Burton Mark: Crimes (Repeal of Seditious Offences) Amendment Bill — In Committee 
Burton Mark: Crimes (Repeal of Seditious Offences) Amendment Bill — In Committee 
[Volume:643;Page:12582] 
Hon MARK BURTON (Minister of Justice) 
: 
 It is good to have this bill back before the Committee of the whole House from the Justice and Electoral Committee. It is an opportunity for us to perhaps have a more careful and extended look at the provisions of the Law Commission’s report and its recommendation that New Zealand finally set aside the laws of sedition. 
The Law Commission was asked to review the seditious offences provisions set out in sections 81 to 85 of the Crimes Act 1961 and to make any recommendations that it considered to be necessary or indeed desirable. The commission concluded in its report that the seditious offences are overly broad and uncertain and that they infringe on the principle of freedom of expression and have the potential for abuse. I am sure that is a matter that a number of members will want to consider in more detail as we look at this important legislation. 
The Law Commission report recommends that sections 81 to 85 of the Crimes Act 1961 which contain these offences should be repealed. The commission believes that nothing should replace those sections. To the extent that conduct that would be covered by existing sedition provisions needs to be punished—and there are a number of areas that that may well apply to—the commission suggests very strongly that it can be more appropriately dealt with by other provisions of the criminal law. Abolishing sedition therefore will better protect the values of democracy and free speech. 
It is perhaps appropriate that we visit briefly some of the historical background that sits behind the sedition law because I think it affords members a better understanding of the law’s origins and therefore how and why the Law Commission reached the conclusion that it did. Of course New Zealand inherits its common law on sedition from the British common law. If we go back to the English Statute of Treasons of 1351 we see that it defines many types of offences against the king as the authority was then as treasonable. It looked at the offences that were increasingly used in those times to prosecute people who spoke or wrote words publicly in opposition to the king. Those watching  
The Tudors 
 on Tuesday evenings would find it interesting that in 1534 an Act declared that it was treason to act or write anything to the prejudice slander or disturbance of the king’s marriage to one Anne Boleyn. I think we see an indication there of how specifically this sort of measure could be applied. 
A court decision somewhat later in 1606 created the very wide offence of seditious libel. I know that Dr Worth is likely to discuss this at some length later on; it is a matter I have heard him canvass on occasion. There was the prosecution of seditious libel for people who used words that could urge insurrection against those in authority censured public men—and it was men—for their conduct or criticised the instruction of the country. 
As I indicated New Zealand inherited the British common law on sedition and our own experience is therefore well illustrated with appropriate references. The Criminal Code Act of 1893 codified the law on sedition and it was set out again in the Crimes Act 1908 and then in the Crimes Act 1961 which we now find ourselves focusing more directly upon. Of course if we go back to the end of the 19th century and the beginning of the 20th century we see that a number of charges of sedition were laid in New Zealand. A number of those charges were successfully prosecuted; one or two not so. 
Most of these charges it is fair to say were laid during times of political or civil unrest or during war. For example charges were laid against Maori in land disputes against striking workers against those opposing conscription during World War I and against those possessing communist literature. Interestingly there are a number of references to successful prosecutions against those possessing communist literature—and I will come to those later. One or two examples of that literature can be found in the very library of this institution. How times change. 
If we go back to 1881 we see that arrests were made at Parihaka over a land dispute. Te Whiti said: “Mine is the land from the beginning.” and he went on to make a very famous quote. He was indeed charged with sedition for allegedly uttering words and language calculated to promote disaffection. 
A little later on in 1913 Henry Holland make a speech at a strike of waterfront workers in Wellington. The Court of Appeal concluded that the jury would have been justified in regarding counsels of that kind as intending to promote feelings of ill will and hostility between the waterside workers and their employers. 
During World War I as I indicated previously sedition charges were laid for making speeches in relation to opposition to conscription under the Military Service Act 1916. If we go on to 1917 we find that one Herbert Armstrong was convicted for an anti-conscription speech in which he said: “I claim the right to criticise the Government of the country.” He was convicted. In another case a Rev. James Chapple was charged with sedition for making comments against the war. Again he was successfully convicted. 
In another case a young woman was convicted in 1921 for the possession and circulation of communist literature. Not only was she convicted and fined £10 but perhaps more significantly her studentship was terminated. Of course better known names like Walter Nash were charged with bringing into New Zealand a document entitled  
The Communist Programme of World Revolution 
 and another pamphlet. Both of those documents were said to encourage violence and unlawfulness. Walter Nash was fined £5. Those documents are amongst the works held in the Parliamentary Library; I suggest them to members for their reference. 
I think all of this illustrates a very different time. It is equally important to acknowledge that until very recently apart from a couple of very notable examples after the 1920s the offences of sedition had appeared to have fallen into disuse in New Zealand until the famous and some would say infamous case in 2006 when Timothy Selwyn was prosecuted for sedition. 
I know that a number of my colleagues intend to explore some of the arguments for repeal following my brief introductory remarks but there are two arguments that I will touch on because I think they serve as something of a launching pad for wider discussion. First the legal profile of the offence is broad variable and unclear. The meaning of sedition has changed over time. This is one of the five principal reasons that the Law Commission gave for its view that the time to put aside and to repeal the law of sedition in New Zealand had come. 
Secondly and most overwhelmingly in my view the Law Commission has argued that the law is not needed because those elements of it that should be retained are more specifically covered by other offences. This is perhaps the decisive argument that the Law Commission makes. The seditious offences that should be covered by the criminal law are adequately and more appropriately dealt with elsewhere under other offences. These include incitement and conspiracy and public order offences along with threatening offences and offences such as treason and riot. An argument made in support of an offence of sedition is that it is easier to establish than some of the other offences. But as the Law Commission noted it considers that in the interest of freedom of expression such speech-only offences should not be easy to prove. 
I leave my opening remarks there but in doing so I strongly commend the recommendation made by the Law Commission to the Committee. The time for putting aside the laws of sedition in New Zealand is well and truly upon us.