DPF has posted his submission on the Crimes (Repeal of Seditious Offences) Amendment Bill. Here's mine. I'll be submitting this electronically later this afternoon, so if you have comments or suggestions, best email them quickly.
- I support the Crimes (Repeal of Seditious Offences) Amendment Bill.
- The crime of sedition is an archaic remnant of feudalism. It is incompatible with the freedom of speech respected in modern democracies and affirmed in the New Zealand Bill of Rights Act 1990.
- The law is aimed primarily at speech, rather than action. While some speech, such as direct and immediate threats of violence, should be criminal, a proper respect for freedom of speech means that any criminalisation of speech alone should meet a very high bar. The traditional limit is Justice Holmes’ “shouting fire in a crowded theatre” : speech must cause a clear and present danger to public safety, or be likely to cause imminent lawless action in order to justify restriction. The law of sedition does not meet that threshold.
- The definition of a “seditious intention” is both broad and vague, to the extent that whether speech is criminal or not is almost entirely a matter of interpretation. Constitutional lawyer Albert Venn Dicey argued that if the law was interpreted strictly, it would outlaw practically all political dissent. Sir Kenneth Keith made a similar point, arguing that the law could be used to target peaceful protest or those advocating civil disobedience .
- The explicit targeting of speech “bring[ing] into hatred or contempt, or [exciting] disaffection against” the monarch or the government is undemocratic. As one MP noted, “every day in Parliament we do just that” . As for the monarch, I do not see why she or the institution she represents should be held sacred; whatever its merits, it should not be a crime to advocate republicanism, or any other system of government.
- While the law includes a defence protecting speech made in “good faith”, it has rarely been successful in protecting political speech. To the contrary, the history of sedition prosecutions in New Zealand related in the Law Commission’s report shows that the law has consistently been abused to persecute those critical of government policy or whose political opinions were outside the “mainstream”.
- The Law Commission report includes a short history of sedition prosecutions in New Zealand. Others can be found on the blog No Right Turn at http://norightturn.blogspot.com/2005/08/sedition-by-example-index.html. It is worth noting that the victims of sedition include two former Prime Ministers (Peter Fraser and Walter Nash), three former Cabinet Ministers (Bob Semple, Hubert Armstrong, and Paddy Webb), and at least two other MPs (Harry Holland and Fred Cooke). All were members of the Labour Party, and prosecuted for their involvement in the labour movement, in socialist causes or for opposing conscription during the First World War. One of them – Webb – was prosecuted while a sitting MP, for a speech he gave during a local body election campaign.
- Some may be concerned about speech inciting violence. As the Law Commission pointed out, there are numerous offences in existing law which cover such cases – not least sections 66 (“parties to offences”) and 310 (“conspiring to commit offence”) of the Crimes Act 1961. Other possibilities include s87 (“Riot”), and s3 (“Disorderly behaviour”) of the Police Offences Act 1981. To the extent that it covers the direct incitement of actual violence or disorder, the law is unnecessary; and speech which falls short of that threshold should not be criminal at all.
- I ask that the committee support the bill and recommend that it proceed.
- I wish to make an oral submission to the Select Committee.
I'll do a Sedition by Example on Webb sometime, since its one of the most egregious abuses of an abusive law. Hopefully, it'll be the last one I have to do.
Update: The Holden Republic's submission is here.