The NSW Law Reform Commission has released a conbsultation paper regarding its Open Justice - Court and tribunal information: access, disclosure and publication onquiry.
The Commission's Terms of reference are 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 consultation questions are
The open court principle and its exceptions
Q 2.1: Statutory requirements to hold proceedings in private
(1) Are the current laws that require certain proceedings to be closed to the public appropriate? Why or why not? (2) What changes, if any, should be made to these laws? (3) Are the current statutory exceptions to the requirement to hold proceedings in private appropriate? Why or why not? (4) Should there be standard exceptions that apply in all (or most) circumstances? If so, what should they be, and in what circumstances should they apply?
Q 2.2: Statutory powers to hold proceedings in private
(1) Are the existing laws that give courts discretionary powers to make exclusion orders appropriate? Why or why not? (2) What changes, if any, should be made to these existing laws? (3) Should there be standard grounds that need to be satisfied before a court can make a discretionary exclusion order in all (or most) circumstances? If so, what should they be and in what circumstances should they apply? (4) Should there be standard procedures by which an exclusion order could be made in all (or most) circumstances? If so, what should they be and in what circumstances should they apply? (5) Should there be a standard offence for breaching an exclusion order in most (or all) circumstances? If so: (a) what should be the elements of the offence and in what circumstances should it apply, and (b) what should be the penalty?
Non-disclosure and suppression: statutory prohibitions
Q 3.1: Statutory prohibitions on publishing or disclosing certain information As a matter of principle, should there ever be automatic statutory prohibitions on publishing or disclosing certain information? Why or why not?
Q 3.2: Current statutory prohibitions on publishing or disclosing information (1) Are the current statutory prohibitions on publishing or disclosing certain information appropriate? Why or why not? (2) What changes, if any, should be made to the current statutory prohibitions?
Q 3.3: Additional statutory prohibitions that may be needed What further information, if any, should be protected by automatic statutory prohibitions on publication or disclosure?
Q 3.4: Types of action a statute may prohibit
(1) Is the existing variety of types of action that a statute may prohibit justified? Why or why not? (2) What changes, if any, should be made? (3) Should a standard provision setting out the types of action that a statute may prohibit be developed? If so: (a) what should the provision say (b) how should key terms be defined, and (b) when should it apply?
Q 3.5: Duration of the statutory prohibition
(1) Should the statutory prohibitions on publishing or disclosing certain information always specify the duration of the prohibition? Why or why not? (2) What changes, if any, should be made to the existing duration provisions attached to statutory prohibitions on publishing or disclosing information? (3) What prohibitions, if any, should include a duration provision that do not already? What should these duration provisions say?
Q 3.6: Application of the statutory prohibition to related proceedings
In what circumstances, if any, should statutory prohibitions that protect the identities of people involved in proceedings apply in appeal or other related proceedings?
3.7: When publication or disclosure of information should be permitted
(1) Are the existing Q exceptions attached to statutory prohibitions on publishing or disclosing information appropriate? Why or why not? (2) What changes, if any, should be made to the existing exceptions? (3) What prohibitions, if any, should include exceptions that do not already? What should these be? (4) Should standard exceptions apply to all (or most) statutory prohibitions on publishing or disclosing information? If so, what should they be and in what circumstances should they apply? (5) Where exceptions allow a court to permit disclosure of protected information, what criteria, if any, should guide that court?
Non-disclosure and suppression: discretionary orders
Q 4.1: Actions targeted by an order
(1) Are the existing definitions of “suppression order” and “non-publication order” in the Court Suppression and Non-publication Orders Act 2010 (NSW) appropriate? Why or why not? (2) What changes, if any, should be made to these definitions? (3) What other statutes should these definitions (with or without amendment) apply to? (4) What other changes (if any) should be made to these statutes in relation to the types of action an order may prevent?
Q 4.2: Types of information that may be subject to an order
(1) Are the current provisions that identify the types of information that may be the subject of a suppression or non-publication order, adequate? Why or why not? (2) What changes, if any, should be made to these provisions?
Q 4.3: Consent to publication or disclosure
What provision, if any, should be made about making an order where a person consents to the publication of information that would reveal their identity?
Q 4.4: Limits to orders
(1) Are the existing provisions relating to the scope of suppression and non-publication orders appropriate? Why or why not? (2) What changes, if any, should be made to existing provisions in relation to: (a) the exceptions and conditions that apply (b) the geographic limits of such orders (c) the duration of such orders, and (d) any other aspects of the scope of such orders?
Q 4.5: Service and notice requirements
(1) Are the existing procedures (under the Court Suppression and Non-publication Orders Act 2010 (NSW), or any other statute) for making suppression and non-publication orders adequate? Why or why not? (2) What changes, if any, should be made to existing procedures in relation to: (a) who may make an application for an order (b) when an order can be made (c) who can appear and be heard in an application for an order (d) the service and notice requirements for an order, or (e) any other matter?
Q 4.6: Costs in proceedings for orders
What provision, if any, should be made for cost orders in relation to applications for suppression or non-publication orders?
Q 4.7: The public interest in open justice
(1) Does the Court Suppression and Non-publication Orders Act 2010 (NSW) deal with the consideration of the public interest in open justice appropriately? Why or why not? (2) What changes, if any, should be made to the existing provision? (3) What provision, if any, should be made in other statutes that grant power to make suppression or non-publication orders for recognising the public interest in open justice? (4) What other considerations should be taken into account before an order is made?
Q 4.8: The “necessary” test for making orders
(1) What changes, if any, should be made to the “necessary” test? (2) Should a definition of “necessary” be included in the Court Suppression and Non-publication Act 2010 (NSW) or any other statute? If so, what should it be?
Q 4.9: Grounds for making orders
(1) Are the grounds for making suppression and non-publication orders under the Court Suppression and Non-publication Act 2010 (NSW) and other NSW statutes appropriate? Why or why not? (2) What changes, if any, should be made to them?
Q 4.10: A requirement to give reasons
(1) Should courts be required to give reasons for a decision to make or refuse to make a suppression or non-publication order in some or all circumstances? Why or why not? In what circumstances should this requirement apply? (2) If there was to be a requirement, how should it be expressed?
Q 4.11: Interim orders
(1) Is the current provision in the Court Suppression and Non-publication Orders Act 2010 (NSW) for interim orders appropriate and effective? Why or why not? (2) What changes, if any, should be made to the existing provision? (3) What provision, if any, should be made for interim orders in other statutes that grant powers to make suppression or non-publication orders?
Q 4.12: Review and appeal of orders (1) Are the existing provisions relating to the review and appeal of suppression and non-publication orders appropriate? Why or why not? (2) What changes, if any, should be made to these provisions? (3) To what extent should review and appeal provisions be available for suppression and non-publication orders that are not covered by the Court Suppression and Non-publication Orders Act 2010 (NSW)?
Q 4.13: Framing effective orders
How could the Court Suppression and Non-publication Orders Act 2010 (NSW) provisions be amended to assist courts in framing more effective orders?
Q 4.14: Interaction between the Court Suppression and Non-publication Orders Act 2010 (NSW) and other statutes
(1) Should the Court Suppression and Non-publication Orders Act 2010 (NSW) only apply to situations that are not subject to other automatic prohibitions or provisions that allow suppression and non-publication orders to be made? Why or why not? (2) Which provisions for suppression and non-publication, if any, should be consolidated or standardised?
Monitoring and enforcing prohibitions on publication and disclosure
Q 5.1: Sources of sanctions for breaches of prohibitions
(1) Is the current regime, in which some breaches of prohibitions on publication or disclosure of information are enforced through statutory offences and others are enforced by contempt proceedings, satisfactory? Why or why not? (2) What changes, if any, should be made to the existing arrangements? To what extent should there be greater consistency in the statutory offences? (3) In particular, what changes, if any, should be made in relation to: (a) a mental element for any offence (b) the definition of terms used for publication or disclosure (c) exceptions to any of the statutory offences, or (d) the current maximum penalties for any statutory offences? (4) What changes, if any, should be made to the current arrangements for enforcing contempt of court in relation to breaches of prohibitions on publication or disclosure?
Q 5.2: Monitoring prohibitions on publication and disclosure
(1) How should prohibitions on publication and disclosure of information be monitored? (2) Is public transparency about the number of people who are proceeded against for offences involving breaches of the prohibitions necessary or desirable? Why or why not? How could public transparency about these numbers be improved?
Q 5.3: Enforcing prohibitions on publication and disclosure
(1) Are the existing arrangements for managing breaches of prohibitions on publication and disclosure of information effective? Why or why not? (2) If not, what changes should be made?
Q 5.4: Challenges in enforcing prohibitions on publication or disclosure
(1) What changes, if any, could make it easier for justice agencies to identify and prosecute people who breach prohibitions on publication or disclosure of information? (2) Should there be a scheme for mutual recognition and enforcement of suppression and non-publication orders across Australia? If so, what would the scheme entail? (3) How should the law and/or justice agencies deal with situations where prohibitions on the publication or disclosure of information under NSW law are breached outside Australia? (4) Should the time limits for enforcing the statutory offences considered in this Chapter be extended? Why or why not?
Access to information
Q 6.1: Consolidation of the court information access regimes in NSW
(1) Should the regimes governing access to court information be consolidated? Why or why not? (2) If so, how should the regimes be consolidated? (3) What principles and rules should underpin a consolidated regime?
Q 6.2: Discretion to permit or deny access to information
(1) In what circumstances, if any, should courts have discretion to permit or deny access to court information? (2) In what circumstances, if any, should information be available as of right?
Q 6.3: Considerations in determining access requests
(1) What, if any, standard considerations or principles should all (or most) courts apply when determining an access request? (2) Are there any circumstances that would warrant different considerations to the standard considerations being applied? If so: (a) what circumstances, and (b) what should the considerations be?
Q 6.4: Types of court information available for access
(1) What types of court information should be available for access? (2) Should different access rules apply to different types of information?
Q 6.5: Prohibiting access to court information Should access to court information be prohibited in certain circumstances? If so, when?
Q 6.6: Who can access court information?
Who should be able to access what types of court information and on what conditions?
Q 6.7: Privacy protections for personal information
How should the privacy of personal identification information contained in court information be protected?
Q 6.8: Applying for access to court information
(1) What procedures, if any, should apply when a person seeks access to court information? (2) What guidance, if any, should be given in relation to these procedures?
Q 6.9: How access to court information should be provided
(1) By what methods should courts provide a person with access to court information? (2) Should the available methods be different depending on the applicant and the situation? If so, how?
Q 6.10: Fees for accessing information
(1) In what circumstances should a person be charged a fee to access court information? (2) In what circumstances should any fees for accessing information be waived or reduced?
Q 6.11: A national access regime
Should there be a national regime governing access to documents? Why or why not?
Q 6.12: Public availability of judgments and decisions
How could NSW courts and tribunals improve access to judgments and decisions?
Protections for children and young people
Q 7.1: Criminal proceedings – prohibition on the publication and disclosure of identifying information
(1) Should there continue to be a general prohibition on publishing or broadcasting the identities of children involved in criminal proceedings in NSW? Why or why not? (2) What changes, if any, should be made to the existing prohibition and the exceptions to it?
Q 7.2: Criminal proceedings – closed court orders (1) Should criminal proceedings involving children continue to be held in closed court as a rule? Why or why not? (2) Are the current exceptions to the rule appropriate? If not, what changes should be made?
Q 7.3: Criminal diversion processes
(1) Is the prohibition on publishing or broadcasting the identities of young offenders who take part in criminal diversion processes appropriate? Why or why not? (2) What changes, if any, should be made to the existing prohibition?
Q 7.4: Proceedings for apprehended domestic violence orders
(1) Is the prohibition on publishing the identities of children involved in apprehended domestic violence order proceedings appropriate? Why or why not? (2) What changes, if any, should be made to the existing prohibition?
Q 7.5: Care and protection proceedings – prohibition on the publication and disclosure of identifying information
(1) Is the prohibition on publishing or broadcasting the identities of children involved in care and protection proceedings appropriate? Why or why not? (2) What changes, if any, should be made to the existing prohibition and exceptions?
Q 7.6: Care and protection proceedings – closed court orders
(1) Are the existing provisions relating to the exclusion of people (including the child or young person themselves) from court and non-court proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) appropriate? Why, or why not? (2) What changes, if any, should be made to these provisions?
Q 7.7: Adoption proceedings
(1) Should there continue to be restrictions on the publication or disclosure of material that identifies people involved in adoption proceedings? Why, or why not? (2) What changes, if any, should be made to the existing restrictions and exceptions? (3) Should adoption proceedings continue to be held in closed court? Why, or why not? (4) What changes, if any, should be made to the existing closed court provisions?
Q 7.8: Parentage and surrogacy proceedings
(1) Should there continue to be prohibitions on the publication or disclosure of material relating to parentage and surrogacy proceedings? Why or why not? (2) What changes should be made to the existing restrictions? (3) Should parentage and surrogacy proceedings continue to be held in closed court? Why or why not? (4) What changes, if any, should be made to the existing closed court provisions?
Q 7.9: Other proceedings
What further protections, if any, should there be against the publication and disclosure of, or public access to, types of legal proceedings involving children other than those to which protections already apply?
Victims and witnesses: privacy protections and access to information
Q 8.1: General protections for victims and witnesses (1) Are the general privacy protections for victims and witnesses in NSW appropriate? Why or why not? (2) What changes, if any, should be made?
Q 8.2: Current protections for specific types of victims and witnesses
(1) Are the privacy protections for specific types of victims and witnesses in NSW appropriate? Why or why not? (2) What changes, if any, should be made?
Q 8.3: Protections for other types of victims and witnesses
What privacy protections, if any, are needed for other types of victims and witnesses?
Q 8.4: Access to court information by victims
(1) Are the current arrangements governing access to court information by victims appropriate? Why or why not? (2) What changes, if any, should be made?
Protections for sexual offence complainants
Q 9.1: The prohibition on publishing the identities of sexual offence complainants
(1) Is the prohibition on publishing the identities of complainants in sexual offence proceedings and the exceptions to the prohibition appropriate? Why or why not? (2) What changes, if any, should be made?
Q 9.2: Closing courts during sexual offence proceedings
(1) Are the situations in which courts may be closed during sexual offence proceedings appropriate? Why or why not? (2) What changes, if any, should be made?
Media access to information
Q 10.1: Media access to court information in NSW
(1) Are the current arrangements for the media to access court information in relation to both civil and criminal proceedings appropriate? Why or why not? (2) Should the media have special privileges to access court information in relation to civil and/or criminal proceedings? Why or why not? (3) What changes, if any, should be made to the current arrangements, including in relation to: (a) the nature of the access provided (b) the types of documents that may be accessed (c) time limits on access, and (d) application procedures?
Q 10.2: Media access to court proceedings
(1) Is the current regime governing media access to proceedings appropriate and workable? Why or why not? (2) What changes, if any, should be made to the current regime, including in relation to: (a) prescribed sexual offence proceedings (b) proceedings involving children (c) accessing “virtual courtrooms”, and (d) orders excluding people under the Court Security Act 2005 (NSW)?
Q 10.3: Broadcasting court proceedings
(1) Are the rules that apply to media recording and broadcasting of court proceedings appropriate? Why or why not? (2) What changes, if any, should be made?
Q 10.4: Impact of publication restrictions on the media
(1) Are the laws that restrict the media from publishing or broadcasting information relating to court proceedings appropriate? Why or why not? (2) What changes, if any, should be made? (3) In relation to suppression and non-publication orders: (a) are the interests of the media adequately reflected in the grounds for making such orders? (b) is the list of people with standing to be heard in applications for suppression or non-publication orders appropriate? (c) are the current arrangements for communicating the existence of suppression and non-publication orders adequate? (4) What changes, if any, should be made to the laws and procedures relating to the media and suppression and non-publication orders?
Q 10.5: Contemporary media
(1) Are the current definitions and use of the terms “media” and “news media organisation” appropriate? Why or why not? (2) What changes, if any, should be made to these terms and their definitions? (3) How else could members of the media be identified for the purposes of the laws dealing with media access to court information and proceedings?
Researcher access to information
Q 11.1: Researcher access to information
(1) What changes, if any, should be made to the existing arrangements for providing researchers with access to court information? (2) In particular, what changes, if any, should be made in relation to: (a) a centralised scheme for giving researchers access to court information, including a research committee (b) the kinds of researchers who should be able to access court information (c) the kinds of research that court information should be available for (d) the other considerations that may be relevant to granting a researcher access to court information (e) the type of court information researchers should be able to access (f) the types of conditions that should be placed on researchers who are given access to court information (g) applicable fees and arrangements for fee waiver (h) access to archived court records, and (i) requests to collate data and/or statistics?
Digital technology and open justice
Q 12.1: Online courts
If virtual courtrooms are to be available, what provision, if any, should be made to ensure that: (a) open justice principles are given effect to, where possible, and (b) risks of prohibited disclosure or publication are managed effectively?
Q 12.2: Electronic access to court information
(1) What arrangements, if any, should be made for electronic access to court information? (2) In particular, what should the arrangements be in relation to: (a) the type of information that can be accessed (b) who can access the information, and (c) any necessary protections against unauthorised disclosure or publication of such information?
Q 12.3: Suppression and non-publication orders in the digital environment
(1) What, if anything, can be done to deal with situations where suppression and non-publication orders under NSW law are breached outside Australia? (2) In particular, what, if anything can be done to minimise the risk of offending content affecting the fairness of a trial?
Q 12.4: Tweeting and posting in court
(1) Are current provisions regulating use of social media by the media and public in court adequate? Why or why not? (2) What changes, if any, should be made to the existing provisions?
Other proposals for change
Q 13.1: A register of orders
(1) Should there be a publicly accessible register of suppression and non-publication orders made by NSW courts? Why or why not? (2) If so: (a) who should be able to access the register, (b) what details should be included in the register, and (c) who should build and maintain the register?
Q 13.2: An open justice advocate
(1) Is there a need for an advocate to appear and be heard in applications for suppression and non-publication orders? Why or why not? (2) If so, what responsibilities should the advocate have?
Q 13.3: Education initiatives
(1) What education initiatives could be implemented to improve people’s understanding of open justice and associated restrictions? (2) Who should be responsible for delivering those initiatives?
Q 13.4: Other ways to avoid juror prejudice
(1) Could the juror oath and affirmation be amended to better ensure jurors appreciate, and take seriously, the obligation not to seek or rely on potentially prejudicial information? If so, how could they be improved? (2) Is the current Jury Act 1977 (NSW) offence of making inquiries effective? If not, how could it be improved? (3) Are the current jury directions about avoiding media publicity and making inquiries about the case appropriate? If not, what reforms are required? (4) Could improving the way that juror questions are managed better ensure jurors do not conduct their own inquires? If so, what improvements could be made? (5) Could more educational guidance be provided to jurors about avoiding media publicity and making inquiries prior to the trial? If so, what should this guidance say? (6) Could pre-trial questioning of jurors be used more effectively to determine which potential jurors have been exposed to prejudicial information? If so, how? (7) Should NSW adopt the Queensland approach of allowing judge alone trials where there has been significant pre-trial publicity that may affect jury deliberations? Why or why not? (8) Are there any other ways in which current law or practice can be improved to prevent jurors from being influenced by potentially prejudicial information?
