BLAW10002 Lecture Notes - Lecture 7: Form (Document), Bastion, In Camera
14 May 2018
School
Department
Course
Professor
Open Justice
Principle of Open Justice
•Proceedings normally conducted in open court
•Open justice is a hallmark of judicial (as opposed to administrative) procedure
-Dickason v Dickason (1913) 17 CLR 50
•Open court - a court which the public has a right of admission and where it is plain to an
interested member of the public that he or she has a right of access
What does Open Justice mean?
•The judicial process should be transparent and open to public examination
•No member of the court may seek anonymity
•Judges must pronounce their decisions in open court and must provide publicly available
reasons
-Judge must specify if judgement is to be made private
•Evidence must be heard in open court
-Often evidence is testified in affidavit form (document)
-Issue whether documentary evidence should be made more readily available to the public
•What occurs in court can be reported to the public at large
-Nothing should be done to prevent the fair and accurate reporting of court proceedings
•Can only depart from the above rules in circumstances of necessity (very high threshold to
meet)
Why Open Justice?
•Acts as a bastion against the exercise of arbitrary power by the judge
-Secrecy gives the impression that perhaps wrongdoing or bias was present in
deliberations not subject to the public gaze
-Ensures judges act properly and judicially
-Not acting on what they believe is right or wrong - using reasoning
•Provides the impetus for high judicial performance
-Ensures that the councils for the respective parties, witnesses, judge act properly
•Acts as a check on witnesses
-Less likely to lie as they are open to scrutiny
-Sir Blackstone (England 1765) said the open examination of witnesses “in the presence of
mankind, is much more conducive to the clearing up of truth”
•Professional and public scrutiny of the judicial process
•Educative function
-Publicity regarding legal standards educates the public about how they should go about
conducting their affairs
Scott v Scott [1913] AC 417
•Unauthorised distribution of documents from court case conducted in camera
•Court held in favour of publication due to importance of an open court
•Stated exceptions of an open court were for suits affecting wards, lunacy proceedings and
where secrecy is the essence of the case
McPherson v McPherson (1936) AC 177
•Divorce proceedings voidable because not conducted in an open court
•Sufficiently evident that court was not open as held in court library behind a door with
‘Private’ sign
-Sends a message to broader society of deviant behaviour that is unacceptable
-Doctrine of precedent - in order to know what previous courts have decided, proceedings
must be open
•United Nations International Covenant on Civil and Political Rights: Article 14
•“Any judgement reddened in a criminal case or in a suit at law shall be made public except
where the interest of juvenile persons otherwise requires or the proceedings concern
matrimonial disputes or the guardianship of children”
•Publicity of the hearings is an importnat safeguard
•Courts have the power to exclude all or part of the public if necessary
•If not a necessary situation, openness must be extended to all (not limited to certain groups)
Open Justice and the Media
•Courts have confirmed the role of the media in contributing to open justice
-Query as to fair and accurate reporting - may exaggerate
-May not necessarily report the cases that are most important to society, usually publish the
ones that are most sensational/interesting
-Criminal trials are often reported heavily, whereas civil cases are much more relevant to
everyday people, but lack coverage.
•BUT, the media have no greater legal right to attend the court than any other member of the
public
•In practice, the media tend to be given greater rights
-The courtesy of sitting in the press bench during the trial
-Being able to take notes while the court is sittings - sometimes also extended to veideo/
audio recording and the use of social media
-Having priority over ordinary citizens for position in the court room as they represent the
general public
-Having access to documents tabled in court and transcripts of court proceedings subject
to some provisions
•It is important that the media are aware of the principles of open justice to defend their right of
freedom of the press
•Judges sometimes are tempted to restrict the reportage of cases that are:
-Controversial or distressing
-Involving allegations of sexual assault
-Murder or terrorism
-Involving children, clergy, judicial officers or police
-The prosecution and defence have consented to non-publication orders
•Judges need to be reminded of the important role that media play in the reportage
Derogating from Open Justice
•Conducting proceedings ‘in camera’ (in private)
•Concealment orders
•Pseudonym orders
-Parties or witnesses are referred in in court and in court documents by pseudonym !
e.g. parties A and B
•Suppression or non-publication orders
-Information that is heard in the court by members of the public cannot be published outside
the court
•Only where derogation is necessary in the interests of administration of justice on the
proceedings in question (or possibly to protect the administration of justice as a continuing
process)
•It is a question of necessity not:
-expedience (convenience); or
-a balancing exercise (the order is either necessary or not - must be ordered if it is a
necessity)
