22 June 2017


The New Zealand Law Commission has released the 212 page report of its review into the laws of contempt of court: Reforming the Law of Contempt of Court: A Modern Statute - Ko te Whakahou i te Ture mō Te Whawhati Tikanga ki te Kōti: He Ture Ao Hou.

The Commission states that
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:
  • court hearings are not disrupted; 
  • trials are not prejudiced by unfair publicity; 
  • jurors decide cases only on lawfully admitted evidence; 
  • judgments and court orders are enforced; and 
  • the judiciary is protected as far as practicable from false and egregious attacks which undermine public confidence in its independence, integrity and impartiality.
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
It accordingly recommends modernising the laws of contempt, commenting
Contempt laws protect the justice system, including a defendant's right to a fair trial. The law in this area has evolved in a piecemeal fashion throughout its long history, which has resulted in a lack of certainty. Contempt laws are increasingly antiquated and inappropriate in our modern society. They predate the digital-age and need to be updated to address these technological developments. 
The Commission accordingly recommends a new statute - the Administration of Justice (Reform of Contempt of Court) Act - to replace common law with new offences, new enforcement provisions and new processes.

Specific recommendations include -
  • Clearer statutory rules governing the publishing of information on an arrested person’s previous convictions and concurrent charges 
  • New statutory powers allowing the courts to make temporary suppression orders postponing publication of information that poses a real risk of prejudice to an arrested person’s fair trial. 
  • A new statutory offence to replace the common law contempt of publishing information where there is a real risk that the publication could prejudice a fair trial. 
  • A new standardised procedure for dealing with disruptive behaviour in the courts that interrupts proceedings and interferes with a court’s ability to determine the proceedings effectively and efficiently. 
  •  A new offence to replace common law contempt where a member of a jury investigates or researches information which he or she knows is relevant to the case. 
  • The antiquated contempt of scandalising the court should be abolished. 
  •  A new offence of publishing untrue allegations or accusations against the judiciary when there is a real risk that the publication could undermine public confidence in the independence, integrity or impartiality of the judiciary or courts.