The Right Honourable Helen Clark MP
Prime Minister of New Zealand
The Cabinet Office
Level 10, Parliament
Wellington
New Zealand

Fax: + 64 4 472 6332

Vienna, 26 November 2001

Your Excellency,

The International Press Institute (IPI), the global network of editors, leading journalists and media executives, condemns the recent decision of the New Zealand government to include a criminal defamation provision in its Electoral Amendment Bill (No.2).

According to the information provided to IPI, on 15 November, member of parliament (MP) Margaret Wilson , the New Zealand Associate Justice Minister, introduced a Supplementary Order Paper (SPO) to the Electoral Amendment Bill (No.2) which was before the house. In what appeared to be an attempt to circumvent normal parliamentary procedure, the SPO was introduced after the proposed Bill had been scrutinised by the Justice and Electoral Committee but shortly before it was to be made into law.

The SPO contained the following clause, “Every person commits an offence and is liable on summary conviction to a fine not exceeding NZ $5,000 or to imprisonment for a term not exceeding three months who, at any time in the period commencing on writ day and ending with the close of the poll, publishes or exposes, or causes to be published or exposed, to public view any document or writing or printed matter containing any untrue statement that is defamatory of any candidate and calculated to influence the vote of any elector.”

Reacting to the clause, the chairman of the Press Council, Sir John Jeffries, said, “He was astonished that the Bill should have reached the stage it did with so little prior indication to the public of the intent of the proposed legislation”. In a further criticism, Gavin Ellis, the chairman of the press freedom committee of the Commonwealth Press Union and editor-in-chief of the New Zealand Herald said, “The draconian nature of this clause … forces me to question the government’s commitment to press freedom.”

Sources in the country believe that the government’s decision was motivated by the need to prevent unsubstantiated reports in the media which seek to influence voters. In the last election, Winston Peters, leader of the NZ First party, allegedly made the widely reported claim that the Department of Work and Income had leased 16 Mercedes Benz cars; a claim that later proved untrue. As reported in New Zealand’s newspapers, there is also speculation that Your Excellency may have initiated the clause. In 1990, Your Excellency brought the only known criminal defamation prosecution in the 90 year history of the law. The case was against Dr. Roger Morton Ridley Smith who was found guilty of distributing a critical document during your electoral campaign.

In the opinion of IPI, the clause marks the reintroduction of criminal defamation in New Zealand, nearly ten years after it was repealed, and represents a retrograde step. Concerning the application of this law, IPI believes that there is no place for it in a modern democracy. Criminal defamation unfairly stigmatises journalists for carrying out their professional duties. In addition, the threat of imprisonment encourages self-censorship, hinders investigative journalism and smothers discussion on issues vital to society.

IPI also believes that the government has failed to examine other possible alternatives which would not have had the effect of isolating the media, making them the scapegoats of politicians who wish to pursue their own agendas. All elections are governed by an electoral body and IPI feels that a strengthening of their powers may prevent a repeat of the “Peter’s case”. A further possibility is the drafting of a code of conduct, agreeable to all political parties, which may be enforced against electoral candidates. A final consideration is whether parliament, through its own rules and regulations, should have the power to discipline electoral candidates guilty of attempting to influence voters.

On the question of the liability of journalists and media outlets, IPI believes that there are sufficient safeguards in New Zealand. Civil defamation laws offer an adequate alternative and they are untainted by the profound consequences for press freedom that criminal defamation laws imply. Furthermore, New Zealand already has a strong Press Council and this is also a suitable forum in which to bring forward complaints. Indeed, by seeking to approve legislation, without consulting this body, the government has bypassed the Press Council and undermined its standing in the country.

Regarding the legal perspective, the Privy Council continues to sit as the ultimate court in New Zealand. This court is comprised of judges drawn from the House of Lords which sits as the highest court of appeal in the United Kingdom. IPI notes that the Privy Council has stressed the importance of political debate. Moreover, the judges of the Privy Council, by virtue of their sitting in the House of Lords, also have experience of European case law. Therefore, IPI would argue that the “Lingens case”, heard before the European Court of Human Rights, is persuasive. The case states that politicians must display a greater degree of tolerance in the face of media scrutiny.

Bearing the above in mind, IPI finds it difficult to accept that there is a need to give additional protection to politicians, nor is IPI convinced that the electorate is unduly influenced by the statements of politicians.

A further worry is the damaging effect that the inclusion of this clause will have on press freedom in other parts of the world. New Zealand is correctly perceived as a country that upholds press freedom and many countries in the Pacific region and elsewhere look to it for guidance on such issues. For this reason, IPI fears that New Zealand is setting a standard which may be emulated in other countries. The government’s decision also comes at a time when countries such as Ghana have decided to repeal their criminal defamation laws and IPI finds it disappointing that New Zealand appears to moving in the opposite direction.

IPI understands that the clause will be debated when parliament reopens on 27 November and we would urge the government to consider withdrawing it. The issue before the house is far too important to be handled in the manner presently envisaged by the government, and IPI is worried that the final result will be hasty and ill-conceived. There is a real need for a thorough consultative process and IPI hopes that the government of New Zealand will do this before making a final decision.

We thank you for your attention.

Yours sincerely,

Johann P. Fritz
Director