Tuesday, May 21

Closed courts protecting church officials keep society unsafe

A fundamental principle of New Zealand’s justice system is that courts must be open to the public. This is deemed necessary to ensure fair process and transparency.

How then does it happen in New Zealand that prominent church officials get a closed court and name suppression after serious allegations of child sexual assault are laid against them?

The standard of New Zealand’s courts to make a closed court, along with suppression and non-publication orders, is the principle of natural justice. This principle must apply to victims as well as to accused rich and powerful public persons.

Natural justice means decisions affecting human rights have to be made using fair processes. One of the rights would be for victims to know what is being said about them in a court, and their right to reply, whether that court be closed or not.

When victims’ disclosures concern accusations against public officials who then successfully bid the courts to be closed to litigate the justice of the press publicly reporting on their disclosures, wouldn’t the victims have a natural right to hear what is being said about them?

In other words, in a situation where prominent church officials hired the nation’s top lawyers to stop the press from publishing what the victims claimed they experienced as children in the care of the Church, wouldn’t this be an injustice towards the victims?

What does this say when those church officials have themselves claimed to be open and transparent when it comes to reporting abuse?

As early as June 2002 the New Zealand Catholic Bishops issued a statement on safeguarding against sexual abuse in their church. They declared: “We give you an assurance of our commitment to confront this problem with openness and transparency.” What then when they apply for a court suppression order to stop the press from publishing what the victims have disclosed?

Surely “openness and transparency” mean not financing the courts to conceal child sexual abuse allegations against themselves. Surely it also means that matters relating to clergy sex abuse allegations are not heard in closed courts.

The credibility of Catholic Church leadership has already been seriously undermined by endless disclosures of covering up clerical child sexual assault and other abuse allegations. However, paying for suppression orders while fighting the press to prevent the publication of victim and survivor disclosure seems to take that coverup to another level.

Of course accused public persons have the right to defend themselves, and they are innocent under the law until proven guilty. However, do they have the right to anonymity? They are public persons, and presumably child sexual assault allegations against them is of significant public interest.

Further, why would prominent church officials hire top lawyers to fight the press to keep child sexual abuse allegations secret when there are no criminal proceedings? Why not just deny the allegations rather than fight their disclosure?

Surely this is going to result in the “Streisand effect” where their attempts to suppress the information backfire.

However, in determining whether to make a suppression and non-publication order, mustn’t the court take into account the fact that the administration of justice’s primary objective is to safeguard the public interest in open justice? Therefore, orders to close courts to prevent the press from reporting on victim disclosures would be unfair by the nature of the act, would it not?

When prominent church officials financed by generous Catholic politicians who are also their legal defence, King’s Counsellors no less, argue their clients’ cases with the very subjects of their arguments excluded, the survivors, then how could that be fair?

Further, how could anyone know what the church lawyers were saying about the victims behind their backs were true? How could false testimony be prevented in such unfair situations?

Surely every court must be a place where justice transpires and is seen to transpire.

The NZ Court’s Statement of Purpose, Principle 1.4 on court administration says the Judiciary and Ministry of Justice must deliver open justice.

Surely cases in which the accused are well-known church officials is not a ground for closing the court and making a suppression order. 

Ordinary people, and especially child victims of clerical sexual assault, unlike wealthy and powerful church officials, cannot afford the prohibitive cost of taking out injunctions to have a court closed to the public. That inequality itself seems unfair.

The question remains, why would the Courts grant Church officials their bid to deny the alleged victims access to the court? What could the reasons be for the Courts to indulge in such secrecy for prominent Catholic Church officials?

Secrecy in the courts on matters of significant public interest is contrary to New Zealand’s open judicial system. Following the principles of open justice and natural justice, the New Zealand public has a right to know what happens in our courts.

Christopher Longhurst

Catholic theologian & national leader of advocacy network SNAP Aotearoa New Zealand.

Wellington, Nov. 2023