Contents

Administration of Justice (Reform of Contempt of Court) Bill and commentary

Part 3 – General provisions and consequential amendments

Clause 28 – Judicial powers exercisable as often as necessary to control proceedings

28 Judicial powers exercisable as often as necessary to control proceedings

(1) This section applies to the following actions under this Act:

(a) making an order under section 8, 9, 10, or 26:

(b) citing a person under section 16:

(c) issuing a warrant of committal or imposing a fine under section 17 or 22.

(2) Unless the context otherwise requires, the power of a Judge or judicial officer to make any order or take any action under this Act to which this section applies is exercisable in any proceedings as often as the Judge or judicial officer considers necessary to control the proceedings.

Commentary

Clause 28 provides that the listed powers may be exercised by the court as often as necessary. This reflects the current position, under which an individual causing repeated or ongoing disruptions to court proceedings, for example, may be detained daily and potentially for the duration of proceedings. This is also similar to section 165 of the Criminal Procedure Act 2011, under which a witness refusing to give evidence may be detained for a period of up to seven days, which may be renewed as long as the witness continues their refusal. The ability of the judge to exercise these powers as often as necessary is essential to ensure the efficient conduct of court business.

Clause 28 is consistent with section 13 of the Interpretation Act 1999, which provides that powers and duties conferred by legislation may be exercised more than once.

Clause 29 – How this Act relates to other authority or power to punish for contempt of courtTop

29 How this Act relates to other authority or power to punish for contempt of court

(1) Where this Act confers on a court or Judge any jurisdiction, authority, or power to punish a person for contravening or failing to comply with any provision of this Act, the court or Judge has no inherent jurisdiction or power to punish that conduct.

(2) Nothing in this Act limits or affects any authority or power of a court, including the authority of the High Court under its inherent jurisdiction, to punish any person for contempt of court in any circumstances to which this Act does not apply.

(3) The Supreme Court and the Court of Appeal have the same authority as the High Court to punish any person for contempt of court in any circumstances to which this Act does not apply.

(4) The following contempts are abolished as part of the common law of New Zealand:

(a) contempt in the face of the court:

(b) publishing information that interferes with a fair trial:

(c) contempt by jurors:

(d) disobeying court orders:

(e) scandalising the court.

Commentary

This Bill abolishes the listed common law contempts, and in their place substitutes a new statutory offence regime. While this is intended to be largely exhaustive of the range of behaviour that may be described as contempt, it is of fundamental importance that this Bill should not inadvertently curtail the courts from dealing with conduct not otherwise covered by the Bill. Where this Bill does not apply to a form of conduct, the High Court may still have recourse to its authority under its inherent jurisdiction.

As discussed in chapter 1 at [1.11] and in chapter 7 at [7.22] the contempt jurisdiction of the Supreme Court and Court of Appeal is limited to any relevant statutory powers such as those conferred by section 165 of the Senior Courts Act 2016 and, possibly, in their individual capacities as judges of the High Court, to exercising the powers of High Court Judges. Sub-clause (3) removes any doubt about the contempt powers of the Supreme Court and the Court of Appeal by clarifying that, in respect of contempt of court, both appellate courts have the same authority as the High Court has under its inherent jurisdiction.

Clause 30 – Prosecution of offence against section 24Top

30 Prosecution of offence against section 24

Only the Solicitor-General may conduct or authorise the conduct of a prosecution against a person for an offence against section 24 (publishing untrue allegation or accusation against Judge or court).

Commentary

The requirement that the Solicitor-General conduct or authorise the conduct of prosecutions for the offence against clause 24 reflects the current position, and is consistent with the Solicitor-General’s constitutional responsibility to uphold and maintain the rule of law and protect the independence of the judiciary. It also allows the Solicitor-General to consider wider issues of public interest and other matters when determining if a prosecution should be brought. This may involve consideration of factors outlined in our Report, as well as the test for prosecutions contained in the Solicitor-General's Prosecution Guidelines.

Clause 31 – Consequential amendmentsTop

31 Consequential amendments

Amend the enactments specified in Schedule 2 as set out in that schedule.

Commentary

Schedule 2 contains only the more obvious consequential amendments necessary to give effect to the proposals in the Bill. A number of other amendments will therefore need to be added to the schedule before the Bill is introduced.