Name suppression for exceptional cases
Friday, 10 February, 2012
Author: Andrea Twaddle
This week a Hawke’s Bay early childhood teacher won her bid for name suppression after admitting to two charges of shoplifting. The Judge held that the consequences of a criminal conviction would outweigh the seriousness of the crimes and agreed to a discharge without conviction, taking into account a psychiatric report outlining that the woman was unwell when the offending occurred and that there was little chance of re-offending. This case has prompted enquiries regarding whether the names and details of parties to employment disputes can also be suppressed.
Open justice is fundamental to our society and suppression impedes the media’s ability to report and inform the public about the way justice is served. However, that transparency must be balanced. In employment cases, the Employment Relations Authority and Employment Court have the power to order non publication of all or any part of any evidence or pleadings, or the name of any party, witness, or other person.
The Employment Relations Act expressly sets out the principles that guide the ability to prohibit publication in the interests of justice. These include that there is a high threshold to cross to depart from the norm of publication, i.e. there must be exceptional circumstances and an order must be confined to specific details.
Cases where suppression has been ordered include those where publication may identify peripheral individuals named in evidence who have not had the opportunity to give their account of serious allegations made about them or where there has been disclosure of particularly commercially sensitive evidence.
However, in employment, the most common ground on which the Authority or Court will exercise its power to prohibit publication will be the existence of strong medical reasons for doing so. This will include circumstances where the publication of a party’s identify could aggravate the illness of the individual or a close relative, or where there is a risk of self harm. In cases of sexual harassment, the public interest will usually require that the name of the harasser and his or her employer not be protected by a non-publication order, but that the grievant’s name should be protected.
Employment is no different to matters before other courts, and there is a presumption that all evidence should be given in public and be freely reportable. However, there may be exceptional cases where name suppression is necessary.
For further information please contact:
Andrea Twaddle
Phone: 07 834 6684
Email: andrea.twaddle@harkness.co.nz
(Article first published in Waikato Times, 10 February 2012)
