ACCESS DENIED: the ‘right-to-know’ Act that was never enacted

Australians have read a lot about press freedom this year. What we haven’t read – and many should have – is pivotal information being held by the NSW courts. Information about which the public has a right to know; kept under lock and key by a fragmented system of access.

This system of access requires a written application be made at the court registry at which the case is being heard, in order to view tendered documents. Registries have discretion over whether – and which – documents will be handed over. Thus, seemingly benign information, like court attendance notices, can be ruled off limits for no apparent reason. Other registries may be prepared to hand the same documents over to journalists to prepare fair and accurate reports of the proceedings – but without experience and insider knowledge, it is impossible to tell which registry will offer the greatest chance of return.

This form of “registry shopping” across the state’s courthouses leads to inconsistent news reporting. Access to information can vary wildly depending on the location. Yet a possible solution lies abandoned in NSW legislation.

A little-known bill dubbed the Court Information Act 2010 sits in Hansard gathering dust. Lawyers say this Act would have balanced the “shade” cast by laws that prevent publication or dissemination of information with “light” – offering the public recourse to important knowledge. It is intended to “provide for additional access to the media to certain court information to facilitate fair and accurate reporting of proceedings”.

The bill was passed by both houses of Parliament with bipartisan support and assented to in May 2010 – but it was never proclaimed into operation. It is the oldest piece of non-enacted legislation in NSW.

Now, as part of a review into the operation of open justice in NSW, media lawyers and academics are calling for the urgent commencement of the Act. Others say it has become too outdated to be brought into effect.

Meanwhile, the reverse of this Act, which was passed in the same year – the Court Suppression and Non-Publication Orders Act 2010 – has resulted in soaring suppression orders since it formally commenced in 2011. More than 100 suppression orders are granted by NSW courts every year. This number pales in comparison to those granted by our southern neighbour; Victoria accounts for half of the 900 orders currently in force across Australia.

The penalty for breaching an order in NSW can be a fine of more than $100,000 and up to one year in prison.

One of the objectives of the Court Information Act is to “provide for open access to the public to certain court information to promote transparency and a greater understanding of the justice system” and “promote consistency in the provision of access to court information across NSW courts”. But journalists are not the only ones struggling to navigate a system that frequently restricts access to documents. 

“Despite the fact that … the Suppression Act has been in force for nine years, the Information Act – the light to its shade – has never been brought into effect … and we have no coherent explanation as to why,” Nine editorial counsel Larina Alick tells LSJ.

“What happened in 2010 is when the Court Suppression and Non-Publications Orders Act was made in NSW, it basically created a code for making these orders, and the number of orders made shot through the roof.

“The [Court Information Act] sets out a regime for members of the public, including the media, to get access to information from the courts, such as court documents, pleadings, agreed statements of fact and things like that. There is an Act that says you can have all those documents, but it is not in effect. 

“Until that is actually [resolved] we have no clarity and no consistency in getting any information from the courts. We can go to one court registry and get a copy of a court attendance notice in a sexual assault case and go to another registry and be refused it. 

“Once something is codified, it suddenly becomes a lot easier to do. So, ironically, suppression has become codified and is a lot easier to do, but getting information is not.”

Unenacted yet under review

The NSW Law Reform Commission is currently conducting a review into open justice, announced by NSW Attorney General Mark Speakman in February.

The terms of reference require the review to investigate “whether the current arrangements strike the right balance between the proper administration of justice, the rights of victims and witnesses, privacy, confidentiality, public safety, the right to a fair trial, national security, commercial/business interests, and the public interest in open justice”. Particular consideration is being given to the unenacted Act.

“It’s important that restrictions on access to information in court cases is justified,” Speakman said in a statement.

“Justice should not only be done and, unless there is good reason, should be seen to be done.” 

The current state of affairs in relation to access to court information has been described by solicitor Tim Dick as “an untidy collection of legislation, rules and practice, which change depending on the court, judicial officer and registry concerned”.

The Australian Right to Know Media Coalition argues the impact of not having a consistent information access regime in NSW courts and tribunals should be critical to the Commission’s review, given the Act remains unproclaimed and its impact cannot be assessed.

“We believe this makes it an important element of the review,” the coalition’s submission to the review said. 

However, some lawyers remain unconvinced that the Act is in the best interests of everyone involved with the criminal justice system. In its submission to the NSW Law Reform Commission, the Law Society of NSW has recommended that the Act be reconsidered and revised, “due to the significant period of time that has elapsed since the [Act] received assent, without its provisions having commenced”. 

“The Law Society strongly supports the principle of open justice and access to court information, while emphasising the need to balance this principle to ensure that access does not unduly prejudice the rights of parties to the proceedings,” the Law Society wrote. 

Research restricted

News organisations and journalists are not the only non-parties navigating red tape to access court information. Researchers and academics are often deterred from carrying out empirical work on the operation of NSW courts – thus depriving policymakers and law reformers of a valuable source of knowledge. 

Julia Quilter, Associate Professor of Law at the University of Wollongong, has produced acclaimed research into some of the state’s recent controversial criminal justice policies, including the one-punch laws and amendments to the Bail Act.

She says the work of researchers can provide a “loop back” between lawyers and justice policy makers. Without the day-to-day burden of practising law, an academic can be a valuable resource in examining “big picture” issues within the justice system. 

“But without that access, it can be very, very trying to do good evidence-based empirical research,” Quilter tells LSJ.

In her submission to the Law Reform Commission, Quilter and her colleague Luke McNamara reveal that just nine local court judgments have been published online on Caselaw, compared with 174 District Court judgments, 280 Supreme Court decisions, and 191 from the Court of Criminal Appeal. 

To put those figures in perspective, the NSW Bureau of Crime Statistics and Research (BOCSAR) reveals more than 140,000 defendants had charges finalised in the Local Court in 2018, and 4,541 had criminal matters completed in the District Court during the same period.

“When these figures are compared with the number of matters finalised in NSW courts each year, the stark underrepresentation of the Local Court and, to a lesser extent, the District Court, in published judgments is clear,” their submission says. 

While improved access to published reasons and documents would assist in developing rigorous research, Quilter says “often more important is [obtaining] access to transcripts”, which is deemed ‘open access information’ allowed under section 5(d) of the Court Information Act. 

Researchers stare down thousands of dollars in fees to access transcripts. Transcripts can provide a more comprehensive picture of the evidence compared with sentencing remarks but are costly to obtain through court registries. The cost of a transcript of recent proceedings is $91 for up to eight pages and $11 for each page thereafter. The cost increases once the proceedings are more than three months old, which is often when researchers begin their work. In comparison, in Victoria an audio recording of local court proceedings can be purchased for $55.

“The result is that a research project with a methodology that includes analysis of transcripts for a single case will require a budget of many thousands of dollars,” Quilter and McNamara argued in their submission.

Quilter said this can make significant and empirical academic work unfeasible. 

“You can apply for a waiver for the fees, but you are not assured of any of that to start with,” she tells LSJ.

“As a researcher, I do not have a right to access this information and the process [for applying] is unclear most of the time … it is very ad hoc … and it should be a clear and transparent process. 

“Whether generally, or at least where access is sought for a non-commercial purpose – like academic research – there is a strong argument that substantive open justice demands that fees should be waived or significantly reduced.”

What has changed?

The Act was passed at a time when social media use was common but not nearly at the epidemic levels it has reached today. The question of who can identify as a journalist – when they may simply be sharing the information with a handful of Twitter followers – has become murkier. 

The Court Information Act, under section 10, describes a “news media organisation” as a “commercial enterprise that engages in the business of broadcasting or publishing news or a public broadcasting service that engages in the dissemination of news through a public news medium”.

Legal Aid NSW has made a submission to the inquiry, arguing the decade-old Act should be reviewed before any potential commencement. It notes “the time that has elapsed since the [Act] was passed by the NSW Parliament” and also suggests that special rules be applied to requests for records from the Children’s Court. 

The NSW Council for Civil Liberties (CCL) has argued that “the current arrangements may not strike the right balance between the proper administration of justice, the right to a fair trial and the public interest in open justice”.

“NSWCCL recommends that the Court Information Act 2010 (NSW) is reviewed, updated and proclaimed,” the NSW CCL’s submission said. 

“Media outlets play a crucial role in facilitating open justice, however media groups complain that with fewer journalists and greater workload pressures, there are less resources available to challenge suppression orders,” it continues. 

“At the very least, the speed and efficiency of notification of orders, to media outlets, should be improved and public National and State registers of such orders kept.”

The NSW CCL recently announced former NSW Director of Public Prosecutions (DPP) Nicholas Cowdery as its new President. But the office where Cowdery formerly presided – as DPP until 2011 – does not support enacting the legislation. 

The NSW DPP said in its submission that it take[s] the view that open justice is about achieving the correct balance between the interests of the media and Courts. 

“While strongly supporting open justice, we would like to see changes that ensures that open justice operates within a clearly expressed and readily accessible legislative framework,” its submission said.

“We do not support the commencement of the Court Information Act 2010, and we have consistently raised issues with the operation of this Act should it ever commence.” 

Better access, better reporting

Quilter believes that some blanket criticism of media reporting is unwarranted.

“Considering the time pressures and how under-resourced they are, I think overall the media do a great job,” she says. 

Alick says the lack of clarity in obtaining information has coincided with an explosion of suppression orders being made “out of an abundance of caution”. The decision of Fairfax v Ibrahim [2014] established under common law that a suppression order should only be made if it is necessary; and it cannot be necessary if it will be futile or ineffective.

“As soon as you have a codified method of making these orders, no matter how many safeguards in the world you have in place in the legislation itself, the orders get made. Because there is legislation saying we can,” Alick tells LSJ. 

“We are trying to report accurately on what is happening in a criminal case. There is an importance to that. Let us do our job.”