Editorial: Openness has to be the start and end point

Opinion

Judges are masters of their courtrooms. They are always right, until told by someone higher up the judicial pole that they are not.

They tend not to like being told what to do, even by their judicial seniors. A good example of this spirit of independence and autonomy came in the behaviour of a district court judge considering whether to suppress the name of someone before him.

The Court of Appeal had made it clear, over time, that open justice should be the starting point in any deliberation on such matters.

The judge seemed all too keen to suppress, so acknowledged the Appeal Court's view and then, with a cynical flourish, added his own pithy caveat: "But it is not the finishing point." The defendant's name was suppressed.

The law gives judges broad discretion to suppress identities and evidence. Higher courts give them rulings on how to apply that discretion, but too great a discretion remains. For years, the parameters have needed tightening and the Government has finally taken out its legal spanner.

The reform announced this week by Justice Minister Simon Power would set down in law the specific factors a judge can rely on to suppress such information.

It removes a person's prominence as a justification for suppressing his or her name and includes conditions such as "real risk" of prejudice to a trial and "extreme hardship" to the accused before secrecy can be imposed. How judges interpret those words will be instructive.

Some lawyers and the Law Society argue very little unjustified suppression occurs. As a television commercial once said: "They would say that."

They must operate at too rarefied a level to experience the ongoing failure of unqualified registrars, community magistrates and busy district court judges to conduct the affairs of the public's courts in the open.

Too often the police offer neutrality or encouragement to suppression seekers, and at times use the courts themselves to limit the inconvenience of public attention to their cases.

New Zealand suppresses names and details more often than Australia or the United Kingdom. Apologists argue the number of cases is low as a proportion of the total case load.

But, invariably, the hearings affected by the suppressionist urge are those involving controversy or public interest. Defence lawyers and judges substitute their opinion of public interest for that of editors or the public.

Mr Power's announcement addressed public concern about the unequal treatment of celebrities, such as entertainers and sports people, given suppression to preserve earning power while ordinary defendants win no concession. Yet that is a small component of the wider wrong.

It is the systemic default towards secrecy, convenience and assembly line processing of court files that must change. Even in Mr Power's Cabinet paper on the reform, pragmatism over principle is in evidence.

To a Law Commission recommendation that registrars should no longer grant suppression because it should be a judicial function, the Ministry of Justice argues such a change would remove "an important tool to keep cases moving through the system".

Similarly, the ministry frets about a proposed electronic registry of suppression orders, worrying more about its staff than ensuring court orders can be known and observed.

Its recommended jail terms and fines of up to $100,000 for suppression breaches surely cannot stand without a commitment to communicating the court's rulings.

The public should know what business is being conducted in its name in our court system. Only then can there be real confidence in justice: no favouritism, and full accountability of the apparatus of the state. For that to occur, openness must be both its starting and finishing points.