Open justice and engagement

Contents

The principle of open justice

A fundamental principle of the common law is that the administration of justice must take place in open court. This principle underpins the public’s right to attend court hearings, the media’s right to report proceedings, and access rights to court documents (subject to some specific statutory exceptions). It is not open to the parties to agree to private hearings, to the sealing of the court file, or to the suppression of the judgment.

The requirement that justice be administered in a manner that renders it open to public scrutiny is the surest means of holding judges and courts to the ideal of a fair hearing. In this way, the principle of open justice maintains public confidence in the justice system.

Open justice initiatives aim to make accurate information about the courts and their decisions readily available to the media and the public. This access is critical to public confidence in the judiciary. Some initiatives that support open justice have the potential to enable access to justice by allowing people who are interested in proceedings, but unable to attend in person, to view them.

A work programme to support open justice

Two judicial committees are responsible for overseeing the work that supports the principle of open justice.

Media and Courts committee
The Media and Courts Committee is an advisory group comprised of judges, senior news leaders, senior Māori media representatives and senior registry staff. The Committee is a forum where media organisations and the judiciary can discuss topics of common concern, identify issues impacting the accurate and timely reporting of the work of the courts, and facilitate understanding between the two institutions. It is responsible for the In-Court Media Coverage Guidelines. Revised guidelines will be released in 2024.

The District Court Media Committee acts as a sub-committee to the Media and Courts Committee and meets twice a year. The meeting is an opportunity for the District Court judiciary to hear from court reporters and other working journalists to discuss key areas creating difficulty or confusion. The meeting is also attended by Ministry of Justice representatives as many of the action items are assigned to court staff rather than judges.

Huakina Kia Tika | Open Justice committee
The Huakina kia Tika | Open Justice Committee was established at the start of the COVID-19 pandemic when, for the first time, the public was not freely able to attend court hearings and when many hearings took place remotely.

The Committee’s first task was to ensure that the media, on behalf of the public, could attend court either in person or remotely.

The Committee’s responsibilities have evolved to include overseeing and promoting initiatives to improve public and media access to the courts and public understanding of the courts and their constitutional role. It also provides a judicial perspective on issues relating to access to court records.

Work on publishing the judgments of all courts on one site, Judicial Decisions Online (JDO), continues. Holding all decisions in one place will make them easier to find and improve access to justice. The Committee is supervising the Ministry of Justice’s project to achieve this. All judicial publishing staff will be brought together into one team. In late 2023, consultation began on a proposal to move the District Court publications staff into Judicial Libraries, alongside the team who publish judgments for the senior courts and some tribunals. Decisions are due in March 2024.

The Committee also supervised the Supreme Court transparency initiatives outlined below.

Improving the transparency of judicial administration and court business
This is the third year in which the Chief Justice has published an Annual Report to share judicial progress.

In late August, following the release of the Chief Justice’s 2022 Annual Report, the Chief Justice, Chief High Court Judge, acting Chief District Court Judge, Justice David Goddard and the Secretary for Justice took part in an online question and answer session hosted by the New Zealand Law Society President Frazer Barton. Justice Goddard provided updates on the progress of the Digital Strategy for Courts and Tribunals of Aotearoa New Zealand, Te Au Reka and guidance then being developed for the use of AI in the courts. This online engagement with the whole profession is now an annual event.

The Courts of New Zealand LinkedIn page, launched in August 2022, grew by 150 percent in 2023. It now has nearly 5,000 followers.

Through LinkedIn, the Courts of New Zealand engage with members of the legal profession, academia and the public service, sharing judicial news, events and appointments. This channel supplements the courts’ X account (formerly Twitter) to advise of news and significant judgments as they are released.

The courts have used Twitter/X since 2015.

Te Kura Kaiwhakawā | Institute of Judicial Studies develops and maintains a suite of online resources for the judiciary—12 in total (see "The judges" page)—for judges’ use in their day-to-day work on the bench. As part of increasing transparency into court processes, Te Kura is systematically preparing bench books for public release. The Criminal Jury Trials Bench Book and Te Puna Manawa Whenua | Māori Land Court Bench Book are due for public release in 2024.

Supreme Court outreach and transparency initiatives
The principles expressed in Supreme Court decisions are binding on all courts in New Zealand and have an impact far beyond those parties directly involved in the cases it hears. Therefore, it is important that the work of the Supreme Court is readily available and accessible.

To improve public understanding of the work of the Supreme Court, a case synopsis is prepared for each case the Court hears and published on the Courts of New Zealand website and shared via social media.

Other initiatives designed to increase the transparency of the Court’s work, provide the public with access to Supreme Court hearings, and support educational institutions with the teaching of law, include the following.

Live streaming of hearings: Increasingly, hearings of the Supreme Court are livestreamed with a link made available through the Court’s fixtures list. Hearings that feature suppressed information are not livestreamed. The first Supreme Court hearing to be livestreamed was the appeal in the Justin Richard Burke v The King case in March. In total, 12 hearings and one judgment delivery were livestreamed in 2023. A protocol relating to livestreaming of hearings was developed and published in November.
Publication of recorded livestreamed hearings on Courts of New Zealand website: Livestreamed hearings are recorded and published on the Courts of New Zealand website after the hearing has concluded.[63] This gives educational institutions, members of the legal profession and members of the public the ability to view the hearing at any time.
Publication of substantive appeal submissions online: The written submissions of counsel for appeal hearings are now published on the Courts of New Zealand website a day before the hearing begins, with limited exceptions. The Supreme Court Submissions Practice Note 2023 was issued in July, outlining criteria for and exceptions to publication. Publishing these documents supports law schools with the teaching of law, advocacy, and procedure.
Practice regarding judge allocation: The Chief Justice published the protocol for allocation of judges to a panel for the hearing of an appeal in the Supreme Court when six permanent judges are available to sit on the appeal.[64]
Embargo judgment process: The Court provides judgments under embargo in cases of high public interest. In this situation, the judgment is provided in advance of its formal delivery to counsel, parties, and media (and, sometimes, others).
Supreme Court sitting outside of Wellington: The Court has adopted a practice of having sitting weeks in Auckland and Christchurch every year. Holding hearings outside Wellington enables interested members of the public, the profession, academics and law students to see the Court in action. In March 2023, the Supreme Court sat for the first time in Christchurch. The Court also sat in Auckland in August.
Outreach with the profession and academia: On its away sittings, the Court hosted a question-and-answer session between the judges of the Supreme Court and counsel appearing, and academics and students from local law schools. The Court will continue this practice in the future. For preparation for the event, the Court recorded a video introduction to the hearing, outlining the cases that would be advanced by counsel, and provided this in advance to law schools.

The Whakaari-White Island trial — a case study
On 9 December 2019, Whakaari-White Island, an active offshore volcano in the eastern Bay of Plenty, erupted. Forty-seven people were on the crater floor at the time—most of whom had paid for tours led by tour guides employed by commercial tour operators. As a result of the explosion, 22 lost their lives. The remaining 25 people were all injured, most seriously.

On 10 July 2023 at the Specialist Courts and Tribunals Centre in Auckland, the judge-alone District Court trial relating to the disaster began. Thirteen organisations and individuals were originally charged under the Health and Safety at Work Act 2015, following the most extensive and complex investigation ever undertaken by WorkSafe New Zealand.

Ensuring that the overseas-based victims and family members were able to watch the proceedings, and had the necessary support while they did so, was a priority.

For the first time in the District Court, the entire proceedings were livestreamed, with restricted access provided through the Courts of New Zealand website. International and national media representatives were also able to view the proceedings via the livestream.

A dedicated project team was set up by the Ministry of Justice to effectively manage the logistics surrounding a case of this complexity and scale and support its smooth running and to ensure that the victims and family members were properly supported. The team consisted of victim support, welfare, subject matter experts in project administration, court operations, security, IT, property, communications and media operations, and worked alongside staff from the Auckland and Whakatane District Courts.

The verdict and sentencing in the case are scheduled to take place in early 2024.

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Footnotes

[63] Ngā Pāho Tikinoa —Courts of New Zealand.

[64] Practice in relation to allocation of judges—Courts of New Zealand.