Nelson MP Nick Smith, who has a 2004 contempt of court conviction, says he has no regrets and he would do it all over again to highlight what he called an injustice. Photo / Jason Oxenham
The Government is pushing to protect the integrity of the judiciary by limiting free speech and making it illegal to publish fake news about the courts, also known as "scandalising the court".
And it has taken aim at National MP Nick Smith, using his contempt of court conviction from 2004 as a reason for justifying the move.
Justice Minister Andrew Little said a new clause in the Contempt of Court bill, currently awaiting its third reading in Parliament, is a justified limitation on free speech to protect the administration of justice.
The clause has found favour with Smith's former caucus colleague and former Attorney-General Chris Finlayson, who sponsored the original bill and was "bemused" by National's - and Smith's - objections to it.
But Smith has fought back, saying his conviction is a badge of honour and he would do it again to highlight what he called an injustice in the Family Court.
Smith guilty of contempt of court
In 2004 Smith, along with Radio NZ and TV3, was found guilty of contempt of court for seeking to improperly influence the court by undermining its integrity.
Smith, the MP for Nelson, had advocated for a couple's custody case after their son had been placed with a caregiver.
He had asked the caregiver if she felt guilty for stealing the child, adding that Parliament was the highest court in the land and everyone was answerable to Parliament.
He then released details of the case to Radio NZ and was later interviewed on TV3.
Govt introduces law change
The new clause in the Contempt of Court bill would make it an offence to publish a false statement about a judge or court, known in common law terms as "scandalising the court".
It would be punishable by up to $25,000 or six months' jail.
It is a different clause to that which was in the original bill but was subsequently removed following a select committee recommendation, which said it could limit free speech and "prevent robust, legitimate criticism of judges and courts".
The revised clause includes a requirement that the perpetrator knew the false statement could undermine public confidence in the "independence, integrity, impartiality, or authority of the judiciary or a court".
Little said the integrity of the courts had to be protected and took aim at Smith during the bill's committee stage debate on Wednesday.
"People like Dr Nick Smith who think they can take the law into their own hands and pronounce about cases, undermine parties to cases, undermine judges, undermine the system, undermine confidence in the system — we have to have an effective sanction against that.
"He actually undermines the rule of law and he has a conviction to show for it."
Smith retorted by saying he had no regrets about his actions, and would gladly repeat them.
"I am proud to this day that I stood up for that family and that constituent, because what occurred to them was an injustice."
Smith noted a similar statute had been removed in the UK and the USA, and noted submissions against the clause from the Law Society, Transparency International New Zealand and media organisations because of free speech concerns.
"The select committee unanimously said that we do not need this contempt, this criminal offence, to maintain the integrity of the court system," Smith said.
"And what the Minister has done has said, 'I don't give a hoot what the select committee decided. I don't care a hoot if they heard all this evidence from university academics, from organisations like the Law Society.'
"What I object to, and what I think is bad law, is to put judges on a pedestal and somehow pretend that they need a level of protection that doesn't apply to anybody else."
Labour MP Greg O'Connor weighed in, saying Smith's comments that led to his conviction were contemptuous.
"They went well beyond the fair and temperate. They were one-sided, emotive, and extreme in their language, and were inflammatory and intimidatory in their effect."
Labour MP Ginny Anderson asked why the National Party opposed the clause when it was in the initial bill, which was originally in the name of former National Minister Chris Finlayson before the current Government adopted it.
"From all I can hear tonight, it's that one particular member's personal circumstances have called for the National Party to take a complete U-turn on their previous position on this particular issue," Anderson said.
Little said that Smith had done "a very sneaky thing" by referring to submissions to the select committee, which considered a different clause.
He said judges expressed their views in the courtroom and could not participate in a public debate.
"If they come under attack by somebody saying that a case a judge is dealing with is leading to somebody stealing a child, that judge can't respond. They can't defend their reputation."
The revised clause was accepted with the support of Labour, New Zealand First and the Greens.
Finlayson backs the Government
The bill was originally a members' bill in Finlayson's name, before it was adopted by the current Government.
Finlayson told the Herald it was "entirely appropriate" for Little to put a revised clause back into the bill.
"The fact of the matter is that we're not talking about saying 'a judgment's wrong for the following reason... '," Finlayson said.
"That's fine. But if you go around saying that the judge is a paedophile, or that kind of muck peddled by some pretty unsavoury characters, then the acid-test is whether it affects the administration of justice.
"I'm not particularly concerned about the feelings of an individual judge, but I am concerned about statements that can undermine the administration of justice."
He said the view that it was a justified limit on free speech was reinforced in the judgement on Smith's 2004 case, as well as Attorney-General David Parker's vetting of the bill against the Bill of Rights Act.
Finlayson said he was disappointed and "bemused" with the National Party's, and Smith's, opposition to the revised clause.
"Unlike many people who were voting in the House that night, I spent 10 years on this subject because the minute I became Attorney-General in 2008, I was concerned about the whole issue of contempt and its effect on the administration of justice."
Finlayson said that Smith's speech this week included statements that were wrong, including that the prosecution of him in 2004 was politically motivated.
Finlayson already took aim at Smith in a speech on Friday when he said the previous Government had failed to properly consult with iwi over plans for a Kermadec sanctuary; Smith was Environment Minister at the time.
"I don't think I'll be in his good books after my speech on the Kermadecs," Finlayson said.
"If people thought I was going to leave Parliament and be struck dumb on issues that I consider important, and the law of contempt is one of them, they are sadly mistaken."
New Contempt of Court clause
• An offence to publish a false statement about a judge or court, punishable by up to $25,000 or six months' jail
• The person making the false statement did so knowing (or ought to have known) that it could undermine public confidence in the "independence, integrity, impartiality, or authority of the judiciary or a court".
• Critics say it limits free speech and prevents robust and legitimate criticism of judges and courts, but supporter say it is a justified limit on free speech and judges cannot defend themselves outside the courtroom.
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