Executive summary

Why should we reform the law?

7New Zealand should retain the law of contempt of court, but there are three main reasons why we should reform it.

8First, it is not readily accessible to those it affects. This is because it is to be found partly in a number of different Acts of Parliament and partly in decisions of the courts, some recent, but others old. The law is a peculiar mixture of legislation and case law. Now is the time to collect the law together in one Act. This will make it much more accessible.

9Second, the law is not clear or easily understandable. Courts are still developing the boundaries of the law, especially the line between contempt and freedom of expression and the relationships between the relevant legislation and the case law. Aspects of the law are out of date. The language of contempt is antiquated and inappropriate in modern society. Even the word contempt itself is odd in this context.

10People the law of contempt affects are entitled to know in advance what the law is. News media representatives and bloggers who report court proceedings need to know where the line is drawn between contempt and freedom of expression. Jurors, whose work underpins our criminal justice system, need to know they may not make their own inquiries on the internet, and the reasons for the prohibition. People should not be at risk of imprisonment or a substantial fine without this knowledge, especially as they may commit contempt now without being charged with any statutory criminal offence or without having a trial. Enacting a modern statute will make the law much more understandable.

11Third, in several significant respects the law is not working as it should. In particular, it has not kept pace with the digital age. These challenges include the ready availability of a vast amount of online information and the unrestricted ability of people to communicate their views by way of the internet and social media. These developments have led to a variety of problems for the administration of justice.

12Anyone, including the media, a blogger or a juror, is able to google information about a trial and the people involved in it. This creates real risks of prejudicial pre-trial publicity and of a jury convicting a defendant on the basis of information not proved in evidence and tested at trial. This could jeopardise a defendant’s right to a fair trial.

13Court orders requiring people to take down objectionable material from online sites, some of which may be overseas, are difficult to enforce, especially in circumstances where the material is hosted on less reputable servers that provide a degree of anonymity and have little incentive to comply with the order. There are examples of people simply ignoring or circumventing such orders and a concerning reluctance on the part of authorities to take action. The rule of law is undermined when courts cannot enforce orders.

14False and egregious attacks on the independence, integrity and impartiality of the judiciary, including views published online, are frequently left unanswered. This tends to undermine public confidence in one of the important arms of government and hence the rule of law. If judges face overt or covert bullying or pressure, or personal ridicule or threats, their impartiality or ability to adjudicate without fear or favour may be called into question.

15The law needs to respond to these developments by ensuring courts have adequate and up-to-date powers to address them.