Tuesday, October 17, 2006

The Law Commission on Sedition

The Law Commission released its consultation draft on Reforming the law of Sedition [PDF] yesterday. It thoroughly covers the sordid history of the law, its misuse and abuse in New Zealand and other jurisdictions, and its inherent conflicts with the affirmation of Freedom of Expression in the Bill of Rights. They conclude that the seditious offences in sections 80 - 85 of the Crimes Act should be repealed, on the grounds that:

  • the legal profile of the offence is broad, vague, variable and uncertain. The meaning of “sedition” has changed over time;
  • the present law invades the democratic value of free speech for no adequate public reason;
  • the present law falls foul of the New Zealand Bill of Rights Act 1990;
  • the seditious offences can be misused to impose a form of political censorship, and they have been used for this purpose;
  • the provisions of sedition law have generally fallen into disuse, not only in New Zealand, but other jurisdictions studied. This is a policy indication that the law is not needed;
  • the law is not needed because those elements of it that should be retained are more appropriately covered by other offences. Duplication should be eliminated.

The most common "defence" of sedition is that it is necessary to protect society against those "advocating violence". The Law Commission recognises that the state has an interest in preventing violence, "but only where there is proof of an intention to urge or incite behaviour that is presently a criminal offence". And historically, the sorts of speech prosecuted as "sedition" have fallen well short of the mark:

In all the cases considered above, it is interesting to consider what would have happened if the various defendants had been charged with incitement in conjunction with a public order offence, rather with seditious offences. If such charges had been laid, in our view it is likely that in most of the cases the prosecution would have been unable to prove the requisite mens rea, because there was no proof of intention to create an imminent riot, or overthrow the government, or endanger the lives, safety, or health of the public, or provoke violence.

Rather than protecting the public, the law has instead historically been used to protect the government from criticism and opposition.

The next step is public consultation. Submissions are due by December 15, 2006, and should be posted to

The Law Commission
PO Box 2590

Or you can email sedition@lawcom.govt.nz. You don't have to be a lawyer to submit, and a strong showing from the public in support of freedom of speech may help them make a stronger case for repeal.