Dominion Post cleared of contempt – the right decision?

An interesting decision this week in the New Zealand High Court. Contempt of court charges against Fairfax Media and Dominion Post editor, Tim Pankhurst, were dismissed. Earlier this year the Dom Post published extensive details of a police affidavit alleging weapons offences and related charges against a group of people who were arrested after a long surveillance operation which uncovered supposed “terrorist” training camps in the Urewera ranges.

The contempt charges were brought by the Solicitor-General who argued that the trials of 19 people associated with the case could be prejudiced by the publication of details in the affidavit.

There was an interesting line in the judges’ decision that deserves some exploration.

“Publications which are unlawful can never be regarded as responsible or justifiable,” the judges said.

Under normal conditions, whatever they are, this might be true, but there have been times in the past where political publications, mainly leftwing newspapers, were banned as incendiary; seditious and dangerous. I would argue that leftwing papers and other media can be regarded as responsible and justified. There is a freedom of speech issue here at some level.

Just deeming something as “unlawful”, whether a whole publication or, as in this case, a particular article doesn’t mean it can’t be justified on public interest grounds. Public interest is a vital ingredient of a responsible press. The issue is the legal system under capitalism is not objective, it is culturally and ideologically bound up with the maintenance of the social order. This is as much a political as a legal function in a capitalist society.

The Dominion Post is hardly an incendiary newspaper and its politics are fairly middle of the road, but the judges were signalling that publishing the affidavit story was out of order, even if it would not prejudice the looming trials.

Even though the contempt charges have been dropped, Fairfax might now face other charges from the police for breaching Section 312K of the Crimes Act which makes it an offence to publish details of police interceptions of phone calls collected as evidence during a surveillance operation.

The NZ Herald led with this angle in their coverage.

“We are at a loss to understand why these breaches were not prosecuted,” High Court chief judge Tony Randerson and senior judge Warwick Gendall said today.

Noting responsibility lay with the police, they said failure to prosecute was possibly influenced by the fact that the maximum fine for unlawfully publishing intercepted material and was only $500, with a penalty up to $1000 for breaching a suppression order.

Of course coverage in the Fairfax Media played this down, and led with the decision to drop the contempt charges.

Top High Court judge Tony Randerson and senior judge Warwick Gendall today dismissed the case brought against Dominion Post editor Tim Pankhurst and the newspaper’s publisher Fairfax, whose other publications include The Press and the Stuff website.

Solicitor-General David Collins, QC, had alleged the fair trials of 19 people facing weapons charges could have been prejudiced, but the judges did not agree. “We do not consider that the accused are likely to be prejudiced by the publications in relation to their defences,” they said.

Personally, I’m pleased with the decision not to prosecute. I think the publication of material from the affidavit can be justified on public interest grounds. The police case, based heavily on the affidavit material, made out that New Zealand was facing a serious terrorist threat, but in the end no terrorism charges have been laid and the police were embarrassed.

Slap on the writs – EM 15 May 2008

Dominion Post charged – EM 10 April 2008

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