The NSW Law Reform Commission (LRC) recently tabled in the NSW Parliament Report 149 - Open Justice: Court and tribunal information: access, disclosure and publication.

The report makes 156 recommendations dealing with the operation of NSW court suppression and non-publication orders and access to information in NSW courts and tribunals. It is informed by the principles that, open justice is fundamental to the integrity of the administration; exceptions to access should be minimal and necessary to protect certain sensitive information, vulnerable people and the administration of justice; and the power and discretion of the judiciary, to control court proceedings and to determine open justice issues, should be preserved to the maximum extent possible.

NSWCCL participated in the consultation process and made submissions on certain aspects of the review. The recommendations of the LRC are generally endorsed by NSWCCL.

The main thrust of the Report is that there should be a new Act to replace the Court Suppression and Non Publication Orders Act (CSPNO Act) and the Court Information Act 2010 (NSW) (CIA) (the latter having never been proclaimed). NSWCCL strongly recommended in its submissions that the CIA be reviewed and enacted, and this will be achieved through a new Act.

LRC recommendations for provisions of the proposed Act include:

A. Open courts

1. General powers to make nonpublication[1] and non-disclosure[2] orders, as well as the new categories of exclusion[3] and closed court[4] orders which deal with the confusion about whether closing the court also has a suppression effect. The recommendation is that only closing the court will have the effect of suppressing information from the closed proceedings, in limited situations, where it is necessary to preserve confidentiality.
2. In relation to an exclusion or closed court order, that a court should set out clear grounds for making the different types of orders, be required to specify the proceedings, or part, to which the order applies and ensure that the order operates for no longer than is reasonably necessary to achieve its purpose.
3. The exception of some specialised courts. Those specialised courts and tribunals include the Drug Court, the coronial jurisdiction, the Personal Injury Commission, the Industrial Relations Commission, the NSW Civil and Administrative Tribunal (NCAT) and the Mental Health Review Tribunal (MHRT).
4. General powers for orders to be made only by a judicial officer unless otherwise provided by the rules of court .
5. Standard exceptions for journalists when an exclusion order is made and allowing of certain disclosures in particular circumstances when a non-disclosure or closed court order is made (e.g. prescribed sexual offence, domestic violence offence and certain AVO proceedings).
6. A broader range of persons (including a journalist, news media organisation and government or government agency) being entitled to apply for a review of an order, leave to appeal an order, and appear and be heard by a court on those applications; except in the case of an exclusion order.
7. Where a person (e.g. a complainant or victim in a sexual offence or domestic violence offence, or protected person in an AVO proceeding) is protected by a nonpublication or non-disclosure order, and they make an application for review, a court should be required to revoke the order (subject to some limitations).

B. Access to records

1. Access to records on the court file in various courts, though also recognising that courts should have flexibility to make rules between different jurisdictions.
2. Access by:
   i) parties and their legal representatives, to any record on the court file for the proceedings,
   ii) journalists and researchers, to certain records on the court file as of right, and to seek leave of the court to access other records,
   iii) members of the public by seeking leave to access almost all records on the court file, except those prescribed in court rules as accessible as of right.
3. Where access to a record is by leave of the court, specification of certain considerations for granting leave, such as, safeguarding the public interest, the impact on the administration of justice, the impact on individual privacy or safety, and reasons for which access is sought.
4. If the record contains information that is subject to a statutory prohibition on publication or a non-publication order, such records should not be prohibited from access entirely, but rather an applicant should be able to seek leave to access them.

C. Procedure

1. A requirement of the court to post notice of the order, whether the proceedings are held in a courtroom or accessed remotely, to prevent an inadvertent breach of a closed court order.
2. The requirement for a public register of non-publication, non-disclosure and closed court orders searchable by journalists, legal representatives of news media organisations, researchers, and publishers. NSWCCL recommended that the government improve the efficiency of notification of suppression and non-disclosure orders to media outlets by starting a register of such orders.
3. In the case of remote access to proceedings, that there should be clear processes established for access by members of the public, journalists and researchers.
4. A statutory review mechanism to ensure that the impact of the new Act, and any potential issues, can be identified.
5. Appropriate resourcing, including to the courts, to implement any reforms resulting from the report.
6. Though NSWCCL argued strongly for the appointment of an independent Public Interest Monitor, the LRC concluded that existing agencies can carry out those functions of monitoring, investigating and prosecuting breaches of statutory prohibitions or orders, including those occurring online.

D. Legislation relating to children and young people

1. That all statutory prohibitions relating to children and young people, including the prohibition on identifying a child involved in criminal proceedings, and other prohibitions concerning children and young people continue to apply, even if the person is deceased. NSWCCL advocated strongly for the status quo especially maintenance of the current legal status relating to the anonymity of child victims and offenders.
2. The application of the prohibition on identifying a child involved in criminal proceedings, to the publication of a person’s identity in a way that connects them with a criminal investigation. This is intended to protect children at the earliest point of their involvement with the criminal justice system. NSWCCL strongly advocated for this further legislative prohibition on naming a child in the period prior to the commencement of criminal proceedings.
3. That the public should be excluded from criminal proceedings against children and from care and protection proceedings. The court should also be able to make an exclusion order in relation to other people, in certain circumstances (e.g. sexual offence, domestic violence and AVO proceedings). These exceptions reflect increasing recognition that people in those proceedings may need additional protection.

Michelle Falstein
16 August 2022

[1] non-publication: a restriction or prohibition on publishing certain information

[2] non-disclosure: a restriction or prohibition on disclosing certain information by any means, including by publication

[3] exclusion: the exclusion of a particular person or class of people, or all people other

than those whose presence is necessary, from the whole or any part of proceedings

[4] closing the court: the exclusion of all people from the whole or any part of

proceedings, other than those whose presence is necessary, which also has the

effect of prohibiting disclosure (including by publication) of information from the

closed part of proceedings.