Chapter 3
Disruptive behaviour in the courtroom

Current law

3.7The power to punish disruptive behaviour in the courtroom takes both common law and statutory forms. As already noted,243 all courts have authority or power enabling them to do what is necessary to exercise their functions, powers and duties and to control their own processes.
3.8Before 1 March 2017, a variety of empowering statutory provisions covered this area.244 Problematically, these statutory provisions overlapped and differed slightly in scope. To address this, the Law Commission in its 2012 report Review of the Judicature Act 1908: Towards a New Courts Act recommended Parliament should rationalise the various provisions into a standardised provision.245 That recommendation was accepted and relevant provisions were included in legislation modernising the courts. The Judicature Modernisation Bill 2013 was divided at the final stages into a range of Bills, which respectively became the District Court Act 2016 and the Senior Courts Act 2016. The new Acts came into force on 1 March 2017.
3.9Section 165 of the Senior Courts Act 2016 (set out below at [3.14]) covers contempt in the Supreme Court, the Court of Appeal and the High Court, and an identical section, section 212 of the District Court Act 2016, applies to the District Court (including the Family Court and the Youth Court). These provisions replicate the former statutory contempt of court provision in section 365 of the Criminal Procedure Act 2011. Parliament also made amendments to the Employment Relations Act 2000, Resource Management Act 1991, and Te Ture Whenua Maori Act 1993, to ensure one standardised provision for contempt of court applies across the Employment Court, Environment Court, Māori Land Court and the Māori Appellate Court.246

3.10The 2012 Commission report Review of the Judicature Act 1908: Towards a New Courts Act dealt only with Courts and not tribunals. The standardisation exercise undertaken in the Judicature Modernisation Bill did not attempt to rationalise the various tribunal contempt provisions that remain scattered across the statute book.

The issue

3.11While the contempt of court provisions set out the conduct that can cause a person to be taken into custody and held in contempt, and the penalty that can be imposed for this conduct, the provisions provide no substantive guidance on procedure. In its report on the Review of the Judicature Act 1908: Towards a New Courts Act the Commission noted it would consider procedure in its contempt reference.247 In the Issues Paper, Contempt in Modern New Zealand, the Commission raised the question whether a statute should prescribe a procedure for the courts and consulted widely on what such a procedure should be. We set out our findings and recommendations in this chapter. We also make recommendations on amending the existing wording of the provisions and penalty levels in the Senior Courts Act 2016 and the District Court Act 2016.
3.12We briefly cover at [3.52]–[3.55] below the position of tribunals and explain how our recommendations should be applied to tribunals. Some tribunals, for example, the Human Rights Tribunal,248 are essentially courts and therefore have the same or very similar powers as courts to punish for disruptive behaviour. We consider our recommendations on procedure, standardised wording and penalty levels should also apply to these tribunals.
243See chapter 1 at [1.14]–[1.16]; McMenamin v Attorney-General [1985] 2 NZLR 274 (CA) at 276; Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [114].
244These provisions were the Supreme Court Act 2003, s 35; Criminal Procedure Act 2011, s 365; Judicature Act 1908, s 56C; District Courts Act 1947, s 112. Note all of these provisions were repealed on 1 March 2017 and have been replaced by the District Court Act 2016, s 212 and the Senior Courts Act 2016, s 165.
245Law Commission Review of the Judicature Act 1908: Towards a New Courts Act, above n 239, at [9.6].
246Employment Relations Act 2000, s 196; Resource Management Act 1991, s 282; Te Ture Whenua Maori Act 1993, s 90.
247Law Commission Review of the Judicature Act 1908: Towards a New Courts Act, above n 239, at [9.9].
248Human Rights Act 1993, s 114.