Contempt of Court Bill

Thank you, Madam Chair. I think this is the proper place where we should have the debate about my Supplementary Order Paper (SOP) that reinserts a provision that was in the original bill as presented by the Hon Chris Finlayson and picked up by the Government. It is Supplementary Order Paper 289, and it adds back in the offence called the offence to publish false statements about a judge of the court. It’s not about a criticism of the court, and the member the Hon Dr Nick Smith’s contributions that talk about freedom of speech and say that we must be able to criticise—of course we must be able to do that. But this is about making untrue statements about judges and courts, and it sets a very high threshold.

It is very clear in new clause 24A, in subclause (1), that a person commits the offence if three things happen. A person “publishes a false statement about a Judge”—not a criticism, but a false statement—“or a court;”. That means it has to bear upon something that is provably, factually wrong. That is what a false statement is—not someone’s genuinely held opinion but a false statement—and the person has to have known or ought reasonably to have known that the statement could undermine public confidence in the judiciary, or “in the independence, integrity, impartiality, or authority of the judiciary”. It is not just any old statement. It’s a very high threshold. A person has to have known or reasonably ought to have known that it would have that effect. That also includes recklessness, and being reckless as to whether or not there was an undermining of confidence. Thirdly, in any prosecution under this provision, it has to be proven that there is a real risk that the statement could undermine public confidence in the independence, integrity, etc., of the judiciary. There is a fourth aspect and, you might say, a further safeguard, which is that any prosecution in relation to this has to be approved by the Solicitor-General.

So all of those things have to add up. This is when somebody makes an egregiously bad, wrongful statement, an un-factual statement, about a judge or the court that could cause an undermining of confidence, the person did so knowing that that could be the case or was reckless as to whether or not they did so, and the prosecution has to be approved by the Solicitor-General. All of those things have to happen. So what it does is set up a very high threshold.

This is not about your common or garden “I’m disappointed in the outcome and didn’t like what the Family Court judge did.” This applies when there is a personal attack on a judge discharging their responsibilities, and what Dr Smith needs to know—and the reason why he was not only prosecuted but was successfully convicted for his criminal action—is that judges are not allowed to participate in public debate about the discharge of their responsibilities. They have one place to speak and that is in their court and that is through their decisions, and it absolutely stuns me to hear a member of Parliament try to claim in this House that they would be justified as an MP in attacking a judge in a way that attracts a conviction for contempt of court.

That member is a privileged member. He enjoys the privilege of this House. If he wants to influence what happens—change the law that judges have to apply so that thing doesn’t ever happen again—he is one of the most privileged people in New Zealand, one of 120 privileged people in New Zealand who can come to this House and use the resources and his friendships and his networks with his colleagues to do so. But to launch a visceral attack on a judge—

I’m sorry to interrupt the member, but the time has come for me to report progress.

House resumed.

The Chairperson reported the Misuse of Drugs Amendment Bill with amendment, the Copyright (Marrakesh Treaty Implementation) Amendment Bill without amendment, and progress on the Contempt of Court Bill.

Report adopted.

The House adjourned at 9.56 p.m.