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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 25 April 2015
Political Speech and Sedition
The Right Hon Sir Geoffrey Palmer*
I. IntroductIon1
The Law Commission’s 96th report Reforming the Law of
Sedition was tabled in Parliament in March 2007.2 The Report
recommended that the seditious offences contained in sections 81-85 of the
Crimes Act 1961 should be repealed. The Bill
enacting its recommendations
received the Royal Assent on 30 October 2007.3 This was an unusually
rapid legislative passage even by New Zealand standards.4 The Crimes
(Repeal of Seditious Offences) Amendment Act 2007 came into force on 1 January
2008 and sections 81 to 85 of the Crimes
Act were duly repealed. It was not the
first time that the sedition provisions of the Crimes Act had been challenged.
In 1989, a
Bill to reform the Crimes Act was introduced. It was not passed, for
a variety of reasons unconnected with the proposed abolition
of
sedition.
The law of sedition, while a blot on the protection of free speech in New
Zealand, was not a major weapon in the arsenal contained
in the Crimes Act. The
Law Commission recommended that the project be taken up because this was an
unsatisfactory corner of the law
in which reform was both necessary and
straightforward. This article considers the law of sedition in New
Zealand.
II. A hIStory oF the lAW oF SedItIon: PrActIce And theory
A consideration of New Zealand’s laws of sedition, and their recent
repeal, will benefit from an understanding of some of the
origins and evolution
of such laws during the course of English history. Such evolution owes some part
to the impact of the theories
of philosophers and poets as they called for a
more fair and open relationship between Ruler and citizen.
* President, New Zealand Law Commission.
1 I am grateful to Rachel Hayward of the Law Commission for her assistance in the preparation of this article.
2 New Zealand Law Commission Reforming the Law of Sedition (NZLC R96, Wellington,
2007).
3 Crimes (Repeal of Seditious Offences) Amendment Bill 2007, No 120-1.
4 GWR Palmer ‘The Fastest Law-Makers in the West’, New
Zealand Listener, 28 May 1977, p 13. New Zealand’s legislative rate
has slowed with the introduction of the MMP electoral system - Geoffrey
Palmer
and Matthew Palmer, Bridled Power (4 ed, 2004) 185.
A. An Historical Overview
A brief history of the common law relating to sedition recounted in the Law Commission’s report shows that the meaning of the concept has tended to change over time.5 There is, therefore, some uncertainty about the term
‘sedition’. Thus, prosecutions for the seditious offences tend to hover on a continuum between prosecutions for a strong expression of political dissent and those that are clearly urging violence against constituted authority. The term itself is derived from the Latin word ‘seditio’. In Roman times this meant
‘an insurrectionary separation (political or military); dissension,
civil discord, insurrection, mutiny’.6 The idea of sedition is
therefore linked to treason. The English Statute of Treasons 1351 defined (and
still defines) many types of
offences against the King as treasonable, including
compassing or imagining the death of the King, levying war against the King in
his realm and adhering to the King’s enemies. As might be expected, in the
reign of King Henry VIII treason was greatly expanded.
An Act of 1534 declared
it treason to act or write anything to the prejudice, slander or disturbance of
the King’s marriage
to Anne Boleyn.7
The prosecution for seditious libel at common law of people who used words that could urge insurrection against those in authority, or who censured public men for their conduct, or criticised the institutions of the country, was made possible by the De Libellis Famosis decision of the Star Chamber court in
1606.8 This decision in effect created a very wide offence of seditious libel. In
1629 three men were charged with uttering seditious speeches in Parliament
that ‘tended to the sowing of discord and sedition
betwixt His Majesty and
his most loyal subjects.’9
5 New Zealand Law Commission (2006). Reforming The Law of Sedition: Consultation Draft, NZLC: Wellington, paras 20-32, available at <www.lawcom.govt.nz/UploadFiles/ Publications/Publication_128_343_SEDITION%20CONSULTATION%20DRAFT.pdf> accessed 11 November 2009.
6 See I Kyer ‘Sedition Through the Ages: A note on legal terminology’ (1979) 37 UT Fac L Rev 266.
7 Hon Chief Justice of Federal Court of Australia, N E Black ‘Five Approaches to Reforming the Law: 650 years of Treason and Sedition’ (Keynote address to the Australasian Law Reform Agencies Conference 2006) available at <www.alrc.gov.au/events/alrc/Presentation/ BlackCJ.pdf> citing Sir John Baker Oxford History of the Laws of England, vol VI, 587).
8 De Libellis Famosis [1572] EngR 388; (1606) 5 CO Rep 125a, 251.
9 R v Elliot et al (1629) 3 State Trials 293.
Over the next three centuries the speaking of inflammatory words, publishing certain libels, and conspiring with others to incite hatred or contempt for persons in authority became known as seditious offences in England. In
1704, Holt LCJ justified the existence and width of such offences in R v
Tutchin: 10
... nothing can be worse to any government, than to endeavour to procure
animosities as to the management of it; this has always been
looked upon as a
crime and no government can be safe without it be punished.
Tutchin was sentenced to seven years imprisonment with a whipping every
fortnight for alleging corruption in ministry and ill-management
in the
Navy.
In 1792, the Libel Act11 was passed. This provided that the matter
in issue in libel cases was to be decided by the jury, not by judges. In its day
this was
regarded as a considerable constitutional reform and it is still in
force.
A more liberal democratic political environment evolved in Britain during the
nineteenth century which altered views towards citizens’
rights to express
freely criticism of the government, and to some extent, such changes resulted in
a tightening of the law of seditious
libel. A view of sedition based on the idea
that the Sovereign or the Government was the servant of the people, rather than
a divine
appointee who could do no wrong, was gaining acceptance. This sentiment
was captured by Sir James Stephen who commented that for
all who held this more
modern view, no censure of the government, short of a direct incitement for
disorder and violence, would be
a seditious libel.12 By the end of
the 19th century the term ‘sedition’ was no longer used
in the sense of an insurrection or revolt. Rather, it described the act
of
inciting and encouraging the revolt. In 1883, Sir James Stephen observed that
there was no such offence as sedition, but he defined
a seditious intention
as:13
... an intention to bring into hatred or contempt, or to excite disaffection
against the person of Her Majesty, her heirs and successors,
or the Government
and Constitution of the United Kingdom, as by law established, or either House
of Parliament, or the administration
of justice, or to excite Her
Majesty’s subjects to attempt otherwise than by lawful means the
alteration of any matter
10 R v Tutchin (1704) 14 State Trials (OS) 1096, 1128.
11 32 Geo. III c. 60. The Act is also known as Fox’s Libel Act after the British MP Charles
James Fox who secured the passing of the Act.
12 Sir James Stephen A History of the Criminal Law of England (London 1883) Vol 2, 375.
13 Ibid 298-9, citing Article 93 of Stephen’s Digest of the Criminal Law (1877), approved in
R v Burns (1886) 16 Cox CC 355, 377.
in Church or State by law established, or to raise discontent or disaffection
amongst Her Majesty’s subjects, or to promote
feelings of ill-will and
hostility between difference classes of Her Majesty’s subjects.
It needs to be noted that at the time of writing sedition is still a common law
offence in England and the High Court has confirmed that as recently as
1991.14 The common law remains very much as in Stephen’s
formulation: it is not sufficient to show the words were used with the intention
of achieving one of the objects he described; it must also be proved there was
an intention to cause violence.15
B. A Philosophical Overview
One of the most profound petition pleas for free speech can be found in John
Milton’s 1644 speech ‘Areopagitica: A Speech
for the Liberty of
Unlicensed Printing’ which was an appeal to Parliament for freedom from
pre-publication censorship for books
and other writing, in response to the
Licensing Order of 1643. The Order reinstated censorship as it had been in force
under the
Star Chamber. Milton’s main argument was that such an order
would be ‘primely to the discouragement of all learning and
to stop of
Truth, not only by disexercising and blunting our abilities in what we know
already, but by hindering and cropping the
discovery that might yet further be
made in religious and civil wisdom.’16 When Milton introduced
his speech to Parliament he said, ‘... when complaints are freely heard,
deeply considered and speedily
reformed, then is the utmost bound of civil
liberty attained that wise men look for.’17
In the 19th century John Stewart Mill’s classic essay On
Liberty made the case as persuasively as anyone ever has about the
importance of freedom of expression:
The peculiar evil of silencing the expression of an opinion is that it is
robbing the human race; posterity as well as the existing
generation; those who
dissent from the opinion, still more than those who hold it. If the opinion is
right,
14 R v Chief Metropolitan Stipendiary Magistrate: Ex Parte Choudhury [1991] 1 QB 429.
15 The United Kingdom Law Commission Working Paper no 72 Second Programme Item XVIII Codification of the Criminal Law – Treason, Sedition and Allied Offences (1977) referring to Article 114 in Stephen’s Digest of the Criminal Law (4th ed), which was updated from Article 93, but essentially the same in its terms as Article 114, and approved in R v Burns, above n 13, R v Aldred (1909) 22 Cox CC 1, and R v Boucher [1951] 2 DLR 369,
382-384.
16 J Milton, ‘Areopagitica: A Speech for the Liberty of Unlicensed Printing’ to the Parliament of England in 1644, and J Milton Prose Writings (1958) 145.
17 Ibid.
they are deprived of the opportunity of exchanging error for truth: if wrong,
they lose what is almost as great a benefit, the clearer
perception and livelier
impression of truth, produced by its collision with error.18
The American philosopher Alexander Meiklejohn was an influential theorist on
the First Amendment in the United States. Meiklejohn
was of the opinion that
speech could be regulated just as lighting a fire or shooting a gun could be
regulated by the law. However,
he argued that the freedom that the First
Amendment protects is the freedom of self government.19
Thus, four commonly held justifications can be identified for the principle
of freedom of speech:20 the importance of discovering the truth; the
importance of citizens participating in democracy; the importance of free speech
as an
aspect of each individual’s right to self-development; and a
distrust or suspicion of government that provides checks and balances
on the
power of political leaders.
III. A VIeW FroM AbroAd:
the unIted StAteS conStItutIon, the FIrSt AMendMent And SedItIon
The traditions of free speech, like the common law itself, are not limited to
historical and philosophy developments in England. Equally
significant
traditions of free speech can be found in the United States. Indeed, much of the
effort to reform the law of sedition
in New Zealand draws inspiration from the
First Amendment to the United States’ Constitution which encapsulates the
notion
of free speech with its provision that: ‘Congress shall make no law
... abridging freedom of speech or of the press.’
One First Amendment
decision, in particular, has a strong bearing on why the New Zealand law of
sedition was reformed, which is the
seminal decision emanating from the New
York Times v Sullivan.21 The case connects in important ways with
theoretical defences of freedom of speech in the philosophical
literature.
The New York Times case was decided in 1964 during the time of the
American civil rights movement. The effect of the decision was to
constitutionalise
the tort of defamation in the United States by applying the
First Amendment standards to it for the first time, and striking down
portions
of the defamation law.
18 J S Mill ‘On Liberty’ in Three Essays (1991) 14, 21.
19 A Meiklejohn ‘The First Amendment is an Absolute’ [1961] Supreme Court Review 245,
249.
20 Eric Barendt, Freedom of Speech, (2 ed, Oxford University Press, 2005), 6.
21 New York Times v Sullivan [1964] USSC 40; 376 US 254 (1964).
The defamation case was brought by Sullivan, the Police Commissioner from Montgomery, Alabama. It was brought against four Alabama clergymen and the New York Times. The alleged libel was a full page advertisement soliciting contributions for ‘The Committee to Defend Martin Luther King and the Struggle for the Freedom in the South’. It largely comprised editorial comment about the mistreatment by the Police and the Community of Dr King and black students active in protesting the deprivation of civil rights. It spoke of the growing momentum of the protest movement. Its title was ‘Heed Their Rising Voices’. This was taken from the New York Times editorial. The New York Times was sued as the publisher of the advertisement. The four clergymen were sued as sponsors and publishers whose names had appeared prominently in the advertisement along with those of some 80 other people.22 None of those people appear to have been amenable to suit in Alabama. The case was tried to a jury which brought in a verdict for $500,000 in favour of the plaintiff.23
The judgment was affirmed by the Supreme Court of
Alabama.24
The Alabama law of defamation was not unusual. In fact, its main components
were similar to the law of England and New Zealand. Justice
Brennan, who wrote
the leading judgment, noted that the general proposition that freedom of
expression upon public questions is secured
by the First Amendment had long been
settled by U.S. Supreme Court decisions. After canvassing some of the numerous
decisions in
this regard, Justice Brennan stated:25
... we consider this case against the background of profound national
commitment to the principle that debate on public issues should
be uninhibited,
robust, and wide-open, and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on
government and public officials.
The Court held that a state in the United States cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves ‘actual malice’
– that the statement was made with knowledge of its falsity or with
reckless disregard of whether it was true or false.26
The New York Times case was important not only for its free speech
implications but also for its affirmative contribution to the civil rights
movement.
Furthermore the case and its progeny had a profound effect on the
common law of defamation in the several states of the United States.
It also
produced an avalanche of litigation in which the application of the First
Amendment to
22 Ibid 256-258.
23 Ibid 256, 262-263.
24 Ibid 263-264.
25 Ibid 270.
26 Ibid 281.
defamation was steadily expanded from public officials to public figures to
issues of public concern.27 There are many strands from which the
case can be examined but, perhaps, one of the most celebrated and informative
scholarly commentaries
on the case was written by Professor Harry Kalven. For
the purposes of this paper, his statement that, ‘The central meaning
of
the [First] Amendment is that seditious libel cannot be made the subject of
government sanction’28 is particularly pertinent. In other
words, sedition strikes at the very heart of democracy and political freedom
ends when government
can use its powers and its courts to silence its critics.
Kalven argued that defamation of the government is an impossible notion
for a
democracy:
In brief, I suggest, that the presence or absence in the law of the concept
of seditious libel defines the society. A society may
or may not treat obscenity
or contempt by publication as legal offenses without altering its basic nature.
If, however, it makes
seditious libel an offense, it is not a free society no
matter what its other characteristics.29
The Supreme Court in the New York Times case had been at pains to
ensure that a good faith critic of government should not be penalised for the
criticisms. The way in which
the Alabama courts had dealt with the defence of
fair comment, ‘strikes at the very centre of the constitutionally
protected
area of free expression’.30 False utterances can be
protected under this doctrine. The fair comment defence can extend to false
facts as it did in a 1908 Kansas
case.31
IV. crIMInAl lIbel In neW ZeAlAnd
As noted previously, attempts in 1989 to repeal the law of sedition had been
unsuccessful. Efforts to reform the law of criminal libel,
which also posed a
potential risk to freedom of speech, met with greater success.
Until 1993, section 211 of the Crimes Act 1961 provided for criminal libel,
and section 216 for criminal slander. The two provisions
created an offence when
either written or spoken words caused the loss of reputation by bringing a
person into hatred, ridicule,
or contempt, or by injuring him in his
profession,
27 Curtis Publishing Co v Butts, Associated Press v Walker 388 US 136 (1967); Time v Firestone
[1976] USSC 27; 424 US 448 (1976); Gertz v Welch [1974] USSC 144; 418 US 323 (1974); Philadelphia Newspapers v Hepps
[1986] USSC 73; 475 US 767 (1986).
28 Harry Kalven Jr. ‘The New York Times case: A note on the Central Meaning of the First
Amendment’ [1964] Supreme Court Review, 191, 209.
29 Ibid, 205.
30 New York Times v Sullivan above n 21, 292.
31 Coleman v McLennan 78 Kan. 711, 98 P 281 (1908).
office, business, trade or occupation. Mens rea was not a necessary element.32
All that was required was a likelihood of injury to reputation. Pursuant to
section 214(1) of the Crimes Act 1961, to successfully
establish a defence to
the charge, the accused had not only to prove that what he said was true, but
also that publication was for
the public benefit.
In 1975, a law reform committee was set up to review defamation law. One of
the recommendations made by that Committee in 1977 was
that the offence of
criminal libel should be abolished.33 The most compelling reason for
abolition in the Committee’s view was that the civil action available for
defamation provided
adequate protection for defamatory statements and rendered
the criminal action superfluous.34 However, the Committee also agreed
with a submission by the Council for Civil Liberties that the sanctions of the
criminal law against
defamation were undesirable as they inhibited freedom of
speech and public criticism.
The Committee’s recommendations came out in December 1977, by which
time the new government led by Sir Robert Muldoon was in
power. Sir Robert, a
frequent litigant in defamation cases, was widely believed to have literally put
the report in a cupboard, and
it did not emerge from there in the course of his
administration. The law on criminal libel was finally repealed by section 56(2)
of the Defamation Act 1992, which came into effect in February 1993.
A. The New Zealand law of sedition
This brings us to the New Zealand law of sedition. New Zealand inherited the
British common law on sedition. It was codified in the
Criminal Code of 1893,
and set out again in the Crimes Act 1908. Seditious offences also featured in
regulations made under the War
Regulations Act 1914,35 and under the
Police Offences Amendment Act 1951. The modern statement of the law appeared in
the Crimes Act 1961, and is worth setting
out in full at this juncture.
81. Seditious offences defined
(1) A seditious intention is an intention –
32 Hardy [1951] VicLawRp 21; (1951) VLR 454.
33 Report of the Committee on Defamation Recommendations on the Law of Defamation (December 1977) 103. The Committee also recommended that other provisions in New Zealand statutes which invoked the criminal law in respect of defamatory material should be repealed, namely ss 15 and 16 of the Defamation Act 1954, s 29 of the Post Office Act
1959, regulation 51 of the Radio Regulations 1970, s 128 of the Electoral Act 1956 and s
55 of the Local Elections and Polls Act 1976.
34 Ibid 102.
35 Regulations dated 20 September 1915, as amended on 29 November 1915, 24
July 1916 and 2 April 1918.
(a) to bring into hatred or contempt, or to excite disaffection against, Her
Majesty, or the Government of New Zealand, or the administration
of justice;
or
(b) to incite the public or any persons or any class of persons to attempt to
procure otherwise than by lawful means the alteration
of any matter affecting
the Constitution, laws, or Government of New Zealand; or
(c) to incite, procure, or encourage violence, lawlessness, or disorder;
or
(d) to incite, procure, or encourage the commission of any offence that is
prejudicial to the public safety or to the maintenance
of public order;
or
(e) to excite such hostility or ill will between different classes of persons
as may endanger the public safety.
(2) Without limiting any other legal justification, excuse, or defence
available to any person charged with any offence, it is hereby
declared that no
one shall be deemed to have a seditious intention only because he intends in
good faith –
(a) to show that Her Majesty has been misled or mistaken in her measures;
or
(b) to point out errors or defects in the Government or Constitution of New
Zealand, or in the administration of justice; or to incite
the public or any
persons or any class of persons to attempt to procure by lawful means the
alteration of any matter affecting the
Constitution, laws, or Government of New
Zealand; or
(c) to point out, with a view to their removal, matters producing or having a
tendency to produce feelings of hostility or ill will
between different classes
of persons.
(3) A seditious conspiracy is an agreement between 2 or more persons to
carry into execution any seditious intention.
(4) For the purposes of sections 83 to 85 of this Act,
– to publish means to communicate to the public or to any person
or persons, whether in writing, or orally, or by any representation, or by any
means of reproduction whatsoever.
– statement includes words, writing, pictures, or any
significant expression or representation whatsoever; and also includes any
reproduction,
by any means whatsoever, of any statement.
82. Seditious conspiracy
Everyone is liable to imprisonment for a term not exceeding 2 years who is a
party to any seditious conspiracy.
83. Seditious statements
Everyone is liable to imprisonment for a term not exceeding 2 years who makes
or publishes, or causes or permits to be made or published,
any statement that
expresses any seditious intention.
84. Publication of seditious documents
(1) Everyone is liable to imprisonment for a term not exceeding 2 years
who, with a seditious intention, -
(a) prints, publishes, or sells; or
(b) distributes or delivers to the public or to any person or persons;
or
(c) causes or permits to be printed, published, or sold, or to be distributed
or delivered as aforesaid; or
(d) has in his possession for sale, or for distribution or delivery as aforesaid;
or
(e) brings or causes to be brought or sent into New Zealand, - any document,
statement, advertisement, or other matter that expresses
any seditious
intention.
(2) Any constable may seize any document, statement, or advertisement, or
any other written or printed matter, in respect of which
an offence under this
section is committed or is reasonably suspected by him to have been
committed.
85. Use of apparatus for making seditious documents or statements
Everyone is liable to imprisonment for a term not exceeding 2 years who,
having in his possession or under his control any printing
press, or any
mechanical, photographic, or electrical apparatus, or any other apparatus
whatsoever, -
(a) uses it; or
(b) causes or permits it to be used
– for printing, making, or publishing, or for facilitating the
printing, making, or publishing of, any document, statement,
advertisement, or
other matter that expresses or will express any seditious intention.
B. Experience under New Zealand law
The important point at the outset is to demonstrate that seditious offences
punish speech. A criminal offence may be established with
no other action on the
part of the accused but speech, and, on many occasions, it will be political
speech.
The New Zealand experience under its various sedition provisions shows that
the law of sedition was potentially an instrument of political
suppression, and
sometimes it was used in that way. Generally charges relating to seditious
offences were laid during times of political
or civil unrest or war. In many
cases, charges were laid and prosecuted against people for criticism of
particular legislation or
policies of the government, or for advocating an
alternative form of government. The accused were not, by and large, advocating
violence
against lawfully constituted authority, or, if they did at least
allegedly advocate violence, it was in response to the violence
of government
reaction (for example, sending force against Māori trying to protect their
lands or against strikers).
The Law Commission’s Report outlines various sad instances in which
these powers were used. In the late nineteenth century,
sedition charges were
laid against the Māori leaders, Te Whiti o Rongomai and Tohu Kakahi.36
Te Whiti had established a movement for Māori peace and development
at Parihaka, and had led a campaign of passive, peaceful
resistance to
Māori land confiscations by the Government. In 1881, the Government’s
Armed Constabulary invaded and occupied
Parihaka. Wholesale arrests were made,
villagers evicted, and houses and crops destroyed. Te Whiti and Tohu were
arrested and held
on charges of sedition.
At one of the meetings of Māori at Parihaka in 1881, Te Whiti was
alleged to have said ‘the land belongs to me’,
‘the people
belong to me’ and ‘this is the main quarrel – war? – of
this generation’, or, according
to one version:
This is the chief quarrel of this generation. ... Mine is the land from the
beginning. I say to all Kings, Governors, Prophets and
wise men stand up with
your weapons to-day, but the land will not be released. The quarrel is arranged
by us to be here. Neither
the King nor the Governor shall turn us off the land
today. . .we quarrel for the place which is said to be the land of the
Government.
36 Waitangi Tribunal Report The Taranaki Report Kaupapa Tuatai WAI
143 (1996), 199 and following.
Te Whiti was charged with sedition for allegedly uttering these words in
language calculated to promote disaffection, and Tohu was
charged with a similar
offence. Both were jailed awaiting trial but after four days hearing the trial
was postponed, and it was never
completed. The Crown prosecutors found the case
was weak and reports of the meeting garbled. The Government enacted the West
Coast
Peace Preservation Act 1882, an Act which provided that neither man should
be tried for the offence with which they were charged,
but allowed them to be
detained indefinitely as the Governor thought fit. Te Whiti and Tohu were not
released until 1883.
In 1913, Harry Holland made a speech at a strike of waterfront workers in
Wellington, in which he suggested that if violence were
resorted to, and the
Navals were ordered to shoot, they should remember where their class interest
lay, and point their guns accordingly.
He allegedly
continued:37
The strike was not made by the working classes, but by the master classes,
who are pouring their armed hundreds into Wellington, not
in daylight but like
thieves in the night . . . The uniformed police can deal a staggering blow by
tearing off their uniforms and
standing by the watersiders.
Holland was convicted and jailed.
Opposition to conscription in World War I produced a number of sedition
charges and convictions. Bob Semple, Fred Cooke, James Thorn,
Peter Fraser and
Thomas Brindle were all sentenced to 12 months’ imprisonment, some with
hard labour, for expressing the view
that conscription and liberty could not
live in the same country. In 1918, a clergyman was given a 12 month sentence for
saying that
war was blasphemy, and glorifying the Russian
revolution.38
Then there was the sad affair of the prophet Rua Kenana and the Tuhoe people
which leaves a very unfortunate taste to this day. In
1916 there was a clash
between the Tuhoe Māori followers of Rua Kenana and the police, after which
the police attempted to arrest
Rua. He was later prosecuted for sedition on the
basis of alleged seditious words at the time of the arrest attempt, for
counselling
murder or disabling the police and resisting arrest. There was a
mass of conflicting evidence; the Crown case rested on an assumption
that an
ambush awaited the armed police, and that Rua gave the signal with the
words
37 The words are taken from the Chief Justice’s judgment and may not have been an accurate transcript of Holland’s speech. See Twelve Months for Sedition - Harry Holland’s Speech and the Chief Justice’s Remarks in Delivering Sentence (‘The Worker’ Printery, Wellington,
1914).
38 New Zealand Herald 11 May 1918 ‘Clergyman charged’, and 18 May 1918 ‘Guilt of a
Clergyman’.
‘Patua, Patua’. Māori evidence was that only one Māori
was armed and that the words could only have been part
of a cry of despair
‘Patua au, Patua au’ (Kill me, Kill me) uttered when Rua was taken
by the police.39
The jury acquitted Rua of sedition but he was found guilty of resisting
arrest, (‘moral resistance’ was the verdict) and
sentenced to 12
months hard labour, to be followed by 18 months imprisonment, a draconian
sentence by any standards for such an offence.
Eight of the jury sent a letter
of protest to The Auckland Star against the severity of the
sentence.
In 1917, Hubert Armstrong, a miner, was prosecuted for an anti-conscription
speech held to excite disaffection against the Government,
which included this
statement:
I claim the right to criticise the government of the country. I claim the right to criticise any piece of legislation enacted by the government of this country, that, to my mind is against the interests of the country, whether military service, or any other Act and I am going to do so .... . Semple, Cooke and the rest of them are in gaol today because they are said to be disloyal to their country. .
. I say their names in the near future will be honoured when the name of the
Wards and the Masseys will be looked on as the greatest
gang of political
despots that ever darkened the pages of this country’s history.
He was sentenced to 12 months’ imprisonment.40
In the second half of the 20th century, prosecutions for sedition
were so rare that it appeared that the crime had fallen into disuse. Then in
2006, Tim Selwyn was
prosecuted for sedition (among other charges), following
emails calling for militant action against the Government’s foreshore
and
seabed legislation, an attack with an axe breaking the glass of the Prime
Minister’s electoral office window, and the publication
of two sets of
pamphlets. The first set spoke of the broken glass and called upon like-minded
New Zealanders to carry out similar
acts; the second set of pamphlets called
upon New Zealanders to carry out their own acts of civil disobedience.41
Selwyn entered guilty pleas to a number of charges, but was also charged
with two counts of publishing seditious statements that expressed
a seditious
intention, namely the intention to encourage lawlessness or
disorder.
39 J Binney, G Chaplin and C Wallace Mihaia The Prophet Rua Kenana and His Community at Maungapohatu (1996) 111, 124-125.
40 B Kendrick ‘Hubert Thomas Armstrong: Miner, Unionist, Politician’ (MA Thesis, University of Auckland, 1950); Jim McAloon, ‘Armstrong, Hubert Thomas 1875 – 1942’. Dictionary of New Zealand Biography, updated 7 April 2006.
41 R v Selwyn (8 June 2006) CRI: 2005-004-11804, District Court
Auckland.
Selwyn was tried by jury, and convicted on one count, in relation to the
pamphlets referring to the broken glass. This was the last
occasion on which a
conviction for sedition was entered in New Zealand. It was not, however, the
last time that a charge of sedition
was laid.
In October 2006, a youth appeared in the Rotorua District Court and was
remanded in custody on charges of sedition and threatening
to kill.42
The sedition charge was laid under section 84(1)(b) of the Crimes Act 1961
(distributing or delivering to the public or any person
a document, statement,
advertisement or other matter that expresses a seditious intention). The
sedition charge was subsequently
withdrawn. In February 2007, just before the
release of the Law Commission’s report recommending the abolition of the
seditious
offences, the manager of a tavern in Dunedin was charged with
seditious intent. The accused ran an Orientation week promotion in
which he
published a pamphlet offering to swap petrol for beer, and offering students the
chance to win a petrol-soaked couch as
a prize. The accused was charged with a
seditious offence. The charge was subsequently withdrawn, after police decided
there was
insufficient evidence to proceed.43
V. the lAW coMMISSIon’S recoMMendAtIonS
As a result of its analysis of the law and history of the seditious offences,
the Law Commission concluded that seditious offences
had been used both here and
overseas to prosecute and punish speech that might be inflammatory, vehement and
unreasonable, but where
there was no proved intention to urge immediate
violence, or any likelihood of such violence. In the Law Commission’s
view,
the State should be entitled to punish statements or conspiracies
advocating imminent violence against the State, or the community,
or
individuals, but only if a criminal offence is a likely outcome and there is
proof of intention to advocate it.
The Law Commission considered that where the protection of public order, or
the preservation of the Constitution or the Government
is at stake, there were
other and more appropriate criminal offences that could be used to prosecute
offending behaviour; offences
which do not carry with them the risk of abuse or
the tainted history that attaches to the seditious offences. Similarly, while it
might be tempting in a modern context to look to sedition to contribute
to
42 ‘Teenager held on sedition charge’ (18 October 2006) New Zealand Herald.
43 ‘Dunedin pub manager off hook after police drop sedition charge’ (3 May 2007) New Zealand
Herald.
the suppression of terrorism, the seditious offences were not an appropriate
response to terrorism. There are other ways of dealing
with such conduct, which
do not infringe the principle of freedom of expression.
The Law Commission gave five principal reasons for repealing the sedition
provisions of the Crimes Act. They were:
• The legal profile of the offences was broad, variable and uncertain. The
meaning of ‘sedition’ has changed over time;
• Specifically, the law fell foul of the New Zealand Bill of Rights Act
1990;
The Law Commission’s Report received a most interesting reaction when it was tabled in the House. On 24 April 2007 the Green Party, United Future, ACT and the Māori Party issued a joint call for the government to legislate the recommendations of the Law Commission. The Crimes (Repeal of Seditious Offences) Amendment Bill was introduced on 8 June 2007. It received rapid Select Committee consideration and received the Royal Assent on 13 October
2007.
VI. concluSIon
In 1964, Kalven suggested that the presence or absence in the law of the
concept of seditious libel defines the society. That statement
still rings true
today. In these times of armed terror, when pressure may mount to erode certain
freedoms in the interests of ‘national
security’, it is all the more
important to safeguard the essential elements of a liberal democracy. Freedom of
expression is
one of those essential elements.
As one Australian commentator has said, a robust and mature democracy should
be expected to absorb unpalatable ideas without prosecuting
them. I take heart
from the abolition of the law of sedition. With that reform, the abolition of
criminal libel, and recent judicial
decisions liberalising the law of defamation
to allow criticism of Ministers, 44 progress is being
made.
44 Lange v Atkinson [1997] 2 NZLR 22 (HC); Lange v Atkinson [1998] 3 NZLR 424 (CA); Lange v Atkinson [2000] 1 NZLR 257 (PC). It should be noted, however, that in a recent analysis Andrew Geddis evaluating the state of freedom in New Zealand concluded ‘Even in the core area of political expression the regulatory picture is decidedly mixed.’ Andrew Geddis ‘The State of Freedom of Expression in New Zealand: An admittedly eclectic overview’ [2008] OtaLawRw 5; (2008) 11 Otago Law Review 657, 681.
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