Legal Beagle by Graeme Edgeler

2

Did Parliament give the New Zealand Defence Force the power to prohibit newspapers from publishing?

Yesterday news broke that a member of the New Zealand Army had been arrested and was in military custody. Details were sparse, but Stuff journalists Florence Kerr and Thomas Manch, and Newsroom’s Marc Daalder in particular seemed to be quick to print with details of the individual’s far right ties.

Later yesterday evening I noted an odd tweet, with Marc Daalder noting that the New Zealand Defence Force had told him that “the Commanding Officer of the soldier is currently in the process of making interim suppression orders, which will prohibit the publication of any information that may lead to the soldier’s identification”.

This struck me as off. We give Officers in the Armed Forces the power to give orders to others in the military, and to others temporarily on military property, we don’t let them order around civilians, and allowing them to give orders to newspapers seems particularly wrong.

So I wondered, whether maybe there was an error in the statement, perhaps “seeking” was meant instead of “making”? But I was quickly shown the suppression order, and that was not the case. The soldier’s commanding officer had indeed issued a suppression order, at the request of the arrested soldier.

The legal argument that a commanding officer in these circumstances has suppression powers isn’t ridiculous, but it’s also not nearly as clear cut as you would hope, and on balance I tend to the view that the legislation does not provide it.

The Armed Forces Discipline Act

I do not claim to be an expert on armed forces law, but I have a general sense of how it works, and the ability to read legislation faster than most people. The argument arises from the fact that at low levels, and at the initial stages of dealing with higher-level military offence, a person’s commanding officer can act as a “disciplinary officer”. There are limits – they won’t deal with some charges, but they can accept guilty pleas, determine charges, and impose punishments within certain limits (if they feel greater punishment might be required than they could impose, they can refer a case to Court Martial). It is a summary process, still with procedural safeguards, but taking account of the more disciplined nature of military service (if your knowledge of military law is limited to what you learned watching JAG in the 90s and 2000s, it’s New Zealand’s equivalent of the US military’s non-judicial punishment, in the US Navy called “Captain’s mast” or “Admiral’s mast”).

This is the stage that the proceeding against the arrested soldier is at. His commanding officer is acting as a disciplinary officer at the initial stages. We do not know the nature of the charge, and it is possible the accused may request, or be sent to a Court Martial, or that his commanding officer may dismiss the charge as baseless.

It is at a stage that, if this was a charge in the District Court, that a judge could impose name suppression. The question is whether a disciplinary officer can.

Disciplinary proceedings in the Defence Force are dealt with under the Armed Forces Discipline Act. It does not directly contain a suppression power, but instead section 145 provides that the suppression powers in the Criminal Procedure Act apply “to the extent that it is applicable and with all necessary modifications, to proceedings” under the AFDA.

However, the suppression powers in the Criminal Procedure Act only give *Courts* the power to impose suppression orders. This would mean a Court Martial would have the power under section 145 to impose publication restrictions on newspapers. The question is whether it is necessary for the word “court” in the Criminal Procedure Act to be read as including disciplinary officers.

It is not clear it should. A disciplinary officer is not a court. A disciplinary officer cannot enter a conviction. If they find someone guilty, they impose a punishment, not a sentence. And unlike orders in the civil courts, there appears to be no way that a name suppression order could be appealed by a concerned publication (only the sub-part of the Criminal Procedure Act dealing with suppression is ported over, the sub-part dealing with name suppression appeals is not).

Most importantly, we get back to the fact the Criminal Procedure Act refers to courts. A Court Martial is a court. The legal question is whether it is “necessary” to conclude a commanding officer acting as a disciplinary officer should be treated as a court. And I do not see that it is necessary. Parliament’s use of the word court should be given meaning. When applying a power given by Parliament to courts, we should be careful before concluding that it can be exercised by things that are not courts. The section has sufficient meaning in applying to situations when courts are exercising powers in proceedings under the AFDA. There may be circumstances in which it would be desirable for there to be name suppression of someone facing a non-judicial punishment, but it is not “necessary” for the law to modified this way to give it effect, and Parliament only imposed reading in modifications to the Criminal Procedure Act that are necessary.

The AFDA is not the only law with a deeming provision like this one, sometimes it simply allows something to happen legally without having to be written down in detail twice, but this shorthand approach presents problems in other areas: extradition and the law around prosecuting people with mental impairments are examples that have come up in my legal career, although I am sure there are others.

But as difficult as those laws are in practice, they are of a different character: they are primarily procedural. Suppression laws have a procedural element, but they are principally criminal laws: they set in place orders that, if breached, can be prosecuted as crimes. If Parliament wants commanding officers acting as disciplinary officers exercising what are sometimes court functions to be able to make orders prohibiting civilian newspapers from publishing things, I would expect them to use much clearer language. I hope it would agree.

Vexation, or Something Too Long for Twitter

Several people have asked me whether a particular repeat litigant could be declared a vexatious litigant, in light of their recent decision to appeal an adverse High Court ruling. My nascent tweet thread was getting ridiculously long, so it became this blog post instead.

The short answer is: no. The particular repeat litigant cannot be restricted from commencing or continuing a civil proceeding.

For the longer explanation, read on.

The power to restrict someone from commencing or continuing a civil proceeding (commonly called a vexatious litigant order) is now in section 166 of the Senior Courts Act. Similar powers are also now in other places, such as the District Courts Act, but they aren’t fundamentally different.

To declare someone a vexatious litigant, the person must have been involved in at least two proceedings that were "totally without merit".

The recent decision, in which an appeal has been announced, was not totally without merit. In fact, the reason there is to be an appeal is because the claim was so meritorious that it was successful.

Many of the claims involving the particular repeat litigant are cases the repeat litigant is defending, not cases they commenced. A vexatious litigant order only restricts you from suing others; it doesn’t stop other people suing you.

The current proceeding is one the particular repeat litigant originally commenced. However, the announced appeal relates to a cross-claim brought by the person who was sued. As noted in the High Court judgment, by the time the case got to trial, the reason for the trial was in reality, this cross-claim, the particular repeat litigant having withdrawn a claim for monetary damages, and offered to settle both claims including by paying $30000 toward their legal fees.

That said, without an agreement to settle, both claims went to trial, the particular repeat litigant only asking for the Court to rule there was defamation, and the person originally sued asking for monetary damages for defamation.

Neither of these claims was totally without merit. In fact, both succeeded.

This presents an insurmountable problem in using this proceeding as the basis for an order restricting the repeat litigant from commencing or continuing a civil proceeding.

You’re not a vexatious litigant if you win, and you’re not a vexatious litigant if you lose a claim someone filed against you.

And, if you lose a claim (or in this case, a cross-claim) someone brought against you, you get to appeal. In fact, you would still get to appeal such a case even if you had already been declared a vexatious litigant. Usefully, however, there are no witnesses in an appeal, and the parties don’t even have to turn up!

PS I have avoided names for a reason, and for similar reasons, have not opened this post for comments

An unserious approach to law-making

The House of Representatives will start the committee stage of the End of Life Choice Bill later today, during which all MPs get the opportunity to propose amendments to a bill, and given the contest around the bill, we can expect a number.

Which is a problem. We shouldn’t have to expect amendments. We should know what is proposed, and have a chance to consider the changes. Not a full submissions process, but for interested people to have the opportunity to look over the proposals to find any problems, and alert others to them.

This is particularly important in the case of the End of Life Choice Bill, as its Select Committee process, while thorough, did not address much of the detail of the bill in the usual way because of the bill’s status as a conscience issue.

Even when the select committee process works in the usual way, mistakes can be made, and the usually several months (or even several weeks) between a select committee report and the second reading and committee of the whole stage allows interested members of the public the opportunity to spot mistakes. Past examples have include Law Professor Andrew Geddis noticing that the select committee recommendations on the law to remove the right to vote from sentenced prisoners, actually granted the right to vote to a bunch of them, and my noticing that the select committee recommendations on a bill dealing with coroners would have made public discussion of the 9/11 suicide attacks illegal.

For End of Life Choice, what we have – instead of full select committee consideration of all of the detail released as a recommendation a few months ago – are several competing alternative proposals, advanced by different MPs. On a conscience issue like this one, that was always going to be the case, but rather than providing people several weeks to consider these approaches, and whether those alternatives are the best way to achieve their aims, the proposals have been made public the day before the vote, many of them seemingly after the close of business.

I understand that the proposed amendments of ACT MP David Seymour, the bill’s sponsor have been made available to select stakeholders and some MPs before their public release. After I tweeted about the absence of his proposals, he arranged to have a copy sent to me on Monday. But for everyone else with an interest in ensuring MPs don’t inadvertently pass a law that doesn’t fulfil their intentions, there's a lot of work to do in the next eight hours.

National MP Maggie Barry, the bill’s leading Parliamentary opponent, is reported as having indicated she may propose over 100 amendments to the bill. Two have been made publicly available. Her National colleagues have proposed a number of others, with 23 publicly available.

Do any of the amendments do what they intend? Are some of the good ideas that would be better ideas if worded differently? I can’t really tell you. Nor can anyone else. Some seem sensible, or workable, but how do they gel with other proposals that might also pass? I don’t know that either.

Some of them seem to be the type of small change that often gets made late in the process, but I’ve no idea which might have pitfalls that could be avoided by a short period of public scrutiny.

Substantive legislative proposals should not be released mere hours before they are voted on. It involves the type of short circuit of the public legislative process that both David Seymour and I decried with the recent firearms legislation, and I extend my criticism here.

This is an unserious approach to law-making, and MPs should reject it. Absent a delay in the legislative process – even just to the next members’ day – MPs should vote down all of the recently-proposed amendments to the End of Life Choice Bill, and then vote down the bill itself.

76

A (non-)submission on the new Arms Amendment legislation

I went back to the office last night, and stayed until after midnight in order to make a submission on some aspects of the Arms (Prohibited Firearms, Magazines, and Parts) Amendment Bill, the Government's response to the Christchurch Mosque shootings.

Unfortunately, for now, at least, I won't submit it, because the mechansim the Committee has provided to make a submission, automatically and irrevocably ticks the "You do not wish to make an oral submission to the committee" option, and well, I do.

I am not a firearms expert. I do not expect any select committee to hear from me, least of all one forced to conduct such hurried deliberations, but I'm also not going to lie by saying I do not wish to be heard, when, if given the option, I would say I did want to be heard, even if I didn't expect the honour. I am not particularly inclined to lie to Parliament at any time, but I am certainly not going to do so in a manner which would enable the Committee to say in its report that it received submissions from perhaps hundreds of people, and heard in person from all of those who indicated they wished to be heard in person. If Parliament is going to unnecessarily limit the right of members of the public to try to point out where it's hurried law might have missed the mark, it should own it.

I know I cannot find everything that might be wrong with this law in the time I had available, but it's pretty clear from the way it has been drafted that even the professionals who have worked hard over the last couple of weeks to do the best they can don't think they've done a good enough job, because they've included a "Henry VIII" clause which would allow the Government to go back and amend bits of the statute in case they've stuffed it up.

It might be that the submission process is fixed to enable me to honestly submit the following before the process closes at 6pm, but in case it doesn't, I present the following for anyone interested:

[EDIT: PS. I realise this sounds somewhat snippy. I didn't write and post at midnight because I figured it would sound somewhat off. I just got up and was still disappointed, is all. I still very much hope to make my submission through proper channels, and would welcome others who don't wish to be heard in person adopting any concerns of mine they agree with and submitting them on their own. But I'm the guy who paid $600 in High Court filing fees in order to post a tweet containing information that was carried in a live Police Media Conference. This is kinda who I am.]

==

The Finance and Expenditure Committee

Arms (Prohibited Firearms, Magazines, and Parts) Amendment Bill

Submission of Graeme Edgeler

Introduction

My name is Graeme Edgeler. I am a Wellington barrister with a strong interest in law reform.

I thank the Committee for the opportunity to present a written submission on the Arms (Prohibited Firearms, Magazines, and Parts) Amendment Bill.

Regrettably, this submission is much shorter than I would like it to be. I hope that the Committee will have received submissions raising the other concerns I would like to have raised. I invite the Committee to include in its report concerns about the time in which it has been required to undertake its consideration of this bill.

I accept that a policy decision has been made to pass a law substantially limiting access to semi-automatic weapons. I have no objection to this, my concern with the process is that I, and others with much more expertise than I have, simply will not have enough time to properly enable the Committee to be sure:

  • that this bill does what it is intended to do;
  • that this bill does not do what it is intended that it not do.

Having said that, I recognise this bill is likely to pass in some form, so I offer the following observations.

This is a Criminal Law

While this bill may look like a law which is about regulating the ownership of firearms, what it really is, is a criminal law.

Given this, the Committee should be clear that the criminal offences it is creating are clear, and capable of being understood by people who will be using the firearms it covers.

In the short time I have had to consider the bill, I do not believe it currently succeeds.

My particular concern (and I cannot say there are not others) is the new offence of possessing or supplying a prohibited part.

Prohibited Parts 

The new definition of “prohibited part” relies on a new definition of “part”. That aspect of the old definition had an important requirement, that something only counts as a part of a firearm if it “while not essential … is designed or intended to be an integral part of” the firearm.

This formulation is included in new paragraph (b) of the definition of part, but is not part of the new definition in paragraph (d). Instead, paragraph (d), which applies “in relation to any firearm,” merely defines part as “any thing, such as [a disparate group of parts of firearms].”

This is not a good definition. I am not a firearms expert, but I cannot see how even those who are can possibly work out whether something counts as a part of a firearm, such that if it is a part of a prohibited firearm, they are breaking the law by possessing it.

There would appear to be two obvious alternative ways of defining part, so that the offences relating to possession of parts of prohibited weapons can be readily understood:

  • Paragraph (d) of the definition of “part” could include the formulation “while not essential … is designed or intended to be an integral part of”, which appears in the current law; or
  • Paragraph (d) of the definition of “part” could be written as an exhaustive list, by deleting the phrase “any thing, such as”. If there are other things Police consider should count as a part of a weapon, they should say so, so they can be added to the list.

Prohibited Ammunition

The law also creates criminal offences around possession of prohibited ammunition in new sections 16A and 43AA) but does not actually prohibit any ammunition, instead leaving this decision up to an order in council process (see the definition in new section 2D).

Criminal laws, especially those carrying significant criminal penalties, should be imposed by Parliament, not delegated to regulation.

If there are types of ammunition the Government, or Police consider should be banned, ask them to list them, and decide whether such bans are justified.

If you or they cannot currently think of any, then remove this criminal offence, and instead include it in the second tranche of firearms regulation we expect in the coming months, when someone has actually worked out what should be banned. That there is a rush to do something is not a good reason for Parliament to abandon its role in deciding what the criminal law should prohibit.

Amended section 74A: New "Henry VIII" power

I object to the new sections 74A(a) and (b), which would permit the Government to amend the Arms Act. If you are concerned that you will not get the definitions right in the time available, the appropriate course is not to surrender Parliament’s authority to amend laws to the Crown, but to be more careful, and if necessary, insist upon being allowed more time to do your job.

Even where so-called Henry VIII clauses are provided, they should never be able to be used in a way which expands the criminal law, and this is what the law would allow.

The Government does not need the power to amend primary legislation in this way. The sections that this amendment would allow the government to amend are important to a number of criminal offences in the Act. Deciding what conduct is criminal is prototypically a matter for Parliament. I urge the committee to remove the power the bill would create to allow the Government to amend the act itself.

Endorsements

Given that no ammunition is actually prohibited in this bill, I do not know what type of ammunition is intended to be prohibited. However, I note that, unlike prohibited firearms and prohibited magazines, there is no procedure for a person to apply for, or be granted, an endorsement that would allow them to sell or possess prohibited ammunition.

This suggests to me that it is intended that the types of ammunition that will be prohibited are very limited, and that it is intended that only ammunition for which there is no legitimate use are intended to be able to be declared to be prohibited ammunition. If this is the intention, Parliament should impose this requirement on the Government.

Alternatively, if there are to be types of ammunition that the Government considers should not be able to be possessed by ordinary firearm owners, but which it considers there may be legitimate uses for exempted persons, the exemption process and related sections should be amended to allow for this.

Conclusion

I regret that I have not had sufficient time to engage with this legislation. I am uncertain whether you will have sufficient time, but in particular encourage you to look closely at the criminal offences this law creates, and the definitions etc. that feed into them.

I am not in a position to know whether this bill actually does what it intends to do, nor to know whether it avoids doing what it is intended it should avoid doing, accordingly, I am not in a position to commend its passage, even with amendments. I wish you well in doing what you can with the time available.

40

Why the censor's total ban on possession of "the Manifesto" is wrong

On Saturday, New Zealand’s chief censor, David Shanks, issued a decision declaring the manifesto of the man accused of the Christchurch Mosque shootings to be objectionable. That means it’s banned, and as unlawful to possess as images of child sexual exploitation.

This has been somewhat controversial. The decision follows from less controversial decision to ban the live stream of the video itself.

Decisions like this have been taken before in New Zealand. These resulted in more than one person being convicted for possession of ISIS-related material, including one person sentencd to 3 years and 9 months in prison.

I ban relating to the video of the shooting makes sense to me, but the decision to impose a total ban with respect to the manifesto concerns me, which I detail below. It is important to be clear about what exactly those concerns are. Objections to this decision come in two broad types: concern with the application of the law by the Chief Censor, and a broader concern that our censorship laws might allow something like this to banned.

I have several concerns about our censorship laws, and I assume that similar concerns may be behing the Free Speech Coalitions's opposition to this decision, but I haven’t read the manifesto, so the question of whether, the law should ban this at all, is not something I can competely answer.

Instead, for now, I am taking the Censor at his word. I adopt his analysis of the document itself, and its effect if made available to the public and – accepting all of those things as correct – am still wondering why he imposed a complete ban.

Some background in New Zealands censorship laws is helpful. Importantly, the censor is not limited to declaring a publication to be objectionable (ie banned); he also has the option of saying: well, this publication would be objectionable, if it was available to this group of people, so we’ll restrict it.

Usually, this is based on age. For example, a number of years ago now, it was concluded that it would be objectionable for 14 year-olds to watch Saving Private Ryan (which contains realistic war violence) in theatres, or on DVD, so we restricted the ability to watch it in theatres, or to watch or possess the DVD or Blu-ray, to those who are 15 or older.

But age based restriction, while being by far the most common type of restriction, is not the only restriction: the film Baise-moi, which was controversial a number of years ago has a restriction that says it would be:

Objectionable except if:

(a) the availability of the film is restricted to persons who have attained the age of 18 years; and

(b) the film is used for the purpose of: (i) theatrical exhibition; or (ii) exhibition to participants in a tertiary media studies course or a tertiary film studies course.

This means that being 18 isn’t enough. To be able to lawfully watch this film, it must be part of a film festival (ie a theatrical exhibition) or it must be as part of tertiary-level film or media studies. There are 227 films listed on the Classification database that are similarly limited to being part of a film festival or film society screening.

A Clockwork Orange was originally rated:

Restricted to persons 20 years and over and to 6th form, 7th form and tertiary students under that age only if the film is a legitimate part of their study curriculum and written consent is supplied by the parent or guardian of any such student under 18 years of age.

[The film is now a simple R18]

The Censor has sometimes limited possession of a publication to a single person (the image file 100_0806.jpg is restricted to the person it depicts – I don’t know what it is, but I’d guess it might be for example, a consensual nude selfie, taken by a person under 16).

With the wide options available to the Censor, one particular type: the censor may restrict the right to possess a publication to a class of people.

In the past, one publication was declared:

R Govt Consultation
Objectionable except in the possession of Ministers of the Crown, staff of Ministers of the Crown, and staff of Government departments or Government organisations engaged in work or research for the Ministry of Culture and Heritage's Convergence and Content Consultation as part of the New Zealand Government Convergence Programme

Others have included manuals related to particular types of weapons, where the possession of the book is restricted to holders of particular firearms licences, or material which treatment psychologists have been permitted to see to allow them to treat people; and the book “Guide to a Humane Self-chosen Death”, which was restricted to members of the Euthanasia Society.

These sorts of nuanced decisions, recognising that a publication may harm society if released generally, even when limited to adults, but that there may be specific groups of people who have a legitimate interest, who should be permitted to possess that publication, and whose possession of that publication does not cause harm to society (perhaps may even do good) are important: they ensure that New Zealand’s censorship laws do not over-reach. In a rights conscious society, they are ensure that limits on people’s rights are proportionate, that they do not go beyond what is necessary to achieve the policy aim of the restriction.

Why is this relevant to the manifesto of the man accused of the Christchurch Mosque shootings?

Noting, again, that I haven’t read it, I’m adopting the censor’s analysis: what harm does he foresee if there is widespread availability of this document? In his own words:

“Most people reading the publication will not be harmed by it. “Most New Zealanders who have read this will simply find it repellent. But most New Zealanders are not the target audience. It is aimed at a small group who may be receptive to its hateful, racist and violent ideology, and who may be inspired to follow the example set by its apparent author.”

And why would it be bad:

“It promotes, encourages and justifies acts of murder and terrorist violence against identified groups of people: [and] it identifies specific places for potential attack in New Zealand, and refers to the means by which other types of attack may be carried out. It contains justifications for acts of tremendous cruelty, such as the deliberate killing of children.”

Even recognising that not all publications that are illegal are objectionable (for example it a crime to make death threats in New Zealand, but possession of a written death threat isn’t a crime), avoiding this getting into the hands of others is a legitimate purpose. And banning most people from seeing it as a way to avoid it getting into the hands of even one person who may be affected by it in a way detrimental to Society may be justified? But is there a class of people whose interest is greater than that of the general public, and whose possession of the document would not cause these harms?

I think there is, and the reason I think this is that the censor thinks there is. He says:

"We also appreciate that there will be a range of people, including reporters, researchers and academics, who will be in possession of the publication for a range of legitimate purposes, including education, analysis and in-depth reporting."

And this is where the censor and I part company. Given that he views members of the news media as a class of people with a legitimate right to have access to the manifesto, I consider that should be accounted for it the rating imposed.

I can see that there would be a risk in passing a restriction that merely allowed someone who claimed to be a journalist to possess this manifesto, but I do not believe it is beyond the abilities of the censor to craft a restriction that limits access to those whom we as a society do not want to have the encouragement and plans to act, while allowing it those reporting on this case of the highest public interest. I am open to amendment, but propose the following as better reflecting the balance even the censor acknowledges is appropriate:

Objectionable, unless restricted to paid employees of news media organisations subject to the codes of the New Zealand Media Council, or the Broadcasting Standards Authority.

The censor has proposed that such people could “apply for exemptions, so they can legitimately access and hold a copy.” I do not think this is good enough, at least with respect to journalists

First, the requirement for a journalist or a news media organisation to apply in advance and to wait for permission is offensive to general freedom of the press concepts.

These types of restrictions, known as prior restraints, are just really bad. Journalists should not have to ask permission for a state agent to be able to their jobs. They shouldn’t have to pay money for this privilege, and they shouldn’t have to wait for a decision to be made. I have never needed to apply for an exemption from the Censor, but I have on a couple of occasions, as part of reporting I was doing, needed to apply for prior permission before publishing something. One occasion took months, even when I provided a draft of the article I wished to publish. The other occasion took six weeks, and a $600 High Court filing fee, for a request to report entirely non-controversial information that was already public. Even delays of a few days may be entirely unreasonable in the circumstances.

I accept that this sort of prior restraint, may be a reasonable limit for people who might need access who can’t be simply included in a class which, if lawful possession of the manifesto was limited to them, would ensure that the feared harms to not eventuate.

Finally, given a slightly less restrictive option is available, the censor’s approach is not the least available restriction necessary to meet the objective sought.

I believe my proposal (or another formulation of it that people with more experience in this area can come up with) would better achieve this. Perhaps even my wording goes too far, but the argument is hard to make without greater knowledge of the document itself. My proposal would ensure that journalists, could not, for example, place the manifesto on-line, or provide it to non-journalists. And it would still allow the random members of the public found in possession of the document (or disseminating it) could be prosecuted if appropriate, or have the material seized from their possession. In short, the harm that society seeks to diminish through the censorship process would still be addressed, without subjecting legitimate news media to a prior restraint.

I take issue with a number of aspects of our censorship law, including some which have application in this area. A group like the Free Speech Coalition will have my backing for many possible campaigns against aspects of the law, but for today, I don’t need to get into these. It seems clear to me that, even accepting that everything the censor has said about this manifesto is true, his decision does not properly balance the rationale he gives for trying to stop widespread availability of this documents with the proper place of the news media in an open democracy.

The decision appears to be wrong, and if any journalist or news media organisation wants help challenging this decision before the Film and Literature Board of Review, I am happy to offer mine.