Privacy v Freedom to Seek and Impart Information in New Zealand

A perverse legal clash of privacy and retribution driving the information highway in New Zealand has the media cowering, lawyers petrified and criminal offenders living anonymously.

When it comes to the right to information, this past week was typical in New Zealand.  On Wednesday, Christchurch sisters Karen Beaumont and Anne-Marie Forsyth failed in their protracted court battle to lift name suppression on the man who sexually abused them when they were pre-teens.  Though unsuccessful, their tenacity to obtain the right to publicly name their criminal abuser without facing their own imprisonment was unique.  This included the fact any media reported on it.

Meanwhile, across Cook’s Strait, the Privacy Commissioner ruled a NZ Herald reporter must reveal his sources for a book the reporter had written on Prime Minister John Key.  The Privacy Commissioner relied upon a 2014 judgment by Chief High Court Justice Helen Winkelmann.  Winkelmann had ruled privacy exemptions for news media related specifically to “articles and programmes” and did not extend to books.  The reporter, John Roughan, said he would comply by revealing his sources.

In 2010, Winkelmann issued a ‘ruling against the world’ prohibiting publication of the result or content of her judgment denying the 18 Operation Eight defendants their Bill of Rights guarantee to trial by jury (One of Winkelmann’s two reasons was jurors could not be counted on to reach the correct verdict).  Petrol was then thrown on the fear of imparting information by the NZ Supreme Court upholding, by a 3 to 1 majority in [2013] NZSC 68, that judges have such power even where, like Winkelmann, they fail to give reasons for the suppression orders.  With barely concealed scorn, a full bench of the High Court had declared in Solicitor General v Siemer it hardly requires mention that “the interests of justice” is the inevitable reason for unreasoned court secrecy orders in New Zealand.

Nor would the NZ Supreme Court be left out of this latest ratcheting in the rabbit hole.  On 30 October 2015, Supreme Court Justice William Young ruled public access was prohibited to the public court file in SC46/2015 Creser v Creser on the ground “The conduct of Mr Creser in relation to these proceedings has been categorised as being in abuse of process and I am reluctant to take any steps which might facilitate the broader dissemination of material which has been so categorised.”   Again, access to information turned on claimed protection of the abuser.  The abused and law-abiding are denied their common law and democratic rights.  Worrisome, Young J let it slip there were 3 secret judgments in the file but declared the Supreme Court Rules 2004 which require judicial transparency “do not apply to the determination of other applications, such as recalls.”

It is difficult to portray the ongoing NZ Court assault on seeking and imparting information mere happenstance.   Nor is the fear to write books or impart information which would be deemed ordinary in any other democracy an unexpected consequence.  When citizens are denied information on rulings by their nation’s courts and fear contempt of court and prison for mentioning a criminal’s name in public, book burning and State censorship loom large in the headlights.