|NSW Courts Act 1787-long since repealed|
"(All the steps needed to make this work involves) an expense that might easily have been spared had the legislation been properly drafted in the first place. The protection of privacy is an important objective, as is the wider access to court information. But it is nonsensical to try to contain both objectives in one instrument. The act purports to give with one hand while taking away with the other. One instrument cannot properly achieve both goals."
Importantly it has been eight years in coming. Consultation has followed consultation. The courts, police, media organisations, victims groups, privacy advocates and the legal profession all had plenty to say on the way through.To no one's surprise the Parliamentary Secretary in introducing the bill said it "has not always been possible to accommodate the concerns and views of every stakeholder."
Legislation was recommended in the New South Wales Law Reform Commission Review of "Law of Contempt by Publication"in 2003. In 2004, the Supreme Court conducted community consultation. In 2006, the Attorney General's Department released a discussion paper. In 2009 the then Attorney General released a consultation draft of the bill. In 2010 the bill was the subject of a report by the Legislation Review Committee before passing both houses. In fact no one-the then government, the then opposition now in government, the Greens or Fred Nile, the only other speaker in the parliamentary debate a year ago spoke or voted against the bill.
Shaver refers to several provisions in the act to support her argument, but those interested in the detail will find the second reading speech a fuller summary. These key provisions are worth noting.
of the justice system, (c) to provide for additional access to the media to certain court
information to facilitate fair and accurate reporting of court proceedings, (d) to ensure that access to court information does not compromise the fair conduct of court proceedings, the administration of justice, or the privacy or safety of participants in court proceedings, by restricting access to certain court information.
Section 5 sets out the information and/or court records that are classified as open access information. This will give the public an entitlement, subject only to the payment of any relevant fees, to access the following information in both civil and criminal proceedings: firstly, documentation which commences proceedings; secondly, written submissions made by a party to proceedings; thirdly, statements and affidavits admitted into evidence, including experts reports; fourthly, judgements, directions and orders given or made in the proceedings, including a record of conviction in criminal proceedings; and, fifthly, the date on which a matter has been or is to be heard by the court and the name of the judge, magistrate, registrar or other court officer who heard or is officially listed to hear the proceedings. For criminal proceedings open access information will also include the indictment, court attendance notice or other document commencing proceedings. The police fact sheet, statement of facts or similar summary of the prosecution's case will also be open access information for criminal proceedings. In civil cases the originating process and pleadings in a civil case will also be open access information-there are timing considerations in both sets of proceedings.