Wednesday, May 03, 2006

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.


More good information. Is the Keith essay online anywhere?

Posted by Bomber : 5/03/2006 10:05:00 PM

I don't think so, but the book isn't hard to find at all.

You might also be interested in checking out a few things from Australian law journals, which I'll blog about in due course.

Posted by Idiot/Savant : 5/03/2006 10:57:00 PM

Yikes, yes.... nice post. As she's written the anti-sedition law does feel a little like a "Political Thought Stabilization" counterpart of the hated Economic Stabilization Act of yesteryear, and it richly deserves the same dust-bin of history fate.

That may happen but I fear the larger pathology of overreaching, over-criminalizing, over-delegitimating law in NZ will always be with us...There just is a *hell* of a lot of NZ law that errs on the side of criminalizing or, more generally making things unlawful. One case that came up in my own work was HRA 1993 S 21(l) which prohibits a couple of different sorts of family relatedness as grounds for differential treatment, e.g., in hiring. The comparable provisions in most other jurisdictions explicitly exempt either family-owned businesses or very small businesses or both. NZ makes no such exemptions, hence tens of thousand of employment decisions each year in the largely family-staffed, small business sector of the New Zealand economy are open to human rights complaints. Charming. And so unnecessary.

Stuff like this is all over the place...NZ-ers seem to like things set up this way (over-criminalize/over-delegitimate then under-enforce).

Posted by Anonymous : 5/04/2006 12:59:00 AM

"NZ-ers seem to like things set up this way (over-criminalize/over-delegitimate then under-enforce)."

Well said: city councils have a lot to answer for in this area too.

NZ regulators seem too susceptible to moral panics, big and small, and respond with heavy handed regulation.

The immigration amendments stripping citizenship from all children born in NZ - based, it seemed, purely on Peters and a few others being upset that a handful of Japanese women flew to NZ to give birth each year - is an interesting example.

Posted by dc_red : 5/04/2006 08:13:00 AM