Burton Mark: Crimes (Repeal of Seditious Offences) Amendment Bill — Third Reading 
Text is incorporated into the Bound Volume 
Burton Mark: Crimes (Repeal of Seditious Offences) Amendment Bill — Third Reading 
[Sitting date: 24 October 2007. Volume:643;Page:12689. Text is incorporated into the Bound Volume.] 
Hon MARK BURTON (Minister of Justice) 
: 
 I move  
That the Crimes (Repeal of Seditious Offences) Amendment Bill be now read a third time 
. This bill implements the recommendations of the Law Commission in its report  
Reforming the Law of Sedition 
. In the report the Law Commission concludes that seditious offences are overly broad and uncertain that they infringe on the principle of freedom of expression and that they have the potential for abuse. 
In respect of the Australian sedition offences Laurence Maher argued in 1992: “So long as the various sedition offences remain governments will inevitably be tempted to use them improperly especially when highly unpopular opinions are expressed … the law of sedition is anachronistic and an unjustified interference with freedom of expression … abolition of sedition offences at both Commonwealth and State level is therefore to be preferred to any attempt to ‘modernise’ the crime of sedition.” 
The Law Commission as with the majority of submitters on the bill agree with that argument: “As long as the New Zealand seditious offences remain on the statute book there is the potential for their misuse against people who criticise the government publicly especially at times of civil unrest and of perceived concern for national security.” I agree as does the Law Commission that it is not appropriate to retain modernise or clarify the provisions; nor for that matter is it necessary to do so. To the extent that such conduct should continue to be a crime we can rely on prosecutions for existing crime such as incitement conspiracy and other public order offences. 
The seditious offences in New Zealand are contained in sections 81 to 85 of the Crimes Act 1961. The offences cover making or publishing a statement that expresses a seditious intention conspiring with a seditious intention and using apparatus for making seditious documents or statements. The offences hinge on a seditious intention. This is defined in the Crimes Act very broadly as an intent: “(a) To bring into hatred or contempt or to excite disaffection against Her Majesty or the Government of New Zealand or the administration of justice; or (b) To incite the public or any persons or any class of persons to attempt to procure otherwise than by lawful means the alteration of any matter affecting the Constitution laws or Government of New Zealand; or (c) To incite procure or encourage violence lawlessness or disorder; or (d) To incite procure or encourage the commission of any offence that is prejudicial to the public safety or to the maintenance of public order; or (e) To excite such hostility or ill will between different classes of persons as may endanger the public safety.” 
Three main options were looked at by the Law Commission’s report in respect of our seditious offences. The first option was to maintain the status quo and leave the offences unchanged. The second was to amend and modernise the relevant sections. The third was to abolish the seditious offences. The principal argument for retaining the status quo is that we do not know what the future will hold so we should not remove sedition as a weapon from the law enforcement armoury. This is a position that was strongly argued by Mr Mark during the Committee stage. I acknowledge the interest he has taken in this particular bill. However I suggest that one could equally argue that because we do not know what the future will hold we must try to ensure that the law does not contain a weapon that might be used in the future to suppress dissent. 
The second option as I indicated was amending and modernising the offences. This could be done to limit the ambit of the offence to focus on speech that amounts to an incitement to violence against lawful authority. However the Law Commission argued that if the offences were so amended they would add very little if anything to existing offences of incitement to commit other crimes already proscribed in the Crimes Act. 
The third option was to repeal the offences. The term “sedition” carries with it considerable historical baggage and is closely associated in the public mind with its origins as a Tudor-era crime rooted in criticising or exciting disaffection against established authority. Thus as a matter of policy the present law of sedition invades the democratic value of free speech for no adequate public reason. 
Five principle reasons are given in the Law Commission report for repealing sedition. The first reason is the legal profile of the offence which is broad variable and uncertain. The meaning of sedition has changed over time from an insurrection or revolt to describing the act of inciting or encouraging revolt. The common law then added the act of exciting violence between different classes of people and an intention to incite violence against lawfully constituted authority as an element of the offence. In New Zealand the statutory provisions have included inciting lawlessness generally. Unlike other jurisdictions under the New Zealand defence one can be found to have had a seditious intention without ever intending to incite violence against an established authority. 
The second reason is that it is a matter of policy. The present law invades the democratic value of free speech for no adequate public reason. A US judge has said that debate on public issues should be uninhibited robust and wide open even if it includes vehement caustic and sometimes unpleasantly sharp attacks on government and public officials. That is something most members of this House are well familiar with. 
The third reason is that the present law falls foul of the New Zealand Bill of Rights Act 1990. Specifically freedom of expression is endorsed by section 14 of the New Zealand Bill of Rights Act. The Law Commission does not see the breach as justifiable in the case of sedition. 
The fourth reason is that the seditious offences can be inappropriately used to impose a form of political censorship. They have been used for this purpose. In fact in the past sedition has been used for this purpose on a number of occasions as was well canvassed by a number of speakers including myself during the Committee stage. The State should be entitled to punish such statements advocating imminent violence against the State the community or individuals only when a criminal offence is the likely outcome and when there is proof of intention to advocate it. 
The final reason is that the law is not needed because those elements of it that should be retained are covered more specifically by other offences. An argument made in support of sedition is that it is easier to establish than some of the other offences. As the Law Commission also noted I consider that in the interests of freedom of expression such speech-only offences should not be easy to prove. 
A number of existing offences in New Zealand law that adequately deal with the elements of seditious offending should be retained. These include the offences of conspiracy and incitement that can be used in conjunction with other offences. Incitement and conspiracy like sedition can be a thought or intention crime. For example one could be found guilty of incitement of an offence even if the offence one was inciting was not actually committed. In addition if the inciting leads to the committing of an offence then the inciter could be prosecuted as a party to the offending under section 66 of the Crimes Act 1961. 
Offences that are particularly relevant to sedition are treason riot unlawful assembly criminal nuisance offences in the Summary Offences Act and inciting racial disharmony which is an offence under the Human Rights Act 1993. The fact that a victim of an offence was targeted because he or she was part of a particular group such as race nationality or religion can be taken into account at sentencing as an aggravating factor under the Sentencing Act 2002. The offender may therefore be subject to a higher sentence if it can be shown that the person incited the offence because of his or her attitude towards the victim’s race nationality or religion. Thus behaviour covered by the sedition laws that still needs to be criminalised can more appropriately be dealt with by other provisions of the criminal law. 
In closing I would like to thank again the Justice and Electoral Committee for its efficient and thorough consideration of this bill and also those who took the time to make submissions on the bill. Parliament should always appreciate those who take the time to engage in the democratic process through our select committee submissions. The submissions in my view in the vast majority were in strong favour of the bill. Finally I again acknowledge the excellent report by the Law Commission which led to the introduction of this bill. I commend the bill to the House.