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.
The Justice Committee
Administration of Justice (Reform of Contempt of Court) Bill
Submission of Graeme Edgeler
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.
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.
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.
Another excellent post Graeme. Thank you.
Kapiti • Since Jul 2007 • 17 posts Report
I find your comments to the effect that "if you bill drafting geniuses can't find it..." blackly amusing because of the tremendous volume of deliberately opaque material covered by the phrase "ignorance of the law is no excuse". Legislation is bad enough, but case law? Ignorance is guaranteed whether that's a defence or not.
Oh, you mean "contempt" as legal jargon, not the normal usage. My mistake. Back to "the judge just made stuff up and if you don't kowtow you'll be charged with contempt".
Sydney, West Island • Since Nov 2006 • 1233 posts Report
When allegations are made about a judge which are not true the judge in question has recourse to current law. What is not addressed is when an accusation be it by Twitter or some other venue on the internet is true. What recourse does the citizen in possession of damning evidence of corruption and fraud have? My experience is that the legal profession and the Executive branch of govt circle the wagons to obfuscate and cover up their criminality.
HONG KONG • Since Aug 2017 • 3 posts Report
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Hi Paul. I normally don't mind people linking to their own sites, but that looks a bit wild and defamatory sorry.
Auckland • Since Nov 2006 • 22850 posts Report
PAUL STICHBURY, in reply to
Hi Russell, no offence taken. I realise a 100-ton hot potato landed on your desk. However, on balance, it would have been better to have left the link and let the public decide if it was a "bit" wild or defamatory. A "bit" defamatory is like being a bit dead. You either are or you are not. Clearly, we would love one or all the participants in the country's biggest fraud to sue for defamation. But no. They are all hiding under their desks. Can you imagine the opening scene in court where the presiding judge is asked if he/she has a judicial warrant?
The best solution to cleaning up the proven corruption and judicial fraud would be to call for a Commission of Inquiry into how the Turitea wind farm "consent" was obtained. This takes the matter out of your purview.
HONG KONG • Since Aug 2017 • 3 posts Report
Sacha, in reply to
It is the publisher not the public who can be prosecuted. That's why the decision is Russell's, not ours. Please respect that.
Ak • Since May 2008 • 19745 posts Report
PAUL STICHBURY, in reply to
Let me be crystal clear
The link to the website which was deleted is entirely factual with extensive links to correspondence and government documents which provide incontrovertible proof of judicial and executive fraud
It is not defamatory but extremely embarrassing to the numerous participants in the Turitea wind farm fraud and that is why it was deleted.
It is directly related to this draconian bill which has as its purpose the intimidation of the public should they discover they have been victims of such a fraud. This multi-faceted aberration from the law hides a constitutional crisis which has exposed the secret criminal workings of government. Both National and Labour are heavily involved.
The contents of the deleted website draw heavily on an eBook available on Amazon.
Yumchar on Twitter has had more than 200,000 views of 610 tweets to date which exclusively elaborate on this fraud. Hidden followers [GCSB and NZSIS] have shared these tweets with key players and government departments, accounting for an estimated 150,000 of these views. We have been scrupulously honest in disseminating factual information. No legal sanctions have been applied nor can they be and that includes your blog.
As far as I know, only Bolivia and Zimbabwe have fake judges. New Zealand has joined this exclusive club with the Shonagh Kenderdine fraud on both New Zealand and in particular Palmerston North to the tune of a more than $100 million devaluation of property. Ratepayers whose property cannot be sold potentially face ruin.
The thousands of victims of the agreement between MRP [now Mercury] and PNCC are secretly shafted by a $3 million penalty to be paid by PNCC to the Government if PNCC provides them with any help.
I was one of the litigants who challenged the change of purpose to the Turitea Reserve. The judgment which contains full details of the outrageous MRP PNCC contract and Variation was withheld from us and only discovered nine years later when accidentally put online by the Ministry of Justice.
Now I ask you to join in with me and respect the law of the land.
HONG KONG • Since Aug 2017 • 3 posts Report