Hon MARK BURTON (Minister of Justice) Link to this
I move, That the Crimes (Repeal of Seditious Offences) Amendment Bill be now read a first time. It is my intention to move that the bill be referred to the Justice and Electoral Committee.
Seditious offences in New Zealand are contained in sections 81 to 85 of the Crimes Act 1961. The offences cover making or publishing a statement that expresses a seditious intention, conspiring with a seditious intention, and using apparatus for making seditious documents or statements. The offences hinge on there being a seditious intention. That is defined extremely broadly in the Crimes Act. It is an intention to: “(a) bring into hatred or contempt, or to excite disaffection against, Her Majesty, or the Government of New Zealand, or the administration of justice; or (b) to incite the public or any persons or class of persons to attempt to procure otherwise than by lawful means the alteration of any matter affecting the Constitution, laws, or Government of New Zealand; or (c) to incite, procure, or encourage violence, lawlessness, or disorder; or (d) to incite, procure, or encourage the commission of any offence that is prejudicial to the public safety or to the maintenance of public order; or (e) to excite such hostility or ill will between different classes of persons as may endanger the public safety.”
In July 2006, I say with some relief, the Law Commission was asked to review the seditious offences in the Act and to make any recommendations for reform that were deemed necessary or desirable. The Law Commission, in its very thorough report reforming the law of sedition, concludes that seditious offences are overly broad and uncertain. I would like to take this opportunity to thank the Law Commission for its comprehensive report and to note that the compelling arguments put forward in the report have already attracted, deservedly, wide support. The Government has considered the Law Commission’s report, and has tabled its response when this bill was introduced. This bill is part of that response, and it will repeal and not replace sections 81 to 85 of the Act, which set out, as I mentioned earlier, the seditious offences.
The Government agrees with the Law Commission’s finding that the present law of sedition attacks the democratic value of free speech, for no adequate public reason. In addition to the sedition laws being broad and uncertain, the meaning of sedition has changed over time. The provisions infringe on the principle of freedom of expression and have the potential for abuse. Specifically, the present law falls foul of the New Zealand Bill of Rights Act 1990. Behaviour covered by the sedition laws that still needs to be criminalised can be more appropriately dealt with by other provisions of the criminal law. Offences relevant to sedition are dealt with in other statutes, including the Summary Offences Act, other provisions of the Crimes Act, and the Terrorism Suppression Act.
Accordingly, I commend this bill to the House.
CHRISTOPHER FINLAYSON (National) Link to this
National supports this bill’s referral to a select committee. I am delighted to hear that it will come to the Justice and Electoral Committee, chaired by the very diligent and hard-working member for Waitakere. This bill is a very interesting one, and I certainly look forward to working on the legislation. I too commend the Law Commission for its report. It is both very interesting and very readable. I want to say a number of things about sedition and some of the more interesting cases about sedition in this country over the last few years.
The word “sedition” comes from the Latin “seditio”, and in Roman times that meant an insurrectionary separation, either political or military, civil discord, insurrection, and mutiny, and it has been in English law for many hundreds of years. For example, the English Statute of Treasons in 1351 defined many types of offences against the king as treasonable, and in 1447 the courts held that to prognosticate or predict the king’s death using magic was treason. As one would expect, in the reign of Henry VIII the definition of treason was greatly expanded, and an Act in 1534 declared that it was treason to act or write anything to the prejudice, slander, or disturbance of the king’s marriage to Anne Boleyn. Thankfully, by the 19th century there was a more liberal and democratic political environment in England and a changed view of the rights of citizens to express free criticism of the Government. However, even in England today sedition is still a common law offence, and, indeed, in recent times the High Court of that country has confirmed that the law still applies to views expressed with a seditious intention.
In New Zealand the law has been with us for many years—indeed since the Criminal Code Act of 1893, although, of course, when we became a colony we inherited British common law. The law on sedition was again set out in the Crimes Act of 1908, and I will not go through that now. In 1951 sedition also became an offence under the Police Offences Amendment Act. It was punishable on summary conviction by a term of imprisonment of up to 3 months—and, of course, that coincided with the 1951 waterfront strike.
It is important, in a speech such as this, to recount some of the interesting prosecutions. Probably the most obnoxious case was that brought by the Crown against Te Whiti. As we all know because we debated the Ngāti Mutunga claims settlement legislation last year, Te Whiti had established a movement for Māori peace and development at Parihaka, and led a campaign of passive and peaceful resistance to Māori land confiscations. The following words got him into trouble: “This is the chief quarrel of this generation. … Mine is the land from the beginning. I say to all Kings, Governors, Prophets and wise men stand up with your weapons to-day, but the land will not be released.” For that, he was punished in a most horrendous manner.
Interestingly, the history of sedition in the 20th century is really the history of the Labour Party. In 1913 Harry Holland, who is buried not far from here in the Bolton Street cemetery, made a speech at a strike of waterfront workers in Wellington. He said: “The railway men should not carry free labourers. Let the trains rot and rust.”—in fact, that sounds rather like Fay Richwhite when it ran the railways—“The strike was not made by the working classes, but by the master classes, who are pouring their armed hundreds into Wellington”. For that, he was convicted and he served 3½ months of the 12 months’ sentence originally imposed on him.
During World War I sedition charges were laid against Bob Semple, a former member for Wellington East; James Thorn, who was Peter Fraser’s biographer; and Peter Fraser himself, for speeches made in relation to their opposition to conscription under the Military Service Act. Later on, in 1917, a gentleman by the name of Hubert Armstrong, who was a miner and later a Minister in the first Labour Government, was prosecuted for an anti-conscription speech. In 1921 former Prime Minister Walter Nash was charged with bringing into New Zealand a document entitled The Communist Programme of World Revolution and a communist pamphlet, both of which were said to encourage lawlessness. He was fined ₤5. Incredibly, the same pamphlet was later discovered in the Parliamentary Library.
One of the more interesting cases was in 1922, when the Roman Catholic Bishop of Auckland, Bishop Liston, was charged with sedition for inciting disaffection against His Majesty and for promoting hostility between different classes of subjects when he spoke at a St Patrick’s Day gathering in Auckland and commemorated those who died for a free Ireland in 1916 when shot or murdered by foreign troops. He was tried but was acquitted, because he had recounted what was essentially historical fact. I always thought that Prime Minister Massey and Attorney-General Francis Dillon Bell were behind the prosecution of Bishop Liston, but if one reads the excellent text by Nicholas Reid published last year, one finds it suggests that that is not so, and in fact, that the prosecution was incited by the New Zealand Herald, which, of course, would be one of the parties that today would be very much in favour of the law against sedition going, and also by the former Mayor of Auckland. Interestingly, as an aside—given the events of the last week—at his trial, his Lordship was represented by Mr P J O’Regan of that great firm now known as O’Regan Arndt Peters and Young, one of whose partners today is Garry Evans, who has been such a distinguished coroner in Wellington and who has been treated so shabbily in recent days by the Attorney-General, which is what one expects from that miserable soul.
So in the past, sedition charges were brought against Māori, Labour Party MPs and supporters, and Catholics. But then, in 2006, there was a very sinister development, because in that year Tim Selwyn of Auckland was prosecuted for sedition—among other charges—following emails that called for militant action against the Government’s foreshore and seabed legislation, an attack with an axe that broke the glass of the Prime Minister’s electorate office window, and the publication of two sets of pamphlets. The jury found the accused guilty, and he was sentenced to prison. In essence, he was charged with sedition because he had offended the person of the Prime Minister, and that really is a very sinister development.
That is why I maintain the House needs to review this legislation—because who will be next? I am surprised, for example, that in 2003 the MP for Taranaki - King Country was not prosecuted for sedition for driving Myrtle up the steps of Parliament, an action described by Speaker Hunt as “a serious assault on the institution of Parliament”. One would have thought poor old Shane Ardern was Guy Fawkes. Will the Minister of Defence be prosecuted for sedition when he challenges the Prime Minister for the leadership of the Labour Party? In the dying days of this horrible Government, anyone who dissents is at risk. These are dangerous and oppressive times to be a New Zealander, so let us get this legislation to the select committee before the Government changes its mind and realises what a wonderful instrument the law against sedition is for torturing anyone who dissents.
National will support the first reading of this bill and its referral to the select committee, which I am delighted to see will be the Justice and Electoral Committee. I can see a look of delight on the face of the member for Waitakere, because she, of course, chairs it. We are all very keen to have this issue carefully addressed. As I say, the sooner the bill gets to the select committee the better it will be, because I am scared of what this Government is capable of doing in the dying days of that wretched, horrible lot. The sooner we get this legislation enacted, the better it will be.
LYNNE PILLAY (Labour—Waitakere) Link to this
It is a pleasure to speak in support of this Crimes (Repeal of Seditious Offences) Amendment Bill. Like Mr Finlayson, I will be delighted when it comes to the hard-working Justice and Electoral Committee for scrutiny.
The essence of the seditious offences outlined in the Crimes Act 1961 is the making or publishing of a statement with a seditious intent. But a seditious intention can range from inciting disaffection against the Queen or the New Zealand Government, to inciting lawlessness generally, or to inciting “ill will between different classes of people as may endanger the public safety.” I commend the Law Commission for the good work it did in October 2006 on its consultation document on reforming the law of sedition. It then published its report, which advocated repeal of sedition law; it came through in March 2007. This Labour-led Government agrees—as do, I believe, all parties—with the recommendation and sentiments of the Law Commission’s report.
The heart of the case against having the offence of sedition lies in the protection of freedom of expression, particularly of political expression and its place in our democracy. People may hold and express strong and dissenting views, and, in fact, they do. Those views may be both unpopular and unreasonable. But such expressions should not be branded as criminal simply because they involve political opposition to the Government and authority. Where the protection of public order or the preservation of the constitution of the Government are at stake, other, much more appropriate criminal offences can be used to prosecute such offending behaviour. The offence of sedition, as it stands now, infringes on the principle of freedom of expression, and it has the potential for abuse—a potential that has been realised in some periods of our history, which other speakers will outline, when it has been used to stifle or punish political speech. In our democracy, which we hold dear, where the people govern themselves, it is hard—in fact, impossible—to see how or why speech uttered against the Government should be a crime. That should not be the case in a country that values, as we do, free speech, and that values the ability of people to have their political views and speak them very freely.
I am very pleased to stand in support of this bill, and I commend it to the House.
Dr RICHARD WORTH (National) Link to this
We have just heard a splendid speech from Mr Finlayson, and I would like to add to some of his comments.
I shall start by indicating that National of course supports the passage of this Crimes (Repeal of Seditious Offences) Amendment Bill to the Justice and Electoral Committee. As Mr Finlayson said, the offence of sedition has an ancient and unsatisfactory history. That was certainly the view that the Law Commission took, because it stated in its report, which calls for the abolition of the offence, that it was appropriate that it be removed from the statute book. There is nothing very complicated about this legislation. It covers only a few short pages and simply repeals a small chunk of the Crimes Act.
One of the things the commission did say was that the law of sedition had “virtually fallen into disuse in almost all countries with which New Zealand compares itself.” It had fallen into disuse here until 2006, when, as Mr Finlayson has reminded us, Timothy Selwyn was prosecuted, and I might come back to that in a moment if there is time. That case certainly demonstrated that there was a clear case to review the existence of that particular crime on our statute book.
In the foreword to the report of the Law Commission, Sir Geoffrey Palmer said that most people probably associated the word “sedition” with revolutionary statements encouraging revolt, insurrection, and public riot against lawful authority. The reality is, though, that in New Zealand the sedition offences in the Crimes Act 1961 are a great deal wider than that. A seditious intention can range from exciting disaffection against the Queen or the New Zealand Government, to inciting lawlessness generally, or to exciting “ill will between different classes of people as may endanger the public safety.” I think that is why Sir Geoffrey said that the commission had concluded that the width of the offences meant they were an unjustifiable breach of the right of freedom of expression, and, to use his phrase, “linguistic over-inclusiveness” of sedition meant that the offences lacked clarity.
So we have a situation where there is quite clearly, as Mr Finlayson said, the potential for misuse. We can, as a matter of history, look back at what has occurred in New Zealand to see circumstances where the offence-creating provisions have been inappropriately used in times of political unrest, and where perceived threats to established authority have been considered to prompt the intervention of these particular criminal offences. They have been used to fetter vehement and unpopular speech. I support those who would argue that the time has come to remove the sedition offences from the New Zealand statute book.
In a free and democratic society, defaming the Government is the right of every citizen. In times beset with threats of terrorism, we should not close the open society. To do that would only encourage its enemies. In New Zealand, free speech and public debate must be uninhibited, robust, and wide open, and may include vehement, caustic, and sometimes unpleasantly sharp attacks on the Government and public officials, as Justice Brennan of the United States Supreme Court once put it.
Others have said, and it is right to say this, that the provisions of sections 81 to 85 of the Crimes Act, concerning sedition, fall foul of the New Zealand Bill of Rights Act 1990. Mr Finlayson has helpfully indicated to us how the term “sedition” was derived from the Latin word. No finer person could give us that explanation, given the work he has done under the Pope’s Latinist, in the very heart of the Catholic Church, in Rome.
He also spoke about the English Statute of Treasons 1351, which defined many types of offences against the King as treasonable, and was increasingly invoked in ever-widening circumstances to prosecute people who spoke or wrote in opposition to the King, the Government, people in positions of authority, or public institutions.
Of course, we inherited the British common law on sedition. It was codified in the criminal code of 1893, and set out again, with varied wording, in the Crimes Act 1908—when that massive consolidation of statutes occurred—the Police Offences Amendment Act 1951, and now in the Crimes Act 1961.
During World War I, regulations forbade anyone having or distributing documents that expressed any seditious intention. Prison terms for sedition, some with hard labour, were imposed on six men, including, as Mr Finlayson has said, Peter Fraser and Bob Semple—who were Prime Minister and Minister of Works respectively in the first Labour Government—for their opposition to conscription during the war.
Real Labour Party people, as Mr Finlayson said. He gave a number of examples. I will not repeat them, but he did speak about the Reverend James Chapple. He spoke about another Prime Minister to be, Walter Nash. He might have spoken about Edward Hunter, who, speaking on behalf of striking miners in 1913, said: “If they”—meaning the establishment—“want a revolution, they can have it. If they force it on us, they can have a revolution.” He was convicted of uttering seditious words and sentenced to 12 months’ probation. Then, of course, in 1922 the Catholic Bishop of Auckland, James Liston, was charged with sedition, He was discharged by a jury after a hearing in the then Supreme Court.
There have been others. The Māori leaders Te Whiti o Rongomai and Tohu Kākahi were charged with sedition as a consequence of their opposition to 19th century land confiscations by the colonial Government. After four days of hearing, the trial was postponed and it was never resumed. The Crown prosecutors concluded that their case was weak, and reports of the 1881 meeting at which seditious statements were allegedly made were garbled. However, both men were detained for a lengthy period under the West Coast Peace Preservation Act 1882, an Act that provided that neither man should be tried for the offence with which he had been charged, but that allowed both men to be detained indefinitely, as the Government thought fit.
Then there was the clash in 1916 between the Tūhoe followers of the prophet Rua Kēnana and the police. Rua was arrested and prosecuted for sedition. There was conflicting evidence over what Rua had said, and he was acquitted on the sedition charge but found guilty of resisting arrest.
After that substantial lapse of time we come to 2006, when Tim Selwyn faced a number of charges, including sedition, after sending emails calling for militant action against the Government’s foreshore and seabed legislation, smashing the Prime Minister’s electoral office window, and publishing two sets of pamphlets. He was sentenced to 15 months’ imprisonment for an unrelated, fraud-related offence, with a cumulative sentence of 2 months for criminal damage, conspiracy, and publishing a seditious statement.
We have seen, in some of the examples that Mr Finlayson and myself have given in the short comments we have made, examples of attempts to control debate, of attempts to challenge expression of political ideas and their consequences, by law. The breadth of the definition of seditious intention means that seditious offences can be used to punish political speech that is, essentially, against Government policy, and not simply used to prevent violence. It raises the real possibility of use of the sedition provisions in breach of freedom of expression.
I have made some brief comments about the content of the bill. It is only 6 clauses long. It has a title clause and a commencement provision, then has two parts.
RON MARK (NZ First) Link to this
There are 5 minutes to go, and let us see whether we cannot make this brief. Members have just heard two of the members of the House who are most highly regarded for their legal backgrounds read their speeches directly out of the Auckland District Law Society issue No. 20. There was nothing original. It was all written by someone else, and it was read out, virtually word for word, by Chris Finlayson and the doctor—Dr Richard Worth.
Well, we will take the Hansard of the two members and compare them line by line, paragraph by paragraph. At least Christopher Finlayson varied from the paragraph by paragraph summation from the Auckland District Law Society—some originality was injected. But Dr Worth? My golly, what are we paying him for? Is it to come to this House and read out someone else’s work? Where is the originality, where is the passion, and where is the knowledge? What we simply have is a lazy man who is well known for going to Cairo and riding camels when he should be attending veterans’ day parades at El Alamein. That is what we have in Dr Worth.
Who the heck are any of them to talk? Talk about punishing people for freedom of speech! Those members should talk to me about Brian Connell. National members should talk to me when they get on their high horses and espouse these principles about protecting democracy and freedom of speech. They should talk to me about Brian Connell. Brian Connell did nothing more than ask an honest question of a dishonest man, and he got an honest answer. Every National Party man who sits in these seats today enjoying National’s rise in the polls gets that on the back of Brian Connell—let there be no mistake. But where is he? He is out in the wilderness. He has been banished for ever. He is in isolation—dismissed from his party and dismissed from his caucus because he dared to question the leader. Chris Finlayson and Dr Worth should not come into this House—
Nathan GuyI expect more from the whip Nathan Guy. He is from the Manawatū. He is a renowned rugby player. He is a man who is talked highly of for his integrity. I tell Nathan not to sit there and spoil his reputation by defending that. That is an abomination on democracy. That is the worst example of how to treat someone who is “seditious” that I have ever seen in my 11—coming up to 12—years in this House. It is surpassed only by the way National dealt with one other man who was deemed to be seditious—Winston Peters. We know the reality of the National Party. That team can talk it up big over there, but their track record stinks—stinks! New Zealand First will say this. We are suspicious of the Crimes (Repeal of Seditious Offences) Amendment Bill. We have yet to be convinced that there is a need for it. We know what has happened in the UK with mullahs and clerics and Muslims inciting sedition through seditious preaching. We need to be convinced that the laws as they exist are capable of dealing with those issues, so we will wait and see.
We will vote for this legislation to go to a select committee, but we give no guarantees. Indeed, here is the great irony. Every example given by the Auckland District Law Society and parroted by the previous two National speakers actually says that those people were charged for inciting violence, rioting, and threatening death. The only exception is the Māori people who are mentioned in here, and they did not get sentenced; the court case did not resume. The Government of the day used other legislation—not this legislation—to improperly imprison Te Whiti Orongomai and Tohu Kakahi. It was not this legislation that did it; it was other legislation. To misrepresent the facts in such a way only reinforces, I guess, National members’ interesting comments. One must consider this when one looks at how they have treated Brian Connell—the seditious MP from Rakaia.