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Monday, June 06, 2011

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NSW Courts Act 1787-long since repealed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?

Shaver's byline is "a Sydney media lawyer." Presumably she is the same Nicola Shaver described in this Linked In entry as Editorial Legal Counsel Nationwide News since March 2010. Nationwide News Pty Ltd is a wholly owned subsidiary of News Limited, Australia's largest publisher, the Australian arm of News Corporation, and publisher of The Australian.  The only other person quoted in the long article is Coleman, the in-house counsel for Fairfax Business Media who speaks of difficult practical difficulties but stops short of saying they are insurmountable. Others with an interest apart from the lawyers who advise the two major media organisations presumably have sleeves rolled up or are biding their time to see how the new law works in practice.

Problems with this law aren't new for The Australian.The paper ran strongly with concerns about the bill last year, including articles under the headlines Court officers guardians of privacy and New court law has targets.

The whole idea behind the act was to clarify rights of access to court information by replacing existing legislation, court rules and practice notes that overly rely on discretionary powers-that the media in particular don't like.

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.

Section 3 sets out the the objects of the Act: (a) to promote consistency in the provision of access to court information across NSW courts, (b) to provide for open access to the public to certain court information to promote transparency and a greater understanding
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.

Any court information that is not defined either in the act or in the regulations as open access information is classified as restricted access information.  A member of the public who is not a party to criminal or civil proceedings can still make an application to the court for access to restricted access information contained in the court records of the proceedings. The court may still grant an application for access to this information taking into account specific factors set out in Section 9.

Section 10  grants news media organisations additional access to information contained in court records even though the information is otherwise classified as restricted access information. For example, media representatives will now be able to automatically access information contained in a transcript of proceedings held in closed court, information contained in a court record that is only classified as restricted access information because it contains personal identification information, information contained in the brief of evidence admitted in criminal proceedings and information contained in a record admitted into evidence that is a document in written form, or that can readily be reproduced as a document in written form, such as sound or video recordings.

Section 6  classifies as restricted access information personal identification information, such as tax file numbers, social security numbers, Medicare numbers, financial account numbers, passport numbers, personal telephone numbers, dates of birth and home addresses; secondly, information contained in an affidavit, pleading or statement that has been rejected, struck out or otherwise not admitted into evidence; and, thirdly, information contained in a person's criminal record, or in a statement that comprises a medical, psychiatric, psychological or pre-sentence report, or in a victim impact statement, unless that information is summarised in a judgement given or orders made in proceedings. This does not mean that the public will not be able to have access to this court information. A member of the public who is not a party to criminal or civil proceedings can still make an application to the court for access to restricted access information contained in the court records of the proceedings. The court may still grant an application for access to this information taking into account specific factors set out in the act.

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