6.53In our Issues Paper we identified the following issues requiring resolution:
(a) Whether the common law contempt of scandalising the court should be abolished in New Zealand because it was now virtually obsolete here, no cases having been brought since Solicitor-General v Smith.
(b) Whether the anachronistic term “scandalising” was unsatisfactory.
(c) Whether the uncertain scope of this form of contempt, particularly the guilty intention requirement and whether truth or justification was a defence, called for reform.
(d) Whether the use of a summary procedure when there was no need to protect a particular trial was appropriate.
(e) Where to draw the line, if at all, between legitimate criticism of the judicial system and criticism that undermined confidence in the administration of justice.
6.54We outlined one main proposal and two consequential options. The main proposal was to abolish the common law contempt of scandalising the court. The two consequential options then were to:
(a) rely on other existing avenues and sanctions for remedies in situations where judges or courts were unfairly subject to vitriolic criticism (such as existing statutory offences and civil defamation); or
(b) replace the common law contempt of scandalising with a new statutory offence. For example, an offence of publication of material imputing improper or corrupt judicial conduct, which, having regard to the nature of the published statement, the status of the person making the statement and the likely audience, created a real risk of impairing confidence in the administration of justice.
6.55The Commission expressed preliminary support in the Issues Paper for the first option.
6.56In proposing as the second option the replacement of the common law contempt of scandalising with a new statutory offence of some kind, the Issues Paper suggested there could be a defence to such an offence if the allegations were true or publication was for the public benefit. The law would also need an exception to allow allegations of judicial misconduct to be made to the Judicial Conduct Commissioner.
6.57The Commission suggested the defence of truth or public interest might ensure the offence was compliant with NZBORA. One problem with enacting an offence with a defence of truth and public interest would be that it would effectively put the judge on trial and subject the judge’s conduct to scrutiny outside the statutory process for dealing with complaints against the judiciary.