Open' justice, the courts and the media

This thesis consists of a book chapter and a series of published and unpublished articles that deal with open justice, the courts and the media, framed by an introduction and a conclusion. The thesis begins with an introduction which identifies its aims and provides an overview of the issues that are addressed therein. It explains that it proceeds on the premise that open justice, while of seminal importance to our legal system, is not an inflexible rule but a malleable principle. This is critical, because it is this tractability which enables courts to assign differing strengths to the principle, depending on the context, and to subjugate it, on appropriate occasions, to other valued principles that pull in an opposite direction. Chapter one describes the nature of the principle, outlines its aims, examines its primary applications and recounts the principal common law and statutory exceptions. Considerable time is devoted to explaining how the principle and the exceptions impact on the work of the media. It also considers some of the practical difficulties that media organisations experience when courts make suppression orders. Chapter two investigates the nature of the relationship between the courts and the media, and the media and the public, and considers the extent to which media reporting of the work of the courts furthers the aims of open justice. It suggests that these relationships are not always conducive to achieving the aims of open justice. Accordingly, it argues that courts should assume greater responsibility for cultivating a more direct relationship with the public in an attempt to ensure that their work is better understood. Chapters three, four and five consider the extent to which the principle of open justice does, and should, operate in three disparate contexts. Chapter three compares the response of Australian and. Canadian courts when asked to make orders suppressing publication in the mass media of evidence given in open court concerning particular police methods used to solve cold cases and the identities of undercover police officers involved. Chapter four attempts to formulate an appropriate response to the issue of child identification in criminal contexts. It explores the policy considerations for and against identifying child victims and offenders, concludes that the arguments in favour of suppressing a child's identity generally outweigh the arguments in favour of revealing a child's identity and critically examines the options for a national standard. Chapter five considers the extent to which the media should be able to report judicial proceedings in which Victorian courts are asked to make supervision or detention orders in respect of sex offenders who have completed their custodial sentence, but who are regarded as posing an unacceptable risk of re-offending. It concludes that insufficient regard has been paid to the principle of open justice in this context. A conclusion addresses some of the opportunities and challenges that the principle of open justice is currently facing, or is likely to face in the future.

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