Contempt of Court Bill

I’m pleased to take a call on Part 1 of the Contempt of Court Bill, partly to draw attention to the really important reforms around freedom of expression. We in the National Party believe that, actually, the ability for people to be able to speak freely and to be able to enjoy those most basic of rights to be able to criticise public institutions is quite crucial.

Now, I want to draw your attention to the provisions in Part 1 around enhancing public respect for our judicial systems, because an extraordinary thing has happened in the select committee process. During the select committee of this bill, we came to an agreement unanimously that we wanted to enhance freedom of speech—that we wanted to follow the example of repealing the crime of contempt that is present and was repealed in 2013 in the UK, and is a basic right in Canada and the United States. But, incredibly, we now have the Minister overriding the decisions of the select committee. The reason it’s relevant to Part 1 of the bill is this issue of how we maintain and enhance public confidence in our judicial system. There was a fascinating ruling from the Supreme Court of the United States when this very issue was tested in respect of the freedom of speech issues. The Supreme Court of the US made a, in my view, wonderfully powerful statement and it was this: “We enhance the respect for our courts and our judicial system not by silencing its critics but by the quality of its judgments.” I want to draw to members opposite that that is the conclusion the select committee came to. Yet, we now have the Government doing not what the UK has done, not enjoying the rights that are available in Australia, the United States, or Canada, but the Government re-criminalising people who may which to criticise decisions of the courts.

So the question I have for the Minister in the chair, the Hon Andrew Little, is: how are we intending to advance the purposes of this Act of which the select committee, quite rightly, said a key purpose is to maintain and enhance public confidence in the judicial system—something that we, on this side, totally respect, but equally believe that that is best maintained by maintaining freedom of speech? Also, for the Minister to give some explanation as to why, in his view, we enhance public confidence in the judicial system by taking a different approach to that which is taken in other free and liberal countries like the UK, like Australia, like Canada, and like the US. Why do we want New Zealanders to have fewer rights in respect of freedom of speech than people in those other countries have and how does it relate to the purposes of this Act of maintaining and enhancing public respect of the law? How can we say that we are reforming the law of contempt, as provided for in clause 3(1), if the Government is intending to change the select committee report and to re-criminalise the issue of people who may criticise decisions of the court?

I think that this bill as reported back from the select committee was a very substantive and significant improvement in the freedoms of speech that New Zealanders enjoy. I am quite surprised and taken aback that the Minister has tabled a Supplementary Order Paper that undermines what’s provided for in clause 3 around enhancing and improving public confidence in the judicial system. I really challenge the Minister to say why it is possible that the UK has repealed contempt of court as a criminal offence. How come the judicial systems of the United States and of Canada have proven that they are quite able to do their affairs and to maintain their judicial system without a criminal offence of contempt? Why, most importantly, is he overriding the decision of the select committee?

Madam Chair, thank you for the opportunity to speak. It’ll come as no surprise to the committee that I disagree with the Hon Dr Nick Smith. He’s got things completely wrong. He’s not only got things wrong, he’s mis-stated the facts of the matter. So it is correct that, in its current form, this Part 1, clause 3(1)—and, in particular, paragraph (b)—refers to, as one of the objectives of this bill, maintaining and enhancing public confidence in the judicial system.

Dr Smith is very good at using language that actually doesn’t explain and describe what actually happened. Ministers do not have the right to override select committee recommendations; it is wrong to say that. Dr Smith says it, and one has to assume there’s a level of mischief about it, but it is wrong to say that. Ministers do not override recommendations of select committees. This House, however, in exercising its role and its function as part of the committee of the whole House, is fully entitled to say, “We’ve seen the recommendations of the select committee. They’ve got it wrong.” There is a very good reason why this House might want to say that, in relation to the provision of what was described originally as “scandalising the court”—that is to say, saying untrue things about judges—that is something that the House, in this committee stage, might want to review. That is simply this: there was one member on the committee who was vociferously opposed to that provision—a member who happens to have a conviction for contempt of court, for just that thing. So there is a question about conflict of interest undeclared at the select committee on that issue.

Nevertheless, having seen the select committee’s report back to the House and seen what the select committee has done, Cabinet has reviewed it, I’ve reviewed it, the Attorney-General has reviewed it. We’ve looked at the UK experience, and the UK is very clear—I met their new Attorney-General last week, as well as their new Home Secretary. They have said that, actually, there is a problem in their contempt of court law at the moment. Judges are being absolutely slated—vicious, vile, untrue things being said about them. Not criticism of their decisions, not criticism of their work, but things like, “This judge is corrupt.” The only recourse they’ve got is to take defamation action to, effectively, appear in front of their fellow judges to get some sort of justice. It is bogging it right down. There is no real accountability for them. So having the ability for the Attorney-General and the Solicitor-General, who are both charged as part of their roles of protecting the reputation and the standing of judges against unjustified and untrue attacks, is absolutely vital. This allows us to do that.

Let’s remember the origins of this bill. This started out as a Law Commission report, with a draft piece of legislation that a former National MP, the Hon Chris Finlayson, picked up. It included the original clause that allowed for a criminal sanction against those who to a very high standard say untrue things about judges with a view to undermining confidence in the judicial system. The Hon Chris Finlayson was adamant on his considerations and his experience, and he had an enormous amount of it, that this was one thing that was needed to ensure, to provide, that limited level of protection for judges against the most egregious attacks on them as judges, unrelated to the quality of their work.

Cabinet made the judgment and I made the judgment that, actually, we should retain that in the bill. So I’ve now produced Supplementary Order Paper 289 to do that. This is all about achieving the objectives set out there in clause 3(1)(b) of maintaining and enhancing public confidence in the judicial system. It is not possible to maintain and enhance public confidence in the judicial system if people who are aggrieved at what has happened to themselves in a court can make salacious and untrue remarks about a judge and there can be no effective recourse.

So we’ve made the judgment that that provision must be retained, and it is retained. It is totally consistent with that objective. It is totally consistent with the objective of the whole bill, which is about effective remedies to ensure that those who breach the court’s rules and those who seek to undermine the standing and efficacy of the courts and our judicial system should be met with an appropriate sanction.

So that matter that that member has raised is fully answered in Supplementary Order Paper 289.

Thank you, Madam Chair. Allow me to start by addressing a point that the Minister made, I think, well—I’ll take a step back. The Minister explained clearly that the Minister cannot direct a select committee, and that’s true as far as it goes. But it’s also true that the Minister doesn’t sit on the select committee. The Minister isn’t, and in this case wasn’t, aware of all the deliberation and discussion. For him to misrepresent the situation as took place in the select committee without having been present and, therefore, fully aware of it, I think, is unfortunate to say the least. I refer, in particular, to his characterisation of the what he calls “conflict of interest” in relation to my colleague and friend the Hon Dr Nick Smith.

First, it was not only one member of the committee who found, for sound policy reasons—about which we can have a reasonable discussion, surely, soon—that it is objectionable to restrict free speech in this way. There are other alternatives for dealing with that inherent conflict in that balance of rights question. But it wasn’t only one member; it was at least two, and in fact, I’m pleased to say, many more members of the committee, and in fact, I’m pleased to say, ultimately to the credit of the Labour members of the committee that they too agreed with where we, the National Party members, wished to land on that. The report of the select committee makes it very clear that it’s not a minority view or even, technically, a National Party member view—four-four, split committee as it was—but, in fact, a unanimous decision. So that’s the first point.

The second, in relation to the alleged conflict of interest, is that Dr Smith’s matter is not a matter currently before the court, so there’s no personal interest, in that sense of a vested interest, in him having a view on this. He has a policy interest in it, sure, but we all have at least some connection with various matters that come before select committees and the House. For example, an easy illustration is we all pay income tax—or, at least, we should—and so we all have a technical conflict of interest in relation to taxation matters. So I don’t need to probably belabour that point terribly far except to say that I think it’s pretty poor form to be alleging a conflict of interest for an historical matter and one that the Minister has said was not declared; in fact, this matter was discussed at the select committee. If the Minister had been there, he would have known that. Of course, he wasn’t there—quite rightly he wasn’t there—because that, as he has explained himself—

💬 Greg O’Connor: Refused to be conflicted out, Mr Penk.

Mr O’Connor—

💬 Hon Members: Take a call.

Well, I look forward to Mr O’Connor taking a call on exactly that point. There was no good reason for Dr Smith—

CHAIRPERSON (Hon Ruth Dyson): Perhaps if the member addressed the part that we’re discussing it might help.

Thank you, Madam Chair. I’m certainly happy to address not only the part but also the points that the Minister has made in, presumably, addressing the part as well.

So, addressing the part of the bill, in so far as it sets out the purpose of the bill, the language is very much around, of course quite rightly, wishing to protect the integrity of the judicial system. There’s some very good work that has taken place throughout the bill, including in this part, to do exactly that. But to characterise the only option to do that in the case of the reputation of the judicial system as being either defamation or the offence provision that was originally in there, and is now effectively sought to be reinserted, is actually, simply not accurate. In fact, the bill itself contains a take-down order mechanism whereby the High Court can order that material that meets the threshold can be the subject of a take-down order. Of course, if that order is disobeyed, then that in itself is a contempt of court and can be dealt with very harshly indeed, and I would say quite rightly so.

So there are other options. To suggest that there is no alternative to this seems to me, perhaps, quite a miss on the part of the Minister. I presume he’s aware of that provision in the bill. So I’m surprised that he doesn’t mention it in his dissertation on the relative merits of defamation only versus the effectively reinstated position.

I’ve got more to say on that but, seeing as that deals quite specifically with a clause in Part 2, I’ll save my comments to that part of the debate very shortly.

The Minister in the chair, the Hon Andrew Little, and his colleague Greg O’Connor raised the issue of my own experience around contempt law. I’m going to share it with the committee because it’s absolutely relevant to this part.

I had a constituent, a husband and wife, that came to see me in the early 2000s, who had lost all access to their son. They hadn’t seen, when they came to see me, their son for two years. They’d never done anything wrong. They’d never been investigated by Child, Youth and Family Service, and they were desperate to see their child. And, when I looked into the processes that had occurred around the Family Court, I was appalled. It was a Māori family, and when I read the reports that said, “Oh well, they’re a Māori family, so they’re all different and they won’t feel the same loss that other New Zealanders might have from their child.”, I was appalled. And as a diligent constituency—

💬 Greg O’Connor: I raise a point of order, Madam Chairperson. I just wonder—this is sounding like a plea in mitigation—if it is appropriate that such a plea in mitigation be heard in these circumstances. Some guidance, please, Madam Chairperson.

CHAIRPERSON (Hon Ruth Dyson): I really appreciate the advice. Thank you.

The reason it was so important was that, actually, the law was not working. The law was grossly unfair and actually, by New Zealanders having a debate about our court system failing a family, we actually were able to repair the law. In fact, two years later, the Parliament made a decision that we would amend the law to make it absolutely plain that that situation would never again occur in New Zealand.

And so my plea is this. There is an absolutely proper process that goes on in this Parliament. We try to write the very best laws we can. We then look at examples in our community and make judgments about where the law’s working well and where it is not.

CHAIRPERSON (Hon Ruth Dyson): Could you do a passing reference to the part we’re debating—

Yes, absolutely—

CHAIRPERSON (Hon Ruth Dyson): —quite soon?

—because this goes to the heart. This goes to the heart of the issue of contempt and whether people, when they criticise the courts and their decisions, should be charged with a criminal offence. And the Minister in the chair has said, “Oh, this only happens if it is extravagant, outrageous criticism of judges.” Well, that’s not true. I invite people to look back at the record and to see exactly when Michael Cullen—the Attorney-General, a member of the Government—chose to send the toughest prosecutors in the land against an Opposition member of Parliament. So the issue at stake here is the issue of: do we want to create a criminal offence of contempt for when people have genuine concerns that our courts are not working, that our judges have made a fatal error?

And look, my experience is not the only one. Should people who champion the cause of—whether it be David Bain or whether it be Arthur Allan Thomas, the courts sometimes make mistakes. And it is fundamental in a free democracy that people are able to express views about that and they are not threatened—they are not threatened—with a crime of contempt. And so I say to Mr Greg O’Connor opposite: I know the Minister in the chair is not a constituency MP. He’s never been able to win a constituency. He would not understand the importance of constituents, who sometimes come in your door and you are the last point of call. You are the only place where they might be able to get justice and for Parliament to say that—whether it be a MP or whether it be a private citizen that’s able to say, “Actually, the court system is not working. The law is wrong. There has been a mistake.”—and to be able to express that and debate that is absolutely essential for a free society and for this Parliament to actually be able to do its job of being constantly able to amend and reform the law.

And so that’s where I bring us back to the very provisions of Part 1 and ask the committee to reconsider. If you really want to protect the integrity and enhance public confidence in our system, why do we disagree with the US Supreme Court, which so wisely said the respect for the judiciary will be made by the quality of its judgments and not making criminals of those who question the decisions that it’s made? Why is it that we in New Zealand, when the UK has repealed it, where Canada, where the US, and where Australia do not have a criminal offence in this area—why do members of this Government want to reduce the freedoms of speech that are available in those other jurisdictions and stop the proper process by which people can question the effectiveness of any State institution and have that proper debate and why are they overruling the recommendations of the select committee?

I thank the member. I’m not saying that it’s outside the rules, but can I just suggest to all members that after 23 years of MMP we no longer insinuate that list MPs are second-class citizens. I don’t think it’s helpful.

💬 Hon Dr Nick Smith: Point of order, Madam Chairperson.

CHAIRPERSON (Hon Ruth Dyson): Sorry, I’m in the middle of a sentence. If you wouldn’t mind holding your breath until I’ve finished it. I don’t think it’s helpful to the order of the committee.

I raise a point of order, Madam Chairperson. My point of order was that constituency MPs have a particular responsibility. That is something that I pointed out, and I think it’s very odd for the Chair to be getting themselves involved in the debate, particularly after the quite derogatory comments from Mr Little and Mr O’Connor, on which I sought to correct the record.

I gave you a lot of leniency in that regard, actually, Dr Smith. I wasn’t getting involved in the debate. I was commenting on the order of the committee and the contribution you had made, and I may have misinterpreted it, in which case I apologise. But I don’t believe I did.

Part 1 agreed to.

Part 2 Provisions to promote and facilitate administration of justice