Offensive language
June 21, 2010
“Of course we have freedom of speech in New Zealand, but that doesn’t mean we have to use that freedom of speech to cause offence to people, particularly to overseas visitors.”
— Murray McCully, criticising Greens leader Russel Norman for his protest against Chinese human rights abuses in Tibet.
“Freedom to speak only inoffensively isn’t worth having.”
— Sir Stephen Sedley, overturning the conviction of a protester in Redmond-Bate v DPP
Topics: Protest speech | 50 Comments »
Off-Target
June 11, 2010
The BSA has just given TV3’s hidden-camera wielding consumer affairs show Target a spanking for wrongly claiming that Cafe Cezanne’s chicken was infested with faecal coliform. Turns out, Target had got its samples mixed up.
Worse than that, Top Shelf, the company that produces Target, initially provided wrong information to the cafe about when the sample was gathered.
Worse than that, when it corrected itself, Top Shelf provided another wrong date for the sample.
Worse than that, when it caught its error, TV3 tried to offer the cafe free promotional advertising across its radio network instead of broadcasting an apology.
Worse than that, when Target did broadcast an apology, it only said that it couldn’t be sure which cafe’s food was contaminated, leaving open the possibility that it was Cafe Cezanne. In fact, by then Top Shelf had tracked down the receipt that showed that the cafe’s sample was gathered and sent to the lab the day before the contaminated sample was sent to the lab. The receipt proved that the contaminated sample couldn’t have come from that cafe.
On the same day as the (half-arsed) apology was broadcast, the cafe’s lawyers asked Top Shelf for a copy of the receipt. It took Top Shelf more than ten weeks to supply it.
And worse than that, it wasn’t until January 2010 at the prompting of some searching questions from the BSA that Target revealed its policy of delivering samples to the lab on the same day as they were collected… the final piece in the puzzle that exonerated the cafe.
Not surprisingly, the BSA’s decision is scathing. It found breaches of the accuracy and fairness standards. TV3 was ordered to publish an apology on TV, on each of the MediaWorks’ radio stations, and in the Herald (only the second time, I think, this order has been made, and the first time that a broadcaster has been forced to broadcast a statement on associated stations), pay legal costs of $28,068.75 and $10,000 costs to the Crown (effectively a fine).
It’s not clear that Top Shelf or TV3 has been deliberately deceptive. TV3 insisted that it simply failed to make the connection due to human error (one of a burgeoning number of human errors revealed in this case), and the BSA accepted that the errors were not “intentional or malicious”, instead finding them “cavalier”.
I don’t know where the truth lies, but I’m not sure I’d be so charitable. Did Top Shelf really take more than six months to put all the pieces together? Why the huge delay on providing the receipt?
Topics: Broadcasting Standards Authority | 2 Comments »
Siemer’s right-to-jury case
June 11, 2010
Predictably, Vince Siemer is not happy about the Supreme Court’s 17 May decision to cut his contempt sentence to 3 months instead of 6. (In fact, he has applied to have it recalled. Good luck with that, Vince).
For someone who regards the NZ judiciary as largely corrupt, he’s a glutton for punishment: he goes back to court again and again. Curiously, though, the one appeal he didn’t bring was against the High Court’s rather troubling order to debar him from defending the defamation case against him. Siemer also says he’s planning a habeus corpus application. Given the amount of ink the courts have already spent on Siemer’s claims, let’s just say the application seems optimistic.
Siemer did hit on a problem with our contempt laws. The Bill of Rights says we have right to jury if charged with an offence for which we can be jailed for more than 3 months. Contempt can land you in jail for more than 3 months. Where’s the right to a jury?
The Crown sought to maintain the distinction between civil contempts and criminal contempts.Criminal contempts are about punishing someone for prejudicing the administration of justice.Civil contempts are merely to coerce people to obey court orders. So civil contempts aren’t really criminal. They’re not offences. Ergo: no right to a jury. (The lovely irony here is that this is the approach taken in Siemer’s own country, the United States. His right-to-jury argument wouldn’t have flown there).
The Court of Appeal bought this to some extent, but ended up ruling that you’re not really being imprisoned for more than 3 months if you can get out by agreeing to comply with the court order you’ve been jailed for breaching. The Court jiggered Siemer’s jail term so that he could get out early if he agreed to comply and promised not to breach the order again.
The Supreme Court took a different approach. It has now all but demolished the distinction between civil and criminal contempt. The minority say it’s “best avoided as unhelpful”. The majority say it doesn’t work “in this context”. All the judges agreed that this form of contempt does create an offence for which you can be liable to more than 3 months in jail. So it triggers the right to a jury.
But the rights in the Bill of Rights are not absolute. They can be restricted if the limitations are prescribed by law and can be demonstrably justified. Two judges thought the right of courts to hold people in contempt and send them to jail without a jury trial is demonstrably justified. Judges need these powers to act quickly to address challenges to the authority of the court and maintain public confidence in the justice system. You can’t go giving someone a jury trial every time they wanted to breach a court order. Besides, it will usually be pretty clear that there’s been a breach. And the accused will still be given most criminal protections (the judges seem to indicate that rights of cross-examination are included, which I think is new in NZ). Anyway, these powers are to be exercised with the greatest restraint.
The majority judges agreed with pretty much all of that. The “it’s only a civil contempt” argument didn’t wash with them. They thought the right to a jury trial was triggered. They also thought that jury trials were unfeasible in the context of contempt cases. They added that it would undermine the authority of the court to have juries enforcing judicial orders, and it would be tricky for juries to interpret court orders and work out whether they were breached. (Spare a thought, then, for the people who have to work out what they mean in order to comply with them! In reality though, as the minority judges point out, it’s usually going to be very straightforward to work out whether a party is in breach of an order. No more difficult, I might add, than working out whether someone’s breaching some of our curlier criminal laws, which has always been the province of the jury).
Where the majority judges parted company with the minority was in their conclusion about whether longer judge-ordered jail sentences for contempt were demonstrably justifed limitations on the right to a trial by jury. The majority thought not. Prison is a severe punishment. Contempt penalties are open-ended. In one US case a man languished in jail for 14 years. What to do, then? They weren’t prepared to give everyone jury trials. They make a (rather unconvincing, I think) big deal of the fact that NZ has never given anyone a jury trial for contempt before:
It would be a bold step to introduce it here for the first time as a by-product of s 24(e).
A “by-product”? You mean, like, complying with the actual words of the right to jury contained in s 24(e)? And why isn’t it equally bold to hack back the maximum penalty for contempt from what’s existed through the ages?
The majority decided that the only answer was to cut back the maximum prison penalty for contempt to 3 months. That maximum applies, on the face of it, to everything from breaching a timetable order to deliberately publishing some information so highly prejudicial that a trial has to be abandoned midstream.
Does 3 months seem too little sometimes? Not usually, say the majority judges. And anyway, in cases like Siemer’s at least, if he keeps refusing to comply with the order, he’ll be committing a further offence, and we can pop him back in jail for another 3 months. And then another. And another.
I’m not sure there’s an easy solution here, and this possibility of repeated punishment is not exactly unprincipled, but it sits rather uncomfortably with the majority’s rhetoric about the gravity of a prison sentence making restrictions on the right to a jury unjustifiable.
I think we can probably expect some legislation in due course specifically authorising longer penalties for contempt.
The upshot for Vince Siemer is that he’s off to prison for three months, unless his recall or habeus corpus applications succeed. For him, this result is like some conjuring trick the Supreme Court has come up with to deny him a right to a jury trial. He continues to assert (and to try to argue at every opportunity) that he was never in contempt of court in the first place.
Some other notable points:
— The Supreme Court takes it for granted that the Bill of Rights can be used to fundamentally re-configure the law of contempt (hat-tip to Claudia Geiringer for this point). The Supreme Court take a strongly purposive approach to the Bill of Rights – it’s designed to offer robust criminal protections and should be interpreted broadly and not technically. (That approach gets interesting in other cases where BORA rights clash with a Parliamentary purpose to achieve something else, like regulating electoral advertising or offensive behaviour.)
— It seems that those accused of contempt have the right to call and cross-examine witnesses, even for “civil”-type contempts.
— It also seems that the law of contempt is sufficiently clear to satisfy the requirement that it be “prescribed by law”. I’m not so convinced about that.
— The Chief Justice and McGrath J (the minority judges) seem to see perverse acquittals by juries as a part of their constitutional function.
Topics: Contempt of Court, NZ Bill of Rights Act | 47 Comments »
Open up Parliament too!
June 11, 2010
The latest Ministers’ expense relevations once again demonstrate the value of transparency and the shakiness of the assurances that “systems are in place to ensure propriety”. Good on National for increasing the level of transparency. But since they’re so hot on it, why not bring Parliament under the Official Information Act too (and the Attorney-General as well), so that we can look at MPs’ expenses as well, including the use of Parliamentary income streams for electioneering purposes.
Topics: Official Information Act | No Comments »
UK defamation reform bill on the way
May 27, 2010
Lib-Dem peer, Reynolds lawyer and free speech thinker Lord Antony Lester has drawn up a Defamation Bill to try to even the balance between speech and reputation in the UK. Details are sketchy at the moment, but the proposals seem to include a requirement that plaintiffs prove some sort of “real harm” and corporate plaintiffs to prove loss; a simplified public interest defence; and changing the usual mode of trial to judge-alone.
Inforrm discussion here.
Topics: Defamation | 1 Comment »
Morse wins right to appeal flag-burning conviction
May 18, 2010
Yay! Tony Shaw, Felix Geiringer and I have been granted leave by Supreme Court to argue that Valerie Morse should not have been convicted of offensive behaviour for burning a flag at an Anzac Day ceremony. Along the way, hopefully we’ll be able to sort out how the Bill of Rights applies to open-textured criminal offences like this one, and particularly when they’re applied to protesters.
Topics: NZ Bill of Rights Act, Protest speech | 2 Comments »
Siemer wins reduction in sentence for contempt
May 18, 2010
Vince Siemer has reshaped the law of contempt in New Zealand. The Supreme Court has ruled 3-2 that the Bill of Rights right to a jury trial applies to those charged with contempt, since they face potential jail terms of more than 3 months. But since it’s unfeasible to give all contempt respondents jury trials, the maximum penalty for contempt of court is now 3 months. That’s on a par with seeking donations by false pretence or disorderly assembly.
So Vince is still off to jail, but for three months, not six.
Topics: Contempt of Court, General, NZ Bill of Rights Act | 49 Comments »
Price wins chocolate fish
May 18, 2010
In a recent speech Law Commission President Sir Geoffrey Palmer laid down a challenge: define “privacy”. He promised a chocolate fish for the best entry. His view is that privacy defies definition. I proved him wrong. This is the correct definition of privacy:
Privacy is what people believe they have lost when they complain about their privacy being infringed.
I am delighted to announce that I won the competition. Now that I have consumed the prize, I can safely confess that I thought this entry was better:
I have a definition of “Privacy” for you, unfortunately because of privacy laws I am unable to divulge it to you.
As you’ll see, many entrants made the mistake of making a serious attempt to define privacy, and most of them submitted definitions revolving around control of personal information. What this misses is privacy invasions that consist of invading private spaces or paying unwanted attention. On a serious level, I think my colleague Dr Nicole Moreham has come up with a pretty robust and workable definition of privacy as a state of desired inaccessibility. But happily for me, she didn’t enter.
Topics: Privacy tort | No Comments »
Jones wins defamation damages of $104,000
May 18, 2010
Bob Jones won $104,000 in his defamation case against Chris Lee. I don’t know much about the case, but on this report it illustrates some good lessons: an apology in time can avert an expensive and risky court battle; both sides’ costs probably exceeded the damages award (though such actions are cheap compared with costs in the UK); and it doesn’t pay to take on Bob Jones, as Hugh Templeton also famously discovered.
Topics: Defamation | 124 Comments »
Hate speech
May 10, 2010
In recent issues of the Listener, Deborah Hill Cone has been upping the frequency of her snarky swipes at the left. Last week, she highlighted the irony of liberals who preach tolerance but try to “shut down” Ann Coulter’s speech. She suggested that “[c]onservative speakers can’t visit campuses in the US now without bodyguards”. What, all of them?
Anyway, who are these liberals calling for her books to be burnt? Aren’t most liberals simply trying to point out that Coulter’s bile-filled screeds are riddled with errors and that she’s not worth listening to?
The week before, Deborah wrote:
The Spectator’s Hugo Rifkind took the words right out of my mouth about why he couldn’t be a leftie: “I could never be comfortable on the left, there’s too much hate there.”
Can she seriously believe this? The usual knock on liberals is that they are softies, tree-hugging, criminal-coddling, immigrant-loving, PC wetnurses. They care too much. Righteousness, that’s the liberal speciality, not hatred.
Sure, the left produce some nasty invective, but it’s not a patch – not a stitch on a patch – of the hatred spilled on the right. Where’s the left’s equivalent of WhaleOil? Or Michael Laws? Of Fox News, Rush Limbaugh, Powerline, Michael Savage?
Deborah should be taken out the back and shot.
Topics: General | 1,737 Comments »
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