2.15Although there are a number of unsatisfactory aspects of our current law of contempt, it was not suggested to the Law Commission in preliminary consultation meetings that the protection of the administration of justice and of the authority of the courts is no longer desirable at all.
2.16In the recent Supreme Court decision in Siemer v Solicitor-General, a finding that the defendant was in contempt for breach of suppression orders was upheld by the majority of the Court, which said “contempt of court operates to uphold the authority of the court, which is of fundamental importance to maintaining the rule of law in our society”.
2.17Many aspects of society have changed since the contempt powers were first developed and exercised, however.
2.18All of the different forms of contempt we consider in this review involve their own distinct legal and policy problems, but they all share the same policy rationale – the protection of the administration of justice – and similar issues arise in respect of each form of contempt.
Procedure and punishment
2.19The summary jurisdiction places wide powers of investigation and punishment in the hands of judges who use it. It has often been said that the contempt power of a judge is the single most powerful authority a judge has. In 1877, Sir George Jessel MR referred to the jurisdiction of committing for contempt being “practically arbitrary and unlimited” and said it should be “most jealously and carefully watched” and exercised with the greatest anxiety on the part of judges where there is no other option.
2.20This sentiment was echoed in 1974 by the United Kingdom Phillimore Committee, which said it regarded contempt as essentially a “residual jurisdiction” to be invoked only where urgency requires immediate action to be taken.
2.21While there is no question that the High Court has jurisdiction to deal with all forms of contempt, other courts do not have jurisdiction over some categories of contempt.
2.22The District Courts, for example, are constituted under the District Courts Act 1947. The jurisdiction of District Courts is limited to that conferred on them by statute. They do not have inherent jurisdiction like the High Court. However, District Courts, like all courts, have inherent powers that enable them to do that which is necessary to exercise their statutory functions, powers and duties and to control their own processes. There has been some confusion over the extent to which the inherent powers of courts created by statute enable them to address contempt.
2.23Currently, any perceived jurisdictional “gap” in this area is filled by the High Court’s protective jurisdiction. The High Court’s inherent jurisdiction extends to upholding the authority of lower courts and tribunals. Under its inherent jurisdiction, subject to any qualification by statute or statutory rule, the High Court has power to punish for contempt of a lower court’s processes in order to enable that court to act effectively as a court. Where the High Court possesses inherent jurisdiction to do something that cannot be done by a District Court, the High Court may use its powers in aid of the District Court. Appendix B contains a table outlining the contempt powers of each of the New Zealand courts.
2.24Another common feature of various forms of contempt is a lack of certainty as to what conduct actually amounts to committing contempt and the requisite mental element in respect of that behaviour.
2.25Given the criminal nature of contempt offences, it is important that members of the public are able to discern what behaviour is unacceptable and what the consequences of such behaviour may be. It is therefore problematic that these matters remain unclear.
2.26It is also unclear whether a judge is able to impose a community sentence and award reparation to the Crown to recover the costs of a trial that must be delayed or abandoned as a result of the committal of a contempt. Further, there is uncertainty as to whether general statutory sentencing and parole provisions apply to a sentence of imprisonment for contempt.
2.27Over the years, in New Zealand, as in other Commonwealth countries, there have been a number of statutory incursions into the common law of contempt, most notably by the provisions in Part 6 of the Crimes Act 1961, which deal with crimes affecting the administration of law and justice, the name and evidence suppression provisions in the Criminal Procedure Act 2011 and the various provisions relating to contempt in the face of the court. As a result, the law is now a complex mix of statutory and common law powers, which creates difficulties for the public, the legal profession and even the judiciary.
2.28Contempt of court encroaches upon a number of individual freedoms, particularly freedom of expression and freedom of information. On the other hand, it protects the right to a fair trial, which is regarded as the bedrock principle for the criminal justice process.
2.29The Commission will need to take into account the sometimes competing rights and freedoms when considering how the law of contempt should best reflect the values of modern New Zealand.
Codification of contempt?Top
2.30Contempt is now the only criminal offence in New Zealand not provided for by statute. When the general criminal law of New Zealand was codified in the Criminal Code Act 1893, it was considered that, as a matter of principle, the scope of the criminal law was a matter for Parliament rather than the courts. Notwithstanding this, the Criminal Code Act 1893 did not mention the law of contempt. It did, however, contain a provision that stated:
Every one who is a party to any crime or misdemeanour shall be proceeded against under some provision of this Act, or under some provision of some statute not inconsistent therewith and not repealed, and shall not be proceeded against at common law.
It is certainly arguable that this provision abolished the contempt jurisdiction, but that was not the approach taken by the courts.
2.31In line with the interpretation favoured by the courts, a proviso was added by Parliament to the relevant section in 1961, which stated that:
[N]othing in this section shall limit or affect the power or authority of the House of Representatives or of any court to punish for contempt.
Thus, the inherent power of the High Court to punish for contempt at common law remains in existence alongside the offences in the Crimes Act and other statutes.
2.32The interrelationship between common law contempt and statutory provisions continues to cause difficulties, however, which could be more easily clarified by statute than incremental rulings of the senior courts.
2.33Codification of contempt would bring contempt offences in line with every other criminal offence in New Zealand.
2.34The rule of law means that the country’s laws should be able to be ascertained by its citizens, particularly if a breach of those laws could result in a significant fine or prison sentence. It cannot presently be said that the laws relating to contempt are clear or accessible to the public, and it is difficult to see why these laws should not be provided for by statute.
2.35From a constitutional perspective, replacing current common law contempt with statutory offences would enable the public to have their say on the shape of the contempt laws and the values the laws embody. If the contempt laws had the stamp of Parliament, this would encourage public “buy-in” for the laws and ultimately give rise to greater public confidence in the administration of justice.
2.36Whether the common law contempt powers should be codified is an issue that underlies every aspect of the Commission’s review of contempt of court. We discuss this issue in more detail in Chapter 8.
Restriction on freedom of expressionTop
2.37In New Zealand, as in other common law jurisdictions, arguments about whether or not a particular action amounts to contempt will often be framed as a contest between fundamental rights and policy interests. Foremost among these are the importance of freedom of expression to the health of a democracy and, as discussed earlier, the importance of protecting the administration of justice and the rule of law.
2.38The potential for these rights and interests to conflict – or to appear to conflict – is often most acute in the context of a criminal trial where the right to freedom of expression and the right to a fair trial are both of critical importance. In New Zealand, both these rights are guaranteed under the Bill of Rights Act. Section 5 states that the various rights and freedoms contained in the Bill of Rights Act are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.
2.39While publication contempt is a critical area of the law of contempt and a major focus of this review, it is evident that freedom of expression and whether there is a justifiable case for permanently or temporarily curtailing such rights emerges as a vital policy question in almost every context in which the law of contempt is engaged.
2.40The protection of freedom of expression is critical in a democratic society.
2.41Justice Brennan in New York Times v Sullivan said “debate on public issues should be uninhibited, robust and wide-open” even if it includes “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials”. Prosecution for statements alone should only be permitted where it is justifiable to prevent a greater harm than abridgement of freedom of expression and then only in proportion to the aim of preventing the harm.
2.42In New Zealand, the freedom is now recognised in section 14 of the Bill of Rights Act as follows:
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
2.43In Moonen v Film and Literature Board Review, which was a case concerning the relationship between freedom of expression and the censorship of objectionable publications, Tipping J said the right of freedom of expression is “as wide as human thought and imagination”. That statement is the starting point for any inquiry about the scope of freedom of expression in New Zealand.
2.44Section 14 raises several questions about which views may differ. The first question is what “expression” means. Does it, for example, include conduct? Is posting an obscene photograph on a website “expression”? We prefer to take a wide view of “expression”, consistent with the Commission’s stance in our report on new media. Our courts have held that flag burning and lying down in front a car as a protest are forms of “expression”, so we take the word “expression” as being wide enough to cover all types of communication.
2.45The second question is whether all types of expression, however objectionable or harmful they may be, come within the cover of section 14. This raises the question of the scope of section 14. One view is that each right in the Bill of Rights Act must be interpreted in light of the values it was enacted to protect. On this view, it might be argued that speech that has no legitimate value and serves no legitimate purpose does not fall within the protection of section 14 at all. Thus, for example, images of child pornography or gratuitously offensive personal comments would not be within the scope of section 14, and laws prohibiting their communication would raise no Bill of Rights Act issues at all.
2.46The other view is that all expression falls within section 14, in which case, the question becomes whether a law prohibiting certain types of expression (for example, child pornography or offensive personal comments) is a justified limitation under section 5.
2.47It is very difficult to envisage a case of a truly objectionable message where the end result would be any different, whichever approach was taken. There is at least one New Zealand case (involving contempt of court) where the Court took both approaches in the alternative and reached the same result. While acknowledging that there is another view, for the purposes of this Issues Paper, it is convenient to take the second approach and assume that even the most offensive and objectionable communications fall within the ambit of section 14 and that restrictions placed on them by the law must be justified in terms of section 5.
2.48Having said that, the approach we are taking does not assume that all types of communication are of equal value. International jurisprudence has moved towards a view that there are a number of levels of speech value. The highest value is accorded to political speech, the lowest to hate speech and gratuitously offensive personal comments without any legitimate purpose. Restrictions on speech of high value require much stronger justification under section 5. Restrictions on speech at the bottom of the “value pyramid” require minimal justification.
2.49The third question is, taking all of the foregoing into account, how one applies the section 5 test, that is, whether the limitation proposed is reasonable, prescribed by law and as such “can be demonstrably justified in a free and democratic society”. The application of section 5 by the courts has led to some of the most complex jurisprudence in our law. That is unfortunate, because it makes understanding of the process very difficult for persons, particularly lay adjudicators, who have to apply it. For present purposes, it may be said the crucial elements are as follows:
(a) The purpose of the proposed limitation on the freedom must relate to “concerns which are pressing and substantial”.
(b) The measures adopted to limit the freedom must be rationally connected to that purpose.
(c) The limiting measures must not impair the right more than reasonably necessary.
(d) The limiting measures must be proportionate to the purpose sought to be achieved. This element is particularly important. One should not “use a sledgehammer to crack a nut”.
2.50As Tipping J summarised in R v Hansen: “Whether a limit on a right or freedom is justified under s 5 is essentially an inquiry into whether a justified end is achieved by proportionate means.”
2.51Freedom of expression, unlike the right to a fair trial, is a right that is qualified under the International Covenant on Civil and Political Rights. The justifications identified under the Covenant include measures to protect the rights or reputations of others and the protection of national security, public order, public health or morals. General Comment No 34 of the Human Rights Committee of the United Nations, in referring to the restrictions that may legitimately be placed on freedom of speech, makes the point that the requirement of prescription “by law” may include laws of parliamentary privilege and contempt of court.
2.52In Hosking v Runting, the Court of Appeal was confronted with a question about whether the news media could publish photographs of the children of celebrities. The Court weighed the right to freedom of expression against the values underlying privacy. Within this balancing exercise, Gault J recalled that freedom of expression is fundamental to the democratic process. Keith J emphasised that it is of highest importance to a modern democracy and recognised that the purpose and values behind the right are widely accepted. They include “liberty and self-fulfilment, the value of the marketplace of ideas and the protection and advancement of democratic self-government”.
2.53In Brooker v Police, which dealt with a charge of disorderly behaviour where the offender had been publicly protesting against a police officer in the street outside her house, McGrath J observed that “freedom of expression is a right which is basic to our democratic system”. In terms of the rationales underpinning freedom of expression, McGrath J cited the statement of the Supreme Court of Canada in Ching RWDSU, Local SS8 v Pepsi-Cola Canada Beverages (West) Ltd:
The core values which free expression promotes include self-fulfilment, participation in social and political decision making, and the communal exchange of ideas. Free speech protects human dignity and the right to think and reflect on one’s circumstances and condition. It allows a person to speak not only for the sake of expression itself, but also to advocate change, attempting to persuade others in the hope of improving one’s life and perhaps the wider social, political, and economic environment.
2.54Similarly, Thomas J stated that the right of freedom of expression “provides and secures a democratic form of government in which the individual possesses the autonomy to thrive as a citizen treated with equal concern and respect”.
2.55Legislative developments subsequent to the passing of the Bill of Rights Act have seen an increasing emphasis given to freedom of expression in New Zealand. For example, defamation is no longer a crime, and former seditious offences of defaming or libelling the government have also been repealed.
2.56The Internet means we can now use, collect, store, copy and share information with an ease and level of sophistication that would have been unimaginable even 20 years ago. Most citizens have virtually unobstructed access to an almost limitless amount of information through the Internet, and this is changing the way people verify information and make decisions.
2.57Digital communications can take many forms, including communicating through emails, texts, blog sites, forums and social media sites such as Facebook and Twitter.
2.58Like the advent of the print media, the development of new media has changed the way we live our lives. Modern technology has provided new ways to commit contempt of court and new challenges to the law of contempt. This is due to:
- the ubiquity and ease of access to technology in modern life;
- the ease and speed of dissemination and the potential to go “viral” to a global audience;
- the persistence of information and the difficulty in removing such information; and
- the facility for anonymity.