Monday, June 20, 2005



Sedition: inconsistent and unneccessary

As part of my ongoing research into the archaic crime of sedition, I've been looking at Fourth Labour Government's 1989 Crimes Bill. This was a thorough review of the Crimes Act 1961, which (among other things) would have eliminated the crimes of sedition and blasphemous libel. I recently submitted an Official Information Act request seeking advice the government had received on this, and received a 1986 paper from the then-Secretary of Justice to the then-Minister in response. The relevant sections are:

The offences relating to sedition are not continued. There appear to have been no convictions since 1914 [this is incorrect] and before that date the major seditions trials were in respect of Maori leaders e.g. Rua. The law is inconsistent with proposals in the Draft Bill of Rights. Where what might be thought of as seditious utterances occur, they may be dealt with by offences relating to public order should unrest be caused.

(Link and emphasis added). The emphasised section is the key. The sole justification for limiting speech is where it directly harms others (yelling "fire" in a crowded theatre is the classic example), and this is captured in the "inciting violence, lawlessness and disorder" clause. But inciting a riot is already criminal, as is incitement in general; those who incite a crime (or even an attempt at a crime) can be prosecuted as parties to the offence. And where speech does not meet the tests of immediacy and incitement towards a specific crime - if for example it simply advocates violence or lawlessness in the abstract, or at some unspecified time in the future - then it should not be criminal at all.

On blasphemous libel, the paper had this to say:

[T]he offence of blasphemous libel is not included, the principal reason being (beside the fact there have been no convictions for this offence) that in a multicultural society a law protecting only the Christian religion may be seen as offensive by those of other faiths. Again, it is arguably inconsistent with proposals in the draft bill of rights.

The origins of the offence at common law appear to have been a desire to protect public order rather than the Christian religion as such.

In 1985, the English Law Commission recommended (Law Com No 145) that the common law offences of blasphemy and blasphemous libel should be abolished without replacement. The Law Commission was satisfied that any replacement offence which might be devised would in practice be unacceptably wide in ambit.

The Crimes Bill ended up dying on the floor of the House in 1990, and was not carried over by the incoming National government. But isn't it time we did what was recommended so long ago and removed these archaic crimes from our statute book?

1 comments:

I'm sure that paper could find it's way into the defence somehow :-)

Posted by t selwyn : 6/21/2005 04:14:00 PM