Should the High Court retain its inherent jurisdiction to hold a person in contempt?
7.2Common law authority to punish contempt falls within the inherent jurisdiction of the High Court.577 Relevant also are the implied powers that all courts of record have to do what is necessary to enable them to exercise their jurisdiction and perform their functions.578
Inherent jurisdiction and implied powers
7.3As already mentioned, the High Court has authority under its inherent jurisdiction to deal with every aspect of contempt not otherwise addressed in statute.579 The Court has authority under its inherent jurisdiction to find conduct unlawful for interfering with the due administration of justice.580 The High Court’s authority under its jurisdiction extends to upholding the authority of statutory courts and tribunals. It can punish a person for contempt of a statutory court’s or tribunal’s processes where the relevant court or tribunal lacks jurisdiction to do this.581
7.4Again, as we have also discussed, courts with substantive jurisdiction conferred solely by statute, such as the District Court, do not have an inherent jurisdiction. Instead they have the implied powers that are necessary for the exercise of their statutory functions and duties.582 The power of the District Court, for example, to commit for contempt is incidental or ancillary to its substantive statutory jurisdiction either because statute confers the power expressly,583 or because it is necessarily implied to enable the Court to discharge its statutory jurisdiction effectively.584
7.5There has sometimes been confusion over the extent to which the powers of the District Court and other courts that do not have inherent jurisdiction enable those courts to address interferences with the administration of justice that happen outside the court itself.585 To avoid confusion between the authority of the High Court under its inherent jurisdiction and the “inherent and implied” powers of statutory courts under their statutory jurisdictions,586 we have throughout the Report described the contempt authority of the High Court as inherent and the powers of the District Court as express or implied. As already noted, in our view this reflects the differences between the authority and power of the two Courts and recognises the more limited nature of the implied powers under the statutory jurisdiction of the District Court.587
7.6The correct position seems to be that implied powers do not extend to the power to punish contempt outside and away from the court. Only the High Court, under its inherent jurisdiction, has the authority necessary to punish contempt by third parties that occurs outside and away from the court.
Inherent jurisdiction may be circumscribed by statuteTop
7.7To the extent that conduct is exclusively regulated by statutory provisions, the High Court may not exercise its authority under its inherent jurisdiction in a manner that is contrary to those provisions.588
7.8The High Court’s contempt jurisdiction is therefore circumscribed by statutory provisions which replace its authority under the inherent jurisdiction so far as they extend. The Court’s authority under its inherent jurisdiction may supply any deficiency and fill any gap in the statute.589 In chapter 1 we noted that over the years there have been numerous statutory inroads into the common law of contempt and as a result the source of jurisdiction for contempt is now significantly statutory. As a result the law of contempt of court is a mix of court decisions based on the common law inherent jurisdiction and legislation, including powers implied under that legislation. There are relatively few areas where the legal authority to punish for contempt still falls within the High Court’s authority under the inherent jurisdiction. These are:
publishing material that may interfere with a defendant’s right to receive a fair trial (discussed in chapter 2);
placing improper pressure on litigants in civil proceedings and restricting access to the courts (discussed in chapter 2);
actions by jurors that may impact on a defendant’s right to a fair trial or erode confidence in the jury system (discussed in chapter 4); and
publishing material that undermines public confidence in the judiciary and the courts themselves (discussed in chapter 6).
7.9We have recommended in previous chapters replacing the inherent jurisdiction and the use of the High Court’s common law authority in these areas with statutory jurisdiction and new offences. In particular, we recommend:
A new offence to replace the current strict liability contempt of publishing information that interferes with a fair trial (chapter 2 at [2.92] and R7);
A new offence to replace the common law contempt where a member of a jury intentionally investigates or researches information knowing that it may be relevant to the case he or she is trying (chapter 4 at [4.24] and R18);
A new offence to replace the common law contempt where any person, including a person serving on a jury, intentionally discloses, solicits or publishes details of a jury’s deliberations (chapter 4 at [4.74] and R24); and
A new offence to replace the common law contempt of scandalising the court (also referred to as scandalising the judiciary or scandalising judges) (chapter 6 at [6.65] and R43).
7.10The enactment of these recommended new statutory offences would significantly circumscribe the ability of the High Court to use its inherent jurisdiction to punish contempt.
7.11In the Issues Paper the Law Commission asked whether all forms of contempt currently falling within the High Court’s inherent jurisdiction should be replaced by statutory offences, and whether Parliament should abolish contempt of court at common law because it would no longer be necessary.
7.12The Commission also invited feedback on whether the current exception for contempt of court in section 9 of the Crimes Act 1961 was still appropriate in modern New Zealand.590 The Issues Paper noted the punitive nature of contempt and suggested Parliament should bring all contempt offences into line with every other criminal offence in New Zealand and make them statutory. The Issues Paper said it was difficult to see why contempt laws should not be in a statute which would also improve clarity and accessibility.
7.13The Commission expressed the preliminary view that Parliament should extinguish all powers and authority of the courts to punish any person for contempt of court at common law and make the various forms of contempt statutory.
The arguments for contempt being statutory
7.14The Issues Paper outlined a number of arguments in favour of replacing common law contempt with a statute:
It would complete the codification of contempt and mean all offences relating to the administration of justice would be statutory and consequently clearer and more accessible to the New Zealand public. The law relating to interference with the administration of justice (contempt) would be in one place: the statute book.
The serious nature of contempt and the severity of potential punishment for it, including substantial fines and up to two years’ imprisonment, meant it was important that those affected were able to discern what behaviour was unlawful and what the consequences of such behaviour might be.
The law would have greater democratic legitimacy and certainty if it were made by Parliament.
Replacing common law contempt with statutory provisions would enable the public to have its say on the shape of contempt laws and the values the laws embody, rather than leaving the judiciary to determine the scope and nature of the offending conduct without consultation or public discussion as to what the appropriate boundaries should be.
Parliament could address gaps in the jurisdiction of the District Court and other statutory courts in a statute.
The arguments against codification
7.15The Commission acknowledged in the Issues Paper there were also arguments against attempting to address contempt in a statute completely and against extinguishing the High Court’s inherent authority to punish contempt:
The breadth of matters that may potentially qualify as interfering with the administration of justice makes it difficult to draft a sufficiently comprehensive statute.
The scope of conduct that the law of contempt may cover means there is the potential for the drafters of statutes to miss some conduct.
We could only overcome concern about gaps in a statute by retaining a residual role for the inherent jurisdiction, or by having a general broad catch-all statutory provision covering other conduct that might interfere with the administration of justice. A statutory catch-all provision would simply replicate the residual role of the inherent jurisdiction and would not make the law any clearer.
The views of submitters and feedback from consultationTop
7.16Submitters expressed a range of views. There was no consensus. There was extensive support for greater codification to make the law clearer and more accessible, although many who favoured further codification also supported retaining the High Court’s inherent jurisdiction to deal with situations not addressed in the statutory provisions. The New Zealand Law Society (NZLS) said that, because it was so difficult to predict all the possible forms which contempt may take, it would prefer to retain a residual contempt power. A majority of those consulted were concerned that full codification in statute was not possible and attempting this risked missing some conduct. Most agreed that a statutory catch-all offence would be necessary to address this risk if we abrogated the inherent jurisdiction. Some submitters were concerned that we would need to construct the elements of such a catch-all offence broadly and the provision would consequently be no clearer than the common law.
7.17The Police in its submissions supported codifying common law contempt in statute, but did not favour complete codification and abolition of the High Court’s inherent jurisdiction because of the risk that some conduct might be missed. It also suggested it should be responsible for laying charges in the same way as for other offences.
7.18In view of the concerns raised by a number of submitters and by senior judges we consulted, we have decided not to recommend the complete abolition of the authority of the High Court under its inherent jurisdiction to punish for contempt. Our reasons for reaching this conclusion are:
(a) The High Court’s general inherent jurisdiction is crucial in enabling the Court to exercise powers in the public interest for the purpose of ensuring the fair, transparent, expeditious and efficient administration of justice in New Zealand and maintaining public confidence in the justice system. It is an invaluable jurisdiction which no-one has seriously suggested should be abolished. The existence of the general inherent jurisdiction is not at issue in this review of the law.591
(b) The common law authority of the High Court to punish for contempt is an important aspect of the Court’s general inherent jurisdiction as recognised by section 9(a) of the Crimes Act 1961. We should therefore adopt a cautious approach before recommending abolition of any aspect of this important jurisdiction. Before doing so, we would need to be confident that the proposed replacement legislation covered the whole ground. In view of the prospect of unforeseen circumstances, especially with the advent of the digital age, we are not satisfied this test could be met.592
(c) Our recommendations for enacting a range of new statutory provisions to replace a large part of the ground should go a long way to achieving greater accessibility and clearer understanding of the law of contempt. At least to that extent, the new provisions will replace the uncertainties of the common law.593 But retaining the common law authority under the inherent jurisdiction will ensure the High Court keeps a residual authority to cover matters not addressed by the legislation, for example a publication that might affect a civil case.
(d) Repealing section 9(a) of the Crimes Act 1961 would also be likely to raise constitutional issues because the existing provision currently preserves not only the authority of the High Court to punish for contempt but also the authority of the House of Representatives to do so.594 The latter authority is not at issue in this review. Section 9(a) could, however, be amended so that only the authority of the High Court, and not the House, to punish for contempt is repealed or amended.
7.19The new statutory provisions recommended in this Report, and included in the draft Administration of Justice (Reform of Contempt of Court) Bill, expressly state that the new provisions substitute the existing common law of contempt and replace contempt entirely in the areas they cover (see clause 29). They replace all other authority to punish conduct falling within those provisions. To the extent that any matter is regulated by those provisions, the High Court would not be able to exercise its inherent jurisdiction in a manner that is contrary to them.595
7.20In order for Parliament to restrict the Court’s jurisdiction or limit its authority, a statute needs clear and unambiguous language.596 The general constitutional principles that apply mean the courts will not allow “by implication drafting” in a statute to restrict their jurisdiction.597 Ultimately, it is for the Court to determine as a matter of interpretation whether any statutory provision covers any situation before the courts. An express statement in the legislation should, however, make it clear that the common law jurisdiction of the Court to punish the contempt is replaced. As the author of Burrows and Carter Statute Law in New Zealand notes:598
The courts are particularly reluctant to find that statute has abrogated the inherent jurisdiction of the court in any matter, although of course that jurisdiction cannot stand if it is totally inconsistent with the provisions of legislation.
7.21We also recommend the legislation expressly preserve the High Court’s common law authority (forming part of the High Court’s inherent jurisdiction) to deal with any matter falling outside the scope of the legislation (see clause 29). Nothing in the new Act should limit or affect any authority or power of the courts to punish any person for contempt of court in any case to which the Act does not apply.
7.22As discussed in chapter 1, the contempt jurisdiction of the Supreme Court and the Court of Appeal is limited to any relevant statutory powers such as those conferred by section 165 of the Senior Courts Act and, possibly, in their individual capacities as judges of the High Court, to exercising the powers of High Court Judges.599 With the repeal of section 35(4) of the Supreme Court Act 2003, which provided that the Supreme Court had the same power and authority as the High Court to punish for contempt, the Supreme Court itself no longer has that express power and authority. We recommend that any doubt about the contempt powers of the Supreme Court and the Court of Appeal should be avoided by enacting a provision that makes it clear that, in respect of contempt of court, both appellate courts have the same authority as the High Court under its inherent jurisdiction. This recommendation is implemented by clause 29(3) included in the draft Administration of Justice (Reform of Contempt of Court) Bill.
578A court of record is “[a] court that is required to keep a record of its proceedings”: Bryan A Garner (ed) Black’s Law Dictionary (9th ed, Thomson Reuters, St Paul, 2009) at 407.
579Discussed in chapter 1 at [1.8]–[1.16]; see Senior Courts Act, s 12(b); McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [SC12.02]; Sir Jack Jacob “The Inherent Jurisdiction of the Court” (1970) CLP 23; R Joseph “Inherent Jurisdiction and Inherent Powers in New Zealand” (2005) 11 Canta LR 220; and MR Ferrere “The Inherent Jurisdiction and its Limits” (2013) 13 Otago LR 107.
580Siemer v Solicitor-General  NZSC 68,  3 NZLR 441 at –.
581Discussed in chapter 1 at [1.15]; see Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union  NZLR 612 (CA) at 616.
582McMenamin v Attorney-General  2 NZLR 274 (CA) at 276.
583See for example District Court Act 2016, s 212.
584As to the meaning of “necessary implication” see R (Morgan Grenfell & Co Ltd) v Special Commissioners of Income Tax  1 AC 563 (HL) at , BvAuckland District Law Society  UKPC 38,  1 NZLR 326 at , and Cropp v Judicial Committee  NZSC 46,  3 NZLR 774 at .
585This issue is discussed in R Joseph, above n 579; and Ferrere, above n 579.
586See for example, KLP v RSF  NZFLR 833 (HC); McMenamin v Attorney-General, above n 582; Transport Accident Investigation Commission v District Court  NZAR 595 (HC) at .
588Siemer v Solicitor-General , above n 580, at . McGechan on Procedure says that, where a matter before the court is already the subject of precise legislation, the court will rarely choose to exercise any inherent powers. The inherent jurisdiction should be developed and exercised in harmony with the relevant legislation. See McGechan on Procedure, above n 579, at [SC12.02] citing R v Moke and Lawrence  1 NZLR 263 (CA) as authority. See also below at [7.20].
589McGechan on Procedure, above n 579, at [SC12.02].
596The principle espoused by Lord Atkinson in Attorney-General v De Keyser’s Royal Hotel Ltd  AC 508 (HL) at 539. See also the more recent New Zealand Supreme Court decisions: Siemer v Solicitor-General , above n 580, at  and –; and Erceg v Erceg  NZSC 135 at .
597For a general discussion see; John Burrows “Common Law Among the Statutes: The Lord Cooke Lecture 2007” (2008) 39 VUWLR 401; and Reed Dickerson “Statutes and Constitutions in an Age of Common Law” (1987) 48 U Pitt L Rev 773 at 783.
598Ross Carter Burrows and CarterStatute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 577.