Fairbrother Russell: Crimes (Repeal of Seditious Offences) Amendment Bill — First Reading 
Fairbrother Russell: Crimes (Repeal of Seditious Offences) Amendment Bill — First Reading 
[Volume:640;Page:9980] 
RUSSELL FAIRBROTHER (Labour) 
: 
 I take much pleasure in supporting this Crimes (Repeal of Seditious Offences) Amendment Bill as it appears all members of the House do but it is still important to make the point as to what the law of sedition is about. Sedition law in New Zealand is unusual in that it is an offence of use of words rather than an offence of action. Most if not all of the laws in the Crimes Act are concerned with actions that are committed with criminal intent. It is ironic in today’s society that words still appear on our statute book as an offence against the affairs of the State. We really need to reflect upon the Privy Council decision in  
Lange v Atkinson 
 which was a hallmark decision on the law of defamation. It took that case which freed up the area for comment made by political journalists against the actions of politicians for us to recognise that the day must well be nigh when the law of sedition would be removed from our statute book. 
Simon Power 
: “Nigh”—it’s not a word you hear often. 
RUSSELL FAIRBROTHER 
: Yes it comes with age I tell Mr Power. This is also the age of freedom of information. We have the Official Information Act and the Privacy Act but we are essentially an open society. We are an open society that reflects global trends in that regard and as we embark upon our free-trade economic programme then we too must allow for more liberalisation of the individual within the State. But what gets me most I think is when we turn to the definition of a seditious offence contained in the Crimes Act. A seditious intention is an intention to among other things criticise or point out errors or defects in the Government or constitution of New Zealand. 
It is one of the strange ironies that even today very few people in this country can tell us what our constitution is or what parts of our constitution apply and what instruments of the State should be considered instruments of the constitution. Of course we in New Zealand have no formal written constitution. We have a collection of Acts that can make up part of our written constitution and some people debate which of those Acts should be included in our constitution. 
Simon Power 
: It’s time is nigh. 
RUSSELL FAIRBROTHER 
: The time is nigh to move from that position I would say to Mr Power and perhaps it is well-nigh time that we moved to a written constitution. Of course I would expect the National Party to oppose that because in a free-thinking open and free society some National members would have difficulty in coming to terms with the confidence that people can acquit themselves without the hierarchical tendencies of the party to which that member belongs. 
But coming back to the offence of criticising the constitution I point out that it is crazy to have on our statute book a law that makes it an offence to point out defects or errors in the constitution of New Zealand when even academics cannot decide what that constitution is. It is essential in our criminal law that there be some certainty so that people who go about their business have an awareness of where the line is between criminal behaviour and lawful behaviour. If we are charged with a criminal offence it is absolutely no defence to say we did not realise that what we were doing was against the law. 
So this is one of the ironies. Fortunately these provisions of the Crimes Act have been pretty dormant. Earlier speakers have identified that there have been very few cases—and certainly in recent times the case of  
R v Selwyn 
 has been perhaps the only case—in which a prosecution has been successfully achieved under this section of the Crimes Act. But the sedition offences of which there are about four or five in total are serious offences. They are in the Crimes Act not the Summary Offences Act and they carry penalties of up to 2 years’ imprisonment. An offence carrying a penalty of up to 2 years’ imprisonment is considered to be a serious offence and as Mr Selwyn found out it is almost certain to result in a term of imprisonment if the matter is serious enough. As we move into a free and open society it is time that we addressed the removal of this law and it is perhaps surprising that it took until 2006 for the Law Commission to produce a report on what has clearly been a very outdated and old-fashioned law on our statute book. 
Quite clearly it goes back to the days when society was ruled by the king or queen and the hierarchy in society was understood by people at all levels of society. It is a very British and colonial approach to life which hopefully we are moving away from. 
Picking up on points from some of the other speeches that have already been made and particularly from those speakers who are more learned in the history of the struggle of the indigenous people of New Zealand—the tangata whenua—it can only inhibit the ability of those who want to advance concepts of a Maori economy of Maori autonomy if they have at the back of their mind the thought that they may face an arrest by an officious policeman who draws upon the law of sedition that is found in sections 81 to 85 of the Crimes Act. The debate still to be had in our country is on the way in which the indigenous people are able to express themselves politically and that debate is not fully expressed because the parameters of that expression are still being discovered and realised by many particularly in the Pakeha world. 
 While I am on my feet on this issue I have to say that there appears to be a great relaxation of many of the rules that have controlled the way we conduct our affairs. I reflect on the recent case of David Bain who was released from prison following a successful petition to the Privy Council. He is a man who was convicted of a number of murders about 13 years ago and of course he was not acquitted. The conviction was not quashed by the Privy Council. Its members suggested that his case be returned to New Zealand for consideration of a retrial and they did not even comment that he should be freed on bail. I have no comment on whether that is appropriate but what I believe has been inappropriate is the amount of media speculation as to what should be done by the Solicitor-General in this matter because of course this matter is still before the court. 
What the Bain matter illustrates as being relevant to this debate to remove the law of sedition is that even our quite clear law of what is sub judice appears to be changing in practice because the press feel free and uninhibited to venture into the area of court matters. When a charge or a matter is before the court no longer does the press feel inhibited by what used to be the very clear and well-enforced and well-understood law of sub judice. The harm we see there of course is the effect on the ability of someone like David Bain in obtaining a fair trial and the Crown obtaining a fair trial because people are wading in and ignoring those laws. 
The point I make there simply is that we are in times that are a-changing and that reflects the openness of society which I welcome. It reflects the ability of well-educated people in New Zealand to enter into a debate on contentious matters for people to hear that debate on contentious matters and to react in a verbal way rather than a physical way and not to feel defensive or threatened. New Zealand is an open society. It is my very strong wish that it become even more open than it is and that all the people of New Zealand are able to live their lives as they are able by their physical characteristics by their cultural characteristics and by their own view of what it means to be a human being in New Zealand. 
So this is a bill that obviously is welcomed by all parties. It is one that will go to the select committee and I imagine that process will not take very long. I look forward to its return to this House and when we can take from our statute book these rather grand-sounding laws of sedition but which in effect as we have heard already are pernicious laws and ones that if not directly indirectly have a consequence of inhibiting true and open debate.