Keith on Sedition

Back in 1968, when he was a law lecturer at VUW law school, Sir Kenneth Keith (a former Supreme Court judge and currently serving on the International Court of Justice) edited a collection called Essays on Human Rights. His contribution was an article on "The Right to Protest", examining the various ways in which New Zealand law at the time could be used to limit that right and suppress public dissent. Much of the article concerns the ability of local bodies to deny permits for meetings and refuse to rent venues, and of course the law surrounding disorderly conduct and offensive behaviour. But he starts off with the most fundamental limitation of the right to protest: the law of sedition.

Reviewing the definition of a "seditious intention", he notes that it is on the face of it very broad, conceivably covering "nearly all vigorous criticism of government" (a view shared by Dicey). Various jurisdictions (Canada, India, the UK and the US) have reacted to this by requiring an additional element of public disorder - it is not enough merely to excite disaffection against the Queen; you have to be intending to or at serious risk of starting an actual riot by doing so. This seems to be a requirement in a democracy which respects freedom of speech, but unfortunately it does not seem to be the case in New Zealand. Our law - based on a 1951 amendment to the Police Offences Act which was expressly intended to limit the possibility of protest in the wake of the 1951 Waterfront Strike - includes as one element of seditious intention the intent

To incite, procure, or encourage violence, lawlessness, or disorder

Keith goes on

In other words the additional requirement of English, Canadian and Indian law is - in watered down form (for what is meant by "lawlessness" and "disorder"?) - an entirely separate, independent definition of seditious intent. It is enough, on the face of the statute, to intend to bring the government into hatred or contempt, or to incite violence (or something less). It is not necessary as in England, Canada and India to show both

(Original emphasis)

So basically our sedition law boils down to a criminalisation of political speech, no matter how abstract, regardless of its actual effects (if any) or any harm caused, and regardless of truth. Provided speech "excites disaffection" or "brings into hatred or contempt" the government of the day, and is not made in good faith (whatever that means) it is criminal. Keith rightly believes this to be "potentially very restrictive of political debate", and that it goes far further than necessary to maintain public order. At the end, he asks rhetorically whether this can be justified - but it is clear that he thinks it can not.