Physician, heal thyself?

Parliament's Justice Committee thinks it would be wrong for courts to force people to say sorry if they say untrue things about judges. So why should Parliament be able to force people to say sorry if they say untrue things about MPs?

In the aftermath of the Christchurch atrocity, the political life of the nation must go on; for as W.H. Auden so eloquently put it, "even the dreadful martyrdom must run its course".  Of course, for now much of this political life remains focused on what we ought to do in that event's wake. The rush to change our gun laws is the most obvious example, on which I will simply echo the Law Society's submission to Parliament's Finance and Expenditure committee:

We have had a very limited time (less than two days) to consider the bill. We appreciate the need for a swift legislative response but believe that this could have been achieved while still allowing an adequate (albeit short) period – such as five working days – for public input. That would have allowed for better public understanding and buy-in, as well as better quality (and more enduring) legislation.

However, amongst the questions of what those 50 deaths require of us and just how we should deliver it, "ordinary" things also require attention. One of which is the report from Parliament's Justice Committee on the Administration of Justice (Reform of Contempt of Court) Bill (or, as it will now be named, the Contempt of Court Bill).

This entered the House as a members Bill in now-retired National MP Chris Finlayson's name, scratching an itch he didn't quite manage to get addressed while Attorney-General. The Government subsequently adopted his bill onto its own legislative timetable, indicating that it is both a worthy and not-particularly politically contentious measure.

What, then, is it designed to do? Well, it delivers on a Law Commission report that recommended overhauling the law governing when a court can punish someone for various forms of "contempt"; basically, preventing the justice system from operating fairly, effectively and expeditiously. As much of the rules around this are "common law" in nature - made up by judges as they go along - the Commission believed a clear statute that codified the matter was the way to go.

And so Chris Finlayson's bill set out to do just that. Much of it simply replicated the Commission's advice, which makes sense. After all, they had looked at the issue in some depth with submissions from interested parties, so it was a very good place to start. And much of what the Commission advised was fairly non-contentious.

But there was one particular bit of the bill that did raise some eyebrows. It proposed making it an offence to "publish an allegation or accusation ... against a Judge or a court, [where] there is a real risk that the publication could undermine public confidence in the independence, integrity, or impartiality of the judiciary or a court." Not only could that offence attract a two year term of imprisonment or a fine of up to $50,000, but the Solicitor General also would be able to "request" (and the High Court could order) that anyone they even thought had committed it remove such statements from the public eye and apologise for having made them.

In a post on his (now seven years in existence!) Double Aspect blog, AUT's Leonid Sirota responded to these proposals in this way:

They are overbroad, infringe the presumption of innocence and freedom of conscience as well as freedom of expression, and rely on a dangerous amount of discretion in their enforcement.  Even if they are not applied to the fullest extent of which they are capable ― and, as I will explain below, I think they are meant not to be ― these provisions will have a chilling effect on lawyers and laypersons alike who might want to comment on the courts, whether in the media, on blogs, or in scholarship. They ought be amended or indeed abandoned altogether.  

He then joined Auckland's Ed Willis in crafting and presenting a submission to the Justice Committee considering the bill that pressed this point and made recommendations about what should be done to fix it. (I and others joined on to this submission, but the real work was Leonid and Ed's). Others raised similar concerns and recommended similar responses.  

And the Justice Committee listened. For in its report on the (now) Contempt of Court Bill, it unanimously recommends getting rid of the proposed offence provision on the grounds that it "could prevent robust, legitimate criticism of Judges and courts". So instead of making the publication of false claims about a court or judge an offence, the Committee recommends that the High Court simply have a power to require the removal of such claims from the public eye if "satisfied that there is a real risk that [the false] allegation could undermine public confidence in the independence, integrity, impartiality, or authority of a court."

Furthermore, the Committee recommends dropping the proposed power to require people to apologise for making such false claims in the first place, on the grounds that "a court requiring that a person apologise for an allegation would constitute compelled speech." There may be good reason to make someone take down lies about a court or judge, but they shouldn't have to (probably falsely) say they are sorry for making them.

Which is all very good. The system works as you would hope it does. A well intentioned, but overly punative, proposed legislative measure is identified and criticised by those with some expertise in the matter, with MPs having time to reflect and recommend changes in response. Which is why there are those of us somewhat uneasy about just how quickly the gun law changes are taking place ... .

But there's one little twist in this tale's tail. For courts are not the only institution with the power to punish "contempts". The House of Representatives also has the power in law to do likewise; under Standing Order 409(1):

The House may treat as a contempt any act or omission which—

(a) obstructs or impedes the House in the performance of its functions, or
(b) obstructs or impedes any member or officer of the House in the discharge of the member’s or officer’s duty, or
(c) has a tendency, directly or indirectly, to produce such a result.

And one of the specific examples in Standing Order 410(o) as to what may be considered a contempt is "reflecting on the character or conduct of the House or of a member in the member’s capacity as a member of the House." Basically, saying rude things about an MP (even true rude things about an MP) can be regarded as a contempt by the House and punished accordingly.

And what can the House do in response to some contempt? Well, it can censure the person responsible. It can fine them up to $1000. It can imprison them for a period up until the next election. And ... it can require that they apologise to an MP and to the House itself for committing a contempt.

In case that issue seems fanciful or theoretical in nature, it's something that has happened in relatively recent political memory. In 2007, the former MP Matt Robson was required to apologise to both Peter Dunne and the House for writing on his "e-mail newsletter" that "the liquor industry’s support for Peter Dunne, as with that of tobacco, has always meant that he has faithfully delivered his vote for their interests.” The apology to Mr Dunne had to be included in Mr Robson's newsletter, and the apology to the House had to be in writing to the Speaker.

You can read the Privileges Committee report imposing that sanction here. And you can read Mr Robson's required apology to the House (as read out by the Speaker) here.

So, here's a question for our MPs. Given the Justice Committee's laudable concerns over "compelled speech" when it comes to requiring apologies to a court or judge, is it appropriate for the House of Representatives to continue to claim (and use) this power for itself? Because that may well be a matter that has to be considered in the not-too-distant future.