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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

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:


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.


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:
  1. The orderly and fair administration of justice
  2. The protection of confidentiality, privacy interests (including of children and other vulnerable members of the community), and any privilege held by/available to any person
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:
  1. The right of the defendant to a fair trial
  2. The orderly and fair administration of justice
  1. The protection of confidentiality, privacy interests (including those of children and other
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
  1. The principles of open justice, namely, encouraging fair and accurate reporting of, and comment on, court hearings and decisions
  1. The freedom to seek, receive and impart information
  2. Whether a document to which the application or request relates is subject to any restriction under rule 3.12
  3. Any other matter that the Judge or Registrar thinks just.

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:
  1. Adoption Act 1955
  2. Alcoholism and Drug Addiction Act 1966
  1. Arbitration Act 1996
  1. Care of Children Act 2004
  2. Civil Union Act 2004
  3. Family Proceedings Act 1980
  4. Family Protection Act 1955
  5. Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
  6. Marriage Act 1955
  7. Mental Health (Compulsory Care and Treatment) act 1992
  8. Property (Relationships) Act 1976
  1. Protection of Personal and Property Rights Act 1988
  1. Status of Children Act 1969
  2. Any former provisions corresponding to provisions of any of the above Acts.

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.
  1. The principles of open justice, namely, encouraging fair and accurate reporting of, and comment on, court hearings and decisions
  2. The freedom to seek, receive and impart information
  3. Whether a document to which the application or request relates is subject to any restriction under rule 12
  4. Any other matter that the Judge or Registrar thinks just.

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):
  1. a written statement by, or transcript of the evidence of a person who is a complainant or who gives, or is intended to give, propensity evidence
  2. videotaped records or records in any electronic form of interviews with any person who is a complainant or who gives, or is intended to give, propensity evidence
  3. photographs or images in any electronic form of any person who is a complainant, or who gives, or is intended to give, propensity evidence.

(b) Videotaped records or records an any electronic form of interviews with a defendant
(c) A document that identifies, or enables identification of, a person if the publication of many matter relating to the person’s identity (such as the person’s name) is forbidden by any enactment or order of the Court
(d) Any written statement or document received, or any record of anything said, in a proceeding which members of the public are excluded from the proceeding by an enactment or by an order of the Court.

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

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


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

  1. The original decision contains full particulars, without redaction.
  2. 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.
  3. 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.
  4. 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:
  5. 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.
  6. Subject to 11-14 below, the discretion in 8(b) is exercised by the Tribunal in the following manner:
  7. 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.
  8. 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.
  9. 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.
  10. 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

  1. 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.
  2. Where a decision is prohibited from publication:

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

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

Publication Committee

  1. The Tribunal maintains a Publication Committee, whose functions include:
  2. The Committee reports to the Chair.
  3. 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


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

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.

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 <> 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: <> . 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 <> .

[11] See <> .

[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 <> .

[14] See <> .

[15] See <> . 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: <>.

[18] Arrangements for notification of suppression orders in high profile trials: Randerson J (Chief High Court Judge) 5 May 2009: <>.

[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: <> . 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 <> . 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 <> 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 <>, 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: <>.

[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:

[33] The Protocol <> 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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