Have we really left behind the secret courts of the Inquisition, the Star Chamber, and the High Commission? In theory, yes. In practice, shadows of secrecy still fall across the justice system.
Courts routinely affirm that “justice must be seen to be done.” Yet in New Zealand, a growing patchwork of restrictions – non-publication orders, closed hearings and limits on media access – has quietly drawn shutters across the windows of open justice.
Under the Criminal Procedure Act, judges may suppress names, evidence or entire judgments. These powers, originally intended to protect victims or ensure fair trials, now frequently shield parties from embarrassment.
Beyond that are injunctions that halt public discussion – like the one preventing media, police, and Oranga Tamariki from speaking about the Tom Phillips case.
Access to court documents is also tightly controlled. Applications by journalists to view pleadings or evidence are often refused, leaving reporters to rely on filtered courtroom summaries rather than the primary record.
Even when hearings are nominally “open”, judges sometimes clear the public or restrict attendance. This may be justified to protect a complainant in a sexual-violence trial – but the power is broad and its use opaque.
Journalists play a vital role as the public’s eyes and ears. Most New Zealanders will never sit in a courtroom: reporters serve as the “fourth estate” holding judicial power to account and as surrogates for citizens who rely on accurate, independent coverage.
The law acknowledges this. Section 198 of the Criminal Procedure Act defines media as those working for organisations bound by ethical codes and subject to the Broadcasting Standards Authority or the Media Council – or others whom the court permits to report. That second category is increasingly important in the era of Substack and independent outlets.
A decade ago, Justice Asher grappled with this in Slater v Blomfield (2014). He found Cameron Slater’s Whale Oil blog, though combative and unconventional, qualified as a “news medium” under the Evidence Act 2006, and Slater, as a journalist, was entitled to protect his sources – at least initially. The protection was later lifted when the court ruled the public interest required disclosure.
Still, Slater v Blomfield established that journalism is defined by function, not institutional badge.
That principle is now under strain. A case before the Human Rights Review Tribunal has revived questions about secrecy and accreditation. The dispute – Oxley & Curnow v Wellington Pride – concerns a 2021 Pride gala from which a group, Lesbian Action for Visibility in Aotearoa, was excluded over its stance on gender identity. The hearing has been open to the public, but not to public scrutiny. The tribunal issued an interim non-publication order forbidding attendees from taking notes or publishing reports unless they were accredited media. Feminist and independent journalist Jenny Ruth was excluded from reporting because she was not “accredited media”.
The tribunal cited claims of online harassment of witnesses and the need to protect the “proper administration of justice” among its reasons for suppression.
But with no accredited journalists covering the case, with the exception of a backgrounder in early September by The Spinoff, the effect is near-total silence. The public cannot know what is said in evidence; closing submissions will reference testimony no one has heard.
The tribunal’s caution may reflect a hypersensitivity to digital outrage. Yet the result resembles the very secrecy open justice principles were meant to banish. Proceedings continue behind closed doors: technically public, functionally hidden.
