Newsroom NZ Limited v Solicitor-General - [2024] NZCA 101
Date of Judgment
10 April 2024
Decision
Newsroom NZ Limited v Solicitor-General (PDF 344 KB)
Summary
FAMILY LAW – Practice and procedure, suppression
INJUNCTION – interim injunction
PRACTICE AND PROCEDURE – Contempt of court
This appeal relates to a video documentary, and associated articles, published by Newsroom in 2020. In the High Court an interim injunction was issued the day after publication of the story. The Court of Appeal allowed the appeal, quashed the injunction and reversed the associated costs order.
The documentary concerned the Oranga Tamariki practice of “reverse uplifts”, when Māori tamariki in need of care who had been placed with Pākehā foster parents were several years later removed from those homes and placed with wider whānau of their birth parents. The documentary focused on this practice in a particular case. In that case three Māori siblings had been placed with Pākehā foster parents, as Oranga Tamariki could not find a placement with a Māori whānau where they would all be together. The children had experienced significant trauma prior to placement and Oranga Tamariki concluded they needed a home for life so as not to re-traumatise them with future changes. A fourth sibling was later placed with the foster parents. When ngā tamariki were placed with the foster parents Oranga Tamariki promised it would assist them to provide for the children’s cultural needs. This never occurred.
Throughout the period prior to the removal, Oranga Tamariki had custody and guardianship of the children. This meant Oranga Tamariki was required to provide the Family Court with numerous plans, reviews and reports — updating the Court on how ngā tamariki were doing under the Ministry’s custody and guardianship.
For over a year the foster parents were praised by Oranga Tamariki. However, following the enactment of s 7AA in July 2019 and the allocation of new social workers, concerns were raised about the foster parents’ ability to raise the children and conversations were had with whānau and iwi about placement with them. Oranga Tamariki filed submissions in the Family Court expressing concern about the foster parents’ alleged inability and lack of commitment to promoting the children’s culture, and that the children were being emotionally and psychologically harmed. There were also allegations of physical abuse and racist attitudes. However an independent investigation concluded the allegations were over-stated and there was no abuse. The Court was never told of these findings. Oranga Tamariki approved a relative of the children’s biological mother, and their partner, as whānau caregivers for the children.
The video documentary is 35 minutes long and contains footage of the reverse uplift, an explanation of how and why ngā tamariki came to live with the foster parents, the allegations made against the foster parents, details of a complaint the foster parents made against Oranga Tamariki to the Ombudsman which was upheld, interviews with experts, information relating to the introduction of s 7AA, an interview with the foster parents, a recording of a meeting between the foster parents and Oranga Tamariki staff, and details of what occurred after the removal of ngā tamariki from the foster parents.
The Solicitor-General considered the documentary breached s 11B(3) of the Family Court Act, amounting to contempt of court, as in her opinion it contained identifying information relating to a young person without the leave of the Court. She successfully applied for an interim injunction the day after publication and the documentary and articles have been publicly unavailable since then. Newsroom appealed the decision granting the injunction and a subsequent costs judgment.
The appeal concerned two key issues. First, do the impugned publications constitute “a report of proceedings in the Family Court” within the meaning of s 11B? Secondly, if they do constitute a report of proceedings do they contain identifying information as per s 11C?
The Court first traversed the background to s 11B. Noting that in Television New Zealand v Solicitor-General this Court held that the word “proceedings” was not synonymous with “hearings”, and accordingly a ban on reports of Family Court proceedings (in place prior to s 11B) was not limited to reports of what went on in the courtroom but encompassed all matters before a court from the initiation of a case, through all its phases, to termination.
Did the publications constitute “a report of proceedings in the Family Court” within the meaning of s 11B?
Held: Yes.
As in the High Court, the Court found that the publications did constitute a report of proceedings in the Family Court.
The Court outlaid the impact of the publications and noted that the story was clearly one of public interest. Part of the story’s impact came from its depiction of real-life events and emotions. Important too was not only the media’s right of freedom of expression, but also the foster parents’ right to tell their story and the public’s right to hear it. The Court considered the Judge overstated the role of the Family Court in the case. The Family Court did not make all the ultimate decisions in the case. The decisions to place ngā tamariki with the foster parents, to reverse the home for life policy, to implement the reverse uplift policy, the selection of the whānau caregivers and the removal of the children from the foster parents were all made by Oranga Tamariki.
Despite that, the Court held that relatively little content in the publication fell outside the scope of a “report of proceedings”. Television New Zealand remained good law as there was no suggestion that the legislature intended to depart from the judicially established meaning of the phrase. The normal and ordinary reading of the section and BORA considerations also supported that interpretation. Although the opinions of experts, misrepresentations made to the foster parents in a meeting with Oranga Tamariki and the children’s status as foster children would fall outside the scope of s 11B, the reasons for making custody/guardianship orders, misrepresentations in the court record and the content of the various plans and reviews were within the section’s scope. Despite not ultimately making the decisions, the Family Court exercised a reasonably significant degree of oversight. The publications were therefore reports of proceedings in the Family Court.
Did the publications contain identifying information as per s 11C?
Held: No.
The scheme of s 11B is that a report of any proceedings in the Family Court is not permitted without the leave of the Court if the report includes identifying information where a person under the age of 18 years is the subject of the proceedings or is referred to in proceedings. In this case ngā tamariki clearly came within that scope.
In the High Court the Judge concluded that the proceedings did contain identifying information. The cumulative effect of a number of features meant there was an appreciable risk that people in the children’s/foster parents’ wider community would identify them.
The Court agreed with the Judge’s formulation of “likely”, in the statutory phrase “likely to lead to the identification”, as meaning “an appreciable risk”. It agreed too that the anonymisation of names alone was not sufficient, as the section also specifies “particulars”. It also agreed there is a causative element, if the information capable of identifying the children is already known to the audience it must follow that publication of that information will not breach s 11B.
However, the Court disagreed with the Judge’s application of the test. It considered the fact the foster parents lived in a very small rural community and that the daily lives of the four Māori tamariki were visible were important and meant the decisions that had been made about them in the proceedings were self-evident to those who knew them. The details of the case would have been a major talking point in the small community, which was supportive of the foster parents’ cause, and the members of the community would have been aware of the critical features of the publications. This was especially so given the removal was witnessed by several members of the community. The local community was unlikely to have learnt anything new from the publications. A submission from the Solicitor-General that the foster father’s workmates would recognise him/his house was too speculative and involved only a small class of people. The Court did not consider the children’s North Island community would necessarily draw the inferences required to identify them without further information from ngā tamariki or their whānau.
The Court held that the publications did not contain any identifying information of ngā tamariki or connected persons. The proceedings never named ngā tamariki, the foster parents or their location (other than it was in the South Island and that the whānau caregivers live in the North Island), and the children and foster parents’ faces are blurred as are identifying particulars such as the name of a school on a lunch box.
The Court did not express a concluded view as to whether the Judge should have clarified the potentially offending aspects of the publications and identified possible remediation.
The appeal was allowed and the injunction quashed. The costs in the High Court were reversed and the respondent was ordered to pay the appellant’s costs.
INJUNCTION – interim injunction
PRACTICE AND PROCEDURE – Contempt of court
This appeal relates to a video documentary, and associated articles, published by Newsroom in 2020. In the High Court an interim injunction was issued the day after publication of the story. The Court of Appeal allowed the appeal, quashed the injunction and reversed the associated costs order.
The documentary concerned the Oranga Tamariki practice of “reverse uplifts”, when Māori tamariki in need of care who had been placed with Pākehā foster parents were several years later removed from those homes and placed with wider whānau of their birth parents. The documentary focused on this practice in a particular case. In that case three Māori siblings had been placed with Pākehā foster parents, as Oranga Tamariki could not find a placement with a Māori whānau where they would all be together. The children had experienced significant trauma prior to placement and Oranga Tamariki concluded they needed a home for life so as not to re-traumatise them with future changes. A fourth sibling was later placed with the foster parents. When ngā tamariki were placed with the foster parents Oranga Tamariki promised it would assist them to provide for the children’s cultural needs. This never occurred.
Throughout the period prior to the removal, Oranga Tamariki had custody and guardianship of the children. This meant Oranga Tamariki was required to provide the Family Court with numerous plans, reviews and reports — updating the Court on how ngā tamariki were doing under the Ministry’s custody and guardianship.
For over a year the foster parents were praised by Oranga Tamariki. However, following the enactment of s 7AA in July 2019 and the allocation of new social workers, concerns were raised about the foster parents’ ability to raise the children and conversations were had with whānau and iwi about placement with them. Oranga Tamariki filed submissions in the Family Court expressing concern about the foster parents’ alleged inability and lack of commitment to promoting the children’s culture, and that the children were being emotionally and psychologically harmed. There were also allegations of physical abuse and racist attitudes. However an independent investigation concluded the allegations were over-stated and there was no abuse. The Court was never told of these findings. Oranga Tamariki approved a relative of the children’s biological mother, and their partner, as whānau caregivers for the children.
The video documentary is 35 minutes long and contains footage of the reverse uplift, an explanation of how and why ngā tamariki came to live with the foster parents, the allegations made against the foster parents, details of a complaint the foster parents made against Oranga Tamariki to the Ombudsman which was upheld, interviews with experts, information relating to the introduction of s 7AA, an interview with the foster parents, a recording of a meeting between the foster parents and Oranga Tamariki staff, and details of what occurred after the removal of ngā tamariki from the foster parents.
The Solicitor-General considered the documentary breached s 11B(3) of the Family Court Act, amounting to contempt of court, as in her opinion it contained identifying information relating to a young person without the leave of the Court. She successfully applied for an interim injunction the day after publication and the documentary and articles have been publicly unavailable since then. Newsroom appealed the decision granting the injunction and a subsequent costs judgment.
The appeal concerned two key issues. First, do the impugned publications constitute “a report of proceedings in the Family Court” within the meaning of s 11B? Secondly, if they do constitute a report of proceedings do they contain identifying information as per s 11C?
The Court first traversed the background to s 11B. Noting that in Television New Zealand v Solicitor-General this Court held that the word “proceedings” was not synonymous with “hearings”, and accordingly a ban on reports of Family Court proceedings (in place prior to s 11B) was not limited to reports of what went on in the courtroom but encompassed all matters before a court from the initiation of a case, through all its phases, to termination.
Did the publications constitute “a report of proceedings in the Family Court” within the meaning of s 11B?
Held: Yes.
As in the High Court, the Court found that the publications did constitute a report of proceedings in the Family Court.
The Court outlaid the impact of the publications and noted that the story was clearly one of public interest. Part of the story’s impact came from its depiction of real-life events and emotions. Important too was not only the media’s right of freedom of expression, but also the foster parents’ right to tell their story and the public’s right to hear it. The Court considered the Judge overstated the role of the Family Court in the case. The Family Court did not make all the ultimate decisions in the case. The decisions to place ngā tamariki with the foster parents, to reverse the home for life policy, to implement the reverse uplift policy, the selection of the whānau caregivers and the removal of the children from the foster parents were all made by Oranga Tamariki.
Despite that, the Court held that relatively little content in the publication fell outside the scope of a “report of proceedings”. Television New Zealand remained good law as there was no suggestion that the legislature intended to depart from the judicially established meaning of the phrase. The normal and ordinary reading of the section and BORA considerations also supported that interpretation. Although the opinions of experts, misrepresentations made to the foster parents in a meeting with Oranga Tamariki and the children’s status as foster children would fall outside the scope of s 11B, the reasons for making custody/guardianship orders, misrepresentations in the court record and the content of the various plans and reviews were within the section’s scope. Despite not ultimately making the decisions, the Family Court exercised a reasonably significant degree of oversight. The publications were therefore reports of proceedings in the Family Court.
Did the publications contain identifying information as per s 11C?
Held: No.
The scheme of s 11B is that a report of any proceedings in the Family Court is not permitted without the leave of the Court if the report includes identifying information where a person under the age of 18 years is the subject of the proceedings or is referred to in proceedings. In this case ngā tamariki clearly came within that scope.
In the High Court the Judge concluded that the proceedings did contain identifying information. The cumulative effect of a number of features meant there was an appreciable risk that people in the children’s/foster parents’ wider community would identify them.
The Court agreed with the Judge’s formulation of “likely”, in the statutory phrase “likely to lead to the identification”, as meaning “an appreciable risk”. It agreed too that the anonymisation of names alone was not sufficient, as the section also specifies “particulars”. It also agreed there is a causative element, if the information capable of identifying the children is already known to the audience it must follow that publication of that information will not breach s 11B.
However, the Court disagreed with the Judge’s application of the test. It considered the fact the foster parents lived in a very small rural community and that the daily lives of the four Māori tamariki were visible were important and meant the decisions that had been made about them in the proceedings were self-evident to those who knew them. The details of the case would have been a major talking point in the small community, which was supportive of the foster parents’ cause, and the members of the community would have been aware of the critical features of the publications. This was especially so given the removal was witnessed by several members of the community. The local community was unlikely to have learnt anything new from the publications. A submission from the Solicitor-General that the foster father’s workmates would recognise him/his house was too speculative and involved only a small class of people. The Court did not consider the children’s North Island community would necessarily draw the inferences required to identify them without further information from ngā tamariki or their whānau.
The Court held that the publications did not contain any identifying information of ngā tamariki or connected persons. The proceedings never named ngā tamariki, the foster parents or their location (other than it was in the South Island and that the whānau caregivers live in the North Island), and the children and foster parents’ faces are blurred as are identifying particulars such as the name of a school on a lunch box.
The Court did not express a concluded view as to whether the Judge should have clarified the potentially offending aspects of the publications and identified possible remediation.
The appeal was allowed and the injunction quashed. The costs in the High Court were reversed and the respondent was ordered to pay the appellant’s costs.