The law of contempt of court will be unknown to many people. Yet it is important law because it provides the ultimate sanction of imprisonment for those who seek to prevent the justice system from operating fairly, effectively and expeditiously. The law of contempt of court ensures:

All of these outcomes are essential in a constitutional democracy such as New Zealand. They are all part of the rule of law which New Zealanders expect will underpin the administration of justice and which will apply to everyone, including Parliament and the government of the day.

Without these outcomes New Zealand’s standing as a country with an enviable justice system, a judiciary of high standing and an absence of corruption would be at risk.

There are increasing signs, especially in this digital age, of people “thumbing their noses” at the rule of law, including examples of court hearings being disrupted, online publicity unfairly prejudicing trials, jurors googling information, people failing to comply with court orders, and false and egregious attacks on the judiciary going unanswered.

When it comes to the publication of information unfairly prejudicing trials and false attacks on the judiciary, it is important to recognise that such publications are not protected by the right to freedom of expression.

Freedom of expression is of course an important right in New Zealand affirmed by the New Zealand Bill of Rights Act 1990. But it is not an absolute right.

The New Zealand Supreme Court has held the right to a fair trial may be more important. Fair trials may be prejudiced by the publication of information about a defendant and by jurors discovering information online which is not part of the evidence at the trial.

Similarly, the publication of false attacks that undermine public confidence in the judiciary may be in contempt of court. The right to freedom of expression does not protect the publication of untrue factual allegations and opinions based on them.

Contempt of court is a serious business. People who are held in contempt may be imprisoned or fined. People who are at risk of penalties of this nature – including news media representatives and users of online media platforms such as bloggers – need to know where the line between freedom of expression and contempt is drawn.

At present the law is a mix of common law (court decisions) and statutory provisions. The Law Commission was asked to review the law to consider whether it should be modernised and brought into one new easily accessible and understandable Act of Parliament.

After consulting widely over several years, we have concluded that the law should be brought up-to-date in one statute. In particular, we recommend the abolition of the various old common law contempts of court and their replacement with new statutory offence provisions that are easier to understand and apply. We also propose new provisions specifically empowering courts to make take down orders for material on the internet and social media platforms that is liable to affect the administration of justice adversely.

At the same time, we recommend the High Court should retain its inherent jurisdiction so it may still address any conduct not otherwise covered by the new statute.

If Parliament accepts our recommendations and enacts our proposed new offences, it will be important for the new offences to be enforced in appropriate cases. The Crown Law Office and the Police will need adequate resources to ensure they can bring to account those who commit the new offences. If the new offences are not enforced, there is a real risk the rule of law will be undermined with the adverse consequences already mentioned.

The Hon Douglas White QC signature

Douglas White