The NSW Law Reform Commission final report on Open Justice addresses the following Terms of Reference -
the NSW Law Reform Commission is to review and report on the operation of:
1. legislative prohibitions on the disclosure or publication of NSW court and tribunal information,
2. NSW court suppression and non-publication orders, and tribunal orders restricting disclosure of information, and
3. access to information in NSW courts and tribunals;
In particular, the Commission is to consider:
a) Any NSW legislation that affects access to, and disclosure and publication of, court and tribunal information, including: - The Court Suppression and Non-Publication Orders Act 2010 (NSW); - The Court Information Act 2010 (NSW); and - The Children (Criminal Proceedings) Act 1987. b) Whether the current arrangements strike the right balance between the proper administration of justice, the rights of victims and witnesses, privacy, confidentiality, public safety, the right to a fair trial, national security, commercial/business interests, and the public interest in open justice. c) The effectiveness of current enforcement provisions in achieving the right balance, including appeal rights. d) The appropriateness of legislative provisions prohibiting the identification of children and young people involved in civil and criminal proceedings, including prohibitions on the identification of adults convicted of offences committed as children and on the identification of deceased children associated with criminal proceedings. e) Whether, and to what extent, suppression and non-publication orders can remain effective in the digital environment, and whether there are any appropriate alternatives. f) The impact of any information access regime on the operation of NSW courts and tribunals. g) Whether, and to what extent, technology can be used to facilitate access to court and tribunal information. h) The findings of the Royal Commission into Institutional Responses to Child Sexual Abuse regarding the public interest in exposing child sexual abuse offending. i) Comparable legal and practical arrangements elsewhere in Australia and overseas. j) Any other relevant matters
The Chair's foreword comments
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. 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 also many limitations on the concept of open justice that have grown over time, sometimes with little consistency of language or logic.
The recommendations in the report are summarised as follows
0.1 The Attorney General has asked us to review and report on the laws that govern open and closed courts and the publication and disclosure of information held by courts and tribunals. This includes the laws that determine who can access such information and in what circumstances.
0.2 Our report deals with legislative “exceptions to open justice”, which is a catch-all term that we use to refer to provisions that: · enable the court to be closed entirely or certain people to be excluded, and/or · prevent certain information from being published or disclosed.
0.3 It also deals with access to records on the court file, as a means by which open justice can be facilitated.
Introduction (chapter 1)
0.4 The principle of open justice – that the administration of justice must take place in public – is central to this review. Our review has provided an opportunity to consider how laws relating to open justice operate, and what, if anything, needs to change. Some key issues that form a background to this review include: · changes in the way people access and share information, including the increased ability to share information across geographical boundaries · new technologies which provide opportunities to facilitate open justice, such as livestreaming proceedings · changes in the legal landscape, including increased reliance on documentary evidence, and · the existing regimes for access to court records in NSW courts are not consolidated and are not always consistent or easy to understand.
0.5 Our review involved consultation with a wide range of different stakeholders, including judicial officers, legal practitioners, academics, community groups, the media and government agencies. We received written submissions from these stakeholders on our consultation paper and draft proposals. We also consulted in person and remotely with people across NSW. In addition, we released an online survey to encourage people who wouldn’t normally engage with law reform processes to have their say.
0.6 We adopted a set of guiding principles for this review. These guiding principles are:
1. Open justice is fundamental to the integrity of and confidence in the administration of justice.
2. Any exception to open justice should be to the minimal extent necessary.
3. Exceptions to open justice are appropriate where they are necessary to protect certain sensitive information, vulnerable people and the administration of justice.
4. The power and discretion of the judicial officer to control court proceedings and to determine open justice issues, in accordance with the circumstances of each case, should be preserved to the maximum extent possible.
5. Legislation that contains exceptions to open justice should (so far as practicable) be uniform and consistent.
6. Any exception to open justice should (so far as practicable) be applied in a way that is transparent, accessible and subject to scrutiny.
0.7 In addition to promoting open justice, our aims of reform include to promote consistency (where appropriate) in legislation, promote confidence and certainty in the system, and increase transparency. We also aim to enhance or extend some protections for certain categories of vulnerable people, and empower people to tell their stories, should they wish (subject to some necessary limits). Finally, we aim to promote the efficient and effective operation of courts and tribunals by avoiding unreasonable burdens on those who must administer them, including through effective regimes for compliance and enforcement and for access to records on the court file.
The principle of open justice (chapter 2)
0.8 The three elements of the principle of open justice are: · open court proceedings · fair and accurate reporting of court proceedings, and · access to court records. These elements combine to ensure that justice is administered in public.
0.9 The courts have recognised some circumstances where open justice must give way to other interests, for example, where they exercise their protective jurisdiction (in relation to wardship and mental health), where the case involves a secret process where publicity would render the litigation futile, or where cases involve national security.
0.10 There are also categories of cases where not adhering to open justice is necessary to secure the proper administration of justice. Two particularly relevant features of the administration of justice are: · that criminal trials are fair, and · that people who can assist in the justice process are encouraged to do so.
0.11 These outcomes can be supported by, for example, preventing potential jurors from having access to prejudicial material, encouraging the reporting of offences and supporting access to justice for vulnerable people who might be deterred by publicity.
Classification framework and uniform definitions (chapter 3)
A new framework for classifying exceptions to open justice
0.12 There is currently no consistent framework for classifying legislative exceptions to open justice. Many existing provisions use different terminology, which causes confusion about their effect and operation.
0.13 In our report, we have developed a new framework for classifying exceptions to open justice. The framework is intended to assist in understanding and differentiating between the types of exceptions, and their purpose and effect.
0.14 We classify exceptions to open justice according to the type of exception, and the action or behaviour restricted, prohibited or required by the exception.
0.15 The types of exception are: · a statutory prohibition or statutory provision: a legislative provision that operates automatically without the need for a court to make an order · a requirement to make an order: a legislative provision that requires the court to make an order, and · a discretion to make an order: a legislative provision that gives the court discretion to make an order.
0.16 The types of action or behaviour restricted, prohibited or required are: · non-publication: a restriction or prohibition on publishing certain information · non-disclosure: a restriction or prohibition on disclosing certain information by any means, including by publication · exclusion: the exclusion of a particular person or class of people, or all people other than those whose presence is necessary, from the whole or any part of proceedings, and · closing the court: the exclusion of all people from the whole or any part of proceedings, other than those whose presence is necessary, which also has the effect of prohibiting disclosure (including by publication) of information from the closed part of proceedings.
The effect of closing the court
0.17 There is currently confusion about whether closing the court also has a suppression effect (that is, information from closed proceedings cannot be published or disclosed).
0.18 We have dealt with this ambiguity by creating two distinct classifications: “exclusion” and “closed court”. Only closing the court will have the effect of suppressing information from the closed proceedings.
0.19 Given the broad effect of closing courts, we consider they should only be closed in limited situations, where it is necessary to preserve confidentiality.
Uniform definitions of key terms
0.20 Uniform definitions should be used where appropriate. This includes in the new Act that we recommend (chapters 4–7) and in existing subject-specific legislation containing exceptions to open justice (chapters 8–12).
0.21 There should be uniform definitions of various terms, including: · “non-publication order”, “non-disclosure order”, “exclusion order” and “closed court order” (rec 3.1) · “publish” and “disclose” (rec 3.2) · “information tending to identify” a person (rec 3.3) · “contact information” (rec 3.4) · “journalist”, “news media organisation” and “news medium” (rec 3.5), and · “official report of proceedings” (rec 3.6).
The new Act: Introduction (chapter 4)
0.22 A new Act should be introduced, to replace certain existing legislation.
0.23 One division of the new Act would set out a framework for access to records on the court file in various courts. Access to court records is an important aspect of open justice, as it can assist in scrutinising the courts and producing fair and accurate reports of proceedings. However, the current access regimes are complex, inconsistent and difficult to navigate.
0.24 The access framework would replace the Court Information Act 2010 (NSW) (Court Information Act) and some other existing access provisions (rec 4.1). The Court Information Act was enacted over a decade ago in an attempt to consolidate the access regimes, but it has never commenced due to practical concerns. The new access framework seeks to address these concerns.
0.25 Another division of the new Act would contain general powers to make non-publication, non-disclosure, exclusion and closed court orders. This division would replace the Court Suppression and Non-publication Orders Act 2010 (CSNPO Act) (rec 4.1).
0.26 The CSNPO Act currently provides general powers to make orders prohibiting or restricting publication or disclosure only. It establishes a regime for making, reviewing, appealing and enforcing these orders. The new Act builds on the CSNPO Act and introduces new types of orders and provisions.
0.27 The new Act should apply to NSW courts, with the exception of some specialised courts, but not to tribunals.
0.28 The new Act should also specify the objects of the Act, including to: · recognise and promote open justice, subject to necessary exceptions · provide clarity about the effect and operation of exceptions to open justice, and · promote transparency of decision-making under the Act (rec 4.2). The objects should assist courts in interpreting and applying the Act and provide a benchmark against which to assess its implementation.
0.29 The new Act should adopt the uniform definitions of key terms recommended in chapter 3 (rec 4.3–4.5). There would also be additional definitions of terms used across the new Act (rec 4.3), as well as those that relate to the access framework only (rec 4.4) and terms that relate only to orders (rec 4.5).
0.30 Certain preliminary provisions in the new Act should include a clarification that the Act does not limit or otherwise affect any inherent jurisdiction or any powers that a court has to regulate its proceedings or deal with a contempt of the court (rec 4.6).
0.31 In relation to the access framework, the new Act should clarify that it does not prevent or otherwise interfere with giving access to records on the court file as permitted or required under other laws (rec 4.7).
0.32 In relation to general powers to make orders, the new Act should provide that only a judicial officer can make orders, unless otherwise provided by rules of court (rec 4.8). This is because orders made under the new Act would have consequences for open justice and require the application of complex legal decision-making. Further, the new Act should clarify that other legislative exceptions to open justice are not affected, and require courts to consider these other provisions before making an order (rec 4.9–4.10). This may avoid unnecessary orders being made under the new Act.
0.33 Finally, the new Act should also contain powers to make regulations and rules of court that supplement, but are not inconsistent with, the Act (rec 4.11–4.12). The rules committee of a court could, for example, make rules that expand on the new Act, where it is necessary to take account of operational or procedural factors that are unique to that court.
The new Act: Framework for access to records on the court file (chapter 5)
0.34 The recommended access framework seeks to: · improve and simplify access to court records by clarifying what records are available to particular classes of applicant · promote greater consistency across different courts and types of proceedings, and · provide that important countervailing interests, such as privacy, are consistently and effectively protected.
0.35 The access framework also recognises the importance of providing flexibility to courts and takes account of differences between jurisdictions by allowing them to make rules of court, not inconsistent with the legislative framework.
Access dependent on the category of applicant and type of record
0.36 The recommended framework takes a different approach to that of the uncommenced Court Information Act, which would have outlined access rules based on the type of information so that: · information categorised as “open access information” would have been accessible to anyone as of right, unless the court ordered otherwise, and · information categorised as “restricted access information” would have been accessible with leave of the court.
0.37 Under our recommended framework, certain types of records would be accessible as of right, and others would be accessible only with leave, depending on the category of applicant.
0.38 Under the access framework: · parties and their legal representatives would be entitled to access any record on the court file for the proceedings · journalists and researchers would be entitled to access certain records on the court file as of right, and be required to seek leave of the court to access other records, and · members of the public would be required to seek leave to access almost all records on the court file, except those prescribed in court rules as accessible as of right (rec 5.1–5.2).
0.39 We outline the list of records that would be accessible to certain applicants as of right or by leave, as well as those that would be entirely prohibited from access in rec 5.1–5.3.
0.40 The category of applicant also impacts: · the available methods of access: for example, parties would be entitled to obtain copies of court records, whereas journalists, researchers and members of the public would only be able to obtain copies with leave of the court (rec 5.7) · the types of information that must be included in access requests: for example, researchers would have to provide additional information to assist the court in determining whether the request is for research purposes (rec 5.6), and · the payment of any prescribed access fees: for example, a complainant or victim in a criminal proceeding, and a protected person in an apprehended violence order (AVO) proceeding, would be exempt from paying fees (rec 5.10).
0.41 The access framework recognises that certain applicants have a greater interest in accessing records, require access more frequently and are subject to professional and/or ethical constraints. Journalists should have specific access entitlements because they play an important role in facilitating open justice by reporting on court proceedings. This helps to promote public knowledge and understanding of specific cases and the justice system in general.
0.42 Researchers should have particular access entitlements because research is an important part of open justice, insofar as it involves investigating areas of the law and the operation of the courts, which can highlight shortcomings and lead to improvements. Researchers and journalists are subject to professional conduct and ethics requirements, which should reduce the risk of their disclosing, publishing or misusing personal identification information contained in court records.
0.43 Members of the public do not share the same interest in access and are not bound by similar constraints. Further, a significant proportion of court records contain personal identification information. Allowing such information to be readily available to the public could lead to identity theft, or people being targeted for commercial or other purposes.
Considerations in granting leave for access
0.44 Where access to a record is by leave of the court, the access framework should specify certain considerations for granting leave, such as: · the public interest in open justice · the impact on the administration of justice · the impact on individual privacy or safety, and · reasons for which access is sought (rec 5.5). Outlining such considerations should help to guide decision-makers in exercising their discretion and assist applicants in framing access requests.
0.45 A key consideration is whether it is reasonably practicable to delete or remove personal identification information from a court record (rec 5.5(1)(i)). This provides the court with the option of redacting personal information from court records, in order to protect against misuse, but does not require it to do so in every case. This is intended to ensure redaction of records is within the court’s control, having regard to whether it is reasonably practicable in the circumstances.
0.46 Another key consideration is whether the record contains information that is subject to a statutory prohibition on publication or a non-publication order (rec 5.5(1)(j)). Such records should not be prohibited from access entirely, but rather an applicant should have to seek leave to access them. The court should be required to consider the existence of a publication restriction since they are generally imposed to protect sensitive or potentially prejudicial information.
0.47 The access framework should also clarify that a publication restriction does not, of itself, operate to prevent an applicant from accessing the record or the court from providing an applicant with access to it (rec 5.5(2)). This should alleviate any uncertainty about whether access can be provided to a record that is subject to a publication restriction.
Access subject to certain matters, including fees and conditions
0.48 Access to records should be subject to any fees prescribed by regulation. This should, for example, allow courts to recover the cost of redacting personal identification information. However, there would be a guiding principle for setting fees: that they must not exceed what is reasonably necessary to cover the cost of providing access or deleting or removing personal identification information. This is to ensure fees are kept to a minimum (rec 5.4, 5.9).
0.49 The new Act should also provide that some types of applicants are exempt from paying any prescribed fee (such as an accused person or offender in a criminal proceeding), and that the court may waive or reduce fees in certain situations (such as where a member of the public is experiencing financial hardship) (rec 5.10).
0.50 Where access to a record is by leave of the court, such access should be subject to any conditions imposed on access or use (rec 5.8). Allowing the court to impose conditions enables specific risks or issues to be addressed. Where, for example, it is not reasonably practicable to redact personal identification information from a record, a court could impose conditions preventing misuse of such information.
0.51 Courts should retain a residual discretion to control access to a record. It should, therefore, be made clear that access would also be subject to any order that restricts or otherwise affects access to the record that a court has made, on application, in the particular case (rec 5.4).
Liability protections
0.52 There are a number of areas of potential civil and criminal liability that require modifying to ensure that appropriate access can be facilitated. There should, therefore, be provisions to ensure that: · no action for defamation or breach of confidence can be brought against courts, court officers, or authors of documents that are accessed under the framework (rec 5.11) · there is no criminal liability for a court officer who makes a decision in good faith to provide a document in accordance with the framework (rec 5.12), and · there is no civil liability for a court officer or anyone acting under their direction, who act in good faith for the purposes of executing the access framework (rec 5.13).
Offence of unauthorised disclosure of personal identification information in court records
0.53 The access framework should make it an offence for an applicant who is given access to a record on the court file to use or disclose (including by publication) any personal identification information in it, unless the court or the person to whom the information relates permits this use or disclosure (rec 5.14).
0.54 This is intended to provide some protection for personal identification information contained in all court records, including those that are accessible to an applicant as of right. It is also intended to deter the use of personal identification information for identity theft or to target people for commercial, criminal or other purposes. The new Act: Powers to make orders – powers, grounds and scope (chapter 6)
0.55 The new Act should set out a clear framework for general powers to make nonpublication and non-disclosure orders, as well as exclusion and closed court orders. This division of the new Act would replace the CSNPO Act.
Powers to make non-publication and non-disclosure orders
0.56 The powers to make non-publication and non-disclosure orders should be similar to the CSNPO Act, with some amended and additional categories of information (rec 6.2(1)). These amendments are intended to address issues with the current scope of powers in the CSNPO Act. A court should be able to make a non-publication or non-disclosure order in relation to: · information tending to identify a party to or witness in proceedings, or any other person who is related to or associated with a party or witness · information, whether or not received into evidence, given in proceedings before the court, and · information that comprises evidence that may be adduced or given in proceedings.
0.57 As with the CSNPO Act, a court would continue to have a limited statutory power to make an order in relation to extraneous prejudicial material.
Powers to make exclusion and closed court orders
0.58 Unlike the CSNPO Act, the new Act should contain powers to make exclusion and closed court orders (rec 6.2(2)–(3)). Currently, powers to make such orders are derived from inherent or implied powers of the court and provisions in subject-specific legislation. We consider it appropriate that there is a clear statutory framework setting out general powers to make exclusion and closed court orders. This should provide clarity around how and when such orders can be made.
Consideration of the public interest in open justice
0.59 When considering whether to make an order under the new Act, a primary consideration is safeguarding the public interest in open justice (rec 6.1). This recognises the importance of open justice, while not preventing consideration of other matters, where necessary.
Clear grounds for making different types of orders
0.60 The new Act should set out clear grounds for making the different types of orders, prefaced with the requirement that the order must be “necessary” (rec 6.4–6.6). 0.61 The different types of orders should have some common grounds, for example, where the order is necessary to prevent prejudice to the proper administration of justice.
0.62 We also recommend additional grounds that are unique to certain types of orders, for example, where an exclusion order is necessary to support a child or person with a mental health or cognitive impairment to give evidence.
Scope of orders must be confined
0.63 Orders made under the new Act should be defined and confined in scope. 0.64 In relation to a non-publication or non-disclosure order, a court would be required to: · specify the information to which the order applies and ensure that an order does not apply to any more information than is reasonably necessary to achieve the purpose of the order (rec 6.7) · specify where the order would apply (which could be any place inside, or outside, the Commonwealth) and have regard to what is necessary for achieving the purpose of the order (rec 6.8), and · specify the duration of the order (with reference to a fixed or ascertainable period or the occurrence of a specified future event) and ensure that the order does not operate longer than is reasonably necessary to achieve the purpose of the order, although an order could be made to operate indefinitely in exceptional circumstances or where it is not reasonably practicable to specify a duration (rec 6.9).
0.65 In relation to an exclusion or closed court order, a court should be required to specify the proceedings or part of the proceedings to which the order applies and ensure that the order operates for no longer than is reasonably necessary to achieve its purpose (rec 6.10). Since closed court orders also have a suppression effect, they will have, by default, an indefinite duration. This is appropriate, given that information from proceedings held in closed court is meant to remain confidential.
Orders may be subject to exceptions and conditions
0.66 The new Act should enable a court to make an order subject to such exceptions and conditions it sees fit and specifies in the order (rec 6.11).
0.67 The new Act should also include standard exceptions for journalists when an exclusion order is made (rec 6.12) and allow certain disclosures in particular circumstances when a non-disclosure or closed court order is made (rec 6.13). However, the new Act should not include other standard exceptions. In most cases, a court should determine what exceptions and conditions are appropriate in the circumstances of the case.
The new Act: Powers to make orders – procedures (chapter 7)
0.68 The new Act should include procedures for: · making a non-publication, non-disclosure, exclusion or closed court order (rec 7.1) · reviewing a non-publication, non-disclosure or closed court order (rec 7.2), or an exclusion order (rec 7.3), and · appealing a non-publication, non-disclosure, exclusion or closed court order (rec 7.5).
0.69 Clear procedures should enable consistency and transparency in decision-making. In relation to applications for orders, only a party to proceedings or any other person that the court considers has sufficient interest should be able to apply (rec 7.1).
0.70 However, a broader range of persons (including a journalist, news media organisation and government or government agency) should be entitled to: · apply for a review of an order (except in the case of an exclusion order) (rec 7.2–7.3) · apply for leave to appeal an order (rec 7.5), and · appear and be heard by a court on an application for an order, a review of an order (except an exclusion order), and an appeal of an order (rec 7.1–7.3, 7.5).
0.71 Setting out such procedures should provide clear avenues for challenging and reassessing orders. Reviews would be heard by the court that made the original order, whereas an appeal of an order would be heard by a higher court and would only be by leave.
Recognition of the voice of the person who is, or would be, protected by an order
0.72 A court should be required to consider the views of the person who is, or would be, protected by an order, when making a decision under the new Act (rec 7.6). This is intended to ensure that courts and prosecutors take a proactive approach to determining and considering such a person’s views.
0.73 Where a person (who is a complainant or victim in a sexual offence or domestic violence offence, or protected person in an AVO proceeding) is protected by a nonpublication or non-disclosure order, and they make an application for review, a court should be required to revoke the order (subject to some limitations) (rec 7.4). Given that sexual assault and domestic violence are crimes based around power and control, this recommendation is intended to ensure that a victim’s voice is at the centre of the process, by allowing them to decide whether an order that has been made over their identity should continue to operate.
Requirement to give reasons on request
0.74 The new Act should require a court to give reasons for decisions relating to orders when requested to do so by certain persons, and subject to some exceptions (rec 7.7). This should promote transparency about decision-making and support the media and others in deciding whether they want to apply for a review or appeal of an order.
Costs awardable in certain circumstances
0.75 In applications for, and reviews of, orders, a court should be able to make a costs order against a person only if that person’s involvement in the application or review is frivolous or vexatious. In relation to appeals, there should be no limit on a court’s power to make an order for costs (rec 7.8).
Breaches of orders punishable
0.76 The new Act should set out the elements of the offence of breaching an order, and state that a breach may be punished as a statutory offence or contempt (but not both) (rec 7.10). The new Act should also include maximum penalties for the offence (rec 7.11) and provide that breaches of non-publication and non-disclosure orders that occur overseas could be punished as offences in NSW (rec 7.12).
0.77 In order to prevent an inadvertent breach of a closed court order, the new Act should require a court to post notice of the order, whether the proceedings are held in a courtroom or accessed remotely (rec 7.9).
Exceptions to open justice in other legislation: Introduction (chapter 8)
0.78 We have applied our classification framework (outlined in chapter 3) to exceptions to open justice in subject-specific legislation. To ensure consistency across provisions with the same classification, there should be a standard approach to certain issues (for example, lifting mechanisms for statutory prohibitions). In other cases, we do not recommend standard approaches (for example, procedural provisions in discretions to make non-publication, non-disclosure, exclusion and closed court orders).
0.79 Specific recommendations for each legislative context are outlined in chapters 9–12.
Duration of statutory prohibitions
0.80 Several statutory prohibitions should have an indefinite duration, including statutory prohibitions on publication applying to the identity of children and young people.
Mechanisms for lifting statutory prohibitions
0.81 “Lifting mechanism” refers to provisions enabling the court to grant leave or the person protected by the prohibition to consent to publication or disclosure, in relation to a statutory prohibition. Our standard approach to lifting mechanisms seeks to balance a number of considerations, including the need to enable people to tell their stories and to protect the integrity of ongoing court proceedings.
0.82 A court should: · be the only mechanism for lifting a prohibition when proceedings are ongoing · be able to grant leave for publication or disclosure where the person protected by the prohibition is alive or deceased, and · be required to take into account certain considerations when deciding whether to grant leave to lift the statutory prohibition (which differ depending on whether the person is alive or deceased).
0.83 A person protected by the prohibition should: · be able to consent to lifting the prohibition if: - they are aged 18 or over, or - they are aged 16 or 17, after receiving advice from an Australian legal practitioner about the implications of consenting · not be able to consent to publication of their identity if: - the proceedings are ongoing, and/or - this would also identify another person protected by the prohibition who has not consented to publication or disclosure or who is under 16.
0.84 Neither the court should be able to grant leave to lift a prohibition when the person protected by the prohibition is alive, nor should the person be able to consent, where the person is under 16. This is because of the lack of maturity of children under 16, the risk of their being subject to undue influence and the potential long-term consequences of allowing publication of their identity.
0.85 In some cases, a person’s identifying information may be protected by both a statutory prohibition on publication and a closed court order. This is because a closed court order has the effect of both excluding people from proceedings and prohibiting disclosure of information from the closed proceedings.
0.86 Where a mechanism to lift a statutory prohibition is used, it should have the effect of lifting both: · the statutory prohibition on publication, and · the suppression effect of the closed court order (that is, the associated prohibition on disclosing information from the closed part of proceedings) to the extent that it overlaps with the statutory prohibition.
0.87 This is necessary to give effect to the lifting mechanism. If it only lifted the statutory prohibition, publication of the person’s identity would still be prohibited under the closed court order.
Exception to statutory prohibitions for official reports of proceedings
0.88 Some, but not all, statutory prohibitions should have an exception to allow publication of the relevant information in an official report of proceedings.
Exceptions for journalists when the public is excluded
0.89 In proceedings where the public have been excluded, there should be a limited exception for journalists in: · prescribed sexual offence proceedings (including the part of proceedings in which the victim reads a victim impact statement) · domestic violence offence proceedings · apprehended domestic violence order (ADVO) proceedings concerning adults, and · AVO proceedings involving young people.
0.90 This limited exception seeks to balance the need for media access to, and reporting of, proceedings relating to sexual offences and domestic violence with the need to minimise distress to those involved.
0.91 Exceptions for the media to remain in proceedings when the public is excluded in certain proceedings involving children should be retained. They are important to enable the media to report on, and the public to learn about, these proceedings.
Limited changes to discretions to make orders
0.92 Discretions to make orders should not include standard provisions relating to: · procedures for making, reviewing or appealing orders · where an order applies · a requirement to give reasons on request · costs, and · a requirement to consider the public interest in open justice. Such provisions would introduce complexity into provisions that operate in only a small number of matters, in specific contexts, where there is no demonstrated need for reform.
0.93 The main exception is our recommendation to include a standard provision relating to the duration of non-publication orders in some provisions in subject-specific legislation.
Legislation relating to children and young people (chapter 9)
0.94 There are a range of exceptions to open justice in subject-specific legislation relating to children and young people, including in criminal and diversionary proceedings, care and protection proceedings, and proceedings relating to parentage and guardianship.
0.95 Protections for children involved in court proceedings are intended to shield children’s identities in order to reduce distress and trauma and avoid stigmatisation.
0.96 All existing exceptions to open justice relating to children should be retained. We make a number of recommendations to improve these protections, including: · Uniform terminology should be adopted, where appropriate (rec 9.1, 9.8, 9.14–9.15, 9.19–9.20, 9.24). · The prohibition on identifying a child involved in criminal proceedings should apply to the publication of a person’s identity in a way that connects them with a criminal investigation (rec 9.2). This is intended to protect children at the earliest point of their involvement with the criminal justice system. · There should also be an exception to the prohibition on identifying a child involved in criminal proceedings, to allow for the publication of the identity of a child victim of an alleged homicide, where there has been prior lawful publication of the child’s identity (rec 9.3). This is to enable the public to learn the outcome of a case. · All statutory prohibitions relating to children and young people, including the prohibition on identifying a child involved in criminal proceedings, and other prohibitions concerning children and young people (rec 9.9), should apply even if the person is deceased. This is to protect them from stigmatising events that occurred when they were young and to ensure consistency. · There should be clear and consistent mechanisms to lift the prohibitions to allow for publication or disclosure, where appropriate (rec 9.4–9.7, 9.10–9.13, 9.17–9.18). · The public should be excluded from criminal proceedings against children and from care and protection proceedings. The court should also be able to make an exclusion order in relation to other people, in certain circumstances (rec 9.20–9.21). · There should be a requirement to make a closed court order in certain civil proceedings relating to children, including adoption, surrogacy, parentage and guardianship of infants proceedings (rec 9.24). This would incidentally prohibit disclosure of information in the closed proceedings.
0.97 These recommendations acknowledge that participation in proceedings may be particularly stressful for a child and the proceedings themselves are sensitive in nature.
Legislation relating to sexual offence proceedings (chapter 10)
0.98 There are several exceptions to open justice that apply in relation to sexual offence proceedings. In general, these protections seek to avoid stigmatisation of, and distress to, complainants and encourage reporting of sexual offences.
0.99 One such protection is the statutory prohibition on publishing the identity of a complainant under s 578A of the Crimes Act 1900 (NSW). We recommend several amendments to this prohibition, including: · Adopting uniform terminology (rec 10.1). · Extending the prohibition to apply to the period before proceedings have commenced, from the time that a complaint is made to police (rec 10.2). This is intended to protect the identity of the complainant as soon as they become involved with the criminal justice system and encourage reporting. · Amending the prohibition to apply to a complainant’s identity even if they are deceased (rec 10.3). This recognises the ongoing impact of sexual offences on the complainant’s family and the prospect that being identified after death could deter reporting. · An exception so that the prohibition does not apply where the victim of the sexual offence is also the victim of an associated homicide (rec 10.4). This recognises the public interest in the reporting of such crimes. · Revised mechanisms for lifting the prohibition with leave of the court and with the complainant’s consent, consistent with our standard lifting mechanisms (rec 10.5– 10.8).
0.100 Other protections that apply in relation to sexual offence proceedings include: · s 291 of the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act), which we classify as a requirement to make an exclusion order excluding all people, other than those whose presence is necessary, from the part of proceedings in which the court hears the complainant give evidence or a recording of their evidence · s 291A of the Criminal Procedure Act, which we classify as a discretion to make an exclusion order in any other part of sexual offence proceedings, or the entire proceedings, and · s 30I of the Crimes (Sentencing Procedure) Act 1999 (NSW), which we classify as a requirement to make an exclusion order excluding all people, other than those whose presence is necessary, when a victim impact statement is read out.
0.101 These provisions should adopt uniform terminology consistent with the classifications (rec 10.10–10.11). There should also be a limited exception for journalists that gives them access to the proceedings subject to an exclusion order, provided that: · the complainant or victim is aged over 18 and consents · the complainant or victim is aged 16 or 17 and consents after receiving advice from an Australian legal practitioner about the implications of consenting, or · the complainant or victim is aged over 16 and the court is satisfied that the public interest in allowing the journalist to view or hear the proceedings significantly outweighs the complainant’s wishes (rec 10.12).
0.102 This exception should facilitate media access to and reporting of sexual offence proceedings, which may help generate public awareness and discussion of sexual offending, encourage reporting of offences and reduce stigma. To avoid causing distress to the complainant or victim, arrangements would need to be made so that journalists may access the proceedings without being present in the place where the complainant’s evidence is given, or the victim impact statement is read.
0.103 Another protection is s 291B of the Criminal Procedure Act, which we classify as a requirement to make a closed court order in incest proceedings. The provision should adopt uniform terminology consistent with this classification (rec 10.13).
Legislation relating to domestic violence proceedings (chapter 11)
0.104 There are several exceptions to open justice that apply in domestic violence offence and AVO proceedings. These exceptions reflect increasing recognition that people who have experienced domestic violence may need additional protection, to improve victim attendance rates and the finalisation of matters in court.
0.105 Specific protections for children and young people involved in AVO proceedings are similar to those available for children and young people in other types of court proceedings and recognise their particular vulnerability.
0.106 One such protection is the statutory prohibition on publishing the name of a child involved in an AVO proceeding under s 45(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (Crimes (Domestic and Personal Violence) Act). Several amendments should be made to this prohibition, including: · Adopting uniform terminology (rec 11.1). · Extending the prohibition also to apply to information tending to identify a young person (aged 16 or 17) involved in AVO proceedings (rec 11.2). This would apply the same protection for children and young people. · Extending the prohibition to apply to the identity of a child or young person, even if they are deceased (rec 11.3). This is due to the potential for long-term stigma. · Revised mechanisms for lifting the prohibition with leave of the court or with the person protected by the prohibition’s consent, consistent with our standard lifting mechanisms (rec 11.4–11.7).
0.107 Another protection that applies in AVO proceedings is s 45(2) of the Crimes (Domestic and Personal Violence) Act. We classify it as a discretion to make a non-publication order over the identify of a person involved in the proceedings (other than a child). We recommend amendments to this provision, including: · the adoption of uniform terminology (rec 11.1) · a requirement for courts to specify the duration of an order (rec 11.9), and · specific procedures for applying for and reviewing orders (rec 11.10).
0.108 Additional protections are found in s 41, s 41AA and s 58 of the Crimes (Domestic and Personal Violence) Act, which require the public to be excluded from AVO proceedings involving children or young people, unless the court directs otherwise. We classify these provisions as statutory exclusion provisions, which apply automatically, without the court needing to make an order. These provisions should adopt uniform terminology consistent with this classification (rec 11.11).
0.109 There are also some protections that apply in domestic violence offence proceedings including: · s 289U of the Criminal Procedure Act, which we classify as a requirement to make an exclusion order excluding all people, other than those whose presence is necessary, from the part of proceedings in which the complainant gives evidence or a recording of their evidence is heard, and · s 289UA of the Criminal Procedure Act, which we classify as a discretion to make an exclusion order in other parts of proceedings, or the entire proceedings.
0.110 Section 289U of the Criminal Procedure Act also applies in ADVO proceedings that involve the same defendant and victim (referred to as the person in need of protection) as those in criminal proceedings for a domestic violence offence. New provisions, based on s 289U and s 289UA of the Criminal Procedure Act, involving a protected person aged 18 or over, should be inserted into the Crimes (Domestic and Personal Violence) Act (rec 11.12, 11.14). This applies the same protection to all ADVO proceedings, whether or not they are associated with domestic violence offence proceedings.
0.111 Section 289U and s 289UA of the Criminal Procedure Act, and the equivalent provisions in the Crimes (Domestic and Personal Violence) Act, should adopt uniform terminology consistent with their classifications (rec 11.13, 11.15).
0.112 Finally, there should be a limited exception for journalists that should enable them to view or hear domestic violence related proceedings from which the public are excluded (rec 11.16). This exception is consistent with our recommendations in relation to sexual offence proceedings, above. The approach balances the need for media reporting, which may improve public awareness and understanding of domestic violence, with the need to minimise distress to those involved in the proceedings.
Other legislation containing exceptions to open justice (chapter 12)
0.113 A number of exceptions to open justice in subject-specific legislation do not fall within the topics covered in chapters 9–11. These provisions should adopt uniform terminology consistent with their classifications (rec 12.1, 12.6, 12.8, 12.9, 12.11, 12.14).
0.114 Where appropriate we recommend other amendments to some of these provisions, such as introducing: · an exception to some statutory prohibitions enabling publication in an official report of proceedings (rec 12.2) · revised mechanisms for lifting some statutory prohibitions (rec 12.4–12.5), and · a standard duration provision for some non-publication orders (rec 12.7).
Dealing with breaches (chapter 13)
0.115 We make several recommendations to achieve greater consistency in respect of statutory offences. These recommendations apply to statutory prohibitions, statutory provisions and orders in subject-specific legislation, and are reflected in the offence in the new Act. However, they do not apply to provisions relating to tribunals or specialised courts.
0.116 To resolve inconsistencies among provisions, we recommend all breaches be punishable as statutory offences. To provide flexibility, it should be possible, where relevant, for a breach to be punished as a contempt instead. However, it should not be possible to punish an offender both for contempt and an offence for the same conduct (rec 13.1).
0.117 All statutory offences for breach should contain standard elements that: · require the offender to have contravened the prohibition, provision or order (rec 13.2) · set out relevant mental elements (rec 13.3–13.4), and · provide that directors of corporations may be personally liable in some cases (rec 13.5).
0.118 However, other aspects of the offences should not be standardised, such as exceptions to offences and maximum penalties.
0.119 The time limit for prosecutions of breaches should be extended so that proceedings would be commenced within two years of the alleged offence (rec 13.6). This is necessary because it is difficult to obtain the evidence required within the six-month period that usually applies to summary offences.
0.120 Exceptions to open justice arise in a range of contexts and the appropriate agency to investigate and deal with breaches differs. The Department of Communities and Justice should form a working group to improve communication and coordination between agencies and monitor the operation of the system (rec 13.7).
0.121 There should be a register of non-publication, non-disclosure and closed court orders (rec 13.8). This should improve awareness of, and compliance with, orders. It would also improve data collection.
Technology and related issues (chapter 14)
0.122 While digital innovation has transformed engagement with the courts, it has also presented challenges in controlling the accessibility of information. We have aimed to ensure that open justice is supported, and not adversely affected, by technology.
0.123 Open justice principles should apply to proceedings with remote access in the same way as they do to proceedings conducted entirely in person. We recommend some reforms to facilitate and promote remote access to court and tribunal proceedings, while retaining the ability of the courts to control those proceedings (rec 14.1).
0.124 In order to facilitate accurate reporting, journalists should be able to make audio recordings of proceedings, having notified the court of such an intention, unless the court orders otherwise. Such recordings should only be used to prepare an accurate report of proceedings (rec 14.2).
0.125 There should be no changes to the law in the areas of electronic access to court files, court and tribunal decisions and court lists, and live reporting by journalists on social media.
Tribunals and specialised courts (chapter 15)
0.126 There should be a unique approach to specialised courts and tribunals.
0.127 We have excluded the Drug Court, the coronial jurisdiction, the Personal Injury Commission and the Industrial Relations Commission from all recommendations in this report.
0.128 We have also excluded the NSW Civil and Administrative Tribunal (NCAT) and the Mental Health Review Tribunal (MHRT) from the new Act and our standard recommendations about dealing with breaches.
0.129 However, we do make some specific recommendations in relation to NCAT and the MHRT.
0.130 In relation to NCAT, our recommendations include: · clarifying the application of the statutory prohibition on publishing the identity of people involved in NCAT proceedings (rec 15.2) and including guidance on the factors NCAT must consider when deciding whether to grant leave to publish the identity of a person involved in proceedings (rec 15.3) · NCAT should be required to specify the duration of non-publication and nondisclosure orders made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (Civil and Administrative and Tribunal Act) (rec 15.4), and · outlining how breaches of the statutory prohibition and orders made under s 64 of the Civil and Administrative Tribunal Act should be dealt with (rec 15.5).
0.131 In relation to the MHRT, our recommendations include: · clarifying the application of the statutory prohibition on publishing the identity of people involved in MHRT proceedings (rec 15.6) and including guidance on the factors the MHRT must consider when granting leave to publish (rec 15.8) · extending the statutory prohibition on publication to apply in related Supreme Court proceedings (rec 15.7) · the MHRT should be required to specify the duration of non-publication and nondisclosure orders made under s 151(4) of the Mental Health Act 2007 (NSW) (Mental Health Act) (rec 15.9) · there should be pathways for review and appeals of non-publication or nondisclosure orders made under s 151(4) of the Mental Health Act, and decisions about whether to lift the prohibition on publication (rec 15.10), and · outlining how breaches of the provisions in the Mental Health Act should be dealt with (rec 15.11).
Education about open justice and implementation of reforms (chapter 16)
0.132 While our recommendations aim to increase clarity and consistency in the laws relating to open justice, there is also a need to improve awareness and understanding.
0.133 Education about existing laws relating to open justice and any reforms arising from this report should be provided for the courts, lawyers, other participants in the justice system (such as parties, victims and witnesses), the media and the community (rec 16.1–16.5). This should help to ensure the reforms achieve their intended impact.
0.134 The new Act should include a statutory review mechanism (rec 16.6). This is to ensure that the impact of the new Act, and any potential issues, can be identified.
0.135 A number of our recommendations will likely have resource implications, including the new legislative framework for accessing records on the court file and the register of nonpublication, non-disclosure and closed court orders. The Government should provide appropriate resourcing, including to the courts, to implement any reforms resulting from this report (rec 16.7)
