tag:theconversation.com,2011:/ca/topics/open-justice-6365/articlesOpen justice – The Conversation2019-10-02T01:01:09Ztag:theconversation.com,2011:article/1226382019-10-02T01:01:09Z2019-10-02T01:01:09ZAustralia’s quest for national security is undermining the courts and could lead to secretive trials<figure><img src="https://images.theconversation.com/files/294937/original/file-20191001-173402-1m9wqs3.jpg?ixlib=rb-1.1.0&rect=1025%2C616%2C4534%2C3084&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Bernard Collaery's whistleblower trial will be a key test of the National Security Information Act and the restrictions it places on defendants and the courts.</span> <span class="attribution"><span class="source">Lukas Coch/AAP</span></span></figcaption></figure><p><em>This is part of a new series looking at the national security challenges facing Australia, how our leaders are responding to them through legislation and how these measures are impacting society. Read other stories in the series <a href="https://theconversation.com/au/topics/australias-security-state-77051">here</a>.</em></p>
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<p>In August, the intelligence officer known as Witness K indicated he would plead guilty to a conspiracy charge under section 39 of the <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/isa2001216/s39.html">Intelligence Services Act</a>. That section prohibits the disclosure of information acquired or prepared by the Australian Secret Intelligence Service (ASIS). </p>
<p>His lawyer, Bernard Collaery, will <a href="https://www.abc.net.au/news/2019-08-06/witness-k-to-plead-guilty-lawyer-bernard-collaery-face-trial/11387046">contest the same charge</a> in the ACT Supreme Court. </p>
<p>Concerns have been raised about the use of the <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/nsiacpa2004575/">National Security Information Act</a> (NSIA) in the Collaery trial. Anthony Whealy, a former judge who presided over several of Australia’s recent terrorism trials, <a href="https://www.abc.net.au/news/2019-08-26/xanana-gusmao-offers-to-give-evidence-in-witness-k-trial/11436286">said</a> </p>
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<p>This could be one of the most secretive trials in Australian history.</p>
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<p>Both cases will be back in court this month. A <a href="https://www.canberratimes.com.au/story/6406973/east-timor-bugging-cases-return-to-court/?cs=14329">hearing is also scheduled</a> to consider how national security information will be dealt with in the Collaery trial.</p>
<p>There has been significant media discussion around the <a href="https://www.theguardian.com/australia-news/2019/aug/10/witness-k-and-the-outrageous-spy-scandal-that-failed-to-shame-australia">ASIS bugging</a> that Witness K and Bernard Collaery exposed, but less about the NSIA. </p>
<p>So what is the National Security Information Act? Why was it introduced and how could it lead to secretive trials?</p>
<h2>Having its cake and eating it, too</h2>
<p>The purpose of the NSIA is to protect national security information while allowing it to be used in Australian courtrooms. It applies in federal court proceedings, both civil and criminal. </p>
<p><a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/act/ACTSC/2001/115.html">Before the NSIA</a>, prosecutors faced a difficult choice. They could prosecute someone for terrorism, national security or secrecy offences and risk having sensitive information disclosed publicly, or they could keep the information secret and possibly have the prosecution fail.</p>
<p>The act was introduced in 2004 <a href="https://theconversation.com/australia-has-enacted-82-anti-terror-laws-since-2001-but-tough-laws-alone-wont-make-us-safer-123521">as part of Australia’s vast suite of counter-terrorism laws</a>, designed specifically to help prosecutors convict people for terrorism offences. </p>
<p>Now, the government can have its cake and eat it too: it no longer needs to choose between protecting sensitive information and prosecuting someone for disclosing it.</p>
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Read more:
<a href="https://theconversation.com/australia-has-enacted-82-anti-terror-laws-since-2001-but-tough-laws-alone-cant-eliminate-terrorism-123521">Australia has enacted 82 anti-terror laws since 2001. But tough laws alone can't eliminate terrorism</a>
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<h2>What does the NSIA do?</h2>
<p>The NSIA creates special procedures by which national security information can be protected while still being used as evidence. </p>
<p><a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/nsiacpa2004575/s8.html">National security information</a> is defined broadly under the act as any information relating to </p>
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<p>Australia’s defence, security, international relations or law enforcement interests.</p>
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<p>There are two circumstances in which the NSIA procedures can be triggered. The first is <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/nsiacpa2004575/s24.html">when the parties know in advance</a> they are likely to reveal national security information during the trial. The parties must notify the attorney-general of this, or face <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/nsiacpa2004575/s42.html">two years in prison</a>.</p>
<p>The second set of circumstances relates to when <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/nsiacpa2004575/s25.html">a witness is being questioned</a> on the stand and an answer has the potential to reveal national security information. If a lawyer or the defendant knows this could happen, he or she must stop the witness from answering and notify the court, or the same penalty applies.</p>
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Read more:
<a href="https://theconversation.com/why-an-australian-charter-of-rights-is-a-matter-of-national-urgency-121411">Why an Australian charter of rights is a matter of national urgency</a>
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<p>In either of these circumstances, the attorney-general can issue a <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/nsiacpa2004575/s26.html">non-disclosure certificate</a> that prohibits the information from being revealed or allows it to be revealed in summary or redacted form. The court then holds a <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/nsiacpa2004575/s29.html">closed hearing</a> in which the judge will determine whether and how the information may be used.</p>
<p>In a closed hearing, not only are journalists and members of the public barred from attending, but also the jury. The judge may even <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/nsiacpa2004575/s29.html">exclude the defendant</a>, the defendant’s lawyer or a court official if revealing the information to them would be likely to compromise national security.</p>
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<img alt="" src="https://images.theconversation.com/files/295135/original/file-20191002-173347-1mz9dqz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/295135/original/file-20191002-173347-1mz9dqz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/295135/original/file-20191002-173347-1mz9dqz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/295135/original/file-20191002-173347-1mz9dqz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/295135/original/file-20191002-173347-1mz9dqz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/295135/original/file-20191002-173347-1mz9dqz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/295135/original/file-20191002-173347-1mz9dqz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Supporters of Bernard Collaery and Witness K protesting outside Supreme Court in Canberra in August.</span>
<span class="attribution"><span class="source">Lukas Coch/AAP</span></span>
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<h2>Withholding information from defendants</h2>
<p>That the legislation permits closed hearings is not necessarily the main issue, though this certainly undermines the principles of <a href="https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-interim-report-127/10-fair-trial/open-justice/">open justice</a>. However, closed hearings are an option in other sensitive cases, such as those involving child victims of sexual assault. </p>
<p>The main problem with the NSIA is that it creates a situation in which national security information can be used in a courtroom without the defendant, jury, media or general public knowing the details of that information. </p>
<p>Producing evidence in summary or redacted form means that the gist of the information is provided, but key details are kept secret. In fact, it is not even clear under Australian law that something approximating a gist needs to be given.</p>
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Read more:
<a href="https://theconversation.com/from-richard-boyle-and-witness-k-to-media-raids-its-time-whistleblowers-had-better-protection-121555">From Richard Boyle and Witness K to media raids: it’s time whistleblowers had better protection</a>
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<p>This undermines the defendant’s ability to argue their innocence. A core aspect of <a href="https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-report-129/14-procedural-fairness-2/procedural-fairness-the-duty-and-its-content/">procedural fairness</a> and the right to a fair trial is that defendants must know the case against them. This allows their lawyers to contest the veracity of the evidence through cross-examination. </p>
<p>Without knowing when or how the prosecution’s evidence was collected, or even the precise claims the evidence is making, lawyers cannot adequately defend their clients. They are fighting with one hand tied behind their backs.</p>
<h2>Weighing national security vs a fair trial</h2>
<p>Moreover, in deciding how potentially sensitive information can be used in court, judges <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/nsiacpa2004575/s31.html">must give greater weight to national security</a> than the defendant’s right to receive a fair hearing.</p>
<p>In other words, the NSIA does not require a judge to balance national security and a fair trial equally. More weight must be given to the former under the law.</p>
<p>It may be that <a href="https://www.biicl.org/files/5038_terrorism_and_the_right_to_a_fair_trial__2_.pdf">judges can still strike an appropriate balance</a> so defendants receive a fair hearing in cases like these. But if a contest between national security and a fair trial needs to be decided, it is clear which one wins. </p>
<p>Using the NSIA in the Collaery trial is also significant because the accused is a whistleblowing lawyer and not someone accused of terrorism. </p>
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<p>After the recent police raids on the <a href="https://www.abc.net.au/news/2019-07-15/abc-raids-australian-federal-police-press-freedom/11309810">ABC headquarters</a>, the <a href="https://www.smh.com.au/politics/federal/afp-raid-home-of-news-corp-journalist-over-national-security-reporting-20190604-p51ub0.html">home of a News Corp journalist</a> and the <a href="https://www.theguardian.com/australia-news/2019/sep/04/australian-federal-police-raid-home-of-commonwealth-official-in-canberra">home of an Australian Signals Directorate officer</a>, the Australian media will be watching this trial closely. </p>
<p>It is likely, given the sensitive nature of the ASIS bugging scandal, that information will be withheld from Collaery’s defence team for national security reasons. This is a significant test case for whether whistleblowers can receive a fair trial in the current climate of government secrecy.</p><img src="https://counter.theconversation.com/content/122638/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Keiran Hardy does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The purpose of the NSIA is to protect national security information from being disclosed in courts. But this can undermine a defendant’s ability to argue his or her innocence.Keiran Hardy, Postdoctoral Research Fellow, Griffith Criminology Institute, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1181702019-06-13T01:32:52Z2019-06-13T01:32:52Z‘Naming and shaming’ juvenile offenders or open justice? A new battle over press freedom<figure><img src="https://images.theconversation.com/files/279270/original/file-20190613-32356-12x6ccq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Northern Territory is the only Australian jurisdiction where the media can identify juvenile offenders. The government now wants to end the practice.</span> <span class="attribution"><span class="source">Lucy Hughes Jones/AAP</span></span></figcaption></figure><p>For the past week, momentum has been building for a national <a href="https://www.news.com.au/national/breaking-news/press-freedom-inquiry-appears-likely/news-story/0b60a9d17f715ab7d7309fd81d91c391">parliamentary inquiry</a> into media freedom following the police raids on ABC and News Corp journalists. </p>
<p>But the issue of press freedom isn’t restricted to Canberra – there’s another contentious debate taking place at the moment in the Northern Territory over a <a href="https://www.theguardian.com/australia-news/2019/jun/01/nt-plan-for-closed-courts-would-end-naming-and-shaming-children-advocates-say">plan by the government</a> to close the NT’s courts to the media in cases involving young offenders. </p>
<p>The debate centres on a <a href="https://parliament.nt.gov.au/__data/assets/pdf_file/0011/669305/Youth-Justice-and-Related-Legislation-Amendment-Bill-Serial-85.pdf">bill</a> that would introduce the nation’s <a href="https://journlaw.com/2014/08/21/court-restrictions-on-identifying-children-in-australia-a-guide-for-journalists/">most restrictive rules</a> on reporting on juvenile offenders, including punishments of up to a year in jail for journalists who enter a juvenile court or publish details of any case.</p>
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Read more:
<a href="https://theconversation.com/naming-and-shaming-young-offenders-reactionary-politicians-are-missing-the-point-8690">Naming and shaming young offenders: reactionary politicians are missing the point</a>
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<p>The court closures were recommended by the <a href="https://www.royalcommission.gov.au/sites/default/files/2019-01/rcnt-royal-commission-nt-final-report-volume-1.pdf">Don Dale Royal Commission into the Protection and Detention of Children</a>, which made numerous recommendations to address the failures of the NT’s juvenile justice system. The commission said that imposing restrictions on the media in cases like these would be beneficial to young offenders and those accused of crimes, the <a href="https://www.theguardian.com/australia-news/2019/may/31/system-is-broken-all-children-in-nt-detention-are-aboriginal-officials-say">vast majority of whom are Indigneous</a>.</p>
<p>In its <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22publications%2Ftabledpapers%2F6df64b46-5279-4c63-8df6-eee0abf5122e%22">final report</a>, the commission said:</p>
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<p>Media reporting identifying young offenders can affect their prospects of rehabilitation, their sense of identity and their connection to the community. </p>
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<p>It also quoted a young witness, who said that when his name was published by the media</p>
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<p>it made me feel like everybody knew that I was a criminal and not a person … It feels like the public can see right through me … I began to feel like I was a lost cause.</p>
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<h2>Why ‘naming and shaming’ can be harmful</h2>
<p>The so-called “naming and shaming” of young offenders has been a part of the media’s coverage of the territory’s courts for many years. The NT is the <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22publications%2Ftabledpapers%2F6df64b46-5279-4c63-8df6-eee0abf5122e%22">only jurisdiction</a> in Australia where youth proceedings are held in open court, unless the court orders them closed.</p>
<p>More than a decade ago, NT barrister Mark Hunter <a href="http://www5.austlii.edu.au/au/journals/BalJlNTLawSoc/2006/78.pdf">detailed</a> examples of children being pursued by photographers outside territory courthouses. One was identified and described in the Northern Territory News as a “bored thug”. </p>
<p>In another instance, a 15-year-old offender was named and his photograph twice run on the newspaper’s front page, Hunter recounted.</p>
<p>He explained that past attempts by defence attorneys to suppress the identities of young offenders had been rejected by judges on the grounds it would infringe on open justice and press freedom. It was also believed that “shaming” offenders would <a href="http://www5.austlii.edu.au/au/journals/BalJlNTLawSoc/2006/78.pdf">purportedly assist with their rehabilitation</a> and reintegration into society.</p>
<p>However, a <a href="http://territorystories.nt.gov.au/bitstream/10070/265394/1/Naming%20and%20shaming%20of%20Indigenous%20Youth%20in%20the%20Justice%20system%20An%20exploratory%20study%20of%20the%20impact%20in%20the%20Northern%20Territory.pdf">study</a> by criminologists Duncan Chappell and Robyn Lincoln on media coverage of Indigenous youth in the NT, found that publicly identifying offenders actually had a number of adverse effects. These included limiting their opportunities for an adequate defence and reinforcing stereotypes of Indigenous criminality.</p>
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Read more:
<a href="https://theconversation.com/state-of-imprisonment-if-locking-em-up-is-the-goal-nts-a-success-39185">State of imprisonment: if locking 'em up is the goal, NT's a success</a>
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<p>The government’s plan to close juvenile cases to the media has been supported by several Indigenous justice groups, as well as the <a href="https://parliament.nt.gov.au/__data/assets/pdf_file/0011/690626/85-2019-Submission-10-Law-Society-NT.pdf">Law Society of the Northern Territory</a> and the <a href="https://parliament.nt.gov.au/__data/assets/pdf_file/0004/690628/85-2019-Submission-12-Northern-Territory-Council-of-Social-Service-NTCOSS.pdf">Northern Territory Council of Social Service</a>. Other submissions, including those from the <a href="https://parliament.nt.gov.au/__data/assets/pdf_file/0009/690624/85-2019-Submission-8-Information-Commissioner.pdf">NT information commissioner</a> and the <a href="https://parliament.nt.gov.au/__data/assets/pdf_file/0003/690618/85-2019-Submission-3-Darwin-Community-Legal-Service.pdf">Darwin Community Legal Service</a>, supported the continued reporting of youth justice cases without naming the accused.</p>
<h2>Concerns over restrictions on press freedom</h2>
<p>Given these concerns about the well-being of Indigenous youth, why are media groups opposing the move to close the NT’s courts? </p>
<p>For starters, media organisations like the Darwin Press Club say the move runs counter to the longstanding principle of open justice in the territory. In its <a href="https://www.lawyersweekly.com.au/wig-chamber/25805-closed-court-reform-sees-nt-division">statement opposing the bill</a>, the press club said:</p>
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<p>the bill in its present form represents a retrograde step in terms of transparency and the community’s right to know about the Northern Territory’s youth justice system.</p>
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<p>It also made the key point that media access to the courts was necessary to expose “the widespread ineptitude within the Northern Territory’s youth justice system” and pointed out that it was the ABC Four Corners documentary in 2016, “<a href="https://www.abc.net.au/4corners/australias-shame-promo/7649462">Australia’s Shame</a>”, that exposed the youth justice problems leading to the Don Dale Commission.</p>
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<img alt="" src="https://images.theconversation.com/files/279273/original/file-20190613-32347-1n42i4i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/279273/original/file-20190613-32347-1n42i4i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/279273/original/file-20190613-32347-1n42i4i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/279273/original/file-20190613-32347-1n42i4i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/279273/original/file-20190613-32347-1n42i4i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/279273/original/file-20190613-32347-1n42i4i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/279273/original/file-20190613-32347-1n42i4i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The Darwin Press Club says the Four Corners report on Don Dale would have been ‘an offence to publish or broadcast under the proposed overhaul’ of the NT laws.</span>
<span class="attribution"><span class="source">Glenn Campbell/AAP</span></span>
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<p>It is a recognised <a href="https://www.alrc.gov.au/publications/open-justice">common law rule</a> that the media should be able to publish fair and accurate reports of court proceedings. This includes the right to identify parties involved in cases. </p>
<p>But the High Court has ruled that this right is not absolute and courts <a href="https://www.alrc.gov.au/publications/open-justice#_ftn62">may be closed</a> when it comes to matters of “privacy or delicacy” or “where it is necessary to secure the proper administration of justice.” This is why all <a href="https://journlaw.com/2014/08/21/court-restrictions-on-identifying-children-in-australia-a-guide-for-journalists/">other Australian jurisdictions</a> impose restrictions on media attendance in court cases involving juveniles and publicly identifying young offenders.</p>
<p>Some jurisdictions, including Tasmania and Queensland, only allow media access or reporting on juvenile cases with the permission of the court, while most others allow the media to report on juvenile cases without identifying the children involved. Victoria also prohibits the naming of the location of the proceedings, as is proposed in the NT.</p>
<p>But none of these jurisdictions goes as far as the proposed blanket ban on the reporting of youth offender cases in the NT. </p>
<p>Debates over the media’s rights to cover such cases are not isolated to the Northern Territory. The NSW Law Reform Commission is conducting a broader <a href="https://www.lawreform.justice.nsw.gov.au/Pages/lrc/lrc_current_projects/Courtinformation/Project_update.aspx">open justice inquiry</a> that includes an examination of restrictions on covering court proceedings, including those involving children. The Victorian Law Reform Commission has issued a <a href="https://www.lawreform.vic.gov.au/projects/contempt-court-judicial-proceedings-reports-act-1958-and-enforcement-processes/contempt">consultation paper</a> in its inquiry into contempt of court and the restrictions placed on media organisations covering a variety of cases.</p>
<p>A key problem in the digital era is the lack of uniformity on reporting restrictions in Australia’s nine jurisdictions in a variety of court matters. These include sex crimes, coroners’ hearings, bail proceedings, mental health tribunals and the issuing of suppression orders, to name a few.</p>
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Read more:
<a href="https://theconversation.com/suppression-security-surveillance-and-spin-the-rise-of-a-secret-state-34972">Suppression, security, surveillance and spin: the rise of a secret state?</a>
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<p>The result is a confusing array of hundreds of reporting prohibitions representing a minefield for journalists and social media users wanting to report or comment on a court case.</p>
<p>All this is in addition to the tangle of national security laws that affect journalists and their sources, now at the centre of the <a href="https://www.abc.net.au/news/2019-06-11/scott-morrison-meets-with-abc-chief-ita-buttrose/11198090">debate</a> over press freedom following the AFP raids.</p>
<p>Whatever the outcome of the NT proposal, the Commonwealth, state and territory attorneys-general need to inject some uniformity into this confusing web of publishing laws, while also acknowledging the importance of transparency and open justice to the functioning of a healthy democracy.</p><img src="https://counter.theconversation.com/content/118170/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Pearson has received research funding from the Australian Research Council, the Commonwealth Government, and several other organisations and agencies. </span></em></p>Open justice is in contest with other rights as the Northern Territory considers a bill to ban the media from juvenile court cases.Mark Pearson, Professor of Journalism and Social Media, Griffith Centre for Social and Cultural Research, Griffith University, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1091812018-12-21T06:39:55Z2018-12-21T06:39:55ZWhen a fair trial could be at risk, suppression is the order of the day<figure><img src="https://images.theconversation.com/files/251846/original/file-20181220-103660-4c9hw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The digital age has made the idea of a fair trial, balanced with open justice, even more difficult.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Open justice is a <a href="https://pursuit.unimelb.edu.au/articles/suppression-orders-vs-open-justice">fundamental principle of our system of government</a> and central to maintaining confidence in the justice system. But in many of the most high profile trials, when public interest is high, open justice comes into conflict with the potential of negative publicity about an accused to prejudice a fair trial. In recent weeks, the question of how to balance a free press and a fair trial has been hotly debated. But it has been a topic of controversy for many decades.</p>
<p>What happens if jurors read about an accused’s previous convictions, or access material that is not part of the trial? Will jurors listen when the judge tells them to ignore it? In the digital age, can suppression orders even work when they are routinely ignored overseas? </p>
<p>Numerous judges and lawyers working in the criminal justice system have disagreed about whether we should retain juries to ensure accused people are judged by their peers. In his <a href="https://s3.ap-southeast-2.amazonaws.com/hdp.au.prod.app.vic-engage.files/9215/2211/1859/Review_of_the_Open_Courts_Act_2013_-_March_2018.pdf">review of the Victorian Open Courts Act</a> last year, former Supreme Court Justice Frank Vincent noted that the Walsh Street murder trial jury in 1990 delivered acquittals, despite intense publicity and community discussion.</p>
<p>Opponents of juries will cite the secrecy of their deliberations, and examples of jurors befriending accused criminals on social media, or telling their followers they planned to convict. Then there is the argument that juries cannot be adequately protected from publicity that will make a fair trial impossible. After Adrian Bayley was charged with murdering Jill Meagher, the police and Meagher’s husband were forced to <a href="https://www.theage.com.au/national/victoria/victims-husband-asks-for-silence-on-social-media-20120928-26r3o.html">plead with the public to remove Facebook hate pages</a> directed at Bayley.</p>
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Read more:
<a href="https://theconversation.com/you-wouldnt-read-about-it-adrian-bayley-rape-trials-expose-flaw-in-suppression-orders-39375">You wouldn't read about it: Adrian Bayley rape trials expose flaw in suppression orders</a>
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<p>Had Bayley not pleaded guilty, how might jurors have ignored the readily available information about his criminal past? Then <a href="https://www.smh.com.au/opinion/valid-reasons-for-suppression-orders-victoria-chief-justice-20151017-gkbkvu.html">Victorian Chief Justice Marilyn Warren said in 2015</a> that suppression orders were made in Bayley’s case to protect a fair trial.</p>
<p>The capacity of members of the public to derail a trial through online publishing is a relatively recent development. Reporting at the Supreme Court in 1989 was a long way from today’s global digital village. The main news agencies were the daily newspapers, the ABC and the wire service AAP. Journalists took notes in court to record sentencing remarks, although some judges would allow reporters to use tape recorders for accuracy’s sake.</p>
<p>In those days, suppression orders were relatively rare. Justice Bernard Teague wrote in 1999 that he had granted non-publication applications, but had also warned journalists about the prospect of being in contempt of court through publication. He attributed the appointment of a courts information officer (former Age court and law reporter Prue Innes) as a major reason for the lack of contempt cases in Victoria in the 1990s. </p>
<p>It might also be news organisations remembered the $80,000 fine given to The Age publishers and editor in 1981 for a feature article that referred to two brothers who were facing trial on drugs charges. Writing for The Age, Innes reported the penalty was the highest for contempt in any Australian court.</p>
<p>Another brake on suppression orders at the Victorian Supreme Court was the presence of reporters in the building. Media lawyers could be called quickly to court, and be given a detailed summary of the suppression arguments while on the way. It meant they could make specific submissions instead of general points about open justice and potentially improve their prospects. Judges knew the regular court reporters by sight, and could anticipate their interest.</p>
<p>In the mid-to-late 1990s, the law firm Corrs Chambers Westgarth published the glossy magazine called Medialine, which featured numerous articles about media law issues. In one edition, Sydney barrister Angela Browne quoted High Court decisions supporting jurors’ ability to put aside outside information about a case and reach decision based on the evidence. She wrote:</p>
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<p>Jurors are not expected to have extraordinary qualities of impartiality or fairness. What is expected of them is that, having given a solemn undertaking to do so and being properly directed by a judge, they will return a true verdict according to the evidence. </p>
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<p>London law firm partner Alaisdair Pepper wrote in 1995 about UK contempt of court rules restricting international pre-trial reporting of the <a href="https://www.independent.co.uk/news/the-horrific-secrets-of-25-cromwell-street-1576291.html">Rosemary West multiple murders</a> case. He acknowledged schools and businesses received news bulletins from other European countries. He said:</p>
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<p>In years to come attempts to keep the public in Great Britain in ignorance of what the rest of the world knows about a trial of considerable public interest in this country may render the law looking more and more out of touch.</p>
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<p>We might expect these sentiments in a publication that regularly featured media lawyers and journalists. In 1997, Justice Bill Gillard delivered much-repeated remarks about writers commenting during legal proceedings when fining The Australian and a reporter over a column published during the Supreme Court fraud trial of Coles Myer chief Brian Quinn.</p>
<p>Even the most unpopular defendant is entitled to a fair hearing,“ Justice Gillard said. "I would expect that a first-year journalist would know and understand the sub judice rule.” He continued:</p>
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<p>All members of the media would be well advised on the basis that, other than reporting the actual proceedings of the court, nothing should be stated in the media concerning the trial, the court, the accused or witnesses. If it is thought that a fact or a comment concerning the trial should be published, then legal advice from those experienced in media law should be consulted.</p>
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<p>By 2009, the world, and Victorian court reporting, had changed. Commercial lawyer Isolde Lueckenhausen wrote in <a href="https://search.informit.com.au/documentSummary;dn=201104693;res=IELAPA">Precedent magazine </a>that suppression orders applying to all community members had replaced sub judice contempt as the main method of attacking prejudicial publication. A report commissioned by major media organisations showed Victoria had the largest number of orders made in 2008, although South Australia had proportionally more when population was considered.</p>
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Read more:
<a href="https://theconversation.com/law-and-order-is-no-get-out-of-jail-card-for-floundering-politicians-107701">Law and order is no get-out-of-jail card for floundering politicians</a>
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<p>Facebook publications were an issue when a man was <a href="https://www.abc.net.au/news/2012-04-27/black-saturday-arsonist-sentenced-to-28holdholdhold29/3976564">charged with arson</a> over the 2009 Victorian bushfires, a fictionalised television series was suppressed in part while <a href="https://www.smh.com.au/entertainment/underbelly-appeal-shot-out-of-court-20080326-gds6tw.html">underworld court proceedings</a> were continuing, and <a href="https://www.smh.com.au/national/trial-and-error-20080917-4imf.html">terror trials </a>attracted suppression orders. Lueckenhausen said:</p>
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<p>Suppression orders do not stop discussion or prevent determined people from getting information from internet sites. However, they do stop the gradual discussion and analysis of issues that occur with contemporaneous reporting.</p>
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<p>She quoted then New South Wales Chief Justice Jim Spigelman, who suggested temporary removal of references to an accused and sequestering jurors might be necessary to support fair trials. She said Justice Spigelman saw the heart of the issue was the conflict between two principles mentioned at the start of this article – open justice and a fair trial.</p>
<p>Recently, the <a href="https://www.theage.com.au/national/victoria/andrews-government-considers-judge-only-trials-for-criminal-cases-20181213-p50m5u.html">Victorian government asked the Department of Justice to inquire into the prospect of judge-alone trials</a> as an option for those charged with criminal offences. It would provide accused people and their lawyers with an alternative if they were concerned about the possible effect of social and mainstream media publications. But such a move could also open judges to more scrutiny, attack and commentary.</p><img src="https://counter.theconversation.com/content/109181/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter Gregory covered courts and legal issues for most of his 28-year career as a newspaper and online reporter. In late 1988, he moved to Victoria where he reported for The Age newspaper for more than 21 years. Now, he teaches journalism at La Trobe University, and is investigating through a PhD whether suppression orders are relevant in a digital age.
</span></em></p>While media outlets rail against being prohibited from reporting on certain cases, it is about striking a difficult balance between open justice and a fair trial.Peter Gregory, Journalism Lecturer, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/936512018-03-22T03:09:07Z2018-03-22T03:09:07ZWhy the public isn’t allowed to know specifics about the George Pell case<figure><img src="https://images.theconversation.com/files/211114/original/file-20180320-31614-7icnee.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">George Pell emerges from court during his committal hearing on historical sexual offences.</span> <span class="attribution"><span class="source">AAP/Stefan Postles</span></span></figcaption></figure><p>Many Australians are left perplexed when media coverage of high-profile criminal cases is suddenly suspended or abbreviated “for legal reasons”. The <a href="http://www.abc.net.au/news/2018-03-20/cardinal-george-pell-was-never-alone-during-masses-priest-says/9567244">current committal hearing</a> of Catholic Cardinal George Pell on historical sexual offences engages the principle of “open justice” and some of its most important exceptions.</p>
<p>Coverage of such matters is restricted at various stages of criminal trials. This is because of the relative priority the courts and lawmakers have assigned to the principles of open justice and the administration of justice, and the competing rights of free expression, privacy and a fair trial.</p>
<h2>What is ‘open justice’?</h2>
<p>The principle of <a href="https://www.alrc.gov.au/publications/open-justice">open justice</a> dates back to at least the 12th century; it involves people’s access to observe the goings-on in a courtroom. It was later extended to the media as “the eyes and ears of the public” in court.</p>
<p>Australia’s High Court has ruled that open justice is of constitutional significance, and nothing should be done to discourage the media from publishing fair and accurate reports of what occurs in the courtroom. But, it added, the principle is <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2011/4.html">not absolute</a>.</p>
<p>An open court involving fair and accurate media coverage is thus the default position for Australian courts. The common law recognises only a limited number of well-defined exceptions. Lawmakers have developed hundreds more.</p>
<p>One important common law limitation is in the area of <a href="https://www.vgso.vic.gov.au/content/refresher-sub-judice-contempt-publish-or-not-publish"><em>sub judice</em> contempt</a>. This puts a halt to prejudicial coverage of a criminal matter from the moment an accused is arrested or charged right through until the appeal period has expired.</p>
<p>Important restrictions here are upon any suggestion an accused might be guilty (or innocent), coverage of contested evidence that may or may not be put to a jury, coverage of earlier proceedings (such as preliminary hearings and royal commissions), interviews with key witnesses, details of any confessions, the criminal history or character evidence about the accused, and visual identification of the accused if that might be at issue in a trial.</p>
<h2>Specific restrictions on court cases</h2>
<p>Legislation in all Australian jurisdictions has placed a litany of further restrictions on attendance at – and reporting on – a host of situations. These include family law cases, juvenile cases, mental health proceedings and – most relevant here – <a href="https://journlaw.com/2014/08/13/sexual-offences-publishing-restrictions-in-australia-a-guide-for-journalists/">sexual matters</a>.</p>
<p>The statutory gags forcing closure of courts, banning of coverage, and de-identifying of parties vary in important ways. This is because lawmakers have placed a differing emphasis on the competing rights and interests.</p>
<p>For example, if Pell was facing his committal hearing in South Australia or Queensland, he could not even be identified until after he is committed to trial – if that eventuates.</p>
<p>Lawmakers in those states have decided the reputational damage attached to an allegation of a serious sexual offence is so damaging that an accused person should not be identifiable until it is proven there is at least a prima facie case to answer at trial.</p>
<p>In Victoria, where Pell’s committal hearing is taking place, the accused can usually be identified. However, other restrictions apply either under legislation or in suppression orders issued by a presiding judge or magistrate.</p>
<p>In no Australian jurisdiction can the victim (known as the “complainant”) be identified – directly or indirectly – in sexual matters. But the laws vary on whether they might be identified after proceedings with their permission or the court’s permission.</p>
<p>This means complainants who might have been identified in earlier coverage or proceedings are suddenly rendered anonymous from the moment the matter is “pending” – after the arrest or charging of a suspect.</p>
<p>Special protections apply to complainants during committal hearings involving sexual offences. This includes closing the court while victims give evidence.</p>
<p>A complex array of policy issues inform these kinds of restrictions. These include the perceived vulnerability of victims, their privacy, and the important likelihood that victims might not come forward to bring charges of this nature if they sense they might be in the media spotlight.</p>
<h2>Do we need a rethink in the digital age?</h2>
<p>Victoria has had more than its share of journalists and others falling foul of court restrictions through defiance or ignorance of the law. </p>
<p>Former journalist and blogger (now senator) Derryn Hinch has twice been jailed as a result of contemptuous coverage – <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1987/56.html">once in 1987</a> for broadcasting prejudicial talkback radio programs about a former priest facing child molestation charges, and <a href="http://www.austlii.edu.au/au/cases/vic/VSC/2013/520.html">again in 2013</a> after refusing to pay a A$100,000 fine for blogging the prior convictions of Jill Meagher’s accused killer in breach of a suppression order.</p>
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Read more:
<a href="https://theconversation.com/you-wouldnt-read-about-it-adrian-bayley-rape-trials-expose-flaw-in-suppression-orders-39375">You wouldn't read about it: Adrian Bayley rape trials expose flaw in suppression orders</a>
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<p>Two ABC journalists were convicted of identifying a rape victim in radio broadcasts in 2007. They and their employer were <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2007/281.html">later ordered</a> to pay her $234,190 in damages in a civil suit for the invasion of her privacy among other injuries.</p>
<p>In 2017, Yahoo!7 <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2017/45.html">was fined $300,000</a> for contempt after it published social media material about a victim and the accused. The publication forced the jury in a murder trial to be discharged.</p>
<p>Many of the restrictions on coverage are problematic in the digital era. Mainstream media are more likely to be charged with <em>sub judice</em> contempt than social media users because the large audiences of mainstream media mean their prejudicial coverage is more likely to reach potential jurors.</p>
<p>The cross-jurisdictional nature of digital publishing also renders journalists and social media users subject to the tangled web of restrictions on criminal justice reporting when covering a criminal matter from another state.</p>
<p>Court orders to take down earlier reportage on websites are typically futile, because online dissemination is so widespread. So, the bizarre situation exists where the prior character evidence and coverage of earlier proceedings still sits online for anyone to access with a simple search of an accused’s name.</p>
<p>This is problematic if a rogue juror decides to become a cyber Sherlock Holmes. It means we require <a href="https://research-repository.griffith.edu.au/handle/10072/59350">better training of jurors</a>.</p>
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Read more:
<a href="https://theconversation.com/trial-by-social-media-why-we-need-to-properly-educate-juries-13547">Trial by social media: why we need to properly educate juries</a>
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<p>Suppression orders are also a problem because these are typically circulated only to mainstream media in the trial’s immediate vicinity. This leaves others <a href="https://theconversation.com/you-wouldnt-read-about-it-adrian-bayley-rape-trials-expose-flaw-in-suppression-orders-39375">blissfully unaware of the orders</a>. Some orders – known as “super injunctions” – are so secret that even publication of the fact they have been issued is prohibited.</p>
<p>Victoria’s <a href="http://classic.austlii.edu.au/au/legis/vic/num_act/oca201358o2013203/">Open Courts Act</a> was meant to reduce the number of suppression orders and inject an element of consistency to the issuing of these. However, it <a href="https://journlaw.com/2017/03/07/is-an-open-justice-advocate-the-solution-to-overly-restrictive-suppression-orders-mlgriff/">has been problematic</a>.</p>
<p>At least the media are better assisted in the modern era. Court information officers help explain the various restrictions and keep the media well briefed in high-profile trials – as they <a href="https://www.magistratescourt.vic.gov.au/about-us/media-information/committal-matter-christopher-reed-v-george-pell">have done in Victoria</a> during Pell’s committal hearing.</p><img src="https://counter.theconversation.com/content/93651/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Pearson has received funding from the Australian Government, the Victorian Government, Mindframe Australia and the Rule of Law Institute for research projects related to this topic. He has provided media law training on a consultancy basis to various media organisations over the past 23 years.</span></em></p>George Pell’s current committal hearing engages the principle of ‘open justice’ and some of its most important exceptions.Mark Pearson, Professor of Journalism and Social Media, Griffith Centre for Social and Cultural Research, Griffith University, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/774982017-05-17T13:04:57Z2017-05-17T13:04:57ZSecret justice leaves a corrupt and damaging legacy<figure><img src="https://images.theconversation.com/files/169766/original/file-20170517-24341-1yaf4up.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Balance required.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/burden-proof-moodily-lit-legal-law-335237585?src=mzbAV1bWOl3akSCeHaiVFA-1-3">Shutterstock</a></span></figcaption></figure><p>One of the most disturbing trends in the British legal system these days is the growing enthusiasm for secret justice. For example, there was a court case a few years ago that you may not know much about. It involved a suspected terrorism plot on British soil, and a well-known alleged target.</p>
<p>The reason you may not know much about it is that a highly respected judge ruled that the trial should be held in secret. The Appeal Court then <a href="http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Crim/2014/1861.html">decided to pull the shutters up</a> a little, but only to allow reporters to report the pleas, part of the opening prosecution statement, the swearing in of the jury, the verdict and the sentence. </p>
<p>There followed an extremely <a href="http://www.bbc.co.uk/news/uk-31989581">strange arrangement</a> whereby approved “accredited reporters” were allowed to attend, but not report some of the proceedings. Their notebooks had to be surrendered at the end of the day. What they heard, saw and recorded <a href="http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Crim/2016/11.html">can still not be publicly disseminated</a>.</p>
<p>Many of the significant processes relating to terrorism in the UK over the last 20 years have been heard in secret, with anonymous applicants processed through the immigration system where <a href="http://www.dailymail.co.uk/news/article-4166050/Public-banned-knowing-identity-asylum-seekers.html">anonymity is standard</a>. This is a system that allows the appointment of “special advocates” in closed procedures where the evidence of intelligence agency suspicion is never known to the people whose presence in this country can simply be rejected. </p>
<p>And there have been at least two occasions when individuals tried for contempt of court have been jailed in virtual secrecy. <a href="http://www.dailymail.co.uk/news/article-3918716/Grandmother-jailed-secret-court-refusing-remove-man-care-home-freed-six-weeks-prison.html">The stories only emerged through retrospective investigation</a>. </p>
<p>Add to this an implosion in journalistic resources, and we have <a href="http://www.pressgazette.co.uk/top-lawyer-warns-that-decline-of-cour-reporters-means-justice-operates-unseen-and-unheard-by-public/">a crisis in reporting of court hearings</a> even when the doors <em>are</em> open to the public. </p>
<p>I have been campaigning against secret justice since the 1980s. But it was just recently, while researching and writing <a href="http://explore.gold/devils-on-horseback">a new play on conscientious objectors</a>, that I was reminded of the corrupt and pernicious legacy that unjustifiable secret processes leave for society. </p>
<p>In 1916, Britain was the first country to legislate for the <a href="http://www.ppu.org.uk/coproject/coww1a.html">right to individual conscience during national conscription</a>. The “conscience clause” had been drafted by three Quaker MPs to allow exemption. The Liberal Prime Minister H H Asquith faced howls of derision when tabling it on the floor of the House of Commons. </p>
<p>Between May 1916 and Armistice in November 1918, up to 20,000 men refused to take up arms. Many went to prison, were forced to serve in punishment non-combatant units, lost their right to vote, and found employment prospects after the war blighted by the stigma.</p>
<p>A small group had even been condemned to death after refusing orders in France. The sentences were commuted when their fate was leaked to their political supporters. </p>
<p>Devils on Horseback is a play based on a decision by London’s Deptford Borough Council to hold all of their military tribunals into conscientious objector status between 1916 and 1918 in private. It was the only local authority in the country to do so.</p>
<p>The destruction of military tribunal records means that the only record of what happened elsewhere resides in local newspaper reporting. The policy of the then Conservative Mayor in Deptford, William Wayland, means that record is practically a blank page. A remarkable memoir by <a href="http://lewishamfww.wikidot.com/person:albrow-henry-rivett">local postal worker Henry Albrow</a>, left to the Imperial War Museum, indicates he may have provided the only account of what it was like to appear before the secret Deptford Tribunal. </p>
<p>He argued his position on the grounds of socialism and moralism, condemning the Council’s militarist culture as anti-democratic and ungodly. He declared: </p>
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<p>Every man is my brother. I believe in the socialist Jesus Christ and I cannot connect myself in any way with war.</p>
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<h2>Lost voices</h2>
<p>The research into the experience and plight of local people in Deptford depended on local historians such as Ann O’Brien, The Peace Pledge Union, and my resourceful colleagues in the <a href="http://www.gold.ac.uk/media/images-by-section/research-and-enterprise/about/public-engagement/Deptford-Town-Hall-1916.pdf">history department at Goldsmiths</a>. </p>
<p>Goldsmiths’ <a href="https://vimeo.com/goldsmiths/review/216408075/097e0aba49">Acting and Film Making Society</a> has now produced an imaginative representation of what happened in Deptford, based on extremely limited resources because of the secrecy that was allowed to exist. </p>
<p>The British legal system must learn from this affront to our history. Secret justice is intrinsically corrupting and problematic. It is so insidious that I believe judges and parliament must simply find a better way of protecting sensitive information and vulnerable people. </p>
<p>Far too many significant legal battles based on high principle, conscience, religion, and social and political status are taking place behind closed doors. We cannot fight injustices if they happen out of sight. We must not let our modern public record disappear into an empty vortex of secret history.</p><img src="https://counter.theconversation.com/content/77498/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tim Crook is chair of the Professional Practice Board of the Chartered Institute of Journalists that has campaigned for open justice in the courts throughout its history.
He is the author of the play 'Devils on Horseback: Conscientious Objectors on Trial' that is being produced as a result of a grant from the Goldsmiths Annual Fund.
All ticket receipts from the production will go to the Jay Merriman-Mukoro student bursary scheme enabling attendance on the MA Radio Programme at Goldsmiths for an individual who would not otherwise be able to go to university.
Professor Tim Crook is also the historian of Goldsmiths College.</span></em></p>History does not look kindly on hearings behind closed doors.Tim Crook, Professor in Media and Communication (Goldsmiths), Visiting Professor of Broadcast Journalism (Birmingham City University), Chair of Professional Standards Board, CIoJ., Goldsmiths, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/624892016-07-18T00:29:31Z2016-07-18T00:29:31ZPokémon Go puts pressure on when technology meets the law<figure><img src="https://images.theconversation.com/files/130641/original/image-20160715-2150-66hnmm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Pokemon Go has been a worldwide phenomenon, but it is not welcome in NSW law courts.</span> <span class="attribution"><span class="source">AAP/Frances Mao</span></span></figcaption></figure><p>There are two PokéStops and a Gym within range of my desk at work. <a href="http://www.pokemongo.com/en-us/">Pokémon Go</a> presents a real threat to my productivity. Apparently, it also presents a threat to justice in Australia.</p>
<p>Last Monday, the New South Wales Department of Justice issued a warning through its Facebook page:</p>
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<p>GOING TO COURT IS NOT A GAME: POKEMON GO TRAINERS SHOULD LOOK ELSEWHERE FOR DIGITAL CRITTERS.</p>
<p>Attention budding Pokémon trainers: you do not need to step inside a courthouse to find Pokémon.</p>
<p>A reminder that the use of recording devices in NSW courts is prohibited under the Court Security Act 2005 - Section 9 - and carries a $22,000 fine or imprisonment for 12 months (or both).</p>
<p>Stay safe and catch ‘em all!</p>
</blockquote>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/130625/original/image-20160715-2144-18ki2k4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/130625/original/image-20160715-2144-18ki2k4.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=503&fit=crop&dpr=1 600w, https://images.theconversation.com/files/130625/original/image-20160715-2144-18ki2k4.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=503&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/130625/original/image-20160715-2144-18ki2k4.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=503&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/130625/original/image-20160715-2144-18ki2k4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=632&fit=crop&dpr=1 754w, https://images.theconversation.com/files/130625/original/image-20160715-2144-18ki2k4.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=632&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/130625/original/image-20160715-2144-18ki2k4.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=632&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">NSW Department of Justice</span></span>
</figcaption>
</figure>
<p>So why can’t you use a recording device in court?</p>
<p>The post identifies <a href="http://www.legislation.nsw.gov.au/#/view/act/2005/1/part2/sec9">NSW legislation</a> prohibiting the use of recording devices to record sound or images in courts. However, unless you are taking a screenshot of a wild Pokémon in court premises, it is unlikely that you would contravene the relevant provision. Other Australian states do not have equivalent legislation, but their courts can still <a href="http://www.lawreform.justice.nsw.gov.au/Documents/report_39.pdf">prohibit recording inside the courtroom</a>. </p>
<p>There is a tension between these powers and the “principle of open justice”.</p>
<h2>The principle of open justice</h2>
<p>“<a href="https://www.alrc.gov.au/publications/open-justice">Open justice</a>” is an essential attribute of our legal system. It means that court proceedings are normally open to the public, which builds public confidence in the administration of justice.</p>
<p>Open justice plays an important role in our democracy because it ensures that courts are kept accountable – judges’ work is on public display. This is a very old idea. Philosopher and jurist Jeremy Bentham <a href="http://www.austlii.edu.au/au/journals/UTasLawRw/1984/3.html">made the point well</a>: </p>
<blockquote>
<p>Publicity is the very soul of justice … It keeps the judge himself, while trying, under trial.</p>
</blockquote>
<p>We may have a right to attend court proceedings, but most of us do not exercise that right on a regular basis. Journalists often do. Through court reporting, the media has become the “<a href="http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/781.html">eyes and the ears of the public</a>”. Even so, journalists do not have a right to record what goes on inside the courtroom <a href="http://www.legislation.nsw.gov.au/#/view/act/1970/52/part9a/sec128">without permission</a>.</p>
<h2>Recording in the courtroom</h2>
<p>Judges differ on whether the recording of court proceedings is desirable. Some express a wariness of audio-visual coverage. For example, an application to film the sentencing of the late gangland figure Carl Williams was rejected out of <a href="http://www.austlii.edu.au/au/cases/vic/VSC/2007/139.html">concerns that coverage</a> would not “present an accurate, impartial and balanced [account] of the proceedings”.</p>
<p>A recent case lends credibility to that type of concern. The baby Gammy case attracted international media coverage, which included false reports that baby Gammy was abandoned <a href="https://www.linkedin.com/pulse/baby-gammy-decision-media-law-farnell-chanbua-2016-fcwa-douglas?trk=prof-post">because he had Down syndrome</a>. The Family Court of Western Australia later attached strict conditions <a href="http://www.familycourt.wa.gov.au/_files/Publications/2016FCWA17anon.pdf">on the reporting of the case</a>, and only permitted the use of file footage in media publications.</p>
<p>Dodgy media practices, and our “<a href="http://www.austlii.edu.au/au/journals/FedJSchol/2006/3.html">abhorrence of tabloid television journalism</a>”, go some way to explaining why we can’t catch pocket monsters on our iPhones in Sydney courthouses. </p>
<p>More broadly, this event illustrates how generally conservative legal institutions are taking a cautious approach to accommodating rapid changes in technology and society.</p>
<h2>What changing technology means for justice</h2>
<p>Judges have recognised that the increasing ease of access to information presents a <a href="http://www.unswlawjournal.unsw.edu.au/sites/default/files/19_spigelman_2006.pdf">challenge for the administration of justice</a>. For criminal law matters, changing technology threatens the jury system itself: trials have been miscarried because jurors <a href="http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2003/406.html">accessed information about the accused</a> on the internet.</p>
<p>On the other hand, changing technology also presents opportunities. Technology can provide the public with better access to the inside of the courtroom, and so can expand open justice. </p>
<p>In some quarters, this is already happening. Since 2013, the High Court of Australia has published audio-visual recordings of its proceedings; recordings of Full Court hearings are <a href="http://www.hcourt.gov.au/cases/recent-av-recordings">available on its website</a>. This follows practice of the UK Supreme Court, which has <a href="https://www.supremecourt.uk/live/court-02.html">broadcast proceedings for some years</a>. A number of judges around Australia, including the chief justice of Western Australia, have been strong advocates for enhancing open justice <a href="http://www.supremecourt.wa.gov.au/_files/Improving_Access_to_Justice20091015.pdf">through the use of technology</a>.</p>
<p>In recent years, judges have also had to grapple with the place of <a href="http://www.aija.org.au/Quick%20Links/Judges%20and%20Social%20Media%202014.pdf">social media in the courts</a>. In 2010, a Federal Court judge allowed the proceedings of a notorious copyright case to be “<a href="http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html">twittered or tweeted</a>”. </p>
<p>Since then, some Australian jurisdictions, including <a href="http://www.courts.sa.gov.au/Lists/Court%20Rules/Attachments/190/Supreme%20Court%20Civil%20Rules%202006.pdf">South Australia</a>, <a href="http://www.supremecourt.wa.gov.au/_files/Consolidated_Practice_Directions.pdf">Western Australia</a> and <a href="http://assets.justice.vic.gov.au//supreme/resources/6ebfaf77-d0b8-4c35-bb9c-a78f0699d3bc/media+policies+and+practices+supreme+court+september+2015.pdf">Victoria</a>, have allowed certain members of the media to communicate during proceedings via media like Twitter. This is a positive step, which brings court practices toward societal expectations in a controlled and reasonable way.</p>
<p>Changing technologies have made information more accessible than ever before. Generally, this is a good thing. But it presents a challenge to older ways of doing things. Military operations have historically depended on keeping secrets; defence forces <a href="https://www.ted.com/talks/stanley_mcchrystal_the_military_case_for_sharing_knowledge">have had to adapt</a>.</p>
<p>Historically, courts have been open – but not to the extent that modern technology allows for, and not to the extent that we are coming to expect. Eventually, the legal system will also adapt. In the meantime: don’t go looking for Pokémon in courts.</p><img src="https://counter.theconversation.com/content/62489/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Douglas does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Technology’s burgeoning possibilities have put pressure on our law courts when it comes to the principle of ‘open justice’.Michael Douglas, Lecturer in Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/548432016-02-17T15:10:49Z2016-02-17T15:10:49ZIncedal terror case shows how little we’ve learned about press freedom since WWII<figure><img src="https://images.theconversation.com/files/111625/original/image-20160216-19256-zez787.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Justice must be seen to be done.</span> <span class="attribution"><span class="source">Shutterstock/Gorosi</span></span></figcaption></figure><p>Erol Incedal – a law student from London – was sentenced in April 2015 to three and a half years in prison after being found guilty of possessing a bomb-making manual. But his trial was held under such tight reporting restrictions that it is hard to say whether justice was done.</p>
<p>The court accepted the prosecution’s argument that the risk to national security meant that proceedings should be held out of view of the media and wider public, a decision the BBC <a href="http://www.bbc.co.uk/news/uk-35536278">reported as imposing</a> “an unprecedented level of secrecy in courts that are normally open to the public”.</p>
<p>After appeals from the media, the England and Wales Court of Appeal <a href="http://www.theguardian.com/law/2016/feb/09/media-groups-lose-appeal-against-secret-trial-of-erol-incedal">ruled recently</a> that the controversial reporting restrictions would not be lifted. The Appeal Court judges said that a departure from the principle of open justice was necessary for justice to be done and found that, in this case, open justice, via the media as “watchdog” was not appropriate.</p>
<blockquote>
<p>… any public accountability for matters relating to the prosecution cannot be achieved through the press in its function as “watchdog” of the public interest. However, as the issues relate to terrorism and those charged with combating it, it will be open to the Intelligence and Security Committee of Parliament to consider any issues it considers need to be examined and for any public accountability to be achieved in that way.</p>
</blockquote>
<p>What will be perhaps less well reported are the problems with the way courts handle national security sensitive information that this case has exposed.</p>
<p>The <a href="http://www.bailii.org/ew/cases/EWCA/Crim/2016/11.html">judges observed</a> that they would normally look to previous decisions to ensure a consistent approach. But in this case relevant “closed judgments” were not retained within court files – meaning it is impossible for judges to tell whether they were being consistent. The judges requested that a working group should be set up to consider ways in which previous “closed judgements” could be made available to courts dealing with similar cases. This is the latest development in a case marred by confused and inconsistent information handling.</p>
<h2>Closed court</h2>
<p>The case wouldn’t have come to public notice at all had a journalist not spotted the reporting restriction on a court list. Alarmed at the departure from the principle of open justice, a consortium of media organisations <a href="http://www.theguardian.com/law/2015/apr/16/erol-incedal-terrorist-trial-media-groups-appeal-refusal-lift-reporting-restrictions">challenged the far-reaching restrictions</a> and condemned what appeared to be a secret criminal trial.</p>
<p>A <a href="http://www.theguardian.com/uk-news/2014/oct/15/unprecedented-secrecy-restrictions-uk-terrorism-trial">unique compromise was reached as a result</a>, and Incedal’s trial and retrial were eventually held in partial secrecy with varying levels of access. The first level involved a small number of sessions heard in open court; the second allowed a handful of accredited journalists to access some of the private sessions, although they still could not report on the proceedings and had to leave their notebooks locked in a safe. In the third, sessions remained entirely closed, with only judge, jury, and participants in the case present.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"697042794435612672"}"></div></p>
<p>This three-tier system did little to appease concerns: only 10 hours of evidence were heard in public, whereas 28 were heard by the accredited journalists and 30 were heard in private. The media’s inability to report the prosecution’s main argument meant that the reasons for secrecy remained unclear. Although Incedal was <a href="http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/11235297/Erol-Incedal-secret-terror-trial-Suspect-convicted-of-possessing-terrorist-information.html">found guilty of possessing a bomb-making document</a> at the first trial and jailed for three and a half years, it was not even possible to report the evidence that led the jury to find him <a href="http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/11479825/Erol-Incedal-cleared-of-terror-attack-plot-after-secret-trial.html">not guilty of preparing an act of terrorism</a> in the second.</p>
<p>The seemingly <em>ad hoc</em> approach to information control adopted in the case suggests a serious lack of planning. This situation has been roundly criticised. Newspapers, pressure groups, academics – and even the <a href="http://www.dailymail.co.uk/wires/pa/article-2831493/No-defendant-anonymity-says-judge.html">Lord Chief Justice</a> – have called for clearer guidelines and rules in future.</p>
<h2>War footing</h2>
<p>This situation could have been avoided had lessons been learnt from recent history. We have compared the Incedal case with security censorship during World War II in <a href="http://www.historyandpolicy.org/policy-papers/papers/censorship-and-national-security-information-control">a paper for History & Policy</a>. We observed striking parallels. The procedures adopted in 1939 had not been well planned – those responsible for implementation had little understanding of the press and there were few channels of communication with the security services. The result was a clumsy duplication of functions that quickly brought the system into disrepute.</p>
<p>It took many months of negotiation between all parties to resolve the worst of these difficulties. The result was a self-regulated system that was based on a spirit of “friendly co-operation” and was designed to balance national security with the maximum possible freedom of the media. Contemporary policymakers would be wise to consider this precedent.</p>
<p>The experience of World War II suggest that successful information control measures require careful planning, clear guidelines, and cooperation. If it is accepted that terrorism is as much of a threat to the British way of life in 2015 as was Nazi Germany seven decades ago, then lawmakers must be willing to engage with interested parties.</p>
<p>The handling of the Incedal case failed in this respect. Such a situation is in nobody’s interest.</p><img src="https://counter.theconversation.com/content/54843/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Henry Irving received funding from AHRC. This research was undertaken for the project 'A Communication and Publishing History of the Ministry of Information, 1939-46'.</span></em></p><p class="fine-print"><em><span>Judith Townend does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>National security must be balanced with the need for public accountability. This trial shows that it isn’t.Henry Irving, Senior Lecturer, Leeds Beckett UniversityJudith Townend, Lecturer, School of Advanced Study, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/299442014-08-01T04:35:17Z2014-08-01T04:35:17ZNot mad, bad or unusual: WikiLeaks and suppression orders<p>Contrary to twittering by the digerati, the Victorian Supreme Court suppression order revealed by WikiLeaks this week isn’t <a href="http://www.theage.com.au/national/wikileaks-publishes-unprecedented-secret-australian-court-suppression-order-20140730-zyc6m.html">unprecedented</a>. It isn’t futile, dangerous or an egregious restriction on a supposedly comprehensive right of free speech. </p>
<p>It is instead something that we should respect as a manifestation of justice in a liberal democratic state, where charismatic individuals do not get to take the law into their own hands.</p>
<p>WikiLeaks has revealed that the Supreme Court made a suppression order regarding prosecution of alleged criminal offences. Those offences may or may not involve some high-profile overseas figures.</p>
<p>The Australians who are on trial remain innocent until proven guilty. So do any people overseas. </p>
<p>From a justice perspective any claims in cyberspace have no value. We do not engage in trial by journalists, Twitter or WikiLeaks.</p>
<h2>Suppression orders are part of justice</h2>
<p>Suppression orders restrict reporting of some or all information that appears in a trial. Such orders are traditional. They don’t mean that the court is closed or “secret”.</p>
<p>Courts typically use suppression orders to protect the victims of serious offences or to underpin the administration of justice – for example, legitimate action by law enforcement and national security personnel. Orders made by a court can be challenged, amended (for example, shortened) or removed altogether. The order published by WikiLeaks needs to be read carefully and in context, rather than through the lens of Julian Assange.</p>
<p>Astute readers can often infer the content of an order, particularly with the assistance of the mass media. Some courts are responding by granting so-called <a href="http://www.abc.net.au/news/2011-05-26/cohen---the-super-injunction3a-what-is-it-and-does-it-matter3f/2730684">super-suppression orders</a>, which restrict reporting the existence of an initial order. Super-suppression is problematic but can be seen as a response to irresponsibility on the part of some media organisations.</p>
<p>In making sense of the Victorian order two things are significant. Disregard of an order is contempt of court, punishable as an attack on the overall justice system.</p>
<p>Journalists and activists have no authority to ignore an order. That was demonstrated in the <a href="http://www.hcourt.gov.au/assets/publications/judgment-summaries/2011/hca4-2011-03-10.pdf">prosecution</a> of shock jock Derryn Hinch, whose <a href="http://www.austlii.edu.au/au/journals/CanLawRw/2011/8.pdf">reporting</a> breached an order prohibiting the identification of a sex offender. Having a microphone or a keyboard doesn’t place you above the law.</p>
<p>Orders are often misunderstood or misrepresented, particularly by media interests that consider the protection of privacy or respect for justice gets in the way of a headline. Authoritative studies in the UK (for example, the <a href="http://www.judiciary.gov.uk/publications/committee-reports-super-injunctions/">Neuberger report</a>) and Australia debunk myths about a supposed flood of frivolous, long-lasting or otherwise inappropriate orders. </p>
<p>There is <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1032736">variation</a> between jurisdictions but courts, for example Victoria’s Supreme Court in <a href="http://www.austlii.edu.au/au/cases/vic/VSC/2012/153.html">litigation involving</a> one of Australia’s richest men and the NSW Supreme Court regarding our <a href="http://www.law.mq.edu.au/public/download.jsp?id=83762">richest woman</a>, are acting responsibly. They are not casually handing legal lollipops to importunate children.</p>
<h2>What are the consequences of this contempt?</h2>
<p>What are the consequences for Assange? In practice, very little. He remains on Ecuadorean soil in the form of Ecuador’s embassy in London. It’s unlikely that he’ll be prosecuted for contempt of court and even if he did face legal action he’d presumably welcome the notoriety. </p>
<p>The consequences for the justice system in Australia are more interesting. The <a href="http://www.austlii.edu.au/au/cases/vic/VSC/2008/73.html">granting</a> of <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2008/49.html">orders</a> by <a href="http://www.austlii.edu.au/au/cases/vic/VSC/2008/344.html">courts in Victoria</a> in connection with the Underbelly TV series sought to ensure fair trials. The <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1649922">effectiveness</a> of those orders was undermined by ordinary Australians who blogged, emailed, ripped and burned or SMSed. </p>
<p>The new media that Assange has exploited in his latest grab for publicity do not respect the borders of liberal democratic states. My research argues that people who subverted the Underbelly orders often did so in emulation of peers, as an assertion of agency (important for tech-savvy 16-year-olds) or because they believe that law has no value in cyberspace. </p>
<p>Narcissism aside, Assange’s motivation presumably reflects his interest in subverting the state in favour of an anarchist utopia.</p>
<p>By now, many readers of The Conversation and other Australians have visited the WikiLeaks site and drawn conclusions about what’s being alleged in the Victorian court. The conclusions and allegations may be incorrect. </p>
<p>From the perspective of justice we face questions about <a href="http://theconversation.com/seen-to-be-done-opening-access-to-justice-in-victoria-15620">open courts</a> and the effectiveness of orders that are flouted by people located offshore but writing for Australian audiences. </p>
<p>More subtly, we face questions about information literacy. In the <a href="https://theconversation.com/wikileaks-journalism-ethics-and-the-digital-age-what-did-we-learn-28262">age of Wikileaks</a> and <a href="https://theconversation.com/the-uk-government-is-working-in-a-snowden-free-bubble-21448">Edward Snowden</a>, misinformation can go round the world in a second. Not everyone will understand what they read or critique claims that are false. It is interesting that readers apparently assume that governments always lie and Snowden and Assange always tell the truth.</p>
<p>If we want to reconstruct the state, let’s do that through parliamentary processes and a respect for the justice system rather than on the basis of an expose by someone who’s a <a href="http://www.businessinsider.com.au/snowden-is-still-very-useful-to-russia-2014-7">guest of Vladimir Putin</a> or hiding in an Ecuadorean broom cupboard.</p>
<hr>
<p><em>This article was amended after publication to correct references to the Hinch prosecution and the Underbelly suppression orders.</em></p><img src="https://counter.theconversation.com/content/29944/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bruce Baer Arnold does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Contrary to twittering by the digerati, the Victorian Supreme Court suppression order revealed by WikiLeaks this week isn’t unprecedented. It isn’t futile, dangerous or an egregious restriction on a supposedly…Bruce Baer Arnold, Assistant Professor, School of Law, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/244632014-03-19T03:28:24Z2014-03-19T03:28:24ZMorcombe, Pistorius and the public interest in court broadcasts<figure><img src="https://images.theconversation.com/files/44144/original/442sf258-1395104245.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Why isn't it the norm for trials in Australia of immense public interest to be broadcast, as the murder trial of Oscar Pistorius in South Africa has?</span> <span class="attribution"><span class="source">EPA/Kevin Sutherland</span></span></figcaption></figure><p>The one thing missing from the saturation coverage of the <a href="http://www.brisbanetimes.com.au/queensland/daniel-morcombes-murderer-brett-peter-cowan-sentenced-20140314-34qpi.html">Daniel Morcombe murder trial</a> in Brisbane late last week was courtroom vision. </p>
<p>Media coverage of Brett Cowan’s conviction and sentencing involved images of journalists standing outside the Brisbane Supreme Court building, various now-familiar old photographs of Cowan and an artist’s sketch.</p>
<p>Journalists attempted to capture the scene through news reports, such as <a href="http://news.ninemsn.com.au/national/2014/03/14/09/27/daniel-s-pedophile-killer-to-be-sentenced">this</a>:</p>
<blockquote>
<p>The judge had barked at father of three Cowan, 44, to stand up in the Brisbane Supreme Court dock to hear her forceful sentencing remarks, which ran for more than 20 minutes.</p>
<p>“Everything about what you did to that child was horrific and disgraceful,” she told the prisoner, who stared straight ahead with his hands folded in front of him.</p>
</blockquote>
<p>In contrast, the ongoing trial of South African athlete Oscar Pistorius for the murder of his girlfriend Reeva Steenkamp has been <a href="http://www.telegraph.co.uk/news/worldnews/oscar-pistorius/10660023/Oscar-Pistorius-trial-to-be-broadcast-on-TV-rules-South-African-judge.html">broadcast live</a> on television and the internet to a global audience. Why wasn’t Cowan’s sentencing televised? </p>
<p>Those in favour of televising court proceedings argue there is a clear public interest in letting people see the workings of courts: they can educate the public and enhance transparency. Arguments against television cameras say they can sensationalise and take the courts’ focus away from proceedings. Both arguments are well documented in decades-old <a href="http://www.jstor.org/discover/10.2307/20877787?uid=3737536&uid=2129&uid=2&uid=70&uid=4&sid=21103687873657">research</a>. </p>
<p>Four television networks and one newspaper group applied for (and were denied) audio and video access to Cowan’s sentencing. In <a href="http://archive.sclqld.org.au/qjudgment/2014/QSC14-041.pdf">explaining her reasoning</a>, Justice Roslyn Atkinson noted that both the defence and the prosecution were opposed to the proposal and argued that televising the sentence:</p>
<blockquote>
<p>… would have a tendency to sensationalise the proceedings and was not necessary in order to further the interests of open or public justice. </p>
</blockquote>
<p>Yet Daniel Morcombe’s story has been highly sensational since he went missing in 2003. There had been little media or public space that hadn’t somehow carried the Morcombe message: the case had moved into the public consciousness like few others in Australian history.</p>
<p>In her no-camera ruling, Justice Atkinson listed issues that had arisen from other televised coverage, citing the 1995 Victorian case of the Queen v Nathan John Avent, which brought criticism in the appellate court. </p>
<p>Not surprisingly, there is caution where a case may be appealed or come under close scrutiny. Victorian courts now post <a href="http://scv2.webcentral.com.au/sentences/">audio of judgments</a> online as standard practice. It has been highly successful and is used, as needed, by the media. It would be safe to say that had the Cowan case been heard in Victoria, the audio would have at the very least been broadcast online.</p>
<p>Though televised proceedings are far from standard practice in Australian courts, they have occasionally been allowed on a case-by-case basis in many states, such as in <a href="http://www.watoday.com.au/wa-news/wa-chief-justice-backs-televised-courts-20110612-1fytv.html">Western Australia</a>. Court proceedings have also been televised in South Australia, Victoria, New South Wales and within the Federal Court, with media applications made through each court’s public information officer.</p>
<p>Queensland has no such position. As a consequence, there is no one to work as a dedicated liaison between the courts and the media, meaning Queensland lacks any formal capacity to deal with television camera access requests. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/44170/original/5tj9t6wv-1395116056.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/44170/original/5tj9t6wv-1395116056.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/44170/original/5tj9t6wv-1395116056.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=907&fit=crop&dpr=1 600w, https://images.theconversation.com/files/44170/original/5tj9t6wv-1395116056.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=907&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/44170/original/5tj9t6wv-1395116056.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=907&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/44170/original/5tj9t6wv-1395116056.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1140&fit=crop&dpr=1 754w, https://images.theconversation.com/files/44170/original/5tj9t6wv-1395116056.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1140&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/44170/original/5tj9t6wv-1395116056.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1140&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The media relied on old photos of Brett Cowan as part of their coverage of the Morcombe trial.</span>
<span class="attribution"><span class="source">AAP/Supplied</span></span>
</figcaption>
</figure>
<p>In 1983, Justice Michael Kirby, then of the New South Wales Court of Appeal, said television would ultimately enter the courtroom. In 2001, I <a href="om.au/documentSummary;dn=018676905004871;res=IEL">argued</a> that television access in Australian courts was well behind Canada, New Zealand and the United Kingdom and needed to move forward. </p>
<p>In 2014, however, the issue goes beyond an argument for television cameras alone. Online news media now rely equally on audio and vision. The argument is no longer in favour of one medium – it is now an argument for all media. </p>
<p>While the United States has a well-established system of television cameras in court – notably used during the <a href="http://en.wikipedia.org/wiki/O._J._Simpson_murder_case">1995 murder trial of O.J. Simpson</a> – the United Kingdom has only <a href="http://www.theguardian.com/law/2013/oct/30/court-of-appeal-televised-first-time">recently moved</a> to introduce them. </p>
<p>Late last year, proceedings from the UK courts of appeal began to be televised. Five courtrooms within central London’s Royal Courts of Justice have been pre-wired with a trolley that can be moved from courtroom to courtroom. At the time, The Guardian reported:</p>
<blockquote>
<p>The hope is for innovation to fuse seamlessly with tradition with the video-journalist’s editing trolley fashioned from varnished oak, camouflaged to match courtroom furniture, while remote-controlled cameras are concealed in bookcases between ancient legal volumes.</p>
</blockquote>
<p>Embedding cameras for live feeds – in the UK system, it is on a 70-second delay – would alleviate the issue of individual camera access.</p>
<p>In the Cowan case, Justice Atkinson argued that televising the sentencing would have slowed down the process. But had the Brisbane Supreme Court installed its own camera system in its recently built buildings – as in the UK courts and the <a href="http://www.fedcourt.gov.au/publications/videos">Australian Federal Court </a> – it would have had the capacity to feed its own vision to the media. Delays would not have been an issue.</p>
<p>It has been argued that Australia will <a href="http://kangaroocourtofaustralia.com/2013/11/09/television-cameras-for-australian-courts-probably-not-far-away-as-the-uk-judiciary-presses-the-record-button/">follow the UK’s lead</a>. Many jurisdictions might follow, but it seems unlikely, at this stage, that Queensland will be one of them. </p><img src="https://counter.theconversation.com/content/24463/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jane Johnston does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The one thing missing from the saturation coverage of the Daniel Morcombe murder trial in Brisbane late last week was courtroom vision. Media coverage of Brett Cowan’s conviction and sentencing involved…Jane Johnston, Associate Professor Journalism and Public Relations, Bond UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/156202013-07-07T20:46:01Z2013-07-07T20:46:01ZSeen to be done: opening access to justice in Victoria<figure><img src="https://images.theconversation.com/files/26862/original/6x3dj6v4-1372905211.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Broadcaster Derryn Hinch has been found guilty of breaching court suppression orders in the past. Does justice need to be seen in order to be truly done?</span> <span class="attribution"><span class="source">AAP/Julian Smith</span></span></figcaption></figure><p>The Victorian state parliament is currently considering the <a href="http://www.austlii.edu.au/au/legis/vic/bill/ocb2013167/">Open Courts Bill (2013)</a> after questions have been raised about just how much transparency is needed in the justice system. The bill, proposed by the government, centres on suppression orders and follows several controversies in Victoria and elsewhere over the past five years. </p>
<p>Those controversies involve claims that suppression orders are being misused by some prominent identities; that they are not <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1635080">viable</a> in the <a href="http://www.smh.com.au/nsw/internet-suppression-orders-face-challenge-20120422-1xf59.html">age of the internet</a>; and are <a href="http://www.australiasrighttoknow.com.au/files/docs/Reports2008/13-Nov-2008ARTK-Report.pdf">overused</a> or simply incompatible to the open justice ideal that is a cornerstone of a liberal-democratic state.</p>
<p>The Victorian bill is important because it clearly articulates a presumption of open access by the public, consistent with traditional statements by courts that justice must be seen to be done. The bill does not prohibit suppression orders and does not override the scope for courts to manage proceedings to protect people who are vulnerable. Instead, the bill instead offers a coherent framework that emphasises public access to proceedings, offering guidance to all courts, and by extension to journalists.</p>
<p>Suppression orders are a long-standing feature of the UK and Australian justice systems. They involve courts ordering that particular information must not be published. Those courts are generally the most senior courts in the Australian state and territory jurisdictions, and are concerned with serious offences rather than petty theft or traffic infringements. </p>
<p>The orders concern identifying information: primarily the name, image, address or other information that would allow a member of the public to readily determine a party in litigation. That party might be a defendant in a prosecution or the party might instead be a victim.</p>
<p>Rationales for orders include protection of victims (especially of sex offences), encouraging witnesses to participate in the justice system and the minimisation of any adverse publicity that would prevent a fair trial.</p>
<p>Suppression orders are controversial for several reasons. In the UK, for example, there has been criticism of so called <a href="http://www.abc.net.au/unleashed/2730684.html">“super suppression orders”</a>, which involve prohibition on disclosure that a specific order has even been issued. </p>
<p>The rationale for that prohibition is that interested individuals - some of whom are dubbing themselves as citizen journalists and operating outside editorial restraints - often join the dots in inferring the subject of an order and speculate about the offence involved. Such inference is apparent in recent claims about the <a href="http://www.abc.net.au/pm/content/2011/s3206817.htm">identity</a> of a South Australian MP charged with offences involving children.</p>
<p>In Victoria, disagreements about suppression orders by state courts have featured celebrities. Earlier this year in AA v. BB, the Victorian Supreme Court <a href="http://www.austlii.edu.au/au/cases/vic/VSC/2013/120.html">dismissed</a> claims that the suppression of information about parties to a family law and domestic violence dispute involving a political candidate was outside the court’s power or inconsistent with the implied freedom of political communication. That freedom is more circumscribed than an absolute right of free speech. It has been recognised by the High Court over the past two decades as a foundation of Australian democracy.</p>
<p>Recognition of the right to free speech featured in the High Court’s <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2011/4.html">decision</a> regarding Victorian media identity Derryn Hinch. Hinch unsuccessfully asserted a broad public interest as the justification for defying state court restrictions on the publication of information that would allow the identification of the victim of a child sex offender. In essence, public curiosity is not to be construed as public interest and journalists – whether in search of ratings or justice – are not above the law.</p>
<p>The Hinch case attracted national attention. Questions of public access to family dispute details involving Victorian retail billionaire Solomon Lew have gained less attention. The Victorian Supreme Court was <a href="http://www.austlii.edu.au/au/cases/vic/VSC/2012/153.html">persuaded</a> that it was protecting children involved and was not necessary to broadly suppress information that touched on family finances. That information may have been of interest to the Australian Taxation Office. The court endorsed the statement that:</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/26851/original/29xmb644-1372903649.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/26851/original/29xmb644-1372903649.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/26851/original/29xmb644-1372903649.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/26851/original/29xmb644-1372903649.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/26851/original/29xmb644-1372903649.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/26851/original/29xmb644-1372903649.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/26851/original/29xmb644-1372903649.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Gina Rinehart’s bitter family disputes have been characterised by suppression orders, much to the delight of some in the legal community.</span>
<span class="attribution"><span class="source">AAP</span></span>
</figcaption>
</figure>
<blockquote>
<p>The principle of open justice…requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom.</p>
</blockquote>
<p>In Western Australia, disagreements between mining magnate <a href="https://theconversation.com/forget-the-personality-sideshow-serious-legal-issues-are-at-the-heart-of-rinehart-family-feud-5813">Gina Rinehart</a> and her children have featured a succession of suppression orders that have piqued the interest of legal scholars, journalists and a small army of legal practitioners. </p>
<p>Journalists have persuasively argued that there is a compelling rationale for public access to the proceedings and that wealth should not result in Rinehart escaping the scrutiny that would experienced by people who do not own <a href="https://theconversation.com/why-does-gina-rinehart-want-control-of-fairfax-7774">major stakes</a> in media companies. </p>
<p>We should not expect suppression orders to disappear and there are strong rationales for their use on a case-by-case basis. However, the presumption of openness the bill aims to provide should be welcomed.</p><img src="https://counter.theconversation.com/content/15620/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bruce Baer Arnold does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Victorian state parliament is currently considering the Open Courts Bill (2013) after questions have been raised about just how much transparency is needed in the justice system. The bill, proposed…Bruce Baer Arnold, Assistant Professor, School of Law, University of CanberraLicensed as Creative Commons – attribution, no derivatives.