Monday, August 12, 2019


When the Justice Committee reported back on the Administration of Justice (Reform of Contempt of Court) Bill, free speech advocates breathed a sigh of relief. As originally introduced, the Bill reitered the ancient offence of "scandalising the court" - basicly, a special sedition law protecting judges from criticism. The select committee, following practice overseas, removed it. But now, thanks to an amendment introduced out of the blue at the committee stage, its back:

The Government is pushing to protect the integrity of the judiciary by limiting free speech and making it illegal to publish fake news about the courts, also known as "scandalising the court".

And it has taken aim at National MP Nick Smith, using his contempt of court conviction from 2004 as a reason for justifying the move.

Justice Minister Andrew Little said a new clause in the Contempt of Court bill, currently awaiting its third reading in Parliament, is a justified limitation on free speech to protect the administration of justice.

Really? The law imposes a penalty of up to 6 months imprisonment for making a "false accusation" about a court or a judge. The basis for it is that judges are important people doing an important job and therefore public confidence in them shouldn't be undermined by false accusations. But politicians and public sector CEOs are also important people doing an important job. Does Little think people making false accusations and undermining public confidence in them should also be thrown in jail?

But don't take it from me. Here's Geoffrey Palmer, basicly the architect of the BORA, on the subject (quoted on Scoop because the NZLJ is behind a corporate paywall):
This new offence amounts to a statutory libel on a judge or a court. The judiciary are part of the system of government, although independent from Parliament and the Executive. False statements made in attacks upon the government are no longer punishable under the criminal law of libel and slander and sedition. Why should it be any different for the judiciary and the system of justice than for the political arms of government? ... These provisions in the Bill seem to be bringing back an approach to speech that has recently been rejected by the Parliament.

And to that I'd add: if the confidence of the public in judicial institutions rests solely on the threat of jail - that is, on terror - then they deserve neither our confidence or our protection. The fairness, impartiality and competence of our courts and judges should speak for itself, and it usually does (usually). The real threat to public confidence is not wild accusations on websites no-one pays attention to - but laws such as this.

This bill should be recalled to committee and this clause removed before it is allowed to pass. Laws which protect the powerful and punish their critics have no place on our statute books.