Contempt of Court Bill

Thank you, Mr Chairman. It’s a great pleasure to be back. We were talking, because we’re on Part 2 of the bill, about Supplementary Order Paper (SOP) 289 in my name that adds back in a provision that was in the original bill, which is the—to use an old phrase—scandalising the court provision, but we now call it something else, which is about—

💬 Chris Penk: Publish a false statement.

—publishing false statements—thank you, Mr Penk. I thought it would be useful for the House to know that New Zealand courts have considered the issue of contempt of court in relation to the publishing of false statements and inflammatory statements. I want to read some quotes out to the committee because I think they do encapsulate very precisely exactly what we’re trying to get to with this SOP. These quotes all come from a case called Solicitor-General v Smith, and one of the comments that the court made was actually to explain why contempt of court as a provision, as a proceeding, is important. Actually, this is in sentencing notes in relation to following the trial, in relation to the three defendants to the trial. They pointed out “The purpose of the law of contempt is to protect the court’s ability fairly and effectively to administer justice to and for all New Zealanders.”

That came on the factual basis of this case where a number of parties, and one in particular, had made some comments that were described by the court as inflammatory and intended to intimidate. The purpose of that is the court was concerned that these statements were made with a view to undermining public confidence in the court, thereby discouraging others from using the court. The court was the Family Court, and it’s interesting: in the actual decision of the court, the court drew on an English authority, and when they talked about statements made publicly designed to undermine public confidence in the court, they talked about the effect of that as undermining the due administration of justice. They said that there are three requirements for the due administration of justice. One is unhindered access to courts for the determination of disputes; secondly, people must be able to rely on the courts as free from bias against any party and making their decisions based only on the facts in front of them and from evidence properly adduced; and, thirdly, people must be able to rely on there being no usurpation by any other person of the function of the court to decide according to law.

Effectively, what the court is saying is that those who take the law into their own hands and think that they are higher than the law and who make comments that are deliberately intended to undermine the authority of the court—which is what the SOP is about—by making false statements are, effectively, usurping the role of the courts, and in a country where the rule of law is absolutely vital that is unconscionable, it’s wrong, and there must be a proper sanction against it. So that case of Solicitor-General v Smith laid that out very clearly. We don’t have many convictions in this country for contempt of court in relation to statements made by people intended to undermine the authority of the court. But that was one, and actually the Smith referred to, of course, was none other than the Hon Dr Nick Smith, who made those statements and was convicted as a result.

Those actions that were taken by the defendant in that case undermined the rule of law in New Zealand, and I think members of this House are entitled to look to that member when he makes these highfalutin statements of principle and of constitutionality in the parliamentary process, and know that he doesn’t actually believe them. He actually undermines the rule of law and he has a conviction to show for it.

That is why this SOP, this amendment to the bill, is so important, because it is about sheeting home the importance of the judiciary, of the administration of law, and that for those who for whatever reason seek to undermine it by making false statements about judges or the courts and seek to undermine public confidence in the courts, there should be a sanction against them. The SOP is very clear. There is a threshold to meet. This is not about any criticism made, and so respect for section 14 of the New Zealand Bill of Rights Act and the protection of the freedom of expression is absolutely taken account of. We have to remember too about the New Zealand Bill of Rights Act that it also includes section 5, which is about justified limitations.

The courts have accepted, even in the face of the New Zealand Bill of Rights Act, that convicting people for making statements intended to undermine the authority of the court is a justified limitation on the freedom of expression, and so we don’t have the sort of wild west mentality when it comes to our court system, our judiciary, and the administration of justice. It must be protected. Its integrity must be protected, and for people who think that it’s OK to take the law into their own hands—people like the Hon Dr Nick Smith, who think they can take the law into their own hands and pronounce about cases, undermine parties to cases, undermine judges, undermine the system, undermine confidence in the system—we have to have an effective sanction against that. That is why we have this SOP and that is why the members on the Government side will be supporting it, because that is ensuring that we have a justice system that is impartial, that is fearless, and that cannot be usurped and undermined by any other citizen, or, including someone in as privileged position as an MP, that they cannot be undermined in the discharge of their duties.

I welcome this debate because it goes to the core of the values we have about freedom of speech, and it’s interesting the numbers of members of Parliament that supported me at the time when a previous Labour Government took the very unfortunate step of prosecuting an Opposition member of Parliament for highlighting a constituency issue, which resulted in significant family law reform in that individual case.

But I personally want to highlight the misgivings—

💬 Greg O’Connor: I raise a point of order, Mr Chairperson. That’s blatantly false that a Government can take a prosecution. I think it’s something that really—the member needs to be very careful in accusing a Government now or in the past of taking a prosecution. The prosecution was taken by the authorities of the day.

CHAIRPERSON (Adrian Rurawhe): Order! No, it’s a debating point.

Thank you, Mr Chairman. I want to read the submissions that the select committee heard on this point to make plain that this is far more than just my view. I want to point out that the United Kingdom, where we inherited the law of penalty and criminal offence of scandalising the court, repealed it in 2013. So why do we want to retain a law that we inherited from the UK that they have got rid of? Why is it that we must have this law to protect the integrity of the courts when great free democracies like the United States of America do not need this law of making it a criminal offence to criticise the courts to maintain the effectiveness of the judiciary?

But I want to read for Greg O’Connor what the New Zealand Law Society said, and I’ll read it quote for quote in the submission: “We believe that the clause is dangerous and it will interfere with the citizens’ rights of free speech.” When the Law Society says to the Parliament that our law is dangerous, does that somehow make me some sort of radical for saying that we should listen to that view?

Can I quote another organisation: Transparency International New Zealand. Now I’ve heard many speeches from members opposite that they want to have a transparent—in fact, we’re told that they’re going to be the most open, transparent Government ever, and yet Transparency International New Zealand submitted how important it was that people did not have the fear of criminal prosecution if they raise questions about the integrity of our court system.

Then I could quote the many submissions we heard at the select committee from—guess who?—the media. Now I’m one of those that believe in free press. We heard from six different respected media organisations, who also advocated that New Zealand should be able to enjoy the same freedoms that are available for speech in the United Kingdom and in the United States in this fair country of New Zealand.

But here’s the process point. The select committee heard the submissions. The select committee unanimously said that we do not need this contempt, this criminal offence, to maintain the integrity of the court system. And what the Minister has done is said, “I don’t give a hoot what the select committee decided. I don’t care a hoot if they heard all this evidence from university academics, from organisations like the Law Society.” They say, “Cabinet rules. We are now with this SOP going to overrule the unanimous recommendation of the select committee on the repeal of contempt.”

I also want to challenge the Minister in his view about what his Supplementary Order Paper (SOP) 289 does. He says that this provision is solely about protecting members of the judiciary from the outrageous comments which we see on the net, and I have to say that members of Parliament get those sorts of criticisms—it goes a little bit with those that are in authority. But let’s hear what the SOP says. Is this provision of criminality for criticism limited to just a judge? No. The member’s SOP says “publishes a false statement about a Judge or [the] court;”—whether it’s the judge or the court.

Here’s what else: if a person makes a public statement that undermines “public confidence in the independence, integrity, impartiality, or authority of the judiciary”, or if they make a statement that “could undermine public confidence in the … judiciary”—and remember, these are criminal offences. So we should not be surprised when we read a submission from the Law Society that says that those phrases are so wide that a person who, for instance, says “Well, I think Arthur Allan Thomas is innocent.”—is that bringing into disrepute the respect for the court? My view is that, actually, that’s a really important freedom that people will be able to express.

If we look at the Law Society—[Minister Little shakes his head] Well, the Minister in the chair is saying that the Law Society’s wrong. Is that correct? Is he disputing the submission that their view is that this is a very wide provision that he is wanting to introduce in making a criminality—a crime?

What the select committee said was “Look, we are prepared to provide a take-down notice mechanism.”—that is, if the courts believe that there is a statement that someone is making and that statement might be able to be removed. I remind the Parliament that that is going further than the rights that many others in authority have, and I want Parliament to consider what the original basis for the crime of scandalising the court was. It was in the days when judges were seen as super-beings, when we felt that we somehow had to put them up on a pedestal.

Now, it’s strange to me to be arguing with the Labour Party that we want to live in a society where there’s one set of rules for everybody, because what is common to the submission from the New Zealand Law Society, what is in the submission from Transparency International, and what is consistent in the submissions that we heard from academics from a number of universities is that the protections that go for judges should be no greater than what there is for a member of Parliament, for what there is for a chief executive of a Government department, or for what there is for any other individual. Why does this Parliament want to say “Oh, you’re allowed to freely criticise people, but not these ones.”? Is that healthy for a liberal democracy?

The point that I finally wish to make in respect of that freedom of speech and the importance of it is this point: why should New Zealand have a lesser level of freedom of speech than any other liberal democracy? That’s what the Minister is proposing with his SOP. Is there evidence in the United States that somehow their administration of justice, their court system, is compromised? There was a very—well, the member Mr Greg O’Connor laughs. Can I draw to his attention a very important ruling of the Supreme Court of the United States of America. It said this—and these are very wise words—“The respect for the courts will come from the quality of its judgments, not by silencing its critics.”

💬 Hon Stuart Nash: It’s not silencing its critics. It’s stopping fake news.

That’s what the Supreme Court of the United States says, and I think—well, Mr Stuart Nash, the Minister of Police interjects. My question for him is: why is it that in the United States and the United Kingdom, it is not necessary for the administration of justice to make criminals of people for free speech, but in New Zealand it will be?

Now if the member wants to put a case for changing our defamation law, or other laws such as our telecommunications laws around things, and apply it equally to everybody, that’s fine. What I object to, and what I think is bad law, is to put judges on a pedestal and somehow pretend that they need a level of protection that doesn’t apply to anybody else. Our courts and our judges deserve the same level of scrutiny and New Zealanders deserve the same levels of free speech that operate in other liberal democracies.

Mr Chair, could I just speak, please, to Part 2 of this bill—the proposed new clause 24A, “Offence to publish false statement about Judge or court”. This is the basis of Part 2.

Particularly for those members opposite who may not be aware of the history of how we got here, the Hon Christopher Finlayson, who I think most of you will agree is an esteemed gentleman, a smart gentleman, and a wise gentleman, and who was the Attorney-General in the previous Government, actually brought this bill to the House as a member’s bill. It was a good bill and, as a result, it was picked up by the Government and by the Minister, and it went through. Surprisingly to this side of the House, Mr Finlayson’s wishes, his desires, and his dream were completely ignored and overridden by Dr Smith, and we arrived at the situation where we are now, where what was actually required was to relook and ensure that the intentions of a man as wise as the ex - Attorney-General the Hon Chris Finlayson were actually honoured, or certainly, if not honoured, were actually acknowledged. That is where we have arrived today.

Can I just also say to those members opposite that I think this is very important: just in case you are caught up in the rhetoric of your colleague, Dr Smith’s statements in his media releases and on the Radio New Zealand programme were contemptuous. They went well beyond the fair and temperate. They were one-sided, emotive, and extreme in their language, and were inflammatory and intimidatory in their effect. Dr Smith made the media releases—

CHAIRPERSON (Adrian Rurawhe): Order!

—and gave the interview with the actual intention—

CHAIRPERSON (Adrian Rurawhe): Order! Order! That’s not actually part of the bill, OK? Giving a commentary on what other members are saying in the media is not actually addressing the bill. Unless you can tie them together, which I haven’t heard yet, the member needs to address Part 2 of the bill.

If I may, perhaps I should have said this at the beginning, because, Mr Chair, I believe you were here when Dr Smith actually went through the circumstances of the case, which he was using to justify his position. What he used was the case—this case that I’m reading from was the actual court case, Solicitor-General v Smith. This is actually what the findings were—

CHAIRPERSON (Adrian Rurawhe): We’re actually not debating that. What we’re debating is the content of Part 2 of the bill, and so—[Interruption] Order! I’m trying to give a ruling here. So what I want you to do is that unless you can link what you’re saying to the content of the bill, you should leave that alone.

Thank you, Mr Chair. Well, what I will just perhaps say, as someone who’s been involved in law enforcement for some time, is the one thing that I dealt with, particularly even with criminals—or probably especially criminals—is that they needed to have a certain respect for the criminal justice system. They actually had a respect for judges because it was one part of their lives that was actually relatively ordered. It was a little bit like coming to this House and, rightfully, we have to keep to order. It is one place in their lives for many people where there is some order, and where they actually do obey the rules of the court.

It’s incredibly important that we have that institution, because those that are more likely to actually be part of pulling our society apart need that. So anything that damages that—and we’re not talking about the individuals necessarily. We’re actually talking about the estate; we’re talking about the institution. So to be able to stand up and tell egregious, outright lies about judges without challenge, and certainly without the ability—

Tim van de Molen: I raise a point of order, Mr Chairperson. To suggest that anyone in this House is lying is totally out of order and brings the House into disrepute—

CHAIRPERSON (Adrian Rurawhe): No. I’ve been listening very carefully to what each member has been saying. Now, I listened carefully to Greg O’Connor’s contribution. He did not actually say any particular member of this House. He is sailing very close to the wind, though—Mr O’Connor—and I’d encourage him to focus on Part 2 of the bill. So my ruling is that what he has said is not a direct accusation against any particular member.

Thank you, Mr Chair. Certainly, can I assure you, I was talking about the general “who”, not any individual was I actually discussing in relation—I’m talking about any individual anywhere who is able to make these statements which will cause the citizenry, particularly those who spend more time in court than many others, to lose faith in the court.

Thank you Mr Chair—to the relief of us all. Just for the sake of the record, I’ll start by reiterating the National Party’s support for Part 2 of the bill as it was reported back by the Justice Committee, and indeed the remainder of the bill, to which we’ll get, no doubt, in due course. In that sense, our position is exactly the same as the Labour members of the select committee then, if not now. The Labour members of the committee I think actually took a very sensible approach to this, and I thank them for it, whereby after some interesting discussion about the balance of various rights involved, they—including one Mr Greg O’Connor—saw fit to agree with our position and where we landed on the bill as adopted by the Government but originally put forward by the Hon Christopher Finlayson. So it was that Part 2 as reported back to the House by the select committee did not contain an offence provision of the kind that’s now being, effectively, reintroduced by way of Supplementary Order Paper (SOP) 289. So I do wonder what might have changed in the mind of Mr Greg O’Connor, but in any case that’s for his conscience and not ours.

The Minister has touched on the issue of balancing rights. I mean, it’s a reasonable approach to talk about the different rights involved. We’re not comfortable with where that balance has been struck, or is proposed to be struck, by way of the SOP—so, acknowledging the right to freedom of expression under section 14 of the New Zealand Bill of Rights Act on the one hand; the reputation of the judiciary against unfair criticism on the other. Our view is that it’s not a justifiable limitation in a free and democratic society, to adopt the words of the New Zealand Bill of Rights Act in the test that it itself would apply, to be criminalising free speech as a matter of first resort—as a matter of first resort, as I say—as distinct from what is actually already still allowed in the bill as reported back from the select committee, whereby a take-down notice can be ordered, and if an individual fails to comply with that, then that in itself could be criminalised as a contempt of court for failure to comply with such order. That seems to us the better place to strike the balance.

Minister Little has talked about outrageous false statements that are made against judges, and no doubt such things are made from time to time. I say, in jest, obviously, he would be aware, as we all are in this House, that some pretty outrageous things are said about MPs and even by MPs from time to time, and I think that we shouldn’t be too precious in a free and democratic society—again, to use that language from the New Zealand Bill of Rights Act—about the way that we respond to such comments by members of the public but also the fourth estate, as Dr Smith has alluded to.

On the subject of what a false statement might be, I think it’s worth noting that it’s actually not necessarily a straightforward matter to determine in any given case what is the objective truth. For example, it might be—and I’ll resist the temptation to use any causes célèbres in terms of cases in which the verdict has, effectively, been overturned, but we can all bring those to mind. We could say at one point, “Person Y is innocent. That person didn’t commit the crime of which he has been already convicted.” That would be a false statement—that would be a false statement, arguably, that, actually, if you look at the elements of the offence in the SOP, would be something that could undermine public confidence in the independence, because how could it lock up an innocent man for 20 years, for example? There could be a real risk that such a statement could undermine public confidence and so forth. That, at that moment in time, is a false statement, because if the court convicts someone of a multiple murder, then, whether or not they actually did it, it is a false statement to suggest that they didn’t, because the court has said that they did and so as far as the law is concerned, they did do that thing.

So a couple of other points I’d make in relation to individual citizens being able to make such criticism—sure, but also academics, who we need to be able to criticise the court system. It might be in any individual situation that they might get something wrong, or it might be determined that they might make a false statement—for example, it might be that an academic or a politician says that courts have slower processing times, and that might be true if we look at some courts but not others, and so forth. So, again, it’s not always a straightforward matter to determine what is a false statement, what is fake news, and so on.

So, in my remaining time, if I could just take a couple more seconds over the break, I have two questions for the Minister: one is that I seek that he acknowledge for the record—[Bell rung] Mr Chair.

CHAIRPERSON (Adrian Rurawhe): Chris Penk.

Thank you, sir—just to complete my two questions to the Minister. Will he please acknowledge for the record, at least for the sake of clarity and posterity, that there is a take-down mechanism in the bill as reported back from the select committee, such that criminalisation at first resort need not be considered necessary? I accept he might make a judgment that that’s so, but nevertheless will he acknowledge that such a mechanism does exist and is available? Second, are there any comments he would make in relation to parliamentary privilege and whether that might apply to statements that will be subject to SOP 289 if it should pass into law?

Thank you very much, Mr Chair. It’s great to take an opportunity to speak on Part 2 of the Contempt of Court Bill. Considering that we’ve been discussing tonight the proposed Supplementary Order Paper (SOP) that has been tabled today, it’s important that we recap on the main issues that have been raised by the members opposite. As a member of the Justice Committee, I think it’s incredibly important to understand what actually is being discussed here. So Supplementary Order Paper 289 reinserts an offence of publishing false statements about a judge or a court. I think what has been alleged by those members opposite is that it is somehow an impediment on freedom of speech, whereas we believe—this side believes, and the Government believes—that, in fact, it does exactly the opposite: it protects those important institutions such as the carriage of justice and the ability for those issues to see the true light of day.

There is a real concern that some of the issues that have been brought to this House tonight come from a history where the member raising them has personal experience in this area, and that’s always an incredibly dangerous area to go into, because it’s important to understand issues from where they are looked at, not from your own personal point of view. I feel that this debate is being tainted by one particular member’s prior experience, particularly in front of the New Zealand courts, and in front of the High Court in particular.

So I want to point out that the Hon Chris Finlayson, who has a good reputation within this House of understanding the law, brought this issue to the House, and in a very good sense had brought this idea here. What I haven’t heard tonight—what I have not heard tonight—is why that position has been reneged. Why has that position been turned around upon by those members opposite? From all I can hear tonight, it’s that one particular member’s personal circumstances have called for the National Party to take a complete U-turn on their previous position on this particular issue. I say that is not good law, that is not good governance, and that is not impartiality—and, in fact, that argument that has been put forward tonight confirms the very purpose of this particular SOP, which is to have impartiality and not be influenced by someone’s particular circumstances. So, in fact, the member concerned is actually an argument against his very own case, and I find that sad in the face of trying to increase justice within New Zealand.

So what we have not heard from the members opposite tonight is why we have seen opposition to what a good member who in the past had a very strong career in terms of being Attorney-General and Minister for Treaty of Waitangi Negotiations as well—Chris Finlayson—had as a good idea that we need this. We need an extra offence in there to make sure that there are repercussions for anyone who does take the name of a judge or a court and uses that erroneously or to lie about those issues. We have not heard at all as to where this would be a problem in terms of where we’re moving to with this bill.

In particular, we need to take notice of the fact that there is a changed environment that we’re operating in. That, in particular, is social media when there is live commentary on cases that are before the courts. It is incredibly important that there is an ability to move and to make sure that members of the public are clearly aware that making comments on the carriage of justice can actually have a direct impact on the outcome of those court decisions. That is a situation that we need to protect, and that is exactly what this Supplementary Order Paper does.

It speaks to the fact that having contempt of court or a false statement rather than an untrue allegation—that there needs to be that mental element. There needs to be a clear intent to try and say a statement that will influence the outcome and the carriage of justice. That’s why I have a real problem with the member opposite standing up and advocating on behalf of the National Party when, in the past, there was a clear purpose to interfere with the administration of justice in that member’s past. So to then stand up—[Time expired]

Thank you, Madam Chair. Listen, I just want to respond to some of the comments and questions posed by members of the Opposition. I just want to return to the comments made by the Hon Dr Nick Smith. He did a very sneaky thing, which was when he kind of read the provisions of the Supplementary Order Paper (SOP) and then referred to submissions made to the Justice Committee, which were submissions about a completely different provision. This SOP is different to the provision that appeared in the original bill. This is very much focused on false statements. It’s not the broad, old-fashioned scandalising the court provision.

I think it’s very important that if we’re going to have an honest debate about these things, we actually need to focus on what is in front of us and not refer to comments made by august organisations like the Law Society about something completely different.

Both Dr Smith and Mr Penk made comments about “Look, you know, we must have freedom of speech and judges can just be like the rest of us.” I look particularly to the likes of Mr Penk, and, actually, Mr Macindoe, who are members of the profession. I look at them as Dr Smith is speaking, and I look at them. They know what I am thinking. They know that I am thinking of them. They know better.

So let’s be very clear about the status of judges, because they are not like an MP, who has the privilege of coming to this House with full parliamentary privilege and saying what they like and knowing they cannot be touched, in a sense. Judges have one forum in which they can express their views, and that is their courtroom. Judges cannot participate in a public debate, and if they come under attack by somebody saying that, you know, a case that a judge is dealing with is leading to somebody stealing a child, that judge can’t respond. That judge can administer justice in their court, but they can’t respond. They can’t defend their reputation. When somebody says something that the High Court in contempt proceedings subsequently finds to be, effectively, over the top—“intimidatory” was the language used—how does the judge respond to that? So the contempt of court proceeding as provided for in this SOP is absolutely vital.

Mr Penk made the point about “Well, you know, outrageous things are said about judges but they’re said about MPs as well.” MPs have way more opportunities and privilege to respond to attacks on them than judges do. Now, Mr Penk knows that well and truly, and so does Mr Macindoe, and they know the important principle about judges not participating in public debate in order to preserve their impartiality.

It’s interesting that one of the comments made by the judges in the Solicitor-General v Smith case—in paragraph 85 of the substantive judgment they said, “The offence of ‘scandalising’ ”—as it used to be known—“exists to protect the Court, not the dignity of its Judges. It guards the institution, not the individuals.” Now, Mr Penk gave the example: “Well, what if somebody says after a conviction has been entered ‘The person is innocent.’?” Well, that’s fine. That’s not attacking the integrity of the court system. That’s not done in a way calculated to undermine confidence in the court. If the person had said—

💬 Chris Penk: Well, if you’re locking up an innocent man, it’s pretty bad.

Indeed, innocence campaigners up and down the country have been doing that for years. If they said that “The person is innocent because the judge is corrupt.”, that is something completely different, and that does attract the attention and the sanction of this provision.

Mr Penk raised two points he wanted me to respond to. One is about the take-down mechanism. The take-down mechanism remains. It is in clause 25 of the bill, and it is there, but it doesn’t deal with the person who, in a calculated way, seeks to undermine public confidence in the court by making untrue statements about a judge. I know Dr Smith seemed to get confused about the judge, judiciary, and the court. When you stand in front of a judge, you are standing in front of the court. When you stand in front of the court, you are standing in front of a judge.

The second point that Mr Penk made was about parliamentary privilege. Parliamentary privilege isn’t affected by the SOP. The Parliament recognises—and members will know that if they traduce the standard principle in this Parliament of comity between the Parliament and the judiciary, actually, the Chairs and Speakers will place limits on how far members can go before they encroach upon the proper place of the courts.

This provision is a reasonable, very narrow, very safe provision. It does not compromise freedom of speech rights as has been suggested, at least by Dr Smith, and Dr Smith will well know that in the UK it is a major problem now. Judges have no real protection, and many are complaining about it. This provision is about ensuring that the public confidence in the judiciary is not compromised by those—the narcissists and pathological people and others—who would go around attacking our courts.

The part I always enjoy with my debates with the Minister of Justice is every time I put him under a bit of pressure, whether it’s dodgy electoral laws or this, he goes for attacking the person rather than addressing the issues. So let’s go through the claims the Minister made.

The Minister claims that the Supplementary Order Paper around the crime of being critical of the courts is radically different from the bill that’s introduced. I’ve gone through the wording, and I challenge him to do likewise and line up the words of the original bill, of which the Law Society, Transparency International, and academics from a number of universities—he has changed less than 10 percent of the words. It’s a very minor change. The concerns that were made by the Law Society, Transparency International, and others are identical.

💬 Hon Tracey Martin: Change one word, a whole sentence changes.

Now, I’ve got a question for the member opposite, who seems to be interjecting. Here’s my question, and we’ve had no explanation: why did Greg O’Connor, why did Duncan Webb, and why did Ginny Andersen agree to remove these provisions and now change their minds? Have we heard a single contribution from Mr O’Connor? Why did you vote for these provisions being removed?

CHAIRPERSON (Hon Ruth Dyson): I didn’t actually vote. I wasn’t at the committee.

I asked Mr Greg O’Connor—

CHAIRPERSON (Hon Ruth Dyson): Sorry, you said “you”. That means the Speaker or the Chair of the committee.

Well, yes, I understand that, Madam Chair. My question for Mr Greg O’Connor is: why did you vote for the removal of the provisions that the Minister is now wanting to reinsert? Can any member on the Government benches give an explanation as to why they voted for the select committee report that removed the crime of criticising the court and judges? Well, it’s a reasonable question, because what actually happened is that the select committee heard strong submissions and the select committee changed the bill.

Now, members of the Labour Party are wont to criticise, and have read and quoted from a court case around contempt that I was involved in. Let me say this to the committee: I am proud to this day that I stood up for that family and that constituent, because what occurred to them was an injustice. What occurred to them was a mother and father lost their son. They lost their son. Just as members opposite, on other issues, may take pride in standing up for injustice, I absolutely stand up for what I did at that time. I make absolutely no apologies.

Here’s what’s more important: as a consequence of highlighting the injustice that that family faced, the Government of the day changed our family law for the better so that that injustice could never be committed again. I’m proud of the law reform that resulted as a consequence of that case. Frankly, Minister in the chair, the Hon Andrew Little, I take pride in that conviction for standing up against wrong, and if any member of the House questions me, I would love you to make a phone call to the family that were affected. I would love you to talk to the family that were affected and for you to put hand on heart and to say what happened to them in our Family Court system was fair.

It was interesting at the time. I said I was happy to have a by-election in my electorate, and do you know what Labour said? “Oh, we’ve done some polling—90 percent of his constituents in Nelson think he did the right thing. We don’t want to have a by-election.” That was the ultimate test.

💬 Greg O’Connor: Made up—made up.

Well, actually, they were the comments that were made by the Prime Minister at the time as to why there should not have been a by-election.

So this is a very serious issue. The question that has not been addressed by the Minister in the chair is why it is that in a country like the United States, they do not need to have a criminal offence, the judges do not need to have protections beyond those of our defamation law. If the Minister wanted to propose reforms for those to make them work more effectively, I actually think there’s quite a good case for how defamation law in New Zealand does not work well, but there is no argument for maintaining a criminal offence for people that in good faith criticise and challenge the performance of our courts and our judiciary.

Can I just please just speak to proposed new clause 24A(1)(b): “the person knew or ought reasonably to have known that the statement could undermine public confidence in the independence, integrity, impartiality, or authority of the judiciary or a court;”. I just wonder how that aligns with a finding by the court that this member asked her if she felt guilty for stealing the mother’s child—listen to this, members opposite; those who are going to defend this. He asked her if she felt guilty for stealing the mother’s child and, as I say, he said words to the effect that he was a member of Parliament and that Parliament is the highest court in the land and that everyone is answerable to Parliament. So those of you who will sit here and defend this member, just remember—and I’ll go back to subclause 24(1)(b): “the person knew or ought reasonably to have known that the statement could undermine public confidence in the independence, integrity, impartiality, and authority of the judiciary [of the] court;”.

Every day, in our electorate offices, we have people who come in who are so darned right, who are never going to let it go, and as we sit there and outline it, as we sit there—

💬 Matt King: Like this member.

And there’s Mr King. As a police officer, he knows there’s two sides to every story. We get them, they come into the office, they’ve got this absolute drive, and they’re standing on every soapbox going. But when we make some phone calls and when we actually find the other side of the story, we find, actually, perhaps what they are is just obsessives. So what our job is to do, and what the court’s job is to do, is to sort the obsessives out from those who come in with a rational argument. I would challenge any member of the Opposition to read this judgment and then look and listen to what you’ve heard tonight, and what you will hear is a man who is an obsessive—not a rational man; an obsessive. That is what the finding was, and that is why—

CHAIRPERSON (Hon Ruth Dyson): Sorry to interrupt the member, but I’d really appreciate hearing your contribution on the specific part we’re taking a debate on.

If I could perhaps go back to the proposed new clause 24A(1)(c): “there is a real risk”—and, again, I’m directly talking to that statement here in Part 2, in proposed new clause 24A(1)(c), Part 2—“that the statement could undermine public confidence in the independence, integrity, impartiality, or authority of the judiciary [of] a court.”

We all have obsessives in our electorates—people who are so right that they will ignore any discussion to the opposite. I will make this decision available electronically to anyone who wants to watch it, and tell me that you are not dealing with an absolutely obsessive member who is determined to use every means to undermine the court, because that is what this is about. This is why it’s absolutely necessary to have a piece of legislation which ensures that when we get an absolute obsessive who will not see reason, who will not see anyone else’s argument, who is so right that we need the protection of the court because they will never say no—I absolutely commend this.

The question was put that the amendments set out on Supplementary Order Paper 289 in the name of the Hon Andrew Little to Part 2 be agreed to.