Chapter 1 ​
Introduction

Background

1.1Public confidence in the justice system is essential for the courts to exercise their constitutional role of upholding the law and dispensing justice.

1.2In Siemer v Solicitor-General, Elias CJ recently described contempt proceedings as follows:1

The “great coercive powers of proceedings for contempt” are common law jurisdiction possessed by courts to punish, including by imprisonment, conduct which risks undermining the administration of justice.

1.3Celebrated English Judge Lord Diplock said the three requirements of the due administration of justice are that all citizens should:2
The New Zealand Bill of Rights Act 1990 (Bill of Rights Act) recognises requirements for the due administration of justice in this country by providing minimum standards of criminal procedure, including:3
(a) the right to a fair and public hearing by an independent and impartial court;
(b) the right to be tried without undue delay;
(c) the right to be presumed innocent until proved guilty according to law; and
(d) the right to be present at the trial and to present a defence.

1.4Conduct calculated to prejudice any of the requirements of the due administration of justice or to undermine public confidence that these requirements will be observed is contempt of court.

1.5Essentially, contempt is judge-made law designed to protect the integrity of the justice system. A major issue in this Issues Paper is the extent to which contempt should be provided for by statute.

1.6Some of the ways in which the court’s authority and independence may be undermined – or held in “contempt” – are more obvious than others. For example, the courts cannot operate effectively if participants behave abusively in court or disobey a judge’s lawful instructions. In the same way, people who are brought before the court on a criminal charge cannot be assured of their fundamental right to a fair trial if, as a result of overwhelming prejudicial media coverage, a fair trial is at risk.

1.7But there are also more subtle ways of interfering with the court’s ability to uphold the rule of law than blatantly undermining an individual’s right to a fair trial. For example, if judges are subjected to overt or covert bullying or pressure from politicians not observing the principle of comity between the different branches of government, or lobbyists, judges’ independence may be called into question. Similarly, if they are subjected to personal ridicule or threats, their ability to adjudicate without “fear or favour” may be consciously or unconsciously compromised. The above examples are types of behaviours that may, in certain contexts, amount to “contempt”. Although the ways in which a contempt may be committed differ, they all have in common a tendency to undermine the administration of justice.

1.8For the purposes of the review, it is convenient to identify different types of criminal contempt. In this Issues Paper, “contempt in the face of the court” concerns jurisdiction to punish disruptive behaviour in court. We use the term “publication contempt” mainly to describe publications that may prejudice a particular trial and “scandalising the court” to describe publications that tend to undermine the judicial system generally. “Contempt by jurors” refers to contempt committed by jurors, such as conducting research and disclosing juror deliberations. In addition, we look at both civil and criminal contempt in the form of disobedience of court orders.

1Siemer v Solicitor-General [2013] NZSC 68, [2013] 1 NZLR 441 at [1].
2Attorney-General v Times Newspapers Limited [1974] AC 273 (HL).
3New Zealand Bill of Rights Act 1990, s 25.