Court record access is a thorny and historical problem in New Zealand, but brace for what lies ahead. The inability of the government to keep bloggers from publishing unfavourable court information despite longstanding constraints on court records and the national press has resulted in NZ judges spending more administrative time figuring out ways to prevent transparency.
Add increasing layers of competing legislation and judicial rulings on the issue.
As is often the case, the lack of information is seldom identified as censorship where censorship is the cause. In New Zealand the inaccessibility to public court documents is a chronic problem made worse by a regime where blanket suppression orders against the public commonly extend to any mention of the suppression order. And the multitude of reasons given by judges and registrars for preventing public access to court proceedings and records often includes providing no reasons at all. In October 2009, now-Chief Justice Helen Winkelman wrote she needn’t give reasons for the blanket suppression orders she repeatedly issued in the Urewera “terrorist” prosecutions because she was simply doing what judges do “on a daily basis in the Courts throughout New Zealand, in the context of the determination of pre-trial hearings, or in the determinations of appeals where a retrial is likely.”
Inability to gain access to public court records came to a head in 2015 when the registrar of New Zealand’s highest court refused to allow document access on the spurious basis he was not
required to do so by law. The Registrar went on to state the Supreme Court was exempt from document access legislation covering all courts in the 1980s because the Supreme Court was created 20 years later.
In the consequent Rabson v Registrar of the Supreme Court, Collins J claimed judicial review was not
available because the registrar had acted as a judicial officer of a higher court when refusing access.
The past three years have been significant legislatively. The Senior Courts (Access to Court Documents) Rules 2017 provided a legislative framework to facilitate public access which eclipsed the Supreme Court’s reasoning for preventing access in Greer. The Nation’s judges gave their necessary blessing to the Act after Parliament agreed to make all releases subject to
judge approval (see sections 11 & 14). The result is doubtfully what Parliament intended. When kiwisfirst sought the application in the Auckland High Court matter Rafiq v Whata (unrecorded), Justice Matthew Downs ruled it was “contrary to public interest” to release the document; later stating there existed “no right of access to it” notwithstanding the plain language in the Act which provided this right.
Prior to this Act the five Supreme Court of New Zealand Justices ruled unanimously in Greer v Smith [2015] that any one of them can prevent access to any court record for any reason. They added, again without reasons, that such rulings are not appealable. No parties were heard on either issue.
The developed culture where asking for court records is known to place any applicant in the cross-hairs of the judiciary has created a Stockholm syndrome on court reporting. Consider the New Zealand media’s reaction to the Christchurch mosque shooter in 2019 – where the New Zealand press banned together to agree to censor themselves without prompting. The world press – to the extent they paid any attention – ridiculed a result where independent media make an extraordinary
effort to limit what news they and their competitors can report.
At the same time dissension is growing. New Zealand judges are increasingly running into resistance and criticism against their efforts to prevent court transparency. Allegations
of court partisanship and corruption are escalating.
For this reason and despite significant opposition, Parliament passed the Contempt of Court Act 2019 which made it an imprisonable offence to make “false statements” about NZ judges. Few knew this to be a problem demanding such a draconian measure. But what the new law clearly does is place increasing risk on the already petrified mainstream media’s reporting of court matters.
But this new criminal charge was never going to be enough by itself. You cannot run a system criminalizing false criticism if the factual court information undermines the charge. Many NZ court rulings are so factually at odds with the cases they purport to adjudicate that suppression of court files is a necessary component to maintaining any perception that judges are being falsely
criticized regarding statements they make in their judgments.
Meanwhile, in 2019, no fewer than eight Supreme Court rulings lacked enumerated case files, making any documents related to these rulings unreferenced and incomplete in the official record and
apparently unsearchable in the archives.
The threat of information transference poses a real threat to the NZ judiciary. They fear a repeat of court record access which brought down Supreme Court Justice Bill Wilson in 2010, after Wilson’s financial debt to appearing counsel in Saxmere v Wool Board was exposed by kiwisfirst and damaging emails between former Court of Appeal Judge Ted Thomas and NZ Bar President Jim Farmer were acquired from the Court by the New Zealand Herald. The scandal was only contained after the government agreed to make repeated payouts totaling over $4 million to Wilson who had threatened to write a book about his judicial colleagues if forced to resign; a prospect so daunting to Dr Farmer at the time he implored Justice Thomas to assist him in a cover up.
Consequently, the Senior Courts (Access to Court Documents) Rules 2017 has had little effect in increasing court record access. In a July 2019 email, Supreme Court Registrar Kieron McCarron refused a section 82(3) application under the Senior Courts Act 2016, still citing the 2015 Greer ruling and any right of appeal rendered outdated by this legislation. When an application was made for a judge review of this ruling on the ground it was wrong in law, McCarron claimed no such review was available to his ruling because he “was simply informing” and there “is no ruling to appeal”.
That is where New Zealand has advanced since losing the Privy Council as the final appellate court. The Registrar of the Supreme Court of New Zealand now dismisses appeals on the basis of his legal interpretations and claims a power to prevent any judge review by virtue of his making decisions
off the record.
NZ judges have raised many impediments to court record access, including completion of an application form which requires agreement to any restrictions a judge may impose on usage, and payment of a $30 fee. If this was not sufficient deterrent, release of the requested document can take months if granted at all. Family Court advocate Zayne Jouma told kiwisfirst the Registrar advised him his request for a directive in a family court appeal could take 3 months. Jouma discovered he could obtain the document from the Community Law Centre without a restrictive
application form or fee within one day.
