Crimes (Repeal of Seditious Offences) Amendment Bill

NICKY WAGNER (National) Link to this

National supports the Crimes (Repeal of Seditious Offences) Amendment Bill. We agree that there are good reasons to repeal the law relating to sedition, and the most important is that the law is a threat to the principle of freedom of speech, a principle that New Zealanders quite rightly hold dear. During the debate we have had, we have heard many times that the law on sedition has been used in the past to impose political censorship, to stifle political discussion, and to suppress individual opinion. That is not what we want in New Zealand in 2007.

Or is it? Right now, there are real fears that the Electoral Finance Bill, which is being forced through Parliament by this Government, could deprive us of our right to be heard on political issues. It will do exactly the things we reject with this bill. It will impose political censorship, it will stifle political discussion, and it will suppress individual opinion. New Zealanders do not like political censorship. We believe that individuals should be allowed to have their say, and, quite rightly, we resent new rules and regulations that limit our freedom of speech. The Electoral Finance Bill will do just that.

Labour may try to dress the Electoral Finance Bill up as necessary medicine, but it has not fooled the submitters. Of the over 500 submissions received by the Justice and Electoral Committee on the bill, the vast majority are against it. Many submitters have wanted to present their submissions orally to the committee and have been concerned about rushed agendas and short notices. Many individuals, many organisations, and even the Law Society are concerned that the bill will significantly restrict freedom of speech. The Law Society in its submission pointed out that it felt it had to depart from a longstanding convention of constructive criticism to declare that Labour’s Electoral Finance Bill should be withdrawn. The society said the bill is complex, vague, and makes it dangerous for anyone to participate in elections for fear of unknowingly breaking the law. That is not the sort of law we expect to have in New Zealand.

Even today, speaking to the select committee, the Chief Human Rights Commissioner, Rosslyn Noonan, described the Electoral Finance Bill as flawed.

RON MARK (NZ First) Link to this

Is it not interesting that at a time when are debating an issue as important as this, and not long after the parliamentary prayer, when we agree to put aside all personal interests, the only thing the National Party can do when it comes to discussing such key legislation as the Crimes (Repeal of Seditious Offences) Amendment Bill is to talk about personal interest things such as how it will get money for its next campaign. That is about as hollow as the party has become, and it truly is a sad reflection on what was once a great party led by my late local MP in Pahiatua, Keith Jacka Holyoake. I lament that loss.

The Crimes (Repeal of Seditious Offences) Amendment Bill is, sadly, one of those bills that seems to be lumped in the warm fuzzy basket of things we are going to hug. It has become legislation that could probably be described as fuzzy, meaning nothing, and “touchy-feely”, and it is tragic to see parties such as the National Party and the ACT party support it. We need to take off the rose-tinted glasses and look at what the current legislation is in place for and at what it does, and not get carried away by all the lefties in our midst who say it is outmoded and outdated and needs to be repealed. Right now, at a time in our history when the police are engaged in operations such as they have been engaged in for the last week, one would have thought that the National Party would pinch itself, wake up, and have a bit of a think about this legislation.

Freedom of thought and speech are ultimate legal values. They are quite rightly described as part of the lifeblood of democracy and of political expression. Comment about the Government and Government policy usually enjoys the greatest protection and is often described as being at the core of the right. If the State does not permit the expression of opinions in a lawful framework, however unpopular or objectionable those opinions may be, then the State is empty of moral content and is perceived in terms of force alone. In New Zealand the importance of freedom of speech is recognised in section 14 of the New Zealand Bill of Rights Act, which provides that “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.”

It is indisputable that in order to have a fair and participatory democracy, a wide degree of freedom of expression must be allowed. Even speech that promotes unpopular, unreasonable, distasteful, or dangerous ideas must be allowed. As the Law Commission says, “expressions should not be branded as criminal simply because they involve dissent and political opposition to the Government and authority.” Although our constitutional systems will not work if they are not respected and protected, it is equally true that they will not work unless there is freedom of speech. Therefore, respecting and protecting our constitutional systems, and permitting free speech to the maximum extent possible, are both necessary in order to ensure that the system works properly, and that everyone is prepared and able to engage with it.

However, sometimes the right to freedom of expression comes into conflict with other principles. When that happens, it is essential to bear in mind that the right to freedom of expression is not absolute. The National Party, of all parties we would have thought, should understand that. The New Zealand Bill of Rights Act itself recognises that when it states in section 5 that there may be limits on rights as long as they are “reasonable” and “prescribed by law as can be demonstrably justified in a free and democratic society.” Similarly, the International Covenant on Civil and Political Rights, which New Zealand has ratified, provides that the right to freedom of expression can be limited, if the limitations are “provided by law and are necessary: … For the protection of national security or of public order”.

The first thing we need to think about when we look at the seditious offences is their central function. The central function of the seditious offences is to protect lawful authority. That includes the system of government, the head of State, the justice system, the judiciary, Parliament and its members, and the institution of Parliament itself—in other words, the seditious offences are designed to protect the institutions and processes of democracy and government. It seems that the National Party has forgotten that. Its members would rather make speeches about getting more money for the next election. Generally speaking, seditious offences give that protection by making it illegal to incite or urge the use of violence. We have a Government over there that says that at the top of its law and order agenda is the curbing of violence, but it wants to get rid of this legislation—provisions about violence or force being used against lawful authority; provisions about violence or the use of force against the principles of democracy. Why would anyone want to repeal laws that are there to give us that kind of protection?

The second issue is that the seditious offences represent a common commitment to democratic institutions and lawful authority, a respect for them, and an appreciation of their importance. They do that by recognising that the urging of violence against lawful authority is a different type of crime from that of generally urging violence, because of the importance of the authority that is threatened. Our constitutional system will not function unless we have a common commitment to it, and unless we all accept the importance of the system and institutions. Repealing the seditious offences and leaving the constitutional system protected by only the general criminal law, as the Law Commission has recommended, implies that constitutional systems and institutions are nothing special, and do not deserve any extra protection or recognition. In short, it devalues democracy. It devalues the very freedoms that Nicky Wagner has just been saying she wants.

Well, I am sorry, but New Zealand First says that such a devaluation is not just a theoretical or abstract problem; it fosters an attitude that democratic processes and institutions of government are optional or even irrelevant, which is likely to lead to them being bypassed. If that attitude were to become widespread, it would undermine our constitutional system. The democratic system functions well only if everybody respects it, everybody engages in it, and everybody agrees not to bypass it and pursue change and power through other means. Once that system has begun to be undermined, it becomes more likely that people who want to achieve change and power will resort to other means, instead of taking part in the democratic process. In other words, there is a risk of a downward spiral.

One would have thought, with the unfolding of events right now, that people’s minds would have focused on that. But oh, no, the National Party and its hollow men—and women—focus only on money. I urge them to wake up and to rethink their commitment to the constitutional values this country seeks to uphold—to democracy, to its special nature, and to its need for special protection. Let us not fool ourselves: the central function of the seditious offences legislation is to protect lawful authority. Taking away that protection devalues lawful authority and, therefore, our constitutional system. Democracy also requires the broadest possible range of free speech. The only speech that should be prohibited is speech that intentionally urges violence against lawful authority and that creates an immediate, direct danger of that violence. We have just had a wake-up call, and whatever unfolds as the police progress their case and the justice system works through the happenings in our country right now, we need to rethink.

New Zealand First urges the Government to park this legislation, put it to one side, give us a chance to see how the law and the general criminal laws do and do not work whilst we face the current situation, and rethink. The laws of sedition were put there by our forefathers, our forebears and our grandparents, for a purpose. They have value. New Zealand First supports them. We will oppose this bill.

RUSSELL FAIRBROTHER (Labour) Link to this

I respect my friend Ron Mark considerably, but that speech was an example of tortured logic and sad rhetoric. It is a fact that the law of sedition has been an anomaly on our book for a long, long time, and it has nothing at all to do with the matters earlier this week. The sooner we draw a strong line between those matters and the law of sedition, the better.

When I was a poorly educated country boy studying legal systems as an adult student before the Rt Hon Sir Kenneth Keith—or Professor Kenneth Keith as he was then—40 years ago, he taught me something about the Crimes Act. His words resonate today as I read the document before me. Sir Kenneth Keith said that the law of sedition is the prime example of an attempt to control by law expressions of political ideas and their consequences. That came about in New Zealand because when New Zealand adopted the common law of sedition into its criminal law—when it codified it—over the process in 1893 and 1906 to the final codification in 1961, the common law crime of sedition changed from being the crime of words intending to incite violence to the crime merely of uttering the words.

As a result of that, a number of very important people in this country—and some of the people I look to for political and social value inspiration—have run foul of the law of sedition. I mention first of all, Harry Holland, a former leader of the Labour Party. In 1913 he was charged and imprisoned for, I think, 3½ months for sedition because he urged naval ratings to train their guns not upon the fellow workers who were striking on land but on the moneyed classes whom the workers were striking against. Nine years later, Sir Walter Nash, who was later to become Prime Minister, was also charged and fined for sedition for bringing into the country a pamphlet involving free speech. After he was convicted and fined, he found that very pamphlet in the Parliamentary Library—that is how ridiculous the law of sedition is. And it has gone right down until 2006, when Timothy Selwyn threw an axe through the window of the Prime Minister’s electorate office and then faced charges of sedition. However, the jury, sensibly, discharged him. The jury did not convict him on the charges that related just to political utterances, but it seems to have convicted him on the charge that arose from the damaging of the Prime Minister’s window. So the jury, quite sensibly, limited the working of our present law to words that incite violence.

But do we need a law of sedition these days, particularly as wide as it is in our Crimes Act? Of course we do not. First of all, we do not need it because we have had since 1990 the New Zealand Bill of Rights Act. Section 14 of the Act guarantees everybody the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind, in any form. That is an absolute right, which, as my friend Mr Chauvel reminded me, National voted against. That is a fundamental freedom in this country, and it is a freedom that we all grow up understanding to be our very own. No longer is it a crime in New Zealand to defame someone; it is a civil wrong but it is no longer a crime. Criminal defamation has been removed from our statute book. The New Zealand Bill of Rights Act guarantees freedom of expression, so having a crime on the statute book that makes it unlawful to express ideas that are against the Government—or against other authorities, but particularly against the Government—is an anomaly whose time to be removed has come.

I will look briefly at the situation we have this week, because it was raised by Ron Mark in his speech. It has been an appalling instance of cloudy, emotional rhetoric from politicians, from the media, and even, I suspect, from people close to the police. I heard nothing more appalling than a speech made by Derek Fox—a man I respect greatly—on Radio New Zealand National this morning at about 11 o’clock. He came on ostensibly to speak about Māori sovereignty, but he instead expressed his anger and frustration at the police searching houses and arresting people. He went so far as to say that one of the people arrested was a 64-year-old grandfather who had never committed a crime in his life and was locked up as a result of this search but was innocent. What Derek Fox does not know is whether that man is innocent or guilty. That is for the court to decide. When emotion and rhetoric become as rampant as that and are aired on Radio New Zealand National, a lot of people have to take stock of themselves. The removal of the sedition laws may make it more clear what the offences really are.

While Ron Mark was speaking I looked at the Terrorism Suppression Act 2002. The definition of terrorism is dealt with in section 5. I mention it here because it is relevant to the difference between sedition and terrorism. Terrorism is defined in several ways, but the key one that is relevant to the matters this week and to the abolition of these sections of the Crimes Act is that terrorism is an act with an intent to cause an outcome, and the intent that is relevant is to induce terror in a civilian population.

Well, terror is not defined in the legislation, but the dictionary defines terror as “serious panic”. But that is not enough for a conviction under the Terrorism Suppression Act 2002; it must also be accompanied by the intent to cause an outcome. An outcome is such a thing as the death of another person; serious bodily injury to one or more persons; a serious risk to the health or safety of a population; the destruction of, or serious damage to, property—not just any property but property of great value or importance—or major economic loss or major environmental damage. So those are the outcomes. The other outcomes that are relevant are a serious interference with, or disruption to, an infrastructure facility, if it is likely to endanger human life. There is also a definition relating to the release of disease-bearing organisms.

So terrorism in our Terrorism Suppression Act 2002 is really a development of the common law that came to New Zealand and existed before 1893, until the attempts to codify it resulted in the watered-down version of the 1961 Crimes Act, which has caused so much difficulty in New Zealand, including for Timothy Selwyn in 2006. I dare say, in relation to the Selwyn case, that he would never have been prosecuted under the sedition provisions, except he went to court on a raft of offences, which surely attracted a desire by the police to cover the field. These offences included offences under the inland revenue Act and similar dishonesty offences, which interestingly, he pleaded guilty to, and he defended the sedition charges, being convicted on just the one charge.

So what we have before us today is a move that was anticipated for 40 years by Sir Kenneth Keith, one of our most eminent jurists, who is presently serving on the International Court of Justice, having served on the Court of Appeal and then as one of the inaugural justices of our Supreme Court. He is a leading academic, an international lawyer, a great writer, and a very, very humble human being. In 1968 he said that the law of sedition was otiose, that it achieved nothing, and that it stifled free speech in New Zealand. It is surprising, in fact, that when the New Zealand Bill of Rights Act was passed in 1990 and section 14 became part of it, there was not an amendment to remove the law of sedition from our statute book. But perhaps our political maturity takes time to manifest itself, and in today’s climate, where terrorism is a real fear, sedition is an old concept that has no place on the statute book. Instead of a sedition law, we have the Terrorism Suppression Act 2002, and I have already dealt with the definition that relates thereto.

I want to close my speech today by referring to subsection (5) of section 5 of the Terrorism Suppression Act. Subsection (5) states: “To avoid doubt, the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that the person—(a) is carrying out an act for a purpose, or with an intention, specified in subsection (2);”. So what it says is that the very crime of sedition is not sufficient to establish an act of terrorism, and our Terrorism Suppression Act 2002 takes us back to a modern version of the common law before we proceeded to codify it in this country. This bill is long overdue, and I commend its passing to the House.

CHARLES CHAUVEL (Labour) Link to this

As a member of the Justice and Electoral Committee, I am pleased to follow my friend and colleague in the law and in the Labour caucus Russell Fairbrother to speak in the second reading debate of the Crimes (Repeal of Seditious Offences) Amendment Bill—not the “Seditious Officers Bill”, as Ms Wagner seemed to think it was called.

This bill is the latest in a long series of Law Commission recommendations to be progressed through the legislative process by this Government. I did a count while I was considering what remarks I might make today. As far as I can tell it is the 14th report to be progressed by this Government legislatively or on the basis of publicly announced executive consideration.

The 20th anniversary of the Law Commission conference last year drew to the attention of politicians, the academic world, and the public the somewhat unfortunate logjam that had built up in New Zealand—as it has built up in the United Kingdom and Australia—of unimplemented Law Commission reports. In case members are interested, the other 13 reports the Law Commission has put up to the Government that are either under active consideration or likely to be implemented legislatively relate to access to court records; Waka Umanga; the Limitation Act; minority buy-outs; costs in criminal cases; problems in the law of trusts; wills; succession homicide; arbitration amendment; property law; damages; interest on money claims; sentencing guidelines and parole reform; and customs.

As I pointed out in previous remarks to the House this month on other bills being progressed as a result of Law Commission recommendations, this is a remarkable record of progress on the part of the Minister responsible for the Law Commission, the Hon Mark Burton. I would just like to record my appreciation of the Minister’s vigorous record of progressing Law Commission reports. It is an unparalleled record in our history. The dispassionate consideration and implementation of these reports, in my view, is an important aspect of the practical observance of the rule of law. I just repeat my commendation of the Government’s record on this score.

It is interesting to note that the progress of this bill represents one of the swiftest examples to date of the implementation of a Law Commission report. The commission formulated its terms of reference under section 16 of the Law Commission Act on 16 October 2006, and its report was transmitted to the Minister just some 4 months later on 12 March 2007. The bill was introduced just under a further 3 months later, on 8 June 2007. It was read a first time on 19 June and referred to the Justice and Electoral Committee, where submissions were heard and a report back to the House produced on 24 August.

It is now my hope that in future we will see similar expeditious progress on uncontroversial Law Commission recommendations, under the procedures for dealing with Law Commission reports that were announced by the Prime Minister on 24 July at an event to mark the publication of the 20th anniversary papers, to which I referred in more detail in previous remarks.

It is good to note from previous speeches by members that there does appear generally to be multiparty support for the repeal of this archaic legislation, although I note with concern Mr Mark’s apparent withdrawal of support for the legislation. Notwithstanding Nicky Wagner’s speech against the bill, I am encouraged that it appears that the National Party still supports its repeal.

In my respectful view, though, it is a shame that there has been some pettiness and inaccuracy in some of the contributions made on this legislation in the House. I would like to deal with one or two of those contributions. The first is a matter that deals with evidence that came before the Justice and Electoral Committee—specifically that of the New Zealand Police. In total, we heard from five of the 17 submitters who made submissions before the committee. Of those five oral submitters, only two did not favour the bill in its present form. We asked to hear from the New Zealand Police on its use in practice of sections 81 to 85 of the principal Act. The police came before us and gave very fulsome evidence—in my view—on the sections in question.

They said the sections were very rarely relied upon in practice and, as a consequence, because of the rarity of their use, there are no specific guidelines on their application. That really helped—certainly in my mind and I think in the minds of others on the committee—to confirm that the Law Commission was absolutely correct to recommend the repeal of those sections. These comments might help Mr Mark because, as the Law Commission report points out, all the elements of the applicable law in respect of the sedition offences clearly are able to be covered by other offences that will, and do, remain on the statute book.

In my view there is an unhealthy trend, as Mr Fairbrother said, in New Zealand politics for some politicians to suggest that there is some political motivation on the part of the police in their decisions in individual cases as to whether to bring prosecutions. I know that this is an absolutely despicable and untrue allegation. I asked the police when they came before the select committee to confirm that they act in decisions to prosecute in respect of sedition as they do in respect of all other matters—with complete political independence. I am very glad to note that the committee recorded that evidence in its report. The House should note it for the record, as well. Politicians who bandy about suggestions to the contrary should be ashamed of themselves. In making that suggestion for short-term political gain, they denigrate the integrity of the New Zealand Police and the excellent work it does, and whether or not they realise it they also denigrate themselves in this House.

The second matter I want to speak on in this debate is the linkage that has been made in the minds of some between this legislation and the matter of certain arrests that have occurred this week. We have already heard some discussion of that imagined link in the debate today. In reality, there is no link between the two matters. We know from public statements by the Commissioner of Police, on the one hand, and by Ministers, on the other, that the police are acting, as they always do, on the basis of evidence they believe is sound.

Under certain circumstances, in respect of those arrests, the Solicitor-General will also need to be satisfied that evidence is sound if charges are to be laid under the Terrorism Suppression Act, which Mr Fairbrother adverted to. But in either case, the courts will make the final decision. It is not, and never should be, for members of this House, whether in the Chamber, in press statements, or on Morning Report, to start thinking they can decide what the actual facts are.

In my view, it will be seen in due course what evidence the police have and what the courts make of that evidence; members should not be rushing to any form of judgment. If there are concerns about the way in which the police have conducted themselves, then, of course, members of the public will have the ability to have recourse to the Police Complaints Authority. The processes for that are well-laid-out.

New Zealand stands for the right to peaceful protest, and the repeal of this legislation is confirmation of that. Indeed, as Mr Fairbrother pointed out, many within Labour have engaged in peaceful protest in the past, and it is quite right that such activity should not be punishable by the law. As Mr Fairbrother said, the Terrorism Suppression Act is quite specific about that matter. But in respect of the events of this week, as with arrests and potential prosecution under this or other legislation, members should surely refrain from making extravagant comments, in order to avoid potential embarrassment in the future. Thank you, Mr Deputy Speaker.