Privacy the culprit again as the OZ laments NSW court information law.

NSW Courts Act 1787-long since repealed

Privacy is a problem that News Limited sees time and time again, most recently in this opinion piece by Nicola Shaver ("How privacy hobbles push for open justice")  in Legal Affairs in The Australian last Friday. Shaver asserted the yet to commence NSW Court Information Act is a paradox doomed from the start-even from getting started a year after passage through parliament- in trying to safeguard privacy while making court documents more easily accessible to the public and the press. In the first 31 paragraphs Shaver lists "all kinds of problems," inconsistencies in the act and practical issues that stand in the way of implementation that will have you thinking the worst. But paragraph 33 brings an acknowledgement that "the media will certainly be better off than currently" when the act commences. And, surprise, with all those problems seemingly incapable of resolution, in paragraph 36: a government spokesperson said the act is expected to be in force by the second half of this year.

The big problem according to Shaver is that the whole thing is misconceived (emphasis added):

"(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."

In fact they are perfectly reasonable goals involving principles that have to be reconciled one way or another. Getting the balance right in the law and practice is a complex business in this case and more generally. Legislation frequently (usually?) has to attempt to address and balance competing objectives as well as conflicting interests and points of view. And it's not just a challenge for the law. Other single instruments such as the Australian Press Council Statement of Principles face the same challenge. In addressing issues concerning the free press and the freedom to publish, for example, the principles also refer to privacy protection: "(n)ews and comment should be presented honestly and fairly, and with respect for the privacy and sensibilities of individuals." The devil in all such cases is in the detail.That's where we are with this legislation.

The Court Information Act establishes a broad framework for managing the issues, codifies principles to apply, categorises various types of information as open or restricted, and sets out party, non-party and media rights of access. Developing regulations, policies, rules, systems and procedures with input from those who work in and around the courts was always going to be hard going, as Richard Coleman one of many members of an advisory committee to the Attorney General's Department attests in the article. A significant period of preparation was always what was envisaged when the legislation was introduced.

I wonder if anyone other other than Shaver (and her employer?) has any serious interest in starting over again a journey towards a better system that started in 2003?

Four years hard labor on Court Information Bill

Attorney General Hatzistergos in The Australian explains how the NSW Court Information Bill reflects the various interests that go towards public confidence in the justice system and why the government is confident it has struck the right balance, while Susannah Moran elsewhere in the paper claims the bill is far more restrictive in some respects than a proposal put by Chief Justice Spigelman. The Attorney is right about the long gestation period "as the government conducted exhaustive consultations with a range of stakeholders, including media organisations, the courts, the legal profession, privacy advocates and victims groups." Four years since a discussion paper was issued on the subject. Whether  the result, still to come before the Legislative Council, delivers fully on open justice only qualified by necessary restrictions on access and publication of information, I'll leave it to experts.

NSW court information problematic, so too reform measures.

Over three years ago the NSW Government issued a discussion paper on proposed changes in the law regarding access to court information, and I for one had heard little since. So interesting to read in Court review shows nobody was listening by Susannah Moran in today's Legal Affairs in The Australian that a consultation draft Court Information Bill has been released for comment. According to Moran, Australia's Right to Know "is very disappointed with a bill which purports to further the principle of open justice but in fact will be more restrictive than previous practice in NSW and less liberal than in a number of other Australian jurisdictions." A search of the Legislation and Policy Branch of the Department of Justice and Attorney General's website turned up an Access to Court Information Paper dated 2008 but no sign there of the Consultation Draft Bill, or any update since. Update: it's here on Lawlink's Latest- thanks to an alert reader on 20 October.

The slow grinding wheels of justice, or at least policy reform......