Posts by Steven Price
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I think the offence of scandalising the judiciary is past its use-by date, and I think it's inconsistent with the Bill of Rights Act (though the High Court has ruled otherwise).
But let's not get too carried away. Don't let it stop you criticising judges. It's hard to think of any criticism more trenchant than Vince Siemer's site www.kiwisfirst.co.nz, but he has not been prosecuted for scandalising (or even threatened with it, as far as I know). Jock Anderson has written some blistering attacks on particular judges (accusing Ron Young J of political bias, for example). Not a blink from the Solicitor-General. I wrote a scathing column accusing a district court judge of being rude, incompetent and unfair. No reaction. The Independent has now twice run articles evaluating the judges - giving some very poor grades. Nothing.
I'm aware of only two scandalising prosecutions in NZ in the last 15 years: against Nick Smith and TV3 for attacking the family court over a particular case (their comments were indeed flatly unfair and misleading, though still within the bounds of free speech, I'd have thought: the main reason for the finding of contempt against Smith was his attempt to bully a family court litigant into dropping her case); and against the marvelous Mr Van der Kaap, who (among other things) submitted that "the prick of Penlington J pisses on the urinal wall of society". That he should be jailed for that piece of poetry was itself scandalous, I think.
Yes, judges can sue for defamation, and some do. But others regard it as unseemly. (If nothing else, it puts the judge hearing the case in an awkward position). It's constitutionally difficult for judges to come out and defend themselves against criticisms in other forums. Anyway, judges insist that scandalising is not there to protect their own reputations but to maintain public confidence in the judiciary against unfair attack. The modern trend is for scandalising applications only to be made when the publicity is widespread, the criticisms serious and wrong, and the damage done by the scandalising material exceeds the harm done by drawing extra attention to it. Which makes most blogs pretty safe, for example. What's more, they'll probably get a warning before an application for contempt is made.
Like I say, I'd abolish it altogether if I could. It seems to be undergoing a resurgence in Aussie, and that's always a danger here. Still, I expect that it will not be used much and will eventually be culled back by Bill of Rights arguments. Serious, honest, factually-based criticism of judges is not really under threat.
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Angus - I'm a member of AA. Let's say they run a $120,000 electioneering campaign that says "Vote against the parties that didn't support the Road Building Bill." I decide that I agree. Damn those parties who didn't support the Road Building Bill. I decide to run my own $120,000 campaign telling people what I think of the parties that didn't vote for the Road Building Bill and urging everyone to vote them out. I can do that. So can every other member of the AA. Yep, that allows a lot of people to spend a lot of money in electioneering in relation to a particular issue. In total, it could be way in excess of the party spending caps, in fact. That's democracy and free speech.
What's not allowed: AA wants to spend a million dollars on its campaign, so it gives eight of its members $120,000 to run similar campaigns. That's not allowed. Or it phones up some wealthy pals and coordinates its $120,000 spend with their $120,000 spends so that their messages lined up (for example, AA helps them design their leaflets). Not allowed either.
True, sly people may try to circumvent these rules. But that's no reason not to have them.
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Craig: I don't think all opponents of the bill are plotting to subvert democracy. Some of them are just misguided. :)
Angus: this is the sort of Twilight Zone misinformation my post is aimed at. Where did you get that idea? In fact, all 220,000 members of the AA can each spend up to $120,000 on election ads (though there are some provisions to stop people colluding to get around the limits). Independently, AA could also spend $120,000 on election ads. Not terribly frightening is it?
Kent: As I pointed out, I think the bill still overreaches a bit. I don't think anyone is going to be arrested for failing to put their name on a placard, but I think the bill should be tweaked to make it clear that this can't happen (and the government has said it will).
Malcolm: You want to criticise the process for drawing up this bill? I'm there with bells on. And yes, an ad in January that plainly calls on people to vote a particular way will count under the spending limits. I'm just saying that most political speech in January isn't of that nature, even though it technically falls within the regulated period.
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Isn't Moore's most gratuitous smear this swipe at Winston Peters:
He can't speak about hospitals without talking of Third World diseases and Third World people, the Central Bank policies are about, he claims, promoting speculation and money-lenders (code word), Dubai investment in New Zealand is naturally bad, but at least the anti-Asian and Muslim stuff has been shelved for a while.
"Code word"? Is he accusing Peters of anti-semitism? Is there the slightest bit of evidence of this?
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Be warned: parody is not a clear-cut defence to infringement of copyright in NZ. It's certainly arguable in many circumstances, but it's not entirely clear what the courts will make of it.
I can't see a mere link being an infringement of copyright. But almost every day I see big chunks of text being quoted by bloggers which probably exceed the width of the fair use defences.
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Interesting that you disagree with "all" of Nicky's corngate conclusions, Neil. Because documents released by the government after the book bear almost all of them out. I see that you don't say that you've read the book, so perhaps you're not familiar with them. Admittedly, the book would have been better if it had talked of a "suspected contamination" rather than a definite one. But the main point remains: the government was being told that there was evidence of contamination that couldn't be ruled out; it didn't order further tests; it didn't tell the public except in a very vague and sneaky press release; and it invented a regime that defined small amounts of contamination as non-existent. It subsequently tried to pretend that this was to do with the scientific limits of testing, but it wasn't. I'd be happy to show you documents from officials that explicitly describe this regime as one that "tolerates" small amounts of contamination, and later documents admitting that this approach was illegal, and changing it. And before you get upset with me for using the word "contamination", let me clarify: having spoken to lots of scientists about this, I'm not inclined to think that the cornseed was dangerous: just illegal. That was Nicky's point in "Seeds of Distrust."
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Neil, I'm curious: which of Nicky's conclusions in "Seeds of Distrust" did you find "bizarre"? And have you actually read it?
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I stand corrected, thanks.
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Terrific post, Keith. I haven't checked, but I suspect that the most marked trends in crime will involve women, and white-collar (and white-skinned) criminals. Russell is a bit unfair on the Press Council: over the past five years it has been upholding 19.5% of complaints (and even more in recent months.) He's right to say it's a bit toothless, especially with respect to North & South, which refuses to sign up to it and so doesn't have to publish its findings. But it will still consider complaints against North & South, and has upheld at least one before. The Press Council does give a lot of latitude to the expression of opinion, even very provocative opinion, but it's often pretty strict on accuracy, and I think ti would be hard-pressed not to uphold a complaint against Coddington's piece if someone complains.