Chapter 6
Abusive allegations and false accusations against judges and courts

Submissions on the Issues Paper

6.58APN News and Media Ltd,545 the Police and the Auckland District Law Society Incorporated all supported the introduction of a new statutory offence along the lines set out in the Issues Paper. They considered that while the offence was not used often, the objective of the contempt of scandalising was important and remained valid.

6.59Although most other submitters considered scandalising obsolete for the reasons we set out in the Issues Paper, others we consulted suggested the contempt of scandalising offered something of a symbolic standard for the law. While there were likely to be few (if any) prosecutions, it was beneficial to have a clear statement of what was not acceptable in terms of attacks on the courts and judiciary. Some submitters considered there was scope to consider a statutory offence relating to the administration of justice, or bringing the judiciary and courts into disrepute. Some suggested reliance on defamation as a remedy was problematic, and it was appropriate to have a standard set out in law.

6.60Submitters who were in favour of abolition included TVNZ which considered defamation laws and the framework under the Harmful Digital Communications Act would be sufficient. The NZLS also supported abolition and considered “to the extent that criticism or threatening behaviour is not captured by existing criminal offences, civil defamation or the Harassment Act, it may be accepted as a normal incident of a society that respects free speech and liberty of opinion”. Some of the judges we consulted also considered that, even where scandalising penalised only the worst conduct, it had no place in our society any more.

6.61Crown Law did not offer opinions on the policy options outlined in our Issues Paper. It did note, however, that if a catch-all offence was recommended, this might provide an ideal opportunity to abandon scandalising. If there were to be an offence relating to scandalous conduct, Crown Law raised the issue whether any person charged would have the right to bring evidence placing judges in the position of being called as a witness and challenged accordingly.

6.62During consultation Crown Law advised that a key factor when it was exercising its prosecutorial discretion was considering how the public would view the action. Ultimately, contempt was concerned with public confidence in the administration of justice and, accordingly, sometimes contempt actions would not advance this goal. An example of this would be when the public would likely view a prosecution as heavy handed. Crown Law noted that where the material or conduct in question was extreme the public tended to view it with scepticism. In other words, it was not considered credible so it did not undermine public confidence.

Harmful Digital Communications Act 2015

6.63Some submitters did not consider the Harmful Digital Communications Bill (as it was at the time) and other existing remedies could cover the space occupied by the contempt of scandalising. Crown Law submitted it did not consider the Bill provided a suitable mechanism to deal with complaints about judicial harassment. It also did not support the suggestion that Crown Solicitors, in the name of the Solicitor-General, could make complaints under the legislation on behalf of individual judges. The Police noted the Bill was limited to digital communication; it would not cover attacks on the court that were not digital, and it did not address the risk to public confidence in the administration of justice.

6.64The comments made on behalf of District Court judges were critical of resolving problems through the Bill’s process because the regime under the Bill required people to follow a mediation resolution process through the Approved Agency before seeking a court order.546 Such a process might not be suitable where the harassing party had a personal vendetta against the judge and the court system. Putting the judge and this party face to face might simply be an opportunity for further abuse.
545APN publishes almost 20 daily newspapers (including the New Zealand Herald) and more than 80 non-daily newspapers in New Zealand. It has over 50 websites, mobile sites and apps across Australia and New Zealand, and owns three national radio networks: NewsTalk ZB, The Hits and Coast as well as four other major networks.
546Harmful Digital Communications Act 2015, s 12. As noted above at n 529, Netsafe has been appointed as the Approved Agency under the Act.