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Australian Press Council Submissions to the NSW Attorney-General and to the Victorian County Court on their respective inquiries into access to court records 6 July 2006
1. General comments on the issues
General comments on access to court documents Executive Summary Access to court documents is necessary to facilitate the media's role of disseminating court information. The Australian Press Council believes that court documents should be classified as open access unless there are exceptional circumstances which warrant their restriction. Wherever documents are classified as open access they should be available online. No decision should be made to withhold a document from media access except according to clearly defined criteria. Introduction This is an interesting time in which to examine the issue of document access. The digital age presents a unique opportunity to rethink the way information is managed by the courts and to introduce innovations in the way court information is disseminated to the public. Why is media access important? The principle of open justice is one of the cornerstones of our legal system. The notion that justice must be done in public has prevailed in the common law for centuries. In Australia, the ideal of open justice has ensured that the courts have enjoyed the confidence of the public. With regard to the value of this ideal the institutions of the law and the media are in agreement. But for open justice to be real and not merely an abstract ideal it is essential that the courts facilitate the media's role of informing the public as to the court's activities. There was a time, perhaps two centuries ago, when communities were smaller. In such communities word of mouth was sufficient to disseminate information about judicial decisions, and interested members of the community were able to be physically present in court. Such a scenario is improbable today, where communities are measured in millions rather than hundreds, where interested members of the community may be located a significant distance from the court and where the number of cases heard by the courts daily is large and growing continuously. The town crier has been replaced by the newspaper, the television and the internet. These institutions are an essential part in the process of open justice. The public relies on the media to report on court proceedings. But the media cannot satisfy the public's expectations unless journalists have the ability to check the accuracy of relevant facts and acquire an understanding of the proceedings within a brief timeframe. To a limited extent this can be achieved by being physically present in court. However, being physically present is not sufficient, nor is it always possible. The increase in the use of hand-up briefs and the reliance upon affidavits and other documents prevents a member of the public who is present in court from closely following proceedings. A member of the media is similarly prevented from accurately reporting on such proceedings. In such circumstances the only way that an accurate report can be prepared is for journalists to have access to court records in order to fill in the gaps left by the oral presentations. A further consideration is the holding of hearings in camera, which frequently occurs when national security is a factor or where proceedings deal with minors or sexual assault. While the media and the public may be excluded from being present during such hearings, redacted material, such as excerpts of transcripts, may be made available at a later date. If such material is accessible by the media a report can be published which informs the public of court proceedings without jeopardising the interests of parties, witnesses or victims or compromising security. How can access be improved in order to facilitate the media's role as the disseminator of information about court decisions? There is a great deal which the courts could do to facilitate the media's task of producing accurate reports of court proceedings. Lack of access to court documents often results in inaccuracies in reporting. Easier access to court documents should improve the quality of court reporting by the media. The degree to which courts grant access to documents varies between jurisdictions, between states and between different courts within each state. Not only the degree of accessibility but the procedures used for gaining access vary widely. This wide variation is confusing for researchers and others seeking access. There should be clarity and consistency across jurisdictions as to the rules determining access and the procedures by which access is sought. It would be appropriate for the Standing Committee of Attorneys-General to investigate the issue of access with a view to achieving harmony across all jurisdictions. There is a large number of statutory instruments which set down rules in relation to access. In addition to state and federal acts barring access in specific instances (such as minors, Family Court matters, and sexual assault), there are also rules of court and practice notes. It would be helpful if the regulations pertaining to public or media access to court documents could be consolidated in some form, whether by publication as an omnibus edition, or being accessed by way of a single web page which is kept up to date with any amendments. It would be preferable if any regulations pertaining to access were to be effected by way of court rules or legislation rather than by practice note. Some courts have designated media liaison officers or public information officers. Regardless of what title is used all courts should have at least one official who has responsibility for assisting journalists and researchers who are seeking access to court documents or other information necessary to prepare fair and accurate reports of court proceedings. When developing websites for courts and tribunals an important factor which should be considered is usability and ease of navigation. Frequently, information which is available on a website is difficult to access because of poor design, confusion or lack of visibility. Each court website should clearly display information the procedures involving in applying for access. This should include contact numbers, email addresses and forms which can be either downloaded and completed or lodged electronically. When should access be granted and when should it be refused? The Australian Press Council is of the view that there should be a presumption in favour of open access to all court documents except in certain narrowly defined circumstances. Documents should only be exempt from access when confidentiality is essential to ensure justice between parties or where confidentiality is necessary to protect the parties or witnesses from risk. The desire of a party to avoid embarrassment would not be sufficient to warrant the withholding of documents from the media. Once a statement or filed document has been introduced into evidence in open court it should be available to the public. Who should determine access ∓ how should access be determined? The process of determining access varies. In some courts the registrar determines whether a member of the public may view a court document. In other courts the leave of the judge or magistrate must be sought. Regardless of who makes the initial decision regarding access, there is a need to set down clear criteria as to when access should be granted and when it should be refused. While there may be a need for a certain degree of discretion in order to allow for unanticipated circumstances, discretion should be exercised only by a magistrate or judge. Registrars and their staff should be required to determine access only in accordance with rules which are publicly available and such decisions should be appellable. Registry staff should be given training in the rules as to public access to documents in order to minimise the number of appeals likely to result from inappropriate refusal of access. Which documents should be classed as being available for public access? In some jurisdictions, a distinction is made between documents such as originating process, pleadings, notices of motions and judgments, which are available for inspection by members of the public, and documents such as affidavits and statements, which can only be inspected with the leave of the court. (See, for example, Federal Court Rules, order 46, rule 6.) At the very minimum, a journalist who is responsible for reporting on a court matter requires sufficient information to make sense of what is heard in open court and to ensure that reported details are accurate. In a simple matter, these requirements may be satisfied very easily, perhaps by a document setting out the charges against an accused. However, there may be cases in which the oral presentations are nonsensical to an observer who has not had an opportunity to view exhibits, statements and affidavits. While this may not be a problem if a researcher can wait until a judgment is published, a journalist is often required to report upon court matters before the full judgment is available. For this reason statements, affidavits and exhibits should be available to the media as soon as possible after they have been introduced into evidence in open court, unless the judge has ordered that they should be suppressed. Transcripts of court proceedings are a valuable source of information, particularly when a journalist is required to report upon simultaneous proceedings in different courts. It would be useful to have court transcripts available for download from the court's website. How should documents be accessed? Until recently the available options for accessing court records were limited. Journalists seeking to view documents relating a matter before the court were obliged to visit the court's registry and either make notes or photocopy the documents. This procedure, which is still the most common method of accessing records in most courts, is cumbersome, time consuming and inefficient. In addition to taking up a significant amount of time on the part of journalists, this process increases the workload for court Registrars and their staff. Apart from the inefficiency involved in this process, the requirement to physically attend the registry is problematic for journalists who are subject to rigid publishing schedules and tight deadlines and are often required to work outside of normal business hours, whereas a court registry may only be open within certain hours (typically from 9.30 am to 4.00 pm on weekdays). This can make it impossible for an editor or journalist to check a fact prior to publication and may result in inaccurate or misleading reports of court proceedings. A more efficient and effective method of accessing court records would be by online delivery. By making documents available online registry staff are relieved of the task of assisting journalists and researchers to locate and copy material. By streamlining the process of research for journalists online access should lead to an increase in the accuracy and reliability of court reporting. In order to make online access feasible the courts would need to alter the process of determining whether access should be granted to non-parties. At present, in most courts journalists seeking to inspect court documents must make a request for access which is granted either by the registrar or by the judge, if the registrar or judge is available. In some jurisdictions this request can be made prior to the commencement of proceedings, thus ensuring that non-parties can inspect documents as soon as possible after they are introduced into evidence, thereby facilitating reports which are both contemporaneous and accurate. In other courts a request to inspect documents can only be made during the proceedings. If documents, at the time of filing, or once introduced into evidence in open court, were classified as "open access" or "private access" the requirement of seeking leave to inspect documents would be removed, with exceptions in certain instances. Those documents which are classified as being "open access" could then be made available for download from the court's website. Obviously, the practicability of online document access is limited by the availability of electronic copies of documents. Where documents have been lodged in paper form it will in most instances be impractical to make them available online. However, with the increasing use of electronic lodgment this problem will gradually become less significant. Even where it is not possible to provide access to the documents themselves, a list of all documents filed on behalf of the parties should be available on the court's website, together with an indication of whether or not each has been classified as "open access". This would reduce the amount of time which is spent searching the records at the registry and would reduce the number of formal requests for access which journalists would be required to make prior to attending the court registry to inspect the documents. To the NSW Attorney-General's Department: Responses to Specific Proposals 1. That current legislative provisions relating to access to criminal and civil court documents and information be repealed and consolidated in the Criminal Procedure Act 1986 and the Civil Procedure Act 2005. The legislative provisions should provide for the following:
The Australian Press Council supports the suggestion that legislative provisions relating to access to court documents should be consolidated into a single instrument. The process of consolidation should reduce confusion on the part of researchers seeking access to documents and alleviate pressure on registry staff. For this reason, the Press Council also encourages the Attorney-General to work towards the harmonisation between Australian states and territories of regulatory mechanisms which control access to court records. In order to assist researchers to efficiently identify those rules which impact upon access, it would be useful if all those regulations and statutory provisions which deal with document access and suppression could be published together, either in the form of an omnibus edition or as a single web page which is kept up to date. With regard to the application of the Privacy and Personal Information Protection Act 1998, the Press Council agrees that it would be appropriate that the effect of this Act be clarified in any legislation which deals with access to court records. However, the Council is concerned that privacy protection legislation should not prevent the media from having access to information which is necessary in order to satisfactorily prepare fair and accurate reports of court proceedings. It should also be noted that media organizations which subscribe to a privacy code are exempt from the provisions of the federal Privacy Act. State legislation should be reflect this exemption. The Press Council would prefer that any restrictions on access or the right to publish material relating to court proceedings would be issued by way of court rules rather than in the form of practice notes. 2. The access to documents that is available to the media should be extended to apply equally to members of the public. The requirement to show a sufficient cause is to apply only in respect of documents that are classified as restricted public access. The Australian Press Council endorses this proposal. In circumstances where documents have been classified as "restricted access", the Council has no objection to a requirement to show a sufficient cause, provided that the court recognizes the media's right and obligation to prepare fair and accurate reports of court proceedings, and the necessity of inspecting court documents in order to execute this task satisfactorily. 3. The exercise of discretion on all applications for access is to be replaced by a system whereby court information is classified as either open to public access or restricted public access. Where information is classified as open access it is unnecessary for the Court or Registrar to determine the application. The Australian Press Council endorses the proposal that a system of classifying documents as either "open access" or "restricted access" be introduced and that where material is classified as open access there be no requirement for a registrar or judicial officer to grant access. 4. Unless the Court orders otherwise, the following documents and information be classified as open access: Criminal Jurisdiction:
The Australian Press Council endorses the proposal that the documents listed be classed as "open access". However, the Press Council is concerned that the phrase "unless the court orders otherwise" would have the effect of overriding the intent of the proposal and lead to inappropriate or excessive restriction upon access. While the Press Council recognizes that there may arise exceptional circumstances in which it may be necessary to limit access, any decision to restrict access should be made according to clear criteria which are publicly available, against which a decision can be reviewed. The Press Council is of the view that all documents should be classed as open access unless such classification would prejudice the aim of achieving justice between the parties or would jeopardise the safety of parties or witnesses. 5. Unless the Court orders otherwise, the following documents and information in the civil jurisdiction of the Court shall be classified as open access:
The Australian Press Council endorses the proposal that the documents listed be classed as "open access". However, the Press Council is concerned that the phrase "unless the court orders otherwise" would have the effect of overriding the intent of the proposal and lead to inappropriate or excessive restriction upon access. While the Press Council recognizes that there may arise exceptional circumstances in which it may be necessary to limit access, any decision to restrict access should be made according to clear criteria which are publicly available, against which a decision can be reviewed. The Press Council is of the view that all documents should be classed as open access unless such classification would prejudice the aim of achieving justice between the parties or would jeopardise the safety of parties or witnesses. 6. Parties should be entitled to file a copy of open access documents that omits confidential data referred to in Proposal 7 and to file a separate restricted access document that contains this personal or sensitive information. Where personal or sensitive information has not been redacted the Court may delete information from copies of open access documents or, where that is not practicable, the Court may refuse access to the open access document. Parties should be entitled to file a copy of open access documents that omits confidential data referred to in Proposal 7 and to file a separate restricted access document that contains this personal or sensitive information. Where personal or sensitive information has not been redacted the Court may delete information from copies of open access documents or, where that is not practicable, the Court may refuse access to the open access document. The Australian Press Council endorses this proposal. 7. The following information contained in court documents is restricted access information and subject to a legislative prohibition against media publication:
The Australian Press Council agrees the certain types of information, including tax file numbers, Medicare numbers, and account numbers, should be classified as "restricted access" and the publication of such information should be restricted. However, with regard to "commercial in confidence" and health information, the Council is of the view that there are circumstances in which the publication of such information is appropriate and necessary in order to provide a fair and accurate report of court proceedings. Therefore, there should not be any absolute prohibition on the publication of this type of information. Instead, clear and objective criteria should be set down as to when such information is suitable for publication and when it is not. With regard to the publication of names, addresses and birth dates, the Press Council is concerned that incomplete information has the potential to result in the defamation of innocent and uninvolved individuals. It is necessary to distinguish between different individuals who have similar names. Publication of birth dates and addresses ensures that innocent individuals are not embarrassed by any confusion. Even partial addresses may be inadequate for this purpose, if two individuals with similar names live in the same locality. With regard to the publication of the names or other identifying information of juveniles offenders, an exception should be made in circumstances where an offender who has committed a serious crime was a minor at the time of committing an offence but is no longer a minor at the time of trial. 8. Unless the Court otherwise orders, the following documents are to be classified as restricted access and be subject to a legislative non-publication order:
The Press Council is argues that the proposed blanket classification of these documents as being unsuitable for publication is inappropriate. There may be instances where the publication of such information is relevant to the public understanding that justice is being done. The principle which should ultimately determine whether the media has the right to publish such information should be that if the documents have been presented in open court and not specifically suppressed, the media should have the right to publish that information. 9. The Court may grant leave to a non-party to access a restricted document if the Court is satisfied that sufficient reason is shown and the release of information is consistent with the interests of justice. The Court may impose conditions on any grant to that document. The Press Council has no objection to the court inquiring as to the purpose of accessing information, provided that the court recognizes the media's right to prepare fair and accurate reports of court proceedings and the importance of accessing court information for that purpose. Clear and objective criteria should be set down according to which decisions to grant access can be made and reviewed. 10. Subject to any order of the Court allowing access, restricted access should be subject to the provisions of the Privacy and Personal Information Protection Act 1998. A prescribed agency may be authorised to obtained prescribed categories of restricted document provided that the agency is bound by protocols addressing the retention, use and security of the document. With regard to the application of the Privacy and Personal Information Protection Act 1998, the Press Council is concerned that privacy protection legislation should not prevent the media from having access to information which is necessary in order to satisfactorily prepare fair and accurate reports of court proceedings. 11. That the electronic compilation by a non-party of open access information is prohibited unless approved. Accessing multiple sets of information for data mining purposes by non-parties should be restricted unless approved by the Attorney General and Heads of Jurisdiction. The Press Council agrees that data mining should be restricted. However, such a restriction should not have the effect of preventing newspapers from maintaining a database of case material for the purpose of providing background information for current events. 12. Electronic search index facility of open access information is to be limited by such criteria such as name of litigant, case number, listing date and venue. Additional search criteria such as date of birth may be available to approved agencies. Although the intent and effect of this proposal is ambiguous, the Press Council is concerned that it would place unnecessary limitations on the ability of researchers to locate relevant material. The electronic search criteria should be as wide as possible, allowing researchers to locate material by the nature of the action and the content of evidence given. 13. That the restriction on entitlement access to court records within 2 days after the conclusion of the case be removed to allow continuing open access subject to the Criminal Records Act 1991. The Australian Press Council endorses this proposal. 14. Open access information relating to convictions capable of being spent is to be treated as restricted access Information after ten years in relation to adult offenders and three years in relation to juvenile offenders. The Australian Press Council accepts this proposal. 15. The protocols relating to access to court information and documents should not extend to exhibits, including documentary exhibits, other than witnesses' statements tendered as evidence. The Court should retain the discretion to allow access to exhibits. The guidelines creating a presumption in favour of release of exhibits should be removed. The Australian Press Council rejects this proposal. The criteria for allowing the media access to exhibits should generally be the same as they are for court documents. With regard to photographs which are indecent or offensive, there may be a justification for restricting the right to publish or reproduce the images, but this should not prevent journalists and researchers from viewing the photographs in order to develop a complete understanding of the case for the purposes of preparing a fair and accurate report. Similarly, it may be appropriate to restrict the duplication and broadcasting of videos, but journalists should not be prevented from viewing the videos for the purposes of reporting upon the case. Once an exhibit has been introduced into evidence in open court it should be accessible to researchers and journalists unless subject to a suppression order. 16. The Court may, by order, prohibit the publication or disclosure of any information prejudicial to the conduct of a trial if it is of the opinion that it is necessary to do so to secure the proper administration of justice in the proceedings. The Press Council recognizes that in certain circumstances it may be appropriate to prevent or delay the publication of material which has the potential to prejudice the conduct of court proceedings. However, where the court determines that material should be suppressed or withheld from media the court should be required to give reasons for that decision. The decision to suppress material should be based on clear criteria and the decision should be appellable. Further, it is important that any appeal against the decision to suppress material be heard and determined promptly, since any delay may compromise the ability of the media to publish a fair and accurate report of proceedings. 17. The Court may, by order, prohibit the publication or disclosure of any information tending to reveal the identity of: a. any party to proceedings, or The Australian Press Council is of the view that once information is introduced into evidence in open court, the media should be able to publish that information unless there are exceptional circumstances, such as a significant threat to the safety of a witness. Circumstances warranting the issuing of suppression orders must be clearly and narrowly defined. If a court does issue an order preventing the disclosure or publication of information, that order must be appellable and any appeal against such an order must be heard and determined promptly. 18. That the Court be given the power, either of its own motion, or on application by a party to the proceedings, to direct a publisher to withdraw a web based article from publication, either on a temporary or permanent basis if the court is of the view that the publication may contain information that may be prejudicial to the conduct of a trial. While it may be feasible to have an article removed from some internet sites, it is doubtful whether an article could be completely removed from the web, particularly in view of the practice of caching web pages. It should also be noted that there is considerable debate and disagreement as to whether juries are susceptible to the influence of the media. 19. That the Court be given the power to direct an online based law publisher to temporarily remove or exclude from internet search engines a case that is ordered to a retrial until the conclusion of the further trial. It may be feasible to have an internet law publisher to remove a case from their own website, it is doubtful whether it would be feasible to have the case excluded from search engines. Even websites which are no longer available still appear on Google and some other search engines. 20. That the identity of parties in proceedings under the Property Relationships Act 1984 and Division 1A of Part 15A of the Crimes Act 1900 be subject to a legislative non-publication order. Information or documents relating to adoption proceedings is to be suppressed. While it may be appropriate to protect the parties involved in adoption proceedings, the Press Council believes that there are instances when it is appropriate for their identities to be disclosed. The disclosure of identities of parties to an adoption matter should be permitted if all parties have given their consent to such disclosure. 21. That a provision of any law or order of the Court restricting access to, or publication of, court records ceases to have effect in relation to court records classified as a State Archives after the lapse of 75 years. The Australian Press Council endorses the notion that suppression orders should cease to have effect after a certain period of time. However, the recommended period of 75 years seems excessively long. The Press Council is of the view that the maximum period for which a suppression order should remain effective is 25 years. However, when issuing a suppression order, courts should be required to specify an expiry date and the nominated date should be appellable. No court should be able to issue a suppression order without providing reasons for that order. 22. The current fee structure should be reviewed when changes to services relating to access to court information and documents takes place. As court documents are increasingly available online the need for the assistance of registry staff should decrease, leading to a reduction in administration costs. Where documents are provided online without the requirement of a determination by either a judge or registrar, there should be no fee payable. To the Victorian County Court: Responses to Specific Proposals It is recommended that the Daily Lists containing information about the names of cases continue to be published in the Age newspaper, the court's website, and internally within the County Court and the Department of Justice. The Court's Information Officer should continue to be the first point of contact for any media enquiries. The Australian Press Council accepts this recommendation. The Council commends the job being done by the current Court Information Officer for Victoria, Prue Innes, whose work is an excellent role model which other jurisdictions may seek to emulate. Any applications by the media for the release of information from court proceedings such as photographs etc be made to the trial judge, before or during the trial (after the trial is concluded, there needs to be a process designed, as the trial judge is functus officio, and in any event may be unavailable). This policy is to be read in conjunction with the Judicial Proceedings Reports Act 1958. The court should establish formal procedures by which the media can apply for access to information and exhibits before, during or after a trial. It is important that journalists be able to make application for access before the commencement of the trial in order to minimise disruptions to the hearing and to ensure that a fair and accurate report can be published promptly after material is introduced into evidence. It is also necessary to make provision for access to be sought after the completion of trials, when the trial judge may no longer be available to determine applications. If the court's policy on applications for access is to be subject to the Judicial Proceedings Reports Act 1958 that act should be updated to reflect the current situation. At the very least, section 3(1)(c) should be corrected to remove the reference to the Crimes (Criminal Trials) Act 1993, which was repealed in 1999 and replaced with the Crimes (Criminal Trials) Act 1999. Further, this legislation needs to be revised, clarified and possibly amended to remove any ambiguity as to the long established right of the media to publish fair and accurate reports of court proceedings. The current position with regard to searching of civil files should continue. That is; generally and upon payment of the prescribed fee, non parties can search a civil file. For a full statement of the relevant County Court Rules of Procedure in Civil Proceedings 1999. The Australian Press Council supports the recommendation that non-parties should be permitted to search civil files. However, the Press Council is of the view that Rule 28.05 of the County Court Rules of Procedure in Civil Proceedings 1999 should be revised. That rule gives the court the power to prevent the inspection of documents which are regarded as confidential. However, the rule makes no provision for the criteria which should be applied in determining confidentiality. In addition, rule 28.05 (2)(b) specifically grants to the Registrar the power to decide when a document should remain confidential. It is important that any decision to withhold documents from public access be made according to clear criteria against which a decision can be reviewed. Such criteria should be narrowly defined and formulated so as to ensure that documents are available to be inspected by non-parties unless such inspection would be prejudicial to the parties or would endanger their safety or the safety of witnesses. It is appropriate that the power to withhold documents from public scrutiny should be retained by a judge or magistrate rather than being held by the Registrar. Access to civil files electronically should continue under the present arrangements. That is all court users, parties and non parties, continue to access Court Connect to view case listing information, some orders and types of documents filed, but not the contents of the documents. The Australian Press Council supports the proposal that non-parties should have continued access to Court Connect for the purpose of viewing listing information, orders and lists of documents filed. However, the Press Council encourages the increasing availability of documents online where documents have been filed electronically and such documents have been classified as "open access". Where members of the media have applied for access to documents and such access has been granted, documents could be emailed to the applicant. Alternatively, a secure website which is accessed by password only could also be developed in order to facilitate media access to documents for the purpose of assisting in the preparation of fair and accurate reports of proceedings. Upon application the court may, in certain circumstances, restrict access to court files. While the Australian Press Council recognizes that there may be special circumstances when access to court files should be restricted, any decision to make such restriction should be based on clear, objective criteria which are publicly available. Decisions to restrict access should be reviewable on application from non-parties seeking access. The current position in relation to adoptions should continue, that is there be no access to adoption files, either electronically or by any other means, except as exists under the Adoption Act (1984). The Australian Press Council accepts this recommendation. That there be limited access to parties to criminal or appeal files, before and after the trial, at the discretion of the Registrar on a case by case basis. The purpose for which a party seeks access to a file and its intended use will be considered in the exercise of this discretion. N/A During the trial any requests by parties for access is to be referred to the trial judge. The Australian Press Council accepts this recommendation. The judge's decision as to whether access should be granted should be made according clear criteria which are publicly available. That there be no access to criminal or appeal files by non parties without an order of the court. Where possible these applications should be made to the trial judge before or during the trial (after the trial is concluded, there needs to be a process designed, as the trial judge is functus officio, and in any event may be unavailable). In determining whether non-parties can access files pertaining to criminal or appeal proceedings, a distinction should be made between those documents which have the potential to jeopardise the administration of justice or which are otherwise sensitive, and those documents which do not. It is appropriate that certain documents are readily available to members of the media in order to facilitate the preparation of fair and accurate reports of court proceedings. Documents which set out the charges pending against an accused, for example, are an important method of verifying facts and of assessing whether a proceeding is of sufficient public interest that it should be reported. If such documents are unavailable to journalists the quality and accuracy of reporting is compromised. It is also necessary to make provision for access to be sought after the completion of trials, when the trial judge may no longer be available to determine applications. That there be no access electronically via Court Connect to criminal or appeal files apart from the current arrangements regarding future listings. Only the cases listed before the "6 cylinder" judges are available on the website. This indicates case number, name of accused, solicitor for accused, and type of hearing, eg trial or plea, date listed and time listed. This current limited criminal listing information should remain accessible via the internet. The Press Council encourages the increasing availability of documents online where documents have been filed electronically and such documents have been classified as "open access". Where members of the media have applied for access to documents and such access has been granted, documents could be emailed to the applicant. Alternatively, a secure website which is accessed by password only could also be developed in order to facilitate media access to documents for the purpose of assisting in the preparation of fair and accurate reports of proceedings. Certified Extracts of verdicts and sentences and Appeal cases be made available upon reasonable written request to the Registry. In assessing what is "reasonable" the stated purpose and intended use of the information will be taken into account. The decision as to what is "reasonable" should be based on clear criteria which are publicly available. The Press Council has no objection to the court inquiring as to the purpose of accessing information, provided that the court recognizes the media's right to prepare fair and accurate reports of court proceedings and the importance of accessing court information for that purpose. In order for journalists to prepare reports on court proceedings which are reliable it is important that they be given access to documents which record decisions and the reasons for those decisions. This is particularly important when a reporter is responsible for reporting upon several matters which are being heard simultaneously in different courts, since it may not be possible to be physically present in court at the time a decision is being delivered. If there is a suppression order in existence no certified extract will be provided, without the leave of the judge who made the suppression order. The Australian Press Council has no objection to this recommendation. However, the Press Council does express concern that suppression orders should only be issued when this is necessary to prevent prejudice to an accused, to ensure justice between the parties, or to protect parties and witnesses from harm. Embarrassment to a party should not be considered sufficient to warrant the issuing of a suppression order. Discharged jurors presently obtain information regarding the results of County Court cases from the general enquiry line in criminal registry. Recommend that discharged jurors continue to be supplied with sentencing information by this method. The Press Council has no objection to this recommendation. Copies of sentences are currently available from the County Court Library. This will need to be reconsidered when the sub-committee of the Executive Committee reports back on the question of publication of sentences on the website. The Australian Press Council is of the view that any documents which are available to the public should be published online as soon as possible. If online publication is prompt the need to access documents via library access is dramatically reduced. Any requirement for library users to have access to hard copies of documents can be satisfied by providing access to a computer and printer. Appeals from the Children's Court continue to be described by an acronym in the Daily List. The present prohibitions under the Children & Young Persons Act (1989) apply to those cases appealed to the County Court. The Australian Press Council accepts this recommendation. Academic or Commercial Research. It is proposed that the following process be followed for approval of academic or commercial research:
The Australian Press Council has no objection to this recommendation. However, the Press Council is concerned as to whether journalists involved in investigative research would be subject to this process. It would be appropriate to formulate variations to these procedures to accommodate the differing circumstances in which investigate journalists and freelance authors operate. Data Requests The court will consider requests for data and statistics on a case by case basis and take the following into account:
If time consuming to compile, charge a published standard scale of fees for cost of retrieval from CLMS and compilation of required data. The Press Council has no objection to the court inquiring as to the purpose of accessing information, provided that the court recognizes the media's right to prepare fair and accurate reports of court proceedings and the importance of accessing court information for that purpose. Future Considerations Civil orders be accessible on the internet via Court Connect. A statement should be drafted to make it clear that the court does not consent to the indexing of any databases via the internet and indicate what measures are in place to prevent that from occurring. The court continue to develop the use of medium neutral citation with a view to publication of all civil judgments as soon as possible. The court should discuss with VGRS regarding the current arrangements regarding access to transcripts. The court publish criminal sentences. Future Monthly Criminal Trial Lists be published on the County Court website. The Australian Press Council encourages the increasing provision of all types of documents via the internet. This is an efficient method of accessing information which is convenient for researchers and journalists and can also reduce the number of queries which must be dealt with by registry staff. The Press Council encourages the publication of transcripts and sentences on the internet, as this would contribute to the accuracy and reliability of media reports of court proceedings. Amending Sentences and Judgments for Publication Judges consider whether a person's full date of birth is necessary in a judgment or sentence. The month or year may be sufficient. Judges consider the extent to which personal information about a witness or party is essential to the reasons for decision. Victim's or witness's names not be disclosed in full or at all. Residential addresses not be disclosed unless essential. Family relationships not be disclosed unless essential. With regard to the publication of names, addresses and birth dates in judgments and sentences, the Press Council is concerned that incomplete information has the potential to result in the defamation of innocent and uninvolved individuals. It is necessary to distinguish between different individuals who have similar names. Publication of birth dates and addresses ensures that innocent individuals are not embarrassed by any confusion. Even partial addresses may be inadequate for this purpose, if two individuals with similar names live in close proximity. See also Return to Documents with the |
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