1.76In 2013, the then Minister Responsible for the Law Commission, Hon Judith Collins, asked the Law Commission to undertake a first principles review of the law of contempt and to make recommendations to ensure the law was appropriate for modern New Zealand.
1.77The Terms of Reference specifically asked the Commission to consider whether the common law of contempt should be amended or replaced by statutory provisions and, in particular, asked for an examination of:
1.78In conducting this review, the Commission was to take into account:
1.79The Commission began work on the reference in 2013. In doing so, it had the benefit of:
1.80In May 2014, the Commission produced an Issues Paper Contempt in Modern New Zealand, which outlined the Commission’s proposals for modernisation and reform. The Commission invited public submissions and comments on the Issues Paper, with the period for submissions closing at the end of August 2014. The Commission received 26 formal submissions, including submissions from the law societies, some media organisations, interested academics and students, the Police and the Crown Law Office and comments from the Chief District Court Judge.
1.81Following the consultation period, the Commission undertook targeted discussion with members of the judiciary, the Crown Law Office and a number of academics with a view to settling policy and completing a report that would include a draft Bill by March 2015. Parliamentary Counsel prepared a draft Bill for the Commission during this period.
1.82Due to the Government prioritising other Commission work, the contempt reference was put on hold at the end of 2014. In February 2016, work recommenced under the lead of a new Commissioner, as the Commissioners previously involved in the project had left the Commission.
1.84The Commission received valuable comments from everyone who reviewed our draft Report. These have been taken into account by the Commission in making its policy decisions and recommendations and in finalising this Report.
1.85We reengaged Parliamentary Counsel to assist with drafting a new Administration of Justice (Reform of Contempt of Court) Bill.
1.86The Commission has concluded that the common law and existing statutory contempt of court provisions should be replaced by a new Act.
1.87As discussed above, the common law is outdated and confusing and there are a number of problems only legislation can address. It is unrealistic and also inefficient to leave the courts to clarify the law incrementally. The Commission considers that a new Administration of Justice (Reform of Contempt of Court) Act is necessary to clarify and modernise the law.
1.88Our conclusion has in part been driven by the following general principles:
1.90Arguably legislation also gives greater constitutional legitimacy to the law because the legislative process enables the public to have its say on the shape of the law and the values the laws embody.
1.91In our Report we propose a substantial but partial codification of the law. The Commission favours retaining the High Court’s common law inherent jurisdiction to address matters not otherwise covered by the proposed new statutory provisions. Contempt is an area of law where we cannot always achieve certainty and predictability. We need some continued flexibility which the Court’s inherent jurisdiction can provide. The new Administration of Justice (Reform of Contempt of Court) Act would, however, clarify the interrelationship between the High Court’s remaining common law contempt and the new statutory provisions.
1.92In considering statutory reform options, we have also assessed our recommendations carefully in an endeavour to ensure they are economically sound and are unlikely to have unintended consequences.
1.94If the Bill is enacted, the success of our various recommendations will depend at least in part on those responsible for enforcing the new offences having the resources and willingness to do so.