Open Justice: Concepts and Judicial Approaches

AuthorEmma Cunliffe
DOI10.22145/flr.40.3.4
Published date01 September 2012
Date01 September 2012
Subject MatterArticle
OPEN JUSTICE: CONCEPTS AND JUDICIAL
APPROACHES
Emma Cunliffe*
ABSTRACT
Recent years have seen an increase in the number and scope of non-publication orders
and other li mits on open justice, an increase in the number of statutes that regulate or
threaten open justice and the articulation of an Australian constitutional principle (of
institutional integrity) that has the potential to protect some aspects of open justice.
The purposes and values of open justice are, however, rarely examined in a
comprehensive or theoretically-informed manner. This article provides a theory of
open justice which accounts for it s heterogeneous nature. Australian judicial
approaches to the sub stance, limits a nd constitutional dimensions of open justice are
analysed in light of the purposes and va lues of open justice, and a comparison with the
much more coherent Canadian approach is supplied. The author concludes that threats
to open justice are best managed by an analytical framework which systematically
identifies both the benefits of open justice and the countervailing values that are at
stake in a given case, and which see ks to provide maximum pr otection to all of these
values on a case-by-case basis.
I INTRODUCTION
This article considers the common law concept of 'open justice', and explores how
Australian and Canadian courts have approached the requirements of open justice.
The principles
1
that information about court proceedings should be widely accessible
and may be subject to discussion and critical comment (ref erred to in this article as the
principles of open justice) are important ingredients of the rule of law and
fundamental to democratic governance. Accessibility of information about courts and
their activities is a necessary correlate to the principle that it should be possible to
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* BA, LL B (UMelb), LLM, PhD (UBC). Assistant Professor, University of British Columbia
Faculty of Law. The research that forms the basis for this article was funded in part by a
grant supplied by the Canadian Social Sciences and Humanities Research Council. I am
very grateful to the anonymous reviewer, Benjamin Goold and Susan Boyd for constructive
comments on earlier versions of this manuscript and to the editors of the Federal Law Review
for their assistance. Any errors which remain are my own. Correspondence:
cunliffe@law.ubc.ca.
1
Section 2 of this article explains why, properly understood, there are multiple principles of
open justice.
386 Federal Law Review Volume 40
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know the law, and helps safegua rd the principle that citizens should be equally subject
to law.
My interest in open justice was first piqued by difficulties experienced in obtaining
court records to research how well courts manage expert testimony in Australian
criminal trials. Th is context offers an a lternative perspective on the prevailing concern
that open justice facilitates sensationalism or idle curiosity about court proceedings.
Appeals to open justice are most often associated with media pressure to be permitted
to report more (and more sensational) information about particular cases. It is
relatively easy to point to examples of media coverage that illustrate the dangers of the
open court principle.
2
Nonetheless, it is an important goal for a rational, justice-
focused legal syste m to maximise the benefits of open justice while minimising the
potential harms of access to information. Facilitating careful study of, and informed
debate about, court proceedings strengthens the quality of j udicial adjudication and
improves public confidence in court processes.
Open justice is often balanced against countervailing interests suc h as privacy
rights and national security.
3
While limits on open justice are necessary, my research
into c ontemporary court practice suggests a turn to less transparent court processes.
Some first-instance courts are adopting practices and policies that make it difficult to
obtain access to information about court pr oceedings. For examp le, the Victorian
Supreme Court routinely r eturns exhibits to filing parties so that they are not available
for examination as part of the court record; the Victorian Magistrates' Court decides
most committa l hearings on the basis of affidavits rather than testimony but restricts
access to the se affidavits; and the number of non-publication orders issued by trial
courts is increasing in several Australian jurisdictions.
4
The practices adopted in
contemporary trial courts in respect of open justice are uneven, but seem at times to
fall considerably short of the ideal that restrictions on public access to court
information should be ex ceptional and carefully delimited.
5
Judicially administered
justice, which was almost inviolably public throughout much of the 19th and 20th
centuries, threatens to become increasingly private. At the same time, senior judges in
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2
The manner in which media reported the OJ Simpson trial and the James Bulger case are
notorious examples. See Joseph Jaconelli, Open Justice: A Critique of the Public Trial (Oxford
University Press, 2002), appendix. In Australia, some aspects of the media coverage of
Lindy Chamberlain's trial provide examples of sensational reporting; but certain journalists
and newspapers consistently criticised the rush to condemn Chamberlain. See also Emma
Cunliffe, Weeping on Cue: The Socio-Legal Construction of Motherhood in the Chamberlain Case,
(LLM Thesis, University of British Columbia, unpublished, 2003).
3
See Bentham's discussion of the relationship between publicity, privacy and secrecy.
Jeremy Bentham, 'Rationale of Judicial Evidence' in John Bowring (ed), The Works of Jerem y
Bentham: Vol. VI (London, 1843) 3512.
4
See, eg, the Criminal Procedures Act 2009 (Vic) pts 4.4, 4 .7 and Ma gistrates' Court policies
promulgated under that Act; Supreme Court of British Columbia, Court Record Access Policy
(2011) <http://www.courts.gov.bc.ca/supreme_court/media/>); Prue Innes (chair), Report
of the Review of S uppression Orders and the Media's Access to Court Records and Information
(Australia's Right to Know, 13 November 2008) <http://www.australiasrighttoknow.
com.au/files/docs/Reports2008/13-Nov-2008ARTK-Report.pdf>.
5
See Innes, above n 4, ch 2; Lord Neuberger MR, Report of the Committee on Super-Injunctions:
Super-Injunctions, Anonymised Injunctions and Open Justice (Master of the Rolls, 20 May 2011)
<http://www.judiciary.govuk/media/media-releases/2011/committee-reports-findings-
super-injunctions-20052011>).

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