6.58In researching the scandalising contempt, the Commission has become aware of a number of unsavoury websites containing offensive material about judges. In many cases, these can be written off as emotional outbursts from unsuccessful litigants or ignorance. However, some sites take on a more menacing tone by appearing to be official or including photographs and personal details of judges, their children and grandchildren. On one site, there is even a photograph of the gravestone of a particular Judge’s parents.
6.60The Commission does not think that comment is applicable to New Zealand in 2014, which is one of the most stable democracies in the world and appears to have a justice system that is, by and large, respected by the population.
The scandalising jurisdiction seems a relic of an age where kingly rule dictated some forms of offence: it is outdated in an era when the only type of sovereignty which informs the content of laws is the democratic sovereignty of the populace.
6.62The Commission’s preliminary view is that retention of the common law offence of scandalising is untenable in light of the freedom of expression issues outlined in Chapter 2, the rule of law concerns also discussed in that chapter and the views of modern New Zealand society. The question then becomes whether the contempt should be replaced with a statutory offence of some kind, for example, an offence of publication of material imputing improper or corrupt judicial conduct, which, having regard to the nature of the statement, the status of the person making the statement and the likely audience, creates a real risk of impairing confidence in the administration of justice. There could be a defence to such an offence if the allegations were true or publication was for the public benefit. The defence might ensure the offence was compliant with the Bill of Rights Act. One problem, however, with enacting an offence with a defence of truth and public interest is that it would effectively put the judge on trial and subject the judge’s conduct to scrutiny outside the statutory process for dealing with complaints about the judiciary. On the other hand, how could truth not be a defence? We discuss our general approach to offences in Chapter 8.
6.63It is important to consider what remedies would be available in situations where judges are unfairly subjected to vitriolic criticism or threatening behaviour if the common law offence of scandalising were abolished.
6.64First, what other criminal offences might apply? It should not be forgotten that there already exist a number of relevant statutory offences, particularly in respect of acts at the most serious end of the contempt spectrum. Examples of relevant offences include:
6.65A civil defamation action is another obvious remedy, but this would involve judges leading evidence and being cross-examined. If successful, a defamation claim would only compensate for the damage done to the judge’s personal reputation. It would not address the damage to the reputation of the administration of justice. Defamation actions are expensive, and it is necessary to consider whether such an action should be financed by the public purse if the relevant damage is to the public’s confidence in the judicial system.
6.66An action under the Harassment Act may also be possible, depending on the nature of the abuse, but this, too, would not address the potential damage to the justice system itself.
6.67A frequently cited argument in favour of retaining the offence of scandalising in some form is that judges, by the nature of their position, have fewer options to deal with the abuse they are subject to than other holders of public office or members of the public.
6.68By convention, judges are unable to speak out in public to defend themselves or their judgments. A judgment must speak for itself. Further, a judge’s position makes an impartial trial of a defamation or harassment claim difficult.
[R]ecommends the appointment of judges and has an important role in defending the judiciary by answering improper and unfair public criticism, and discouraging ministerial colleagues from criticising judges and their decisions.
6.70However, the Attorney-General is also a member of the executive, so it may be more appropriate for the relevant Head of Bench to provide comment and support in situations where judges have been defamed.
The relative infrequency of recent authorities on “scandalising” in this country not only renders precise elaboration of the law in modern times difficult, but it might also suggest that sometimes the best way to deal with extravagant criticism is to ignore it.
6.72Unless one of the offences discussed applied, abolition of the scandalising offence would currently leave only civil defamation or harassment proceedings available to a judge who has been the subject of abuse. This is going to change, however.
6.76In performing functions under the Act, the Approved Agency and the courts must take these principles into account and act consistently with the Bill of Rights Act.
6.78The Harassment Act 1997 will also be amended to provide that giving offensive material to a person by placing the material in any electronic media where it is likely it will be viewed by or brought to the attention of that person is a specified act of harassment in section 4 of that Act.
6.79The Commission considers the new regime for dealing with harmful digital communications through take-down orders and an offence of failing to comply with a take-down order together with the current criminal offences for extreme behaviour could provide sufficient protections for the judiciary, although this would not address any harm to the justice system itself. That harm would be extremely difficult to gauge, however. In the case of judges, the Commission considers a Crown solicitor, in the name of the Solicitor-General, should be able to make the complaint and act on behalf of a judge.
6.80The Bill does not indicate whether there is to be one Approved Agency or several. If there is to be more than one, for situations involving judges, the Commission is of the preliminary view that one Approved Agency could be the Judicial Conduct Commissioner. However, that office would need additional funding to undertake this extra role.
6.81The Judicial Conduct Commissioner is well placed to carry out the functions of an Approved Agency in respect of complaints by judges about digital communications affecting them, as it already investigates complaints about judges, and any serious complaint about a judge will likely ultimately end up being considered by that office. Acting as an Approved Agency would therefore complement the role of the Judicial Conduct Commissioner.
Q16 Do you agree the common law contempt of scandalising should be abolished by statute?
Q17 Do you agree that, when passed, the Harmful Digital Communications Bill together with other existing remedies will provide sufficient protection for the judiciary?
Q18 If the common law offence of scandalising were abolished, should a new statutory offence replace it? If so, what should be the nature of that offence?