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Reforming the Law of Sedition E3196 March 2007, Wellington, New Zealand | R E P O R T 9 6 REFORMING THE LAW OF SEDITION The Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its purpose is to help achieve law that is just, principled, and accessible, and that reflects the heritage and aspirations of the peoples of New Zealand. The Commissioners are: Right Honourable Sir Geoffrey Palmer – President Dr Warren Young – Deputy President Helen Aikman QC Professor John Burrows QC The General Manager of the Law Commission is Brigid Corcoran The office of the Law Commission is at 89 The Terrace, Wellington Postal address: PO Box 2590, Wellington 6001, New Zealand Document Exchange Number: SP 23534 Telephone: (04) 473-3453, Facsimile: (04) 914-4760 Email: [email protected] Internet: www.lawcom.govt.nz National Library of New Zealand Cataloguing-in-Publication Data New Zealand. Law Commission. Reforming the law of sedition. (Report, 0113-2334 ; 96) ISBN 978-1-877316-31-9 1. New Zealand. Crimes Act 1961. 2. Sedition—New Zealand. I. Title. II. Series: New Zealand. Law Commission. Report. 345.930231—dc 22 Report/Law Commission, Wellington, 2007 ISSN 0113-2334 ISBN 978-1-877316-31-9 This report may be cited as: NZLC R96 This report is also available on the Internet at the Law Commission’s website: www.lawcom.govt.nz Reforming the Law of Sedition ConTenTs Letter of Transmittal ......................................................................................................... 5 Foreword ............................................................................................................................ 6 Acknowledgements ............................................................................................................ 7 Terms of reference ............................................................................................................. 8 summary ChapTer 1 A brief history of the common law relating to sedition ............................................................. 12 Seditious libel 1600–1800 ................................................................................................ 13 Thenineteenth century – seditious intention................................................................. 14 Seditious intention at common law today ...................................................................... 16 ChapTer 2 New Zealand sedition law ........................................................................................................... 17 The seditious offences ..................................................................................................... 17 Prosecutions for sedition in New Zealand ..................................................................... 19 Comment .......................................................................................................................... 24 ChapTer 3 Freedom of expression ................................................................................................................. 26 Introduction ..................................................................................................................... 26 Theoretical basis of the right to freedom of expression ................................................. 27 Judicial and law commission views on freedom of expression .................................... 32 Limits on freedom of expression ..................................................................................... 43 Consistency with section 14 of the New Zealand Bill of Rights Act 1990 ................... 46 Conclusion ........................................................................................................................ 49 ChapTer 4 Sedition in other jurisdictions ..................................................................................................... 51 United States .................................................................................................................... 51 Australia ........................................................................................................................... 54 United Kingdom ............................................................................................................... 60 Ireland ............................................................................................................................... 62 Canada .............................................................................................................................. 62 Conclusion ........................................................................................................................ 64 Reforming the Law of Sedition ChapTer 5 Does New Zealand still need a law of sedition? ......................................................................... 66 Options for reform ........................................................................................................... 66 Unnecessary duplication ................................................................................................. 69 Analysis of seditious offences and seditious intentions ................................................ 79 Sedition in Fiji .................................................................................................................. 85 Conclusion ........................................................................................................................ 88 appendix 1 ....................................................................................................................... 89 appendix 2 ....................................................................................................................... 92 Law Commission Report 12/3/2007 The Hon Mark Burton Minister Responsible for the Law Commission Parliament Buildings WELLINGTON Dear Minister I am pleased to submit to you Law Commission Report 96, Reforming the Law of Sedition, which we submit under section 16 of the Law Commission Act 1985. Yours sincerely Geoffrey Palmer President Reforming the Law of Sedition Foreword Most people probably associate the word “sedition” with revolutionary statements encouraging revolt, insurrection and public riot against lawful authority. In New Zealand, however, the “seditious offences” in the Crimes Act 1961 are a great deal wider than this. The essence of the offences is the making or publishing of a statement with a seditious intention. But a “seditious intention” can range from exciting disaffection against Her Majesty or the New Zealand Government, to inciting lawlessness generally, or exciting ill-will between different classes of people such as may endanger public safety. In its review of seditious offences, the Law Commission has concluded that the width of the offences means they are an unjustifiable breach of the right of freedom of expression. Furthermore, the linguistic over-inclusiveness of sedition means the offences lack clarity. They have the potential for misuse. Indeed, they have been inappropriately used in New Zealand in times of political unrest and perceived threats to established authority. They have been used to fetter vehement and unpopular political speech. The time has come to remove the seditious offences from the New Zealand statute book. We recommend repeal of the seditious offences. To the extent that inciting offences of public disorder and revolt against lawful authority should be made criminal, these are already proscribed in other offences contained in the Crimes Act 1961. 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 so would only encourage its enemies. In New Zealand, free speech and public debate must be “uninhibited, robust and wide open”, and it may include “vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials”, as Justice Brennan of the United States Supreme Court once put it. Geoffrey Palmer President Law Commission Report Acknowledgements We are grateful to Professor John Burrows QC (University of Canterbury) for his helpful comments on a final draft of this report, prior to commencing his term as a commissioner at the Law Commission. We thank our peer reviewers, Elisabeth McDonald (Victoria University of Wellington) and Ursula Cheer (University of Canterbury) for their very useful comments on a draft consultation paper of this report. We thank Elizabeth Grant from the Parliamentary Counsel Office for her work in producing a draft bill, attached in appendix 2 to this report. We also gratefully acknowledge the helpful contributions from those whom we consulted and those who responded to our call for consultation on the issues: The Hon Justice Hugh Williams, High Court of New Zealand Her Honour Judge A-M Bouchier, Auckland District Court Professor William Buss, OK Patton Professor, University of Iowa College of Law, Iowa Mark Henaghan, Dean of Law, University of Otago The New Zealand Law Society Criminal Practice Committee David Johnstone, Meredith Connell, Auckland Steven Price, Victoria University of Wellington Scott Optican, University of Auckland Author of norightturn.blogspot.com We thank the following who sent submissions on the consultation draft of the report: His Hon Chief Judge Russell Johnson on behalf of the District Court Judges Tony Ellis, President, New
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