Franks Stephen: New Zealand Council of Law Reporting Amendment Bill — First Reading 
Franks Stephen: New Zealand Council of Law Reporting Amendment Bill — First Reading 
[Volume:625;Page:20622] 
STEPHEN FRANKS (ACT) 
: 
 I find the New Zealand Council of Law Reporting Amendment Bill very interesting for a number of reasons. First it is interesting that in the presumably limited legislative time left to this Parliament we are actually debating this bill when one can think of a whole host of other issues that the Government might have felt that the people of New Zealand think there needs to be some law change on. I would have thought for example that immigration law is full of holes and that the Government might at least be saying to the people that it was alive to those holes and that it would do something about them. But no we are debating the New Zealand Council of Law Reporting Amendment Bill. 
Secondly the bill is interesting because it does not have an explanation as to why the New Zealand Council of Law Reporting is to be given a power to prohibit the reporting of Supreme Court decisions. I would have thought that a Government that was proud of its creation—the new Supreme Court—would want as much attention as possible paid to the decisions of that Supreme Court. It is baffling to me why anyone would want to create a monopoly a power to censor and prohibit and ban the reporting of open justice. 
I think one of the traditions we inherited from the British—which was in fact a glory of British justice—was the idea that justice had to be done in the open and seen to be done in the open so that everyone could make up their own mind on the quality of the decisions. We have lost that. Successive Governments—National and Labour—decided that that was superfluity and that New Zealanders could just trust the Family Court judges the judges in the Youth Court and the corrections system. We could just trust the entire anointed of the legal establishment when they decided that name suppression closing of courts sealing of records and the Criminal Records (Clean Slate) Act would wipe records of what happened. 
This Government believes in airbrushing history. I think the Minister who introduced this bill could at the very least have given us some assurance that the agenda behind it was not to enable a Cabinet Minister or other member of the Government—because we must remember that the Attorney-General chairs the New Zealand Council of Law Reporting—to make sure that undesired reports of Supreme Court decisions are not published. I am quite sure that the Minister will have some perfectly plausible reasons for this monopoly but why did we not hear them? He could have given us the reassurance that the Attorney-General would never exercise the power that will reside in the council to prohibit reports of Supreme Court decisions but the Minister chose not to do that. 
Dr Richard Worth 
: Why not? 
STEPHEN FRANKS 
: We do not know why this is being done. I can surmise that it is being done because it has always been like that and because for many years the New Zealand Council of Law Reporting has had the statutory monopoly on reporting on other courts and maybe the Government is just bringing this court into line. But it is still puzzling because the bill states that Supreme Court decisions may be banned only if they are new series of reports. Oh no in fact it has covered that one. New section 12(4)(b) proposed in clause 3 states that Supreme Court reports or any series of reports of decisions separately or in conjunction with reports of other judicial decisions can be prohibited if the New Zealand Law Society wants it to be prohibited. Now that is puzzling is it not? 
So I say to the Minister that the structure of this provision is that no person firm or company other than the New Zealand Council of Law Reporting may commence the publication of a new series of reports and after the commencement of this legislation no person firm or company may publish a new series of decisions or continue publication of a series of decisions without the consent of the Law Society. Does that mean someone who has already set up the publication of decisions? Is this aimed at the  
National Business Review 
 for example which has a rather shall we say sceptical bent to its reporting of legal matters and the affairs of the legal establishment? Is this provision aimed at the  
National Business Review 
 or the  
Independent 
? What is the purpose of a provision that states expressly that the Law Society can ban existing reports and can stop new ones from being published? We should have heard what the purpose is. 
Maybe there is a view that this monopoly is essential to ensure that reports are accurate. If that is the case why not just make it a power to sanction and to force the publication of corrections? We do not have a situation where people are avidly waiting for the  
New Zealand Law Reports 
 and at the moment that a decision is given and misreported there is rioting in the streets. If the Government wanted to cover that kind of possibility why was it not being open about it and targeting the news media who can send out things that are very important and can cause rioting in the streets. Why is this not an ex post power? Why is the bill not structured so that the New Zealand Council of Law Reporting can require the publication of corrections if someone gets it wrong or it can require that there be appropriate checking for example to see that suppression orders have been honoured? There is so much about this bill that requires explanation. There was a very inadequate introduction from the Minister. 
After hearing National’s criticism of the bill I am not sure whether it is saying that it will vote for the bill all the way through or whether it is simply saying that it will vote for the bill to go to a select committee. It is hard to tell. I am sure that Dr Mapp will enlighten us on that matter. 
But on the precautionary principles so beloved by the Greens and on the principle of letting one hundred flowers bloom biodiversity and all that sort of thing ACT will have to vote against this bill to signal that we think we should not be setting up monopolies without a very very clear justification and we certainly should not be setting up restrictions on publication. 
Sitting suspended from 6 p.m. to 7.30 p.m. 
STEPHEN FRANKS 
: I think the best thing I can do is to recap the concerns that I hope will be addressed by the select committee if this bill gets through and to explain why ACT believes we should vote against it—if only to make a statement that this kind of legislation should not come in with very bland non-explanatory explanations. 
The bill states: “No person … may without the consent of the New Zealand Law Society … publish a new series of reports of decisions of the High Court or Court of Appeal …”. That creates a monopoly for the New Zealand Council of Law Reporting. The bill further states that all of that applies to the decisions of the Supreme Court and that they cannot be published separately or in conjunction with other reports. It does not explain why that is such a good idea. There may be a view that the decisions of the Supreme Court—or of any court—should be published only with the approval of judges but that does not fit with the idea of open court. A reporter is able to go into a court and keep the public informed about what is going on. 
The bill does not deal with the situation of partial reports of perhaps reports of one judge’s decision of the leading decision or of the decision that prevailed. It does not deal with the conditions the Law Society should apply. It does state that the Law Society can grant other publishers the rights if it considers there is not enough competition or if there is delay. But why the monopoly in the first place? Why the prohibition? Why not give powers to require someone to correct if it is thought that the Supreme Court decisions have been wrongly reported? Why not give some reassurance that the Government has given at least perfunctory attention to the principal of free speech because this bill seems to be a bar to it. 
I trust we will get an Attorney-General’s report as to whether this legislation complies with the New Zealand Bill of Rights Act and the principles of free speech within it. Sadly of course the Attorney-General is the chairman of the New Zealand Council of Law Reporting so we will get an Attorney-General’s report on a bill that gives the Attorney-General the privilege of blocking reports. It does not really reassure that the Government is taking seriously either openness in the courts or the principles of free speech. 
I suspect there are simple explanations for that; I suspect it is just legislative laziness. But these matters should have been addressed in the explanatory note that the Government introduced this bill with.