Suppression, non-publication, injunction and the rule of law – David Harvey

THE FACTS

• After four years on the run with his three children, fugitive Tom Phillips was shot dead by police.
• Phillips was killed after entering into a shootout with police, during which he critically injured an officer.
• Key details of the Phillips case will remain suppressed for now following a hearing on an urgent injunction application.

Shakespeare wasn’t one for detailed stage directions but at the beginning of Henry IV, Part II there is one – “Enter Rumour, painted full of tongues” and Shakespeare understood the power of rumour, even in the 16th century.

One of the comments his character makes aptly describes the nature of rumour.

“Upon my tongues continual slanders ride,

The which in every language I pronounce,

Stuffing the ears of men with false reports.

I speak of peace while covert emnity,

Under the smile of safety, wounds the world.”

Today we would probably call it “disinformation”.

But rumour has been running rife of late. The rumours have been running after an injunction order was made by Justice Cull on the application of the family of Tom Phillips. The order applied to the news media, the Police and to Oranga Tamariki.

Of course, we don’t know the terms of the injunction nor do we know the information that it was designed to suppress. If we did, then the injunction would be ineffective and meaningless.

But the many tongues of rumour have been active over internet platforms both local and international.

However, the Phillips case, about which there is enormous public interest, has other elements. The Family Court is seized of applications and by law there are strict prohibitions surrounding publication of Family Court proceedings.

Concerns have been expressed in the corridors of power about the spread of rumour and the apparent breaches of Justice Cull’s injunction. What consequences may be visited upon the rumour-mongers if it is found that they have breached the injunction? And does an injunction prohibiting the news media, Police and Oranga Tamariki from disclosing certain information apply against the world?

Because we don’t know the precise scope of the injunction, it is unclear whether or not the rumour-mongers may be in breach. Catch 22 meets the law.

Inevitably, discussions surrounding the injunction have extended to include suppression orders made by the courts. Questions have been asked about how these are enforced.

The answer is by Police prosecution, as was the case in 2010 when blogger Cameron Slater faced 10 allegations of breaches of suppression orders and in 2021 when businessman Leo Molloy faced a charge of breaching the suppression order granted in respect of Jesse Kempson, the killer of Grace Millane.

Non-publication injunctions and suppression orders were designed for the days of mainstream media and to prevent mass publication.

The secrets that such orders were designed to protect could be discussed around the watercooler at work, over a beer at the pub or at a dinner party. But the spread of the secrets was not widespread. And in some respects the secrets without verification became rumours.

The internet and the exponential dissemination of information across internet platforms challenges the assumptions about publication that underpin suppression and non-publication orders.

Perhaps it is time to revisit the law surrounding these orders, which may no longer have any meaning in an information-rich, rumour-fuelled environment, rather than engaging in excessive angst about how we enforce such orders and try to stifle the flow of information across an information system that is as revolutionary and challenging as the printing press once was.

If we try to maintain non-publication orders as a legal artefact from a different paradigm, the problem becomes one of respect for the law.

Already our institutions are suffering from a decline in public confidence and all too often one hears variations of Mr Bumble’s comment that “the law is a ass, a idiot”.

The problem becomes even greater when viewed within the context of maintaining the social cohesion that follows from a society that has the Rule of Law as its leading beacon.

Already, according to a recent report from the Chief Justice, our Courts are under strain with insufficient courtrooms, over worked and over stressed Judges, an increased complexity of work, difficulties for citizens in accessing the Courts because of complexity and cost and the marginalisation of the vulnerable and the poor because of availability of legal aid.

These factors alone must sound a warning about the future of the rule of law. The courts and the justice system rely on public confidence for their legitimacy and their continued ability to maintain the rule of law.

When the rule of law breaks down, societies typically experience a cascade of deteriorating conditions that can fundamentally transform how people live, work and relate to each other and their government.

And when confidence is lost, rebuilding it is difficult because people will have lost their trust in legal institutions. Entrenched social divisions challenge such rebuilding along with the development of alternative power structures that resist formal legal authority.

These consequences may seem far off, but the rule of law is fragile. The way in which the rumour mill has been working via the internet speaks volumes about the respect that many hold, or do not hold, for the spirit of the law.

Perhaps a good starting point may be to get rid of the secrecy that the law allows, abolish suppression orders and non-publication injunctions and let the sunshine in.

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