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Stuff gagged – wrongly?
By Steven | September 18, 2026
The High Court has granted an injunction against Stuff Ltd preventing it publishing a report into potential conflicts of interest at a law firm receiving legal aid money.
It seems the law firm was referring work to a firm that produced cultural and alcohol and drug reports for court. That firm was owned by two of the members of the law firm, and one’s the vice president of the criminal bar association. A KC investigated and found – importantly – that the work was of good standard and value and was not improperly influenced by the lawyers who commissioned the reports. But it seems he raised questions about potential conflict of interest.
Stuff has somehow got hold of a copy of the report. It believes its reporting is in the public interest. The Ministry of Justice says it’s confidential. The judge granted an interim injunction to prevent further publication. That means there will be fuller argument shortly.
I’ve read the decision (it doesn’t seem to be available online, but doesn’t refer to anything beyond what’s already reported).
I’m not entirely sure I disagree with the outcome. And these things are put together and argued very quickly and without much preparation. In particular, they tend to get sprung on the media defendant at the last moment. And I don’t know exactly what was argued. So I don’t think anyone can be too critical of it.
But several things seem surprisingly missing to me, and all of them would have made it harder (but not impossible) for the judge to grant this order:
- The judge cites the standard threshold for interim injunctions. This essentially asks whether there’s an arguable case and if there is, then what will “cause the least irremediable prejudice to one party or the other?” But the proper questions in cases where free speech is at stake is different. It’s from the Fahey case, where the Court of Appeal held that: “Any prior restraint of freedom of expression requires passing a much higher threshold than an arguable case standard” and “The jurisdiction to restrain the proposed publication is exercisable only for clear and compelling reasons”.
- A government plaintiff – like the Ministry of Justice – has to show that disclosure would harm the public interest – ie it is in the public interest to enforce silence. This is from the famous Spycatcher case, and the rationale is that this is our information, so the government should have to justify keeping it secret.
- When third parties, like the media, get hold of allegedly confidential documents, the key test is from Hunt v A, where the Court of Appeal said: “whether a third party recipient of confidential information has acted unconscionably in relation to the acquisition of information or in the way it has been employed” (I’ve added emphasis).
The judge doesn’t mention any of these cases, and doesn’t apply any of these tests. So it’s hard to be sure that the outcome is legally justified.
Oh, and a mention of the right to freedom of expression in the NZ Bill of Rights Act – plainly in play here – wouldn’t have gone astray either. Any gagging order, even a temporary one, must be shown to be demonstrably justified in a free and democratic society.
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