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The Importance of Open Justice

Open justice is a central feature of Australia’s judicial system.  Open justice means court rooms are open for the public to view.[1]   In particular, it allows for journalists to report on court proceedings in the news which encourages the public to evaluate, discuss, question, and better understand Australia’s legal system. [2]    Open justice is so indispensable it is even said to be a human right[3], and is found in international human rights law.[4]  

‘Justice must not only be done but also be seen to be done’[5]

This article will look at some of the exceptions to open justice and consider a recent case of the government trying to prevent open justice in Australia. 

 

Exceptions to Open Justice

The requirement for open justice will only be waived in limited circumstances – where it is necessary to guarantee that justice is properly administered.[6]  Circumstances include:

 

Cases Involving Children

In most criminal proceedings against a child defendant, the court will be closed to protect the identity of the child.[7]  Although a child who is accompanied by a lawyer may consent to having their details published in the media.[8]

 

Suppression and non-publication orders

Court’s also have the power to issue suppression and non-publication orders which prevents the publication of information about a case.  An order will be made if it is necessary to ensure the proper administration of justice.[9]  For example, a court may order a suppression order to protect the safety of a person, to prevent embarrassment to a party or witness to a proceeding of a sexual offence, to prevent prejudice to the Commonwealth, or a state or territory.

 

National Security

Finally, a court may be closed to the public if the case concerns national security or defence. [10]  A recent example of this is the Australian government attempting to use this exception to prevent the media reporting on the prosecution of Witness K.

 

In 2004, the Australian government bugged a meeting of the Timor Leste government to obtain information about negotiations between Australia and Timor Leste. [11]  An employee of the Australian Secret Intelligence Service, now known as Witness K, revealed this information to the public. [12]

 

The Australian government asserts that Witness K and his lawyer Bernard Collaery contravened section 39 of the Intelligence Services Act 2001 (Cth) by communicating information that was obtained through working for the Australian Secret Intelligence Service.  The government put forward that the trial needed to be conducted in a closed court, as an open court may result in ‘prejudice to national security’, even though details of the case had already been extensively covered by the media. 

Thankfully, following much public outcry about the importance of open justice, the government has reneged on this position. [13]

 

As discussed, it is imperative that, aside from in exceptional circumstances, all trials should adhere to the requirement of open justice.  By permitting the media to report on court proceedings, the community at large is given the opportunity to observe, understand and scrutinise the justice system.     

If you or someone you know has been charged with a criminal offence or has an employment law issue, contact Rep-Revive Criminal & Employment Lawyers ® for a free initial consultation on (02) 9198 1996.



[1] Scott v Scott [1913] AC 417 [441].

[2] Tom Dick, ‘Open Justice and Closed Courts: Media Access in Criminal Proceedings in NSW’, Legal Aid New South Wales (Online Article) <https://www.legalaid.nsw.gov.au/__data/assets/pdf_file/0010/25201/Open-Justice-and-Closed-Courts.pdf> 1.

[3] Judicial Commission of New South Wales, Criminal Trials Courts Bench Books (Judicial Commission of New South Wales, Update 66, 2021) [10-530]; John Fairfax Group Pty Ltd v Local Court of NSW (1992) 26 NSWLR 131 [14].

[4] International Covenant on Civil and Political Rights Article 14(1). 

[5] Michelle Hamlyn, ‘A Health Check on Open Justice in the Age of Covid-19: The Case for the Ongoing Relevance of Court Reporters’ 2020 (June) The Bulletin 6, 6.

[6] John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 [477]. 

[7] Children (Criminal Proceedings) Act 1987 (NSW) s 10(1).

[8] Tom Dick (n 1) 18.

[9] Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8(1).

[10] Criminal Code 1995 (Cth) s 93.2.

[11] Ian Cunliffe, ‘Weak Grounds for Secrecy of Bernard Collaery Trial’ Australian Financial Review (Melbourne, 14 August 2020) 1-2.  

[12] Christopher Knaus, ‘Commonwealth Prosecutors Wrong on Witness K Case, Former NSW DPP Says’ The Guardian (Web Page, 1 April 2021) <https://www.theguardian.com/australia-news/2021/apr/01/commonwealth-prosecutors-wrong-on-witness-k-case-former-nsw-dpp-says>.

[13] Christopher Knaus, ‘Australian Government Backflips on Secrecy Push in Witness K Court Case’ The Guardian (Web Page 29 March 2021) <https://www.theguardian.com/australia-news/2021/mar/29/federal-government-backflips-on-secrecy-push-in-witness-k-court-case>.

 

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