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Taking rights seriously
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
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.
Topics: NZ Bill of Rights Act | Comments Off on Taking rights seriously