Chapter 1

Our review

The Terms of Reference

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:

Conduct of the reviewTop

1.79The Commission began work on the reference in 2013. In doing so, it had the benefit of:

(a) Dr Julie Maxton’s Auckland University 1990 doctoral thesis on the law of contempt which described the history and development of the law and identified issues and problems with it.110
(b) Professor ATH Smith’s 2011 discussion paper prepared for the Attorney-General which provided a complete overview of the current law and raised a number of questions about reform of aspects of the law.111
(c) Discussion papers and reports prepared by overseas law reform agencies over recent years providing an overview of the law in comparable jurisdictions and recommendations for reform.112

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.

1.83Because of the delays in completing our Report and the changes in Commissioners, the Commission made some changes in its approach to some of the issues raised by this reference. During 2016 we therefore referred a preliminary draft of our Report to a group of independent reviewers: Emeritus Professor John Burrows QC, Bruce Gray QC, Dr David Harvey, Director of the New Zealand Centre for Information and Communication Technology Law, the Hon Sir John McGrath, retired Supreme Court Judge, and Professor ATH Smith of Victoria University of Wellington. We also referred the draft Report to the Heads of Bench,113 the Solicitor-General, Ministry of Justice officials, the Judicial Conduct Commissioner and representatives of the defence bar for their comments, and we had further meetings with the Solicitor-General, the Deputy Solicitor-General (Criminal) and the Police.

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.

Our principal recommendation: an Administration of Justice (Reform of Contempt of Court) ActTop

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:

1.89A new Act would resolve current uncertainties over what conduct constitutes contempt at common law. Legislation would make the law in this area as clear as possible and much more accessible to those it is likely to affect. A new Act would also address the jurisdictional issues discussed earlier.114 It would abolish antiquated forms of contempt and modernise the language and procedures applying to contempt of court.

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.

1.93A draft Administration of Justice (Reform of Contempt of Court) Bill is included in our Report. The Bill is designed to implement our various recommendations and is drafted in modern language. In accordance with good practice,115 the Bill includes a provision (clause 3) explaining the principal purposes and objectives of the new legislation. We have also provided commentaries on the Bill’s provisions and refer to the relevant clauses of the Bill in the course of our Report.

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.

110Julie Maxton “Contempt of Court in New Zealand” (PhD Thesis, University of Auckland, 1990).
111ATH Smith Reforming the New Zealand Law of Contempt: An Issues/Discussion Paper (Crown Law Office, April 2011).
112Australian Law Reform Commission, above n 60; Law Reform Commission of Western Australia, above n 60; Law Reform Commission of Ireland, above n 105; Law Commission of England and Wales Contempt of Court: Scandalising the Court (LawCom No 335, 2012); Law Commission of England and Wales Contempt of Court: Juror misconduct and internet publications (Law Com No 340, 2013); and Law Commission of England and Wales Contempt of Court: Court Reporting (Law Com No 344, 2014).
113The Chief Justice of New Zealand, the President of the Court of Appeal, the Chief High Court Judge and the Chief District Court Judge.
114See above at [1.55]‒[1.56].
115Law Commission A New Interpretation Act: To Avoid “Prolixity and Tautology” (NZLC R17, 1990) at [224] and Law Commission Legislation Manual: Structure and Style (NZLC R34, 1996) at [30]; and Legislation Advisory Committee Guidelines on Process and Content of Legislation (Wellington, 2014) at 46. See also: Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [42]‒[43]; and Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at ch 8.