Contempt of Court Bill

Thank you very much, and it is a great pleasure to speak to the House in this, the third reading debate on the Contempt of Court Bill. This bill has had a very interesting passage and a very interesting set of origins. I think it pays to remind the House of the origins of the bill, because during the course of the debate and the various stages of the bill, some mythology has been built up around it. For those who say—

ASSISTANT SPEAKER (Adrian Rurawhe): I’m sorry to interrupt the Minister, but you have to move the—

Oh, sorry, Mr Speaker—I am obliged. I move, That the Contempt of Court Bill be now read a third time.

To continue where I left off, I think it is very important to address some of the mythology that has built up around the bill. Let’s remember that the Hon Chris Finlayson, the former Attorney-General, was deeply committed to codifying the rules and the law of contempt of court from his personal experience but also because he understood that in this day and age, those rules should be clearly laid out, clearly spelt out, and easily accessible to those who participate in our court processes. So he sought to make sure that there was good work done. In the previous Government, no doubt a former Minister of Justice—and I’m not sure which one—commissioned the Law Commission to have a look at the area, and the Law Commission went one step further and not only did a report with some recommendations but it actually drafted legislation.

It is true that part of the story of this bill is that the Hon Mr Finlayson strove to persuade his colleagues in the previous Government to introduce the legislation as a Government bill, but he could not persuade his colleagues in that previous Government to do so. So he was compelled, once in Opposition, when that fortuitous circumstance arose, to take the drafting and the work of the Law Commission and turn that into a member’s bill. So this was a member’s bill based on work of the Law Commission commissioned by the previous Government, which had decided for whatever reason that it did not wish to legislate for this very important area of the law.

I know that Mr Finlayson, having not only been put in Opposition but having also had his member’s bill drawn from the ballot—so lucky twice in that regard, for the purposes of this legislation—was then very pleased for it to be picked up as a Government measure so that we could apply the full benefit of the State’s resources in giving advice, improving the drafting, and getting it in the form that it is today. So that is the origin of it.

I’m very pleased that through the examination by Parliament and certainly the Justice Committee and further debate by this House, we have arrived at, I think, a very tidy piece of legislation. It achieves the original objective, which was to modernise but also to codify the rules around contempt of court, leaving, of course, those things that are not provided for within the inherent jurisdiction of the High Court to determine otherwise. But this is a good bill.

Contempt of court is a very important provision and a very important part of our administration of justice in this, a country that observes and celebrates the rule of law. It makes rules to make sure there are strictures of the court around applying evidence—making sure, for example, that juries don’t conduct their own independent investigations and that they rely solely on the evidence that is put before the court and properly examined there—and to make sure that those participating in court do not cause a disruption, and, of course, the other part is making sure that those who might otherwise seek to undermine public confidence in our judiciary and in our court system are not allowed to do so.

I know that that was a somewhat contentious part of the passage of this bill through Parliament, because there are those, or I should more accurately say there was one, who thought that what was the old law of scandalising the court, which is what we now provide for in what is currently clause 24A, publishing a false statement about a judge or the court—they took the view that that wasn’t needed. All that needed to happen was that there should be the ability to remove offending comments from any public record, and that was all that was needed. Of course, that assessment and that stance completely understated and underestimated the impact of very damaging but actually totally untruthful comments about judges and the courts they administer.

Of course, this House—certainly in the committee stage—had the benefit of an understanding of and was read passages from a very important case, which is the case of Solicitor-General v Smith from 2004. I’m very thankful to my colleague Greg O’Connor for his exposition of that case and, indeed, the contributions I was able to bring to the debate in that regard, because that case illustrates a very important point, which is that the court is concerned about those who are either participating in the court process or standing outside it and disagreeing with what’s happening and who would seek to undermine public confidence in that court process. It is not right that some people arrogate to themselves some sort of superior status and superior knowledge that makes them think that that is OK, because that is what happened in that case.

A person, a Mr Smith—in fact, it turns out it was a Dr Smith—made comments about a judge and a court, and it happened to be the Family Court, that that court described as derogatory. Frankly, they were appalled by it, and they had a number of other epithets that they applied to it. It was the classic case of somebody who had heard one side of an argument and decided that they knew what was best, who went on a public campaign not just to criticise but to undermine that judge and that court.

So it was very good that the Solicitor-General—and in fact, it was a very rare event, actually. We don’t often get many contempt of court cases in this country. But the Solicitor-General of the day saw fit to prosecute, that prosecution was upheld, and the person who made those statements was found to be in the wrong, and it is that stuff that is now encapsulated in this bill. As I said during the passage of the bill through this House, there was an attempt to remove that. It’s a very important part of the law of contempt of court, and it’s right that it should be properly provided for. It is now properly provided for, along with the other aspects of contempt of court. That is there, sitting in all its glory in the bill, and following this third reading, it will become the law.

That will benefit everybody. It will benefit the courts, it will benefit the judges, and it will benefit the lawyers, if only as they advise clients and family members of clients who come before the court, because the reality is that in this day and age, it is very easy for someone who is momentarily angered or frustrated by something that happens to them in court or from a judge to express that anger in most unfortunate and importunate terms on social media, or otherwise on the internet, and land themselves in a lot of trouble. Well, there does have to be restraint—there does have to be restraint.

Judges are not like any other citizens. They are not allowed to participate in public debate, certainly about their courts and their work and the decisions that they make—in fact, they’re not meant to participate in much public debate at all. So when they come under attack, they have no means of defence.

Now, other countries have dealt with this, and I know that in the debates in the House people referred to what happens in the UK as if that somehow is the standard. What happens in the UK today is not the standard, and not only is it not the standard; it is an exception, and they now rue the day that they took away provisions for the old offence of scandalising the court, or what we now say is making untruthful statements about a judge.

In the UK now, things are said about judges that make it very, very difficult for judges to seek recourse. We had that gross display of contempt of court by the Daily Mail last year, or a couple of years ago, when the senior courts in the UK declared that the decision about legislation exiting Britain from the EU had to be passed by Parliament, and the Daily Mail declared the judges who made that decision to be enemies of the State. Absolutely appalling—absolutely appalling—and in any other civilised country, the Daily Mail would have been held in contempt of court. Well, that can now happen in New Zealand, because we cannot have the situation where our courts, whose duty and responsibility it is to administer the law impartially and without fear or favour, come under that sort of egregious, indefensible attack.

So I am very pleased that the bill is in this form. It is a very good bill. I’m very pleased with the work that all members of the House have done on it, and I commend it to the House.

Thank you, Mr Speaker, for the opportunity to commence on this side of the House the debate in relation to the Contempt of Court Bill at the third reading. In my time allotted, I will note briefly the history of the bill, notwithstanding that the Minister has already done so; go on to discuss the way that the bill was considered at the select committee; and then look to the purposes of the bill and the way that we think that those are very helpful indeed for some worthy objectives within the justice system more generally, and the way that that plays out in our courts. Next, I will spend a little bit of time on the offence that’s created at new clause 24A, which was inserted by way of Supplementary Order Paper 289 at the committee stage, because that is important to the way that we on this side of the House will ultimately view the bill, and then, as time allows, I will touch briefly on some of the ways in which those purposes that I will have mentioned previously are going to be achieved by the bill.

The history of the bill, as I say, has been described in some detail by the Minister. I won’t traverse that fully, because he’s done so, but I do wish to pause to note again, as Minister Little has done, the contribution of the Hon Christopher Finlayson QC. We regard him as a friend as well as a great legal mind, and we are indebted to him for his work in commencing what we have now in front of us, essentially, as a bill, and to those within officialdom prior to the change of Government, and, indeed, since, who have also contributed to the passage of the legislation to date. I commend the good taste of the Government in picking up the work that Mr Finlayson had initiated, such that this is now a Government bill.

So it was that we found ourselves at the Justice Committee considering this bill, and so I pass on to that part of my contribution now. At the select committee we had a pretty thorough and, I think, collegial examination of this piece of legislation. We were advised on aspects substantive and procedural alike, and came to some views on some, I think, pretty minor changes that we thought might be worthily made, and that was a very helpful and instructive process. As part of that discussion, we formed a view in relation to new clause 24A and the offence that was created around false statements, or, rather, an offence that re-entered the lexicon as “false statements”—but, again, I’ll come back to that shortly and in the meantime just proceed to look at some of the purposes of the bill and why we think that, overall, it is a very good piece of law.

The principal purposes of the Act, as set out in clause 3, include promoting and facilitating the administration of justice and upholding the rule of law. These are very worthwhile things, of course, including in relation to maintaining public confidence in the judicial system. That old chestnut that justice must not only be done but also be seen to be done seems relevant to note in this context, and we are reforming the law of contempt of the court in this legislation, both in the sense of reforming to make it better, generally speaking, and also to put it in a different form. That is to codify rules that in many cases are already in existence but not so clearly, perhaps, to the average person who comes before the courts—and, indeed, some professionals as well—because these rules have developed over time through the common law and cannot be readily found in one place in the same way as they can in the form of a statute passed by Parliament. So that’s part of the purpose. That’s the codification that Minister Little has referred to already, and that in itself is a worthy object and one that we support on this side of the House.

One of the purposes that I would like to pick out particularly, under the subheading of “make certain orders and impose certain sanctions” as something that the court has the ability to do, is the fact that “jury verdicts are based only on facts admitted or proved by properly adduced evidence after free, frank, and confidential jury discussions,”—for the sake of brevity, I’ll leave it there. That’s a very important thing. That’s the ability for the public to have confidence, and especially the key players within the judicial system to have confidence, that it is based on evidence that’s properly brought before the court and able to be tested and challenged in our largely adversarial system. So that’s appropriate in the way that it, essentially, buttresses and supports the other rules that we have to ensure that decisions are made in as safe a manner as possible—for example, the rules within the Evidence Act.

Another aspect that’s particularly noteworthy, I think, under the heading of “Purposes”, is affirming the presumption that proceedings are open to the public and the news media, and to the public through the news media. This is an important presumption, because the starting point, again, is that justice must be seen to be done, and it would offend our principles within a free and democratic society if we did not think that it would be possible to know the goings on of court. But of course that is subject to certain limitations, certain exceptions, and so the bill does go to the trouble of stating situations in which the law restricts access to the court or the reporting of proceedings, and it gives specifically the example of proceedings in the Family Court or the Youth Court. I think that most members of the House would agree that there are particular characteristics of those kinds of proceedings and other “unusual circumstances”, to use the language of the legislation, that justify such a departure from that usual presumption of open justice.

Orders of the court must be enforceable—that too is a worthy aim of the legislation, as described under the heading of “Purposes”. We could have a jurisprudential discussion about whether a rule that is not enforced or enforceable is a rule at all, but perhaps we won’t, and I’d simply note that it’s helpful for us to have something on the statute book that states clearly that the courts are being able to order a certain thing must be done, and if not, then there must be certain consequences for that if the rule of law as exercised through the courts’ jurisdiction to make such findings is not upheld. The common law contempts of disclosing juror deliberations, disobeying court orders, and scandalising the court are covered to the extent that they are being abolished in the common law rule. So, again, we’ll have in a pretty clear expression in one single place where we can find these rules, and I’ve touched on that purpose of codification before.

So I do wish to turn to that one part of the legislation that, ultimately, we’ve been unable to agree on on this side of the House in terms of support for this provision, and indeed therefore for the bill as a whole. That is the newly created offence, or rather the newly expressed offence, at new clause 24A, namely the “Offence to publish [a] false statement about Judge or court”. In the committee stage we discussed that with some level of detail and a certain amount of passion. I don’t think it would be helpful to rehearse all the arguments on either side, except to just note for the record at this, the third reading, that on this side of the House we regard the balance that needs to be struck, of course, between freedom of expression as enshrined, among other places, at section 14 of the New Zealand Bill of Rights Act on the one hand, and the need to protect the integrity of the judicial system on the other. We regard that balance as better struck by way of the take-down order mechanism that is already in the bill, rather than having at first resort the ability of the court to imprison an individual or to fine a body corporate up to $25,000. So somewhat a matter of taste, I suppose, in all human rights matters, but the way that we have landed is to say that we don’t believe that that’s the right balance to be struck. Accordingly, we do not support that particular provision and therefore, ultimately, the bill itself.

In my brief remaining time available, just to touch briefly on some of the ways that those purposes are achieved within the bill, the disruption that can be caused by adverse behaviour within a court proceedings: there the judicial officer is able to cite disruptive behaviour and deal with that clearly as set out, for example, under Part 2, in Subpart 3. So that’s a useful level of detail again. Subpart 4 then goes on to talk about the investigational research of cases by jury. So those are a couple of examples of the way that those worthwhile purposes that we discussed before are able to be achieved.

I complete my time by again acknowledging Mr Finlayson, his hard work, and those who have picked it up and carried it on. But, regrettably, ultimately we can’t support the bill, given that one provision that we feel the balance has not been correctly struck on.

Thank you, Mr Speaker. Often when we stand up in the House to speak on bills, we are speaking about what may happen. We are seeking to put a bill through that will, when it becomes law, fix something we know in the future might happen. That’s not the case with this bill. With this bill, we know exactly why it is that it needs fixing.

I listened to the contribution by the member opposite—Mr Chris Penk—and I noticed that he was supporting the bill. I sat here thinking that perhaps there’d been a change in their attitude. He was very reasonable as he went through each of the parts of the bill, until, rather surprisingly, he came to the last one minute and 30 seconds, where he then chose to address the Minister’s Supplementary Order Paper (SOP) 289, the very excellent SOP relating to an offence of prohibiting the publication of false statements about a judge or court.

It’s a little disappointing, because that side of the House are very aware of previous debates that have taken place here, and aware that of one of their own members, Dr Nick Smith, was convicted of an offence very close to what this offence is. Just to give some idea so we know what we’re talking about, the judgment at the time was Solicitor-General v Smith in the High Court at Wellington, on 2 April 2004. Justice Wild said that Dr Smith’s statements and comments had gone “well beyond the fair and temperate, with the intention of placing pressure on one of the parties to a proceeding in the Family Court.”, and in doing so had undermined public confidence in the Family Court. The contempts had been serious, and Dr Smith had failed to express any regret for his actions: “Throughout, right up to this hearing today, Dr Smith’s approach has been belligerent and confrontational, particularly towards the litigant, the caregiver. [He] has expressed no remorse for his actions. His comments demonstrate an unwillingness to accept the important values at issue in this proceeding.”

There are several other statements I could make. During the course of this conversation, Dr Smith asked the caregiver—

ASSISTANT SPEAKER (Adrian Rurawhe): I’m going to interrupt the member. This is the third reading of the bill in front of the House as accepted by the committee of the whole House. What you’re reading out is not part of that bill. So if you can link that to the actual bill, then have a go, but speak to the bill.

Thank you, Mr Speaker, because your last point was exactly my point. I am linking this. This is not in the concept; this is a bill that we actually need, because where we have individuals—whether they are in this House or anywhere—who, as a result of their actions, undermine the court, that is what this bill is about, because the law reform is not about defending judges at all. I know previously I’ve been someone who has somewhat cast aspersions on some of the decisions by the court. That’s not actually what it’s about. What it is about, actually, is telling falsehoods about judges—telling lies about judges. This is not about ensuring that no one can criticise judges and no one can say they disagree with a judgment. That’s not what it’s about. What it’s about is actually someone who tells untruths.

I’ve found in my experience that those who are users of the court system, many of whom have been going to court since they were in Youth Court, going through the system—while they might be, in many aspects of their life, out of control, the one part of their lives, often, that they have some respect for is actually the court system. They will turn up. Often their lives will be in disarray in many places, but, generally, they will make it to court, and when they get into court, they have certain expectations. They actually do behave. It’s probably the one place in their lives that they do behave. So that’s why it’s incredibly important that we have one aspect of their lives that actually has some modicum of control and has some modicum of respect.

Mr Mark Mitchell, on the other side, is an ex-police officer, an ex-dog handler, and he will know this. He will know that even some police officers, who may, for different reasons, or witnesses, for other reasons, and other people who might have their own views on the world—when they get into that court system, the justice system, generally there is an expectation and a belief and, generally, a practice that everyone will actually be part of and will respect the system, and that’s what this bill is about. That’s why it’s so important and that’s what I attempted to do in bringing up the actions of someone as an example of what happens when people lose faith in the system.

The disagreeing with the SOP that the Minister’s brought here—that is not exactly the same SOP that we had at select committee. It is a very refined, defined offence. It’s simply about ensuring we’re talking about falsehoods, about prohibiting the publication of false statements about a judge of the court—false statements, and that’s very important.

Dr Smith is here. He talked about the fact that the Australians had done away with this. That’s actually not correct. The Australians do actually have such an offence. It hasn’t been abolished in Australia. It’s not a breach of the New Zealand Bill of Rights Act at all—the Auditor-General has concluded otherwise. Again, that’s just some, shall we say, aspects of this bill that have been brought up in this House that were actually not correct. So it’s important that we do actually correct those.

This is not about the protecting the niceties of the judges. This is not about respecting the feelings of the judges, and that’s a very important factor. This is about preserving the respect and making sure that the ultimate court in the land—that the ultimate place where people can take their disputes—is respected. If someone who does disagree—and I notice Dr Smith’s here. I’ve spoken about individuals. We all have individuals who will never accept a finding—who are actually in full belief that if they believe it, it is right—and I’d say Dr Smith is one of those people from the way he behaved in this case, which was that nothing anyone did and nothing anyone said was going to change his mind. I think we all have people—I’ll say to those in the Opposition—like that who turn up at our electorate offices. It doesn’t matter what anyone says: they are right, and anyone who gets in their way—they’ll never accept any answer than the one that they believe they’ve arrived at.

This bill is about ensuring that when we’re confronted with an individual like that, ultimately, the court has to have the sanctions. The judges can be criticised. There’s a Judicial Conduct Commissioner if the judges are out of control. There is a system there to ensure that there is an ultimate sanction against judges who perhaps do get it wrong or judges who need to be disciplined in some way. What this is about is ensuring that when there is actually someone who stands up and, basically, tells untruths because they don’t accept the finding of the court, or if they, basically, tell lies about the court, then there is a sanction.

There are those who will say, “Well, the judges, they can sue.” Well, no, that doesn’t happen and it’s not going to happen, and it’s not something that any judge is going to be able to do. So that is why the insertion of a provision similar to that which went through the select committee and has been reinserted as an SOP by the Minister is an excellent idea, fully supported on this side of the House.

As I say, I’m disappointed. I hope that those opposite who are going to be opposed to this—for example, if they were looking for an example of why we need this, they should read the judgment in Solicitor-General v Smith. I challenge those opposite to actually read that judgment, and you will understand why it is folly to be opposing this provision.

In the short time left to me, I would just like to go back to also remind those opposite that probably the finest Attorney-General that they’ve had, the Hon Christopher Finlayson, actually brought this. I’m reminded by the previous speaker that this was actually a provision brought to this House by that learned gentleman. The minute the seat that he was sitting in—it wasn’t even cold before they were immediately opposing it, leaving the Hon Christopher Finlayson out to dry. Well, this is one of those situations that should defy any political divide. This is one time where we as lawmakers in this House should get together. We should look at exactly what this provision is, and this provision is a very good provision, which is designed to ensure that all those who are users or observers or beneficiaries of the court system—to ensure that the ultimate system where we take our disputes, the ultimate place, the ultimate forum for that receives respect and that the judges who are making the decisions are not subject to lies. Thank you, Mr Speaker.

It’s a pleasure to take a call in the third reading of this bill. I want to join with my colleague Chris Penk and note many of the positive reforms that are involved in codifying common law around how our court process works and many of the reforms that are contained in this bill about ensuring good court process, about protecting the confidentiality of the jury, about the respect for orders and ensuring that proper behaviour occurs in the court are entirely appropriate and are supported by members on this side of the House.

It is true that National takes a different view about the issue of the old crime that was referred to as scandalising the court. It’s important for the Parliament to recognise that in countries like Canada and the United States, the protections that they have for freedom of speech do not make it a crime for criticising or questioning the court. It’s equally interesting to note that where we inherited the common law of scandalising the court from—the United Kingdom—repealed it from their law books only a few years ago.

So the real issue on which there’s a difference across the House this evening around the third reading of the Contempt of Court Bill is around this very important and fundamental value that National members hold dearly, and that is the rights of freedom of speech.

💬 Hon Andrew Little: Putting yourself above the law. That member put himself above the law.

Now, the comment, Mr Little—

💬 Hon Andrew Little: That’s what he did.

Mr Little—well, actually, we write the law, Mr Little, and I’m very happy to discuss that. I’d point out to the Minister that the Law Society came to the Justice Committee and strongly objected to the provisions that he’s wanting to put on the law books. Transparency International came to the select committee and strongly criticised those provisions. I also point out the more than eight academics from different law schools from across New Zealand who were critical of what the Minister proposed.

Now, the irony of Mr Greg O’Connor raising a case from 14 years ago in which I was involved is this: Labour—

💬 Hon Andrew Little: You were involved?

Well, I challenge members opposite: why was it that when we wanted to debate the issue 14 years ago, the Labour Party objected? They didn’t want to talk about it then. They shut the debate down. There wasn’t a single Labour member at that time when the case occurred that wanted to debate it, and do you know why? They were embarrassed. They were embarrassed that the Government of the day had sought to shut down a very legitimate debate. I say to the Minister of Justice and I say to Greg O’Connor, to this day—neither of whom have bothered to actually read the Family Court case, and that that was an individual case in my constituency where a mother and father together lost access to their child. It was unjust—it was unjust—and do you know what’s most interesting, Mr Little? As a consequence of me highlighting that case, the Labour Party of the time agreed to law reform that prevented that case ever occurring again.

I say to Mr O’Connor and I say to Mr Little: accept my invitation. Come and meet with the mum and dad who I stood up for. I know that Mr Little and Mr O’Connor have never put themselves on the line for a constituent that was done a gross injustice. I did. I was proud of it, and to this day I defend that family against the injustice that occurred and the loss of their child—something any parent in this Parliament would not want to occur with New Zealanders.

I have a process question, and I particularly have a process question for Mr O’Connor, because when this bill was before the select committee, when we heard the passionate pleas of distinguished professors, of the Law Society, and of others opposing what Mr Little wanted to do with the law, Mr O’Connor agreed. If you read the select committee report, there was a unanimous decision, including Mr O’Connor, that the contempt provisions regarding freedom of speech were inappropriate, and so the select committee unanimously recommended that those parts, in Subpart 5 of this bill, not proceed. Mr O’Connor and his fellow Labour members of the committee have been challenged multiple times to provide some explanation as to why in select committee they agreed with the submitters, and they agreed with National, but they only had to be invited up to a little meeting in Mr Little’s office—and some pleadings from the judiciary—to do a backwards flip for which they will for ever be embarrassed. Again, I challenge Labour members: why did you come to one view in the select committee and then the opposite when you came back to the House?

Now, there’s actually a very fundamental issue around the freedom of speech and the error that is made in this bill in putting our courts and our judiciary on a pedestal and pretending that they should not be able to be criticised. Every member of this House will know of controversial cases where the courts got it wrong, whether it be the Arthur Allan Thomases—and there will be different views about the David Bains or the Peter Ellises. It is my view that our judicial system is made stronger and that our system of law in being able to challenge and question is fundamental to a liberal democracy.

💬 Hon Andrew Little: Not affected by the law—not affected.

I would bring Mr Little’s attention to the decision of the Supreme Court of the United States, which said—and said so correctly—that respect for the judiciary and for a court system is not achieved by silencing its critics but by the quality of its judgments. That is so well said and is the value that members on this side of the House hold.

💬 Hon Andrew Little: Not affected by this bill.

Now, the Minister of Justice, who is loudly interjecting—not surprising, given the embarrassment he should have around this bill—made the claim in the committee stage of this bill that there was no risk to any member subjecting a case to criticism. But if the member bothers to actually read the law, read the analysis from the Law Society, and read the analysis from Transparency International, the provisions that say that anybody who makes a statement that may bring the court into disrepute—

💬 Hon Andrew Little: That’s not the provision in the bill.

Well, read the exact provision, Mr Little.

💬 Hon Andrew Little: That’s not the provision in the bill.

Yes, it is. Indeed, it is.

💬 Hon Andrew Little: The member is three months out of date.

No, the member has made some very minor changes. The phrases that are included in the bill are that if it could be perceived as bringing the courts into disrepute, the person is at risk of being charged with a criminal offence. The charge of a criminal offence will have a silencing effect. It will have a chilling effect on responsible people being able to properly question and challenge the intent of our judiciary—

💬 Hon Andrew Little: The member is just totally wrong.

—and the judgment call. Well, the Minister, who is constantly interjecting, should reflect on the fact that lauded, learned academics have read and commented on his comments in the committee stage and given opinions that they were just plain wrong and that the test for someone committing a criminal contempt and potentially being sent off to prison under the Minister’s provisions is extremely wide and is an unnecessary restriction on the freedom of speech. I would have thought that the Minister of Justice would want to take—[Interruption]

ASSISTANT SPEAKER (Adrian Rurawhe): Order!

The Minister of Justice has almost become hysterical, rather than in terms of defending the freedoms of speech that exist in other countries.

Here’s my last question for members on the Government benches: why is it that in the United States, in the United Kingdom, in Canada, and in most European countries it is not necessary to have a criminal offence for us to be able to maintain an effective judicial system? It is over the top, it is unnecessary, and as a consequence of this law we are preventing proper scrutiny of our judicial system. The provisions that the select committee agreed to that provide for a mechanism for a take-down were a far better way forward. There is a case for reform of our defamation law, but the approach that the Minister is taking here puts greater restrictions on freedom of speech in New Zealand than in any other liberal democracy, and that is unnecessary.

Thank you, Mr Speaker. It’s a pleasure to rise on behalf of New Zealand First in support of the Contempt of Court Bill. The law of contempt is a very, very important area of law for one really essential reason: because it protects the administration of justice. Everybody in this House knows that in order to have a robust democracy, one of those pillars that hold that robust democracy up is a robust judicial system. We need to have those protections in place to ensure that that integrity and robustness of that judicial system is maintained.

Now, I’ve got to admit that I wasn’t—and I’m still not entirely—aware of the situation that one of the members in the Opposition was involved in some years ago, apparently, in a court case in regards to criticisms of a judge or criticisms of the judicial system. By my understanding, and by what it sounds like tonight, that individual was found guilty of the law—

ASSISTANT SPEAKER (Adrian Rurawhe): Order! The member should speak directly to the bill. Now, unless you can—

Well—

ASSISTANT SPEAKER (Adrian Rurawhe): Order! Thank you. Whilst the member may—as I said to Mr Greg O’Connor—mention such things, we are debating the bill in front of the House. The member needs to link those directly to the bill. We’re debating the bill.

In regards to the provision that was ensured it was included in this bill, it was to protect the lies and the unjustified criticisms that would slander judges and bring the judicial system into disrepute. Now, if you’ve got individuals in society that think they are above the law and that think that their opinion about the judicial system is above the law when the law is there to protect the robustness of the system, and when the law is there to ensure the protection of one of the central pillars of our democracy, that, I think, is the height of arrogance. I think that it highlights the very reason why we need this bill to pass through this House.

It also highlights the flaws in the arguments from the Opposition as to why they’re not supporting this bill. What it sounds like to me—especially from one of the members that just sat down—is the whole reason for the justification of the National Party’s opposing this bill was because of the justification of what one of those member’s actions were some years ago. Now, we’ve heard from both the Minister and the previous speakers from this side of the House about how the criticisms of the Opposition and the National Party’s argument about why they’re wanting to oppose this bill are totally and utterly false. But the National Party continue to be led down the garden path by Nick Smith and his opinions about why the National Party should be opposing this bill—about why the National Party should be opposing this bill. The fact is that if one does disagree with the courts and has certain opinions about the courts, there are legal processes with which to go down that track. It is not to think that one is above the law—not to think that one is above the law—and unjustly, unfairly criticise the judge and to unfairly and unjustly lie about the judge, and not to expect any recourse for that. To think that the minds of the National Party members sitting there think that that it is an acceptable course of action is quite unfathomable.

💬 Barbara Kuriger: I raise a point of order, Mr Speaker. This is not about the National Party; this is about the bill.

ASSISTANT SPEAKER (Adrian Rurawhe): My ruling on that is that this has been a robust debate. I’ve been listening carefully to all of the contributions; that’s a debating point. So I’m going to call Darroch Ball, but I am going to warn the member that he is sailing close to the wind and to make sure he does not go over the line.

Yes, thank you, Mr Speaker. In the second half of my speech I just want to highlight very quickly what this bill actually does, why it’s important for it to pass, and why it’s illogical for the National Party not to support this bill. It goes to about five or six different areas of contempt that addresses the statute. Those are all very important areas and it’s why New Zealand First supports it.

The first is contempt. It replaces the common law with a clearer statutory offence and it prevents the publication of information that interferes with fair trial rights. It also goes into the disruptive behaviour in the courtrooms and it covers that also, which is very important. It introduces safeguards for a person who has been cited for disruptive behaviour, and also contempt for jurors, which actually brings in a new offence where a member of a jury investigates or researches information that is relevant to the case. It also creates an offence where it prohibits jurors from disclosing juror deliberations, non-compliance with court orders, and untrue allegations or accusations against judges or courts—obviously, one of the topics that has been canvassed quite thoroughly this evening.

Lastly, but by no means least importantly, the bill addresses three concerns that the Law Commission did have with the current law. The first is that it makes the law of contempt accessible, and it makes it clearer and easier to understand. This bill also makes the law of contempt workable, which the previous law did not, especially because it was developed prior to the internet age and the age of digital capabilities and the New Zealand Bill of Rights Act as well.

So New Zealand First supports this bill in its entirety, and commends the Minister for bringing it through to the House through this third reading and the Justice Committee for making it as workable as it is—a very effective piece of work. New Zealand First commends this bill to the House. Thank you, Mr Speaker.

Thank you, Mr Speaker. It’s a pleasure to take a call on this, the third reading of the Contempt of Court Bill. Can I just acknowledge the other Justice Committee members in the House tonight, and the chair of the committee. But I want to reinforce the question that I have in my mind, which is: why this sudden flip and change of position when we had debated this, and when we had had very good constructive discussions on the committee in terms of feeling that we were going too far and that we risked having a chilling effect and impeding on Kiwis’ freedom of speech to be able to actually speak out and talk about their experiences with the court?

The reality is this: as members of Parliament, we’re sent here—or many of us are; some of us, of course, are list—to actually represent the people from our electorates, the people that actually send us here. One of the important roles we have is actually protecting—believe it or not—our constituents and Kiwis that don’t have a voice in this Chamber or don’t have a voice in the court, to protect them against the State, because the State’s got extraordinary powers. The State is extraordinarily powerful. Actually, for everyday Kiwis that are living back home, the one thing that they’ve got, the one thing that they can use, is their voice.

💬 Hon Andrew Little: Not to make false statements.

They can actually—not to make statements, did somebody say?

💬 Hon Andrew Little: Not to make false statements.

Not to make false statements? I agree with you that people shouldn’t make false statements, and if they do make a false statement, then there should be a remedy for that, and we agreed with that on the select committee. But what did the Minister and this Government come back with? After we had made the change, after the select committee had agreed—the National members, the Labour members—

💬 Hon Dr Nick Smith: It was unanimous.

We’d all agreed. It was a unanimous decision, and it was as a result of the submissions that we’ve heard from people like the Law Society that warned us against it. We listened to them and we made good changes, and we brought the bill back and we support the rest of the bill—we think it’s good. But we couldn’t agree with the provision that we felt very strongly, as a committee, was going to have a chilling effect on the ability for people to be able to speak out about their own personal experiences with the judiciary.

Do we think that something should be done around people that make false statements? Absolutely, there should. But don’t send them to jail.

💬 Hon Andrew Little: Well, what is it?

Well, a take-down notice is effective, and if they want to ignore the take-down notice, then there are other remedies that can be taken, like being put in front of the Solicitor-General, who can make a decision. That to us is a fair process. That to us is all that was required.

So what this Government has said is no. At a time when they’re telling us that they want to reduce numbers in prison, they’ve brought a bill to this House where they’re now going to put Kiwis into jail. They’re going to put a Kiwi that comes out and makes a false statement—they may firmly believe in what they’re saying. Their experience through that system may firmly have put them in a position. We’ve all heard of people that are deeply passionate about things, and sometimes they even become obsessed about an issue, but they believe in what they’re saying. Yeah, so Michael Wood laughs and thinks that’s funny. That’s actually true. That’s correct. They feel deeply passionate about it.

The answer for Michael Wood and the Minister and this Government is to do—what? It’s to put them in jail. Let’s put them in jail, because that’s exactly what this bill does. That’s exactly what it does. If someone has a bad experience—

💬 Greg O’Connor: Read the Smith judgment.

And those members have spent most of their time in the House tonight standing and attacking Dr Nick Smith. In my view, all Dr Nick Smith did is give us all an example of what a good electorate MP does—that is, represent his constituents. If he’s got to put himself on the line to do it, he’ll do that—no problem at all—and you know what? Sometimes some of the best changes that are made in this House are when there’s a disruption, when someone’s actually willing to take a stand on something when they see that it’s grossly unfair and the system’s not working. That’s what he did. He took a stand, and what happened? There was a change made—there was a change made.

Do you know what? I actually find it perverse that we’ve got the Labour members attacking a member of Parliament that stood up for a mother and a father to reunite them with their child, and they’re sitting over there and they’re attacking him for it. They’re sitting over there trying to defend a bill that we have come to this House and said, clearly, we’ll support the rest of the bill—no problem at all—as we discussed on the select committee. We will not—[Interruption]

ASSISTANT SPEAKER (Adrian Rurawhe): Order! Just repeating the same interjection over and over again is not only annoying, it’s out of order.

Thanks you, Mr Speaker. We will not support a bill that is brought to this House by a State that already has enormous power against members of the public that don’t share that power. You come to this House and say “If you speak out against the judiciary, if you make a false statement, do you know what we’ll do? We’ll send you to jail. You’ll go to prison.”, because that’s what this bill does.

ASSISTANT SPEAKER (Adrian Rurawhe): I hope not.

Sorry, Mr Speaker—not you, of course.

ASSISTANT SPEAKER (Adrian Rurawhe): Thank you.

Why would you make a change like that to this bill—sorry. Why would the Government make a change like that to this bill?

The next speaker, stand and take a call, because I notice that the justice Minister—I can’t refer to him not being in the House, so I won’t.

💬 Hon Tracey Martin: No, you can’t. No.

I would ask the next—or maybe Tracey Martin. She’s got a lot to say for herself. No, she won’t stand and take a call, because Tracey Martin’s the MP that for six years stood up in Warkworth, and she told everyone in Rodney: “I’ll be there for you. I’ll advance your issues. I’m going to be there for you every step of the way. I’ll be a strong MP.” And what does she do? What does she do? She moves to the Wairarapa. The minute they’re in Government, she moves to the Wairarapa. She’s gone—

ASSISTANT SPEAKER (Adrian Rurawhe): As interesting as that is, and it might be great in tomorrow’s general debate, but come back to the bill.

Thank you for reminding me, Mr Speaker. I’ll be seeking a call tomorrow in the general debate. Thank you for reminding me.

So we won’t support this bill for one reason, and one reason only: this Government went against what the Justice Committee agreed on. We said that it would have a chilling effect. We believe it will have a chilling effect on freedom of speech. We believe there are much better remedies to deal with false statements. We do believe in the integrity of the court, and it can be protected through other means. So we don’t support this bill because, quite simply, we don’t support putting Kiwis in jail for wanting to express their view. Thank you very much, Mr Speaker.

Thank you, Mr Speaker. It’s been quite a night in the House, in this debate about this excellent bill, actually. So just to bring it back to the bill, I would like to note and acknowledge the work of the Hon Chris Finlayson QC. It has been a bill with an origin story that all bills should have, in my view, which is to say that members of the profession and the Law Commission did research at the front lines into this very complex area of law, brought it all together, and found the difficulties that the profession and the public were having. The recommendations that this bill adopts came out of that, which in the law and the justice system is really important because there is often a disconnect between the difficulties of applying the law and upholding our system of justice that we in Parliament often ignore for many years. Then it was a member of the Bar, of that profession, who put the bill together.

So it is an excellent bill. It does address issues in our system that needed to be addressed, and the broad, broad issue that this bill does address is upholding the rule of law, which, in any system, includes the necessity of the law to be accessible, knowable, clear, and contained, ideally, in legislation that the public can access in one document. That hasn’t been the case when it comes to the law of contempt in New Zealand. It’s been contained in multiple statutes and in case law, which, really, is completely inaccessible to laypersons—you know, between knowing how to find case law, and then reading a case and finding how it would be applied. We can’t really expect that members of the public would comply with the law of contempt in those circumstances.

Lastly, in terms of the broad aspects of the law that this bill addresses, it updates our law, and makes it workable for the digital age. One of the offences that this creates that will, I know, make it much easier for trial judges to manage their work is to say clearly to members of juries that they can’t go off and do research on Facebook and google-search case facts and then come to the court and base their decisions on that, rather than the evidence. I think that’s important, because New Zealanders need to know that decisions made by juries are based on fact—evidence that was admissible and reliable and proved in a court of law. So that kind of thing has, for a few years now, undermined our system of justice in many ways, and has actually caused mistrials, which are expensive and time-consuming and put great stress on both our system and also witnesses, victims, and the accused, who all have to come to court again and again.

Just to lastly and briefly address the big, contentious issue that the House has been fighting about tonight, and to make it really, really clear that the Minister’s Supplementary Order Paper 289, as it relates to falsehoods told about judges—it’s absolutely not the case that a falsehood that was told with the honest belief in those so-called facts would come under this law. It’s very clear how high the threshold is.

💬 Hon Dr Nick Smith: Did the member read the submissions?

The prosecutor has to prove—I’m reading from it. Sorry that you haven’t read this law, as well as previous law, which you breached, Dr Smith. So the law—

ASSISTANT SPEAKER (Adrian Rurawhe): Order!

The law as—

ASSISTANT SPEAKER (Adrian Rurawhe): Order! E noho, kia ora. I thought this speech was going to be a really good one, but the member just crossed a line and should not have, OK? No matter what the provocation, she does herself no good service by actually saying what she just said, and she should refrain from further references to it.

I apologise, Mr Speaker. So what does fall under this bill is a falsehood deliberately told—a deliberate falsehood—that also was told with the intention or recklessness as to whether that falsehood would bring the justice system into disrepute, and the falsehood has to be about a member of the judiciary. It is not a criticism of a judgment, not a criticism of a decision, not a criticism of a judge; a falsehood told about a member of the bench with the deliberate intention of undermining our system of justice. And even if all of that is the case, it’s still the case that you need leave of the Solicitor-General. The bar is so high.

Of course we know, as with all such New Zealand Bill of Rights Act rights, limitations are absolutely allowed in a democratic and lawful society in order to protect the greater good and to protect our system of justice and the public safety. The public interest in having confidence in our courts is one of the most fundamental aspects of our democracy. So deliberately undermining that public interest through deliberately told falsehoods absolutely does not fall under the right to free speech, just as defamation is an exception to that because we know that there’s a public interest in protecting individuals against falsehoods that damage their reputation, and, therefore, their lives.

So this is an excellent bill. It does simplify, clarify, and make our law much more accessible, as it should be, and it upholds our system of justice and the rule of law. Thank you.

Thank you, Mr Speaker, for the opportunity to speak in opposition to the third reading of the Contempt of Court Bill. The previous speaker, Golriz Ghahraman, just mentioned the word “falsehood”, which is not in the bill. It is the criticism of the judge of the court. So let me clarify, to start with, that this bill doesn’t include “falsehood”. So the word time and again being used by the Government benches is not right. It is the criticism which this bill is dealing with.

We supported this bill during the first and the second readings. In the first reading, we said that there should be some improvement in this bill during the select committee stage, and at the Justice Committee, all the members together—from the Government side and from the Opposition side—made some amendments to this bill to improve it. That was the intention, and that is always the intention of the select committee—that bills should be improved and reported back to the House so that the best can come out of any legislation. But at the committee of the whole House stage, the Minister introduced Supplementary Order Paper (SOP) 289, which was exactly the opposite of what the select committee has recommended.

So we have got that reservation. The select committee decided to drop that particular clause, but the Minister wanted to bring it back during the committee of the whole House, and because they have the majority, that SOP was passed and, again, included in this legislation.

The National Party will keep opposing this and will not support this, even though we know that this was a member’s bill introduced by the Hon Chris Finlayson. This Government, we have seen in the past 18 to 19 months, have picked up the majority of the bills which were introduced by the National Government during our days, and they are continuing to work upon them because they were really good bills introduced under us. I oppose this bill.

ASSISTANT SPEAKER (Adrian Rurawhe): This is a split call. I call the Hon Clare Curran—five minutes.

Thank you, Mr Speaker. I’ll just make a few points. The law of contempt is an important area of law. It protects the administration of justice, and our current laws are vague, out of date, and inaccessible to New Zealanders and need updating. As the Minister said, this is about modernising and codifying rules around contempt of court. Nobody—no citizen—in our country is above the law, no matter what Dr Smith might think.

I want to talk about the separation of powers, briefly, because the term trias politica, or separation of powers, was coined by a baron, actually: Baron de Montesquieu, who was an 18th century social and political philosopher. But the concept came from ancient Greece, where the State was divided into branches, each with separate, independent powers and areas of responsibility, so that the powers of one branch—the legislature, the executive, or the judiciary—were not in conflict with the powers of the other branch. That, unfortunately, is what we’re talking about tonight, and that’s where Dr Smith refers to the chilling effect and the undermining of freedom of speech.

The guts of Supplementary Order Paper 289, which Minister Little has put up, is not about criticising the courts; it’s about not making false statements. No one is above the law, free speech is not an absolute right, and this is ultimately about the separation of powers.

The Hon Maggie Barry—five minutes.

Thank you very much, Mr Speaker. I’m still trying to work out what it was exactly that the last speaker, Clare Curran, was referring to—whether it was casting aspersions on Parliament or quite what. Like much of what the member has said in the past, it’s a little bit murky and probably best left unanalysed.

We speak about a bill that was initially very good indeed. We liked it. It came from the Hon Chris Finlayson, as many have said. There was a lot that was good about this bill. All was going well until the Minister of Justice intervened with his Supplementary Order Paper (SOP) 289. This was never intended to be a bill that would protect judges from criticism; it was about protecting public confidence in the just, the speedy, and the inexpensive administration of the justice system. It sought to do a whole lot of things to modernise, to make in one place, and to collate it in a single piece of legislation to make the law more accessible in this regard.

So to us, at the beginning, it was all fine, and it was going very well through the select committee process, and I was on the Justice Committee and marvelled at the flip-flop and the changes that did occur. The SOP from the justice Minister, which proposed a different offence—and, therefore, something we could not support—was that it now uses the phrase “false statement”. A person must have known or ought reasonably to have known the statement would undermine confidence—six months’ imprisonment, or for corporations, up to $100,000, which was the same as the original bill. But, frankly, by imposing the different offence it has removed this bill from our ability to support it. It has gone overboard. It is a mystery to us why that did occur, but we now oppose this bill as a whole on the basis that it does contain a highly objectionable aspect.

We need to make it clear, though, that we supported all the remainder of the bill, and had the justice Minister not sought to intervene on this, we would have probably been supporting it tonight. But, as it happens, we do not support this bill and I do not commend it to the House.

Tēnā koe, Mr Speaker. As the chair of the Justice Committee, can I just say I wasn’t part of it while they debated this particular bill, but I stand in support. Clearly, there’s been some issues around the other side not supporting a very comprehensive bill that does address and modernise our contempt law. It puts it into one piece of legislation. We’ve heard the outline by the Minister. It is to address a very critical part of our law system. I commend this bill to the House.

Thank you, Mr Speaker. It is a surprise to take a short call on this Contempt of Court Bill this evening. It has been quite interesting listening to the debate as I have sat here. I am quite surprised because, of course, last Parliament I was the chairperson of the Justice and Electoral Committee, and it was a very collegial committee, one in which people worked well together. So I was very surprised to learn of the passage of this bill and the fact that new clause 24A was inserted at the last minute, without the members on this side of the House knowing and without proper consideration and debate, after it was agreed that this clause and the intent of this clause should be removed from the original bill.

Of course from our point of view, this is quite a travesty, because, as it states in new clause 24A, “(1) A person commits an offence if—(a) the person publishes a false statement about a Judge or a court;”. Now, “false statement” is not defined. We have heard debate that that is a high threshold, but, quite frankly, this is a frightening piece of law that means that no one can legitimately disagree with the actions of a judge or a court in the outcome or passage of that outcome.

So what that means, for example, is that with respect to, perhaps, Mr David Bain and the fact that he continued on his crusade to prove his innocence, those people that criticised that process from go to whoa could potentially be found in contempt of court. That is ridiculous. It is legitimate, if you truly believe that a process is flawed, that you should be able to speak out and go through the motions of proving that. It is a travesty that free speech is being overruled with respect to this Contempt of Court Bill.

Of course we support the codification. Of course we support a fair and just legal system. But this goes too far, and for that reason we do not support this bill.

Thank you, Mr Speaker. Contempt of court is an important area of law. I have lots to contribute, but, given the progress of this bill, what I really want to stress is that Minister Little’s Supplementary Order Paper 289 strikes the right balance. I commend this bill to the House.