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Last Updated: 1 April 2013
KEEPING JUSTICE BLIND ONLINE:
suppression
regimes and digital publishing
I Introduction
In New Zealand, the principle of open justice is
firmly entrenched, fleshed out by the considerations inherent in Bentham’s
famous quotation: ‘Publicity is the very soul of justice’. Its
underlying rationale is expressed in Broadcasting Corporation of New
Zealand v Attorney-General:[1]
It is simply that the principle of public access to the Courts is an
essential element in our system. Nor are the reasons in the slightest
degree
difficult to find. The Judges speak and act on behalf of the community. They
necessarily exercise great powers in order to
discharge heavy responsibilities.
The fact that they do it under the eyes of their fellow citizens means that they
must provide daily
and public assurance that so far as they can manage it what
they do is done efficiently if possible, with human understanding it
may be
hoped, but certainly by a fair and balanced application of the law to facts as
they really appear to be. Nor is it simply
a matter of providing just answers
for individual cases, important though that always will be. It is a matter as
well of maintaining
a system of justice which requires that the judiciary will
be seen day by day attempting to grapple in the same even fashion with
the whole
generality of cases. To the extent that public confidence is then given in
return so may the process be regarded as fulfilling
its
purposes.
Open justice finds expression in open court hearings, in
public access to court records and in the publication of reasons for and
outcomes of a proceeding.[2]
Non-publication or suppression orders restricting publication of judgment
content (in whole or in part) derogate from the principle
in the wider public
interest and can arise in a variety of forms, particularly in the criminal
context.[3] This article is not about
the merits or otherwise of such orders, whether made under the Criminal Justice
Act 1985[4] or under the recently
affirmed inherent jurisdiction.[5]
Instead it discusses the difficulties of compliance with such orders in the
struggle a free access online publisher must engage
in to achieve the objective
of public access to law.
II Open Justice in New Zealand and e-publication
It is almost three
decades since the New Zealand Court of Appeal characterised open justice
as supporting a reciprocal relationship of trust, where judges ‘speak and
act on behalf of the community’
in order to encourage the giving in return
of ‘public confidence’.[6]
Of course, the Court of Appeal could not have contemplated how such a
relationship could be assiduously fostered by the electronic
publication of
decisions, nor that the concept of ‘public’ might be forever altered
by the creation of virtual communities.
Nonetheless, even then the open justice
principle would have been seen as being able to migrate to the digital world,
although the
sheer shock of the scale of ‘openness’ of such
publication might have given some judicial pause.
Since 2004, over 50
collections of decisions from courts and tribunals have been made publicly
available through websites unique to
the decision generator or via other public
distribution services, such as Judicial Decisions
Online[7] and the New Zealand Legal
Information Institute (NZLII).[8]
This represents enormous progress in public access to the work product of courts
and tribunals.
For example, when NZLII began life in 2004 it enjoyed
only four sources of supply; it now provides the largest online free public
access collection of legal decisions, with over 50 data
sets.[9] That increase has not been
the result of some legislative change or concerted governmental policy. Rather
it has been organic -
in each case, a particular expression of a growing
collective will by decision generators to make law publicly accessible. NZLII
does not receive governmental funding but relies on the support of the
Australasian Legal Information Institute (AustLII) for its
technical platform,
discrete and contestable project funding from the New Zealand Law
Foundation[10] and voluntary labour.
Given its informal genesis, NZLII has been remarkably successful at
promoting the face of open justice. There has been migration
to e-dissemination
of legal decisions on such a scale that it might reasonably be assumed that the
principle has been considerably
fortified in practical terms. But that
inference faces an ongoing challenge.
A The Current Problem: Derogation, in Effect, from the Principle of
Open Justice
Breach of a non-publication order based on statute may
result in conviction for a specific offence; breach of such an order based
on
inherent jurisdiction brings with it the possibility of an order that the
publisher be held contempt of court. The logistics
of judgment distribution and
the lack of suppression register to assist in determining when such orders exist
and their terms can
be barriers to free public access to judgments.
1
Tribunals and the principle of open justice
For some tribunals,
anonymisation in the wider interests of justice is not required: for example,
the Motor Vehicle Disputes Tribunal,
which determines claims by purchasers of
vehicles against motor vehicle traders. By contrast, the Customs Appeal
Authority suppresses
identifying information, presumably in the interests of
commercial sensitivity. Other tribunals, by the very nature of the issues
they
determine, may anonymise or suppress details that would lead to disclosure of
identity. For example, the default publication
position for the Legal
Complaints Review Office,[11] Mental
Health Review Tribunal[12], Social
Security Appeal Authority[13] and
Taxation Review Authority[14] is to
suppress identifying details.
However few decision generators provide a
publicly available policy for how such suppression is managed. This becomes
critical when
decisions are distributed for publication on a publicly available
website. One exception is the Immigration and Protection
Tribunal.[15] It is required to
hold hearings in public and to issue a public decision but is subject to
legislative restrictions in terms of
the content of that publication. It manages
the process through a publication protocol. Certainly from the point of view of
a free-to-air
publisher, the Tribunal has provided the mechanism by which the
principle of open justice can be best maintained whilst ensuring
simultaneous
compliance with the public interest in the applicant’s privacy. Appendix
2 provides the protocol as an example
of what might be considered best practice
in this area.
2 Courts and the principle of open
justice
Some jurisdictions, such as the Family
Court[16] and the Youth
Court,[17] provide for the general
suppression of identifying information. In other courts, it may depend on the
nature of the proceedings,
the age of a witness, the need to protect the victim
of an offence or a connected person, or a wider public interest such as the
security of defence of New Zealand. In 2009, the Chief High Court Judge stated
that compliance with suppression or non-publication
orders is the responsibility
of the publisher[18] - an obligation
perhaps even more pressing for an e-publisher, given the scale and speed of
electronic dissemination. This entirely
traditional position is quite
understandable, and eminently reasonable if the discussion is confined to
commercial dissemination
of judgments or information about a proceeding. Those
who publish for profit can be assumed to have the resources to first bear and
then recover from the burden of compliance. However this stance also has the
potential to damage the ability to make legal decisions
electronically available
to the public at no cost, whether via an integrated site such as NZLII or via a
court or tribunal’s
own web presence.
This article does not
suggest that there be any lifting of the burden of responsibility from the
publisher – to do so would
not be principled, given that the balance of
the respective public interests in freedom of access to information and privacy
have
been legislatively set. But inconsistent practices in expressing the terms
of suppression or non-publication orders, compounded by
the absence of a
suppression register, mean that compliance may become a hit and miss affair -
despite best intentions.
Here are examples of the difficulties of
compliance where an order simply refers to the fact of the order in the court
below and does
not recite its content:
- An order that states:
ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED. NOTE: EXTANT DISTRICT COURT ORDER PROHIBITING PUBLICATION OF NAME, IDENTIFYING PARTICULARS AND OCCUPATION OF THE RESPONDENT PENDING FURTHER ORDER OF THAT COURT.
There is a major problem contacting the inferior court to determine if any further order has been made. The appellate decision is suppressed down to an initial and does not mention the court registry from which the decision at first instance was issued.
- A Court of Appeal decision that refers to the fact of still extant non-publication orders and footnotes the fact of 5 different High Court rulings but does not recite their content.
- A decision involving multiple defendants at Court of Appeal level, stated
to be “subject to High Court suppression orders”,
where the order is
not made in the name of the first defendant. If the publisher tries to track it
by the appeal intitulement, it
will not be located.
In early 2011 even
the ‘official’ public disseminator of decisions failed to discharge
its obligation to comply with court
orders. The Ministry of Justice published
sentencing notes through its Judicial Decisions Online
database[19] in breach of an order
suppressing the identities of 2 victims in the related sexual offence trial.
That resulted in the complete
cessation of publishing of all High Court
decisions by the Ministry, until completion of an inquiry into the systems that
failed
to protect from such a
breach.[20]
Ironically at the same time Parliament was considering the Criminal Procedure (Reform and Modernisation) Bill[21] - which would substantially increase penalties for suppression order breach.[22] Clause 216 of the Bill, as introduced, gave an ‘Internet service provider’ some level of comfort against prosecution if it deleted material or prevented access to it as soon as possible after becoming aware of an infringement and notified users of the action it had taken.[23] In its first reading form, the Bill’s definition in Clause 216(5) of an ‘internet service provider’ was arguably wide enough to include, as ‘hosts’, publishers of judgments who maintain their own web publishing platforms (such as NZLII)[24]:
Internet service provider means a person who does either or both of the following things:
(a) offers the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing:
(b) hosts material on websites or other electronic retrieval systems that can be accessed by a user.
If paragraph (b) were interpreted in a
non-technical manner, ‘host’ might embrace not only digital
providers of databases
but also those who have organised or ordered the
collation of that data - in other words, those without whose activity there
would
be no data for which to provide access. But that did not confront the
wider issue of how the publisher might know or have reason
to believe that
material infringed the relevant suppression order or provision. Nor would the
‘comfort’ clause protect
individuals whose uploading of a decision
resulted in that publication.
The Select Committee has now recommended the abandonment of any discrete attempt to regulate the liability of Internet service providers, expressing the view that clause 216 was not an “effective mechanism”.[25] Instead it will recommend a two-tier liability scale: ‘knowingly or recklessly’ publishing suppressed material and simple publishing as a strict liability offence, allowing complete absence of fault to be a defence.[26] While the Committee stated it thought it “more appropriate” for Internet content hosts to be liable under the ‘knowingly or recklessly’ tier,[27] there is nothing in the wording of the section to limit liability in this way. In any event, determining what might be ‘reckless’ in the absence of a suppression register and in a climate of inconsistent court practices might be a difficult question. Subsection (3) of the modified Clause 215 attempts to lifts strict liability imposed by subs (2) in some internet publishing situations:
(3) Subsection (2) does not apply to a person who hosts material on websites or other electronic retrieval systems that can be accessed by a user unless the specific information has been placed or entered on the site or system by that person.
But the drafting may fail to achieve the intended object. While it is clearly not intended to protect bloggers, it may also fail to excuse publishers of judgment where the material is hosted on a server maintained by that publisher.
The effect of the changes, if accepted,[28] may have unfortunate fallout. There is no longer a comfort clause for a publisher, based on decision takedown and strict liability will apply to those who physically load judgments – as it did under the original version of the Bill. The chilling effect of such a regime remains as a powerful publishing disincentive for a public access provider with limited resources.
III Possible responses to the problem of compliance
A
public access publisher such as NZLII needs to look carefully to its supply
arrangements, since these largely determine its publication
processes and its
ongoing viability. The obvious solution, where there are slim resources, is to
publish only decisions supported
by a clear process for anonymisation undertaken
by the decision generator, even though that would reduce the data flow
considerably.[29] This could be
twinned with lobbying for a suppression register to enable publishers to ensure
that future publication decisions
are made in conformity with such orders. Such
registers exist in some Australian state jurisdictions: see Appendix 3 for an
overview.[30] The New Zealand Law
Commission has endorsed the need for such a
register[31] and it remains the
ultimate goal of the judiciary[32]
but in the current economic climate, its prospects are negligible.
The
halfway house might be to ask for the establishment of some general protocol
across all judgment generators (which will obviously
need to accommodate
specific prohibitions unique to particular jurisdictions). This has been a
development in Canada where the Canadian
Judicial Council (CJC) in 2005 approved
a protocol dealing with the use of personal information in
judgments.[33] A general protocol
might iron out the difference in anonymisation practices across the court tiers
and jurisdictions as much as
that is practicable and thereby reduce the
pre-publication burden. Concomitantly, those generating judgments might also
look to
their practices without departing from the general view that the onus
should remain with the publisher to ensure compliance with
an order. Encouraging
standard orders with clearly settled meanings would reduce the need for
interpretation or reference back to
earlier decisions in the proceedings.
IV Conclusion
The promotion of open justice is both the
principal and principled foundation of a free to air publisher such as NZLII.
It also provides
the rationale for its ongoing operation where the State does
not provide comprehensive free public access to decisions.
NZLII’s current challenge therefore is how best to ensure
compliance with orders that rightly derogate from open justice in
the wider
public interest, while continuing to remain viable enough to express ongoing
support for the principle itself. To achieve
that, a new approach is needed
– and it begins with the courts. In 2006 in Mafart and Prieur v
TVNZ,[34] in the context
of an application to search court records in criminal proceedings, the Supreme
Court observed:
Public access to Court files, both in respect of current and completed cases,
must be considered in the context of contemporary values
and expectations in
relation to freedom to seek, receive and impart information, open justice,
access to official information, protection
of privacy interests and the orderly
and fair administration of justice.
Nesting of open justice within these
wider considerations also applies to judgment publication. Perhaps it is time
to reassess how
open justice is best expressed in the electronic light of the
publishing day. To do that might require a judicial step back to review,
in a
synthetic way, the consequences of electronic publishing in terms of
suppression, anonymisation, and privacy (including identity
theft)
considerations – as the Canadian Judicial Council has
done.[35] The considerations in the
quotation above point to that approach being within the current reach of the New
Zealand judiciary.
Of course, writing a judgment
is difficult enough without having to consider the ramifications of the
electronic life of that document
– but it may be that if this is not
addressed at the outset of judgment creation, the e-publication door might swing
further
shut as free to air publishers adopt the most risk averse of publication
strategies – not to publish at all. And that is
the worst possible
outcome, damaging the reciprocal relationship of trust between judiciary and
public referred to at the beginning
of this paper in a way that those judges, 29
years ago, might have been appalled to
contemplate.
APPENDICES
APPENDIX 1
OPEN JUSTICE
PROVISIONS IN NEW ZEALAND
|
Access to Court Documents in
civil cases |
Access to Court Documents in
criminal cases |
|
Governing Provisions
Judicature Act 1908 Schedule Two: High Court Rules. (There are also identical rules for the District Court inserted, on 12 June 2009, by the High Court (Access to Court Documents) Amendment Rules 2009 (SR 2009/133), r 4. |
Governing Provisions:
Criminal Proceedings (Access to Court Documents) Rules 2009. (Note the decisions under the Rules are classified as being made in the civil jurisdiction – r 5.) |
|
Court’s general right to prohibit access to court
documents
While there are general rights of access (search, inspect and copy) in many instances under HCR 3.7, these rights are subject to the Court’s power under various rules to prohibit inspection of any documents without leave. |
Court’s general right to prohibit access to court
documents
While there are general rights of access in many instances, any of these rights are subject to the Court’s general power under r 6(2)(a) to prohibit inspection of any documents without leave. |
|
Parties to Proceeding
Parties and counsel to a civil proceeding have a general right to access any documents in the custody of the Court (Court File) (HCR 3.8(1)) with the exception of electronic material for which permission to copy is required (HCR 3.8(2)). |
Parties to Proceeding
Parties to a criminal proceeding have a general right to access any documents in the custody of the Court (Court File) (r 7(1)) with the exception of electronic material (r 7(2)), and the Crown Book kept under s 353 of the Crimes Act 1961 (r 6(2)(b)), both of which require court permission. If more than one defendant, any access to the court file or documents relating to the proceeding must be with the permission of the Court (r 7(4)). |
|
Non-Parties (including media)
Non-parties to a civil proceeding have a general right to access the formal court record (HCR 3.7). |
Non-Parties (including media)
Non-parties have a general right to access the formal court record (r 6(1)). Committal Stage During the committal stage non-parties can access documents filed in the court relating to the committal proceedings (r 8(2)(a)), any written statements (r 8(2)(b)) or documents (r 8(2)(c)) admitted into evidence for the purposes of the committal hearing, or a transcript of any evidence given orally (r 8(2)(d)) during the committal proceeding. This right is subject to a judge’s discretion to make an order that access may only occur with the permission of the Court (R 8(3)). |
|
Access to Court Documents in
civil cases |
Access to Court Documents in
criminal cases |
|
Substantive hearing This period under r 3(9) is regarded as the ‘open justice’ stage as the matter is being tried in public and commences at the beginning of the hearing and concludes with the expiration of the appeal period. During this stage non-parties have a right to access documents in addition to the formal court record – for example, documents filed and evidence presented in the proceedings. This right is subject to a Judge’s discretion to prevent access, or an objection by a party to the proceeding. Process for obtaining access: Access during the substantive hearing requires an informal application to the Registrar (r 3.9) specifying documents and reasons for access. The registrar will then notify the parties who may object. The application is then referred to a judge. Parties must have good grounds for the objection to be upheld. For example, that it is highly sensitive personal information, or is confidential and should be protected from competitors. Often the court will order a redacted version be made available. Access to other documents/ documents restricted during substantive hearing Non-parties can apply for access, with reasons, to otherwise restricted documents: r 3.9 (substantive hearing) or r 3.13. (any other stage). Applications will be determined according to the criteria in r 3.16:
|
Process for gaining access:
A person may apply to the registrar under r 8(4), stating the documents they wish to access, with reasons. The registrar must notify the parties/counsel of the request (r 8(5)(a)), and parties can object to access within a specified time frame (r 8(5)(b)). If a party does object, the registrar must refer the matter to the judge (r 8(5)(c)). Rule 8(6) states if there is an objection, the judge may determine that objection in any manner the judge thinks fit. If there is no objection and the document is not subject to any restriction in r 12, the registrar must provide prompt access. Trial Stage Similarly, non-parties have a right to access written statements (r 9(2)(a)) or documents (r 9(2)(b)) admitted into evidence for the purposes of the trial, or transcripts of evidence given orally at trial (r 9(2)(c)). Again a judge has discretion under r 9(3) to direct that access must be with permission of court. Process for gaining access: The same process that as applies with access at the committal stage (above) also applies to access to documents at trial stage – (however substitute reference to r 9). Access to documents, court files and formal court record in other cases Under r 11 a person ineligible to access specific documents under other rules is able to apply to the court for access under r 13. A judge will determine an application according to the considerations in r16:
vulnerable members of the community), and any privilege
held by/available to any person
|
|
Access to Court Documents in
civil cases |
Access to Court Documents in
criminal cases |
Restricted Proceedings: Rule 3.12 lists proceedings where parties and their representatives may search files, but non-parties must apply under Rule 3.11 for access. These are generally proceedings that are sensitive or involve vulnerable members of the community:
This provision places a presumption against access in such cases. However suppression orders may be available to prohibit publication of specific identifying details, and in such cases the judgment (in an anonymised form) or general information about the proceedings may still be published. |
Restricted Proceedings: Rule 12(3) specifies documents which may only be accessed with the permission of the Court: (a) In the case of a proceeding to which s 185A of the Summary Proceedings Act or s 375A of the Crimes Act 1961 applies (cases of a sexual nature): |
|
Publishing material relating to a proceeding in civil
cases
|
Publishing material relating to a proceeding in
criminal cases
|
|
There is a presumption of an open courtroom and only exceptional circumstances will result in closure. Thus, any publication prohibition on publication relates not only to documents accessed through the High Court Rules but also to information acquired through attending the Court hearing itself. High Court Rules The High Court Rules do not stipulate a test for whether a judge should make a suppression order. The order may be justified where there are specific adverse consequences that publicity would cause, or that the party is a member of a class in respect of which exceptional circumstances are applicable: Clark v Attorney General [2005] NZAR 481 (CA). For example: where publication would either prevent a fair trial, or would result in undue hardship for the person seeking the suppression order, or someone connected with the proceedings. Special position of the Family Court The Family Court was traditionally closed, the private nature of the matters considered to outweigh any public interest in the proceedings being public. Since the Care of Children Act 2004, accredited media personnel could attend proceedings under that Act. The principle of open justice is given further effect by the 2009 amendments to the Family Courts Act 1980, extending this to all proceedings. Also consistent with open justice is the amended publication regime in s 11B-11D of the Family Courts Act 1980 which allows publication, without leave, of decisions that have identifying material removed. For guidance on restrictions in publications, see http://www.justice.govt.nz/courts/family-court/legislation/restrictions-on-publications |
There is a presumption of an open courtroom (s 138 Criminal Justice Act) and only exceptional circumstances will result in closure. Thus, any prohibition on publication relates not only to documents accessed through the Criminal Proceedings (Access to Court Documents) Rules 2009, but also information acquired through attending the Court hearing itself. Criminal Justice Act 1985 Section 138: Power to clear court and forbid report of
proceedings
1) Subject to the provisions of subsections (2) and (3) and of any
other enactment, every sitting of any court dealing with any proceedings
in
respect of an offence shall be open to the public.
(2) Where a court is of the opinion that the interests of justice, or
of public morality, or of the reputation of any victim of any
alleged sexual
offence or offence of extortion, or of the security or defence of New Zealand so
require, it may make any one or more
of the following orders:
(a) an order forbidding publication of any report or account of the
whole or any part of—
(i) the evidence adduced; or
(ii) the submissions made:
(b) an order forbidding the publication of the name of any witness or
witnesses, or any name or particulars likely to lead to the
identification of
the witness or witnesses:
(c) Subject to subsection (3), an order excluding all or any persons
other than the informant, any Police employee, the defendant,
any counsel
engaged in the proceedings, and any officer of the court from the whole or any
part of the proceedings.
(3) The power conferred by paragraph (c) of subsection (2) shall not,
except where the interests of security or defence so require,
be exercised so as
to exclude any accredited news media reporter.
....
(6) Notwithstanding that an order is made under subsection (2)(c),
the announcement of the verdict or decision of the court (including
a decision
to commit the defendant for trial or sentence) and the passing of sentence shall
in every case take place in public; but,
if the court is satisfied that
exceptional circumstances so require, it may decline to state in public all or
any of the facts, reasons,
or other considerations that it has taken into
account in reaching its decision or verdict or in determining the sentence
passed
by it on any defendant.
|
|
Publishing material relating to a proceeding in civil
cases
|
Publishing material relating to a proceeding in
criminal cases
|
|
|
Section 139 Criminal Justice Act 1985 prohibits publication of names in
specified sexual cases unless the victim is over 16 and the
court permits
publication.
Section 139A Criminal Justice Act 1985 prohibits any publication of the
names of, or particulars likely to lead to the identification
of child
witnesses.
Section 140 Criminal Justice Act 1985 empowers the court to prohibit the
publication of the names of, or particulars likely to identify,
the person
accused or convicted of the offence or any other person connected with the
proceedings.
When will a court exercise this discretion? Section 140(4A) states that the judge must take into account the views of a victim or their parent or guardian. Other than this, the legislation does not provide guidelines. The process, as discussed in R v Liddell [1994] NZCA 417; [1995] 1 NZLR 538, begins with the presumption of open justice and thus openness in reporting. The factors usually considered by a court include: whether the person has been acquitted or convicted; the seriousness of the offending; if publication would have an adverse impact on rehabilitation; personal circumstances, including personal professional and financial interests. A 2009 Practice Note details arrangements for notification of suppression orders in high profile cases. Ultimately however, the publisher bears the responsibility to ascertain the existence and terms of such orders. |
Appendix 2
IMMIGRATION AND PROTECTION
TRIBUNAL PUBLICATION PROTOCOL
Publication principles
Application of principles
‘Publication prohibited’ status
Publication of this decision is restricted pursuant to s.151 and
cl. 19 of Schedule 2 of the Immigration Act 2009. It is not to be released, copied or disseminated in any form.
(b) The ‘short form’ research copy should identify the source of the power to prohibit publication, unless to do so would itself amount to a breach of s.151 and/or clause 19. In such cases, the source of the power to prohibit publication should be identified in the original decision.
Responsibility for depersonalisation
Publication Committee
Dated
this 29th day of November 2010
Judge W Hastings
Chair, Immigration and
Protection Tribunal
APPENDIX 3
OVERVIEW OF SUPPRESSION MANAGEMENT
REGIMES IN AUSTRALIA
|
NSW
|
VIC
|
QLD
|
ACT
|
SA
|
WA
|
NT
|
TAS
|
|
Administration of suppression orders
The Public Information Officer (PIO) of the Supreme Court manages suppression order information. Judges’ associates must notify the PIO when a suppression order is made, varied or revoked. Ideally, this is done by email to persons registered on a group email list. The list includes both journalists and media lawyers. The PIO keeps copies of the orders on file. The PIO is also responsible for keeping records of suppression orders made in the District Court. Judges’ associates in that Court must advise the Supreme Court PIO of orders made. There is no such process for suppression orders in local, Children’s or Coroners’ Courts. How do media and others interested inspect the register? Media can contact the PIO to be registered on the email distribution list. Otherwise, media contacting the court registry will be informed of the details of any relevant suppression order in particular proceedings on request. Is the media notified of changes? The PIO uses the email distribution list to advise on the revocation of orders. There is no other formal mechanism to advise on removal or variation of publication restrictions. |
Administration of suppression orders
Suppression orders (and revocations) in all jurisdictions are logged on a central database managed by the Supreme Court’s Media/Publication Manager. Hard copies of orders made since 1993 have also been kept. Is the media notified of changes? The media has been routinely notified of all suppression orders since 1993 and scanned copies are sent via a dedicated email service. |
Administration of suppression orders
No formal data is collected about suppression orders made by Queensland Courts. |
Administration of suppression orders
The ACT does not collect or store information about suppression orders. Nor is there an established system for advising the media about suppression orders. |
Administration of suppression orders
There is a register of orders kept under ss 69A(10) of the Evidence Act 1929. It is maintained by the Registrar of the District Court and held at the Sheriff’s office. The Register is an index showing the names of parties, the file number and kind of order (eg original, variation or revocation). How do media and others interested inspect the register? The register can be inspected, free of charge, by the public during office hours at the Sheriff’s office. Is the media notified of changes? Registrars must send electronic information on orders (including variations/revocations) to the authorised representatives of media organisations There is an annual fee. |
Administration of suppression orders
Western Australia has a comprehensive system of paper orders that go to the registry, automatic alerts that go into computer databases, and the Suppression Order Registry. The Sheriff’s Office maintains a registry of suppression orders made in all SA courts except for the Supreme Court which maintains its own record. The Manager of Media and Public Liaison also receives a copy order. Hard copies are also kept on each court file, including when the matter transfers between jurisdictions, to ensure that judicial officers handling that file are aware that an order has been made. Automatic alerts are also set on the courts’ computer databases. How do media and others interested inspect the register? The media contact either the Manager of Media and Public Liaison or the Sheriff’s Office directly to obtain details and a copy of the order. No fee is charged. Is the media notified of changes? If a suppression order is lifted, a form is attached to the original order so that it is clear when it is no longer operational. There is no automatic notification about an order being lifted. But if a suppression order is receiving media attention, the media would be alerted. |
Administration of suppression orders
Suppression orders are added to the electronic Integrated Justice Information System database, but there is no separate register. Hard copies of the orders are included in folders at the counters of the Supreme and Magistrates Courts. Supreme Court orders are distributed to the media electronically. How do media and others interested inspect the register? Access to the folders kept at the court counters is subject to approval by the Registrar of the Court. There is no fee for access or inspection. Is the media notified of changes? The media receives electronic notification of Supreme Court orders. The Magistrates Court is considering a similar system, but is having difficulties in developing a useful email address book for all media agencies. Supreme Court experience has shown that it is difficult to keep the address book current. |
Administration of
suppression orders The Tasmanian Supreme Court does not issue suppression orders. |
Author:
Associate Professor Donna Buckingham, Director, New
Zealand Legal Information Institute (NZLII), Faculty of Law, University of
Otago,
Dunedin, NEW ZEALAND.
The author thanks Antoinette Brown for her
research assistance and Judi Eathorne-Gould, NZLII Data Manager, who provided
the suppression
order examples in this article. The law is stated as at 1 August
2011.
1 Broadcasting Corporation of New Zealand v
Attorney-General [1982] 1 NZLR 120 at
123.
[2] New Zealand
legislation distinguishes the principle’s operation in criminal and civil
proceedings and provides separate regimes
for closing the court, granting access
to court files and the making of publication orders. In Appendix One, the civil
and criminal
regimes are described as they stand at the time of writing (1
August 2011).
[3] For
suppression orders in civil cases and the virtues of the current approach to
where the balance lies when taking part in the
state’s dispute resolution
process, see Andrew Beck Suppression orders in civil cases [2011] NZLJ
199.
[4] The Criminal Justice
Act 1985 provides for non-publication orders that forbid reports of evidence,
submissions, witness names or
particulars and for suppression orders that
require excision of identifying details of participants in reports of the
proceedings.
Whether material posted on a blog constitutes a ‘report or
account’ under ss 140(1) and 139(1) of the Act has been certified
as a
question of general or public importance and leave has been granted to the Court
of Appeal: Slater v New Zealand Police HC Auckland CRI 2010-404-379 8
July 2011.
[5] In Solicitor
General v Siemer HC Wellington CIV 2010-404-8559 at [24] – [32]
the High Court has affirmed the existence of inherent jurisdiction to make
so-called ‘blanket’ suppression orders: THIS
JUDGMENT IS NOT TO BE
PUBLISHED (INCLUDING ANY COMMENTARY, SUMMARY OR DESCRIPTION OF IT) IN NEWS MEDIA
OR ON INTERNET OR OTHER PUBLICLY
ACCESSIBLE DATABASE OR OTHERWISE DISSEMINATED
TO THE PUBLIC UNTIL FINAL DISOSITION OF TRIAL OR FURTHER ORDER OF THE COURT.
PUBLICATION
IN LAW REPORT OR LAW DIGEST IS PERMITTED. Section 138(5) Criminal
Justice Act 1985 states that the statutory power to clear the
court and to
forbid report of proceedings are “in substitution for any such powers that
a court may have had under any inherent
jurisdiction or any rule of law; and no
court shall have power to make any order of any such kind except in accordance
with this
section or any other enactment”. Read literally, this would
appear to restrict such a practice of ‘blanket orders’
which, as
Siemer acknowledges, have been widely used in New Zealand, particularly
where a retrial is ordered or the publication of pre-trial matters
would
prejudice the right of an accused to a fair trial.. The High Court took a
contextual view of subs (5), indicating that the
section was geared to
regulating to the hearing phase of proceedings and the media’s right to be
present.
[6] Broadcasting
Corporation of New Zealand v Attorney General, above n
1.
[7] Judicial Decisions
Online
<http://jdo.justice.govt.nz/jdo/Introduction.jsp>
is operated by the Ministry of Justice and hosts decisions of the Supreme Court
(all cases), Court of Appeal and High Court (all
cases from 2005). The site
states: “Decisions subject to a statutory prohibition or suppression order
are published if available
in a form that complies with the prohibition or
restriction. The Judicial Officer has the discretion to allow the decision to be
published; however, they are guided by the principle: Decisions should be made
available unless there is a legal restraint: non-publication
to be limited to
the scope of such restraint. Changes in circumstances after a decision is
published on the internet may affect the
accuracy of information. No assurance
is given as to the accuracy or completeness of any representation, statement,
information or
advice contained after the publication on the internet. The
authenticated decision on the court file takes precedence. It is the
responsibility of users of the information contained in the decisions to ensure
compliance with conditions or other legal obligations
governing access, release,
storage and re-publication. If in doubt you should consult the Court that issued
the decision”.
[8] New
Zealand Legal Information Institute:
<http://www.nzlii.org>
. NZLII
began in 2004 as a device by which to build an indigenous identity for New
Zealand online legal information. See Donna Buckingham,
“What’s in
a name? New Zealand and the growth of on-line legal information”
(Computerisation of Law via the Internet, Vanuatu, November 2005, 1 –
12).
[9] For a history of the
development of NZLII, see Donna Buckingham, “A binding separation –
the New Zealand-Australia partnership
in free access to law” (2011) 38:3
International Journal of Legal Information 269 –
281.
[10] New Zealand Law
Foundation
<http://www.lawfoundation.org.nz/>
.
[11]
See
<http://www.justice.govt.nz/tribunals/legal-complaints-review-officer>
.
[12]
The Tribunal is established under the Mental Health (Compulsory Assessment and
Treatment) Act 1992. Its proceedings are closed to
the public and publication
of a report of proceedings is only with leave unless the report is of a bona
fide and technical nature
and is restricted to members of the legal or medical
professions, psychologists, social workers, employees of a service or the
Ministry
of Health: see clauses 7 and 8 of Schedule 1 of the
Act.
[13] See
<http://www.justice.govt.nz/tribunals/social-security-appeal-authority>
.
[14]
See
<http://www.justice.govt.nz/tribunals/taxation-review-authority>
.
[15] See
<http://www.justice.govt.nz/tribunals/immigration-protection-tribunal>
.
The Tribunal hears appeals and applications regarding residence class visas,
deportation (including appeals on the facts and
humanitarian grounds) and claims
to be recognised as a refugee or protected person. The statutory provisions
elating to publication
of the Tribunals decisions are s 151 and cl 19 Schedule 2
of the Immigration Act 2009
[16]
Section 11B Family Courts Act 1980 (inserted by s 7 Family Courts Amendment Act
2008).
[17] Section 438
Children, Young Persons and their Families Act 1989. Anonymised decisions of
this Court are now accessible online via
NZLII: <www.nzlii.org>.
[18]
Arrangements for notification of suppression orders in high profile
trials: Randerson J (Chief High Court Judge) 5 May 2009: <www.courtsofnz.govt.nz/business/guidelines/suppression-orders-in-high-profile-cases/09-05-05-Notification-of-suppression-orders.pdf>.
[19] See above, n 7.
[20] A Report into the breach was
issued on 23 April 2011. It called for better protocols between judges and the
Ministry of Justice
but also asked whether the Ministry should even be
publishing judicial decisions:
<http://www.justice.govt.nz/publications/global-publications/j/judicial-decisions-online-inquiry-report>
.
Decision publication has since recommenced.
[21] See clauses 204 – 216 of
the Criminal Procedure (Reform and Modernisation) Bill 2010
(243-1).
[22] NZLII made a
submission to the Select Committee, arguing that strict liability is not
appropriate when the penalty is as substantial
as proposed and includes
imprisonment. Instead NZLII submitted that intentional or reckless breach of
suppression orders should
the proper basis for intervention. An example of
where it would be unfair to treat breach of suppression as a strict liability
offence
is the nine-day gap between the issue of a decision and a subsequent
suppression order, suppressing details from part of one judgment
paragraph. All
who published acted in reliance on the lack of suppression order on the front
page of the decision.
[23]
This provision reflects the recommendation by the Law Commission to cover
locally hosted content: see Law Commission Suppressing Names and Evidence
(NZLS R 109, 2009) at
66.
[24] NZLII data is loaded
from New Zealand to the AustLII data server in Sydney, Australia. Situating the
server off-shore avoids the
internet traffic charges that are a feature of
overseas access to domestic websites.
[25] Criminal Procedure (Reform
and Moderinisation) Bill 2010 (243-2) (select committee report) at
5.
[26] This represents an
effective rejection of the Law Commission’s recommendation which was to
“increase the available penalties
and leave culpability to be taken into
account by the judge” rather than installing culpability as an essential
ingredient
of the offence: Law Commission Suppressing Names and Evidence
(NZLS R 109, 2009) at 71.
[27] Above, n
25.
[28] The Criminal
Procdure (Reform and Moderisiation) Bill 2010 (243) had emerged from the Select
Committee in July 2011. At the time
of writing (1 August 2011) the Bill had yet
to be set down for its second reading
debate.
[29] For example, the
Family Court has issued advice on publication restrictions but does not provide
guidance on how to ensure that
identifying information is removed and what it is
be replaced with in order to render the judgment still comprehensible. See the
Court’s guidance at
<http://www.justice.govt.nz/courts/family-court/legislation/restrictions-on-publications>
.
The New Zealand Court of Appeal’s guidelines for anonymising judgments
were referred to by Mullins J in “Judicial
Writing for an Electronic Age
– Five Years On” presented at South Australian Judicial Development,
December 2009 <www.austlii.edu.au/au/journals/QldJSchol/2009/65.pdf>
but these are not publicly available as they form part of the Judges’
Manual.
[30] The Appendix
relies on the Tasmanian Law Society Paper Suppression and non-publication
orders – Proposal for National Register <www.taslawsociety.asn.au/news/SuppressionOrders.pdf>,
the New Zealand Law Commission Reports Access to Court Records (NZLC R
93, 2006) and Suppressing Names and Evidence (NZLC R 109, 2009), the New
South Wales Attorney General’s Report on Access to Court Documents
(2008) and the associated review of submissions: <www.lawlink.nsw.gov.au/lpd>.
[31] Law Commission
Suppressing Names and Evidence (NZLC R 109, 2009) at 64: “The
development of a national register of suppression orders should be advanced as a
matter of high
priority”. However the Criminal Procedure (Reform and
Modernisation) Bill does not provide for a register. The Cabinet paper
supporting the proposals noted Ministry concerns about a register moving the
onus from media, as well as requiring “court staff
to interpret the
judge’s decision and keep the register correct and up to date”:
Cabinet Domestic Policy Committee “Proposal
to Simplify Criminal Procedure
– Paper 2 Suppressing Names and Evidence at [45] – [46] to be read
in conjunction with
the Cabinet Business Decision Minute of the same name: (30
August 2010) CBC Min (10) 10/4. Practical difficulties with the currency
of
orders, determining who should have access to the register and its funding might
be more legitimate concerns.
[32] Stated in 2009 by Chief
High Court Judge, Randerson J:
<www.courtsofnz.govt.nz/business/guidelines/suppression-orders-in-high-profile-cases/09-05-05-Notification-of-suppression-orders.pdf>.
[33]
The Protocol <www.cjc-ccm.gc.ca/.../news_pub_techissues_UseProtocol_2005_en.pdf>
is directed not just to legal prohibitions on publication but also tries to
guard against identity theft through the publication
of personal data
identifiers and expresses privacy considerations in terms of the potential for
Internet dissemination to harm innocent
persons or subvert the course of
justice.
[34] [2006] NZSC 33
at [7]; [2006] NZSC 33; [2006] 3 NZLR 18 at
24.
[35] Above, n 33.
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