Integrity of justice vs freedom of speech

A newly-drawn member’s bill would introduce heavy fines for jurors and strengthen protection for judges against defamatory comments. But could it infringe on the public’s right to free speech? Shane Cowlishaw reports.

The challenge of reshaping the law of contempt will likely be taken on by the Government after the drawing of an opposition member’s bill on the issue.

Former Attorney-General Chris Finlayson’s Administration of Justice (Reform of Contempt of Court) Bill proposes a raft of measures that would not only tidy up the area of law but introduce heavy fines for breaches.

It follows the release of a Law Commission report on the subject last year and a decade of work by Finlayson, who is eager to see the work continue despite his ousting from government.

There have been plenty of high-profile examples of defamation cases in recent years.

National MP Nick Smith was famously fined $5000 for critical comments on a Family Court case, while a classic case of freedom of expression versus the right to a fair trial unfolded in 2008 when The Dominion Post was taken to court for publishing details of the Urewera raids.

Currently, New Zealand’s contempt law is a hodge-podge of statutory law and common law, leaving plenty of grey areas about what exactly constitutes contempt in today’s digital world.

Finlayson’s bill would see that pulled together under a new act and adopts many of the commission’s 68 recommendations, notably:

* the introduction of a new offence of publishing a false allegation against the judiciary, punishable by up to two years’ jail or a $50,000 fine;

* a $25,000 fine or six months’ jail for offences such as publishing prejudicial information, or researching cases while serving as a juror;

* court powers to order a website or individual to remove content; and

* a clear list of factors to determine whether publication creates a risk to the right to a fair trial.

Speaking to Newsroom, Finlayson said he had begun work on the issue of contempt when he first became Attorney-General but had struck resistance from the public sector.

“It’s something I feel very passionate about and I don’t want the Ministry of Justice to sit on their hands and do nothing about it … I’ve faced nothing but obstruction from the Ministry of Justice for the last ten years.”

His aim with the bill was to keep the conversation going as he believes the current law is ill-equipped to deal with the digital age.

Problems such as jurors googling and people tweeting suppressed information from the public gallery needed to be addressed, with criticism and abuse of the judiciary posted online that went too far, Finlayson said.

He dismissed suggestions that his bill could inhibit freedom of speech.

“What I’m not seeking to do is shut down people from expressing options and freedom of speech but to make sure that the administration of justice is not undermined because if these cases are aborted because someone’s done something silly it’s delayed the system and results in enormous expense. It undermines the fabric of justice.”

Bill ‘goes too far’

Changing the contempt law is a grunty piece of work and will require the Government to adopt it so it can be properly resourced.

Justice Minister Andrew Little said that was likely to happen, although he was yet to discuss the matter with cabinet.

He said he had spoken to Finlayson about the work and agreed the area needs tidying up, but was concerned the bill was too extreme in its current form.

“I think where I differ from Chris is I think there are some of the recommendations the Law Commission has made [which] go too far, I think the criminalisation of jurors doing the wrong thing is problematic.”

Little is also concerned about getting the balance right between freedom of speech and the need to protect the integrity of the justice system, something he’s not convinced is right in the current bill.

It was important the public had the right to criticise judges and have a debate, but figuring out where that tipped over into something that was contemptuous of the court system was a difficult line to find.

“I get concerned about more and more legislation that encroaches on freedom of speech, we’re having that in relation to what we do to beef up hate speech laws and those sort of things.

"This is a very fraught area, we do not want to be infringing on the rights to freedom of expression and I would rather take a bit of time to get the balance right.”

Professor Ursula Cheer, dean of law at Canterbury University, agreed it was a delicate area and said she did not believe it was necessary to stop people from criticising judges who could take a defamation case if they wanted to.

There were measures to protect freedom of speech in the bill, however, such as the two-pronged need for a statement to be false and to be a real risk of undermining the independence, integrity, or impartiality of the judiciary.

The requirement for a judge to interpret any legislation through the lens of the Bill of Rights also meant there was protection for areas such as humour or satire, she said.

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