Open Justice and the Australian Legal System

The Australian Legal system, particularly the judicial sphere, prides itself on remaining transparent and accountable. These two concepts stem from the Principle of ‘Open Justice’, a notion that is commonly enjoyed by the Australian community, but is very rarely recognised.

What is Open Justice?

The principle of open justice has as its underlying and fundamental principle the foundation that ‘justice must not only be done, but, must be seen to be done’, quoted famously by Lord Hewart CJ in the English landmark decision of R v Sussex Justices ex Parte McCarthy [1924] 1 KB 256.

This Principle established that the Court does not have an inherent power to exclude the public from proceedings, and therefore, has established court business as a matter of public interest. Contempt of this substantial Principle may be seen to undermine the purpose of the judicial arm. 

When Can Open Justice Be Denied?

When considering when a court may circumvent the Principle of Open Justice, Section 71 of the Civil Procedure Act 2006 (NSW)expressly states circumstances in which the ‘business of the court… may be conducted in absence of the public’. This section sets out seven specific situations by which the court is able to ‘close court’ proceedings including:

• On the hearing of an interlocutory application, except while a witness is giving oral evidence;
• If the presence of the public would defeat the ends of justice;
• If the business concerns the guardianship, custody or maintenance of a minor;
• If the proceedings are not before a jury and are formal or non-contentious;
• If the business does not involve the appearance before the court of any person;
• If, in proceedings in the Equity Division of the Supreme Court, the court thinks fit; and
• If the uniform rules so provide.

When looking at these circumstances in which a ‘closed court’ is permitted, it has been generally understood that a court will be closed off to the public in situations where the proper administration of justice cannot be done unless this was to occur. Commonly these situations involve matters relating to sexual offences or children. One justification of this as referred to in R v Kwok (2005) 64 NSWLR 335 was to ensure that witnesses felt safe to provide information. 

Suppression Orders

A judge is also able to administer suppression orders under Section 7 of Court Suppression and Non-Publication Order Act 2010 (NSW) (Court Suppression Act). Section 3 of this legislation provides that a ‘suppression order is an order that prohibits or restricts the disclosure of information’. This is also an exception to the Open Justice principle, as not all presented information is able to be revealed. Section 8(1) of Court Suppression Act lists specific grounds for making this order:

• The order is necessary to prevent prejudice to the proper administration of justice;
• The order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
• The order is necessary to protect the safety of any person;
• The order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency); or
• It is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

It is evident that where confidential information or documents pertaining to the above criteria have no purpose or, will not strengthen the substance of the case, a judge will issue a suppression order, in order to ensure a just execution of the trial. 

It is clear that when considering situations by which the Open Justice principle is able to be negated, a strong consideration is the proper administration of justice. This ensures that information is able to flow freely and proceedings are able to progress. It is interesting to note however, that ‘embarrassment’ is not considered when closing the court to the public, however, is legislated on when considering the making of suppression orders.

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R v Sussex Justices ex Parte McCarthy [1924] 1 KB 256

NSW Legislation as reproduced on TimeBase LawOne

R v Kwok (2005) 64 NSWLR 335