Open Justice: Concepts and Judicial Approaches
| Published date | 01 September 2012 |
| Date | 01 September 2012 |
| DOI | 10.22145/flr.40.3.4 |
| Subject Matter | Article |
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) 351–2.
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) >); 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)
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)
super-injunctions-20052011>).
2012 Open Justice: Concepts and Judicial Approaches 387
____________________________________________________________________________________
several jurisdiction s (including Canada, Australia, and the UK) have enlisted a range
of common law and constitutional precepts to protect open justice. The aim of this
article is to propose a conceptual framework that may help t o bring coherence to future
judicial consideration of the principles and limits of open justice, and to consider how
well this framework is reflected in Australian and Canadian approaches to open
justice.
Contemporary manifestations of the privatisation of court processes vary by
jurisdiction and context.
6
They extend well beyond the terrorism prosecutions that
have been the focus of much contemporary co mmentary on open justice and are well
documented elsewhere.
7
Given the depth and quality of existing literature, the specia l
procedures adopted for terrorism prosecutions are not a primary focus of this article.
Indeed, focusing exclusively on t he exceptional example of terrorism makes it eas ier to
overlook broader trend s that are emerging in ot her contexts. This article identifies and
analyses impulses towards privileging secrecy over openness within a variety of
juridical contexts.
Section 2 of this article offers a theoretical account of open justice. In contrast to
existing accounts, I demonstrate that 'open justice' has numerous connotations. Open
justice is therefore best described as a set of related principles, not as a single sta ndard.
Rather than having a coherent conceptual core, the idea of open j ustice gestures
towards other key democratic and rule of law values. The multivariate nature of open
justice makes it particularly susceptible to limitation in some contexts and jurisdictions.
The third section of this paper considers how open justice has been treated in
Australian case law and briefly compares that treatment with t he Canadian approach.
Having identified the common law principles that underpin the concept, section 3
demonstrates that Australia n and Canadian judges have adopted different approaches
to open justice. The differences between the approaches in these two countries are
partly attributable to Canada's constitutionalised human rights protections. However,
the Canadian trend towards protecting open justice also reflects a broader judicial
interpretation of commo n law principles. The Supreme Court of Canada has
successfully articulated an approach to open justice that balances its benefits against
the potential harms of publicity, while accounting for the variety of contexts in which
open justice principles are engaged. By contrast, Australian courts have not yet
generated a coherent arti culation of the principles of open justice, nor have they
adopted a consistent position regarding the limits of those principles. However, the
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6
'Privatisation' commonly refers to the transfer of government functions and responsibilities
to the private sector. However, it ma y also include the adoption of government practices
that shield public processes from scrutiny. The latter definition is more pertinent in this
context. Susan B Boyd, 'Challenging the Public/Private Divide: An Overview' in Susan
B Boyd (ed), Challenging the Public/Private Divide: Feminism, Law, and Public Policy
(University of Toronto Press, 1997).
7
See, eg, Kent Roach The Unique Challenges of Terrorism Prosecutions: Towards a Workable
Relation between Intelligence and Evidence (Research Studies of the Commission of Inquiry
into the Investigation of the Bombing of Air India Flight 182, Supply and Services, 2010);
Eric Metcalfe, Secret Evidence (Report, Justice, 10 June 2009)
org.uk/resources.php/33/secret-evidence>; Andrew Lynch and George Williams, What
Price Security? Taking Stock of Australia's Anti-Terror Laws (Univer sity of New South Wales
Press, 2006).
388 Federal Law Review Volume 40
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seeds of such an approach may be apparent in the contemporary jurisprude nce on the
institutional integrity of Chapter III courts.
II WHAT IS OPEN JUSTICE?
Open justice is a core principle of the com mon law.
8
In the United Kingdom and
Canada, open justice possesses constitutional status.
9
In these jurisdictions, the
constitutional principle is strengthened by human rights protections.
10
For example,
the Canadian Charter of Rights and Freedoms provides:
2. Everyone has the following fundamental freedoms: […]
(b) freedom of thought, belief, opinion and expression, including freedom of the press
and other media of communication;
[…]
7. Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.
Collectively, these provisions have been interpreted as guaranteeing a right to open
justice that may be enforced by the participants in a court process or by the public. In
Australia, as I detail in section 3, an emergent line of judicial reasoning arguably
protects some aspects of open justice as an essential aspect of the institutional integrity
of courts (in turn protected under Chapter III of the Australian Constitution). However,
the normative co ntent, applications and limits of open justice are rarely given
comprehensive attention within legal scholarship.
This section identifies a variety of practices encompassed by the term 'open justice'.
I suggest that the commonly-stated principle, or rig ht, of open justice is not a coherent
and unified concept. Rather, it may be best understood as an ensemble of practices and
defeasible presumptions. Understanding open justice as an ensemble concept has
important ramifications for the manner i n which open justice should be approached by
courts tasked with balancing competing values.
A satisfying theoretical account of 'open justice' must a ccount for three key features.
First, the purposes of open justice are multivalent, incorporating both educatio nal and
supervisory aspirations. Bentham chara cterised publicity about court processes a s a
safeguard to ensure that judges act in accordance with law, probity and evidence; as an
incentive to honest testimony; and as a mechanism by which the moral dimensions of
law could be broadly conveyed.
11
Constitutional theori es of the separation of powers
contribute a fourth purpose to Bentham's list: given the courts' role as a check on
legislative and executive power, courts are a key source of public information about
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8
Matter of an Application by Chief Commissioner of Police (Vic) (2005) 214 ALR 422; Neuberger,
above n 5.
9
10
Canadian Charter of Rights and Freedoms, Pt I of the Constitution Act 1982 being Schedule B to
the Canada Act 1982 (U.K), c.11 ss 2(b), 7; Convention for the Protection of Human Rights and
Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into
force 3 September 1953) as amended by Protocol 14 arts 6 (right to a fair and public
1.
11
Bowring, above n 3, 351–72; see also Garth Nettheim, 'The Principle of Open Justice' (1984)
8 Tasmanian Law Review 25.
2012 Open Justice: Concepts and Judicial Approaches 389
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legislative and executive activities. The second key feature is that open justice
encompasses a tremendous variety of activities. In a given context, open justice can
refer to: the principle that an interested citizen may attend court as a spectator; the
interest in promoting full, fair and accurate reporting of court proceedings; the
convention that a judge publishes reasons f or decision; the capacity to access the
textual records kept by a court; or the capacity to access documents filed but not yet
used in court. In the criminal context, open justice overlaps with the accused person's
right to know the case against him or her. A c omprehensive explanation of open justice
must account for this diversity of activities. Finally, open justice is not absolute and
will yield in some circumstances to conflicting imperatives. Although often
characterised as a right, it may be better described as a principle to be balanced against
countervailing interests.
12
Given its multiple facets, open justice is perhaps best understood not as a single
idea, but as a set of principles that mediate between courts and the public, and are
underpinned by broader va lues.
13
Specifica lly, open justice relates information about
what happe ns in courts to other aspects of democratic governance and to the rule of
law.
14
These attributes apply to all of the disparate activities termed 'open justice', and
have the potential to provide a touchstone for courts when decidin g whether to
expand or limit open justice in a particular case. In safeguarding public access to
information about courts and their activities, open justice provide s a set of principles
that facilitate other liberal democratic values — the right to kno w the law and to
understand its application, the salutary effects of permitting citizens to observe and
evaluate the operation of government, and a repugnance for arbitrary power.
However, the focus on information about court processes is a necessary but not
sufficient definition of open justice — the common law places many limits on citizens'
capacity to know about some aspects of the activities that occur in courts. The ban on
knowing the substance of jury deliberations is an obvious example. Arguably, in order
to be enlivened, an open justice principle must connect information about courts with
another aspect of democratic participation or a dimension of the rule of law.
Existing accounts of open justice tend to focus on one of its dimensions to the
partial exclusion of others. For example, Joseph Ja conelli suggests that the 'ideal of
open ju stice may be simply stated'.
15
According to Jaconelli, it is a procedural
dimension of the right to a fair trial, requiring openness in the hearing phase; it is also
a means to an end (perhaps truth or justice, although Jaconelli does not specify).
16
This
characterisation privileges the supervisory aspects of open justice — particularly as
they relate to scrutinising witnesses — a nd downplays educational and probity
dimensions. In Jaconelli's view, any educational benefits of open justice are at risk of
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12
See Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1977) 26-27; see
also John Fairfax Publications v Ryde Local Court [2005] NSWCA 101.
13
In suggesting that open justice is best understood as a set of principles, I am influenced by
Daniel Solove's argument that privacy is a set of rights united by a se ries of family
resemblances, but lacking a universal core. See Daniel Solove, 'Conceptualizing Privacy'
(2002) 90 California Law Review 1087.
14
David M Paciocco, 'When Open Courts Meet Closed Government' (2005) 29 Supreme Court
Law Review (2d) 385, 389–90.
15
Jaconelli, above n 2, 353.
16
Ibid 353–5.
390 Federal Law Review Volume 40
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being overwhelmed by sensational r eporting.
17
He is primarily interested in access to
courtrooms and the media's desire to disseminate criminal proceedings to a broader
public, including by televising trials. Accordingly, J aconelli pays less attention to
judicial reasons and court records. Within this context, he argues for ca reful limits to be
imposed on the 'trial as public spectacle'.
18
Within the US literature , open justice is often treated as promoting informed public
debate about individual and corporate behaviour. Discussion tends to focus on
whether more or less information should be publicly accessible about certain types of
cases.
19
A form of open justice principle — characterised as a citizen's right to know
and discuss the details of civil and criminal proceedings — is frequently weighed
against individual and corporate privacy interests.
20
One important site of contest is
obtaining a ccess to materials discovered by a party in civil litigation, whether or not
they are used in court.
21
This engages quite different aspects of open justice from
Jaconelli's discussion. The focus here is on the public capacity to assess activities
undertaken by corporations and individuals in non-judicial contexts that predate the
court proceeding. Court rec ords, rather than courtroo ms, are at the centre of the
debate. Finally, the con stitutional right to freedom of expression is at times enga ged to
argue for an unlimited power to obtain access to and publish court records whether or
not they have been used in open court.
22
The implication of discussions about
discovered documents tends to be that privacy interests and open justice are in tension
with one another, if not antithetical.
23
The challenge that consequently arises is finding
a proportionate course between privacy and access to public records.
The literature on terrorism and open courts establishes a reconfigured emphasis of
the various dimensions of open justice. For example, Kent Roach emphasises that open
justice protects individual citizens from the exercise of arbitrary power by the state,
secures freedom of expression and contributes to public confidence in judicial
processes.
24
Terrorism cases foreground concerns about the exercise of arbitrary state
power. They correspondingly positi on judicial probity and the truthfulness of
witnesses as subsidiary, though important, dimensions of the need to scrutinise
government processes. The practice of closing courts establishes a focus on hearings
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17
Ibid ch 9.
18
Ibid 355.
19
See, eg, Andrew D Goldstein, 'Sealing and Revea ling: Rethinking the Rules governing
Public Access to Information Generated through Litigation' (2006) 81 Chicago-Kent Law
Review 375 (and other articles in that volume of the Chicago-Kent Law Review); Arthur R
Miller 'Confidentiality, Protective Orders, and Public Access to the Courts' (1991) 105
Harvard Law Review 427.
20
Goldstein, above n 19; Miller, above n 19; Caron Myers-Morrison, 'Privacy, Accountability
and the Cooperating Defendant: Towards a New Role for Internet Access to Court Records'
(2009) 62 Vanderbilt Law Review 921 ; Peter A Winn, 'Online Court Records: Balancing
Judicial Accountability and Privacy in an Age of Electronic Information' (2004) 79
Washington Law Review 307.
21
Goldstein, above n 19; Miller, above n 19. In Australia, see Sharon Rodrick, 'Open Justice,
the Media, and Avenues of Access to Court Documents' (2006) 29 University of New South
Wales Law Journal 90.
22
See especially Myers-Morrison, above n 20; Winn, above n 20.
23
Bentham adopts a similar characterisation, Bowring, above n 3, 355.
24
Roach, above n 7, 78–9.
2012 Open Justice: Concepts and Judicial Approaches 391
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and the power to report hearings.
25
Procedures established to prevent the accuse d or
the public from knowing some ev idence challenge the capacity to gain access to and
speak about court records and the judicial practice of writing and publi shing reasons.
However, concerns about rules that limit disclosure are most often characterised
primarily as negatively impacting the accused perso n's right to a fair trial. Given this
primary concern, the open justice dimension of a public right to know the details of a
case frequently becomes supplementary.
A final set of circumstances in which open justice is often invoked arises when
judges are asked to prohibit publication of the identity of witnesses or parties,
including the accused.
26
The rationale given for this request varies, but may incl ude
protecting the privacy of victims of crime or other vulnerable individuals,
27
protecting
the privacy of an accused prior to conviction or of an offender after community
release,
28
or ensuring the safety of undercover police.
29
A request to prevent
publication of identity may include a request to suppress identity within the
courtroom. The principles of open justice at stake in these contexts vary with the
rationale, but are primarily concerned with the need to test the truth of a witness's
account. Where state action is being protected through a nonymity, concerns about
executive power also arise. In cases where identity is suppressed, limits on open justice
are defined by the conflict with rights to privacy, dignity and equality, and (where
police or informers are protected) by tension with executive efficacy.
The discussion of the principles of open justice offered here is not intended to
provide a complete definition of open justice or a full list of the circumstances in which
it may be engaged. Rather, the comparison of the treatments of open justice from a
variety of contexts makes it apparent that open justice engages different principles at
different moments. These principles draw in turn on a variety of underlying
democratic and rule of law values. While each of these contexts involves the coll ection
or transmission of information about judic ial proceedings, not all aspects of judicial
proceedings are susceptible to open justice. Equally, in every case in which open justice
is engaged, something more than information is at stake. In other words, information
about court proceedings is the subject of open justice, but this is not a sufficient
definition of open just ice. In fa ct, open justice cannot usefully be re duced to a single
definition. One way of understanding open justice is that it comprises an ensemble of
practices with various purposes, exercised in diverse ways, and subject to potential
limitations where conflict arises with other fundamental va lues. Any discussion of
contemporary approaches to open justice is strengthened by bearing these
characteristics in mind.
_____________________________________________________________________________________
25
So-called super-injunctions raise similar concerns. See Neuberger, above n 5, ch 2.
26
In Australia and the United Kingdom, the number of such orders has greatly increased in
the past few years. Ibid; Innes, above n 4.
27
For example, a sexual assault complainant's identity. Christine Boyle, 'Publication of
Identifying Information about Sexual Assault Survivors: R v Canadian Newspapers Co Ltd'
(1989) 3 Canadian Journal of Women and the Law 602. An Australian example is supplied by
the Migration Act 1958 (Cth) s 91X which prohibits publication of the name of an applicant
for a protection visa.
28
29
Sharon Rodrick, 'Open Justice an d Suppressing Evidence of Police Methods: The Position
in Canada and Australia, Part One' (2007) 31 Melbourne University Law Review 171.
392 Federal Law Review Volume 40
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III COMPARING AUSTRALIAN AND CANADIAN APPROACHES
TO OPEN JUSTICE
The common law contains a number of principles that are designed to ensure that
court proceedings are physically access ible to the public, including the media. The
question of whether open justice extends to providing access to court records is
comparatively recent, reflecting the growth in importance of the documentary record
in contemporary trial practice. After pr oviding a general introduction to common law
principles, this section demonstrates that judges in Australia and Canada have
adopted somewhat different approaches to the principles of open justice even though
they inherited t he concept from a common British legal heritage. The discussion of
Australian law suggests that Australian courts have not yet succeeded in delineating
an approach that protects the core principles of open justice while maintaining
sufficient flexibility to account for its heterogeneous manifestations. The comparison
with Canada demonstrates that common law practice in that jurisdiction has provided
a clearer approach to protecting open justice while respecting countervailing values
such as privacy. The Canadian approach provide s a possible model for future
considerations of open justice by Australian courts.
A An introduc tion to common law principles
In 1893, Kay LJ identified the 'extreme importance that publicity should be given to all
judicial proceedings.'
30
The UK Supreme Court opened its first judgment of 2010 as
follows:
'Your first term docket reads like alphabet soup.' With these provocative words counsel
for a number of newspapers and magazines highlighted the issue which confronts the
Court in this application. In all the cases down for hearing in the fir st month of the
Supreme Court's existence at least one of the pa rties was referred to by an initial or
initials.
31
The Court went on to hold unanimously that the public interest in having access to
information about court proceedings outweighed the pr ivacy interests of five British
nationals who were believed to be involved in terrorist activities:
the legitimate interest of the public is wider than the interest of judges qua judges or of
lawyers qua lawyers. Irrespective of the outcome, the public has a legitimate interest in
not being kept in the dark[.]
...
At present, the courts are denying the public information which is relevant to that debate,
even though the whole freezing-order system [of counter-terrorism measures] has been
created and operated in their name.
32
Recognising the multiplicity of values that are potent ially engaged when open
justice is at stake, the UK Supreme Court e mphasised that the public interest in
disclosing the details of court proceedings must be balanced against privacy rights on a
case-by-case basis. Nonetheless, In re Guardian News and Media Ltd and others holds that
judges should avoid issuing anonymity orders unless there is specific evidence of
potential harm to pr ivacy or another protected right, even in terrorism-related cases.
_____________________________________________________________________________________
30
31
In re Guardian News and Media Ltd and others [2010] 2 AC 697, 708 [1] (Guardian News and
Media).
32
Ibid 725 [68]–[69].
2012 Open Justice: Concepts and Judicial Approaches 393
____________________________________________________________________________________
Where specific evidence of a potential harm to privacy is off ered, it remains essential to
demonstrate that this harm outweighs the harm that will be caused by the requested
limitation to freedom of expression. While the primary contribution of the case is that
it sets out an approach to managing conflicting rights and freedoms under the
European Convention on Human Rights, Guardian Ne ws and Media also restates and
affirms the benefits of t he common law presumption of openness in judicial
proceedings. Decided more than a century after Kimber v Press Association, Guardian
News and Media suggests that the highest UK court continues to regard the principles of
open justice as integral to the common law tradition despite political pressures to keep
the state response to terrorism shrouded in secrecy.
The leading common law case on open justice is Scott v Scott.
33
A marriage
nullification had occurred in camera. The appellant and her solicitor subsequently
shared notes of the hearing with persons who had not been party to the proce eding.
On appeal from a finding of contempt, the House of Lords was asked to consider
whether the original order to close the courtroom was within the trial judge's power. A
majority of Law Lords agreed that no jurisdiction existed to close the court. Howeve r,
they had differing views about whether and when a judge possessed the common law
power to close a courtroom. Viscount Haldane held: 'If there is any except ion to the
broad principle which requires the administration of ju stice to take place in open court,
that exceptio n must be based on the ap plication of some other and overriding
principle'.
34
Viscount Haldane proposed a test of necessity for such exceptions,
identifying examples wher e necessity is met.
35
Earl Halsbury preferred to leave the
consideration of exceptions to the open c ourt principle to another case.
36
Earl Loreborn
suggested that a courtroom could be closed in a limited category of cases.
37
Lord Shaw
spoke most strongly in support of open justice, suggesting that the orders made by the
trial judge 'constitute a viola tion of that publicity in the administration of justice which
is one of the surest guarantees of our liberties and an attack upon the very foundations
of public and private security.'
38
Lord Shaw quoted extensively from Bentham, holding
that there are very limited circumstances in which privacy is warranted, and that the
scope of any non-publicity order must be limited in duration.
39
While the lack of jurisdiction to close the court and prevent publication in Scott v
Scott was broadly agreed, the precise limits on judicial power were more contested.
The variety of approaches adopted reflects conceptual uncertainty a bout the function
and limits of open justice. Depending on whether one prefers Viscount Haldane's
reasoning to that of Earl Loreborn or Lord Shaw, the circu mstances in which a
courtroom may be closed could be limited to a set of categories established by
precedent or governed by an overarching test of necessity.
B The Australian approach to open justice
Scott v Scott has had significant influence on Aus tralian jurisprudence, but the variety
of ratios adopted by the judges has bequeathed some uncertainty within the Australian
_____________________________________________________________________________________
33
[1913] AC 417 (House of Lords).
34
Ibid 435.
35
Ibid 438.
36
Ibid 442.
37
Ibid 445–6.
38
Ibid 476.
39
Ibid 482–3.
394 Federal Law Review Volume 40
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law.
40
More recently, an emerging jurisprudence suggests that open justice may also be
protected — at least to some extent — b y the principle of institutional integrity that
regulates legislative and executive relationships with courts under Chapter III of the
Australian Co nstitution. In Ca nada, open justice is regarded as a strong but defeasible
common law right, whic h is subject to limits on a case-by-case basis where
countervailing interests prevail. While Scott v Scott was initially influential, the
Supreme Court of Canada ultimately adopted a more coherent approach.
The Australian approach to open justice has at least two strands. A well-established
common law approach establishes a presumption of open justice, permitti ng limits on
open justice where 'necessary for the administration of justice'
41
or 'in the interests of
justice'.
42
However, this common law rule will yield to contrary statutory provi sions.
43
The second, constitutional, strand has emerged more recently. The H igh Court of
Australia has held that Chapter III of the Australian Constitution proscribes legislatures
from conferring a function or imposing a requirement on a judge or court 'which
substantially impair[s] its essential and defining characteristics as a court.'
44
The
principle that Chapter III protects the continuing institutional integrity of courts arises
from, but also refines, the r easoning in Kable v Director of Public Prosecutions.
45
In Hogan
v Hinch, the Court considered whether the principle extended to guaranteeing open
justice within Chapter III courts. While the Court upheld the constitutionality of the
Victorian legislation at stake, Hogan v Hinch affirms that open justice is an essential
judicial characteristic. As I explain below, the Court's reasoning left open the
possibility that legislation that trenches too far on open justice may contrave ne Chapter
III.
1 Australian Common Law Approach
The High Court of Australia quickly adopted Scott v Scott into Australian common
law.
46
It has held on more than one occasion that judges have 'no inherent power' to
close a courtroom, while finding that Parliament retains power to provide for the
circumstances in which courts should be closed.
47
In Dickason v Dickason, the Court did
not comment on common law exceptions to the open justice principle. In Russell v
Russell, a majority of the High Court struck do wn a provision of the Family La w Act
1975 (Cth) which provided that all proceedings under that Act must be held in closed
_____________________________________________________________________________________
40
Discussed below, page 10.
41
R v Kwok (2005) 64 NSWLR 335.
42
BUSB v The Queen (2011) 80 NSWLR 17; see also R v Macfarlane; Ex parte O'Flanagan (1923)
43
See, eg, the Court Suppression and Non-Publication Orders Act 2010 (NSW), which has
codified the grounds on which non-publication and suppression orders may be issued by
NSW courts and tribunals while reserving the inherent jurisdiction of courts to regulate
other aspects of their procedure.
44
South Australia v Totani (2010) 242 CLR 1, 47 [69] (French CJ), 6 2–3 [131]–[132] (Gummow J),
103 [264] (Heydon J); International Finance Trust Co Ltd v NSW Crime Commission (2009) 240
CLR 319, 352–4 [50]–[52] (French CJ); 367 [98] (Gummow and Bell JJ); 385 [155] (Heydon J).
45
principle: International Finance Trust Company' (2010) 17 James Cook University Law Review
110, 111–14.
46
47
2012 Open Justice: Concepts and Judicial Approaches 395
____________________________________________________________________________________
court. However, Russell was not a particularly strong endorsement of open justice. The
Court split 3:2, with Mason and Jacob JJ holding in dissent that the federal Parliament
could order state courts to hear federal proceedings in camera
Of the majority, Barwick CJ noted the significance of the open court principle but
struck down the impugned legislation on the basis that it constituted a n impermissible
interference with the sta tes' constitutional power to provide for the organisation and
operation of state courts.
48
Gibbs and Stephen JJ wrote separate reasons from Barwick
CJ and from one another, concurring in the result. Bot h Gibbs and Stephen JJ
characterised the provision mandating closed courts as one which altered both the
character of proceedings conducted under the Act, and the character of the courts
charged with hearing those proceedings. Gibbs and Stephen JJ held that openness is an
essential part of the character of common law courtrooms, and that mandating closed
courtrooms changed the court into a different type of tribunal. H owever, Gibbs J
would have upheld the constitutionality of the provision if it had merely granted trial
judges the discretion to close court s in appropriate cases.
49
The distinction between
granting discretion and mandating closed courts remains important und er the
emerging constitutional principle of institutional integrity.
The principles of open justice have received closer consideration in state and fed eral
courts, particularly in NS W. Decisions issued by the NSW and Victorian Courts of
Appeal and by the Full Federal Court have delinea ted the principles that apply w ithin
Australian law. Taken as a whole, these cases establish a working distinction between
different infringements of the principles of open justice. For example, the case law
suggests that judges view closing a courtroom a s a more drastic infringement on open
justice than restricting access to exhibits. Such distinctions are in keeping with the
proposition that there are multiple principles of open j ustice, but the Austra lian case
law does not expres sly endorse this approach and individua l decisions tend to refer to
open justice in a relatively undifferentiated way. For example, in John Fairfax & Sons
Ltd v Police Tribunal of N SW,
50
the NSW Court of A ppeal was asked to consider
whether the Police Tribunal could issue an order suppressing the name of a witness.
The Court held that open justice requires that proceedings be heard in open court, and
that departure from this rule is only permitted where 'its observance would frustrate
the administration of justice or some other public interest for whose protection
Parliament has modified' the rule. The principle includes the rule that 'nothing should
be done to discourage the making of fair and accurate reports of what occurs in the
courtroom.'
51
In the absence of parliamentary a uthorisation, an order prohibiting the
publication of evidence given in open court is only valid if 'necessary to secure the
proper administration of justice.'
52
McHugh JA held that the capacity to publish
reports of a proceeding was a 'commo n law right' that is vital to 'the proper working of
an open and democratic society and to the maintenance of public confidence in the
administration of justice.'
53
He questioned whether a non-publication order could in
_____________________________________________________________________________________
48
49
Ibid, 520 (Gibbs J), 532–3 (Stephen J).
50
51
Ibid 476–7.
52
Ibid 477. See also Ex parte Queensland Law Society Inc [1984] 1 Qd R 166, 170 and Herald and
Weekly Times v A (2005) 160 A Crim R 299, 304 [25].
53
John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465, 481 (Fairfax v Police
Tribunal).
396 Federal Law Review Volume 40
____________________________________________________________________________________
any event bind non-parties.
54
McHugh JA's judgment explicitly connects open justice
with democratic values and, in keeping with subsequent jud gments of the NSW Court
of Appeal, emphasises the need to lim it infringements upon open justice.
55
The
decision also recognises that limits on open justice will vary with the nature of
countervailing interests.
The test of what is ' necessary to secure the proper administration of justice' would
seemingly permit trial judges to issue non-publication orders in 'reasonably necessary'
circumstances that are not contemplated by previous c ase law. More recently, the NSW
Court of Appeal has moved toward s a categorical approach to exceptions to open
justice, coupled wi th an overriding test of necessity. In John Fairfax Publications Pty Ltd
v District Court of NSW, the Court suggested that the common law jurisdiction to grant
non-publication order s is restricted to an established, and limited, set of categories.
56
These categories are not listed in Fairfax v District Court but were enumerated by
Einstein J in Idoport Pty Ltd v National Australia Bank:
There appear to be a limited number of general exceptions to the 'open justice' principle,
... namely:
(a) cases where trade secrets, secret documents or communications or secret processes
are involved;
(b) cases where disclosure in a public trial would defeat the whole object of the action
(as in blackmail cases or cases involving police informers);
(c) cases involving the need to keep order in court;
(d) cases in volving (in certain circumstances) national security;
(e) cases involving the performance of administrative or other action that may properly
be dealt with in chambers;
(f) cases where the court sits as parens patriae involving wards of the state or those with
mental illness.
57
Beyond these categories, the NSW Court of Criminal Appeal held in Fai rfax v District
Court that an order prohibiting publication of a judgment may only be made if it is
necessary in the sense that the objective of achieving a fair trial in a subsequent case
could not be secured in any other way. The Court expressed doubt as t o whether such
necessity could ever be demonstrated.
58
In R v Kwok, Hodgson JA softened the position that common law exceptions are
limited by precedent, holding that the Court 'will not freely invent new categories of
cases, but ... may identify categories that, while not coinciding exactly with the existing
categories, are very closely analogous to them and have the same rati onale for the
making of non-publica tion orders.'
59
In Kwok, the Court held that t he privacy interests
of complainants in a sex trafficking case were very like those of a complainant in a
blackmail case, and that the categories should be expanded accordingly.
60
However, a
_____________________________________________________________________________________
54
55
See also Witness v Marsden (2000) 49 NSWLR 429, 460–1 [140]–[144] (Heydon JA).
56
57
58
(2004) 61 NSWLR 34 4, 360 [59]. See also David Syme & Co Ltd v General Motors-Holden's Ltd
59
(2005) 64 NSWLR 335, 342 [19] (Rothman J agreeing) (Kwok).
60
Ibid 342 [21] (Hodgson JA), 345 [34] (Howie J); see also Witness v Marsden (2000) 49 NSWLR
429.
2012 Open Justice: Concepts and Judicial Approaches 397
____________________________________________________________________________________
decision to make a non-publication order in respect of the names of the particular
complainants depends on evidence of necessity in the instant case, and the case was
returned to the District Court for reconsideration. While agreeing with Hodgson J A,
Howie J added the following caution:
[I]f this application were allowed it may encourage prosecutors to seek, and judges to
make, non-publication orders in cases where the necessity for those orders to advance the
interests of justice had not truly been shown. It is important in light of the material relied
upon by the prosecution to stress that it is the interests of justice that lie at the heart of
such an a pplication and not the interests of a private individual, such as a witness or an
accused. The decided cases have empha sised the value of open courts to maintaining
public confidence in the administration of justice.
61
In this paragraph, Howie J sets out the competing interests at stake when an
application for non-publication of a witness's name is made, and emphasises the
primacy of open justice. Howie J preferred that new classes of exceptions be
established by Parliament.
62
While Kwok, Fairfax v District Court and Idoport v Natio nal Australia Bank suggest that
courts possess inherent power to issue non-publication orders that will bind non-
parties, the existence of this power was questioned in Fairfax v Police Tribunal a nd
Raybos v Jones. This issue remains unsettled in Australian case law, and may become
important in light of conflicting decisio ns of the Privy Council in Independent Publishing
Co Ltd v Attorney General of Trinidad and Tobago
63
and the New Zealand Court of
Appeal in Siemer v Solicitor-General.
64
While the Privy Council has expressed the
conclusion that no such power exists, the New Zealand Court held that a power to
issue non-publication orders is within the inherent capacity of a court to regulate its
own procedures with the ultimate goal of securing fairness.
The NSW Parliament has rendered the question of inherent power less relevant in
that juri sdiction by pa ssing the Court Suppression and Non-Publication Orders Act 2010
(NSW), which codifies five broad grounds on which a suppression or non-publication
order may be justified. These grounds are not quite the same as those articul ated in
prior case law, but include the necessity to protect the safety of a person, a limited
power to issue orders to prevent embarrassment and a capacity to issue an order
where a countervailing public interest outweighs the public interest in open just ice.
65
In cases decided since the Act came into force, the NSW Court of A ppeal has continued
to assert the relevance of prior case law.
66
However, the possibility that some limits on
open justice may operate differently from others is being recognised more o vertly. For
example, in Fairfax v Ibrahim, the NSW Court of Criminal Appeal observed that there
are circumstances i n which the public interest in freedom of discussion operates in
tension with the public interest in promoti ng the a dministration of justice; and
_____________________________________________________________________________________
61
R v Kwok (2005) 64 NSWLR 335, 343–4 [29].
62
Ibid 344 [30]. In R v Nantahkhum (2012) 6 ACTLR 228 Refshauge J applied the principles set
out in Kwok to suppress publication of the names of witnesses who had paid for the sexual
services of trafficked women.
63
64
65
Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8.
66
[45] (Tobias AJA).
398 Federal Law Review Volume 40
____________________________________________________________________________________
circumstances in which these va lues act in concert.
67
In Rinehart v Welker, Tobias AJA
held that open justice was a primary objective of the administration of justice, which
exists alongside other objectives.
68
Neither case proposes a methodology for
reconciling inconsistencies between such objectives. In fact, the Australian case law is
uniformly silent on the questions of how to decide am ong competing objectives when
open justice is at stake, and on what evidence of interference with countervailing
interests is needed to support an application to limit open justice.
69
The Victorian Court of Appeal has also held that necessity is the touchstone for
non-publication orders.
70
However, in recent cases it has a dopted a relatively generous
interpretation of necessity. The Victorian Court of Appeal held in News Digital Media
Pty Ltd v Mokbel that a trial court possesses inherent jurisdiction to postpone
publication of court proceedings, including verdicts, in order to protect trial fairn ess in
an impendi ng tr ial.
71
The Court applied a test of w hether there was a 'real risk' that
publishing the material would 'interfere substantially with the administration of justice
in a pending proceeding.'
72
Non-pub lication orders pu blished in the se circumstances
should be time limited. In News Digital Media Pty Ltd v Mokbel, the Court held that non-
publication orders should not extend to requiring online news services to remove
archived articles where those articles are only accessible by searching.
73
The Court
held that this order was not necessary to protect trial fairness given the warnings
routinely issued to jurors to refrain from researching a case.
While there are some inconsistencies, it is implicit within the judicial discu ssions of
non-publication order s that some principles of open justice — for examp le, the
importance of permitting the public to know about a ve rdict or judgment — are more
vigorously protected than others — for example, the capacity to pu blish the identity of
a witness.
74
Countervailing values also appear to influence the outcome of an
application to restrain open justice — for example, News Digital Media Pty Ltd v Mokbel
turns on the primacy of an accused person's right to a fair trial, and may fairly be
distinguished from the NSW cases which consider a witness's request for privacy.
Likewise, in that case the Victorian Court of Appeal explicitly adopts a hierarchy of
principles when it treats the interest in report ing evidence given in a court proceeding
as more central to open justice than the capacity to report extra-judicial informa tion
that readers may find interesting.
Australian case law concerning public access to court records exhibits considerably
more ambivalence about the open justice principle in that context. The NSW Court of
Appeal was asked in John Fairfax Publications Pty Ltd v Ryde Local Court to decide
_____________________________________________________________________________________
67
CLR 15, 26 (Mason CJ).
68
[2011] NSWCA 345, [38].
69
70
Herald and Weekly Times v A (2005) 160 A Crim R 299, 306 [30].
71
(2010) 30 VR 248. See also General Television Corporation Pty Ltd v DPP (2008) 19 VR 68,
which considered publication bans issued in relation to a fictionalized account of events
relevant to a trial then proceeding in the Victorian Supreme Court (the Underbelly TV
series).
72
News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 266 [68].
73
Ibid, 272 [94].
74
New South Wales (2011) 243 CLR 181.
2012 Open Justice: Concepts and Judicial Approaches 399
____________________________________________________________________________________
whether a right of access to court records existed at common law.
75
The applicant
sought access to court records associated with an appre hended violence order issued
by consent against a high profile Magistrate. Seemingly d istancing itself from the
language used by McHugh JA in Fairfax v Police Tribunal,
76
the Court held that open
justice is a principle rather than a right; and that the principle does not encompass a
routine capacity to obtain access to documents held as part of the court record.
77
Given
that an apprehended violence order could be issued without a magistrate being
satisfied that the alleged violence had occurred, and as this order was issued by
consent, the Court held that it was sufficient for a judge to give reporters access to the
fact that a complaint had been laid a nd a consent or der issued, and the ter ms of the
order. However, Spigelman CJ held that a media request for access to documents used
in open court should ordinarily be granted, as the principle of open justice is engaged
once documents a re used in this manner .
78
In Herald & Weekly Times Ltd v Magistrates'
Court of Victoria, the Victorian Court of Appeal rejected an argument that there is a
right to obtain access to the hand up brief on which many committal proceedings are
now decided in Victoria in lieu of hearing oral evidence. However, the Court also held
that magistrates have the power to authorise access to this brief.
79
The reasoning adopted in these cases seems in keeping with the proposition that
information relied upon by a court is more central to the principles of open justice than
information that is contained within the court record but not expressly relied upon.
Nonetheless, the tone adopted in these two decisions is notably different from that
adopted by the NSW Court of Criminal Appeal in cases concerning non-publication
orders. When the capacity to report testimony and judgments is at stake, open justice
tends to be treated as an essential good, albeit one whic h must sometimes yield to
more pressing objectives. By contrast, the courts downplay the importance of open
justice when considering r equests for court records, even when th ose records have
been used in open court. The legitimate concern underlying the court records cases is
the possibility that media will report allegations of wrongdoing in a manner that
suggests those allegati ons have been proven.
80
Even so, the courts' reluctance to
enforce a stronger principle of access to court records marks a particularly interesting
shift. Having access to committal records or to the documentary record on which
interlocutory orders a re issued is arguably an important dimension of exerc ising
democratic oversight in relation to the actions of courts and Crown prosecu tors.
81
Equally, the concern about misrep orting allegations of wrongdoing is similarly present
_____________________________________________________________________________________
75
(2005) 62 NSWLR 512 (Fairfax v Ryde Local Court).
76
See above text accompanying notes 50–5.
77
Fairfax v Ryde Local Court (2005) 62 NSWLR 512, 521 [29]–[31].
78
Ibid 521 [32], 526 [65].
79
(2000) 2 VR 346.
80
for restricting open justice was made and rejected in Kimber v Press Association Ltd [1893] 1
QB 65. The Court of Appeal considered that a fair and accurate report of court proceedings
would make it clear that no final decision had been rendered.
81
For example, this author applied unsuccessfully for copies of the hand-up brief used by the
Crown in the committal hearing of Carole Louise Matthey. The case against Matthey for
allegedly killing four children was withdrawn after the trial judge excluded much of the
Crown evidence a gainst her. See R v Matthey (2007) 17 VR 222. Important questions about
prosecutorial discretion and expert witnesses in this case remain unstudied because access
to the court records has not been granted (although access to transcripts was provided).
400 Federal Law Review Volume 40
____________________________________________________________________________________
whenever the media reports oral evidence given or legal arguments made prior to a
trial or verdict. It is difficult to identify a principled basis on which textual records
should be treated differently than sworn testimony, particularly when the textual
record explicitly replaces oral evidence and forms the basis for judicial decisions.
Those who seek to enforce the principles of open justice are often media outlets.
Despite this pattern, the Australian case law lacks a consistent approach to the
relationship between media and the principles of open justice. Media outlets receive
some recognition of their special status by, for example, receiving notice of non-
publication orders and being permitted standing to appeal such orders. However,
Hutley AP suggested in Syme v GM-Holden’s that there is no special priority a ttaching
to the press or other media. Rather, '[t]he privilege to see what the courts do and say
belongs to the public generally.'
82
In Fairfax v Ryde Local Court, Spigelman CJ rejected
the proposition t hat freedom of expression or freedom of the press were legitimate
ends of open justice, holding that open justice 'has purposes related to the operation of
the legal system.'
83
Some judges have expressed mistrust of the media in the course of
adjudicating applications for acc ess. Decisions have aired concerns that media may
publicise speculative or prejudicial information about one or another party, thereby
damaging reputations and imperilling the right to a fair trial.
84
By contrast, in R v Davis, the Full Federal Court suggested that journalists play a
different role in relation to court proceedings from that of other observers:
Whatever their motives in reporting, their opportunity to do so arises out of a principle
that is fundamental to our society and method of government: except in extraordinary
circumstances, the courts of the land are open to the public. This principle arises out of
the belief that exposure to public scrutiny is the surest safeguard against any risk of the
courts abusing their considerable powers. As few members of the public have the time, or
even the inclination, to attend courts in person, in a practical sense this principle
demands that the media be free to report what goes on in them.
85
In some cases, trial judges have relied upon the pri nciple of open justice to grant media
access to documen ts that have been u sed in open court.
86
These judges have reasoned
that providing access will a ssist the public to understand the basis on which orders
have been made and help reporters to cover court proceedings fairly and accurately.
Their judgments emphasise the need to trust the media to report proceedings with
_____________________________________________________________________________________
82
[1984] 2 NSWLR 294, 310.
83
(2005) 62 NSWLR 512, 525 [60] (citation omitted). See also eisa Ltd v Brady [2000] NSWSC
929, [36]; Australian Securities and Investments Commission v Rich (2001) 51 NSWLR 64 3. This
formulation may explain judicial reticence to offer access to documents that have not yet
been used in court, as on a narrow reading providing such access may not have a purpose
relating to the legal system. However, such an interpretation depends on how broadly one
conceives of the legal system and whether, for example, it extends to pre-trial activities and
the operation of organisations such as police and prosecutors.
84
See eg, eisa Ltd v Brady, [2000] NSWSC 929; Ballina Shire Council v Ringland (1994) 33
NSWLR 680; News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248; General Television
Corporation Pty Ltd v DPP (2008) 19 VR 68.
85
[35].
86
See eg, Australian Securities and Investments Commission v Rich, (2001) 51 NSWLR 643; Tuqiri
2012 Open Justice: Concepts and Judicial Approaches 401
____________________________________________________________________________________
appropriate restraint.
87
The alternative approaches t o media access discernible within
the case law suggests that Australian judges have not yet settled upon a principled
understanding of the role that media plays in relation to open justice. As I later explain,
Canadian courts have provided a more complete account of the media's role vis-a-vis
open justice.
2 Australian Constitutional Principles
Legislative restraints on open justice are far more numerous than those a nticipated
under common law, and so it is important to consider whether there are constitutional
limits on the legislative power to restrain open justice. However, until ve ry recently the
complexities of Australian fed eralism seemed to present a significant barrier to a
coherent position on w hether any constitutional principle limits legislative and
executive powers to infringe upon open justice. The Australian Constitution has been
interpreted to require a separation of judicial power from legislative and executive
functions at the federal level, but state constitutions have no such requirement. Federa l
judicial power may be vested in both state and federal courts. When a state court is
invested with federal power, the federal government must respect the state's rig hts to
provide for organ isation and opera tion of that court.
88
On the other hand, 'Chapter III
courts' (those exercising or possessing the capacity to ex ercise federal judicial power)
must be allowed to operate in a court-like manner.
89
Therefore, Chapter III of the
Australian Constitution will limit parliamentary and executive power to regulate the
openness of judicial proceedings if the various activities that comprise open justice are
part of the 'essential character of a court or ... the nature of judicial power'.
90
In Kable, a majority of the High C ourt of Australia held that an implied
constitutional requirement of institutional integrity prevents state legislatures from
vesting non-judicial (executive or administra tive) powers in Chapter III courts if the
exercise of that power is incompatible with the exercise of federal judicial powers.
McHugh J expressed this principle in terms of reasonable perceptions of judicial
independence:
While nothing in Ch III preven ts a State from conferring non-judicial functions on a State
Supreme Court in respect of non-federal matters, those non-judicial functions cannot be
of a nature that might lead an ordinary reasonable member of the public to conclude that
the Court was not independent of the executive government of the State.
91
_____________________________________________________________________________________
87
Australia Pty Ltd (2006) 154 FCR 293.
88
89
Local Government and Ethnic Affairs (1992) 176 CLR 1. See Fiona Wheeler, 'Due Process,
Judicial Power and Chapter III in the New High Court' (2004 ) 32 Federal Law Review 205;
Cheryl Saunders, The Constitution of Australia: A Contextual Analysis (Hart Publishing, 2011)
ch 6.
90
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR
1, 27 (Brennan, Deane, Dawson JJ). Saunders' observation that the separation of powers is
often invoked in Australia to resolve questions that would in other jurisdictions be
resolved using constitutional rights applies well to open justice. See Saunders, above n 89,
185.
91
Kable (1996) 189 CLR 51, 117.
402 Federal Law Review Volume 40
____________________________________________________________________________________
Other passages in the Kable decision suggested that the implied limitation is concerned
with protecting essential characteristics of the judicia l process.
92
Subsequent
formulations of the Kable principle have tended to focus on these institutional
characteristics, of which independe nce is arguably an important element. For example,
Gummow, Hayne and Crennan JJ articulated the Kable principle as follows:
[T]he relevant principle is one which hinges upon maintenance of the defining
characteristics of a 'court' ... It is to those characteristics that the reference to 'institutional
integrity' alludes. That is, if the institutional integrity of a court is distorted, it is because
the body no long er exhibits in some relevant respect those defining characteristics which
mark a court apart from other decision-making bodies.
93
The refined Kable principle is most precisely referred to as a principle that safeguards
the institutional integrity of Chapter III courts. However, attempts to further define the
principle have proven somewhat unsuccessful. In fact, French CJ has twice referred to
the undesirability of reducing the principle of institutional integrity to a te st or
formulation which dictates future outcomes.
94
While Kable was regularly relied upon in argument before the High Court of
Australia, attempts by parties to apply the doctrine fa iled for several years. Until 2009,
a majority of the High Court invariably distinguished Kable, seemi ngly confining that
case largely to its facts. In that sense, prior to International Finance T rust Co Ltd v NSW
Crime Commission,
95
the Kable decision had largely fallen dormant.
96
However since
then, the High Court of Australia has articulated and applied a version of the Kable
doctrine at least seven times.
97
On three occasions, it has struck down state legislation
based on a principle of institutional integrity.
98
Quite suddenly, a wealth of judicial
reasoning has refined and clarified the scope and potential application of co nstitutional
principles emerging from Kable. The relevance of this constitutional reasoning to
legislative and executive checks on open justice was most directly addressed in Hogan
v Hinch. However, a number of earlier decisions set the context in which the defendant
in Hogan v Hinch argued that open justice was an essential defining characteristic of
judicial process.
In several cases decided since Russell v Russell, individual High Court judges have
relied upon the principle of open justice in cases that largely turned on other matters.
In a widely cited dissent in Re Nolan; Ex parte Young, Gaudron J held that the essential
_____________________________________________________________________________________
92
Ibid 98 (Toohey J), 106–8 (Gaudron J), 121 (McHugh J), 131–2 (Gummow J). See further
Saunders, above n 89, ch 6; Enid Campbell, 'Constitutional Protection of State Courts and
Judges' (1997) 23 Monash University Law Review 397.
93
Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 76 [63].
94
K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, 530 [90]; Wainohu v New
South Wales (2011) 243 CLR 181, 201–2 [30 ]; see also Fardon v Attorney-General (Qld) (2004)
223 CLR 575, 618 [104]–[105] (Gummow J).
95
96
See further Wheeler, above n 89.
97
K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; International Finance Trust
Co Ltd v NSW Crime Commission, (2009) 240 CLR 319; SouthAustralia v Totani (2010) 242 CLR
1; Hogan v Hinch (2011) 243 CLR 506; Wainohu v New South Wales (2011) 243 CLR 181;
Momcilovic v The Queen (2011) 245 CLR 1.
98
International Finance Trust Co Ltd v NSW Crime Commission, (2009) 2 40 CLR 319; South
2012 Open Justice: Concepts and Judicial Approaches 403
____________________________________________________________________________________
features of the 'judicial process' include 'open and public inquiry'.
99
Her Honour went
on to hold that 'open and public proceedings are necessary in the public in terest
because secrecy is conducive to the abuse of power and, thus, to i njustice.'
100
In Grollo v
Palmer, McHugh J held, in dissent, that '[o]pen justice is the hallmark of the common
law system of justice and is an essential characte ristic of the exercise of federal judicial
power.'
101
In a concurring decision in K-Generation Pty Ltd v Liquor Licensing Court,
French CJ described the open ju stice principle as 'an essential part of the functioning of
courts in Australia', but upheld a statutory provision that had on this occasion been
applied in a manner t hat infringed this principle.
102
French CJ held t hat statutes which
regulate co urt processes should, as far as possible, be interpreted in a manner
consistent with the requirements of open justice. He applied this interpretive principle
in K-Generation.
Each of the cases mentioned so far engages with the power to order closed
courtrooms, or to hear evidence in ca mera. In Re Application by the Chief Commissioner of
Police (Vic), t he High C ourt was asked to c onsider an application made for orders that
would prevent the publication of evidence given in open court.
103
This evidence
related to investigative practices of police,
104
and the Commissioner sought an
indefinite publication ban. The Court declined to engage with the substantive issues
raised by the case, f inding that the Commissioner had not met her burden to
demonstrate why leave to appeal should be granted from the trial judge's decision to
issue the orders.
Given a s ubstantial rise in the number and variety of non-publicati on orders being
issued i n Australia, it was inevitable that the refined Kable principle would be relied
upon to pursue judicial su ggestions that open justice is an essential characteristic of
courts.
105
Hogan v Hinch raised a constitutional challenge to s 42 of the Serious Sex
Offenders Monitoring Act 2005 (Vic) ('the Act').
106
The Act empowered Victorian courts
to make and enforce community supervision orders in respect of sex offenders who
had served their custodial sentence. Section 4 2 permitted the court, 'if satisfied that it is
in the public interest', to make an order prohibiting publication, i nter alia, of ma terial
which could identify a pe rson as being the subject of a community supervision
proceeding. The defenda nt Hinch, a controversial media figure, allegedly contravened
orders made under s 42 of the Act by publishing nam es on his website and identifying
offenders at a public rally. He challenged s 42 on the basis that it distorted the
institutional integrity of courts, was contrary to an implied requirement 'that all State
and federal courts must be open t o the public and carry out their activities in public'
_____________________________________________________________________________________
99
(1991) 172 CLR 460, 496.
100
Ibid 496–7.
101
(1995) 184 CLR 348, 379.
102
K-Generation Pty Ltd v Liq uor Licensing Court (2009) 237 CLR 501. The majority held that the
procedure infringed the open justice principle. However, properly interpreted, the
legislation was not incompatible with the exercise of federal judicial power.
103
104
Very little information is given about these investigative practices in the judgment, other
than that they relate to 'scenarios' used to help obtain admissions from suspects.
105
Innes, above n 4.
106
Hogan v Hinch (2011) 243 CLR 506. The Act has now been repealed and replaced with the
Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic).
404 Federal Law Review Volume 40
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and contravened the implied freedom of political expressio n.
107
The Hi gh Court of
Australia unanimously upheld the constitutionality of s 4 2 and denied any absolute
requirement of open justice.
The brief leading judgment was written b y Gummow, Hayne, Heydon, Crennan,
Kiefel and Bell JJ. These judges held that s 42 did not impermissibly impair the status
of Chapter III c ourts as independent and impartial tribunals because the phrase 'in the
public interest', while broad, conferred a legitimate discretionary power upon
courts.
108
The expectation tha t a court would issue reasons for decision, and the
availability of ordinary rights of appeal, together with the requirement of subjective
mens rea within the offence created by s 4 2 bolstered the conclusion that this section
was constitutionally valid.
The leading judgment distinguished limits on the legislative power to regulate
open justice from those exceptions which apply to the com mon law presumption of
open justice. Adopting Gibbs J's reasoning from Russell v Russell,
109
the leading
judgment held that there is no 'restriction drawn from Ch III which in absolute terms
limits the exercise of the legislative power of the Parliament'.
110
It is implicit within the
majority's acceptance of Gibbs J's reasoning that a statutory or executive rule which
required closed proceedings in all cases may impair the institutional integrity of the
court and thereby violate the refined Kable principle.
Chief Justice French issued separate and more lengthy reasons. He held more
clearly than the leading judgment that an 'essential characteristic of courts is that they
sit in public.'
111
The entitlement to publish a fair and accurate report of proceedings,
including the documentary record, was characterised by French CJ as a 'common law
corollary' to open justice.
112
French CJ would have adopted a principle of statutory
interpretation that minimised interference with all kinds of open justice (not just open
courtrooms), while accepting the constitutionality of statutes which grant discretionary
powers to infringe open justice.
Hogan v Hinch represents a mixed outcome for proponents of open justice. It now
seems relatively clear that (some) principles of open justice are among the essential
characteristics of courts, and therefore attract (some) constitutional protection. The
basic requirement that legislative restrictions on open justice should be expressed in
permissive and discretionary ra ther than directive terms has the potential to safeguard
open justice, but does not seem to apply to all circumstances. For example, it raises
questions about the constitutionality of provisions that impose blanket restrict ions on
open justice without providing the tools to resolve those questions.
113
To date, the
_____________________________________________________________________________________
107
Only the first two grounds are considered in this article. The Court accepted that cases may
arise in which the implied freedom of political communications could apply to
communications about the courts and their processes if a discussion of legislative or
executive action was implicated and the matter had a sufficient connection to a federal
issue.
108
109
110
111
Ibid [20] (French CJ).
112
Ibid [22].
113
Examples of such blanket prohibitions include s 121 Family Law Act 1975 (Cth) (banning
publication of in formation that identifies a party or witness to a family court proceeding);
s 10 Children (Criminal Proceedings) Act 1987 (NSW) (providing that a criminal proceeding
2012 Open Justice: Concepts and Judicial Approaches 405
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Court has not defined the substance of open justice, suggested a methodology by
which courts should exercise legislatively granted discretion to infri nge open justice, or
provided clear guidance about the limits of legislati ve power to interfere with open
justice. Pressing questions about the nature and limits of open justice remain
unanswered within Australian law.
3 Conclusion: Australian approaches to open justice
The Australian case law on open justice principles frequently articulates the
importance of these principles t o common law courts. Australian judges are
nonetheless customarily reticent to recognise anything approaching a 'right' to open
justice. Despite their asserted centrality, Australian case law has not yet coalesced
around a coherent theory of the substance of open justice principles. Intermediate
courts' decisions suggests that common law exceptions to the princip le may be based
on necessity, or may need to fit within one of a limited number of pre-existing
categories. There exists considerable ambivalence about whether there is a strong
common law principle of openness in relation to access to court records, as compared
with the higher priority placed on openness in relation to oral proceedings.
Deference to parliament is apparent in all levels of the case law, although a limit to
this deference appears from the High Court's emphasis on the need to grant discretion
to courts that are statutorily empowered to restrict open justice. If unchecked,
deference to parliament has the potential to become a particular threat to the principle
of open justice. Returning to a core value of open justice — its ca pacity to promote
informed debate about government, its processes and participants — the executive and
legislative arms of government will, at times, have a considerable vested interest in
maintaining secrecy in respect of some matters that come before the courts.
114
Courts
have a fundamental obligation to decide sensitive disputes impartially, according to
generally applicable principles, and publicly. The implied constitutional principle of
institutional integrity seems to permit courts invested with federal power to guard the
common law tradition of openness to some extent. However, a lack of sustained
attention to core principles, and a failure to consider how the heterogeneous
manifestations of open justice engage those principles diff erently has led to
inconsistencies within the Australian approach to court records a nd the role of the
media. Appellate courts have offered little guidance to trial judges about how best to
steer a course between safeguarding open justice and protecting countervailing
interests. In contrast, Canadian courts have crafted a more coherent test that seeks to
vindicate the principle of open justice in the most challenging cases, while paying
careful attention to countervailing interests.
C The Canadian approach to open justice
The Supreme Court of Canada has articulated a strong commitment to the principle
that any decision to limit public access to courts and court records should not be taken
lightly. Canadian judges have sought to articulate a structured approach to balancing
_____________________________________________________________________________________
should be closed to the general public when the accused is a child); and s 195 Evidence Act
2008 (Vic) (prohibiting publication of questions ruled improper or otherwise not permitted
by a trial judge. There may well be good reasons to impose blanket — or at least prima
facie — prohibitions in such cases.
114
See eg, Commonwealth v John Fairfax & Sons (1980) 147 CLR 39 (the 'Defence Papers Case'); In
re Guardian News and Media Ltd and others [2010] 2 AC 697.
406 Federal Law Review Volume 40
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open justice principles with countervailing interests. The Canadian a pproach posits a
special role for the media in informing citizens who are unable to attend court about
what has transpired there. While this approach has been influenced by the Charter of
Rights and Freedoms,
115
the Supreme Court of Canada has also articulated a common
law foundation for its approach to open justice.
In Attorney General of Nova Scotia v MacIntyre , the Co urt identified a common law
right to access court records.
116
The Court considered whether a journalist could obtain
access to a search warrant and associated information.
117
The majority ide ntified a
number of 'broad policy considerations' at stake, including individual rights to
privacy, protection of the administration of justice, the need to implement
parliamentary intention with respect to search warrants and 'a strong public policy in
favour of "openness" in respect of judicial a cts.'
118
Rejecting the argument that privacy
interests justify routine secrecy in respect of executed search warrants, Dickson J
declared that 'covertness is the exception and openness the rule' in relation to court
records.
119
Open access is acc ordingly presumptive but this 'right' can be curtailed to
the extent necessary to protect an ongoing investigation, for example if a search
warrant had not yet been executed. A fruitless search warrant should remain sealed in
order to protect the privacy interests of innocent people.
MacIntyre preceded the Canadian Charter of Rights and Freedoms by three months,
and the common law right identified in that case was soon supplemented with s 2(b) of
the Charter, which protects the right to freedom of exp ression, including freedom of the
press and other media. In a series of decisions beginning with Edmonton Journal v
Alberta (Attorney General),
120
the Supreme Court of Canada has identified the right to
gain access t o and communicate information regarding court proceedings as a core
aspect of section 2(b). Based on this right, the Court struck down a statut ory provision
which significan tly restr icted the information that could be published about divorces
and associated proceedings.
121
Writing the leading judgment, Cory J held that 'the
courts must be open to public scrutiny and to public criticism of their operation'.
122
The media were regarded as central to this openness, because freedom of expression
incorporates a 'right to information pertaining to public institutions', meaning that
those who are unable to attend court have a right to learn what has transpired there.
123
Cory J held that this r ight applies equally to court proceedings and court
documents.
124
In Dagenai s v Canadian Broadcasting Corporation,
125
Lamer CJ disapproved the
hierarchical common law approach to balancing freedom of expression and the right to
_____________________________________________________________________________________
115
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B
to the Canada Act 1982 (UK), c. 11.
116
Attorney General of Nova Scotia v MacIntyre [1982] 1 SCR 175.
117
Ibid 181.
118
Ibid 183.
119
Ibid 185.
120
121
Ibid.
122
Ibid [7].
123
Ibid [17].
124
Ibid.
125
2012 Open Justice: Concepts and Judicial Approaches 407
____________________________________________________________________________________
a fair trial, which prioritized the right to a fair trial above countervailing rights.
126
Lamer CJ held instead that courts must achieve a balance between fair trial and other
rights when they come into competiti on with one another.
127
The majority emphasized
the range and complexity of interests at stake regarding publicati on bans. This
recognition stemmed to a significant extent f rom the context of the case, which
concerned applications by several accused in historical sexual assault cases for orders
restraining the Canadian Broadcasting Corporation from airing a fictional program
about sexual assault in Catholic orphanages.
128
The program did not report court
proceedings and so did not directly engage the principles of open justice, but the
Court's reasoning was quickly applied to non -publication orders and other
infringements on open justice. La mer CJ reformulated the common law rule in which
the right to a fair trial had been prioritised over the right to freedom of expression.
Restated, the Charter-compliant co mmon law rule asks whether a publication ban is
necessary to prev ent a real and substantial risk to the fairness of the trial or another
pressing interest and, if so, whether the salutary effects of the ban (in protecting a fair
trial) outweigh its deleterious effects (on freedom of expression, broadly construed by
the Court).
129
The test places the evidentiary and persuasive burden on the party
seeking to infringe upon open justice.
The Court elaborated on achieving proportionality between open justice and
countervailing interests in Canadian B roadcasting Corporation v New Brunswick (Attorney-
General).
130
The Court unanimously upheld the constitutionality of a statutory
provision which permitted a sentencing judge to exclude members of the public from
proceedings where necessary to uphold the proper administration of justice. The Court
held that the statutory provision enabled a judge to craft orders which achieved
proportionality between competing Charter rights to freedom of expression, fa ir trial
and privacy, while promoting the proper administration of justice. The Court
emphasised that the proper balance between these interests is context-dependent, and
will vary from case to case. In R v Mentuck,
131
the Court confirmed the broad
application of a proportionality test:
the relevant rights and interests will be aligned differently in different cases, and the
purposes and effects invoked by the parties must be taken into account in a case-specific
manner. ... The consideration of unrepresented interests must not be taken lightly.
132
The Court emphasised that the trial judge must look for reasonable alternatives to a
publication ban, and restrict the scope of any ban as far as possible in order to
safeguard open justice.
An express methodology, which starts from the presumption of promoting open
justice, has therefore emerged from the Canadian case law. The Dagenais-Mentuck test
requires the Court to en gage in a careful identification of the interests engaged by an
_____________________________________________________________________________________
126
127
Dagenais v Canadian Broadcasting Corporation [1994] 3 SCR 835.
128
Ibid [4]. Compare the limited and critical discussion of public interest provided in General
Television Corporation v DPP (Victoria) (2008) 19 VR 68, [39]–[43].
129
Dagenais v Canadian Broadcasting Corporation [1994] 3 SCR 835 [52].
130
131
132
Ibid [37]–[38]. See also R v ONE [2001] 3 SCR 478.
408 Federal Law Review Volume 40
____________________________________________________________________________________
application to limit open justice — including those interests that are not directly
represented by any party to the proceeding.
133
Next, the necessity of the limit on open
justice to protect a substantial countervailing interest must be c onsidered, with explicit
attention paid to the availability and reasonableness of alternative measures. If a limit
to open justice is necessary, the court considers the salutary effects of the ban and
weighs those benefits against it s deleterious effects on the interests that were broadly
defined in the first step. The limit will be imposed only if its benefits outweigh its
harms, and the scope of that limit will be as narrow as is reasonable to achieve the
salutary effec t. The burden of demonstrati ng the necessity for a limit on open justice
remains with the party seeking that limit throughout the process.
The September 11, 200 1 terrorist attacks ushered in a new era of government
secrecy, and a heightened sense of the potential risks of openness in court proceedings.
In the wake of 9/11, Canada introduced ne w substantive crimes and special
procedures for investigating suspected terrorist offences. One such provision
permitted an investigative hearing to take place, in which witnesses were compelled to
attend and answer questions about suspected terrorist offences.
The first judge to conduct an invest igative hearing ruled that it should
presumptively be conducted in camera. The Supreme Court of Canada rejected this
presumption. It restated the open court principle as 'a hallmark of a democratic society'
and a 'principal component of the legitimacy of the judicial process'.
134
While a
majority accepted that large parts of investigative hearings may necessarily be secret, it
held that both the existence of a n investigative hearing and as much of the proceedings
as possible should be made public.
135
The burden of proving the need for secrecy
remains on the party seeking to close the courtroom. The maj ority took this
opportunity to spea k strongly against the temptations of secrecy: 'The unfolding of
events in this case also illustrates how antithetical to judicial process secret court
hearings are. Courthouses are public places.'
136
In 2005, perhaps weary of repeating
itself, a unanimous C ourt rejected an application by th e Crown to seal search warrants
and a ssociated court records: 'This argument is doomed to failure by more than two
decades of unwavering decisions in this Court'.
137
The Court has also upheld limitations on open justice principles, particularly where
these limitations are temporary or narrowly drawn. In all cases, such limitations are
justified on the strength of countervailing interests. In Re Vancouver Sun , Justice
Iacobucci concluded that an application for an investigative hearing must ne cessarily
be held in camera and ex parte. In that decision, the majority also acknowled ged that
applications for search warrants should also be held in camera and ex parte.
138
In
Vickery v Nova Scotia,
139
the Court upheld a decision to deny journalists permission to
take a copy of a confession that was excluded from a trial on the grounds that it was
involuntarily obtained. In other cases, the Supre me Court of Canada has upheld
_____________________________________________________________________________________
133
134
135
136
137
138
139
2012 Open Justice: Concepts and Judicial Approaches 409
____________________________________________________________________________________
publication bans on compl ainants' names in sexual offence cases,
140
and confirmed the
constitutionality of court rules that limit court reporters' use of television cameras and
interview requests in courthouses.
141
Adult defendants' names a re often withheld
where identifying the defendant w ould also identify the complainant. However, the
Court has consistently overruled more sweeping publication bans.
The upshot of this whirlwind tour of the Canadian a pproach to open justice is a
strong and persistent commitment to the principle that open justice is a right that
should not lightly be infringed. The Court has consistently reinforced the starting
presumption of openness, and emphasized that exclusion should constitute the
exception. The Court has also developed the Dagenais/Mentuck test to guide a trial
judge's determination of whether open acce ss should be limited in a given case.
142
This
principle extends a 'firm guarantee of access' to information abou t court proceedings,
including court records.
143
In contrast to the somewhat confusing and sometimes
contradictory Austra lian jurisprudence, the Canadian case law has struck a relatively
coherent balance between the principle of open justice and countervailing interests,
providing clear guidance to trial judges who are tasked with securing open justice, and
maintaining a strong sense of independence f rom legislative and executive impulses
towards secrecy. While the Charter has played an important role in the devel opment of
the Dagena is/Mentuck test, the Canadian c ourts have also identified freestanding
common law bases on which to protect open justice.
144
By directing courts to identify and protect the underlying values of open justice
while accounting for the diversity of countervailing interests that may arise on a case-
by-case basis, the Dagenais/Mentuck test offers a structured approach to managing the
heterogeneity of open justice. The Court's rejection of any principled distinction
between access to court records and access to court proceedings is in keeping with this
focus on the underlying purposes and values of open justice. The Canadian approach
is designed to achieve maximum pr otection of open justice while safeguarding
pressing countervailing interests such as the privacy of sexual assault complainants.
A key difference between the Canadian and Australian approaches lies in the
preparedness of the Supreme Court of Canada to recognise that the benefits of open
justice extend well beyond the media's commercial interest in maximising
circulation.
145
Canadian jurisprudence tends to focus on the rights of Canadian citiz ens
to participate in discussion about governance, characterising Canadians' 'right to know
about the civil or criminal justice system' as the end to which journalistic access to
court information is directed.
146
In this regard, the Canadian approach is very like that
_____________________________________________________________________________________
140
141
Canadian Broadcasting Corp v Canada (Attorney General) [2011] 1 SCR 19.
142
Dagenais v Canadian Broadcasting Corporation [1994] 3 SCR 835; R v Mentuck [2001] 3 SCR
442.
143
Lac d'Amiante du Québec Ltée v 2858-0702 Québec Inc, [2001] 2 SCR 743 [72]; R v Canadian
Broadcasting Corp (2010) 102 OR (3d) 673 (Ontario Court of Appeal).
144
See especially Attorney General of Nova Scotia v MacIntyre [1982] 1 SCR 175; Vickery v Nova
Scotia [1991] 1 SCR 671.
145
Individual Australian judges have also recognized this special role, as de tailed in section
3.b.i. However, other Australian cases challenge this view, and it cannot be said that the
Australian case law as a whole recognizes a special role for the media vis -à-vis the
purposes of open justice.
146
Lac d'Amiante du Québec [2001] 2 SCR 743; Edmonton Journal v Alberta [1989] 2 SCR 1326.
410 Federal Law Review Volume 40
____________________________________________________________________________________
adopted by the UK Supreme Court in Guardian News and Media.
147
This approach
adopts the values central to open justice as a compass by which one may find the right
direction through particular disputes about openness.
IV CONCLUSION
Open justice describes a variety of practices that share a common focus on information
about courts and a common goal of enabling informed scrutiny of government
institutions. Three key features of o pen justice were identified in section 2: its purposes
are multivalent; it can be exercised in diverse ways; and it is not absolute but must be
weighed against other values. While the common law has a longstanding commitment
to open courtrooms, and to enabling fair and accura te reporting of court proceedings,
access to court records is a more contested dimension of the principles of open justice
in Australia.
Contemporary judicial pronouncements in Canad a and England suggest a strong
commitment to open justice. This is especially true of Canad a, where the
Dagenais/Mentuck test applies to any measure taken to infringe open justice and adopts
an expansive interpretation of activities protected by that 'right'. The pr imary benefit of
the Canadian approach is that it accounts for the variety of interests at stake when
open justice is engaged, with particular attention to the public interest in knowing
about court processes and government action; and provides guidance to trial j udges
who must decide applications to limit open justice. Rather than adopting a binary
approach to granting access, Ca nadian courts have crafted outcomes whic h maximise
the openness of justice while safeguarding pressing countervailing interests such as the
privacy of sexual assault complainants. A key dimension of the Canadian appr oach is a
resistance to categorical reasoning i n favour of a recognition that the diverse principles
of open justice, and t he range of countervailing interests that may p otentially be
engaged, require ca reful analysis on a ca se-by-case basis. The Dagenais/Mentuck test
structures t hat analysis in a manner that ensures that no single interest is prioritised
without regard to others. Under the Canad ian approach, the sphere of conflict between
open justice and countervailing principles is carefully d elineated before any decision to
limit open justice is contemplated. When a direct conflict arises the court first decides
whether the public interest re quires that open justice should yield to a countervailing
interest in the particular circumstances and, if so, seeks to achieve a resolution that
impairs open justice as little as possible while safeguarding the prioritised interest.
This approach provides a helpful template for Australian courts.
In Australia, the status of some open justice principles is considerably more
uncertain. The High Court of A ustralia has not offered clear guidance about open
justice, although it seemingly now considers some aspects of open courts to be an
essential characteristic of the judicial process. Older case law emphasises parlia ment's
power to limit the principle of open justice, but e merging Chapter III case law provides
a potential foundation from which to challenge the margins of that power. Judgments
suggest that statutes may vest judges with discretion to limit open justice but also hold
that parliament must not mandate closed courts.
148
Very little case law addresses how
trial judges should exercise a broad ly phrased statutory discretion to limit open justice,
_____________________________________________________________________________________
147
In re Guardian News and Media Ltd and others [2010] 2 AC 697.
148
Russell v Russell (1976) 134 CLR 495; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237
2012 Open Justice: Concepts and Judicial Approaches 411
____________________________________________________________________________________
and it is unclear whether courts possess an inherent power to issue non-publica tion
orders that bind non-parties. The prevailing common law approach to limits on open
justice seemingly turns on whether an application fits within a rigid set of pre -existing
categories, or their analogues. This approach steers judges away from substantive
engagement with the values protected by open justice, and those that stand opposed to
it. However, the discussion provided in section 2 of this article suggests that open
justice is too fundamental to judicial integrity and the separation of p owers to be
rendered vulnerable to parliamentary or executive control and too chimeric to be
reduced to ossified categories of exclusion and inclusion. The Canadian approach to
balancing the principle of open justice against competing values is to be preferred.
One common theme is the role of the media vis-a-vis the pr inciple of open justice.
The public interest in knowing about courts provides compelling reasons to adopt a
robust system of open justice. However, Australian judges have expressed concern
about the extent to which media outlets can be trusted to disc harge their obligations to
provide fair and accurate reporting of court proceedings. In cases where access is
denied or non-publication orders are issued, judges in both jurisdictions often cite a
concern about whether media reports of a proceeding will be inflammatory or simply
misunderstood. Thi s concern is arguably well-founded, and it is particularly acute in
respect of jury trials prior to the commencement of a trial. However, general concern
about media trustworthiness should not, in the a bsence of more specific evidence,
compel non-publication orders or denials of access to court records.
The public interest in obtaining access to detailed and knowledgeable informati on
about court processes should never be curtailed without careful consideration. I n the
absence of detailed and accurate information, misconception and prejudice is likely to
flourish. Media can report court proceedings more ac curately (and thereby be held to
correspondingly higher standards) if they have access to better information. The need
to ensure good information is particularly acute in cases which depend on a detailed
documentary record or which turn on technical arguments. An increase in lengthy and
complicated cases, c oupled with a growing relia nce on documentary records,
highlights the need for effective public access to court records.
Judges and legal academics share an i nterest in encouraging informed debate and
discussion about the judicial system:
The law, of course, largely controls the degree to which the open court prin ciple is
respected. 'Legal culture', however, has as much to do with the fortunes of the 'open
court principle' as does the law. The law often provides only standards — not clear
answers. The extent to which the open court principle is respected therefore comes down
to attitude or the commitment to it among justice system participants.
149
Although there are risks inherent in openness, retreating to covertness holds
tremendous dangers for the justice system and for democratic governance. Australia
deserves a more full y reasoned judicial commitment to open justice than it has, in
recent years, received.
_____________________________________________________________________________________
149
Paciocco, above n 14, 386.
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