Fairbrother Russell: Crimes (Repeal of Seditious Offences) Amendment Bill — In Committee 
Fairbrother Russell: Crimes (Repeal of Seditious Offences) Amendment Bill — In Committee 
[Volume:643;Page:12593] 
RUSSELL FAIRBROTHER (Labour) 
: 
 The difference between the law of sedition and the Terrorism Suppression Act is that the law of sedition is entirely censorious. It censors what one can say. That law as we heard from the Minister derived from the English common law but the difference between the English common law and the present law under the Crimes Act is that in the transfer to the codified Act the fact that a violent outcome had to be advocated was removed from the common law. So in the codification in 1961 the law on sedition was entirely that of committing a censorious act. That perhaps is the difference between the Selwyn case and many other cases that Ron Mark and others have referred to in this Chamber. Tim Selwyn was convicted of an offence on an indictment that contained the imploring of others to commit a violent act. The present law of sedition does not need that element although that was apparently in his indictment; the present law of sedition creates a criminal offence of saying certain things. 
 The Terrorism Suppression Act which has been referred to by one of the earlier speakers includes an element of incitement but it is incitement to commit specific outcomes and the commission of those outcomes must be part of the message. The outcomes are not just any outcomes; the outcomes specified in that Act include bringing about the death of another person damaging major infrastructure and other serious offences that go to the basic infrastructure and law and order of the country for ensuring there is a peaceful country. 
The time for removing the law on sedition from our Crimes Act is long past. Ron Mark said we should take more time to consider it. But we have had since 1961 to think about it; 46 years is a long time. That time has revealed that no substantial convictions have been made under that law—no convictions that probably could not have been secured under other legislation. 
Ron Mark drew a parallel between the law of sedition and the Treaty of Waitangi and he said the Treaty of Waitangi suffers because it is uncertain. That is correct but the Treaty of Waitangi— 
Ron Mark 
: The principles of the Treaty of Waitangi. 
RUSSELL FAIRBROTHER 
: The principles of the Treaty of Waitangi are uncertain; it is true that they are. But the Treaty of Waitangi is not a criminal sanction. Nobody is convicted for breaching any aspect of the Treaty of Waitangi or the principles in relation thereto. 
When we impose a criminal sanction it is necessary that the law be specific about what the offence is because a criminal sanction involves two aspects. The first is doing the thing complained of known as the actus reus and the second is the intention to bring about that circumstance known as the mens rea. So that requires a specificity of thought and a specificity of outcome. Under the law of sedition we suffer from a lack of specificity unless one is talking about a general law of censorship. That is why the law of sedition so seriously breaches the New Zealand Bill of Rights Act. 
Under section 14 of the New Zealand Bill of Rights Act everybody is guaranteed the right to free speech—the right to express an opinion. That is unqualified. Mr Mark referred to the fact that it was perhaps qualified by section 5 of the Act but that is not really appropriate in this circumstance. Section 5 allows an exception to be made if there is a greater public purpose. The greater public purpose that may have laid behind the law of sedition in 1961 has since been overtaken by the compounding conspiracy offences we find in our Crimes Act in our Misuse of Drugs Act and in similar legislation that has followed the passing of the Crimes Act. 
A similar provision to the law on sedition is found also in the Terrorism Suppression Act of 2002. As I have said it requires not only the incitement to action but the desire to achieve a certain outcome and those certain outcomes are codified as well. They include the bringing about of the death of another person or the damaging of major infrastructure and similar infrastructural safeguards. 
So the New Zealand Bill of Rights Act is in direct conflict with the laws of sedition in our present Crimes Act and it is just a tragedy that when the New Zealand Bill of Rights Act was passed back in the early 1990s it did not include as an amendment the removal of the law of sedition from the Crimes Act as well. These days it is hard to understand why that did not occur.