Taking rights seriously

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By Steven | August 4, 2011

So I am sitting in the public gallery of courtroom 9 in the Wellington District Court building, watching a Human Rights Review Tribunal case. Beside me is Dr Rayner Thwaites, who teaches at Victoria University’s law school and has a close interest in discrimination issues. He starts taking notes. Within minutes, he is approached by a court official who orders him to stop writing.

This is a scene that is often repeated in the Wellington District Court. No doubt judges and tribunal chairs have the right to control what goes on in their courtrooms, but I think this blanket practice is unlawful. I think it’s inconsistent with the principle of open justice, which must surely include the right of anyone to take notes. I also think it breaches the NZ Bill of Rights Act, which protects the right to seek, receive and impart information and opinions of any kind and in any form. That’s subject to demonstrably justified limitations, but I can’t see how that might apply here. What harm can be done by taking notes that is not also being done by journalists who are scribbling away on the bench in front? Yes, permission could be sought, but who knows that? Most people just put down their pen, looking bemused.

No big deal, you think? I think it is. I think it demonstrates how insensitive our legal system can be to free speech issues. Let me give you some more examples. Let’s say I want to advertise my house for rent during the Rugby World Cup. Let’s say my advertisement says: “Want to stay in Wellington during the Rugby World Cup? Rent my house for $1000 a week.” In short order, I am likely to get an official cease and desist letter. My offence? Using the magic words “Rugby World Cup” without permission. But no-one would think I was connected with the RWC organisation just by reading my ad, you think? I agree. But the Major Events Management Act may not. It presumes that ads using key phrases, including “Rugby World Cup”, are unlawfully associating themselves with the RWC administration. It’s not clear how easily that presumption can be rebutted. There’s a potential fine of $150,000. Is this provision seriously a demonstrably justified restriction on my rights to free speech?

And what about the Department of Corrections’ recent decision to ban the Truth Weekender from some inmates at Auckland Prison? Under section 43(2) of the Corrections Act 2004, they can refuse permission for possession of items that “may interfere with the effective management of the prison”. Corrections argues that the paper contains “sensationalised and often inaccurate” news stories about the prison and is “detrimental to rehabilitation and reduced reoffending” in that it “normalises and supports criminal beliefs and attitudes”. I don’t read the Truth, but it is difficult to believe that this ban is consistent with the Bill of Rights. Properly understood, free speech guarantees are particularly suspicious of attempts to ban information based on supposedly pernicious viewpoints or because it’s perceived to be inaccurate.

Want more? The Court of Appeal was recently called on to review the highest defamation award in New Zealand’s history: $900,000. It was against businessman Vince Siemer, who has waged a campaign against the business practices of Michael Stiassny that has involved a website, a billboard drawing attention to the website, pamphlets, complaints to professional organisations and repeated flouting of court orders that he desist. It’s not clear how many people have accessed the website. Is this really the worst defamation in the history of the British Commonwealth, as the Court of Appeal described it? Is $900,000 really a proportionate penalty? In making a broad assessment of the courts’ powers to award damages in defamation cases, surely a mention of the Bill of Rights would have been in order.

I could go on.I hope the point is obvious. We’re not always very good at identifying free speech issues. And we don’t seem to be very good at resolving them in accordance with the Bill of Rights. It need not be a complicated process. It simply involves ensuring that restrictions on speech imposed by the exercise of public power (both in the design of rules and their implementation) are proportionate ones. That in turn requires the value of the speech to be assessed and weighed against the importance and likely effectiveness of the restriction.The sorts of questions that must be addressed are sensible ones. Is this the type of speech that needs particular protection? Does it help us govern ourselves or play into the marketplace of ideas? The courts have recognised that this requires us to reckon with the value of types of speech: political speech is more socially valuable than celebrity tittle tattle, for instance. On the other side of the equation, we must weigh the value of the restriction. Does it aim at achieving something important? Is there good reason to think that the restriction will achieve the aim? Are there other ways of doing it that don’t trammel free speech so much? Increasingly, the courts are requiring these questions to be asked.

This exercise is more familiar to Continental lawyers than common lawyers. We like hard and fast rules. But we’re going to have to get used to it. The Bill of Rights requires Bills to be assessed against these principles. Section 6 tells courts to interpret laws consistently with them where possible. Secondary legislation that doesn’t comply with the Bill of Rights is ultra vires. The Court of Appeal in Hosking v Runting said that the common law must be developed consistently with the Bill of Rights. Statutory powers and discretions must be exercised in conformity with it. It binds even some private organisations exercising public functions – the Press Council, the Advertising Standards Authority, TV3 when it decides who can come on its election debate programme.The Bill of Rights has already worked huge changes in our free speech landscape: influencing a defamation defence and the contours of the privacy tort, cutting back powers of punishment for contempt, constraining the powers of our censor and broadcasting standards watchdog. There’s more to come. I hope the next step is abolishing the practice of stopping the public from taking notes in court.First published in NZ Lawyer magazine.

Topics: NZ Bill of Rights Act | 51 Comments »

51 Responses to “Taking rights seriously”

Dean Says:
August 7th, 2011 at 6:30 pm

The practice of ordering people to stop taking notes is an odious one. It just strikes me as achieving nothing but making people feel as if they are unwelcome. It’s not just the courts that do this, of course.
Merv Says:
August 9th, 2011 at 10:25 am

You need to appreciate that court officials (I include the judges) aren’t the sharpest knives in the kitchen drawer.

Preventing someone taking a few notes pre-empts the 4 highlights of any official’s normal working day; namely: morning tea, lunch, afternoon tea, and leaving work to board the bus for home.
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