Palmer, Right Hon Sir Geoffrey --- "Political speech and sedition" [2009] NZYbkNZJur 4; (2008-9) 11-12 Yearbook of New Zealand Jurisprudence 36

Last Updated: 25 April 2015

Political Speech and Sedition

The Right Hon Sir Geoffrey Palmer^*

I. IntroductIon¹

The Law Commission’s 96^th report Reforming the Law of Sedition was tabled in Parliament in March 2007.² The Report recommended that the seditious offences contained in sections 81-85 of the Crimes Act 1961 should be repealed. The Bill enacting its recommendations received the Royal Assent on 30 October 2007.³ This was an unusually rapid legislative passage even by New Zealand standards.⁴ The Crimes (Repeal of Seditious Offences) Amendment Act 2007 came into force on 1 January 2008 and sections 81 to 85 of the Crimes Act were duly repealed. It was not the first time that the sedition provisions of the Crimes Act had been challenged. In 1989, a Bill to reform the Crimes Act was introduced. It was not passed, for a variety of reasons unconnected with the proposed abolition of sedition.

The law of sedition, while a blot on the protection of free speech in New Zealand, was not a major weapon in the arsenal contained in the Crimes Act. The Law Commission recommended that the project be taken up because this was an unsatisfactory corner of the law in which reform was both necessary and straightforward. This article considers the law of sedition in New Zealand.

II. A hIStory oF the lAW oF SedItIon: PrActIce And theory

A consideration of New Zealand’s laws of sedition, and their recent repeal, will benefit from an understanding of some of the origins and evolution of such laws during the course of English history. Such evolution owes some part to the impact of the theories of philosophers and poets as they called for a more fair and open relationship between Ruler and citizen.

* President, New Zealand Law Commission.

1 I am grateful to Rachel Hayward of the Law Commission for her assistance in the preparation of this article.

2 New Zealand Law Commission Reforming the Law of Sedition (NZLC R96, Wellington,

2007).

3 Crimes (Repeal of Seditious Offences) Amendment Bill 2007, No 120-1.

4 GWR Palmer ‘The Fastest Law-Makers in the West’, New Zealand Listener, 28 May 1977, p 13. New Zealand’s legislative rate has slowed with the introduction of the MMP electoral system - Geoffrey Palmer and Matthew Palmer, Bridled Power (4 ed, 2004) 185.

A. An Historical Overview

A brief history of the common law relating to sedition recounted in the Law Commission’s report shows that the meaning of the concept has tended to change over time.⁵ There is, therefore, some uncertainty about the term

‘sedition’. Thus, prosecutions for the seditious offences tend to hover on a continuum between prosecutions for a strong expression of political dissent and those that are clearly urging violence against constituted authority. The term itself is derived from the Latin word ‘seditio’. In Roman times this meant

‘an insurrectionary separation (political or military); dissension, civil discord, insurrection, mutiny’.⁶ The idea of sedition is therefore linked to treason. The English Statute of Treasons 1351 defined (and still defines) many types of offences against the King as treasonable, including compassing or imagining the death of the King, levying war against the King in his realm and adhering to the King’s enemies. As might be expected, in the reign of King Henry VIII treason was greatly expanded. An Act of 1534 declared it treason to act or write anything to the prejudice, slander or disturbance of the King’s marriage to Anne Boleyn.⁷

The prosecution for seditious libel at common law of people who used words that could urge insurrection against those in authority, or who censured public men for their conduct, or criticised the institutions of the country, was made possible by the De Libellis Famosis decision of the Star Chamber court in

1606.⁸ This decision in effect created a very wide offence of seditious libel. In

1629 three men were charged with uttering seditious speeches in Parliament that ‘tended to the sowing of discord and sedition betwixt His Majesty and his most loyal subjects.’⁹

5 New Zealand Law Commission (2006). Reforming The Law of Sedition: Consultation Draft, NZLC: Wellington, paras 20-32, available at <www.lawcom.govt.nz/UploadFiles/ Publications/Publication_128_343_SEDITION%20CONSULTATION%20DRAFT.pdf> accessed 11 November 2009.

6 See I Kyer ‘Sedition Through the Ages: A note on legal terminology’ (1979) 37 UT Fac L Rev 266.

7 Hon Chief Justice of Federal Court of Australia, N E Black ‘Five Approaches to Reforming the Law: 650 years of Treason and Sedition’ (Keynote address to the Australasian Law Reform Agencies Conference 2006) available at <www.alrc.gov.au/events/alrc/Presentation/ BlackCJ.pdf> citing Sir John Baker Oxford History of the Laws of England, vol VI, 587).

8 De Libellis Famosis [1572] EngR 388; (1606) 5 CO Rep 125a, 251.

9 R v Elliot et al (1629) 3 State Trials 293.

Over the next three centuries the speaking of inflammatory words, publishing certain libels, and conspiring with others to incite hatred or contempt for persons in authority became known as seditious offences in England. In

1704, Holt LCJ justified the existence and width of such offences in R v

Tutchin: ¹⁰

... nothing can be worse to any government, than to endeavour to procure animosities as to the management of it; this has always been looked upon as a crime and no government can be safe without it be punished.

Tutchin was sentenced to seven years imprisonment with a whipping every fortnight for alleging corruption in ministry and ill-management in the Navy.

In 1792, the Libel Act¹¹ was passed. This provided that the matter in issue in libel cases was to be decided by the jury, not by judges. In its day this was regarded as a considerable constitutional reform and it is still in force.

A more liberal democratic political environment evolved in Britain during the nineteenth century which altered views towards citizens’ rights to express freely criticism of the government, and to some extent, such changes resulted in a tightening of the law of seditious libel. A view of sedition based on the idea that the Sovereign or the Government was the servant of the people, rather than a divine appointee who could do no wrong, was gaining acceptance. This sentiment was captured by Sir James Stephen who commented that for all who held this more modern view, no censure of the government, short of a direct incitement for disorder and violence, would be a seditious libel.¹² By the end of the 19^th century the term ‘sedition’ was no longer used in the sense of an insurrection or revolt. Rather, it described the act of inciting and encouraging the revolt. In 1883, Sir James Stephen observed that there was no such offence as sedition, but he defined a seditious intention as:¹³

... an intention to bring into hatred or contempt, or to excite disaffection against the person of Her Majesty, her heirs and successors, or the Government and Constitution of the United Kingdom, as by law established, or either House of Parliament, or the administration of justice, or to excite Her Majesty’s subjects to attempt otherwise than by lawful means the alteration of any matter

10 R v Tutchin (1704) 14 State Trials (OS) 1096, 1128.

11 32 Geo. III c. 60. The Act is also known as Fox’s Libel Act after the British MP Charles

James Fox who secured the passing of the Act.

12 Sir James Stephen A History of the Criminal Law of England (London 1883) Vol 2, 375.

13 Ibid 298-9, citing Article 93 of Stephen’s Digest of the Criminal Law (1877), approved in

R v Burns (1886) 16 Cox CC 355, 377.

in Church or State by law established, or to raise discontent or disaffection amongst Her Majesty’s subjects, or to promote feelings of ill-will and hostility between difference classes of Her Majesty’s subjects.

It needs to be noted that at the time of writing sedition is still a common law

offence in England and the High Court has confirmed that as recently as

1991.¹⁴ The common law remains very much as in Stephen’s formulation: it is not sufficient to show the words were used with the intention of achieving one of the objects he described; it must also be proved there was an intention to cause violence.¹⁵

B. A Philosophical Overview

One of the most profound petition pleas for free speech can be found in John Milton’s 1644 speech ‘Areopagitica: A Speech for the Liberty of Unlicensed Printing’ which was an appeal to Parliament for freedom from pre-publication censorship for books and other writing, in response to the Licensing Order of 1643. The Order reinstated censorship as it had been in force under the Star Chamber. Milton’s main argument was that such an order would be ‘primely to the discouragement of all learning and to stop of Truth, not only by disexercising and blunting our abilities in what we know already, but by hindering and cropping the discovery that might yet further be made in religious and civil wisdom.’¹⁶ When Milton introduced his speech to Parliament he said, ‘... when complaints are freely heard, deeply considered and speedily reformed, then is the utmost bound of civil liberty attained that wise men look for.’¹⁷

In the 19^th century John Stewart Mill’s classic essay On Liberty made the case as persuasively as anyone ever has about the importance of freedom of expression:

The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right,

14 R v Chief Metropolitan Stipendiary Magistrate: Ex Parte Choudhury [1991] 1 QB 429.

15 The United Kingdom Law Commission Working Paper no 72 Second Programme Item XVIII Codification of the Criminal Law – Treason, Sedition and Allied Offences (1977) referring to Article 114 in Stephen’s Digest of the Criminal Law (4^th ed), which was updated from Article 93, but essentially the same in its terms as Article 114, and approved in R v Burns, above n 13, R v Aldred (1909) 22 Cox CC 1, and R v Boucher [1951] 2 DLR 369,

382-384.

16 J Milton, ‘Areopagitica: A Speech for the Liberty of Unlicensed Printing’ to the Parliament of England in 1644, and J Milton Prose Writings (1958) 145.

17 Ibid.

they are deprived of the opportunity of exchanging error for truth: if wrong, they lose what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.¹⁸

The American philosopher Alexander Meiklejohn was an influential theorist on the First Amendment in the United States. Meiklejohn was of the opinion that speech could be regulated just as lighting a fire or shooting a gun could be regulated by the law. However, he argued that the freedom that the First Amendment protects is the freedom of self government.¹⁹

Thus, four commonly held justifications can be identified for the principle of freedom of speech:²⁰ the importance of discovering the truth; the importance of citizens participating in democracy; the importance of free speech as an aspect of each individual’s right to self-development; and a distrust or suspicion of government that provides checks and balances on the power of political leaders.

III. A VIeW FroM AbroAd:

the unIted StAteS conStItutIon, the FIrSt AMendMent And SedItIon

The traditions of free speech, like the common law itself, are not limited to historical and philosophy developments in England. Equally significant traditions of free speech can be found in the United States. Indeed, much of the effort to reform the law of sedition in New Zealand draws inspiration from the First Amendment to the United States’ Constitution which encapsulates the notion of free speech with its provision that: ‘Congress shall make no law ... abridging freedom of speech or of the press.’ One First Amendment decision, in particular, has a strong bearing on why the New Zealand law of sedition was reformed, which is the seminal decision emanating from the New York Times v Sullivan.²¹ The case connects in important ways with theoretical defences of freedom of speech in the philosophical literature.

The New York Times case was decided in 1964 during the time of the American civil rights movement. The effect of the decision was to constitutionalise the tort of defamation in the United States by applying the First Amendment standards to it for the first time, and striking down portions of the defamation law.

18 J S Mill ‘On Liberty’ in Three Essays (1991) 14, 21.

19 A Meiklejohn ‘The First Amendment is an Absolute’ [1961] Supreme Court Review 245,

249.

20 Eric Barendt, Freedom of Speech, (2 ed, Oxford University Press, 2005), 6.

21 New York Times v Sullivan [1964] USSC 40; 376 US 254 (1964).

The defamation case was brought by Sullivan, the Police Commissioner from Montgomery, Alabama. It was brought against four Alabama clergymen and the New York Times. The alleged libel was a full page advertisement soliciting contributions for ‘The Committee to Defend Martin Luther King and the Struggle for the Freedom in the South’. It largely comprised editorial comment about the mistreatment by the Police and the Community of Dr King and black students active in protesting the deprivation of civil rights. It spoke of the growing momentum of the protest movement. Its title was ‘Heed Their Rising Voices’. This was taken from the New York Times editorial. The New York Times was sued as the publisher of the advertisement. The four clergymen were sued as sponsors and publishers whose names had appeared prominently in the advertisement along with those of some 80 other people.²² None of those people appear to have been amenable to suit in Alabama. The case was tried to a jury which brought in a verdict for $500,000 in favour of the plaintiff.²³

The judgment was affirmed by the Supreme Court of Alabama.²⁴

The Alabama law of defamation was not unusual. In fact, its main components were similar to the law of England and New Zealand. Justice Brennan, who wrote the leading judgment, noted that the general proposition that freedom of expression upon public questions is secured by the First Amendment had long been settled by U.S. Supreme Court decisions. After canvassing some of the numerous decisions in this regard, Justice Brennan stated:²⁵

... we consider this case against the background of profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

The Court held that a state in the United States cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves ‘actual malice’

– that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.²⁶

The New York Times case was important not only for its free speech implications but also for its affirmative contribution to the civil rights movement. Furthermore the case and its progeny had a profound effect on the common law of defamation in the several states of the United States. It also produced an avalanche of litigation in which the application of the First Amendment to

22 Ibid 256-258.

23 Ibid 256, 262-263.

24 Ibid 263-264.

25 Ibid 270.

26 Ibid 281.

defamation was steadily expanded from public officials to public figures to issues of public concern.²⁷ There are many strands from which the case can be examined but, perhaps, one of the most celebrated and informative scholarly commentaries on the case was written by Professor Harry Kalven. For the purposes of this paper, his statement that, ‘The central meaning of the [First] Amendment is that seditious libel cannot be made the subject of government sanction’²⁸ is particularly pertinent. In other words, sedition strikes at the very heart of democracy and political freedom ends when government can use its powers and its courts to silence its critics. Kalven argued that defamation of the government is an impossible notion for a democracy:

In brief, I suggest, that the presence or absence in the law of the concept of seditious libel defines the society. A society may or may not treat obscenity or contempt by publication as legal offenses without altering its basic nature. If, however, it makes seditious libel an offense, it is not a free society no matter what its other characteristics.²⁹

The Supreme Court in the New York Times case had been at pains to ensure that a good faith critic of government should not be penalised for the criticisms. The way in which the Alabama courts had dealt with the defence of fair comment, ‘strikes at the very centre of the constitutionally protected area of free expression’.³⁰ False utterances can be protected under this doctrine. The fair comment defence can extend to false facts as it did in a 1908 Kansas case.³¹

IV. crIMInAl lIbel In neW ZeAlAnd

As noted previously, attempts in 1989 to repeal the law of sedition had been unsuccessful. Efforts to reform the law of criminal libel, which also posed a potential risk to freedom of speech, met with greater success.

Until 1993, section 211 of the Crimes Act 1961 provided for criminal libel, and section 216 for criminal slander. The two provisions created an offence when either written or spoken words caused the loss of reputation by bringing a person into hatred, ridicule, or contempt, or by injuring him in his profession,

27 Curtis Publishing Co v Butts, Associated Press v Walker 388 US 136 (1967); Time v Firestone

[1976] USSC 27; 424 US 448 (1976); Gertz v Welch [1974] USSC 144; 418 US 323 (1974); Philadelphia Newspapers v Hepps

[1986] USSC 73; 475 US 767 (1986).

28 Harry Kalven Jr. ‘The New York Times case: A note on the Central Meaning of the First

Amendment’ [1964] Supreme Court Review, 191, 209.

29 Ibid, 205.

30 New York Times v Sullivan above n 21, 292.

31 Coleman v McLennan 78 Kan. 711, 98 P 281 (1908).

office, business, trade or occupation. Mens rea was not a necessary element.³²

All that was required was a likelihood of injury to reputation. Pursuant to section 214(1) of the Crimes Act 1961, to successfully establish a defence to the charge, the accused had not only to prove that what he said was true, but also that publication was for the public benefit.

In 1975, a law reform committee was set up to review defamation law. One of the recommendations made by that Committee in 1977 was that the offence of criminal libel should be abolished.³³ The most compelling reason for abolition in the Committee’s view was that the civil action available for defamation provided adequate protection for defamatory statements and rendered the criminal action superfluous.³⁴ However, the Committee also agreed with a submission by the Council for Civil Liberties that the sanctions of the criminal law against defamation were undesirable as they inhibited freedom of speech and public criticism.

The Committee’s recommendations came out in December 1977, by which time the new government led by Sir Robert Muldoon was in power. Sir Robert, a frequent litigant in defamation cases, was widely believed to have literally put the report in a cupboard, and it did not emerge from there in the course of his administration. The law on criminal libel was finally repealed by section 56(2) of the Defamation Act 1992, which came into effect in February 1993.

A. The New Zealand law of sedition

This brings us to the New Zealand law of sedition. New Zealand inherited the British common law on sedition. It was codified in the Criminal Code of 1893, and set out again in the Crimes Act 1908. Seditious offences also featured in regulations made under the War Regulations Act 1914,³⁵ and under the Police Offences Amendment Act 1951. The modern statement of the law appeared in the Crimes Act 1961, and is worth setting out in full at this juncture.

81. Seditious offences defined

(1) A seditious intention is an intention –

32 Hardy [1951] VicLawRp 21; (1951) VLR 454.

33 Report of the Committee on Defamation Recommendations on the Law of Defamation (December 1977) 103. The Committee also recommended that other provisions in New Zealand statutes which invoked the criminal law in respect of defamatory material should be repealed, namely ss 15 and 16 of the Defamation Act 1954, s 29 of the Post Office Act

1959, regulation 51 of the Radio Regulations 1970, s 128 of the Electoral Act 1956 and s

55 of the Local Elections and Polls Act 1976.

34 Ibid 102.

35 Regulations dated 20 September 1915, as amended on 29 November 1915, 24 July 1916 and 2 April 1918.

(a) to bring into hatred or contempt, or to excite disaffection against, Her Majesty, or the Government of New Zealand, or the administration of justice; or

(b) to incite the public or any persons or any class of persons to attempt to procure otherwise than by lawful means the alteration of any matter affecting the Constitution, laws, or Government of New Zealand; or

(c) to incite, procure, or encourage violence, lawlessness, or disorder;

or

(d) to incite, procure, or encourage the commission of any offence that is prejudicial to the public safety or to the maintenance of public order; or

(e) to excite such hostility or ill will between different classes of persons as may endanger the public safety.

(2) Without limiting any other legal justification, excuse, or defence available to any person charged with any offence, it is hereby declared that no one shall be deemed to have a seditious intention only because he intends in good faith –

(a) to show that Her Majesty has been misled or mistaken in her measures;

or

(b) to point out errors or defects in the Government or Constitution of New Zealand, or in the administration of justice; or to incite the public or any persons or any class of persons to attempt to procure by lawful means the alteration of any matter affecting the Constitution, laws, or Government of New Zealand; or

(c) to point out, with a view to their removal, matters producing or having a tendency to produce feelings of hostility or ill will between different classes of persons.

(3) A seditious conspiracy is an agreement between 2 or more persons to carry into execution any seditious intention.

(4) For the purposes of sections 83 to 85 of this Act,

– to publish means to communicate to the public or to any person or persons, whether in writing, or orally, or by any representation, or by any means of reproduction whatsoever.

– statement includes words, writing, pictures, or any significant expression or representation whatsoever; and also includes any reproduction, by any means whatsoever, of any statement.

82. Seditious conspiracy

Everyone is liable to imprisonment for a term not exceeding 2 years who is a party to any seditious conspiracy.

83. Seditious statements

Everyone is liable to imprisonment for a term not exceeding 2 years who makes or publishes, or causes or permits to be made or published, any statement that expresses any seditious intention.

84. Publication of seditious documents

(1) Everyone is liable to imprisonment for a term not exceeding 2 years who, with a seditious intention, -

(a) prints, publishes, or sells; or

(b) distributes or delivers to the public or to any person or persons; or

(c) causes or permits to be printed, published, or sold, or to be distributed or delivered as aforesaid; or

(d) has in his possession for sale, or for distribution or delivery as aforesaid;

or

(e) brings or causes to be brought or sent into New Zealand, - any document, statement, advertisement, or other matter that expresses any seditious intention.

(2) Any constable may seize any document, statement, or advertisement, or any other written or printed matter, in respect of which an offence under this section is committed or is reasonably suspected by him to have been committed.

85. Use of apparatus for making seditious documents or statements

Everyone is liable to imprisonment for a term not exceeding 2 years who, having in his possession or under his control any printing press, or any mechanical, photographic, or electrical apparatus, or any other apparatus whatsoever, -

(a) uses it; or

(b) causes or permits it to be used

– for printing, making, or publishing, or for facilitating the printing, making, or publishing of, any document, statement, advertisement, or other matter that expresses or will express any seditious intention.

B. Experience under New Zealand law

The important point at the outset is to demonstrate that seditious offences punish speech. A criminal offence may be established with no other action on the part of the accused but speech, and, on many occasions, it will be political speech.

The New Zealand experience under its various sedition provisions shows that the law of sedition was potentially an instrument of political suppression, and sometimes it was used in that way. Generally charges relating to seditious offences were laid during times of political or civil unrest or war. In many cases, charges were laid and prosecuted against people for criticism of particular legislation or policies of the government, or for advocating an alternative form of government. The accused were not, by and large, advocating violence against lawfully constituted authority, or, if they did at least allegedly advocate violence, it was in response to the violence of government reaction (for example, sending force against Māori trying to protect their lands or against strikers).

The Law Commission’s Report outlines various sad instances in which these powers were used. In the late nineteenth century, sedition charges were laid against the Māori leaders, Te Whiti o Rongomai and Tohu Kakahi.³⁶ Te Whiti had established a movement for Māori peace and development at Parihaka, and had led a campaign of passive, peaceful resistance to Māori land confiscations by the Government. In 1881, the Government’s Armed Constabulary invaded and occupied Parihaka. Wholesale arrests were made, villagers evicted, and houses and crops destroyed. Te Whiti and Tohu were arrested and held on charges of sedition.

At one of the meetings of Māori at Parihaka in 1881, Te Whiti was alleged to have said ‘the land belongs to me’, ‘the people belong to me’ and ‘this is the main quarrel – war? – of this generation’, or, according to one version:

This is the chief quarrel of this generation. ... Mine is the land from the beginning. I say to all Kings, Governors, Prophets and wise men stand up with your weapons to-day, but the land will not be released. The quarrel is arranged by us to be here. Neither the King nor the Governor shall turn us off the land today. . .we quarrel for the place which is said to be the land of the Government.

36 Waitangi Tribunal Report The Taranaki Report Kaupapa Tuatai WAI 143 (1996), 199 and following.

Te Whiti was charged with sedition for allegedly uttering these words in language calculated to promote disaffection, and Tohu was charged with a similar offence. Both were jailed awaiting trial but after four days hearing the trial was postponed, and it was never completed. The Crown prosecutors found the case was weak and reports of the meeting garbled. The Government enacted the West Coast Peace Preservation Act 1882, an Act which provided that neither man should be tried for the offence with which they were charged, but allowed them to be detained indefinitely as the Governor thought fit. Te Whiti and Tohu were not released until 1883.

In 1913, Harry Holland made a speech at a strike of waterfront workers in Wellington, in which he suggested that if violence were resorted to, and the Navals were ordered to shoot, they should remember where their class interest lay, and point their guns accordingly. He allegedly continued:³⁷

The strike was not made by the working classes, but by the master classes, who are pouring their armed hundreds into Wellington, not in daylight but like thieves in the night . . . The uniformed police can deal a staggering blow by tearing off their uniforms and standing by the watersiders.

Holland was convicted and jailed.

Opposition to conscription in World War I produced a number of sedition charges and convictions. Bob Semple, Fred Cooke, James Thorn, Peter Fraser and Thomas Brindle were all sentenced to 12 months’ imprisonment, some with hard labour, for expressing the view that conscription and liberty could not live in the same country. In 1918, a clergyman was given a 12 month sentence for saying that war was blasphemy, and glorifying the Russian revolution.³⁸

Then there was the sad affair of the prophet Rua Kenana and the Tuhoe people which leaves a very unfortunate taste to this day. In 1916 there was a clash between the Tuhoe Māori followers of Rua Kenana and the police, after which the police attempted to arrest Rua. He was later prosecuted for sedition on the basis of alleged seditious words at the time of the arrest attempt, for counselling murder or disabling the police and resisting arrest. There was a mass of conflicting evidence; the Crown case rested on an assumption that an ambush awaited the armed police, and that Rua gave the signal with the words

37 The words are taken from the Chief Justice’s judgment and may not have been an accurate transcript of Holland’s speech. See Twelve Months for Sedition - Harry Holland’s Speech and the Chief Justice’s Remarks in Delivering Sentence (‘The Worker’ Printery, Wellington,

1914).

38 New Zealand Herald 11 May 1918 ‘Clergyman charged’, and 18 May 1918 ‘Guilt of a

Clergyman’.

‘Patua, Patua’. Māori evidence was that only one Māori was armed and that the words could only have been part of a cry of despair ‘Patua au, Patua au’ (Kill me, Kill me) uttered when Rua was taken by the police.³⁹

The jury acquitted Rua of sedition but he was found guilty of resisting arrest, (‘moral resistance’ was the verdict) and sentenced to 12 months hard labour, to be followed by 18 months imprisonment, a draconian sentence by any standards for such an offence. Eight of the jury sent a letter of protest to The Auckland Star against the severity of the sentence.

In 1917, Hubert Armstrong, a miner, was prosecuted for an anti-conscription speech held to excite disaffection against the Government, which included this statement:

I claim the right to criticise the government of the country. I claim the right to criticise any piece of legislation enacted by the government of this country, that, to my mind is against the interests of the country, whether military service, or any other Act and I am going to do so .... . Semple, Cooke and the rest of them are in gaol today because they are said to be disloyal to their country. .

. I say their names in the near future will be honoured when the name of the Wards and the Masseys will be looked on as the greatest gang of political despots that ever darkened the pages of this country’s history.

He was sentenced to 12 months’ imprisonment.⁴⁰

In the second half of the 20^th century, prosecutions for sedition were so rare that it appeared that the crime had fallen into disuse. Then in 2006, Tim Selwyn was prosecuted for sedition (among other charges), following emails calling for militant action against the Government’s foreshore and seabed legislation, an attack with an axe breaking the glass of the Prime Minister’s electoral office window, and the publication of two sets of pamphlets. The first set spoke of the broken glass and called upon like-minded New Zealanders to carry out similar acts; the second set of pamphlets called upon New Zealanders to carry out their own acts of civil disobedience.⁴¹ Selwyn entered guilty pleas to a number of charges, but was also charged with two counts of publishing seditious statements that expressed a seditious intention, namely the intention to encourage lawlessness or disorder.

39 J Binney, G Chaplin and C Wallace Mihaia The Prophet Rua Kenana and His Community at Maungapohatu (1996) 111, 124-125.

40 B Kendrick ‘Hubert Thomas Armstrong: Miner, Unionist, Politician’ (MA Thesis, University of Auckland, 1950); Jim McAloon, ‘Armstrong, Hubert Thomas 1875 – 1942’. Dictionary of New Zealand Biography, updated 7 April 2006.

41 R v Selwyn (8 June 2006) CRI: 2005-004-11804, District Court Auckland.

Selwyn was tried by jury, and convicted on one count, in relation to the pamphlets referring to the broken glass. This was the last occasion on which a conviction for sedition was entered in New Zealand. It was not, however, the last time that a charge of sedition was laid.

In October 2006, a youth appeared in the Rotorua District Court and was remanded in custody on charges of sedition and threatening to kill.⁴² The sedition charge was laid under section 84(1)(b) of the Crimes Act 1961 (distributing or delivering to the public or any person a document, statement, advertisement or other matter that expresses a seditious intention). The sedition charge was subsequently withdrawn. In February 2007, just before the release of the Law Commission’s report recommending the abolition of the seditious offences, the manager of a tavern in Dunedin was charged with seditious intent. The accused ran an Orientation week promotion in which he published a pamphlet offering to swap petrol for beer, and offering students the chance to win a petrol-soaked couch as a prize. The accused was charged with a seditious offence. The charge was subsequently withdrawn, after police decided there was insufficient evidence to proceed.⁴³

V. the lAW coMMISSIon’S recoMMendAtIonS

As a result of its analysis of the law and history of the seditious offences, the Law Commission concluded that seditious offences had been used both here and overseas to prosecute and punish speech that might be inflammatory, vehement and unreasonable, but where there was no proved intention to urge immediate violence, or any likelihood of such violence. In the Law Commission’s view, the State should be entitled to punish statements or conspiracies advocating imminent violence against the State, or the community, or individuals, but only if a criminal offence is a likely outcome and there is proof of intention to advocate it.

The Law Commission considered that where the protection of public order, or the preservation of the Constitution or the Government is at stake, there were other and more appropriate criminal offences that could be used to prosecute offending behaviour; offences which do not carry with them the risk of abuse or the tainted history that attaches to the seditious offences. Similarly, while it might be tempting in a modern context to look to sedition to contribute to

42 ‘Teenager held on sedition charge’ (18 October 2006) New Zealand Herald.

43 ‘Dunedin pub manager off hook after police drop sedition charge’ (3 May 2007) New Zealand

Herald.

the suppression of terrorism, the seditious offences were not an appropriate response to terrorism. There are other ways of dealing with such conduct, which do not infringe the principle of freedom of expression.

The Law Commission gave five principal reasons for repealing the sedition

provisions of the Crimes Act. They were:

• The legal profile of the offences was broad, variable and uncertain. The

meaning of ‘sedition’ has changed over time;

• As a matter of policy, the existing law invaded the democratic value of freedom of speech for no adequate public reason;

• Specifically, the law fell foul of the New Zealand Bill of Rights Act

1990;

• The seditious offences could be inappropriately used to impose a form of political censorship, and they have been used for this purpose;

• The law is not needed because those elements of it that should be retained were more appropriately covered by other offences.

The Law Commission’s Report received a most interesting reaction when it was tabled in the House. On 24 April 2007 the Green Party, United Future, ACT and the Māori Party issued a joint call for the government to legislate the recommendations of the Law Commission. The Crimes (Repeal of Seditious Offences) Amendment Bill was introduced on 8 June 2007. It received rapid Select Committee consideration and received the Royal Assent on 13 October

2007.

VI. concluSIon

In 1964, Kalven suggested that the presence or absence in the law of the concept of seditious libel defines the society. That statement still rings true today. In these times of armed terror, when pressure may mount to erode certain freedoms in the interests of ‘national security’, it is all the more important to safeguard the essential elements of a liberal democracy. Freedom of expression is one of those essential elements.

As one Australian commentator has said, a robust and mature democracy should be expected to absorb unpalatable ideas without prosecuting them. I take heart from the abolition of the law of sedition. With that reform, the abolition of criminal libel, and recent judicial decisions liberalising the law of defamation to allow criticism of Ministers, ⁴⁴ progress is being made.

44 Lange v Atkinson [1997] NZHC 1810; [1997] 2 NZLR 22 (HC); Lange v Atkinson [1998] 3 NZLR 424 (CA); Lange v Atkinson [2000] 1 NZLR 257 (PC). It should be noted, however, that in a recent analysis Andrew Geddis evaluating the state of freedom in New Zealand concluded ‘Even in the core area of political expression the regulatory picture is decidedly mixed.’ Andrew Geddis ‘The State of Freedom of Expression in New Zealand: An admittedly eclectic overview’ [2008] OtaLawRw 5; (2008) 11 Otago Law Review 657, 681.