FREEDOM OF SPEECH
There is no statute or positive rule of the common law recognising and protecting freedom of speech and expression in New Zealand. The principle is that anyone may say and publish what he chooses without prior licence or approval (film censorship affords an exception), but he is liable to be punished if he infringes the law. Freedom of speech and expression, including freedom of the press, exists in this country simply because the exceptions to it are limited. It is less extensive than in the United States, where the provision of the Constitution guaranteeing freedom of speech and the press tends to be more valued in cases where it conflicts with other principles, for instance, the right to a fair trial. Moreover, toleration of unpopular views in critical times is probably less than in England. Our civil liberties record in wartime is not admirable.
Almost everyone would accept that there must be some legal restrictions on freedom of speech. In peacetime in New Zealand the main restrictions may be grouped under the heads of sedition, indecency, breach of the peace, defamation, and contempt of Court.
The law of sedition prohibits essentially only the advocacy of violence or disobedience to law. It is not sedition to urge any change in the law or the constitution, however radical. The right of jury trial in sedition cases was taken away in 1951, but the power thus given to prosecute summarily was not used and the right of jury trial was restored in 1960.
The law relating to indecent publications is dealt with in the article Censorship of Books. Under breach of the peace may be included the offence of blasphemous libel. The essence of this crime is the use of offensive language likely to provoke others to a breach of the peace. The expression in good faith and in decent language of any opinion whatever on any religious subject is declared lawful. The last known prosecution for blasphemous libel in New Zealand was in 1922, the defendant being acquitted.
As well as being civil wrongs, libel and slander are criminal offences, although slander is criminal only if spoken within the hearing of 12 or more persons at a public meeting or in a public place, or if it is broadcast. Unlike in civil cases, truth is not always a defence to criminal defamation. It is necessary to show that the matter was true, or was believed on reasonable grounds to be true, and also that the publication was for the public benefit.
While any decision of the Court may be freely criticised on its merits, it is contempt of Court and punishable to attribute bias or improper motives to Judges or Magistrates, since this would tend to lessen confidence in the impartial administration of justice. In recent times, however, the best known application of contempt of Court has been to prevent publication of anything that may prejudice the right of an accused person to a fair trial. It is liability to proceedings for contempt of Court that legally prevents a newspaper from commenting on a crime once a charge has been laid. The concept of contempt of Court is broad and could be used oppressively, but it has undoubtedly had a salutary effect in maintaining the purity and quality of justice.
The converse of freedom of speech is freedom to be silent, something almost as important in a free society. One aspect is the privilege against self-incrimination, which means that no one may be required in or out of Court to disclose anything that may subject him to criminal liability. In a few cases, where full disclosure is regarded as of paramount importance, the law does require it to be made. In that event it is almost always provided that nothing so disclosed may be used as the basis of a prosecution.
There is also the absence of any legal duty to inform on others or, in general, to answer questions put by the police or other authorities except in Court proceedings. In some democracies, for instance, in England and Victoria, an offence known as misprision of felony can be used, although it rarely is, to punish failure to give information to the police concerning more serious crimes. The matter is left in New Zealand to the judgment and sense of responsibility of the individual.
by Bruce James Cameron, B.A., LL.M., Legal Adviser, Department of Justice, Wellington.