The report is very lengthy, which reflects the complexity of the issues involved and the inherent challenges with balancing competing the interests of open justice against interests such as the protection of vulnerable people, the right to a fair trial and the integrity of police investigations.
New legislation hoping to bring the principle of open justice into the modern era and streamline access to court information, non-publication and suppression orders is being considered by the NSW Government.
Attorney General Mark Speakman tabled a 600-page report by the NSW Law Reform Commission (LRC) in Parliament on Tuesday, after three years of robust consultation and research with members of the justice system, community organisations and academics.
The LRC sought submissions on a draft proposal for reform in 2021. The NSW Police Force, the Law Society of NSW and the Children’s Court of NSW were among almost 100 submissions.
“Open Justice: Court and tribunal information: access, disclosure and publication” makes 156 recommendations about the laws that govern the disclosure and publication of court and tribunal information, and court suppression and non-publication orders, as well as who has access to information and in what circumstances.
In 2019, Speakman asked the LRC to consider whether NSW laws “strike the right balance” between promoting the administration of justice, the rights of victims and witnesses, privacy, confidentiality, public safety, the right to a fair trial, national security, commercial and business interests, and the public interest in open justice.
The last time these laws were reviewed was more than a decade ago, and this new report and its recommendations are mindful of the progression of technology, electronic access to material and the implementation of remote court proceedings due to the COVID-19 pandemic.
“This report demonstrates that open justice is, in fact, very complex. Open justice needs to be understood as a principle of law, not a rule of law,” former LRC Chairperson Alan Cameron said.
“It is a touchstone against which legislation and practice in the justice system can be framed and tested. There are likely to be competing interests at play whenever open justice is being discussed.”
There are multiple laws governing access to court information, non-publication, and suppression orders, but the LRC report recommends a new Act to replace existing legislation and apply to all NSW courts.
In the LRC’s draft proposal, they argued statutory offences are not clearly and consistently framed, there is no central agency to investigate and enforce violations, and that investigation of breaches can be difficult and time-consuming.
To combat this, the report recommends implementing an online “register of orders”, containing all non-publication, non-disclosure, and closed court orders searchable by journalists, legal representatives of news media organisations, researchers, and publishers.
Boutique intellectual property and media law firm Banki Haddock Fiora (BHF) provided several sets of submissions to the LRC and participated in round-table stakeholder discussions.
Senior Associate at BHF Jake Blundell commended the Government’s willingness to engage in law reform and welcomes the proposal to establish a register of orders.
“It is also encouraging that the report recommends varying the existing provisions relating to the duration of non-publication and suppression orders, which currently result in orders operating indefinitely in many cases,” Blundell said.
“However, it is too early to say whether that proposal will have the practical effect that it seeks to address.”
To facilitate accurate reporting by the media, another key recommendation of the report was to allow journalists to make audio recordings in court. Media representatives would also be allowed in closed court domestic violence proceedings, but Blundell says this would come with “fairly onerous qualifications and preconditions” and is inconsistent with other proposals in the report.
“The report also recommends prohibiting media access to all documents on courts’ files relating to any closed Court proceedings, even where a journalist may be permitted to be present during those proceedings,” he said.
During the consultation stage, the laws relating to children implicated in criminal investigations garnered the most attention and division among parties. The report aims to balance the public interest (in missing children’s cases for example), with the need to shield identities to reduce distress, trauma and avoid stigmatisation.
When an accused person is charged with a crime involving a child in NSW, legislation prohibits publishing the child’s name, photo and any information that could identify them. That prohibition extends to children who are no longer living. Any child involved in criminal proceedings in NSW, whether as a defendant, witness, victim or otherwise peripherally attached (for example, a sibling), cannot be identified. This combination makes NSW legislation broader than any other Australian state or territory.
The report proposes to broaden the current restrictions on identifying children involved in criminal proceedings to also apply to criminal investigations before charges are laid, in line with the Queensland and UK models.
“If enacted, this would be very difficult for the media to navigate in good faith and to avoid possible criminal sanctions for breach, given that it may be almost impossible to ascertain whether a person is or is not involved in an investigation, the existence and extent of which are very often kept secret by authorities,” Blundell said.
The publication of a child’s identity will be allowed under the proposed legislation in the interests of their safety and welfare, or for the purposes of a missing person investigation. The report also recommends allowing an exception if a child is a victim of an alleged homicide, to enable the public to learn the outcome of a case.