‘Access to Justice’ is a theme that lawyers, judges, advocates and politicians have placed increased scrutiny in in recent years.
Justice Helen Winkelmann, now the Chief Justice of the Supreme Court, wrote about the importance of access to justice in 2014, stating:
Why is access to justice important in the civil sphere? It is because access to justice is the critical underpinning of the rule of law in our society: the notion that all, the good, the bad, the weak, the powerful, exist under and are bound by the law. That condition cannot exist without access to courts.
There has been a general increase in scrutiny of the legal system of late, in particular whether the legal system is working for everyone and asking what are the barriers that prevent people from accessing justice.
A consistent response I have seen in the employment context is that people do not want to exercise their legal rights, if that means their names will be published in a judgement and searchable on Google. Sometimes in high-profile or important cases, their names and stories may even end up in the newspaper (as is sometimes the case in my articles).
The reality is, whether or not an employee is successful in raising a claim against their employer, it will likely have a detrimental impact on their future career prospects. Often the first thing a new employer will do when receiving a prospective employees CV is type their name into Google. An employer will likely think twice about employing a prospective employee where they have just taken their old boss to Court – even if the employee did nothing wrong.
The unfortunate result is that employees in particular will be hesitant to pursue their claims against an employer and rather they will accept substantially smaller settlement amounts than they would possibly be awarded in the Court.
Part of the problem is that New Zealand, like most western democratic legal systems, is subject to the principle of open justice. This means that, generally speaking unless there are specific circumstances, the public and the media are entitled to attend and write about court proceedings.
The intention of open justice is that it is intended to maintain public confidence in the justice system, by ensuring that judicial decisions are able to be scrutinised by the public.
Another area of law where this has been a particular problem is within the tenancy space. If tenants stand up against bad landlords and take them to the Tenancy Tribunal, their names became part of a public record and they become effectively black-listed from renting properties again.
This is particularly problematic in New Zealand’s housing market, where there is high demand for rental properties, giving landlords greater control over picking and choosing their tenants.
The Government amended the tenancy law in New Zealand in 2020 to allow tenants and landlords to apply for suppression orders, which would see their personal details removed from Tenancy Tribunal decisions if they have been successful, or partially successful, in pursuing their claims.
In the employment jurisdiction, the Employment Relations Authority and Employment Court have the power to prohibit the publication of the name of any party or witness or other person. However, the starting position at the Employment Relations Authority is that all parties to cases will be named, unless there is a compelling reason to do so.