Legal Beagle by Graeme Edgeler

4

The Ray Avery case; or just because you don't like a law doesn't mean it was badly drafted

Businessman Ray Avery recently invoked the Harmful Digital Communication Act to make a complaint to Netsafe arising from a series of investigative pieces about him appearing on the website Newsroom.

It is important to note that Avery didn’t complain that Newsroom committed a criminal breach of the Act, rather, he said that by publishing its journalism, Newsroom had breached some of the Act’s “communication principles”, in that he says it harassed him, and contained false allegations.

Netsafe, as an “approved agency” under the Harmful Digital Communications Act, forwarded the complaint on, waited for a response, and then decided to do nothing beyond letting Avery know what his options were. The agency reportedly advised Newsroom that the law was:

not clear about how to treat HDC complaints as they apply to media, and there is limited case law from which to form our advice …

Therefore we are not recommending you take any further action. We have recommended to Sir Ray Avery that if he wishes to pursue this complaint he has the option of applying to the District Court.

Recommendations are all an approved agency can really do anyway – cooperation with an approved agency is entirely voluntary. It doesn’t make binding decisions or issue rulings. Its role is intended to be limited to offering advice, and acting as a go between.

The response to this has been odd.

The idea that someone emailing Netsafe is a threat to free speech is ridiculous. And, despite the flaws in the Harmful Digital Communications Act, the idea that someone might make a complaint that appears to have no real basis isn’t a threat either. There are people who legitimately think that mis-gendering someone is genocide. However rude or offensive it may be, it isn’t genocide, but the idea that someone might make a complaint about that isn’t a reason not to have laws against actual genocide.

I am not a big fan of the Harmful Digital Communication Act, but I recognise that most of my concerns are, in reality, unlikely to play out. I would, of course, prefer to avoid the risk. But my major area of concern is with the criminal offence the act creates, not the civil processes.

Netsafe’s response as reported by Newsroom was that they were unsure how to act with complaints around news media. This echoes observations from, for example, Prime Minister Jacinda Ardern (as reported by Newsroom) that:

Asked whether she felt it was possible for a media outlet to cyberbully an individual or organisation through news coverage, Ardern responded: “That is not my understanding of the intent of the bill or the act.”

Gavin Ellis, Radio New Zealand’s Media commentator has said the Act:

was never designed for this purpose; it was designed to prevent cyber bullying and making false accusations about people on social media … revealing sensitive personal facts on social media and so on. It was never designed as a form of complaint mechanism against the media generally.

I believe I can clear this up.

The Harmful Digital Communications Act covers the news media.

People who complain that they have suffered serious emotional distress as a result of the online publication of material can complain about the cause of that distress under the Act, whether the cause of that harm was a facebook post, or a news story. News media are not exempt.

This is not unclear drafting, or an unintended consequence of loose legislative language.

And this is absolutely the intention of the Act.

The Harmful Digital Communications Act was the result of a long process, starting with a Law Commission Review. The Law Commission looked into whether news media should be exempt from this regulation (.pdf). It recommended that:

The news media would not be subject to the Tribunal except in cases where the news media outlet responsible for publishing the offending content was not subject to one of the established regulatory bodies – the Broadcasting Standards Authority or the Press Council or any regulator which may replace them.

The Government was well aware of this recommendation, it just chose not to follow it.

It was matter of contention at the Select Committee, Television New Zealand (.pdf), Fairfax (.pdf), the New Zealand Press Council (.pdf), APN New Zealand (.pdf), Mediaworks (.pdf), and the Media Freedom Committee (.pdf) all made submissions on the bill recommending that news media should be exempt.

This was a matter that was of high interest to the Select Committee, so much so that they sought and obtained interim advice from the Ministry of Justice on this question, which it later expanded (.pdf):

32. While the news media has its own complaints systems, it is not clear whether those systems are designed to enforce concepts or standards that align with the principles in the Bill.
33. For instance, the Online Media Standards Authority, the Press Council and the Broadcast Standards Authority each have regimes that focus on, among other things, accuracy, balance and fairness. However, these three regimes do not apply identical standards, raising the possibility that different sectors of the news media are regulated using different standards. In addition, the way news is delivered has fundamentally changed; many of the traditional safeguards that guided the content of news are now outdated in today’s 24-7 news cycle.
34. Many of the media standards currently in place apply largely the media’s traditional role as an originator of content (eg, publishing factual stories or opinion pieces regarding current events). However, even the biggest media organisations are presenting the news in increasingly interactive ways, for instance, by soliciting reader input, permitting comments, operating live chats and facilitating message boards. It is not clear that these secondary activities are sufficiently covered by existing regulatory regimes.
35. In light of the above limitations, there are good reasons for the media to be included in the Bill. The Bill contains sufficient flexibility and safeguards to ensure it can be applied to news media without having a chilling effect on freedom of expression:
35.1. First, it is highly unlikely that “traditional” media activities would violate the principles and also cause harm to a person. The media have themselves noted they have experience in dealing with sensitive matters and guidelines for publishing;
35.2. Second, where media outlets are involved in non-media activities (eg, reader published content, comments, and message boards), they should bear the same responsibility for managing that content as

private hosts (eg, Trade Me);
35.3. Third, the Agency under the Bill does not have coercive powers, and so cannot order any person or organisation to do anything;
35.4. Fourth, the Bill requires the court to balance critical freedom of expression issues in the context of a particular situation. In the unlikely event that the media is responsible for a digital communication which causes a person to suffer harm, there is an explicit public interest test that a court must apply, which will be of particular importance in any case involving the media.
36. If a harmful digital communication is so egregious that it breaches a principle, causes harm, and its seriousness outweighs the public interest in it, then it is entirely appropriate that it be subject to the Bill.
37. We note the concerns of the media that their involvement in complaints with the Agency may result in greater time and effort for what may be frivolous or vexatious complaints; but, that it no different to any other person or organisation who is subject to the Bill.

This was not a drafting error.

Just because you are a member of the news media, does not mean you can publish revenge porn, or any other material likely to cause serious emotional harm. This was a deliberate decision, based on the Ministry of Justice’s view, supported by Parliament, that legitimate journalism was protected.

And there are strong arguments that it is, at least in relation to the civil regime. We’ve already noted that Netsafe, the authorised agency, has no coercive powers. Instead if you want to force someone to take something down, you have to go to the District Court, and before that Court makes any orders under the act, there are some things it has to do:

(5) In deciding whether or not to make an order, and the form of an order, the court must take into account the following:

(a) the content of the communication and the level of harm caused or likely to be caused by it:

(b) the purpose of the communicator, in particular whether the communication was intended to cause harm:

(c) the occasion, context, and subject matter of the communication:

(d) the extent to which the communication has spread beyond the original parties to the communication:

(e) the age and vulnerability of the affected individual:

(f) the truth or falsity of the statement:

(g) whether the communication is in the public interest:

(h) the conduct of the defendant, including any attempt by the defendant to minimise the harm caused:

(i) the conduct of the affected individual or complainant:

(j) the technical and operational practicalities, and the costs, of an order:

(k) the appropriate individual or other person who should be subject to the order.

(6) In doing anything under this section, the court must act consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990.

If, in the balance, something claimed to be legitimate journalism can’t win once a Court has looked at this, I wonder whether we need to assess whether it is, in fact, journalism. And if the District Court does order something taken down, is that really a greater impingement on media freedom than an injunction ordering the same made in the High Court in a privacy or defamation claim?

Now, there are problems with the act. The criminal offence (not in play in the Avery case, as of yet) does not reflect the same nuanced approach I’ve detailed above. But it’s not clear to me what problems there are in the civil regime (other than the safe harbour almost hilariously over-protecting freedom of speech).

For one, I consider that the inclusion of news media isn’t a weakness, it’s a strength.

I’m probably the strongest supporter of freedom of the press and freedom of speech that I know, and I’m not saying I support the Harmful Digital Communications Act in its current form, but I absolutely do not support an exemption for news media from this form of regulation.

I have a couple of reasons: the principled one is that I do not believe there should be statements that can lawfully be made by on a newspaper website, that would be unlawful if made by someone else.

I accept that there are a few very specific areas where recognised news media will have additional rights (one that comes to mind is the right of news media to remain in court during the public excluded parts of criminal proceedings, such as the evidence of complainants in sexual cases; another might be, if a register of name suppression is ever created, this couldn’t work if everyone could access it), but these types of rights do not affect what can be published. It should not be lawful for news media to publish material it would be illegal for me to publish.

The pragmatic reason is that if the media is in with the rest of us, the chance of good precedent in the application of the Harmful Digital Communications Act greatly increases. Courts will be more careful in applying the act if their rulings can affect freedom of the press. If there are problems with the act, they should be fixed for everyone, not just the news media.

The criminal offence? Well, it would be good if the explicit invocations of public interest were included there too. The examples usually given by people concerned with the law (which includes me), are around the exposure of serious offending, say political corruption, or sexual violation). I could easily argue that publicising someone’s long history of sexual abuse must be intended to cause them serious emotional harm. How could it not?

The law shouldn’t be written in a way that could preclude public interest journalism. But in reality, I just don’t think that’s how it would play out. New Zealand Courts are pretty good at avoiding the excesses that could result from expansive interpretation of criminal offences – contrast the approach in the United Kingdom to its offensive language laws to that taken by our courts. I expect the same would apply here. There isn’t an explicit defence that the serious emotional distress that might be caused by a digital communication is justified, but in these sorts of circumstances, I’m pretty confident the Courts would ultimately say there was one. But pretty confident isn’t good enough, so I encourage a law change to fix this.

There are probably even problems with the civil regime in the act – although the Avery matter doesn’t appear to have raised any yet. And it’s possible that a complaint will work its way through the Courts and result in law different to that described above. Courts do sometimes unnecessarily complicate things. The District Court decision in the Elvis Teddy case is a masterpiece in the clear application of simple law, that every Court above determined to make more and more unclear.

But unless something changes, a law change to deal with complaints like Ray Avery’s isn’t needed.

17

Last call on the Electoral (Integrity) Bill: A plea for Labour, New Zealand First and Green MPs to consider some minor amendments

The Electoral (Integrity) Amendment Bill is going through it's final stages, and will likely pass this week.

It is going to pass, and amendments - such as a sunset clause - or the exclusion of electorate MPs from its scope - or a delayed start - are not going to be agreed to by a parliamentary majority either.

But it is not too late for Parliament to make some minor changes to the bill to make a slightly better, and to slightly better protect principled opposition within Parliamentary parties.

The point of this blog post is pretty simple: it is to ask Labour MPs, New Zealand First MPs and Green MPs to consider supporting three particular amendments proposed by National.

National has proposed many amendments that a supporter of the broad thrust of this bill could not support. That's what oppositions do. You get on record that the Government opposed something so can present it to the electorate later to show why they're bad. The point of such amendments is not really to get them adopted, but to force the government to vote against them.

But the three amendments I seek support for are not "wrecking amendments". They are very limited amendments, designed to ensure that the process for removing an MP from Parliament is fair, and identifiable.

First up is Chris Penk's proposed amendment in supplementary order paper 69. It would require registered parties to have rules around the process they would use to seek to expel an MP from Parliament.

In a similar line is Tim Macindoe's proposed amendment in supplementary order paper 71. This would require that those rules would have to be provided to the Electoral Commission and available for public inspection.

Parties are already required to have public rules around two specific things: party membership, and candidate selection. The processes around these are important matters that should be set out and publicly-available. I think this is also true of rules around expulsion of MPs. The two amendments do not require anything in particular in the rules - one party could leave the issue completely up to Caucus, and other parties might involve the party council, etc. - but the rules of each party should be a matter of public record, consistent with other aspects of the Electoral system.

A version of Macindoe's amendment in supplementary order paper 70, which proposes that the rules that applied at the election should apply for the whole term (so that parties can't change the rules after an election) might also be appropriate, but I recognise that in its present form, the Government won't vote for it, as this would preclude any expulsions this term.

I also ask Government MPs to consider supporting Simeon Brown's amendment in supplementary order paper 64. This proposes that the caucus vote to declare than an MP has distorted Parliament should occur by secret ballot.

Justice Minister Andrew Little has accused bill opponents of failing to engage with various safeguards he says are in the bill that would prevent it being abused - in particular the requirement that two-thirds of the caucus must support the leader. 

I think this is an unfair criticism - I engaged with them in both my written submission and oral submission, and the Academic experts Little criticised as having failed to do so engaged with them in their presentation to the Justice Committee - but now is his chance to meet his own challenge: making the caucus vote a secret ballot would add substantial weight to his argument that the were safeguards in the bill that would prevent a leader being able to silence opposition within their caucus.

There is one other matter, not touched that I can see, in an amendment proposed by National, which I would like to see someone pick up for serious consideration. In light of Andrew Little's argument about the two-thirds vote in caucus being a "major safeguard", I note my written submission included the following:

At present, the bill requires a two-thirds majority vote of a party caucus to expel and MP from Parliament. If an MP is really threatening the proportionality of Parliament, one would expect much greater unanimity from a party caucus as to that fact, than a mere two-thirds.

Under the current proposal, National could eject an MP even if 18 of their MPs considered the MP had not threatened the proportionality of the House, and Labour, could eject an MP with 15 MPs opposed. If the vote had anywhere near that many opposed, I think it must be seriously disputed whether proportionality would have been threatened.

When you are talking about ejecting an MP from Parliament, a much higher vote should be required, perhaps even near unanimity of the party caucus (ie unanimous, but the for the MP in question). An MP who has the support of even two or three of their party colleagues represents a significant party position likely to have been supported by at least some of that party’s voters, whose voice should not be silenced by other party factions. An MP with that level of support from the party Caucus should not be forcibly expelled from Parliament.

I think this is pretty clear enagement with the safeguards Andrew Little is discussing, and its something that the Justice Committee itself appears to have engaged with, having sought advice from Parliamentary Counsel about changing the threshold to "near unanimity". As it happens, I agree with the advice: if you are change the threshold to "near unanimity", it should be clearly defined what that means.

I do not think it is beyond the skill of government MPs, or opposition MPs to draft such an amendment before the debate on the Electoral (Integrity) Amendment Bill continues. (UPDATE: I was working off the online list of proposed amendments, which appears to be a couple of days behind, as National MP Chris Bishop advises he has proposed such an amendment).

I still oppose the bill, but there is an opportunity in the next few days to make it inarguably better than it currently is.

If you want to read a thought-provoking defence of the bill, Chris Trotter published one here.

And if you are one of the 63 MPs from Labour, New Zealand First of the Green Party with the power to decide this final form of this law, please consider your position on supplementary order papers 64, 69, and 71, not least because you have the opportunity to blunt some of the criticism you are currently facing for supporting the bill.

4

Careful what you wish for: How entrenching the Māori seats may lead to the opposite of what its supporters seek

On 3 May Labour MP Rino Tirikatene had his Electoral (Entrenchment of Māori Seats) Amendment Bill drawn from the ballot. It hasn’t been before the House for its first reading debate yet, but it has already caused some controversy.

The bill aims to add some of the bits of the Electoral Act dealing with the Māori seats to the list of provisions protected by section 268 of the Act, which “entrenches” specific provisions of the electoral law, making them harder to amend.

The drawing of the bill from the members ballot follows concern about the different treatment of Māori representation at Local Government level. Moves by various councils to create Māori wards have resulted in ratepayer petitions requiring binding referendums on the issue, all of which have resulted in the council’s decision being overturned.

Supporters of Māori representation have argued that minority rights should not be subject the majority veto. Instead, they say the question of whether there should be Māori wards should be put in the same position as the organisation of general wards: which is a matter for a simple majority decision by councils, not subject to possible referendums, which I’ll be honest, doesn’t sound very different from a majority veto to me.

The objection to the holding of referendums may have greater salience because, when public votes on minority rights are held, they can often be very negative experiences, even if successful in upholding the rights. But that seems contrary to what entrenchment actually is.

Simply put, entrenchment is a process that makes it harder to change a law.

Very few provisions are entrenched in New Zealand, but we have recognised that there are some matters that are so important, the question of change should be a matter for voters in a referendum where the suggested change is contentious. We have collectively formed the view that it would be wrong to allow a simple majority in Parliament to stack the Representation Commission (which draws election boundaries), or extend the term of Parliament by abolishing elections, or to raise the voting age. These matters go directly to how MPs are elected, so questions around them are left to the voters.

There is effectively a political convention that extends this beyond the specific issues that are formally entrenched. The MMP voting system is not formally entrenched, but the understanding is that changing to a different one would require a referendum, even if a referendum may not technically be required.

Now, Parliament can amend entrenched provisions, but if it wishes to do so, it needs something close to consensus – a 75% vote is needed to make the change. Which means that if the change proposed isn’t something that a political consensus has formed around, if it’s going to be changed, then its going to be at a general referendum.

I’m open to the entrenchment of the Māori seats, but if your position is like that of Alex Braae, writing for The Spinoff:

“Surely, if the Māori seats are to be abolished, it should be a decision for Māori alone to make. Otherwise, it would be a case of the majority dictating to a minority group what their rights are.”

Then adding the bits of the Electoral Act dealing with Māori seats to the list of entrenched sections probably isn’t what you want to do.

First, for a law protecting the Māori seats from simple majorities in Parliament by adding them to the sections protected by section 268 of the Electoral Act to pass, you need one of two things:

Given that National appears not to support entrenching the seats, the only realistic option for entrenching them is by a referendum. Which seems to be contrary to much of the purpose of removing a public veto over minority rights.

And even if successful in getting 75% support in the House, entrenching the Māori seats simply changes the majority needed to get rid of the seats from a simple majority in Parliament to simple majorities in both Parliament, and among the general public at a referendum.

Now, there are probably some things that could be done legislatively to better protect the Māori seats from repeal – setting up a periodic process by which Māori alone could make the decision over whether to retain the Māori seats would be one option – and it would probably remove some of the political impetus behind moves to change, but I suspect that would not have much support, even among supporters of the Māori seats.

I think there a lot of bits of the Electoral Act that are important enough to protect from amendment by a simple majority in Parliament (I wouldn’t want a simple majority to be able to increase the threshold to 15%, or reduce the number of list MPs to 10, for example), and I can see that the Māori seats could fit on that list. But I wonder whether the people supporting the push to entrench the Māori seats really want to move it to a system where the ultimate vote on them would probably be a referendum.

5

Littering!

I published my Select Committee submission on the Contempt of Court Bill yesterday. Part of the reason it was both late and short was that I decided that my submission on the Litter (Increased Infringement Fee) Amendment Bill was probably more important, not because the bill is, but because there has to be a reasonable chance that I'm the only person who is going to submit on a bill whose sole purpose is to change a "$400" to a "$1000" in one section of the Litter Act.

It's my first submission to the Environment Committee, so I hope they like it.

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The Environment Committee

Litter (Increased Infringement Fee) Amendment Bill

Submission of Graeme Edgeler 

Introduction

1. My name is Graeme Edgeler. I am a Wellington barrister who mostly practices in public and criminal law.

2. I oppose the Litter (Increased Infringement Fee) Amendment Bill and thank the Committee for the opportunity to present a submission on it explaining why.

3. In short, the proposed maximum allowable $1000 infringement fee for littering is out of all proportion with the offence of littering, and out of line with infringement fees for other infringement offences at a similar level. Local Authorities do not need the power to adopt bylaws providing for a $1000 infringement fee for littering. They already have sufficient powers under the current legislation.

Criminal Offence or Infringement Offence?

4. Littering is both a criminal offence, punishable by a fine, and an infringement offence, punishable by the imposition of an infringement fee. This dual approach is relatively common with a range of regulatory offences. More serious breaches of these offences can be prosecuted in the Courts as criminal offences (potentially resulting in a conviction and a criminal record) while less serious breaches can be dealt with using infringement fees (which are like parking tickets, or speeding tickets, and do not result in criminal records).

5. As this bill proposes amending the level of the infringement fee, it should be recognised that it is dealing with low level littering, and not with more serious dumping. More serious littering would be prosecuted rather than dealt with by the infringement notice procedure.

6.  If there are concerns with dumping or other serious examples of littering, then amendments to the maximum *fine* for littering (currently $20,000, or $30,000 for dangerous refuse) and not changes to the *infringement fee* would be more appropriate. Of course, particularly serious dumping abuses are likely dealt with under other legislation: either as criminal nuisances under the Crimes Act, or under the Resource Management Act, and not the Litter Act at all. If the Committee has concerns, that may be a better place for it to look.

The Practical Difference Between Fines and Infringement Fees

7. It is important that the Committee appreciates the practical differences between fines and infringement fees.

8. A fine is a sentence that can be imposed by a Court following a prosecution and conviction for a criminal offence. When imposing a punishment, a Judge (or in the case of a fine-only offence like littering, probably a Community Magistrate) is able to look at the particular offence, and the circumstances of the offender, and impose a penalty in line with this.

9. This is not how infringement fees work. Unlike a fine, an infringement fee is imposed as a set amount. If an authority (whether it’s a local authority, such as for a parking infringement, or police, for something like a speeding infringement) issues someone with a ticket for an infringement offence, the infringement fee that comes with it is at a particular level set by the rule that creates the offence.

10. These can sometimes be set to a scale, like the infringement fees for speeding, with different amounts in 5km/h increments, or they can be the same for all instances of a particular infringement offence. When an authority chooses to impose an infringement fee in a particular case, there is no discretion as to the amount. Whatever has been set as the infringement fee is it. Because of this, infringement fees can be inequitable, and recognition of this is part of the reason why speeding fines were lowered some years back.

The Proposed $1000 Infringement Fee for Low-Level Littering is Far Too High

11. As noted above, this bill amends the maximum infringement fee that a council could set for littering.

12.Although littering is bad, a possible $1000 infringement fee is out of all proportion with the offence, particularly when we recall that we are concerned with the type of low-level littering properly subject to infringement fees. It is useful to compare it to other infringement offences: The highest infringement fee that is imposed for speeding is for speeding between 46km/h and 50km/h over the speed limit. [1] This fee is set at $630.

13. In New Zealand, drink driving is a criminal offence, but in 2014 Parliament created a new lower drink driving limit which imposed an infringement fee rather than criminal penalties for low level drink driving; those over the older higher limit still face conviction and fines in Court, but those who have only breached the new lower limit commit an infringement offence, and face an infringement fee of $200.

14. Although speeding tickets and the infringement offence of low-level drinking driving also come with demerit points, the fact that the level of the infringement fee is substantially lower than for offending that is far more serious than the type of low-level littering appropriately dealt with here suggests the proposed increase is unnecessary.

15. By way of further example, a first-time drink driver actually convicted of the full drink-driving offence (above the higher, long-standing limit), would usually receive a fine of less than $1000.

What Should the Infringement Fee be for Low-Level Littering?

16. People shouldn’t litter, but imposing infringement fees at a level many New Zealander would face great difficulty affording, well in excess of other low-level matters that local councils deal with (like parking infringements, which can by themselves lead to people being unable to pay and having to attend a fines court) is disproportionate.

17. There is, of course, a question of what the infringement fee should be. I am aware that during the first reading debate, a number of MPs discussed whether the maximum infringement fee needed to be brought in line with inflation. The Committee should be aware that it already has been increased well in excess of inflation from its original 1979 levels.

18. When the Litter Act 1979 was introduced, the maximum allowable infringement fee was $20 (~$104.66 in 2018 dollars). In 1990, this was increased to $100 (~$169.54).[2] And in 2006, this was increased to $400 (~$493.33).[3] The suggestion that it would need to be ~$1500 to keep up with inflation is wrong. The fee is already well in excess of the levels it was set at in 1979, and in 1990, and given the low levels of inflation over recent years, it’s still not all that much less in real terms than it was when it was last adjusted in 2006.

19. It may be thought that $400 is low for serious dumping, but of course, serious dumping shouldn’t be subject to the infringement fee process in any event. It should be prosecuted. If there are concerns that commercial-scale unlawful dumping is unable to be prosecuted at appropriate levels under the Litter Act, then the $20,000 maximum fine for criminal dumping under section 15 should be adjusted, not the infringement fee.

Conclusion

20. I oppose the bill, and encourage the Committee to reject it:

20.1.  The maximum infringement fee is already in-line with other infringement fees for things like speeding and drink-driving, and substantially higher than those imposed for things like parking infringements.

20.2. An increase in the infringement fee to $1000, would see low-level littering punished with an infringement fee much higher than those imposed for driving 49km/h over the speed limit, or drink-driving in respect of the new lower limit is clearly disproportionate.

20.3. If the Committee is concerned about commercial-scale littering, it should consider amendments to the fine in section 15, or to the Resource Management Act, instead of the infringement fee in section 14, as this bill proposes.

21. I look forward to meeting the Committee in person to address my submission.

Graeme Edgeler



[1] Speeding at a higher level is effectively always charged as careless, reckless or dangerous driving.

[2] Litter Amendment Act 1990, s 6.

[3] Litter Amendment Act 2006, s 6.

7

The Contempt of Court Bill

I have just filed a Select Committee submission on the Contempt of Court Bill. My submission was made a lot easier by the submission prepared by Leonid Sirota and Edward Willis, which raised almost all of the issues with the most problematic aspect of the bill - its failure to take the opportunity to completely abolish the form of contempt of court known as "scandalising the Court". Their focus on this meant I could focus on matters slightly more frivolous, like the fact the bill I have just submitted on is in fact not called the Contempt of Court Bill.

You can read that submission, signed onto by a number of other public law academics, on Dr Sirota's blog, but if you are interested in reading mine, it follows.

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The Justice Committee

Administration of Justice (Reform of Contempt of Court) Bill

Submission of Graeme Edgeler

Introduction

1. My name is Graeme Edgeler. I am a Wellington barrister who mostly practices in public and criminal law. I have some experience with the Law around Contempt of Court, up to and including the New Zealand Supreme Court.

2. I support the move to bring the law of contempt of court into legislation, although I proposes some changes to the bill. Public accessibility of the law – particularly laws with criminal consequences – is important, and the current approach to contempt law makes it difficult not just for members of the public, but even for lawyers, to understand the law.

3. The importance of this public accessibility of the law gives rise to my first proposed change, around the bill’s treatment of other non-statutory contempts of court.

Clause 29 – other contempts

4. Clause 29 repeals the main common law contempts, these having be statutorily enacted in the rest of the bill. However, clause 29(2) states that:

Nothing in this Act limits or affects any authority or power of a court, including the authority of the High Court under its inherent jurisdiction, to punish any person for contempt of court in any circumstances to which this Act does not apply.

[Emphasis added]

5. This is a cop out. It abandons the principal benefit of a Contempt of Court Act – bringing contempt law into a place where people can actually find it – and maintains a set of laws with criminal sanctions that no-one may be able to find.

6.  Instead, I submit that all remaining non-statutory contempts, including those founded in the inherent jurisdiction, should be abolished.

7.  If there other non-statutory contempts of court not covered by this bill that ought to be maintained, it should not be beyond the abilities of the Law Commission and the Ministry of Justice to state what these remaining contempts of court are, and to recommend the language necessary to add them to this bill.

8. If they are unable to do this, I do not see how members of the public can be expected to have to comply with their obligations not to commit such contempts of court. If those tasked with enforcing the laws cannot say what is actually prohibited, it would be wrong to punish anyone else for doing such things. The law – especially the criminal law – must be knowable.

The bill should be renamed the Contempt of Court Bill

9. I would not usually submit on the name of a bill, but given the use to which the Administration of Justice (Reform of Contempt of Court) Bill is likely to be put, it has far too cumbersome a name.

10. The operative sections of the act are principally the criminal offences in creates. It would make things a lot easier for everyone dealing with the law, as well as aid public understanding and accessibility of the law, if the bill was renamed the Contempt of Court Bill. I appreciate that in New Zealand, bills with names that have bracketed bits are common. This is often appropriate for amendment bills, but it should be avoided for substantive stand-alone criminal laws like this.

11. People face robbery charges under the Crimes Act, not under the Administration of Law (Reform of the Law of Crime) Act. And people who are charged with contempt of court as a criminal offence, should be charged under a law called the Contempt of Court Act. This would be consistent with the approach in other jurisdictions, including the United Kingdom.

Clause 24 – the offence of publishing untrue allegations or accusations against a Judge or court

12. The bill proposes the re-enact the common law contempt of scandalising the Court, as an offence of publishing an untrue allegation or accusation against Judge or court.

13. I submit that it should not. People should not publish untrue allegations about anyone, but the criminal law is a wholly inappropriate means to enforce this. The particular form of this offence is highly problematic, and the mere attempt to do this is likely to be counter-productive.

14. We are about to abolish blasphemous libel. We abolished criminal libel a number of years ago. We should not recreate criminal libel in the Contempt of Court Act. Scandalising the Court should be abolished completely.

15. If judges are defamed, they can adopt the same recourse as everyone else. They are not in need of special protection allowing them to imprison people who defame their colleagues.

16. I am aware of the submission of a group of Legal Academics on this aspect of the bill, to be presented before the Committee by Dr Leonid Sirota of AUT and Dr Edward Willis of the University of Auckland. I endorse their comments, and recommendations.

17. I add two things: first, even if a more measured version of this offence were adopted, I consider any prosecution under it is likely to have the opposite of its intended affect.

18. The offence provision is aimed at protecting public confidence in the Courts. I can think of little more likely to undermine public confidence in the Courts than the appearance that the Courts are punishing those critical of them.

19 Second, I find the liability section in clause 24(2) troubling. The maximum sentence in every other contempt in the bill is express the same way that every maximum sentence is now expressed, for example, in clause 14(3):

A person who commits an offence against subsection (2) is liable on conviction,—

(a)     in the case of an individual, to imprisonment for a term not exceeding 6 months or a fine not exceeding $25,000; or …

20. Clause 24(2) is instead written as:

A person who commits an offence against subsection (1) is liable on conviction,—

(a)     in the case of an individual, to a term of imprisonment of less than 2 years or a fine not exceeding $50,000:

21. This form of words is contrary to the practice of the Parliamentary Counsel Office, and also contrary to the Legislation Design and Advisory Committee's Legislation Guidelines. This is quite literally the only time this form of words is used across the entire body of the New Zealand law. It appears as though the Law Commission wants to create a maximum sentence of 2 years, but realising that this would allow a defendant to request a jury trial, has decided to create the only offence in all of New Zealand law with a maximum sentence of 1 year, 364 days, just to avoid this. However it wants to avoid directly saying this is the maximum sentence in the legislation, because then it might then be too obvious.

22. I submit that if this contempt is retained, in whatever form, the maximum sentence should be written in the normal way “imprisonment for a term not exceeding 2 years”. Not only would this accord with standard drafting practice, but the possibility of a jury trial is about the only thing I can think of that could help avoid the perception that any prosecution under this section would involve Judges seeking to silence criticism of the Courts.

Conclusion

23. I commend the Bill to the Committee, making the following recommendations:

23.1. The Bill should be renamed the Contempt of Court Bill

23.2. The remaining non-statutory contempts of court not covered by this bill, should be identified, and either added to this bill, or abolished

23.3 The offence of publishing untrue allegations or accusations against a Judge or court should be removed from the bill, and if not removed, should be substantially amended

24. I look forward to meeting the Committee in person to address my submission.

Graeme Edgeler