Laws governing media and public access to court information will be overhauled by the NSW Government. This follows the release of a report by the NSW Attorney General’s Department recommending a new approach to access to court information for NSW courts. NSW Attorney General John Hatzistergos has announced that the NSW Government will adopt the recommendations made by the Department in its Report on Access to Court Information.

The recommendations are intended to provide a framework for access to court information that represents a substantial shift in favour of increasing the availability of court documents while still allowing personal information to be protected. The underlying rationale of the report is that open justice requires liberal access to court information and information should be restricted only where there are compelling reasons not to allow access.

Summary of the recommendations

The report recommends the introduction of specific legislation to support the principle of open justice and to restrict access to court information only to the extent necessary to safeguard individual privacy and safety, commercial confidentiality, national security and the attainment of a just outcome in the proceedings.

The report proposes a simple regime. All information on the court record (such as pleadings and affidavits) should be classified as either “open to public access” or “restricted public access”.

Open access - civil pleadings and originating process

The report recommends that court information classified as “open to public access” should be available to the general public as of right. In particular, the report recommends public access be granted to civil pleadings (such as statements of claim and defences) after the first court listing date (including any preliminary call-over) or, in the absence of a court listing, from after judgment.

Public access to affidavits will continue to be withheld until after the affidavit has been tendered in evidence. Currently, public access to pleadings is generally only granted after the proceedings have concluded. The Attorney General’s Department considered that moving the date for access forward to the first listing date would provide parties with sufficient opportunity to seek orders that access be restricted.

Open access - criminal proceedings

In relation to criminal proceedings, the report recommends that a Fact Sheet (an unsworn statement prepared by a police officer which outlines the circumstances surrounding an alleged offence) be classified as open access until a date for trial by jury is allocated. The report also recommends removing the current restriction on the right to access court records within 2 days after judgment so as to allow continued access to open access information.

Protection of privacy

While the recommendations in the report expand the rights to access to court information, they also seek to protect personal and sensitive information in a number of ways. The report recommends that certain personal identifiers (for example, residential addresses, tax file numbers and bank account numbers) be removed from documents classified as open access and recommends the introduction of legislative non-publication provisions that prevent unnecessary publication of personal identifiers. The report also recommends that sanctions should exist for the improper release and use of court information and that parties should be informed at the commencement of proceedings of the possible use and disclosure of court information.

In addition, the report states that legislation should be introduced to clearly define the nature and extent of orders that are available to parties seeking to restrict the release of court information (for example, non-publication and suppression orders).

Background to the report

The report arose from the NSW Government’s 2006 consultation paper, Review of the policy on access for court information, and takes into account submissions received from media organisations, legal associations and privacy bodies. The report formed the basis for discussions of a national model at the Standing Committee of Attorneys-General meeting last week, where it was agreed that work on Australia-wide harmonisation of access to court information should be progressed in conjunction with, but separate to, the proposal to develop a national register of suppression orders.

These proposed legislative changes are yet to be enacted. We will inform you of any further developments in this area.