Minister defies libel law warning

By JOHN ARMSTRONG political editor

Associate Justice Minister Margaret Wilson overrode officials to insert a tough anti-defamation provision into electoral law, despite being advised it breached the Bill of Rights.

The controversial last-minute amendment to the Electoral Act will make it a criminal offence to publish or broadcast anything in the month before an election that defames a parliamentary candidate and is intended to influence votes.

If convicted, the publisher or journalist faces a fine of up to $5000 or three months in jail.

Ms Wilson revealed in Parliament yesterday that officials had argued that the clause was an unjustified limitation on freedom of expression.

Questioned by National's justice spokesman, Wayne Mapp, she said she had taken a different view to her officials, as freedom of expression had to be balanced against preserving the integrity of the electoral process and ensuring a candidate's chances were not irreparably damaged by a defamatory statement.

That balance had not been "fully discussed" by officials in the advice they had presented to the cabinet.

She said later that such assessments were always subject to challenge by ministers - as had been the case with Bill of Rights concerns about legislation banning MPs from party hopping.

The amendment writes criminal libel back into the statute books after a 10-year absence, making it a crime to publish an untrue and defamatory statement about a candidate during an election campaign.

Its purpose is to stop people making statements which are false and defamatory during the final days of a campaign, leaving no time for them to be checked or effectively rebutted.

But media organisations and some Opposition parties say the clause strikes at the Bill of Rights' protection of free speech, is an unjustified attack on legally sanctioned press freedoms and is unnecessary.

Ms Wilson yesterday moved to soften the clause by inserting the words "knowing to be false" and "reckless" into the bill as a protection for journalists who published false material which they believed to be true and had taken reasonable steps to verify.

Even in that form, the clause is still opposed by National, Act, NZ First and United.

But with the support of the Greens, Labour and the Alliance have the numbers to pass the measure into law. That will happen next week after Government MPs yesterday blocked a bid by Act's Stephen Franks to refer the amended legislation back to a select committee for public scrutiny.

Speaking in Parliament, National MPs predicted that the measure would stifle vigorous debate during an election campaign.

They accused the Prime Minister of being responsible for the new clause, pointing to a criminal libel action taken against the chairman of the General Practitioners' Society, Dr Roger Ridley-Smith, after pamphlets were circulated in Helen Clark's electorate in the final week of the 1990 campaign.

Ms Wilson acknowledged that the amendment had provoked strong views. But she said much of electoral law was "precautionary" as it legislated against extreme or outrageous behaviour which would damage the electoral process. "Freedom of speech is never absolute. It can do great harm if used inappropriately."

The amendment was widely condemned in media and legal circles yesterday.

The chairman of the New Zealand section of the Commonwealth Press Union, Gavin Ellis, said it was the sort of legislation expected of a repressive regime rather than a liberal democracy, and would force editors to suppress comment they were unable to prove.

The amendment would make live radio and television broadcasts a risky prospect and he was concerned that the clause did not appear to target those who made false statements but only those who published or broadcast them.

Mr Ellis, who is also editor-in-chief of the Herald, said the CPU would call an urgent meeting of editors from all media to consider the Government's action.

Bruce Wallace, executive director of the Television Broadcasters' Council, said the amendment was unnecessary and civil defamation laws were adequate.

The legislation would have a chilling effect on television journalism, a particular worry at election time.

"The editorial teams are very conscious of the issue already, and certainly don't need to have another layer of potential punishment imposed on them."

Media law expert Professor John Burrows, of Canterbury University, described the provision as a chill on free speech.

"It's going way beyond what is necessary and it's taking the law back a long way."