Hansard and Journals
Crimes (Repeal of Seditious Offences) Amendment Bill — Third Reading
[Sitting date: 24 October 2007. Volume:643;Page:12689. Text is incorporated into the Bound Volume.]
Crimes (Repeal of Seditious Offences) Amendment Bill
Hon MARK BURTON (Minister of Justice) : I move, That the Crimes (Repeal of Seditious Offences) Amendment Bill be now read a third time. This bill implements the recommendations of the Law Commission in its report Reforming the Law of Sedition. In the report the Law Commission concludes that seditious offences are overly broad and uncertain, that they infringe on the principle of freedom of expression, and that they have the potential for abuse.
In respect of the Australian sedition offences, Laurence Maher argued in 1992: “So long as the various sedition offences remain, governments will inevitably be tempted to use them improperly, especially when highly unpopular opinions are expressed … the law of sedition is anachronistic and an unjustified interference with freedom of expression … abolition of sedition offences at both Commonwealth and State level is therefore to be preferred to any attempt to ‘modernise’ the crime of sedition.”
The Law Commission, as with the majority of submitters on the bill, agree with that argument: “As long as the New Zealand seditious offences remain on the statute book there is the potential for their misuse against people who criticise the government publicly, especially at times of civil unrest and of perceived concern for national security.” I agree, as does the Law Commission, that it is not appropriate to retain, modernise or clarify the provisions; nor, for that matter, is it necessary to do so. To the extent that such conduct should continue to be a crime, we can rely on prosecutions for existing crime such as incitement, conspiracy, and other public order offences.
The seditious offences in New Zealand are contained in sections 81 to 85 of the Crimes Act 1961. The offences cover making or publishing a statement that expresses a seditious intention, conspiring with a seditious intention, and using apparatus for making seditious documents or statements. The offences hinge on a seditious intention. This is defined in the Crimes Act very broadly as an intent: “(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.”
Three main options were looked at by the Law Commission’s report in respect of our seditious offences. The first option was to maintain the status quo and leave the offences unchanged. The second was to amend and modernise the relevant sections. The third was to abolish the seditious offences. The principal argument for retaining the status quo is that we do not know what the future will hold, so we should not remove sedition as a weapon from the law enforcement armoury. This is a position that was strongly argued by Mr Mark during the Committee stage. I acknowledge the interest he has taken in this particular bill. However, I suggest that one could equally argue that because we do not know what the future will hold we must try to ensure that the law does not contain a weapon that might be used in the future to suppress dissent.
The second option, as I indicated, was amending and modernising the offences. This could be done to limit the ambit of the offence to focus on speech that amounts to an incitement to violence against lawful authority. However, the Law Commission argued that if the offences were so amended, they would add very little, if anything, to existing offences of incitement to commit other crimes already proscribed in the Crimes Act.
The third option was to repeal the offences. The term “sedition” carries with it considerable historical baggage and is closely associated in the public mind with its origins as a Tudor-era crime, rooted in criticising or exciting disaffection against established authority. Thus, as a matter of policy, the present law of sedition invades the democratic value of free speech for no adequate public reason.
Five principle reasons are given in the Law Commission report for repealing sedition. The first reason is the legal profile of the offence, which is broad, variable, and uncertain. The meaning of sedition has changed over time, from an insurrection or revolt to describing the act of inciting or encouraging revolt. The common law then added the act of exciting violence between different classes of people and an intention to incite violence against lawfully constituted authority as an element of the offence. In New Zealand the statutory provisions have included inciting lawlessness generally. Unlike other jurisdictions, under the New Zealand defence one can be found to have had a seditious intention without ever intending to incite violence against an established authority.
The second reason is that it is a matter of policy. The present law invades the democratic value of free speech for no adequate public reason. A US judge has said that debate on public issues should be uninhibited, robust, and wide open, even if it includes vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. That is something most members of this House are well familiar with.
The third reason is that the present law falls foul of the New Zealand Bill of Rights Act 1990. Specifically, freedom of expression is endorsed by section 14 of the New Zealand Bill of Rights Act. The Law Commission does not see the breach as justifiable in the case of sedition.
The fourth reason is that the seditious offences can be inappropriately used to impose a form of political censorship. They have been used for this purpose. In fact, in the past sedition has been used for this purpose on a number of occasions, as was well canvassed by a number of speakers, including myself, during the Committee stage. The State should be entitled to punish such statements advocating imminent violence against the State, the community, or individuals only when a criminal offence is the likely outcome and when there is proof of intention to advocate it.
The final reason is that the law is not needed because those elements of it that should be retained are covered more specifically by other offences. An argument made in support of sedition is that it is easier to establish than some of the other offences. As the Law Commission also noted, I consider that in the interests of freedom of expression such speech-only offences should not be easy to prove.
A number of existing offences in New Zealand law that adequately deal with the elements of seditious offending should be retained. These include the offences of conspiracy and incitement that can be used in conjunction with other offences. Incitement and conspiracy, like sedition, can be a thought or intention crime. For example, one could be found guilty of incitement of an offence even if the offence one was inciting was not actually committed. In addition, if the inciting leads to the committing of an offence, then the inciter could be prosecuted as a party to the offending under section 66 of the Crimes Act 1961.
Offences that are particularly relevant to sedition are treason, riot, unlawful assembly, criminal nuisance, offences in the Summary Offences Act, and inciting racial disharmony, which is an offence under the Human Rights Act 1993. The fact that a victim of an offence was targeted because he or she was part of a particular group, such as race, nationality, or religion, can be taken into account at sentencing as an aggravating factor under the Sentencing Act 2002. The offender may therefore be subject to a higher sentence if it can be shown that the person incited the offence because of his or her attitude towards the victim’s race, nationality, or religion. Thus behaviour covered by the sedition laws that still needs to be criminalised can more appropriately be dealt with by other provisions of the criminal law.
In closing, I would like to thank again the Justice and Electoral Committee for its efficient and thorough consideration of this bill, and also those who took the time to make submissions on the bill. Parliament should always appreciate those who take the time to engage in the democratic process through our select committee submissions. The submissions, in my view, in the vast majority were in strong favour of the bill. Finally, I again acknowledge the excellent report by the Law Commission, which led to the introduction of this bill. I commend the bill to the House.
Dr RICHARD WORTH (National) : I suppose it is fair to say that in the process of a bill through Parliament the highlight for that bill is the third reading, for a number of hurdles have been surmounted—sometimes effortlessly, sometimes with great difficulty. Now, in the final stage, there is but one, perhaps, small further part to follow before we see this legislation in its full-blown form. That final stage, of course, is the Royal assent, which sees, in due course, the enactment of the legislation.
I have had the opportunity, as has the Minister Mark Burton, of making several contributions in the course of the perambulation of the Crimes (Repeal of Seditious Offences) Amendment Bill through the Parliament. I will pick up three or four points that I think summarise where this bill sits in the context of a number of issues. The starting point—and the Minister dwelt very briefly on this—was a report by the Law Commission that was tabled in Parliament in 2007 called Reforming the Law of Sedition. I note that the Law Commission and the report that it did then recommended the abolition of New Zealand’s seditious offences. Sir Geoffrey Palmer, the ever-popular president of the Law Commission, said in the comments he made at that time: “These offences are too wide. They are unclear. They can be misused to suppress dissent,”. He went on to say: “Sedition has been used to muzzle vehement and unpopular political speech. It is high time the offences were removed from the New Zealand statute book.” So it is that the report recommended that the seditious offences set out in sections 81 to 85 of the Crimes Act be repealed and not replaced.
Rt Hon Winston Peters: No, no, no. Fix up the police; don’t change the charge.
Dr RICHARD WORTH: I am interested in these faint interjections, which have come from the current Minister of Foreign Affairs. I hope that when there is an opportunity for him to speak in the debate he will give us the benefit of the suppressed excitement that he currently feels.
Another point that Sir Geoffrey made, which I think is probably important, was: “Where behaviour that would be covered by the existing sedition provisions needs to be punished, it can be more appropriately dealt with by other provisions of the criminal law. By abolishing sedition, we will better protect the values of democracy and free speech.”
We have been treated in past debates on this topic to a history of the law of sedition, and that has been marked by references to a number of cases that have occurred over a significant period of time, illustrating various aspects of those offence-creating provisions. But I suppose in the New Zealand context what really stirred up those who follow these issues with interest was what happened to Tim Selwyn in 2006. Tim Selwyn faced a number of charges, including sedition, after sending emails calling for militant action against the Government’s foreshore and seabed legislation. He smashed the Prime Minister’s electoral office window. He published two sets of pamphlets. He was jailed for 15 months for an unrelated, fraud-related offence, and the District Court judge, seeking to do justice in all the circumstances, added a further penalty of 2 months for criminal damage, conspiracy, and publishing a seditious statement.
What is sedition? It is variously defined, but I think for present purposes it is neatly picked up in the proposition that it is a term of law that refers to covert conduct that is deemed by the legal authority as tending towards insurrection against the established order. In very simple terms, it is stirring up rebellion against the Government in power. It is more about encouraging the people to rebel, whereas treason—to which the Minister has referred—is actually betraying the country.
One of the issues that I very provisionally explored last night was to suggest that in the context of the New Zealand Bill of Rights Act 1990 we are talking about balances. We are talking about, on the one hand, the desirability of continuing with an offence called sedition, and, on the other hand, these rights of free speech and free expression, which are contained as freedoms and as rights in the New Zealand Bill of Rights Act. It needs to be said that they are not absolute rights; I dealt with that last evening.
I would say something about freedom of speech in the context of the sedition law. Freedom of speech is the concept of being able to speak freely without censorship. It is often regarded as an integral concept in modern liberal democracies. The right to freedom of speech is guaranteed under international law through numerous human rights instruments. Article 19 of the Universal Declaration of Human Rights is an illustration of that, and in a domestic setting we have our New Zealand Bill of Rights Act. The right is called freedom of expression or freedom of speech—maybe “freedom of expression” is the preferred term, because the right is not confined to verbal speech.
If one looks at the writings of those to whom this is an aspect of interest, one sees that the most important justification for free speech is a general liberal or libertarian presumption against coercing individuals from living how they please and doing what they want. However, there are a number of specific justifications that are commonly proposed to justify freedom of speech. I think of the decisions of the Canadian Supreme Court—in particular, in a case called R v Keegstra in 1990, which was a case on hate speech where one of the judges identified four elements that he thought characterised free speech. He said: “free speech promotes ‘The free flow of ideas essential to political democracy and democratic institutions’ and limits the ability of the state to subvert other rights and freedoms.” The second thing he picked up was a concept that has been freely floated by philosophers, which is that free speech promotes a marketplace of ideas. That is a concept that people like Oliver Wendell Holmes and others have propounded, which includes, but is not limited to, the search for truth. Thirdly, the judge said: “It is intrinsically valuable as part of the self-actualisation of speakers and listeners;”. The fourth point the judge made was: “It is justified by the dangers for good government of allowing its suppression.”
I guess we all know that there are significant restrictions on free speech. That is where part of the debate arises. A well-known example—I do not want to dwell on this in any detail—is typified by the statement that free speech does not allow one sitting in a crowded theatre to shout falsely: “Fire! Fire! Fire!”. That has been a classic statement in a number of decisions. There are a whole lot of restrictions on free speech. They include defamation, slander and libel; hate speech that is defamatory or causes incitement to violence; and a third illustration is, of course, what we are concerned with here—sedition.
What happens now, in terms of this legislation, is that a chunk of the Crimes Act 1961 is changed; it is repealed. A whole lot of offences that touch sedition disappear from the statute book. If one looks at what is left in Part 5 of the Crimes Act, which deals with crimes against public order, one sees that still quite a lot remains. As I said last night, it is somewhat of a hotch-pot, really, that is left behind. Treason remains, espionage remains, unlawful assembly remains, forcible entry and detainer remains—[Interruption]—and, of interest to the Minister of Foreign Affairs, offences like piracy and dealing in slaves are still there. The Minister has a detailed knowledge, as I know from my past associations with him, of those important issues.
There is another criminal provision that sits in section 98A of the Crimes Act, which deals with participation in criminal gangs. I am not sure whether the Minister has had any interest in that, but doubtless we will hear about that. That is why National supports this legislation. It looks at some arguments propounded by New Zealand First and says: “How sad. How stupid.”
LYNNE PILLAY (Labour—Waitakere) : It is a pleasure to stand and speak again on the Crimes (Repeal of Seditious Offences) Amendment Bill, this time in the third reading. At this stage, firstly, I would like to thank the Law Commission—
Rt Hon Winston Peters: I raise a point of order, Mr Speaker. The last thing I want to do is interrupt this speech—
The ASSISTANT SPEAKER (H V Ross Robertson): It has only just started.
Rt Hon Winston Peters: I know, and the last thing I want to do is interrupt it. I know there are rules, Mr Assistant Speaker, by which you choose whom the next speaker will be, but if you are going to have all “for” and none “against”, then the rules somewhat change. As you well know from the previous speeches, the National Party, in its inimitable style, goes along with the Government, as it does on most issues, and is for the bill. The Government is proposing the bill and it is for it, too.
The ASSISTANT SPEAKER (H V Ross Robertson): Thank you, Mr Peters.
Rt Hon Winston Peters: No, no. You have missed my point. There is a party here that is against the bill. In the interests of parliamentary debate, can we hear the other side as soon as possible after the start of the debate, not at the end? That is why we have had this adjustment in the rules, and I am just reminding you of it.
The ASSISTANT SPEAKER (H V Ross Robertson): I thank the honourable member for his point of order. If he wishes to raise something like that, then it should be done through the proper channels. All I can say is that this is a Government bill and that the rules of debate have been established for some time—since the start of this Parliament. The honourable members will have an opportunity to debate the issue.
Rt Hon Winston Peters: I raise a point of order, Mr Speaker. I know when the rules of this Parliament were set and how many times they have been changed. Where there is a need for a debate, not just repetition of one side of the argument, the order of the call as called surely should be changed, and that has been recognised in the past by Speakers. It is time in this debate we heard from the other side. You have heard two “for”; how about one “against”?
The ASSISTANT SPEAKER (H V Ross Robertson): I just say to Mr Peters that I have already called the member to speak, and under Speaker’s ruling 24/5 she has the call. I cannot take it back.
LYNNE PILLAY: Thank you, Mr Assistant Speaker. I am sorry to cause so much concern to the member and I look forward to hearing the debate.
Dr Richard Worth: We’re all looking forward to hearing from him.
LYNNE PILLAY: Yes, indeed. Meanwhile, the debate might seem a little repetitive, but I am standing to speak in support of the Crimes (Repeal of Seditious Offences) Amendment Bill at the third, and final, reading.
As I started to say, I think it is very important to acknowledge the Law Commission’s work. Its consultation document on reforming the law was produced in October 2006. Then the report, which advocated repeal, was published in March 2007. The bill is now before the House for its third reading. I think that is very efficient, and probably indicates, except for one or two parties, pretty widespread support for this bill in the House.
I would like to talk very briefly about the select committee process. The Justice and Electoral Committee received 17 submissions from groups and a variety of individuals, and heard five submissions.
Hon Ruth Dyson: 17.
LYNNE PILLAY: Yes, 17. Only two submitters opposed the bill. The committee did take those points into consideration, but, in the end, all members agreed that the bill should progress without amendment.
I also want to acknowledge the submission made by the New Zealand Police. We listened very carefully to the evidence, particularly about sections 81 to 85 of the Crimes Act. The police advised that these sections had very rarely been relied on by police officers, that in bringing charges they were quite confident that there were other means to address the crimes, and that there were no specific guidelines for officers on the application of those sections. That indicated that the sedition laws are not in the mainstream of charges—if I can use that term—that police officers consider when they are looking to prosecute.
It was good to receive a unanimous report from the committee that the bill should progress unamended. We have some important work before the select committee at the moment and I hope that we are able to have a meeting of the minds on that legislation, but we will have to wait and see. I also think Dr Worth spoke very articulately about cases of sedition and about having perhaps, a more common-sense approach to cases that may have previously fallen, and may currently fall, under seditious offences, but would easily be covered by a number of other charges.
If we ask ourselves, and I know that I have done so in previous speeches, whether repealing the offences of sedition leave gaps in the law, I think the majority of this House agrees there will not be gaps left in the law. Incitement and conspiracy, like sedition, can be either thought or intention crimes. One can be found guilty of incitement of an offence, even if the offence one was inciting was not actually committed. Additionally, if the inciting leads to the commission of an offence, then the inciter could be prosecuted as a party to the offending, under section 66 of the Crimes Act.
Dr Worth mentioned offences that are particularly relevant to sedition: treason, riot, unlawful assembly, criminal nuisance, offences under the Summary Offences Act, and inciting racial disharmony, which is an offence under the Human Rights Act 1993. The fact that a victim of an offence was targeted because he or she was part of a particular group—such as race, colour, nationality, or religion—can be taken into account at sentencing as an aggravating factor under the Sentencing Act 2002. The offender may therefore be subject to a higher sentence if it can be shown that the person incited the offence because of his or her attitude towards the victim’s race, nationality, or religion. Thus behaviour covered by the sedition laws that still needs to be criminalised can be more appropriately dealt with by other provisions of the criminal law. Like the majority of the members in the House who support this bill, I cannot think of an instance where the lack of a sedition charge would result in justice not being served. Quite clearly, there are other means and other ways of dealing with those misdemeanours
I have said before that the heart of the case lies in the protection of freedom of expression, and, in particular, in this day and age, of political expression and its place in our democracy. We can all feel very proud to live in a country where democracy is celebrated and where people may hold dissenting views. [Interruption]
LYNNE PILLAY: I cannot quite hear what the member Sandra Goudie is saying, but I am sure the member’s comments would, like sedition, be considered unpopular and unreasonable by most people. However, such expressions—
Hon Ruth Dyson: That’s just within her own caucus.
LYNNE PILLAY: The member may well be right. Such expressions should not be branded as criminal simply because they involve political opposition or a political statement. [Interruption]
LYNNE PILLAY: Yet again I cannot quite hear what the member is saying—
Hon Ruth Dyson: Unintelligible.
LYNNE PILLAY: It is unintelligible. I am sure we could not envisage a day or an age where something a member says in this House—no matter how offensive or silly—would be ruled unlawful. I think that applies to sedition as well.
This bill certainly did not spend a huge amount of time in the select committee process, but members of the Justice and Electoral Committee can put their hands on their hearts and say that everybody who wanted to be heard was heard, and that all submissions were considered very carefully, which is a very important part of the select committee process. I am very pleased to commend the bill to the House at its third reading.
CHRISTOPHER FINLAYSON (National) : I have only a few brief comments to make about the Crimes (Repeal of Seditious Offences) Amendment Bill. I too very much enjoyed the opportunity to look at this legislation—legislation that, for most lawyers, is looked at in law school then is never gone near again. But it was a very interesting exercise, as the chair of the Justice and Electoral Committee said, to receive a limited number of submissions from interested parties, to reflect on those submissions, to read the Law Commission’s report, and to send this bill back to Parliament for a full debate in the Committee of the whole House.
As the National Party spokesperson, Dr Worth, said, National supports this legislation. It is timely for a repeal of the offences related to sedition. I do not intend in the course of this speech to spend any time analysing those parts of the Crimes Act that are to be repealed; I covered those aspects in my second reading speech, and in the Committee debate we had last night. Rather, I want to confine my comments as follows.
In the United States Congress, when members of the Senate or the House of Representatives sponsor legislation, sometimes, as an honour to them, the legislation is named after them. So, for example, a former Democratic senator from Maryland, Senator Paul Sarbanes, and a United States Congressman by the name of Oxley sponsored securities enforcement legislation that is now well known throughout the world as the Sarbanes-Oxley Act.
I think that if we were to accord names to this legislation, then it could be called the “Locke-Hide Bill”, because those two members from smaller parties are responsible for running with the idea that sedition is a crime whose time has now passed in New Zealand. They worked very effectively in this MMP Parliament to persuade the Government to ask the Law Commission to look at this issue and then sponsor legislation. I repeat what I said in the Committee on the bill last night in congratulating Mr Locke on his passion for human rights and on his dedication to the cause of reforming the law of sedition. I also repeat what I said last night in hoping he applies that same zeal for freedom of speech and for fundamental human rights to the vile Electoral Finance Bill, which this Government is sponsoring, aided and abetted by some parties that should know better.
I also congratulate Mr Hide on the work he did with Mr Locke to ensure the passage of this legislation, and on the hugely significant speeches he has made in this Chamber on the subject of sedition. His second reading speech on this issue is far and away the most impressive contribution that I have heard for some time. Certainly, it would far exceed anything the Minister of Foreign Affairs would ever contribute. I suggest that instead of wittering away like an oaf he should listen very carefully to what is being said in the course of this third reading speech, because important issues are raised by this bill.
Sedition is a crime that was used from time to time in the 20th century. Various speakers, including me in both my first and second reading speeches, and the Minister in the Committee stage, outlined some of the historical charges that have been brought against New Zealanders. There was the very sad case of Te Whiti, there was Bishop Liston in Auckland, and we heard mention of various Labour party politicians, including the late Walter Nash, over the years.
Then nothing was done for many, many years—for at least 42 years after the Crimes Act 1961 was introduced—until the legislation was used in the infamous case of Mr Selwyn, who hiffed an axe through the front window of the Prime Minister’s Mount Albert office. Then there was another attempt to use it, in Dunedin, in respect of some students who were burning couches. Clearly, when one looks at the legislative history and at the number of prosecutions that have been brought over the years, one sees that sedition is an offence that has not been used very much at all, and that the rationale for its existence has been called into question.
The most powerful argument that was raised against repeal was raised by Mr Mark, and I acknowledge his very careful and considered speeches on this issue. I know that the New Zealand First Party was initially in favour of repeal but, in light of recent events, has changed its mind. Mr Mark’s speech last night was a very considered one. He raised the issue of whether, in light of the events of recent times, it would be better to keep the offences on the statute book in order to determine whether there is a rationale for them.
I reflected long and hard on what he said, but I think that when one looks at other legislative mechanisms available to the executive, one sees that they address more effectively the kinds of issues he raised than the sedition legislation does. I refer particularly to the Terrorism Suppression Act, which was passed in the aftermath of the dreadful incident in New York in September 2001. Although I am not on the Foreign Affairs, Defence and Trade Committee, I understand that the committee has been looking at that legislation again recently. So although I note Mr Mark’s concerns, I think that Parliament need not be too troubled by those concerns and that the legislation can safely be repealed.
I too join with the chair of the Justice and Electoral Committee in congratulating the members who have worked so hard on this particular issue; the Law Commission, which once again has shown what good work it can do for the State and has produced a very important report—a very interesting historical report—at reasonably short notice; the officials of the Ministry of Justice, who have brought together this legislation; and all those who have made submissions to the select committee. Whether we accept their views is almost beside the point, because important constitutional and criminal law issues were raised and they all made a contribution.
At the end of the day, this is very simple legislation, comprising only two parts. As Dr Worth said, the effect of it is that the definition of sedition in the Crimes Act goes, the particular seditious acts that are covered in the Crimes Act go, and there are some small, consequential amendments to the District Courts Act.
In conclusion, it is an idea whose time has come. Sedition has never been a particularly good servant of the criminal law, particularly in the 19th and early 20th century, when it was used as an instrument of oppression. As I said, there are much better legislative devices for dealing with some of the issues that can be raised by sedition. It is for that reason that the National Party, having reflected on the Law Commission’s report, and having noted very carefully the submissions of those who came before the Justice and Electoral Committee, has concluded that this legislation is timely and should be supported.
RON MARK (NZ First) : I was beginning to think for a moment I was going to be denied my freedom of speech and I would have to bring a member’s bill to the House to ensure that the right to speak at an appropriate time, since I am a member of the third-largest party in this House, is respected and accorded. We know now how many people in this House are determined to uphold the freedom of speech. I can only conclude from the debate and discussion—and it has been a good debate and, in the main, in good heart—that the only parties who have stuck firmly to principles that they believe in are the Māori Party, the Green Party, ACT, and New Zealand First.
It might seem strange that I should say that, because we have all taken different positions on the legislation. The Māori Party, the Green Party, and ACT are supporting this legislation for reasons that they have stated very, very clearly; New Zealand First is opposing it for reasons that, I believe, we have put very, very clearly. The National Party and the Labour Party are supporting this legislation but I note that in the debate we have just concluded—on the Terrorism Suppression Amendment Bill—they also both supported that. If we are to go through the reasons that have been espoused by those in support—[Interruption]—and Mr Hide has just twigged to what I have just said and he agrees.
Rodney Hide: It wasn’t that hard!
RON MARK: For some it is, I say to Rodney. For some it is very hard out there.
The ASSISTANT SPEAKER (H V Ross Robertson): First names!
RON MARK: Mr Hide.
The ASSISTANT SPEAKER (H V Ross Robertson): Thank you.
RON MARK: I am sorry, Mr Assistant Speaker. We are actually good mates and we do refer to each other by our first names on occasions. I know that it does not often happen in the Labour Party; often members refer to each other by surname only, over there, but Mr Hide and I do refer to each other by our first names all the time, actually.
But let us stop and think about what has just happened in this House; we have a Minister standing up to say that this legislation needs to be repealed because it is not used. Well, hello—neither has the Terrorism Suppression Act, until very recently. But then he goes on to say that this legislation needs to be passed because the Seditious Offences Act has been inappropriately used in the past and that is not a good thing. Well, hello—there are people saying that the application of the Terrorism Suppression Act right now has been inappropriately used. The Māori Party has said that and continues to argue that—and so do the Greens. They have consistency, not schizophrenia.
The Minister then went on to say that this legislation brings with it a whole lot of historical baggage. Well, I ask the Minister the following question. If 6 or 8 months, or 2 years, down the line, when the current processes have been followed through and we have a decision out of the courts that is not in the police’s favour and we have a whole heap of political baggage attached to the Terrorism Suppression Act, do I take it from what the Minister said that the Government will go back and repeal the Terrorism Suppression Act? Will it now have tagged to it a whole heap of political baggage? It does not make a lot of sense, does it?
How can one stand up in this House and argue the passage of highly controversial legislation aimed at protecting our democracy, aimed at protecting our citizens, and then come to the House within 1½ hours and argue that legislation that does exactly the same thing should be got rid of because it denies freedom of speech? Well, hello—people are arguing, and have always argued, about this, and I have to point to Mr Locke. He has always said the Terrorism Suppression Act denies freedom of speech. How can he argue that it should be repealed because it is not used? Well, hello—we have only just been debating the Terrorism Suppression Act, and currently, at this point in time, that legislation has not been used, despite all the claims and all the hoo-ha out there. How can he come here and say we must repeal it because there is a lot of political baggage? Well, excuse me—there is a whole heap of political baggage around the Terrorism Suppression Act right now. It seems to me that the two major parties share a lot in common and now it would appear that one of those things they share is schizophrenia. They have one thing to say on one day and completely the opposite thing to say on the same thing the next day—in this case, within 1½ hours.
A lot has been made of the need to protect freedom of speech, and New Zealand First has been consistent. We will stand and defend people’s right to say what they are able to say, no matter how stupid we think it is, no matter how bizarre we think it is, no matter how inappropriate we think it is—right up to the point—[Interruption] Here we go, hold on to the varnish again, she is back. I can hear her somewhere around here. I ask members whether Sandra Goudie is in the House or whether that is the plaintive cry of one of those Wairarapa parrots that seem to be inhabiting my place lately—I cannot quite figure it out. But let us just be clear—
Sandra Goudie: Back to this bill, for instance.
RON MARK: There it goes again. It is one thing to stand up to advocate freedom of speech and demand it, whilst at the same time shutting down Brian Connell and kicking him out of the caucus for saying simply what was on his mind.
Rt Hon Winston Peters: That’s true!
RON MARK: And the real gut-ripper, the undies-tearer, is that what he said was true! [Interruption] I ask members whether it was true. Did he ask? In fact, did he ask a question of the leader? Well, Mr Assistant Speaker, you want me to narrow my focus to the third reading.
I raise a point of order, Mr Speaker. I am taking a point of order because I do not want to lose speech time. I see you waving the bill at me and indicating to me that I should narrow my debate. But am I not correct in saying that the third reading is an opportunity to canvas the entire debate that we had at all other stages and that where the debate was allowed to move in certain areas during the second reading and Committee stage, so too should it be allowed to be dealt with in the third reading? Is that not true?
The ASSISTANT SPEAKER (H V Ross Robertson): The third reading is a wrap-up of the debate.
RON MARK: Thank you, Mr Assistant Speaker. I will continue. It is fine, and we support people who advocate that this bill needs to be repealed because it impinges upon freedom of speech. But let us not have people coming into this House saying that that is what they stand for, when they fired and got rid of one of the brightest stars to ever grace their political party—the Rt Hon Winston Peters. And there are others. Marilyn Waring—what did she do that was so bad, that was so wrong? This party, whose members now stand here and say they support the Government legislation on the main principle of ensuring freedom of speech, is littered with the corpses of people who have been shot for daring to speak their minds.
I ask members to think back. In fact my colleague Barbara Stewart was reminding me that when she was sitting over on that side of the House in the last term, sitting beside her, not in front of her, was a former senior member of the National Government—Maurice Williamson. Why was he at the back? It was because he dared to speak the truth freely and openly on television. He criticised his leader, and one is not allowed to do that in the National Party.
New Zealand First has said that it objects to this law being passed because we do not believe that the response to repeal is an appropriate response, and particularly not now. We believe that the other options that were put forward by the commission, and that were ruled out by the commission, and ruled out by the Government and the National Party, were worth exploring further. Specifically we believe the focus should have been on an amendment to deal with it that would have zeroed in, very tightly and narrowly, on violence—and purely violence—and any challenge to lawful authority and the lawful institutions that underpin and actually give us our democracy.
We have heard the arguments, and we understand them, that say that other legislation will cover these offences. But we actually believe that democracy is special, that Parliament stands above that, and that there are institutions that give us the democracy that we enjoy, that underpin our society. Their value is far greater than having them treated just within common law, within the Crimes Act, or through other legislation, as has been claimed. We are concerned that some of the historical examples that have been used have been misrepresented. Specifically we talk about the example used to justify the passing of this bill of Te Whiti o Rongomai and Tohu Kākahi being charged with sedition. Everybody seems to forget that the charges of sedition were dropped and never resumed, and that they were imprisoned using other law. It is the very thing that people are saying that they want to happen now.
My nana always used to say: “Be careful what you wish for, you just might get it.” If what we are saying now is that we will use other laws, then I am sure that is of no satisfaction to Te Whiti o Rongomai, given what happened to him. I caution the Parliament and say that from New Zealand First’s perspective we would have supported an amendment, but we certainly do not support the repeal at this time.
KEITH LOCKE (Green) : I think there is a certain celebratory atmosphere in the House tonight, and rightly so, in that this Parliament can take considerable credit for knocking these archaic provisions off our statute book. When we think back, as others have mentioned, to the roll-call of those who have been charged with sedition, we see that it is really a roll-call of our political heroes. When students today study our history in secondary school, the names that pop up quite regularly in their studies are Rua Kēnana, Te Whiti o Rongomai, Peter Fraser, Harry Holland, Bishop Liston, and Walter Nash. The names of all of those people pop up as part of our history and as important leaders in our society. I feel them on my shoulder today, in a sense, as we get rid of the laws that so hurt them those many years ago.
Perhaps the one I am thinking about most today is Rua Kēnana. Let us just remember who he was. He was a very strong Tūhoe leader, and very strong on the Tūhoe people running their own show up in the Ureweras. Despite the fact that when he was arrested one or two of his people had guns, he had strong anti-war views against the First World War and against Māori being a part of it. He was treated as being seditious and dragged away.
I think it is interesting, in the light of current developments, that one of his direct descendants is the well-known TV star, personality, and artist named Tame Iti, who is much in the news today. It may be that some of Tame Iti’s comments over the years could be seen to be a little bit seditious. He was not all that keen on the Queen and the Queen’s representatives being here when he went up to Waitangi, and he did and said certain things. He will not have to worry about the sedition laws from today, when we scrap them off the statute book.
I noted the Minister Mark Burton’s comment that some of the things that previously might have been seen to come under the sedition laws will still be offences under the Crimes Act, and that is right. Direct incitement to a crime and conspiracy to do criminal activity are already covered in our Crimes Act. It was interesting to reflect, when I was listening to that speech, as to why we need to use the Terrorism Suppression Act in the way it is envisaged if there are such fall-back crimes on our statute book as incitement to commit a crime, conspiracy, and offences like that. If people are really what we might regard as terrorists, they would fall under those Crimes Act provisions. The situation is a bit like that of the sedition laws we are considering here tonight.
In some ways I regret the passing of the sedition laws—the end of the sedition laws—because the offences themselves in the Act have a certain ring about them. Section 81(1)(a) states that one act that counts as sedition is: “to bring into hatred or contempt, or to excite disaffection against, Her Majesty, or the Government of New Zealand, or the administration of justice;”. It trips off the tongue a little bit, and in some ways I feel a bit of sadness at its passing.
I think the origin of those words, in both the British and the New Zealand jurisdictions, goes back to well before the full flowering of parliamentary democracy. They were really put in legislation to keep the British King or Queen of the time, however incompetent or oppressive he or she was, beyond both public criticism and criticism within the emerging parliamentary system. In the days when we did not have a proper parliamentary democracy, an MP would be carted off to the Tower of London if he or she was deemed to be seditious in criticising the monarch for one thing or another. The result of that problem is reflected in a tradition in our Parliament whereby neither the Queen nor the Governor-General are allowed to enter this Chamber, because the monarch or the representative of the monarch did tend to come in and nab MPs and put them in the Tower of London.
As parliamentary democracy fully evolved and we had constitutional monarchies in Britain and in New Zealand, the Government also thought sedition laws were a good thing. The laws might have started out to protect the monarch, but the new parliamentary Governments thought: “We want to protect ourselves from criticism too.” It is interesting that sedition laws were used against early Labour leaders to protect the Government not only against criticism of the monarchy, which some of these early radical Labour leaders tended to do, but also against the more trenchant attacks on the institutions of the time and criticisms that Parliament and the institutions of the State were very much run by wealthy business people, landowners, etc.
Harry Holland, later to become a Labour leader, fell foul of the sedition laws because of his strong, in working-class terms, challenge to the Government of that time. I think he fell foul of another part of section 81, which we are amending tonight, which renders it an offence “to excite such hostility or ill will between different classes of persons as may endanger the public safety.” Lynne Pillay talked about some of the essence of that provision continuing in the human rights legislation, but I think that the sedition laws were really to stop those who were challenging the system from below—the poorer people, the working people of the time—rather than protecting people who were not from the dominant culture, such as racial minorities, etc. The procedures we have under the Human Rights Act today are more to protect people who are subject to racism or put into some sort of second-class position in society. It is a different concept altogether.
I think that New Zealand society will welcome the passing of this law. It is interesting that the select committee did not get very many submissions. Nobody got terribly exercised about the passage of this law. It is interesting that although people were a little cautious about any change a year or two ago when I started talking about this law, once the movement for change started—and Sir Geoffrey Palmer had a big role in this—most politicians got on board. I congratulate the select committee on that. I think it means that we can take up what might seem to be more controversial things with greater ease. For example, the blasphemy laws need to be taken out of the Crimes Act as well.
I think what we are doing tonight reflects what New Zealand society is all about. We have a very robust democracy where we can criticise each other, often in very harsh terms, without really breaking the ties between people. I think that rather than using the law to stop people from speaking out, the very fact that we can speak out and say all sorts of outrageous things is actually a safety valve in our society—a safety valve that makes us a peaceful and harmonious society. I hope that as time goes on, bearing in mind current worries about people talking about violence, we will allow more tolerance for a certain amount of outrageous speech and see it as something that can be rectified by taking people aside and teaching them better manners, or whatever.
I also thank Tim Selwyn, because in some ways, even though he suffered a prison penalty under the sedition laws, he, along with Sir Geoffrey Palmer and the work of the minority parties in coming together, produced this change. So I think we should thank him tonight. He might have suffered a bit of time in prison, but he will be remembered as one of the people who helped to end these outdated laws. I thank Chris Finlayson for his comments, and for his idea of naming bills after people. I think Rodney Hide might talk a little bit about that in his contribution.
TARIANA TURIA (Co-Leader—Māori Party) : Tēnā koe, Mr Assistant Speaker. Tēnā tātou katoa. Nothing in this House is a matter of chance, and we in the Māori Party have wondered, then, why today of all days the minority Government has deemed that Parliament must deal in rapid succession with Acts to do with terrorism suppression, seditious offences, armed forces, courts martial, and defence. As any keen historian would know, today, 24 October, marks the 90th anniversary of the Bolshevik revolution, which overthrew the Russian Provisional Government and was followed by civil war. The revolution was led by the Bolsheviks, the Left Socialist Revolutionaries, and anarchists, with troops commencing their takeover of the Government buildings on 24 October. Far be it for me to draw any comparison between the October uprising of 1917 and events in Aotearoa in the last few weeks, but I do have to wonder at the cause of the timing in the sudden placement of these bills at the top of the Order Paper.
I say from the outset that the unity and spirit of cooperation evident amongst the MMP parties has been a key feature of getting the Crimes (Repeal of Seditious Offences) Amendment Bill on to the agenda in the first place. This time last year my esteemed colleague Hone Harawira was drafting a private member’s bill to amend the Crimes Act 1961 in such a way as to repeal all offences related to sedition. As is the way with MMP parties, a chance discussion with Green Party members revealed that they too were seeking to repeal those offences that cut across the concept of freedom of expression.
We joined forces and, on 24 April this year, we welcomed the ACT party and United Future in a joint call to the Government to push through legislation that would pick up on the recommendation of the Law Commission to scrap the charge of sedition. And here we are today, 6 months to the day after that historic press conference, with Parliament finally discarding the charges of inciting rebellion or resistance. But, unfortunately, it is putting in place more Draconian laws, such as the legislation that is also in the House today.
It is reason for great jubilation that MMP can prove, and has proven, its effectiveness in the form of this significant legislation before the House. I also have other reasons to acknowledge the important precedent this bill has set Parliament, for in reviewing the question of sedition all political parties have invested in the very important task of looking critically at our history.
The parties in this Chamber have become familiar with the pacifist prophets of Parihaka, Te Whiti o Rongomai and Tohu Kākahi. They have recounted the legacy of passive resistance that has been passed down to subsequent generations. We have heard the stories of how the peoples of Taranaki refused to accept the brutal land confiscations, the extensive land loss, and the military force and takeover by the terrorist actions of a rampant colonial force. Taranaki stood firm, like their majestic maunga. They ploughed up the fields, put the fences back up again, and resisted colonial imposition and theft with the simple statement nāku te whenua—mine is the land. This statement, which saw Te Whiti and Tohu charged with sedition and sent to jail, is a statement that to this day remains embedded in the heart and on the lips of the people of the land, the tangata whenua.
Through the passage of this bill our thoughts in this House have also turned eastwards to the Urewera settlement of Maungapōhatu, the home of the Tūhoe prophet Rua Kēnana. We have heard how over 1,000 supporters from Tūhoe, Ngāti Awa, and Whakatōhea established a communal farm, a temple, and a communal bank as their spiritual movement blossomed into a significant force. It was a movement based on the return of the whenua and mana to Māori—nāku te whenua. Members of the House reflected on this history, our history in Aotearoa, in which Rua Kēnana spoke out against the war and was duly arrested on the charge of sedition. He was eventually found not guilty of the charge, but, nevertheless, he had already spent 9 months in Mount Eden Prison.
As this bill has progressed through the House, other, more contemporary, episodes have been raised to illustrate the urgent need to reform the law of sedition. We have heard about the case of Tim Selwyn and the Pākehā movement that he led to express Pākehā disgust and fury at the Government’s attempts to steal, by confiscation and without consultation, Māori land in the form of the seabed and foreshore legislation—nāku te whenua. We have heard how my dear friend, the late Nico Tangaroa, along with Annette Sykes, Mike Smith, and Tame Iti, was threatened with a charge of sedition over comments they made opposing overseas investment in our assets during the Asian Development Bank conference—again, nāku te whenua.
Democracy must be about justice for all. We must have certainty in the law and certainty in its application; values that would be given life through the means of free speech. During the process of hearing this bill we have received many, many responses from everyday New Zealanders who are proud of their tradition of supporting and participating in civil actions against injustice. One person wrote to us telling how his late great-uncle, Bramwell Robinson, was arrested and taken to prison in 1912, and served a sentence for sedition for protesting against the action of the police in breaking the Waihī strike. In Mount Eden, this seditious character kept good company with Peter Fraser, before he became Prime Minister, and with Bob Semple, who was Minister of Works in the first Labour Government. Both Peter Fraser and Bob Semple were leaders of the miners union, and were also in prison for sedition.
Finally, I bring to this debate an unfortunate exchange that occurred in the House yesterday, as my colleague Hone Harawira raised issues to do with Māori perceptions of the justice system. As a proud and independent Māori voice, the Māori Party is here to raise issues as they are expressed to us, regardless of whether they are issues that everyone accepts or understands. The relationship between Māori and the criminal justice system is probably best expressed in the work of Moana Jackson and his publication The Māori and the Criminal Justice System: a new perspective—he whaipainga hou. In that epic work, Moana stated: “When the analysis of law is founded in the belief that ‘one law for all’ means ‘one process for all’ rather than ‘one resultant justice for all’, the debate becomes confined by monocultural strangulation.”
This comment came home to me last evening when another member in this House described the speech delivered by Mr Harawira as “one of the most disgusting, embittered, divisive, and downright irrelevant speeches I have heard in this House for a long time,”. There is no place for political censorship in a healthy democracy. We must have the courage in this House to listen to alternative points of view, to consider the context from which such views emerge, and to value independent thinking as the very basis of our democratic right to freedom of speech.
The Māori Party celebrates the third reading of this very significant Crimes (Repeal of Seditious Offences) Amendment Bill as a benchmark for upholding and ensuring the rights of free speech, and as recognition that more than one cultural reference point is valued across this Parliament. We will almost certainly be supporting this third reading of the bill. Kia ora.
RODNEY HIDE (Leader—ACT) : I have to say that my friend Mr Ronald Mark actually has a point. I think, as I survey the debates we have had, that only two parties have been entirely consistent—one being New Zealand First and the other being the ACT party. We have disagreed on every bill, but we have done so consistently. The ACT party believes that the individual citizen should enjoy the maximum freedom, but it is very clear that Mr Ron Mark thinks that we should pile up law upon law just in case the authorities need it, that there is always someone who needs dealing to by the police, the Security Intelligence Service, or the agents of the State, and that it is handy to have the odd weapon or two to throw around. Well, the ACT party does not go along with that.
It was quite something to hear the Minister of Justice, Mark Burton, introduce a bill at the second reading with a quote from the New Zealand Bill of Rights Act, and to hear him talk about the importance of freedom of speech, which I think there is agreement on, when we have a bill before Parliament—which New Zealand First supports, and which I guess the Government supports with some changes—that shuts down freedom of speech once every 3 years.
Chris Auchinvole: For a year.
RODNEY HIDE: For a year, which is pretty astonishing. So what I will do in this third reading speech is talk about what the law is for. The law is not the plaything of Parliament; it is not to give politicians and the authorities the ability to do as they please. The law does not serve the role of shutting down people who disturb us or upset us with what they say—people we might disagree with, or people who we think look suspicious or different, or people who express way-out or wacky views. That is not what the law is for. The law actually exists to protect us—and when I say “us” I do not mean MPs, political parties, or this Parliament; I mean the citizens of New Zealand. I find that we are passing laws that, far from protecting individual New Zealanders, actually allow us to be attacked by the very agencies that should be protecting us.
So what is it that we have that should be protected? What is it that we enjoy, which the law should be protecting?
Chris Auchinvole: Freedom!
RODNEY HIDE: Well, I think freedom is important, but let us put some context in it. The first thing is, obviously, our life; our lives should be protected. As a free citizen one cannot just come along and extinguish my life or another person’s life. We have a law against that; it is called murder. We have a right to our life. So, firstly, the law should be protecting us. Secondly, the law should be protecting our property. That is what it should be doing. It should be protecting our property from the bullies and the thugs who would come along and steal it from us. In fact, I believe that is fundamentally why we have a Government; it is the big policeman to protect us from the thugs and the bullies. But we have passed law here today that allows, on the say-so of the Prime Minister, our property to be seized—and the National Party voted for it. Funnily enough, Gordon Copeland voted for it, and he has a bill in his name to protect our property rights! The National Party, which was founded on the protection of the private property rights of New Zealanders, voted that, on the say-so of the Prime Minister, a free citizen who is not charged with anything in court can have his or her property seized. That is astonishing. Labour members go with that, I know, because they are socialists; they do not think we should have property. But I did not think that was the National Party’s position. The law should be protecting our property. Why did National members not stand up for that? I do not know why they did not.
The third thing we should be protecting is our freedom, so that we can live our lives as we best see fit. I have nothing against people who choose not to work, or who choose to have as many kids as they possibly can; it is their right to do so—they just have to accept the responsibility of the consequences. People’s freedom has to be that they can think what they like and say what they like, as long as they do not infringe the rights of others—as was expressed very eruditely by my colleague Dr Richard Worth. One cannot go into a crowded theatre and shout “Fire!”, because that impinges on the rights of others. One cannot go around defaming someone—unless you are Mr Peters or Dr Cullen operating in Parliament—because that is to take the property right that that person has in his or her good name.
I think that there is also a third thing: one cannot use bad language around my mother. I think that is a restriction on the freedom of speech—one we should enforce more vigorously.
Ron Mark: Well, stop swearing in front of her.
RODNEY HIDE: I never swear in front of my mother. My mother is convinced that I do not swear.
They are the reasons that we restrict free speech. Beyond that, one can say whatever one likes, as Keith Locke says. One can stand on a soapbox and preach fascism. One can stand on a soapbox and say that the greatest man in the universe is Osama bin Laden. I think that is great, because when one hears it, it sounds so silly. It is when we shut it down that it sounds attractive and interesting.
Hone Harawira is a good case in point. I have got to like Hone; I sit with him on a couple of committees. He is always good for a sound bite on TV; it is not so good when one hears 10 minutes of it. You know what I mean? So we want to hear the whole story, the whole argument, the whole debate. If we shut down political speech we make it exciting and attractive. Nothing turns a person off more than hearing a Marxist give a lecture. Their slogans are hot; it is the speeches that are deathly—as Keith Locke knows, having sat through a few of them. So we want people to have the freedom to say what they want. People should be able to say: “Let’s get rid of the King.”; “Let’s get rid of the Government.”; “Let’s vote the Greens out.”; “Let’s destroy the capitalists.”; or “Let’s vote the ACT party in.” People should be freely able to say those sorts of things. So why, oh why—as we get rid of the sedition laws, which are wrong—are we passing law to allow the seizure of people’s assets if the Prime Minister thinks they are terrorists and declares them to be so, or because some foreign agency like the United Nations declares them to be terrorists? And why, oh why, are we passing a law to regulate political speech so that everyone has to register with the State every 3 years if they want to make a political comment and spend their own money doing so?
Rt Hon WINSTON PETERS (Leader—NZ First) : Advocating a vote for the ACT party is not sedition; it is just plain stupid and senseless. I ask members to consider this: “If the Government tried that sort of [expletive deleted] here the people up north wouldn’t take it. The boys would be out on the streets with guns and I’d be with them.” That was said recently by a New Zealand member of Parliament. I ask members to also consider these words: “When I first saw the planes fly into the towers I jumped for joy. I was so happy that at long last, capitalism was under attack,”. That was said by Annette Sykes, a person who is tonight being quoted as someone being wronged by the laws of this country, in respect of 9/11.
I want to make it very clear that this country has become terribly naive when it comes to security and protecting its citizens, and that is what the Crimes (Repeal of Seditious Offences) Amendment Bill we are talking about tonight is all about. All sorts of weak-kneed decisions have led to this country having very bad border control. The warnings on our airplanes are so kind as to be of no concern to anyone seeking some nefarious purpose that will threaten the biological security of New Zealand, let alone anything else.
Then there is the question of medical clearances. Who was it that let out hundreds and hundreds of people already suspected of having tuberculosis, because it was said they had been confined too long and they needed to be with their families? In Auckland today one can see whole wards paid for by the taxpayer, filled with tuberculosis victims, all of whom were not born here but were brought in and never properly supervised on the way through. The response from the authorities in New Zealand is to hide the truth from the people, because in other countries it would be the cause of a full-scale inquiry and people being fired. Here, there is nothing. I can tell members right now that Aids is increasing in New Zealand, and its increase can be measured precisely with transient worker movements around New Zealand. That is how precise it is. Why do we not hear from the authorities? Because someone would be responsible for that. In New Zealand no one has to be responsible, and that is why we have the kind of soft, lily-livered discussion that has characterised the debate in the last 2 days. All sorts of people have been standing up, majestically talking about freedom and liberty, who by their past actions understand nothing about it whatsoever. Who checks the documentation from all sorts of sources of those coming to this country? In the main, the answer is no one at all.
I am told that the Law Commission says we should do this measure, so we will do it. Well, who heads the Law Commission? Sir Geoffrey Palmer, who is a very esteemed former parliamentarian. But Sir Geoffrey is a former MP, a former Minister of Justice, a former Deputy Prime Minister, and a former Prime Minister, and in all the time he was here he was not moved to do this. What has changed since 1979 and 1990, and now? Actually, the circumstances internationally are worse. The concern regarding terrorism is far worse than it ever was back then.
I see these sorts of phrases in the explanatory note of the bill: “[sedition] can be more appropriately dealt with by other provisions of the criminal law.” Which ones? Have members heard? Not in tonight’s or yesterday’s debates. It states so blandly: “more appropriately dealt with by other provisions of the criminal law.” This is the marvellous sort of legalese that so many people repeat in this House. Let me ask members this: which areas of the criminal law? Were members told? No. Apparently, members are going to vote for this without knowing. I ask members to consider this phrase: “the present law invades the democratic value of free speech for no adequate public reason:”. Is that true? How? Were members told how it does that? No. Apparently, members are going to vote for it even though they do not know.
This is meant to be a debating chamber where sometimes things should be seen beyond the political divide and for their merit because they may have some legal, historic, or present substance. I believe that this law has present substance—more present now since 9/11 and the events since—than it had in any past period in this country’s history. I know that some people were wrongfully prosecuted, but some members decided tonight that we never prosecuted under that law. So why are those examples part of the reason being used? In short, it becomes a straw man. For example, inciting racial disharmony is not really the core of the sedition legislation. Sedition is about the promoting of rebellion and anarchic acts that have nothing to do with democracy or a vote, but, rather, to supersede the will of the people—
Ron Mark: Like the Russian Revolution.
Rt Hon WINSTON PETERS: Like the Russian Revolution, as was recited tonight. It has been 90 years since the Russian Revolution. What a breakout of freedom that was! I cannot believe that that was used as an example tonight. Did a glowing plinth of freedom not waft across the world as a consequence of that!
Let me ask members this question: why would one repeal these offences when there is every reason to believe, if one listens to certain radio stations, that in New Zealand today sedition is more of a concern than it has ever been? I know of radio stations receiving all sorts of calls cheering on Osama bin Laden whenever he gives a warning to the West about what is going to happen next. The radio stations hum with approval, condonation, and acceptance of it. There are some naive people in this Parliament if they do not know that. Maybe they should get out on the streets and find out a bit more about what is going on in their own country, because it is going on in this country. If members do not believe that, what makes us so exempt from the circumstances of certain activities in Britain, France, and other parts of the world? Those countries are known to be as strong believers in the rule of law and freedom as we are, but their circumstances have led them to believe certain things, and they are not just suspicions; they are based on detailed investigation and fact. What would make New Zealand in 2007 exempt from that? Nothing.
The point that Ron Mark made, on behalf of New Zealand First, is simply this: members now will have suppression laws that set the stakes very, very high when it comes to reasons of proof and causality in a court case. Members may well find themselves missing or failing to sheet the charge home, when a charge of sedition would have been more appropriate. Alas, because this Parliament has been swooned into thinking that that charge is no longer required, it will abolish it. Well, who was the last person charged with necrophilia in this country?
Rodney Hide: Couldn’t tell you.
Rt Hon WINSTON PETERS: Then we had better get out there and repeal it. It was not Rodney. Members could imagine it would be Rodney, by the look of him—his eyes are too close together. Rodney is a nice guy and he would not think of that, but I know people who would suspect him of it. When was the last time someone was charged with necrophilia, and is that really cause, reason, or logic to say: “Well, we’ll repeal the law because of it.”? Sometimes things on the statute book are to prevent people from even conceiving of committing those offences.
But the point I come back to is this: would we, as a country, feel safer having repealed this law? Not 12 lovely sentimental feelings but one hard fact is what parliamentarians should be governed by; not a whole lot of sentiments and applause from outside from a certain lot of people who are not committed to, or charged with, the security of this nation, but, rather, one hard fact in respect of what happens inside the Parliament of this country and the Government.
I have just given members a whole lot of explanations of how weak-kneed, liberal, wrong-headed decisions have got this country into severe trouble. On medical security, border security, and questions as simple as Aids, which we have sought to confront for over two decades now—and all, in the main, by way of increase, imported. And today we have imported some further liberal lily-livered stupidity.
CHRIS AUCHINVOLE (National) : I support the third reading of this bill. My understanding is that the third reading is a summary of the progress of this bill. It has been very, very interesting for me, as a new member of Parliament, to sit in the House and listen to the quality of the debate, particularly that which has occurred tonight. I am grateful, as I am sure my colleagues are, for the opportunity to listen to those who have had a lot of experience in debating. I guess it is something we can all learn from and develop as we go. I do query, though—and I am sure that in the spirit of parliamentary debate there will be no objection from the member—why in a recent debate Mr Mark is recorded in Hansard as saying “and that is why we will be supporting the passage of this bill.”
Rt Hon Winston Peters: To the select committee.
CHRIS AUCHINVOLE: Indeed—I understand that. I am grateful to Mr Mark for the expression of his opinion, which I listened to last night. I would have thought, though, that New Zealand First, a party founded on the very stuff of dissent and radical opposition, would be quite comfortable about losing the law on sedition. But I say that, perhaps, as a little light-hearted remark, and I do understand the approach the member has taken.
There has been general support for this bill from pretty much all parties—
Ron Mark: You don’t agree with this, do you?
CHRIS AUCHINVOLE: No, not really, and I am perfectly happy to explain why. I listened very carefully when the member, being keen, made heavy emphasis on the point that we should reconsider, reflect, and wonder whether in fact this bill should be dispensed with. I have thought about that. I thought about it during the day and I reflected on it, just as the member asked us to do. The member raised some questions in my mind.
However, let us look at some of the points that have been made during the first reading debate by a number of speakers. Keith Locke told us that the laws were put on the statute book to constrain dissent against Governments, and have been used for that purpose ever since. He gave the example that they were used to convict Māori leaders in the 19th century, notably Te Whiti and Rua Kēnana. Then in the earlier part of the 20th century a Catholic bishop, Bishop Liston, was charged for making supposedly seditious statements when he hinted that he supported the Irish nationalist cause. We have also had the example of three leaders of the Labour Party—Harry Holland, Peter Fraser, and Walter Nash—who were convicted of sedition for supporting workers’ struggles, for being against conscription, and for selling left-wing books. I think it has been commented on more than once that copies of those books were actually in the Parliamentary Library at the time.
The other event that propelled change, which Keith Locke mentioned, was Sir Geoffrey Palmer’s Law Commission report entitled Reforming the Law of Sedition, which called for the law’s repeal and provided all the reasoning as to why it should be repealed. It has been suggested that one of the reasons this bill is before the House is that the Government’s legislative programme is slightly light, and that may be the case. But the Green Party has supported the bill, and has been quite instrumental in bringing it before the House and generating support for it.
I, too, heard the honourable member Hone Harawira when he spoke in the debate. He certainly spoke very strongly and with passion. He spoke about the celebrated prophets of sedition, Erueti Te Whiti o Rongomai and Tohu Kākahi, who in 1881 were both charged—
Ron Mark: He was acquitted.
CHRIS AUCHINVOLE: Yes, but they were charged. We spoke about this last night when Mr Mark said that the charges still had to be proven. He said: “Yes, they can charge them. It doesn’t matter; it still has to be proven.” I do not think that in the reality and fairness of justice the member simply wants to be able to go around charging people so that they have to prove themselves innocent. There are connotations in my mind in relation to these sedition charges—and I am sure in the minds of many—that once a person is charged, the person really has to prove his or her own innocence rather than it being the other way round. The very wording of it implicates a person in guilt, and as a freeborn Scotsman I find that a little hard to stomach, I really do.
We heard an expression of views from someone who is certainly very strongly influenced by the rights of the tangata whenua, or should we say by the lack of those rights in the past. I quote him: “Sedition has been used to quieten the natives and to suppress and oppress anyone daring to challenge the status quo. In fact, even former Prime Minister and President of the Law Commission, Sir Geoffrey Palmer, admits that the archaic offence of sedition was too wide and too unclear, and had been used to muzzle unpopular political speech.” I have something to tell that will possibly appeal to those in New Zealand First who oppose the bill. I went to a school in a very old town in Bury St Edmonds in Suffolk, where the knights gathered before they went down to Runnymede to sign the Magna Carta.
Hon Lianne Dalziel: You went to school?
CHRIS AUCHINVOLE: Yes, I did go to school. I thank the member for the inquiry. I am able to affirm that during tonight’s debate. The reality is that the rights of people are hard fought, and freedom of speech is a hard-fought thing to go for.
Then we heard Peter Dunne, who gave instances of earlier generations of his family who were caught under this law. In one case a very elderly relative said she would not like to see sons of hers go to war. I am sure that other families in New Zealand have had that experience. She was taken away and threatened with being charged with sedition.
If we look back at earlier times, we see that the Elizabethans introduced the law of sedition. I think Henry VIII did it first, and the government of Elizabeth I probably took it further. It was an uncredited quote but it was designed to control the commoners, frighten the intellectuals, and deal to people like Jesuits and clergy. It has always been a legal frightener. I can see my military colleague Mr Mark thinking “Yes! What’s wrong with that?”. But we should not really need that sort of thing, and indeed it is the opinion of this Parliament, clearly, that we do not need that sort of frightener.
The Hon Peter Dunne finished his speech by saying: “I stand here delighted to see the bill before the House, urging expedition in its passage, and looking forward to a time when the references to sedition in this country are purely historical, never to be repeated again. A country that is confident about itself and its direction”—and I think this is important—“does not need laws of this type to regulate its behaviour. I look forward to the third reading of this bill, which will hopefully be not too far away, when we can farewell this particular legislation to the dustbin of history, where it deserves to lie and rot.”
So the debates and discussions have gone on from other parts of Parliament. I think it was the National Party that suggested that this was very much an MMP type of legislation, as it has emerged from the smaller parties and has been picked up and debated. Certainly, having sat on the select committee that heard the public submissions, I know there were really not very many strong supporting voices in favour of the sedition laws. I think we had 17 submissions in all.
Ron Mark: Peace in our time.
CHRIS AUCHINVOLE: Oh, no; I think the member probably knows me a little better than to credit me with that sort of expression. But I am confident, and the police were clearly confident, that they have sufficient laws to cope with the possible requirements of offences that normally would attract convictions under the sedition law. But even the strongest supporters of retaining this law would have to admit that it has not really been used very much at all, effectively.
Ron Mark: Neither has necrophilia.
CHRIS AUCHINVOLE: Well, yes, there is necrophilia, and—what was that other one? Running off with an adulterous—no; running off with a nun! Those things changed in about 1960, and this one can go. I really do not think we will be overly concerned at not having this law, but I would be concerned, as I said, as a good, free-thinking person, to think that it was being retained for no good purpose. I am very proud to be part of this Parliament, and I will be very proud to tell the people of the West Coast - Tasman seat—that ever-increasingly marginal seat—that I have been part of reducing some of the laws and regulations in this House.
RUSSELL FAIRBROTHER (Labour) : I want to pick up on the challenge laid down by the Rt Hon Winston Peters in his speech tonight. He put to the House—and perhaps to the nation—the question of whether we will feel safer if the law of sedition is repealed tonight. Of course, we will not feel unsafe if it is repealed tonight, because the law of sedition does not accompany acts of violence or threats to property; the law of sedition concerns the offence of words said. It was described best, perhaps, by one of the submitters to the Justice and Electoral Committee, the Maxim Institute, which was reported to be the lone voice in support of sedition laws. On 16 August a person from the Maxim Institute said that to remove the law of sedition would be against democratic principles, because it would erode the sense of respect that people hold for authority and may then lead to a lack of engagement with democracy, which is a danger to democracy itself. So the Maxim Institute was saying that the law of sedition should remain, because its removal may undermine the respect people have for our democratic process.
What the Maxim Institute forgot—and what the Rt Hon Winston Peters forgot when he criticised Sir Geoffrey Palmer, who during his time as Minister of Justice and Prime Minister failed to remove the law of sedition—is that in 1990, or just before, Sir Geoffrey Palmer ushered in the New Zealand Bill of Rights Act 1990, which in section 14 decreed that everyone is entitled to express their views on any matter and that free speech is a fundamental right in New Zealand. No one has criticised that tonight. If free speech is a fundamental right, then one cannot have the present law of sedition that is contained in our Crimes Act.
In contrast to the Maxim Institute, we had a comment at about the same time from The Republican Movement of Aotearoa New Zealand, which is a movement that has much going for it. It pointed out that the monarchists on the other side of the fence believe that if anyone questioned whether Prince Charles should become the King of New Zealand, then he or she could possibly be committing a seditious offence. Clearly, if that is the ludicrous level that the present crime has reached, then it should be removed.
More seriously than that, we must also pick up on the Rt Hon Winston Peters’ comment that people in this debate have referred to other crimes or offences that make otiose the requirement to have the law of sedition in the Crimes Act. As that challenge has been laid down, and as it has been suggested that no one had dared to enumerate or identify the offences, I want to take the time of the House to put on the record what other offences could be included. First of all, we have in our Crimes Act the crime of conspiracy. Conspiracy is when two or more people reach an agreement to commit another offence.
Ron Mark: When was it last used?
RUSSELL FAIRBROTHER: It is used frequently, in drug trials particularly. It was probably used this year and as recently as last month.
Conspiracy is when two or more people agree to commit an offence. It is the act of the agreement that is the crime, but accompanying that is the agreement to commit a further offence.
The crime of incitement is defined in section 311 of the Crimes Act. It states that everyone who incites, counsels, or attempts to procure any person to commit an offence is himself or herself committing an offence. In respect of the crime of incitement, one does not oneself need to cause violence or property damage, but one does need to set about encouraging others to commit a crime. The statement of encouragement to commit a crime is the act of incitement.
Other relevant offences include treason, which is still in the Crimes Act. That is surely another matter we should be looking at more closely. There is unlawful assembly. That is an interesting offence. It is a gathering of three or more people who have a common purpose to carry out conduct that is unlawful, or to conduct themselves in a way that will cause disorder. Three or more people who act in a way that will cause disorder, or is likely to cause disorder, are responsible for the crime of unlawful assembly. Disorder does not need to occur, and another crime does not need to occur, but conducting oneself in a way that is likely to lead to disorder, or is intended to carry out a crime, is the offence of unlawful assembly.
Also contained in the Crimes Act is the offence of rioting. A riot, as defined in section 87, is a group of six or more people acting together and using violence against people or property. Every member of a riot is liable to imprisonment for up to 2 years. Another part of the Act deals with threatening to commit specific offences. Again, that deals with a statement, but the purpose behind the statement is to encourage others to commit offences. Then, of course, under the Summary Offences Act we have the offences of disorderly behaviour and offensive behaviour, and under the Human Rights Act we have inducing racial disharmony and other similar offences.
Ron Mark, in speaking against this bill, made extensive reference to the Terrorism Suppression Act and to its amending bill, which had its second reading earlier today. I want to dwell on that for a few minutes. In his speech, Mr Mark harked back to the events of last week and said that today of all days is the worst time to be removing the law of sedition. In fact, I think today is one of the more appropriate times to be removing the law of sedition, because one of the underlying issues in this country is the issue of Māori sovereignty.
Sovereignty is not an issue that is unique to New Zealand. It is an issue that exists in countries around the world and on the international stage. We see the Kurds, for example, advocating their own degree of sovereignty. The argument for Māori sovereignty is a deep-seated and sincerely held argument, and one with considerable merit. But for us to move to the stage of giving true expression to that in a constitutional sense requires vigorous debate, challenging present authority and our concept of democracy, and trying to understand how concepts of Māori sovereignty would be embedded into our constitutional principles. That can be achieved only by vigorous debate with excitement, overstatement, rhetoric, and making clear the commitment to one’s cause. We have heard mentioned in earlier speeches today some of the radicals who are committed to Māori sovereignty, and some of the members of this House who also hold that view. Of course, there are valid arguments to support that developing concept. I say “developing” because although it is certainly a well-known concept, many members of the public are unwarrantedly afraid of it.
The Terrorism Suppression Act is not about repressing arguments in favour of Māori sovereignty; the Terrorism Suppression Act relates to acts of terrorism. Section 5 defines what terrorism is. There are three requirements: first, the acts must be designed to create terror—the dictionary defines terror as real panic—second, there must be a desired outcome; and, third, that outcome must be one that is specified in section 5, and that includes death, damage to significant buildings, or other infrastructure damage. Making inflammatory statements is not an offence under the Terrorism Suppression Act. Making inflammatory statements designed to bring about an outcome defined in section 5 of the Terrorism Suppression Act is an offence under the Act.
That is the difference between the law of sedition as it presently stands—and by the end of the day it will have been removed from our statute book—and the Terrorism Suppression Act. One Act deals with the mere words—we are censoring people’s thoughts and the articulation of those thoughts, and we might think back to the Springbok Tour. One can imagine many occasions in 1981 when the present law would have been applied if those in authority had not exercised common sense and restraint.
The law of sedition is entirely about rhetoric, overstatement, and challenging authority. The Terrorism Suppression Act, and the offences outlined in the Crimes Act, the Human Rights Act, and the Summary Offences Act—to name a few—are about encouraging dissent through the vehicle of violence, through challenges to personal safety, or, at its lowest level, through challenges to public disorder. The Terrorism Suppression Act, of course, is at the high end of that, in that it threatens the welfare of the democratic State of New Zealand, not by oral challenge but by physical confrontation—either death, or damage to significant infrastructure or property.
So this bill is not about people feeling unsafe in their beds. It is not a challenge to the safety of anybody, at all. It may, in fact, enable people in this country to move toward a greater agreement on some of the deep-seated dividing issues in New Zealand, as we prepare and state our case on either side of, for example, the Māori sovereignty issue, and find an ultimate resolution, because the case is argued strongly, colourfully, and clearly. It is time that this bill passed and the sedition laws were repealed in this country.
|Ayes 114||New Zealand Labour 49; New Zealand National 48; Green Party 6; Māori Party 4; United Future 2; ACT New Zealand 2; Progressive 1; Independents: Copeland, Field.|
|Noes 7||New Zealand First 7.|
|Bill read a third time.|