Fairbrother Russell: Crimes (Repeal of Seditious Offences) Amendment Bill — Second Reading 
Fairbrother Russell: Crimes (Repeal of Seditious Offences) Amendment Bill — Second Reading 
[Volume:642;Page:12546] 
RUSSELL FAIRBROTHER (Labour) 
: 
 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 Maori 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.