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Law Commission Proposes an End to Judge-Made Contempt Law


MEDIA RELEASE 19 May 2014 Hon Sir Grant Hammond KNZM


Law Commission

Law Commission Proposes an End to Judge-Made Contempt Law

The Law Commission is seeking feedback on a package of reforms which propose far-reaching changes to the law of contempt in New Zealand.

The Law Commission today released Contempt in Modern New Zealand, its Issues Paper on reforming the common law of contempt. The Issues Paper proposes that judge-made laws of contempt of court be replaced by a more limited and clearer set of legislative provisions that better reconcile protecting the integrity of the justice system and fair trial rights with the importance of freedom of speech.

The President of the Commission, Sir Grant Hammond, said that the purpose of the law of contempt of court is to protect the integrity of the justice system and a defendant’s right to a fair trial.

“The right to trial by jury for serious offences is a cornerstone of the criminal justice system in New Zealand and something we all have an interest in protecting. However, the common law may no longer be the best mechanism for protecting that right.”

Sir Grant says that some of the outdated concepts and language at play in the law of contempt are no longer relevant today. The law predates the Internet age and the enactment of New Zealand’s Bill of Rights, and needs to be updated to address these developments.

In the Issues Paper, the Commission proposes legislative reform to codify contempt of court:

• As a matter of constitutional principle, the scope of New Zealand’s criminal law ought to be determined by Parliament rather than the courts. Contempt of court is now the only criminal offence in New Zealand that is not provided for in statute.

• Over time, the law of contempt has been developed by the courts in a piecemeal fashion as necessary in response to specific situations, which has in turn created a lack of clarity. New Zealand’s laws should be clear and accessible, particularly when a breach of the law could result in a significant fine or incarceration.

Sir Grant says that replacing current common law contempt with statutory offences also enables the public to have a say on the shape of the contempt laws and the values that our laws embody.

Judge Peter Boshier, the Commissioner leading the review, says that the Commission has examined the current law and is proposing for discussion a complete modernisation of contempt.

“In the area of publication contempt, we propose a much more targeted approach to protecting an accused’s right to a fair trial from prejudicial publicity.”

Judge Boshier says that the Commission favours more upfront clarity and precision in this area.

“Rather than leaving decisions over whether to publish potentially prejudicial material solely to publishers, the Commission is suggesting that there should be a clear prohibition on publishing certain prejudicial information for a limited period while there is a trial.”

Judge Boshier stresses that the constraints on freedom of expression during a trial should be kept to the minimum necessary to ensure a fair trial is possible.

“The media has a crucial role to play in not only assisting Police to obtain information about a crime from witnesses and the public, but also in scrutinising Police investigations and in supporting open justice by reporting events.”

The Commission believes greater clarity is needed in the law in this area, and is proposing a statutory offence to replace the current common law test for publication contempt. Judge Boshier says that the current test should be reformulated to draw a much clearer line between permissible comment and publication of material that creates a real risk of prejudicing a fair trial.

The Commission is also seeking the wider public’s views on contempt reforms that affect all citizens called to do jury service. The sentencing last year of an Auckland man for reportedly failing to make himself available for a jury trial highlighted the importance of contempt of court for those serving as jurors.

Judge Boshier says that changes are also needed to modernise the law in this area to better address the risks that jurors accessing material on the Internet or communicating through social media may pose to a defendant’s right to be fairly tried only on the evidence admitted in Court. “We are seeking input from the public on what type of approach we should take in this area.”

The Commission’s Issues Paper also questions whether there are a number of forms of contempt that are now simply outdated and unnecessary, such as “scandalising the court” and civil contempt. Other legal remedies now exist to cover those situations.

The Commission now welcomes any comments or submissions on the Issues Paper. The closing date for submissions is Friday 22 August 2014. The Commission intends to publish its report on the reference in the second half of 2015.

The full Issues Paper, Contempt in Modern New Zealand (IP36, 2014) is available from our website at http://www.lawcom.govt.nz/project/review-contempt-court/issues-paper.



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