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Newsroom wins right to publish ‘reverse uplifts’ exposé

19 Apr 2024

| Author: Anna Longdill

Family Court Act 1980, ss 11B and 11C – injunction to prevent publication – meaning of ‘report of proceedings in the Family Court’ – approach to ‘identifying information’

Newsroom NZ Ltd v Solicitor-General [2024] NZCA 101.

 

In November 2020, Newsroom published a video documentary (and associated online articles) focusing on Oranga Tamariki’s implementation of a practice known as “reverse uplifts”. The documentary covered four Māori siblings, who were under the custody and guardianship of Oranga Tamariki, being removed from their “home for life” with South Island Pākehā foster parents and placed with wider whānau in the North Island.

The focus of the story was on the decisions, actions and omissions of Oranga Tamariki. The Family Court was involved in the case (as Oranga Tamariki was required to provide regular plans, reviews and reports to the court), but its role effectively was a monitoring and consultative one.  The Family Court was not responsible for the adoption of Oranga Tamariki’s reverse uplift practice and the removal of the tamariki from their foster parents.

The foster parents complained to the Ombudsman about the way they had been treated by Oranga Tamariki (including allegations of ethnic prejudice, bullying, misleading statements and distortion of facts to fit an agenda). The complaint was substantially upheld.

Newsroom’s 35-minute video documentary contained footage of the reverse uplifts, an explanation of the circumstances in which the original placement was made, details of allegations made against the foster parents (which an independent investigation had concluded were overstated), details of the foster parents’ Ombudsman complaint, interviews with experts, interviews with the foster parents, a recorded meeting between the foster parents and Oranga Tamariki staff and details of what followed the removal of the tamariki from the foster parents. The video did not name the tamariki or the foster parents or disclose their location, and images of the individuals’ faces were blurred along with identifying particulars.

After viewing Newsroom’s video, which he described as “absolutely heartbreaking”, the then Minister for Children, Kelvin Davis, ordered an immediate halt to reverse uplifts.

Section 11B(3) of the Family Court Act 1980 prohibits a person from publishing a report of proceedings in the Family Court if the report contains identifying information (defined in s 11C) relating to a young person, without leave of the court.

The Solicitor-General considered Newsroom’s publications breached s 11B(3) and amounted to contempt of court. Una Jagose successfully applied to the High Court for an injunction against Newsroom on the day following publication. The video and associated online articles have been unavailable to the public ever since.

Newsroom appealed the High Court decision granting the injunction (and a subsequent costs order). Newsroom was also criminally prosecuted over the publications. The prosecution was adjourned pending the outcome of the appeal.

 

Applicable principles: Family Court Act 1980, ss 11B and 11C – did the publications constitute a “report of proceedings in the Family Court” within the meaning of s 11B? – did the publications contain “identifying information” as defined by s 11C? – causative element in s 11B(3) – was there an appreciable risk that someone watching the video and reading the publications could identify the protected persons from the information provided?

Held: The appeal was allowed and the injunction was quashed.

The publications did constitute a “report of proceedings” in the Family Court, as “proceedings” was generally understood to encompass all matters before a court from the initiation of a case, through all its phases to termination (Television New Zealand Ltd v Solicitor-General [2008] NZCA 519). Regardless of Newsroom’s genuine attempts to distance Oranga Tamariki from the Family Court, relatively little content in the publications would fall outside the scope of s 11B.

The publications did not, however, contain any identifying information of the tamariki or connected persons. Section 11B(3) has a causative element: if identifying information is already known to the audience, publication will not breach s 11B(3) as the reader or viewer has not learnt the information from the publication.

The details of this case were well known in the very small rural community where the tamariki lived. It was unlikely the local community would have learnt anything more from the publications than what it already knew.

The court also ordered the Solicitor-General to pay Newsroom’s costs in both the High Court and Court of Appeal.

 

Newsroom NZ Ltd v Solicitor-General 2024-NZCA-101

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