Smith NickHon Dr NICK SMITH (National—Nelson): It's a pleasure to take a call in the third reading of this bill. I want to join with my colleague Chris Penk and note many of the positive reforms that are involved in codifying common law around how our court process works and many of the reforms that are contained in this bill about ensuring good court process about protecting the confidentiality of the jury about the respect for orders and ensuring that proper behaviour occurs in the court are entirely appropriate and are supported by members on this side of the House. It is true that National takes a different view about the issue of the old crime that was referred to as scandalising the court. It's important for the Parliament to recognise that in countries like Canada and the United States the protections that they have for freedom of speech do not make it a crime for criticising or questioning the court. It's equally interesting to note that where we inherited the common law of scandalising the court from—the United Kingdom—repealed it from their law books only a few years ago. So the real issue on which there's a difference across the House this evening around the third reading of the Contempt of Court Bill is around this very important and fundamental value that National members hold dearly and that is the rights of freedom of speech. Hon Andrew Little: Putting yourself above the law. That member put himself above the law. Hon Dr NICK SMITH: Now the comment Mr Little—Hon Andrew Little: That's what he did. Hon Dr NICK SMITH: Mr Little—well actually we write the law Mr Little and I'm very happy to discuss that. I'd point out to the Minister that the Law Society came to the Justice Committee and strongly objected to the provisions that he's wanting to put on the law books. Transparency International came to the select committee and strongly criticised those provisions. I also point out the more than eight academics from different law schools from across New Zealand who were critical of what the Minister proposed. Now the irony of Mr Greg O'Connor raising a case from 14 years ago in which I was involved is this: Labour—Hon Andrew Little: You were involved? Hon Dr NICK SMITH: Well I challenge members opposite: why was it that when we wanted to debate the issue 14 years ago the Labour Party objected? They didn't want to talk about it then. They shut the debate down. There wasn't a single Labour member at that time when the case occurred that wanted to debate it and do you know why? They were embarrassed. They were embarrassed that the Government of the day had sought to shut down a very legitimate debate. I say to the Minister of Justice and I say to Greg O'Connor to this day—neither of whom have bothered to actually read the Family Court case and that that was an individual case in my constituency where a mother and father together lost access to their child. It was unjust—it was unjust—and do you know what's most interesting Mr Little? As a consequence of me highlighting that case the Labour Party of the time agreed to law reform that prevented that case ever occurring again. I say to Mr O'Connor and I say to Mr Little: accept my invitation. Come and meet with the mum and dad who I stood up for. I know that Mr Little and Mr O'Connor have never put themselves on the line for a constituent that was done a gross injustice. I did. I was proud of it and to this day I defend that family against the injustice that occurred and the loss of their child—something any parent in this Parliament would not want to occur with New Zealanders. I have a process question and I particularly have a process question for Mr O'Connor because when this bill was before the select committee when we heard the passionate pleas of distinguished professors of the Law Society and of others opposing what Mr Little wanted to do with the law Mr O'Connor agreed. If you read the select committee report there was a unanimous decision including Mr O'Connor that the contempt provisions regarding freedom of speech were inappropriate and so the select committee unanimously recommended that those parts in Subpart 5 of this bill not proceed. Mr O'Connor and his fellow Labour members of the committee have been challenged multiple times to provide some explanation as to why in select committee they agreed with the submitters and they agreed with National but they only had to be invited up to a little meeting in Mr Little's office—and some pleadings from the judiciary—to do a backwards flip for which they will for ever be embarrassed. Again I challenge Labour members: why did you come to one view in the select committee and then the opposite when you came back to the House? Now there's actually a very fundamental issue around the freedom of speech and the error that is made in this bill in putting our courts and our judiciary on a pedestal and pretending that they should not be able to be criticised. Every member of this House will know of controversial cases where the courts got it wrong whether it be the Arthur Allan Thomases—and there will be different views about the David Bains or the Peter Ellises. It is my view that our judicial system is made stronger and that our system of law in being able to challenge and question is fundamental to a liberal democracy. Hon Andrew Little: Not affected by the law—not affected. Hon Dr NICK SMITH: I would bring Mr Little's attention to the decision of the Supreme Court of the United States which said—and said so correctly—that respect for the judiciary and for a court system is not achieved by silencing its critics but by the quality of its judgments. That is so well said and is the value that members on this side of the House hold. Hon Andrew Little: Not affected by this bill. Hon Dr NICK SMITH: Now the Minister of Justice who is loudly interjecting—not surprising given the embarrassment he should have around this bill—made the claim in the committee stage of this bill that there was no risk to any member subjecting a case to criticism. But if the member bothers to actually read the law read the analysis from the Law Society and read the analysis from Transparency International the provisions that say that anybody who makes a statement that may bring the court into disrepute—Hon Andrew Little: That's not the provision in the bill. Hon Dr NICK SMITH: Well read the exact provision Mr Little. Hon Andrew Little: That's not the provision in the bill. Hon Dr NICK SMITH: Yes it is. Indeed it is. Hon Andrew Little: The member is three months out of date. Hon Dr NICK SMITH: No the member has made some very minor changes. The phrases that are included in the bill are that if it could be perceived as bringing the courts into disrepute the person is at risk of being charged with a criminal offence. The charge of a criminal offence will have a silencing effect. It will have a chilling effect on responsible people being able to properly question and challenge the intent of our judiciary—Hon Andrew Little: The member is just totally wrong. Hon Dr NICK SMITH: —and the judgment call. Well the Minister who is constantly interjecting should reflect on the fact that lauded learned academics have read and commented on his comments in the committee stage and given opinions that they were just plain wrong and that the test for someone committing a criminal contempt and potentially being sent off to prison under the Minister's provisions is extremely wide and is an unnecessary restriction on the freedom of speech. I would have thought that the Minister of Justice would want to take—[Interruption] ASSISTANT SPEAKER (Adrian Rurawhe): Order! Hon Dr NICK SMITH: The Minister of Justice has almost become hysterical rather than in terms of defending the freedoms of speech that exist in other countries. Here's my last question for members on the Government benches: why is it that in the United States in the United Kingdom in Canada and in most European countries it is not necessary to have a criminal offence for us to be able to maintain an effective judicial system? It is over the top it is unnecessary and as a consequence of this law we are preventing proper scrutiny of our judicial system. The provisions that the select committee agreed to that provide for a mechanism for a take-down were a far better way forward. There is a case for reform of our defamation law but the approach that the Minister is taking here puts greater restrictions on freedom of speech in New Zealand than in any other liberal democracy and that is unnecessary.