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