll return to the thing.

Anyway, so, look, it is a sensible way forward. It is a tricky issue, as the Minister has rightly acknowledged in his speech, because section 14 of the New Zealand Bill of Rights Act provides for freedom of speech in New Zealand, and, of course, by dint of section 3 of the New Zealand Bill of Rights Act, the provisions of the New Zealand Bill of Rights Act apply to the courts. Of course, there would be some on the libertarian right who I suspect would say that you should be able to say whatever you like about what’s going on in court, but, of course, we also have the countervailing duties and principles of the fair administration of justice in making sure that, actually, other rights in the New Zealand Bill of Rights Act are given effect to, such as the right to a fair trial, which the Minister—

💬 Hon Andrew Little: It’s called justified limitations. It’s also in the New Zealand Bill of Rights Act.

Yeah, yeah—well, if you’d just let me finish, I was going to say section 5 of the Act, which I’m very familiar with, thank you, Mr Little, provides for justified limitations. So, of course, the question is what is a justified limit and where does the balance lie?

I do want to draw the House’s attention to a particular part of the bill that the select committee is recommending changes to, and that is around what we would call, in the old language, scandalising the court, and the Minister has referenced this in his speech to the House. There were concerns by submitters that this could prevent robust, legitimate criticism of judges and the courts. Other common law countries, cognate jurisdictions that we would regard ourselves as contemporary with, such as the United Kingdom, do not have such an offence. Other countries have moved to abolish this offence. It’s been found unconstitutional in the United States—and I’m not saying that United States free speech jurisprudence should be automatically imported into New Zealand law, but I think it is relevant—and, of course, most notably, it’s been found to be incompatible with the Canadian Charter of Rights and Freedoms. Of course, for those members, some of whom were in the House when Sir Geoffrey Palmer was here, that of course was one of the models for the New Zealand Bill of Rights Act, the Canadian charter, in the first place, and so I think that is relevant.

So I think it’s fair to say that Mr Finlayson was very keen on this provision or at least wanted to have it inserted, but the committee has considered it with some diligence and some rigour and we are recommending that it be amended. I note the Minister has noted that he’ll be potentially considering moving an SOP at the committee of the whole House stage. I think it would be helpful for the timely process of the bill through the House, and the pretty collegial way, frankly, that members on the Justice Committee have actually worked on this bill, if that was provided in good time to members.

But, look, this is a sensible bill. Frankly, as I said at the start of my contribution, it is overdue, but good things take time, as they always say, and we are going to move through this, I think, and get the law of contempt into a much more accessible and much more principle-based form. I look forward to its passage through the House.

Thank you very much for the opportunity to speak on the Administration of Justice (Reform of Contempt of Court) Bill. It’s an interesting bill to have been part of on the committee and to hear the full variety of submissions that we heard on this issue. To make a broad generalisation, if I may, it’s a balance—getting that balance right in terms of ensuring that the rights of everybody are represented in a fair way but also enabling a level of free speech. In that, we want to make sure that that is not preventing the right to a fair trial and the ability for justice to be carried through.

At a time when social media is more active than it has ever been before, it’s appropriate for this legislation to be modernised and consolidated to reflect the changed environment in which we are operating. We only have to cast our minds back over the past few months, when there have been several instances when the process of justice has potentially been jeopardised, whether it be by a jury or members of the public putting forward either photographs or comments on issues that are currently before the courts. So it’s required as essential to make sure that our legislation keeps up with the technological changes that we are facing as a country and that we make sure that we protect the rights of every New Zealander to have a fair trial.

It was good to hear the 62 submissions that we did have on this bill. I’d just like to note that 37 of those were from the general public. It was good to hear not only from the legal profession and from those representing media views but also from New Zealanders coming forward with their views. I’m going to outline three key issues that were brought up through that submission process and to summarise those. The first one was concerns raised about the scope and the workability of automatic suppression orders and automatic suppression provisions, temporary suppression orders, and takedown orders. Those questions were raised in due course of the submissions that came forward. The second key issue that I’ve noted that came through the submissions process was the application of the bill to the Employment Court and, to a lesser degree, other specialist courts—how that would apply in those jurisdictions. The third issue is the significant technical issues relating to the scope of enforcement of a court order provision, and that is particularly relevant to the point I’ve already raised in relation to social media and how you monitor that on an ongoing basis.

The bill replaces the contempt of court for disobeying the court orders with a new statutory enforcement process for addressing breaches of court order. The key areas that I’d like to touch on in terms of where this bill goes and why it’s required, I’ll go through relatively briefly. It is important to note that contempt of court is an important area to get right, that we want to make sure people are clear about what is the issue we’re talking about, so that we have an understanding of what it is. Contempt, just to be clear, is, for example, a juror doing their own research, which could jeopardise the outcome of a trial, or it can be an MP or a member of the public making comments on something that is currently before the courts. So we want to make sure that we’ve got the rights of those people who are before the courts getting a fair carriage of justice and that the pathway through the court system is protected as far as possible.

New Zealand currently has a mix of common law, or case law, and statute law, and those are in a number of different places. This legislation updates what we’re doing and consolidates that legislation into one place. This bill addresses in statute five areas of contempt. The first is the publication of contempt—it replaces the common law with a clearer statutory offence. The offence would prevent publication of information that interferes with a fair trial, and, in terms of that, there is a penalty of up to six months of imprisonment and a fine of up to $25,000. The offence is supported with a suppression order and takedown orders as well for online material.

The second area that this bill addresses is for disruptive behaviour in the courtroom, and that’s very important as well for the carriage of justice. A new standardised procedure is introduced, and the bill also introduces safeguards—safeguards for someone who has been cited and is being disruptive—including the opportunity to obtain a legal representative whether or not that’s happened. Then, tied to that, there are also fines for that disruptive behaviour.

Thirdly, for contempt for jurors—this is an important area as well—a new offence is established and created where a member of the jury, as mentioned, investigates or interferes into those deliberations by doing their own research. For noncompliance with court orders where there’s been a clear order by the court and that has been breached, a new enforcement provision is now created also by this bill.

Finally, for untrue allegations or accusations against judges or courts, a person would commit an offence if they published a false allegation or accusation against a judge or a court. There is a real risk that that publication could undermine public confidence in the independence, integrity, or impartiality of the judiciary or a court. So those important areas are outlined there.

As has already been mentioned tonight, the Hon Christopher Finlayson drafted this bill as a member’s bill, which has been carried over, and I think that goes to show the wealth of knowledge that he brought to this Parliament during the time he was here and how helpful he was as a member on the committee to progress this legislation. As well as the work done by the Hon Christopher Finlayson, also the Law Commission has done a significant amount of work. This bill identifies three areas particularly, responding to the Law Commission’s concerns that have been raised. First, the bill will ensure that law of contempt is accessible to those it affects. Currently, the law is not accessible, because it is found partly in a number of different Acts of Parliament and also partly in common law.

Secondly, this bill will ensure that the law is clear and easy to understand, and that’s really important given, as I’ve mentioned, the number of public submissions that were made on this issue. The law is currently not clear to New Zealanders, because courts are still developing the boundaries, especially the line between contempt and freedom of expression.

Thirdly, this bill will make the law of contempt workable. In several significant respects, the law is not working as it should do, and the law of contempt was developed prior to the internet age, and this enables a modernisation of the law to respond to the new situations that we are dealing with, with the quick rate that things can be put up and taken down on various social media platforms.

I’d like to conclude by thanking the officials, who have done a considerable amount of work in getting this piece of legislation to where it is today. I would like to say that this bill reported back provides the necessary support for the administration of justice by the courts, and that is fundamental to our rights as New Zealanders. It modernises and codifies the law of contempt of court, and it brings the law of contempt of court together in one statute and makes it far more accessible. I commend this bill to the House.

Thank you, Mr Speaker. It’s a pleasure to take a call on this, the Administration of Justice (Reform of Contempt of Court) Bill. I had a brief chat with the Minister of Justice, the Hon Andrew little, to say that the Supplementary Order Paper (SOP) that he spoke about, we’ll receive that and have a look at that in the spirit of the work that’s been done on this bill through the Justice Committee and also in the spirit of the fact that the justice Minister did pick up this as a member’s bill and make it a Government bill and bring it into the House—a very brave and valiant effort there by Mr McAnulty to get us to number two. I’ve done some checking—I think this is the first time that that’s ever happened. I could be corrected, but it could be a first for this Parliament.

Can I just acknowledge the Hon Christopher Finlayson. I see we have the Attorney-General in the House with us tonight as well. Can I acknowledge him, and I wish that he actually was still in the House to see the progress and the passage of this bill, because he did enough work on it—and, of course, picking it up from the Hon Amy Adams—that it was a good enough bill to be picked up by the Government. I’m not sure how much the Government actually had on their worksheet—so maybe that might have had something to do with it—but, regardless, they’ve picked it up and the bill is in the House. I’m very pleased to be able to stand tonight and speak to it. Can I acknowledge the chair—well, the chair of the select committee was here—and the other select committee members who have worked on it.

I’m going to be fairly brief, Mr Speaker. First of all, I’m just going to say can we acknowledge everyone involved with running our courts because, obviously, the public need to have confidence in our judicial system and our courts, they have to feel safe when they go there, and they have to know that they are going to be treated fairly. Although you could argue that, yes, our court security officers, our court staff, and our judges aren’t necessarily on the first line in terms of first responders, they’re having to deal with the same people as they come through the court, and often they’re put in very difficult situations themselves. Often, they are the subject of abuse and, unfortunately, at times physical assault. So it’s important that we as a Parliament send a very clear message that we’re aware of that and we’re going to support them and make sure that they’ve got legislation that allows them to do their job and insulate them as much as we can from those types of threat.

Can I just say that one thing I thought was very important was around dealing with disruptive behaviour in the courts, and that is the fact that we’ve made a change to Schedule 2 of the bill, where we give the following courts jurisdiction to enforce their own orders, and those were the High Court, the District Court, the Family Court, the Environment Court, and the Māori Land Court. The change that we wanted to make was that we felt very strongly that the Employment Court should have the ability to be able to enforce their own rules as well, and so that was one of the recommendations that went through.

Just very quickly, the other thing that I wanted to quickly touch on is the fact that it’s important that judges have the freedom to do their job, and they should be free from abuse, but, actually, they can’t be free from criticism. One of the things that we talked about a lot on the committee was making sure that we didn’t dampen free speech as long as it was constructive and that people still had the ability to be able to speak out and make comments on judges and judgments and the process in the courts. There was a lot of debate around that, and we fell on the side of making sure that we needed to preserve that right and therefore we made sure that was captured in the bill. So I’m very happy to have taken a call and recommend this bill to the House and look forward to its final reading. Thank you.

Thank you, Mr Speaker. Talofa lava. Can I say that it was a real pleasure to work on this bill, including with Mr Finlayson, in committee. One of the good things about this bill is that it takes what, it must be said, is an arcane area of the law. The law of contempt is one of those areas which has pretty much been left alone because it’s part of the inherent jurisdiction of the High Court, and we know that the High Court guards that very jealously. One of the difficulties with that, though, is that it’s very difficult for an ordinary citizen to understand exactly where those rules lie, and perhaps, uniquely, ordinary citizens are very much involved in the court process. So I think it’s a very good step forward to, essentially, take the existing law of contempt and to codify it.

There’s not a huge amount of change of the law here, although there will be some, but the real mission was to take what is a complex and arcane area of the law and to put it in understandable language. So one of those areas which I think was very useful is disclosure of jury deliberations, because, in today’s day and age of Instagram and Snapchat and what have you, everyone seems to want to let everyone know what they’ve been doing that day. Jury deliberations don’t fall into that class of thing. So I think it’s very good to be able to set out in a very clear way, including so that a judge can direct a jury. We know that a judge does direct a jury not to disclose deliberations, not to go on the internet and see what the media is saying about the case as it progresses, and so on, but I think it’s a lot better now that the court can refer to this bill, soon to be an Act, I sincerely hope, and make it quite clear that there are significant penalties for that.

I understand the Minister’s spoken about a Supplementary Order Paper (SOP). One of the good things about the committee was that it was very much a cooperative committee and had some very, very good submissions. We had a number of submissions which, essentially, talked about the interplay between freedom of speech and the ability to criticise the courts and the need to protect judges. Judges are in a difficult position, it must be said, because whilst in any free and democratic society their decisions should be subject to robust scrutiny, if what has historically been called scandalous allegations are aimed at them, they’re not in a position to defend themselves in real terms.

Whilst, at least notionally, they can avail themselves of the law of defamation, in practical terms it’s simply not good form. And I know of no case—although I’m not saying there are none—where a judge has chosen to take defamation proceedings for the kind of scurrilous criticism that has sometimes been aimed at judges for their conduct in court. Sometimes those allegations are so baseless, so nasty, and so pernicious that they really should be prohibited. And whilst this bill before us has takedown orders, where the court can direct people to take down immediately—on a very low threshold an interim order can be granted requiring that those scandalous items be taken off the internet or any other publication—and penalties which will flow if those orders aren’t followed, the fact is that that is an after-the-event remedy, and there certainly is room for consideration of having a clear rule that scandalising the court is inappropriate.

Having said that, the bar has to be very high. I must say, I found it quite amusing when a number of academics came and said, “I write scathing academic articles criticising the judges. Are they going to be prohibited? This is an outrage. I could be fined or conceivably go to jail for saying that a judge’s decision was wrong.” Well, quite clearly, no matter how strong the terms of such criticism are, if it’s an honestly held academic belief, it certainly won’t fall foul of any scandalising the court provisions. I’ve seen some pretty fierce arguments between academics and judges they’ve criticised, but there’s never been any suggestion that it’s a contempt to say that a judge’s decision is muddle-headed, wrong, and poorly thought-out—

💬 Chris Penk: Are you quoting from Professor Webb?

—and I might have been on the receiving end of some of that criticism. Ha, ha! But having said that, when those allegations, those false, utterly baseless allegations of corruption and the like are thrown about, there’s certainly room for a much closer examination of that. I look forward to seeing that being explored in this House at committee stage. But, with that, I commend this bill to the House.

I call the learned gentleman, Chris Penk.

Ha, ha! Well, in his absence, I’ll have to do my best. It’s a pleasure to rise and speak, as others have done, on the Administration of Justice (Reform of Contempt of Court) Bill, or the Contempt of Court Bill, as it shall soon be known.

Other colleagues have spoken well on the subject of what it is that we’re engaged in here. We’re protecting the system of justice overall. We’re not protecting justices, the individuals who sit on the bench, although Dr Webb makes some very good points about the fact that criticism must be allowed but should be robust but not unreasonable, in the sense of reflecting other than an honestly held belief. In the academic context that he mentions in particular, of course he’s right that the ideals of freedom of expression are particularly important. The freedom of conscience, for our academy, is particularly useful to the ongoing development of our country’s jurisprudence. So at the Justice Committee we’ve sought to strike as reasonable a balance as possible between those competing demands.

The Minister Andrew Little talked about protecting the system as a whole, and I’ll acknowledge him for having the good taste, on behalf of the Government, to pick up the bill that, as others have mentioned, originally was in the form of a member’s bill by the Hon Christopher Finlayson QC. Others have acknowledged his role. He’s a former colleague but still a party member, in fact, and indeed a friend, so I’m pleased to be able to acknowledge him in all three regards. He remains active in speaking about and thinking about the law of this land and, indeed, talking around the globe on such matters. He, hopefully, will be pleased to know that we continue to progress this bill, albeit that there have been some changes along the way at select committee, and we’ve had foreshadowed by Minister Little the fact that there may yet be one more put forward at the committee stage in the form of a Supplementary Order Paper.

I’m relatively newly arrived on the Justice Committee, so I didn’t have the benefit of hearing all those submissions that others have referred to. I’ll just acknowledge that, certainly in their written form, they were compelling, and we had a veritable galaxy of stars of the legal and judicial system, and those were very helpful in allowing us to think about the different rights that were engaged, indeed, to balance those, as others have mentioned, and to come to a view that we hope will provide some manner of protection for the system against attacks on what would be the integrity of the system, while, of course, maintaining that freedom of speech that others have referred to.

Like my colleague Chris Bishop, as a law student I would have been grateful for a clearer expression of the law around contempt of court, which exists, as it has until this point, primarily in the common law. So to be able to codify it will be helpful to that particular subset of the legal profession. But for New Zealanders more generally, those who are in our courts, it’s important to allow them the right to know that they have at least some manner of clarity about the way that the system will operate to constrain their freedoms if they should overstep the mark. So that’s an important point that was made very clearly, and much more eloquently than I’m able to do, by Associate Professor Bernard B J Brown, described by David Lange as, I think, a national treasure, and he’s not wrong there.

I won’t go through all the provisions of the bill, obviously—maybe just a couple to touch on, to the relief of us all, to give a flavour of the kinds of considerations that the select committee made and a couple of the changes that emerged as a result. I start with the fact that the High Court will retain jurisdiction over contempt matters that aren’t covered in the bill. It’s an aim to have the best of both worlds, and, in fact, this was a feature of the bill as introduced by Mr Finlayson. So we’ll have maximum certainty about what the law has, to the extent that we’re able to crystallise it now in Parliament, or at least at the time of the third and final reading, but also allow flexibility for the development of the law going forward.

I’ve briefly alluded to, before, the changing of the title of the bill to the Contempt of Court Bill. That’s reflective of a general approach to make the law as accessible as possible. By way of example, I’ll just mention in relation to the suppression period aspect, because I don’t think we’ve gone there in much depth so far tonight, that there will be a suppression order that can be made and will apply from the time that a person is charged, as opposed to the time that they are arrested. Media organisations submitted, and I think quite reasonably, that it would be difficult to know when a person has been arrested. That moment in time is always not clear and not knowable by them. So if they’re to comply with the law, it would be helpful for something of a brightline to be drawn, and so encourage compliance in that way. The committee therefore has recommended that it would be the point at which a charge is filed against a person that suppression would kick in where that does apply.

Finally, in relation to suppression orders again, but going to suppression orders that are temporary, under clause 9(1) of the bill as introduced, the threshold needs to be sufficiently high as to allow a certain amount of robustness in terms of exchange of ideas, and also the committee was clear in its view that only information that needs to be suppressed to protect the right to a fair trial should, in fact, be suppressed. So that reflects the overall flavour of the considerations that as light a touch as possible should be had but as heavy touch as necessary should be preserved too. Again, just balancing those rights as noted in section 5 of the New Zealand Bill of Rights Act, where that test for applying justifiable limitations to rights in the New Zealand Bill of Rights Act is defined.

So with that, I’ll leave my contribution and say that I look forward to the committee stage, where more detail perhaps can be applied, but I commend to anyone who has an interest in the matter to read the report from the Justice Committee, which sets out a number of those issues in more detail, and I look forward to the continued passage and support across the House of this important piece of work. Thank you.

The Greens are pleased to support what is absolutely a sensible piece of legislation going through this House, as has often been referred to by my colleagues. I too, with my colleague the Hon James Shaw, was just trying to figure out whether there have been other cases of an Opposition member’s bill being picked up and then put through by the Government. My colleague seems to think that there are examples of this happening before, but I think this was one of the most important points for me to reflect on in this second reading of this bill.

I am new to this bill. It would have been a really interesting bill to sit on at the Justice Committee. As Chris Penk, the previous speaker, referred to, the Justice Committee report back is quite fascinating in terms of some of the changes that came through. What this is about is making sure that we protect the right to fair trial, and so the bill wants to pull together laws around contempt into one single piece of legislation to make sure that it’s accessible. Currently, as things stand there is a mixture of places where people can find contempt law.

We need to make sure that we modernise the language, and, you know, that is something quite common across a lot of our laws. Actually, I was wondering if anyone in the House could help me. It referred to the current legislation having antiquated language, and I was trying to find some examples of that language. So if anyone’s got some examples of that, I’d be really happy to hear that.

This bill is also about modernising law, and people have referred to keeping pace with the digital age. But my goodness, I literally visualised what it must be like now, with the rate at which we can access information to hand immediately, and how that can potentially disrupt a fair trial process.

There’s a bit of a consideration that I also feel is important to acknowledge in my reading of this, while on the one hand we need to review the whole, entire justice system and what happens in courts—and that work is happening with the Hon Andrew Little—and make sure the overall system is fair and has integrity at its best. What that means is, currently, a lot of Māori and Pacific low-income people appear before courts, so while we want to make sure that our overall system is fair, we absolutely have to protect the integrity of what happens when people—victims and perpetrators—have to appear before the courts. That’s why the Greens are very clear on this and pleased to be able to support this.

I imagine that in the Justice Committee, given that this was a bill that came from the Hon Chris Finlayson, who—I have to put my words on Hansard about his impeccable taste in making sure that law and legislation is up to scratch. Having served with him on my beloved Māori Affairs Committee, I know very well that I am very honoured and privileged to have had a first-hand, scenic understanding of exactly how important the integrity of the law is to that former honourable member. So I imagine that on the Justice Committee, the putting through of the discussions and debates about the changes of this law were amicable and were cooperative, and I heard a little bit about that tonight from those members who are fortunate enough to sit on that committee. Therefore, the changes that came through in the select committee report back had a collegial agenda behind them to make sure that this is the best bill that we can possibly offer going forward.

So the bill summarises the main following areas of changes to make sure that we have got those objectives of law in this single piece—modernising the language and modernising the law. There are the areas of juror contempt and untrue allegations against judges, and I was very pleased to hear my colleague Dr Webb’s explanation about the difference between an allegation against judges and an opinion against their ruling or an opinion about the process that they took. It also goes into limiting publication of trial-related information and prohibiting publication of certain criminal trial information—and I am very interested to see how this will play out in some of the high-profile cases we’ve got coming up that we also know about; there’s more than one obvious one—and also enforcement of court orders.

I then thought, because there was particular example—and I think it was just from this here—of a contempt of court that I don’t think this bill touches on, but I am happy to be corrected because I wanted to check it on the floor of the House. There was a case only this year of a woman escaping penalty after giving muffins to jurors at the High Court and attempting to influence jurors, and I wondered whether that sort of contempt is covered in this bill. From the areas that I have outlined, it wouldn’t appear to be, but perhaps in the committee stage that’s something that others might like to address.

I actually said I wanted to make a short call, and here I am, still here. The only other comment I wanted to make was that, certainly, giving clearer direction to media about reporting and including a prohibition on reporting on prior convictions to help ensure a fair trial is important, and why is that? Because the media are also human and because the media will make human judgments, and human judgments also contain bias and discrimination. So that’s why I wanted to pick up on how important it is, in particular, to have clearer guidelines around media reporting, because the media are not robots and they will bring their own views and analyses. So I welcome that particular part of this law.

I do not just commend this bill to the House, but I also commend both Minister Little and the former member the Hon Chris Finlayson for bringing together the collaboration for all of the members in this House to ensure the strengthening of democratic, fair processes and trials in court. Thank you, Mr Speaker.

I have an intense interest in this bill. I must say I am truly delighted by the changes that are proposed in contempt law but also the select committee process that saw a very significant change from the original law. One of the most important rights is the issue of freedom of speech. In this bill, we’re trying to navigate this line between enabling our courts to be able to fairly get on and administer justice, while at the same time ensuring that we are able to have freedom of expression. This debate’s particularly important, with the debate about hate speech and its bounds and where Parliament might go in future. I’m delighted that this Parliament has, to date, been going down a road of strengthening the rights of freedom of speech. We recently passed a bill to repeal the crime of blasphemy.

Now, when this bill was introduced, it, effectively, codified the common law that it was a criminal offence to criticise the courts. Now, the reason that’s such an interesting issue is the difference of culture that we have inherited from Britain as compared with countries like the United States. There’s a very famous ruling from the Supreme Court of the United States, and that is that respect for the courts will not come about by silencing its critics but, indeed, by the quality of its judgments. That is a long-held view that I have had, and that is why I took particular difficulty with clause 24 of this bill as introduced. Clause 24 of this bill would have made it a crime, with a term of imprisonment of up to two years, if someone criticised our courts. Now, I actually think we have incredibly good courts. I actually think the vast range of judgments that are made by each level of our court system is actually pretty good. But the courts are human, they make mistakes, and they need to be able to be criticised so that we as parliamentarians are able to view that debate and make reform in our law to make our justice system even better. Now, it is a matter of fact, and we tested the boundaries between the courts and Parliament in the very development of this law. There was a strong wish from those on the judicial bench that it remain a criminal offence to criticise the judges or the court system. While I respect their view, in my view judges should not be on a pedestal and should not have some absolute protection to people being able to express a view, and I think the place we got to in the Justice Committee was very good. It’s interesting to note that the United Kingdom, which was the original source of the common law regarding contempt, repealed scandalising of the court as a crime back in 2013. The Canadians also did it this decade.

Now, I’ve had a few days on select committees. I have to say the big surprise for me in the Justice Committee was this. Myself and my colleagues Chris Penk and Chris Bishop were concerned about the freedom of speech issues around this. We wrote a minority view—we took the minority view because, at that point, the Government had dug in and said that it wanted to stick with clause 24 as it was and remain it as a crime—and I nearly choked on my coffee when the Government members on the committee said they would not accept a minority view. I said, “Well, sorry. The Speaker has quite rightly made it plain that a minority view should be able to be delivered.” What surprised me is that they said, “We’re not wanting to accept your view as a minority one, we want to adopt it as a committee.” I could have cheered for joy for this long battle for freedom of speech that has existed in the United States since 1814—that now, in 2019, we are to extend the bounds of free speech and make it quite lawful for people in New Zealand to be able to criticise court judgments and to express an honest opinion.

I actually think that the view we got to on the committee is really pragmatic. I do accept that sometimes you hear ravings on the internet, of people on their Facebook posts saying things that are entirely inappropriate and defamatory of judges. What we have provided for in clause 25 of this bill is the provision for an application to be able to be made to the High Court for such material to be taken down, and I think that is a good, practical way in which we can recognise the practicality that it is pretty hard for a judge on the bench—whether it be of the District Court, the High Court, the Supreme Court, or the Court of Appeal—to be able to take a defamation action against some person that said something that’s highly provocative, untrue, or defamatory on a website. It enables that material to be taken down while at the same time making it plain that we are going to uphold the freedoms of speech.

The really interesting part is going to be the debate from here in respect of where we go on the bounds of free speech. I’m very concerned by some of the comments that have been made by members of the Government that actually want to head in the opposite direction, that actually want to constrain and create criminal offences. I want to say how proud I was of my new parliamentary colleague, Paulo Garcia, today, in wanting to champion the cause of free speech. We in this Parliament should be able to say, “I don’t agree with you, but I absolutely defend your right to say it.” That is where this bill actually is—

💬 Hon David Parker: Well, we can.

—a very significant step forward. Actually, Mr Parker, we are actually repealing the last criminal offence—

💬 Hon David Parker: In this House, we can.

—that’s related to common law. The member says that within this House, you can, but within this House, Mr Parker, there are rules—

💬 Hon David Parker: You just said we can’t.

No, but where Mr Parker, who interjects, is incorrect, the Standing Orders are very clear that there needs to be respect within this Parliament about the probity between Parliament and the courts. If I as a member wanted to get up and criticise a judge, the Speaker would quite rightly pull me up and say that’s breaching that probity, and that reinforces the value of what is being done with this bill.

Finally, I want to deal with the provisions as they relate more generally to the processes of the courts, publication, and in respect of the internet. Again, the select committee and this bill are a good step forward in modernising our justice laws, recognising the fact that we’re not just talking about printed material—as was the case when contempt originally developed—and making it fit for purpose so that our courts can get on and do their job and do so with some discipline and process, but also that important step forward for the freedom of speech.

Thank you, Mr Speaker. It gives me great pleasure to take a call to support this bill. The Justice Committee has considered, so far, 20 or so bills, and this bill is one of the 19 bills that the extraordinarily busy Justice Committee has sent back to the House.

💬 Chris Bishop: What a committee.

What a committee. For any lawyer turned MP, this bill, together with the Privacy Bill and Trusts Bill, would have some special place for us. To that end, I should say we are privileged enough to get involved in this very important legislative process.

The bill, as introduced, was a member’s bill in the name of the Hon Christopher Finlayson. It was then adopted by the Government and it is now in the name of the Minister of Justice, the Hon Andrew Little. The title of the bill is a bit too long and we agree with submitters and recommend changing it to the Contempt of Court Bill. The word “Contempt” is perhaps misleading, but, as previous speakers pointed out, probably there is no other term to describe just what exactly this bill seeks to achieve. We received and considered 62 submissions from interested groups and individuals, and we heard oral evidence from 17 submitters. I thank the submitters, our officials, and advisers.

The bill seeks to reform the law of contempt to make it more understandable, accessible, and reflective of the digital age. Most of New Zealand’s law of contempt of court is found in the common law. The Law Commission reviewed and reported on New Zealand’s contempt of court law in 2017, recommending a statute to codify the law of contempt. Before that, the Crown Law Office engaged Professor Tony Smith, the former dean of the law school of Victoria University in Wellington, who wrote a report on the subject. His report was then referred to the Law Commission. Professor Smith is the editor of the 15th edition of Glanville Williams: Learning the Law. This is a must-read for all law school students and has gained an international reputation.

The bill, as introduced, proposes a number of provisions including publication contempt, jury contempt, disruptive behaviour in the courtroom, and the enforcement of court orders. The bill seeks to ensure, among other things, that court hearings are not disrupted, that trials are not unfairly prejudiced by excessive publicity, and that court orders are enforced. Having said that, the bill strikes the right balance between ensuring that the judiciary is protected from abuse and the integrity of our justice system where judges can be criticised and their judgments can, likewise, be criticised. Any law relating to contempt of court does not mean that the judges should be mollycoddled, but there is a big difference between that position and ensuring that the judges are not subject to unfair and excessive abuse. Such abuse is capable of undermining the rule of law. The bill constitutes the most important reform of the law of contempt of court in New Zealand’s history, and I look forward to the progress of this bill. Thank you.

Thank you, Mr Speaker. It’s my pleasure to stand in support of the Administration of Justice (Reform of Contempt of Court) Bill’s second reading. As it has been previously mentioned, originally this bill was in a private member’s name, the Hon Chris Finlayson, but it was adopted by the Government and now stands in the name of the Hon Andrew Little.

This bill clarifies a lot of things which are related to today’s times, and technology is one of those areas where the previous law was not able to clarify whether it could be implemented or not. The contempt of court was around many statutes, and it was under the common law discussion, so that’s why it was hard for the court to implement this law. This bill will ensure that one law will be able to implement the contempt of court.

As we know, in digital technology there is accessibility for people to access social media and report what’s happening in the court, and that is a big challenge for fair trial in the court. As it has been mentioned by many speakers, sometimes social media has reported the proceedings and identified the victims as well as the perpetrators, which could not give a fair trial to the case.

We also know that law in relation to new technology is currently not working, and it should have a strong repercussion. The ready availability of large amounts of information online and the unrestricted ability of people to share their views creates a number of problems for the justice system, including the pre-trial publicity and jeopardising the defendant for the right of fair trial. That is the main issue which is being addressed in this. The courts can order the social media that if there is any material related to a particular case, it should be withdrawn, and that applies not only within New Zealand but overseas also.

As we have seen in recent times, there has been a lot of hype around social media and what has happened in different parts of the world. I think this is the right time when we should be tackling these issues, and it is not only in New Zealand but worldwide that we have seen these issues are being raised and everyone is coming around together to make sure that social media is not misused. With these words, I commend this bill to the House.

Thank you, Mr Speaker. It’s a pleasure to rise on behalf of New Zealand First to speak in favour of the Administration of Justice (Reform of Contempt of Court) Bill. I’m not going to traverse much of what has already been said, because it’s got wide support throughout the House. With this bill, it is very important; however, it’s quite simple insofar as it does—

💬 Matt Doocey: Common sense.

It is common sense, and it deals with the law of contempt. The most important reason behind why there is this bill in the House going through these stages is the fact that currently the law of contempt of court is vague, it’s out of date, and it’s inaccessible for New Zealanders.

I think that it’s most important in a robust democracy, and one of those pillars in a robust democracy is a very robust justice system. In order for the public of any society to have trust in the system, they need to ensure some of the things that this bill is trying to correct, and one of them is to ensure that the law is accessible. At the moment, the law of contempt can be made more accessible, and that’s what this bill is attempting to do. Understanding what the law of contempt is, I think it clarifies that for a lot of people—accessing the justice system. I think one of the most important aspects—that has been touched on by the last speaker that sat down, Kanwaljit Singh Bakshi—was bringing it into the modern age in regards to, specifically, the digital age.

I think I just want to quickly go through the five main points of what the bill does and why New Zealand First will be supporting this bill. It is common sense. It does bring into statute five areas of contempt. The first is the publication of contempt: it replaces the common law with a clearer statutory offence. The second is, for disruptive behaviour in courtrooms, a new standardised procedure. The third, for contempt by jurors, we’re bringing a new offence. The fourth is it creates an offence which prohibits jurors from disclosing juror deliberations. Fifth, non-compliance with court orders—and also untrue allegations of accusations against judges before the court, which is, of course, common sense.

Just lastly, some key concepts of the bill. The law of contempt is essential for our democracy in New Zealand, and the courts in fact need the ability to have the power and authority to punish for contempt—and that’s what this bill does. Most important, it maintains the rule of law, and New Zealand First will of course be supporting it. Thank you.

Mr Speaker, good evening, and to members in the House, as the evening draws to a close. As is often the case when the day is long and the evening even longer, sometimes things can drag on, so I’ll attempt to keep this brief.

💬 SPEAKER: You’re telling me!

May I just share—I’m trying not to drag this out, so if members will indulge me to be able to cut to the chase. In cutting to the chase, I’m not a member on the Justice Committee. However, I have canvassed and looked at this currently named the Administration of Justice (Reform of Contempt of Court) Bill—to be rebranded, in a very succinct manner, the Contempt of Court Bill.

Look, having practised in the criminal court for a number of years, my eye has been drawn in particular to the provision that deals with disruption to proceedings in the court. May I just refer members of the House to Subpart 3 of Part 2 of the bill, in particular clause 16. A judicial officer—in other words, a judge—may cite disruptive behaviour, effectively, where disruptive behaviour has been incited.

I share with members in the House and Mr Speaker, there have been a number of occasions, when I have been defence counsel and there have been clients of mine and also clients, defendants, of others counsel in the courts, in which the proceedings have been disrupted, and some of those disruptions of proceedings have not just been in the courtroom itself but in the court building, such as gang fights. I particularly remember, in my early days as a criminal barrister, there was a punch up that happened in the days when it was very prominent between Mongrel Mob and Black Power, seeking to rule supreme within the courthouse foyer, waiting for their matters to be called before the courts. So there was a real disruption to the proceedings of the court, not in the courtroom itself but in the waiting area. We didn’t have security officers in those days, and I was young and I was very much there campaigning for a cause. My concern was that there was a baby who was being held by the partner of one of the gang members, so I stepped in to, really, appease the situation there.

So the disruption to the court proceedings is very much within the judicial officer’s, the judge’s, domain, but we also have the Court Security Act. It hasn’t been referenced particularly, but, in looking at clause 16, one needs to consider what are the proceedings of the court. The Court Security Act talks about the importance of the courthouse, which is beyond the domain of the courtroom.

I’m conscious that my time’s going to be cut short, and I would like to reflect further on this with members in the House because I’ve got some pretty good stories to share around judges in the breach of proceedings and contempt of the court. I will leave it at that, Mr Speaker, because I believe you may be calling the evening to a close.

I’m tempted to just put the motion, but I will interrupt the member because the time has come for me to leave the Chair. I will resume the Chair again at 2 o’clock tomorrow. This bill is set down for further debate at that time. Good luck!

Debate interrupted.

The House adjourned at 10 p.m.