Respecting Courts

Should Courts Be Entitled to Respect

I wrote an article about public confidence in institutions and the Rule of Law. I was focussing mainly on the Police and the Courts. It was published on A Halflings View Substack on 17 November 2025.

In that article I observed

“Because of the complexity that underlies legal processes it would be helpful for the purposes of public understanding for there to be more information available – some “explainer” articles about matters such as sentencing, discharges without conviction, name suppression or why it is that some evidence may be excluded.”

I went on to comment particularly on the vexed question of name suppression. I noted:

“Suppression – or non-publication orders as they are correctly called – when inadequately explained or reported gives the perception of a cover-up or more importantly of unequal treatment of a class of defendants, especially if the vase involves the regularly appearance of a “well known New Zealander.”

It was gratifying to read in Law News for 21 November that no less a person than the Chief Justice, Dame Helen Wikelmann, appearing at the Australian Legal Convention in Canberra

“urged judges to clearly explain controversial decisions in terms a lay audience can understand, saying the judiciary needs to earn public respect – not simply expect it – in a modern society that “requires institutions to justify themselves, on and on and on”.

An idea whose time has come, perhaps?

Dame Helen however rejected suggestions there had been a decline in trust in the judiciary and that there was a problem with the legitimacy of the courts. She was critical, if I read it right, of the way in which society has become an open commentariat. She said:

“Due to the democratisation of our society, both in terms of enfranchisement and also information, we now administer justice through the courts in societies where everybody is entitled, and feels entitled, to have an opinion about how their institutions are performing.

[They] expect their institutions to justify themselves to them. That is a change, and that places courts in quite a tricky spot… We now exist in an environment where we are rightly expected to earn that respect. We cannot just expect it.”

It might overstate matters to suggest that the public expect institutions to justify themselves, but on the other hand Courts must earn the respect that enables them to perform their function in a society that operates under the Rule of Law.

As I stated in my 17 November article, Courts rely on public confidence for their legitimacy and must demonstrate, as they do day by day, that such public confidence is warranted.

Dame Helen emphasised that judges must properly explain their decisions so that the public can understand what the case is about and why an particular outcome was reached. There had to be effective communication to the public.

And there are problems with this, especially given that judges speak through their judgements. They don’t go on Q & A with Jack Tame and explain what they really meant and what the deeper societal implications of a decision might be.

One way that this is done is by way of media releases. It would be unreasonable for media releases to accompany every case but the Supreme Court is particularly good with its media releases. The media release that accompanied the Uber decision was particularly helpful in providing a roadmap that certainly assisted in reading a lengthy and complex decision covering sixty pages and 190 paragraphs.

The Supreme Court should also be commended for making available video of the argument. I was reminded when I watched and listened to the argument of a comment that Lord Neuberger, a former President of the UK Supreme Court, made when commenting on live streaming and on-demand viewing of the UK Supreme Court “Justice may be seen to be done at a time that suits you.” More of this from all of the Courts (in appropriate cases) would keep the public properly informed and would supplement what appears in the press or in social media commentary.

The essential theme behind Dame Helen’s remarks is that better publicity and information about the workings of the Courts is required. And with that I would entirely agree.

But there is more to it than just publicity.

Judicial legitimacy relies on trust that judges are independent, impartial, skilled, and reflective of the wider community NZ Herald. Judges maintain their independence partly through restraint which is why when they speak they speak through their judgments.

Those judgements are critical and must be written not only for the parties but also for the wider community. Courts earn respect through the quality, reasoning, and fairness of their judgments. The judiciary must maintain high standards of legal skill and careful decision-making.

Associated with the quality of judgements is the essential requirement for public performance, for open justice – that justice must be seen to be done. This is essential in maintaining public confidence. Most hearings are accessible to the public, with news media serving as the public’s proxy in observing court processes. This transparency demonstrates that justice is delivered without fear or favour.

And it is perhaps in this area that Courts may shoot themselves in the foot.

At the moment there is a proceeding involving the conduct of a judge. That proceeding is in accordance with processes that were established pursuant to the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.

Section 29 of that Act requires that hearings must be held in public although there is a power, in certain circumstances, for the hearing or part of the hearing to be held in private.

The current proceedings are being heard in Wellington. That being the case the media, as surrogates of the public, can attend and report on the case. In that was the public nature of the hearings is maintained.

The lawyers for the judge in question suggested that there was a risk of the proceedings being overtaken by what was described as “a parallel process undertaken in the media”. The argument was that publicity around the case had already begun to affect public perception to which the Judge could not respond.

It was argued that the panel could not control the way oral submissions would be reproduced or interpreted once reported. As a result arguments heard in Court risked being recorded and summarised in the public arena. If unchecked, it was argued, media coverage had the potential to distort the process and undermine confidence in the judiciary.

It was also argued that real-time reporting of submissions would create a distorted and premature narrative of the evidence, potentially influencing public perception before the panel had the opportunity to assess it properly.

Thus, the argument was that the proceedings should be subject to non-publication orders.

This seemed to contain echoes of the extraordinarily wide suppression orders that accompanied the LAVA and Wellington Pride hearing before the Human Rights Review Tribunal.

But what is interesting about the argument before the Judicial Conduct Panel is the problem with media reporting. The reality is that the media – as I have said – are the surrogates of the public. The hearing is public. The media should report on it.

And indeed the conduct of the proceedings and matters raised would be part of that reporting.

But it would seem that in making the argument that was advanced Counsel wanted to control the narrative. That is not open justice which in the case of a public official must be utterly transparent.

And, like it or not, people talk and discuss and offer opinions. And that has increased, as the Chief Justice observed, as a result of the democratisation of our society, enabled by communications technologies.

It is called the Court of Public Opinion. Only by openness and transparency of proceedings can the Court of Public Opinion have confidence in the properly constituted Courts that operate under and give effect to the Rule of Law.

The panel said it would allow the media to cover the interlocutory hearing but suppressed part of the discussion.

In a report on Dame Helen’s comments, Law News pointed out, ironically, the difficult task she faces in shifting a culture of secrecy in courts that shy away from releasing information.

An application had been made for access to Court documents in the case involving the Tom Phillips child abduction case. Details of the hearings, and the suppression order itself – by way of injunction - cannot be reported, with Justice Helen Cull repeatedly telling media that they can only report that the hearing occurred and when the matter was next due before the courts. At the latest hearing no upcoming date for review of the injunction had been set. The Courts are in danger of becoming the Theatre of the Absurd.

Now it appears the matter has been transferred to the High Court at Hamilton.

This case demonstrates the problem referred to by the Chief Justice. An injunction suppressing details of a case that is of high public interest has been made. But why was it made. What were the reasons. These need to be articulated. The public needs to know why it is that such wide-ranging orders have been made. Reasons can be given that will not compromise the integrity of the order. But full reasons need to be given. In that way the public can understand why it is necessary to restrict publication of this matter.

But the wider problem is that many cases do not get such a level of treatment. And they should. Judges may not be PR experts but they are good at giving reasons and they are good with language. Explanations go a long way to calming controversy. And Judges need to give proper explanations for their decisions to enhance public confidence in the Courts and justify the respect to which they claim to be entitled.