Open justice

10.43   Open justice is one of the fundamental attributes of a fair trial.[55] That the administration of justice must take place in open court is a ‘fundamental rule of the common law’.[56] The High Court has said that ‘the rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances’.[57]

10.44   In Russell v Russell, Gibbs J said that it is the ‘ordinary rule’ of courts of Australia that their proceedings shall be conducted ‘publicly and in open view’; without public scrutiny, ‘abuses may flourish undetected’. Gibbs J went on to say:

Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’. To require a court invariably to sit in closed court is to alter the nature of the court.[58]

10.45   The principle of open justice finds some protection in the principle of legality. French CJ has said that ‘a statute which affects the open-court principle, even on a discretionary basis, should generally be construed, where constructional choices are open, so as to minimise its intrusion upon that principle’.[59]

10.46   Jason Bosland and Ashleigh Bagnall have written that this ‘longstanding common law principle manifests itself in three substantive ways’:

[F]irst, proceedings are conducted in ‘open court’; second, information and evidence presented in court is communicated publicly to those present in the court; and, third, nothing is to be done to discourage the making of fair and accurate reports of judicial proceedings conducted in open court, including by the media. This includes reporting the names of the parties as well as the evidence given during the course of proceedings.[60]

10.47   That the media is entitled to report on court proceedings is ‘a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings’.[61]

Common law limitations

10.48   The principle of open justice is not absolute, and limits on the open justice principle have long been recognised by the common law, particularly where it is ‘necessary to secure the proper administration of justice’ or where otherwise it is in the public interest.[62]

10.49   Open justice may be limited where proceedings are conducted in camera (the media and the public are not permitted in court); where the court orders that certain information be concealed from those present in court; where the court orders that a person be identified in court by a pseudonym; or where the court prohibits the publication of reports of the proceedings.[63]

10.50   In Russell v Russell, Gibbs J said that there are ‘established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of such exceptions is not closed to the Parliament’.[64] His Honour went on to say that ‘the need to maintain secrecy or confidentiality, or the interests of privacy or delicacy, may in some cases be thought to render it desirable for a matter, or part of it, to be held in closed court’.[65]

10.51   The common law has recognised a number of cases in which the principle of open justice may be limited in some circumstances, for example, to protect:

  • secret technical processes;

  • an anticipated breach of confidence;

  • the name of a blackmailer’s victim;

  • the name of a police informant or the identity of an undercover police officer; and

  • national security.[66]

10.52   French CJ said that the categories of case are not closed, but they ‘will not lightly be extended’.[67]

10.53   In John Fairfax Group v Local Court of New South Wales, Kirby P discussed some of the justifications for common law limits on the principle of open justice:

Exceptions have been allowed by the common law to protect police informers; blackmail cases; and cases involving national security. The common justification for these special exceptions is a reminder that the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourages its attainment in cases generally (as by frightening off blackmail victims or informers) or would derogate from even more urgent considerations of public interest (as by endangering national security) the rule of openness must be modified to meet the exigencies of a particular case.[68]

10.54   Similar exceptions are provided for in international law. Article 14(1) of the ICCPR provides, in part:

The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

Statutes that limit open justice

10.55   Among other common law powers to limit open justice, courts may in some circumstances conduct proceedings in camera and make suppression orders.[69] Such powers are also provided for in Commonwealth statutes. There are a range of such laws, including those that concern:

  • the general powers of the courts;

  • national security; and

  • witness protection.

General powers of courts

10.56   Federal courts have express statutory powers to make suppression orders and non-publication orders.[70] The Federal Court of Australia Act (Cth) s 37AE, for example, provides that ‘in deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice’.[71]

10.57   Section 37AG sets out the grounds for making a suppression or non-publication order:

(a)     the order is necessary to prevent prejudice to the proper administration of justice;

(b)     the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c)     the order is necessary to protect the safety of any person;

(d)     the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).[72]

10.58   These grounds are reflected in other statutes, discussed below, that concern limits on open justice.

10.59   Under the Federal Court of Australia Act 1976 (Cth) s 17(4), the Federal Court may exclude members of the public where it is ‘satisfied that the presence of the public ... would be contrary to the interests of justice’.

10.60   These provisions will have a relatively limited effect on criminal trials, given that criminal trials are rarely heard in federal courts, although in 2009 the Federal Court was given jurisdiction to deal with indictable cartel offences.[73]

National security

10.61   A number of provisions limit open justice for national security. For example, the Criminal Code provides that a court may exclude the public from a hearing or make a suppression order, if it is ‘satisfied that it is in the interest of the security or defence of the Commonwealth’.[74]

10.62   Similar provisions appear in the Crimes Act 1914 (Cth) s 85B and the Defence (Special Undertakings) Act 1952 s 31(1), although the relevant proviso reads: if ‘satisfied that such a course is expedient in the interest of the defence of the Commonwealth’.[75]

10.63   In making orders under these provisions, courts may consider the principles of open justice and the need to provide a fair trial.[76] In R v Lodhi, McClellan CJ said:

Neither the Crimes Act or the Criminal Code expressly acknowledges the principle of open justice or a fair trial. However, by the use of the word ‘may’ the Court is given a discretion as to whether to make an order. Accordingly, the Court must determine whether the relevant interest of the security of the Commonwealth is present and, after considering the principle of open justice and the objective of providing the accused with a fair trial, determine whether, balancing all of these matters, protective orders should be made.[77]

10.64   Under the Service and Execution of Process Act 1992 (Cth) s 127(4), a court may direct that a proceeding to which the section applies, which concerns matters of state, is to be held in camera. Suppression orders can be made under s 96.

10.65   The Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth) s 40 concerns closing courts and making suppression orders and other orders when the court is satisfied that it would be expedient to prevent the disclosure of information related to nuclear weapons and other such material.

10.66   The National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act) aims to prevent the disclosure of information in federal criminal and civil proceedings where the disclosure is likely to prejudice national security.[78] Among other things, it provides that courts must, in some circumstances, consider closing the court to the public, where national security information may be disclosed.[79]

10.67   Decisions about whether certain sensitive information will be admitted as evidence may also be decided in a closed hearing—without the defendant and their lawyer, if the lawyer does not have an appropriate security clearance.[80]

10.68   In deciding to make certain orders, the courts must consider whether there would be a risk of prejudice to national security and whether the order would have ‘a substantial adverse effect on the defendant’s right to receive a fair hearing, including in particular on the conduct of his or her defence’. Section 31(8) provides that the court ‘must give greatest weight’ to the question of national security.[81] However, in R v Lodhi, Whealy J said that this:

does no more than to give the Court guidance as to the comparative weight it is to give one factor when considering it alongside a number of others. Yet the discretion remains intact ... The legislation does not intrude upon the customary vigilance of the trial judge in a criminal trial. One of the court’s tasks is to ensure that the accused is not dealt with unfairly. This has extended traditionally into the area of public interest immunity claims. I see no reason why the same degree of vigilance, perhaps even at a higher level, would not apply to the Court’s scrutiny of the Attorney’s certificate in a s 31 hearing.[82]

10.69   On appeal, in Lodhi v R, Spigelman CJ said:

This tilting or ‘thumb on the scales’ approach to a balancing exercise does not involve the formulation of a rule which determines the outcome in the process. Although the provision of guidance, or an indication of weight, will affect the balancing exercise, it does not change the nature of the exercise.[83]

10.70   The Independent National Security Legislation Monitor (INSLM) discussed s 31(8) and its judicial interpretation and suggested it nevertheless be repealed.[84] While it has ‘survived constitutional challenge, if its tilting or placing a thumb on the scales produces no perceptible benefit in the public interest, it would be better if it were omitted altogether’.[85]

10.71   The protection of national security information in criminal proceedings was the subject of the ALRC’s 2004 report, Keeping Secrets: The Protection of Classified and Security Sensitive Information.[86]

Witness protection

10.72   The other major ground for limiting open justice is to protect certain witnesses, particularly children and other vulnerable witnesses.

10.73   In the Federal Court, all witnesses in ‘indictable primary proceedings’ may be protected (ie not limited to those in a criminal proceeding involving a sexual offence). Under the Federal Court Act s 23HC(1)(a), the Court may make such orders as it thinks appropriate in the circumstances to protect witnesses.[87] However, although the Federal Court has been given jurisdiction to hear indictable cartel offences,[88] criminal trials are otherwise rarely heard in federal courts.

10.74   Under the Witness Protection Act 1994 (Cth) s 28, courts must hold certain parts of proceedings in private and make suppression orders when required to protect people in the National Witness Protection Program. However, it will not make such orders if ‘it considers that it is not in the interests of justice’.[89]

10.75   Similarly, law enforcement operatives are given some protection under the Crimes Act s 15MK(1), which permits a court to make orders suppressing information if it ‘considers it necessary or desirable to protect the identity of the operative for whom [a witness identity protection certificate] is given or to prevent disclosure of where the operative lives’.

10.76   The courts may exclude members of the public from a proceeding where a vulnerable witness is giving evidence under the Crimes Act s 15YP. Depending on the proceedings, this may include children (for sexual and child pornography offences) and all people for slavery, slavery-like and human trafficking offences.[90]

10.77   The court may also make such orders for a ‘special witness’. The ‘court may declare a person to be a special witness ... if satisfied that the person is unlikely to be able to satisfactorily give evidence in the ordinary manner because of: (a) a disability; or (b) intimidation, distress or emotional trauma arising from: (i) the person’s age, cultural background or relationship to a party to the proceeding; or (ii) the nature of the evidence; or (iii) some other relevant factor’.[91]

10.78   It is an offence under the Crimes Act s 15YR(1) to publish, without leave, information which identifies certain children and vulnerable adults or ‘is likely to lead to the vulnerable person being identified’.

Other laws

10.79   Other Commonwealth statutes that may limit open justice, but not in the context of criminal trials, include:

  • Family Law Act 1975 (Cth) s 121—offence to publish an account of proceedings under the Act that identifies a party to the proceedings or a witness or certain others;

  • Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)—court can order that proceedings occur in camera if it is in the interests of justice and the interests of ‘Aboriginal tradition’;[92]

  • Migration Act 1958 (Cth) s 91X—the names of applicants for protection visas not to be published by federal courts;

  • Child Support (Registration and Collection) Act 1988 (Cth) s 110X provides for an offence of publishing an account of proceedings, under certain parts of the Act, that identifies a party to the proceedings or a witness or certain others;

  • Administrative Appeals Tribunal Act 1975 (Cth) ss 35(2), 35AA;

  • Australian Crime Commission Act 2002 (Cth) ss 25A(9), 29B;

  • Law Enforcement Integrity Commissioner Act 2006 (Cth) ss 90, 92.

10.80   This chapter focuses on criminal trials, but laws that limit open justice and other fair trial rights in civil trials also warrant careful justification.

[55]         Open justice is ‘a fundamental aspect of the common law and the administration of justice and is seen as concomitant with the right to a fair trial’: Jason Bosland and Ashleigh Bagnall, ‘An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008-12’ (2013) 35 Sydney Law Review 674.

[56]         John Fairfax & Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465, [476]–[477] (McHugh JA, Glass JA agreeing).

[57]         Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378, [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ).

[58]         Russell v Russell (1976) 134 CLR 495, 520. French CJ has said that this principle ‘is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute.’: Hogan v Hinch (2011) 243 CLR 506, [20].

[59]         Hogan v Hinch (2011) 243 CLR 506, [27] (French CJ).

[60]         Bosland and Bagnall, above n 55, 674.

[61]         John Fairfax Publications v District Court of NSW (2004) 61 NSWLR 344, [18]–[21] (citations omitted).

[62]         ‘It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court’s inherent jurisdiction or an inferior court’s implied powers. This may be done where it is necessary to secure the proper administration of justice’: Hogan v Hinch (2011) 243 CLR 506, [21] (French CJ). ‘A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule’: John Fairfax & Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465, [476]–[477] (McHugh JA, Glass JA agreeing).

[63]         Bosland and Bagnall, above n 55, 674.

[64]         Russell v Russell (1976) 134 CLR 495, 520.

[65]         Ibid 520 [8].

[66]         These examples are taken from Hogan v Hinch (2011) 243 CLR 506, [21] (French CJ) (citations omitted). Concerning national security, French CJ said: ‘Where “exceptional and compelling considerations going to national security” require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified’: Ibid [21].

[67]         Hogan v Hinch (2011) 243 CLR 506, [21].

[68]         John Fairfax Group v Local Court of NSW (1991) 36 NSWLR 131, 141 (citations omitted).

[69]         ‘It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court’s inherent jurisdiction or an inferior court’s implied powers’: Hogan v Hinch (2011) 243 CLR 506, [21] and cases cited there. ‘The federal courts also have such implied powers as are incidental and necessary to exercise the jurisdiction or express powers conferred on them by statute: DJL v The Central Authority (2000) 201 CLR 226, 240–1. The Federal Court has held that it has power to make suppression orders as a result of these implied powers, including in relation to documents filed with the Court (Central Equity Ltd v Chua [1999] FCA 1067): Explanatory Memorandum, Access to Justice (Federal Jurisdiction) Amendment Bill 2011 (Cth).

[70]         Eg, Federal Court of Australia Act 1976 (Cth) ss 37AE–37AL. Model statutory provisions on suppression and non-publication orders were endorsed by Commonwealth, state and territory Attorneys-General in 2010. These were implemented in the High Court, Federal Court, Family Court of Australia and the Federal Magistrates Court and other courts exercising jurisdiction under the Family Law Act 1975 (Cth) by amendments made by the Access to Justice (Federal Jurisdiction) Amendment Act 2011 (Cth). NSW and Victoria have also implemented the model provisions.

[71]         Ibid s 37AE.

[72]         Ibid s 37AG(1). The Explanatory Memorandum for the relevant Bill said the amendments were designed to ‘ensure that suppression and non-publication orders are made only where necessary on the grounds set out in the Bill, taking into account the public interest in open justice, and in terms that clearly define their scope and timing’: Explanatory Memorandum, Access to Justice (Federal Jurisdiction) Amendment Bill 2011 (Cth).

[73]         See Competition and Consumer Act 2010 (Cth) s 163.

[74]         Criminal Code Act 1995 (Cth) sch 1 s 93.2(1) (Criminal Code). ‘At any time before or during the hearing, the judge or magistrate, or other person presiding or competent to preside over the proceedings, may, if satisfied that it is in the interest of the security or defence of the Commonwealth: (a) order that some or all of the members of the public be excluded during the whole or a part of the hearing; or (b) order that no report of the whole or a specified part of, or relating to, the application or proceedings be published; or (c) make such order and give such directions as he or she thinks necessary for ensuring that no person, without the approval of the court, has access (whether before, during or after the hearing) to any affidavit, exhibit, information or other document used in the application or the proceedings that is on the file in the court or in the records of the court.’

[75]         Emphasis added.

[76]         Lodhi v R (2006) 65 NSWLR 573; R v  Benbrika (Ruling No 1) [2007] VSC 141 (21 March 2007).

[77]         Lodhi v R (2006) 65 NSWLR 573, 584 [27] (McClellan CJ at CL).

[78]         National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) s 3.

[79]         Ibid s 31.

[80]         Ibid s 29(3).

[81]         Ibid s 31(7)(8). There are also related provisions for civil proceedings in Pt 3A of the Act.

[82]         R v Lodhi [2006] NSWSC 571, [108]. The reasoning of Whealy J in this case was upheld in the NSW Court of Criminal Appeal: see Lodhi v R (2006) 65 NSWLR 573, [36].

[83]         Lodhi v R (2006) 65 NSWLR 573, [45].

[84]         Independent National Security Legislation Monitor, Australian Government, Annual Report (2013) 139.

[85]         Ibid.

[86]         Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information, Final Report No 98 (2004).

[87]         This protection can also be made in relation to ‘information, documents and other things admitted or proposed to be admitted’: Federal Court of Australia Act 1976 (Cth) s 23HC(1)(b).

[88]         See Competition and Consumer Act 2010 (Cth) s 163.

[89]         Witness Protection Act 1994 (Cth) s 28A(1).

[90]         Crimes Act 1914 (Cth) s 15Y.

[91]         Ibid s 15YAB(1).

[92]         Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s 27.