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Biber, Katherine --- "Inside Jill Meagher's Handbag: Looking at open justice" [2014] UTSLRS 4; (2014) 39(2) Alternative Law Journal 73

Last Updated: 16 February 2017

Inside Jill Meagher’s handbag: Looking at Open Justice.[1]

Katherine Biber, Faculty of Law, University of Technology Sydney

Abstract:

Open justice is the belief that accountability and legitimacy within the legal process can be achieved through making accessible information about court procedures, court records, laws and judicial decisions. This paper examines several recent high-profile instances where criminal evidence was released to the public, using open justice mechanisms, and argues for a more robust assessment of the sensitivities of this material before it is disclosed.

_______________________________

Opening Jill Meagher’s handbag

On 22 September 2012, Jill Meagher was brutally raped and murdered in a Melbourne laneway as she walked home. In the days following her disappearance, during the police investigation and the discovery of her grave, 30,000 mourners took to the streets of Melbourne, demanding respect and safety for women in public places. On 5 April 2013, Adrian Bayley pleaded guilty to Meagher’s murder and three sexual assault offences against her. He is now serving a life sentence in prison.

On 13 March, following Bayley’s committal for trial on 12 March, visitors to the Herald Sun, The Age, and ABC websites could take a close look inside Jill Meagher’s handbag. Photographs of Meagher’s handbag, together with other crime scene photographs from several police photo books, were published by these and other media outlets. Whilst a woman’s handbag might usually be assumed to be a private space, Meagher’s status as much-mourned homicide victim disentitled her to this customary courtesy.

In law, the disclosure of these photographs is regarded as an exercise of ‘open justice’. This article explores the concept of open justice in the context of criminal evidence. After explaining the origins and current interpretation of ‘open justice’ in Australian proceedings, it proposes that the countervailing concept of ‘sensitivity’ might be used when balancing competing arguments about disclosure and non-disclosure. It identifies contemporary media practices which take advantage of open justice mechanisms, and contrasts these with attempts by scholars to seek access to legal information through open justice instruments. This article argues that open justice is not always ‘open’, not always ‘just’, and that Australian courts currently lack a robust jurisprudence of open justice.

How did we, strangers to these proceedings, get access to the contents of Jill Meagher’s handbag? Is this open justice? During the committal proceedings in the Melbourne Magistrates’ Court in March 2013, numerous media organisations applied for access to a significant amount of evidentiary material that was to be tendered. Drawing the application to the attention of the parties, Deputy Chief Magistrate Broughton said “there, in my view, will be some issues about whether that access ought to be permitted”.[2] She then reminded the parties of the “appropriate and dignified manner in which these proceedings need to take place”, and made it clear that “the principles of open justice” would apply.

Whilst many of the requested photographs were ultimately released by the Melbourne court, around the same time a Brisbane court released photographic exhibits presented at the committal proceedings against Gerard Baden-Clay, who is accused of murdering his wife Allison.[3] A separate Brisbane Court, hearing manslaughter charges against parents accused of neglecting their baby twins until they starved to death, released photographs of their chaotic and squalid home, taken by police photographers.[4] In the NSW Supreme Court, Roger Dean pleaded guilty to 11 counts of murder and 8 counts of grievous bodily harm after setting two fires in the nursing home at which he worked. That evening, his police interview was screened on television news programs.[5] Around the same time, the NSW Director of Public Prosecutions released the police interview with murderer and fugitive Malcolm Naden, with the agreement of defence counsel and the courts.[6] These are just several examples in a burgeoning tradition of media agencies publicising evidence and exhibits tendered during criminal proceedings, with the sanction of the courts. Open justice demands that the public nature of criminal proceedings must take priority over any private, personal, sensitive or humiliating aspects of the evidence.

What is open justice?

Open justice is the belief that accountability and legitimacy within the legal process can be achieved through making accessible information about court procedures, court records, laws and judicial decisions. ‘Open justice’ emerged as a principle together with ‘open government’, which in modern democratic governance is the ideal of transparency; the creation of a public right to scrutinise the data and decisions of those who govern us. Eighteenth century proponents of transparency, including Kant, Rousseau and Bentham, imagined very different notions of open government and open justice to those of the contemporary ‘transparency movement’ comprised of groups such as Transparency International, OpenSecrets.org or Wikileaks. As we have learned through the recent conviction of Bradley/Chelsea Manning, and the mass-leaks allegations against Edward Snowden, as well as unresolved fears about the extradition of Julian Assange, transparency is also deployed more radically, in the exposure of official data by those who hope that it may transform or destroy the authority of state institutions.

In the current turn towards transparency, we have learned a lot that was once secret, and we can infer much more about the secrets that states continue to keep. However, the language of ‘transparency’, ‘secrecy’ and ‘openness’ has got muddled in broader debates around disclosure and non-disclosure, and this article draws attention to some of the confusion that has arisen, and some of the consequences that have befallen, from not making clear the distinction between, for example, secrecy, privacy, confidentiality, privilege, sensitivity, and other justifications for non-disclosure. Further, there are unclear distinctions between the forms of non-disclosure that might be justified by the administration of the state, and the forms of non-disclosure that protect individuals from humiliation, hurt, harm, or a breach of trust.

Former NSW Chief Justice, JJ Spigelman has said that open justice is “one of the most pervasive axioms of the administration of justice in common law systems”.[7] In 1913 in Scott v Scott, the House of Lords, described it as “a sound and very sacred part of the constitution of the country and the administration of justice”;[8] that case was cited recently in the NSW Court of Appeal by Bathurst CJ and McColl JA who wrote that the contemporary principle of open justice can be stated in Lord Atkinson’s phrase: “in public trial is [to be] found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means of winning for it public confidence and respect”.[9] Open justice demands that justice be seen to be done. Courts must be open to the public, and any non-compliance with the principle is permitted only in the most limited and defined circumstances. Non-adherence to the principle of open justice must only be permitted if it is ‘necessary’,[10] although necessity is not to be construed narrowly.[11]

In Australia, open justice is understood as a collection of principles and rules drawn from common law and statutory sources, as well as an emerging constitutional jurisprudence. As Emma Cunliffe writes, “Australian case law has not yet coalesced around a coherent theory of the substance of open justice principles”.[12] Australian jurisdictions take very different views of open justice, and there are inconsistencies within jurisdictions too. There is no consistency about the underlying presumptions, about which materials are ‘open’, about the processes to be followed, and about whether reasons need to be given by a requesting party.[13] Dawson and Roughley note that these inconsistencies affect media organisations, but also researchers, witnesses, and others to whom court records are of significance.[14]

‘Sensitivity’ in open justice

In the committal proceedings against Adrian Bayley, for example, the magistrate, the parties and counsel for three media agencies, attempted to resolve questions of access using the undefined concept of ‘sensitivity’. Whilst there is an emerging jurisprudence of sensitivity,[15] in the Melbourne court the term ‘sensitive’ is deployed in different ways. At times it refers to the dignity of Jill Meagher; at times to the distress it may cause to her family; at times it describes the effect of this material upon the nominal viewer; sometimes it refers to the danger of prejudicing Bayley’s proceedings.

The lawyer representing the media organisations (Herald and Weekly Times, the Australian Broadcasting Corporation and Channel 9), Jean-Paul Cashen, said to the magistrate, “I understand there has also been an indication from your Honour that there is some sensitive material”—

Her Honour: Extremely sensitive material.

Cashen: Can I say from the outset, my client certainly doesn’t seek any of that sensitive material. ... It is often the case that there is some material that’s sensitive—

Her Honour: Mmm. Very sensitive and very distressing.

Cashen: Yes, your Honour. I can’t make it any clearer that my clients don’t seek access to that type of material. The victims in this case are paramount. My clients don’t seek to exacerbate their distress in any way.

Ordinarily, the term ‘sensitive’ arises in the laws and processes relating to information management. Where information is held by government agencies, the principles of transparency, openness, and freedom of information sometimes give way to non-disclosure by reference to ‘sensitivity’. The term does not apply with a consistent meaning. For example, the Australian Privacy Principles define ‘sensitive information’ as personal information which is also information about an individual’s religious or ethnic origin, political opinions, religious or philosophical beliefs, sexual orientation, criminal record, health information, genetic or biometric information.[16]

By contrast, under the federal Information Security Management Guidelines, there are several separate classifications for sensitive information: Sensitive, Sensitive: Personal, Sensitive: Legal, and Sensitive: Cabinet. Of these, only Sensitive: Personal aligns with the privacy provisions above.[17] In NSW, ‘sensitivity’ applies to decision-making about access to health records; sensitivity arises where the records concern children, people with disabilities, people in unequal or dependent relationships, Aboriginal or Torres Strait Islander peoples, people who are incarcerated, amongst others.[18]

In the Melbourne Magistrates’ Court, it is likely that another kind of ‘sensitivity’ is being recognised, one which takes account of sensibilities, emotions and harm. As the Oxford English Dictionary confirms, sensitivity is connected with the senses, it refers to acute feelings, it demands careful treatment.[19] Without having seen the evidence that the magistrate finds ‘sensitive’, counsel for the media agrees that such material is not sought, on the grounds that it would exacerbate the distress of victims. However, there is no discussion of whether the material that is sought – much of which was released – might also be insensitive or distressing. Without needing to assemble a hierarchy of harm, and conceding that there are disclosures which would have been worse, is it insensitive for us open Jill Meagher’s handbag?

Open justice and the media

Cashen: As a part of fair and accurate report[ing] of these proceedings it’s essential—

Her Honour: Look, I don’t think there’s any issue of that. Principles of open justice. [...] We all agree that the principles of open justice are paramount.

Most of the Australian jurisprudence of open justice, indeed probably the entire body of case law in this area, responds to media claims for access to court records and information. The primary assumption here is that the media is the conduit for justice. As Colleen Davis wrote, the benefits of open justice arise “not so much the openness of court proceedings, but the publicity accorded to them”.[20] A secondary assumption is that “fair and accurate reporting” will be facilitated by the disclosure of court records. Whilst there has been concern expressed that media reporting may be “inflammatory or simply misunderstood”, Cunliffe writes that even if these fears are well-founded, they ought not to guide decision-making.[21] Canadian courts, as Cunliffe shows, recognise that the benefits of open justice, whilst they provide commercial benefits for the media, have a broader impact upon civic participation.[22]

In the present instance, to say that the photographs of Jill Meagher’s handbag reflect “fair and accurate reporting” is misleading; there was no “reporting”. Instead, the images appeared as part of an online ‘slideshow’; on The Age website the captions merely state that these photographs were “tendered”, and on the Herald Sun website the caption states “Jill Meagher’s ABC ID is visible in her handbag which was retrieved from a Brunswick lane after briefly going missing”. Significantly, when the photographs were published there was no report of earlier allegations that the handbag had been moved, tampered with, or ‘staged’ for the photographer.[23]

Media requests for access, as this example shows, use the promise of “reporting” as justifying their claim. In fact, these news “reports” are merely vehicles for the images, and the images drive traffic onto their websites.

Her Honour: What you’re saying is ... material which is extraordinarily distressing, embarrassing, some of it very humiliating, that’s not the sort of material judgment needs to be made [about]. ... I think it’s pretty clear, obviously some of the traumatic and distressing material, I think we’re all on common ground that there’s no public interest in that.

In her discussions with the parties, Her Honour identifies two primary issues that concern her. One issue arises from the fact that Meagher was sexually assaulted and that there are legal mechanisms to attempt to protect sexual assault complainants from undue distress and embarrassment; Her Honour considers whether these provisions ought to be engaged. The other issue arises from Her Honour’s concerns about some of the video footage; she says, “I’m talking about the scene of the grave”. The parties agree, and the media does not object, that this footage should not be made available to the media. However, in November 2013, media accounts reported the “shock” and “sadness” caused when a police detective committed an “error of judgment” by showing to a civilian audience a photograph of Meagher’s partially-naked body in a shallow grave.[24]

Given the prurience of so many contemporary Australian media reports of crime, it is difficult to see where a line is actually drawn. We can watch a man being killed by a drunk driver,[25] we can read the private diary of a murder victim,[26] we can watch chilling footage of a woman being dragged, allegedly to her death, by her fiancé,[27] we can look inside a murder victim’s handbag. Whilst the notion may invoke revulsion in most of us, as a matter of legal principle, and given the nature of all these other evidentiary disclosures, why can’t we see her grave?

When announcing her order, the Magistrate said “I am going to grant the application to those members of the media who have made their application on the usual terms, access will be permitted to all those documents save for [the excluded documents]”. She goes on to explain that the decision not to release some materials gives “regard to the needs for the administration of justice to be served”. She then adds, “noting the nature and purpose of a committal proceeding, and the overriding duty to ensure that the accused has a fair trial, and that the administration of justice is served so that the community’s interests are also served” this order will ensure that “all of the issues that need to be properly dealt with by the Supreme Court can be properly traversed without any interference of any other issues, if I can describe it loosely like that. I’m satisfied in the circumstances that the presumption of open justice [...] ought to be usurped by restricting access [...] to the items I’ve identified”. She then commits Bayley to stand trial.

Open justice for scholars?

It is worth knowing that the principles of open justice also apply to scholars seeking access to court materials. I was only able to obtain access to Bayley’s committal proceedings after making my own application to the court. In Victoria, in the Magistrates’ Court, the media can make applications for access to materials under the Principal Registrar’s Practice Direction No 7 of 2013, and the decision will be made by the presiding magistrate.[28] Non-parties (other than the media) must make their application to the Chief Magistrate, who determines applications under the Magistrates’ Court Audio Recording Protocols,[29] and who may impose conditions to their decision. However non-parties (including scholarly researchers) will only be able to access either transcripts or audio recordings of the proceedings. Non-parties are not permitted to access any other materials from the court file.[30] Audio recordings, if permission for access is granted, cost $55 per day.[31]

By way of comparison, in New South Wales, access to court files is governed by common law, court rules and practice notes.[32] Attempts to provide statutory clarity – and a significantly more ‘open’ regime – failed; the Court Information Act 2010 (NSW), although it had bipartisan support, has never been proclaimed.[33] Currently in NSW, open justice is a principle and not a right, and there is no right for non-parties to access court records.[34] Nevertheless, in NSW many legal instruments emphasise that open justice must apply, and provide presumptions in favour of openness and disclosure.[35] The NSW Court of Appeal has said that “the administration of justice must take place in open court”,[36] and this is especially so in criminal proceedings.[37] In civil cases, applications for access by the media require open justice to be balanced against the interests of the parties; in Australian Securities and Investments Commission v Rich (2001), Austin J set out the considerations which weigh against the principle of open justice, and which include “prematurity, in the sense that the evidence has not been tested”, the danger of “trial by media”, the need to weigh legitimate public interests against “the urges of prurience”, “surprise or ambush”, commercial confidences, and the potential abuse of the fair reporting privilege at s27 of the Defamation Act 2005 (NSW).[38]

In the NSW Supreme and Districts Courts, practice notes create a presumption of access by non-parties for certain types of materials (pleadings and judgments in concluded proceedings, documents recording what was said in open court, material admitted into evidence, information that would have been seen or heard in open court), unless a judge or registrar determines it should not be available. All other materials are not accessible unless there are exceptional circumstances.[39] Dawson and Roughley write that, whilst the practice notes assume that access applications will be made to the registrar on the relevant template, “[i]n practice, applications are often made to the trial judge with varying degrees of success”.[40] What varies may be the decision (yes/no), or the types of materials to which access is granted, or whether access permits the materials to be copied, or merely inspected. In my own research, I sought access to a NSW Supreme Court file in which media access to evidence in a murder case might have been considered. I made my application,[41] and sometime later received a telephone call with the result. I was permitted to view a transcript of a small part of the proceedings, I could inspect it in the Supreme Court Registry, and there was no cost. When I went to view the materials, I could see that the Registrar had sought the opinion of the judge, who had responded “I have no objection to access”. My access had been granted under Uniform Civil Procedure Rule 36.12. As a non-party, it seemed evident that the Registrar had determined that I was “any other person appearing to have a sufficient interest in the proceedings”.[42]

In contrast, applications to courts in Queensland follow a different process. I sought access to transcripts in two cases; the decision about media access to Allison Baden-Clay’s diary, and the decision to release the photographs from the crime scene where baby twins died of starvation. In Queensland, access to exhibits is determined by the court, on application, and upon payment of a fee. However, access to transcripts is determined by Auscript, the corporation that provides transcription services to Queensland courts. Auscript provides transcripts for a fee.[43] I was quoted fees for transcripts of two days’ hearings. Each day’s transcripts averaged at a cost of $1526. 58, including GST. Despite my explanation that I was undertaking scholarly research into open justice and that the costs were disproportionate with those of other Australian jurisdictions, Registry staff informed me that there were no exceptions.On their website, Auscript advertise their corporate values and vision: “Our Culture: Totally Client and Quality focused and as a result ‘easy to do business with’. Our Daily Mantra: ‘Quality delivered on time, every time.’”[44] In a context where private corporations are increasingly contracted to provide formerly-public services, these private providers are not necessarily subject to the same disclosure requirements as state agencies, creating a barrier to ‘open’ justice.

There seems an implicit irony in the realisation that ‘open justice’ is available to media organisations that, in exchange for a fee to the court, have the opportunity to make arguments before a judge justifying their application.[45] However, at least in Queensland, scholars seeking to study and scrutinise ‘open justice’ have no opportunity to present arguments in support of their applications, and are nevertheless compelled to pay their fees to a corporation. Recently in NSW, legislative amendments have also restricted the ability of bloggers and other informal ‘media’ from reporting from courtrooms,[46] further limiting the ability of non-parties who are also regarded as non-media to scrutinise court proceedings.[47] The most accessible jurisdiction in this respect is the High Court of Australia, with transcripts, current case submissions, and now audio-visual recordings of Full Court hearings now freely accessible on their website.[48] In the Northern Territory, South Australia, the Australian Capital Territory and Tasmania relatively informal non-party access regimes operate;[49] in Western Australia a detailed administrative process operates.[50]

The principle of open justice is not controversial, but in the broader contemporary cultural turn towards transparency in government, we encounter an abundance of evidentiary materials that have not previously been disclosed publicly. With this mass release of evidence, and new genres of media reporting about this evidence, we might also need new concepts for thinking about it. We may need a new language to explain why, in some instances, we might oppose open justice. Being confronted with the contents of Jill Meagher’s handbag, unaccompanied by any information that might assist us to understand the criminal proceedings brought against Adrian Bayley, we are the beneficiaries of open justice. And yet, more than anything, these images make us complicit in her humiliation, her indignity and her suffering. Without robust, consistent and conscientious decision-making about access to court information, we cannot claim that we truly practice open justice.


[1] Thankyou to Victorian Chief Magistrate Peter Lauritsen and staff at Magistrates’ Court of Victoria Magistrates’ Support Services for access to audio recording of court proceedings, Mark Ierace SC, Danny Boyle, Michael Byrne QC, Dean Biron, Starla Hargita, Althea Gibson, David Rolph, David Carter, Margaret Rischbieth and Karen Crawley. This research is supported by the Australian Research Council.
[2] Victoria Police v Adrian Bayley, Melbourne Magistrates’ Court (Criminal), Court 13, 12 March 2013 (C12725657), Broughton DCM presiding. All references herein to this matter are taken from the audio recording of proceedings obtained from the court, with permission.
[3] Police v Gerard Robert Baden-Clay, Magistrates Court of Queensland, Unreported judgment delivered on 20 March 2013 by Judge Butler SC, Chief Magistrate.
[4] See, for example, Brooke Baskin, “Images released of home in which starved twins died in Brisbane's Sunnybank Hills”, The Courier-Mail, 7 August 2013 (online edition).
[5] See, for example, http://www.abc.net.au/news/2013-05-29/police-interview-with-nursing-home-murderer-roger-dean-released/4720940
[6] See, for example, http://media.smh.com.au/news/national-news/i-would-have-shot-police-naden-4239403.html
[7] JJ Spigelman, “The Principle of Open Justice: A Comparative Perspective”, UNSW Law Journal, Vol 29(2), 2006, 147 at 150.
[8] [1913] UKHL 2; [1913] AC 417 at 473.
[9] Rinehart v Welker and Ors [2011] NSWCA 403 at [32] (Bathurst CJ and McColl JA), citing Scott v Scott [1913] UKHL 2; [1913] AC 417 (at 463).
[10] ‘Necessity’ and ‘exceptional circumstances’, raised in Rinehart v Welker at [27], are now part of the statutory framework at s8(1) of the Court Suppression and Non-Publication Orders Act 2010 (NSW).
[11] Fairfax Digital Australia & New Zealand Pty Litd v Ibrahim [2012] NSWCCA 125 at [8] (Bathurst CJ); [47-48] (Basten JA).
[12] Emma Cunliffe, “Open Justice: Concepts and Judicial Approaches”, Federal Law Review, vol 40, 2012, 385 at 405.
[13] See Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information, ALRC 98, 7.25, 2004.
[14] Sandy Dawson and Fiona Roughley, “Suppression and non-party access”, Bar News, Autumn 2013, 49, at 50.
[15] See Katherine Biber, “In Crime’s Archive: The Cultural Afterlife of Criminal Evidence”, British Journal of Criminology, vol 53(6) 2013, 1033 at 1042-1045.
[16] Privacy Act 1988 (Cth) Schedule 1. The Australian Privacy Principles commenced on 12 March 2014.
[17] Australian Government (2011), Information Security Management Guidelines, 19 July, available online at www.protectivesecurity.gov.au/informationsecurity/Documents/Australian%20Government%20classification%20system.pdf
[18] Health Records and Information Privacy Act 2002 (NSW), Guideline 4.4(d).
[19] Oxford English Dictionary 2000-
[20] Colleen Davis, “The Injustice of Open Justice”, James Cook University Law Review, vol 8, 2001, 92 at 96.
[21] Cunliffe, above n 12 at 411.
[22] Cunliffe, ibid at 409.
[23] Examples of these news reports include: http://www.theaustralian.com.au/news/nation/police-examine-brunswick-threat-links-to-jill-meagher/story-e6frg6nf-1226480916769 and http://www.news.com.au/national-news/missing-woman-jill-meagher-seen-on-cctv-speaking-to-man-in-blue-hoodie-before-vanishing/story-fndo4eg9-1226479708333
[24] Examples of this news report include: http://www.theage.com.au/victoria/senior-detective-shows-graphic-meagher-photos-at-fundraiser-20131127-2yanc.html#ixzz2mIVHoo92
[25] http://au.news.yahoo.com/vic/a/19795075/cctv-captures-drunk-drivers-deadly-crash/
[26] See, for example, Kate Kyriacou, “Queensland Court releases journal entries by Allison Baden-Clay, one written days before she disappeared”, The Courier-Mail, 15 December 2012 accessible at http://www.couriermail.com.au/news/queensland/brisbane-supreme-court-releases-journal-entries-by-allison-baden-clay-one-written-just-days-before-she-disappeared/story-e6freoof-1226537242449
[27] http://www.smh.com.au/nsw/video-reveals-the-moments-before-lisa-harnum-died-and-what-simon-gittany-did-next-20131101-2wq4h.html See also Katherine Biber, “Surveillance is our new normal, so let’s take a closer look”, The Conversation, 5 November 2013, accessible at: http://theconversation.com/surveillance-is-our-new-normal-so-lets-take-a-closer-look-19244
[28] Practice Direction 7 of 2013, Application for Media Access to Materials, Principal Registrar, Magistrates’ Court of Victoria, 29 July 2013.
[29] Audio Recording Protocols Facts Sheet, Magistrates’ Court of Victoria, May 2013. The Chief Magistrate is required to make decisions wherever applications are made by non-parties, where proceedings are subject to suppression orders, or where the case relates to a sexual offence.
[30] Magistrates’ Court Act 1989 (Vic), s18(4).
[31] Request for Copy of Audio Recording, Magistrates’ Court of Victoria, August 2013.
[32] Including Supreme Court Act 1970 (NSW), s23; Uniform Civil Procedure Rules 2005 (NSW), rule 36.12; District Court Rules, 1973, Pt 52 r 3; Local Court Rules 2009, Pt 8; Practice Note SC Gen 2 “Access to court files” (Supreme Court); Practice Note No 11 “Access to court files by non-parties” (District Court); Local Courts (Criminal and Applications Procedure) Rule 2003, Cl 62 Pt 9. But see also Practice Note SC CL 8 “Media access to sexual assault proceedings heard in camera”.
[33] See Katherine Biber, “Evidence from the Archive: Implementing the Court Information Act in NSW”, Sydney Law Review, Vol 33, 2011, 575.
[34] John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512, per Spigelman CJ at [29]-[31], Mason P and Beazley JA agreeing.
[35] See, for example, Criminal Procedure Act 1986 (NSW) s 314.
[36] Per McHugh JA in John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 476. See also John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344 per Spigelman CJ at [17]-[21]; John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 513 at [60]-[63].
[37] R v Tait (19779) 24 ALR 473 at 487; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 58. See also “Non-publication paper”, Criminal Trial Courts Bench Book, Judicial Commission of New South Wales 2013
[38] ASIC v Rich [2001] NSWSC 496; (2001) 51 NSWLR 643. Austin J’s eight considerations are consolidated in “Media access to court records and exhibits”, Civil Trials Bench Book, Judicial Commission of New South Wales, 2013.
[39] Supreme Court of NSW Practice Note SC Gen 2, at [7]; District Court of NSW Practice Note DC (Civil) 11, at [2].
[40] Dawson and Roughley, above n 14 at 52.
[41] Application for Access to a Court File, Supreme Court of New South Wales.
[42] UCPR Rule 36.12 (2)(b).
[43] The commercial sale of transcripts justifies Queensland agencies refusing access to information under the Right to Information Act 2009 (Qld), s47(3)(f) and also s53(d).
[44] http://www.auscript.com.au/about/the-auscript-difference
[45] See, for example, Police v Gerard Robert Baden-Clay, Magistrates Court of Queensland, Unreported judgment delivered on 20 March 2013.
[46] Court Security Act 2005 (NSW), s 9A.
[47] See a critical commentary of the reforms at: http://nofibs.com.au/2013/08/08/bloggers-beware-social-media-and-the-courts/
[48] http://www.hcourt.gov.au/cases/recent-av-recordings for audio-visual recordings; http://www.hcourt.gov.au/cases/current-cases-submissions for current case submissions; http://www.austlii.edu.au/au/other/HCATrans/ for transcripts.
[49] See Northern Territory Supreme Court Practice Direction 13 of 2001; in South Australia, non-parties can email the court for access to court documents, and a fee applies; see Tasmanian Criminal Rules 2006, r. 13; see ACT Court Procedures Rule 2006 (ACT), r. 4053(2).
[50] See Western Australia Rules of the Supreme Court 1971, O. 67, r. 11.


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