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Australian Press Council submission to NSW Attorney-General on the draft Court Information Bill2009. 21 October 2009 The Press Council welcomes the Attorney's moves to codify access to information from the courts. The Bill is a step in the right direction, but it needs some significant amendment. Courts should generally be open. Material used in court proceedings should be available to the media for dissemination to the public. Given that the Bill seeks to consolidate in one piece of legislation how information from the courts should be accessed, the Council is concerned that the regime envisaged should ensure that material of public interest is made more available to the media for dissemination to the public, and certainly be no more restrictive than the current regime. The Council welcomed the Report on Access to Court Information, particularly the goal of creating a public (and media) right of access to court documents in both civil and criminal proceedings. In particular it welcomed the proposals for open access to transcripts of evidence in open court proceedings, statements and affidavits admitted into evidence, and police fact sheets. It noted that there would also be a category of restricted access including matters that had been struck out, medical and psychiatric reports, and information the subject of a non-publication or suppression order. Objects Clause The draft Bill could be improved primarily by the insertion of an Objects Clause that clarifies that the aim of the legislation to make open access to information the default position. Such an Objects Clause would provide guidance to judicial officers who, under s6 of the draft Bill, have to make a determination about particular pieces of information. In short an Objects Clause would make clear that they should err on the side of release rather than on the side of restriction. Written submissions Given that the courts are increasingly using written submissions, instead of oral submissions, as a court efficiency measure, the Council is concerned that material previously freely available to those present in a court may now not be accessible. Not having access to this information would be a significant impairment on the ability of journalists to report matters and a restriction on the community being informed on matters of public interest and concern. Access to material should not be concerned with whether it is in the form of oral or written submission. Specific concerns The Council urges that the Bill be amended to remove s4(3)(k), which deals with victim impact statements, from the list of restricted access information. As a matter of course, access to victim impact statements is in the public interest and such statements should be considered as open access information. The Note to s5, stating that all information other than open access information is restricted access information, reverses the position that the Bill should take. As noted above, the Council would prefer an Objects Clause that deemed open access as the default position. Whether or not an Objects Clause is inserted, the Note to s5 should be removed. In s6(2), the Bill lists the criteria that a court needs to take into account when deciding on access to particular information. There should be an additional criterion: "the public interest in access being granted to the information". While the courts have to have cognizance of principles governing the proper administration of justice, equally important is the public interest in knowing what the courts are doing. Adoption of the UK position The draft Bill falls short of developments in the UK where largely as a result of the efforts of the UK Crown Prosecution Service, a Protocol has been introduced into the courts of England and Wales that has made courts more open to the public through media exposure and, in doing so, greatly benefited the fair and accurate reporting of court proceedings. The Protocol adopted in 2005 has a core principle that if material has been shown in court it should be made available for broadcast and publication to the general public as quickly as practicable, usually the same day on which it is adduced in court. There are two categories of material - What normally will be disclosed: Under the operation of this Protocol, in most courts, material is now released on the day it is shown in court, if requested. There are appeal procedures in place that involve a reference to the Crown Prosecutor's Head of Strategic Communications for determination on the release of contested material. While the Protocol seems to advantage television news, many non-video exhibits are presented in court that would be of use to newspapers. Video would also be available to on-line sites of media organisations, whether they are primarily print or electronic media. In the UK the Protocol has lead to greater coverage of the courts, and is seen to have made court reports more accurate and comprehensive. On television and on-line, news reports are visually led. The most welcome attribute has been that greater accuracy is obtained in reporting, as journalists do not have to rely on muffled recordings that are played in court. They are given transcripts of what is said. Conclusion The Press Council would urge the Attorney to consider the outcomes arising from the more open regime in the UK, particularly in the more accurate and comprehensive reporting of the courts. Such an outcome is in the public interest and a court information regime that maximises access to information meets that criterion. See also Return to Documents with the |
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