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Buckingham, Donna --- "Keeping justice blind online: suppression regimes and digital publishing" [2011] OtaLawRw 6; (2011) 12 Otago LR 557

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

Appendix 2

IMMIGRATION AND PROTECTION TRIBUNAL PUBLICATION PROTOCOL

Publication principles

1. The statutory provisions relating to the publication of decisions of the Immigration and Protection Tribunal are s.151 and clause 19 of Schedule 2 of the Immigration Act 2009.
2. Subject to certain exceptions, including any appeal by a refugee or protected person, every oral hearing is public (clause 18 of Schedule 2). Where there is a public hearing, prima facie, there should be a public decision. Thus, clause 19(1) of Schedule 2 imposes an obligation on the Tribunal to publish research copies of its decisions, subject to specified exceptions.
3. The principle underlying this statutory obligation to publish is promotion of the rule of law, notably the desirability of open justice. Apart from promoting accountability through open justice, the publication of research copies promotes the principle of equal treatment, in terms of ensuring legal certainty and predictability as well as in the sense that persons similarly situated should be treated equally – see Refugee Appeals 76299 & 76297 (Applications 129T-2009-001 & 002) (17 July 2009) at [24]-[30].
4. In short, decisions of judicial bodies are generally matters of public interest and research copies should be available to the public.

Application of principles

5. The original decision contains full particulars, without redaction.
6. The original decision is given to the appellant or affected person. A copy of the original decision is given to any other party (s.151(2) also permits it to be shared with certain other classes of persons). A further copy of the original decision is retained by the Tribunal, both in hard copy and electronically, as part of its formal archives.
7. The Tribunal normally makes copies of its decisions available to the public as ‘research copies’. The primary vehicle for the publication of such research copies is the Tribunal’s own website.
8. There is sometimes good reason, however, for imposing a prohibition on publication of a research copy, in whole or in part. The exceptions to publication specified in clause 19 of Schedule 2 are:
   • (a) Refugee and protection decisions must be edited in a way so as to remove the name of the appellant and any particulars likely to lead to the identification of the appellant.
   • (b) In any other case, the Tribunal may edit the decision in a way so as to remove the name of the appellant and any particulars likely to lead to the identification of the appellant.
9. The obligation in 8(a) is normally exercised by the removal of the appellant’s name and the depersonalisation of any facts likely to lead to his/her identification (or which would be likely to endanger the safety of any person – see s.151(1)(b)), from the research copy before publication. The Tribunal tries, however, to avoid issuing research copies with whole sections deleted because readers cannot feel confident that the whole of the decision is understood, including any precedent value. Where possible, decisions should be written in a way that obviates the need to delete sections. As to full restriction from publication, see 15-16 below.
10. Subject to 11-14 below, the discretion in 8(b) is exercised by the Tribunal in the following manner:
    • (a) Deportation decisions are normally published in full, including the name and description of the appellant.
    • (b) Residence decisions are normally depersonalised by the removal of the appellant’s name and any particulars likely to lead to the identification of the appellant or his/her family, and the names of other persons referred to.
11. Where a deportation or a residence decision involves an appellant who is, or was, a refugee or protected person, or where it discusses the particulars of a refugee or protection claim (whether successful or not), that part of the decision is treated as if it is a refugee or protection appeal and is subject to the limitations on publication at 8(a) above.
12. Where the Tribunal is aware of other proceedings in which there is a Court Order suppressing the name of any person or any other information, the Tribunal will take such steps as are necessary to ensure that the research copy of its decision complies with that Order.
13. Research copies of decisions will not normally identify victims of offending (particularly sexual offending) and the Tribunal will normally remove the names and any particulars likely to lead to the identification of the victim.
14. Unless they were witnesses, the names of children are normally removed from decisions before publication. Where a child was a witness, the Tribunal will determine whether the interests of open justice require publication of the child’s name.

‘Publication prohibited’ status

15. Sometimes, the likelihood of identification of a refugee or protection claimant (or other reason) is such that it is necessary to withhold publication of the substantive decision. In such cases, the Tribunal will normally publish a ‘short form’ research copy of the decision, stating only the country of nationality, the prohibition on publication and the outcome. The ‘publication prohibited’ status will be reviewed periodically by the Publication Committee.
16. Where a decision is prohibited from publication:
    • (a) the full copy will bear a diagonal watermark in faint grey stating PUBLICATION PROHIBITED on every page and will have, on the first and last pages, a footnote stating, for example:

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

17. The depersonalisation of a decision is the responsibility of the member(s) issuing the decision.

Publication Committee

18. The Tribunal maintains a Publication Committee, whose functions include:
    • (a) Ratifying recommendations by members for prohibition on publication.
    • (b) Monitoring all ‘Publication Prohibited’ decisions annually for possible release.
    • (c) Considering correspondence from appellants relating to confidentiality issues.
    • (d) Formulating publication policy.
    • (e) Maintaining and supervising ‘Publication Prohibited’ endorsements on decisions.
19. The Committee reports to the Chair.
20. Queries from parties about publication issues should be referred to the Publication Committee in the first instance for discussion.

Dated this 29th day of November 2010
Judge W Hastings
Chair, Immigration and Protection Tribunal

APPENDIX 3
OVERVIEW OF SUPPRESSION MANAGEMENT REGIMES IN AUSTRALIA

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.