Little AndrewADMINISTRATION OF JUSTICE (REFORM OF CONTEMPT OF COURT) BILLSecond ReadingHon ANDREW LITTLE (Minister of Justice): I move That the Administration of Justice (Reform of Contempt of Court) Bill be now read a second time.Contempt of court is an important area of law. It's fundamental to the effective functioning of our justice system. It ensures that the courts operate fairly and effectively. The law of contempt deals with a range of different actions that risk undermining the fair administration of justice and the public's confidence in our system of justice. Contempt occurs when there are breaches of orders made by the courts. It occurs when the court is disrupted and is prevented from dealing efficiently with a case before it or when trials are unfairly prejudiced by excess publicity. Contempt also occurs when jurors act in breach of their duties and obligations to the courts.What all of these actions have in common is they interfere with the ability of our courts to do justice. Contempt of court undermines the integrity of the court system. It therefore must be taken very seriously and properly addressed. The courts need powers to respond effectively to threats to the effective administration of justice. The current law is scattered across the statute book. Much of it is still found in the common law and not even in legislation. Some of that law is now outdated and it needs modernising. Some areas also need clarification. Being found to be in contempt of court is a serious matter. People can be imprisoned or fined. Where people are at risk of such penalties the law should be clear and accessible. The bill before the House addresses these problems. It substantially codifies and clarifies contempt of court it brings the law together in one place therefore making it more accessible and it modernises and updates the law to reflect developments in the digital age.Before I discuss the particulars of the bill as it's come back from the select committee I'd like to acknowledge the work of the Hon Chris Finlayson who left the House at the end of last year and as this his remaining legacy. There were other legacies too of course but this one had not reached fruition. As Attorney-General he was very concerned with the state of New Zealand's contempt laws and supported the referral of these issues to the Law Commission. As members will know Mr Finlayson introduced the bill as a member's bill on 22 March last year and because this is an area of law that I thought ought to be taken up by the Government the bill was adopted as a Government bill after its referral to the Justice Committee and I took over stewardship of the bill at that stage.As well as Mr Finlayson I'd also like to acknowledge the work of the Justice Committee in examining the bill and I thank the committee for their hard work in bringing it back in its current form. The committee received 62 written submissions and heard 17 oral submissions. Those submissions came from the judiciary the legal profession academics the media other organisations and interested groups and individuals.The bill covers five main areas of contempt of court. Now I want to focus on just three of these. The first concerns juror contempt. The bill as introduced contained provisions replacing the uncertainty of the common law with two new statutory offences. One of these dealt with juror misconduct in the form of googling or researching information relevant to the trial before them. The other offence prohibits public disclosure of jury deliberations. We need jurors to do their job properly. They must consider just the evidence that they have heard in court and the instructions that they've heard from the presiding judge and the guidance that they've heard from counsel. They should not look things up on the internet—a lesson that our members opposite might want to take into account at least before 2 o'clock tomorrow.However as I said during the first reading debate I was concerned that the penalties provided in the bill as introduced went beyond what is needed to ensure better discipline amongst jurors. I was concerned that we do not want to create a disincentive for jurors to take up the very important citizen's role and I asked the Justice Committee to consider this issue. I'm pleased to see that the Justice Committee have addressed the concern. Changes have been made to the bill reducing the penalties a googling juror would face. The bill's offence which would have potentially resulted in the juror being imprisoned for up to three months has been replaced with a statutory penalty provision allowing the judge to impose a fine of up to $5000 where a juror is caught undertaking their own research. This change also means the juror is not convicted so does not end up with a criminal record.The nature of a juror's obligations will also be reinforced by implementing preventative measures aimed at better preparing jurors for their role and discouraging them from undertaking independent research. The Government will in consultation with the judiciary improve juror educational material and the instructions provided to jurors as part of the bill's implementation. I regard the role of jurors as highly valued in our judicial system and think that focusing on better education and instructions together with these amended provisions achieves the right balance.The second area I want to focus on concerns the contempt known as scandalising the courts which is the making of malicious allegations about judges—probably not the most appropriate term; it sounds very Victorian but that's the phrase that is understood internationally. The bill as introduced contains provisions replacing the contempt of scandalising the court with a statutory offence of making false allegations against the judiciary and courts supported with takedown orders and other measures which are designed to ensure the quick removal of such material to help limit the damage it causes. Today with the internet and social media unfounded allegations can be made about the judiciary before anybody gets to respond. Of course judges can't defend themselves in the way that politicians or others in public life can. They can't enter public debate to protect their reputations or the reputation of the courts and nor should they have to do so. When judges speak they speak through their decisions. Once they've made their decision they have disposed of their function and if they are then under attack for what they have decided and what they've done they have very few avenues to respond effectively.During the first reading debate I said I was concerned that although we need to provide protection for the judiciary and courts as institutions imposing prison sentences of up to two years or fines of up to $50000 on citizens who make malicious allegations against the judiciary may not be justified. I questioned whether other measures could be used instead to restrain those who make damaging statements about judges. The inclusion of the offence in the bill has been very contentious. I understand most submitters on the bill raised a genuine concern about the risk that the offence could stifle legitimate criticism of judges and the courts. There is real concern it could have a chilling effect on freedom of expression by academics lawyers and others wanting to comment on the courts.The Justice Committee has recommended the removal of the offence from the bill. In its place the bill as reported back now makes greater provision for takedown orders. The changes mean the Solicitor-General can apply to the High Court for an order requiring untrue statements about the judiciary or the courts to be removed from the internet where they are damaging to public confidence in the judiciary or the courts. Our constitution and our courts recognise the importance of freedom of speech and the need in a democratic society for public scrutiny of the conduct of judges and for the right of citizens and the media to comment on matters of public concern. However we also need to be able to deal with malicious allegations that injure and undermine the integrity of our system of justice. I appreciate the committee's considerations in this respect but I do not rule out the possibility of bringing a Supplementary Order Paper beefing up the provisions now in the bill to ensure that the correct balance is struck.The third aspect of the bill I wish to focus on concerns publications that put a person's right to a fair trial at risk. The bill replaces the common law with a clearer statutory offence prohibiting publication of information that interferes with a person's right to a fair jury trial. The bill also includes new automatic suppression provisions that prohibit the publication of details of a person's previous convictions when they may face a jury trial and enables the judge to temporarily suppress other information where this is necessary for a fair trial. Suppression of course also goes against the fundamental principle of the openness of justice and the transparency of justice but suppression is often needed to ensure a person receives a fair trial that somebody is not unfairly labelled with negative connotations due to yet to be proved allegations and suppressing prejudicial material is the right thing to do.The Justice Committee has narrowed the scope of the automatic suppression provisions. Changes they have made will also greatly improve the workability of the provisions. The automatic suppression will now only apply to previous convictions and not other charges as it originally did. As reported back the bill now clarifies that the automatic suppression provisions do not cover information published before the person was charged. It would be unfair and impractical to expect media organisations to remove all historic publications concerning the criminal history of a person against whom charges are filed to avoid breaching the automatic suppression. Suppression protects the rights of a defendant to a fair trial but restricts freedom of expression and the bill seeks to achieve a proper balance in that respect.In summary the bill as reported back provides a necessary support for the administration of justice by the courts. It modernises and codifies the law and I commend this bill to the House.