Open justice in practice

1. Open justice in practice Mark Pearson Professor of Journalism and Social Media Griffith University National Magistrates Orientation Program – Brisbane September 8 2017

2. My work and perspective Fifth edition of media law text + Blogging and Tweeting Without Getting Sued, (A&U, 2012) Courts and the Media – Challenges in the Era of Digital and Social Media (co-ed) Co-author of Social Media and the Courts research paper for Vic Dept of Justice 2013 + Articles on mental health restrictions, scandalising the court, and my own suppression experience RSF Correspondent 2005-2015 Fairfax media law trainer for 25 years

3. Open Justice 101 English Master of the Rolls Lord Neuberger described it as “a common law principle which stretches back into the common law’s earliest period” – to “time immemorial” – “…older than 6 July 1189, the date of King Richard the First’s accession to the throne”. - Neuberger, Lord of Abbotbury (Master of Rolls) 2011, ‘Open justice unbound?’, Judicial Studies Board Annual Lecture, 16 March, < http://netk.net.au/judges/neuberger2.pdf>., p. 2

4. Open Justice 101 / 2 Jeremy Bentham, Treatise on Judicial Evidence, 1825: ’Where there is no publicity there is no justice… Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against imbrobity.’

5. Open Justice 101 / 3 It is “one of the most fundamental aspects of the system of justice in Australia”, and of “constitutional significance”. The principle requires, in broad terms, that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. The right to publish a report of proceedings is a corollary of the right to attend and observe them.

6. Open Justice 101 / 4 It encompasses the right to identify those appearing before a court as part of such a report. The common law recognises only a limited number of well defined circumstances in which the principle may be displaced by orders closing a court or prohibiting the publication of proceedings. At common law, a court must be satisfied that an order restricting access or reporting is necessary, in the strict sense of the word, to ensure the administration of justice in the circumstances.

7. Open Justice 101 / 5 Hogan v Hinch [2011] HCA 4, 22 (French CJ). John Fairfax Pty Ltd and Anor vDistrict Court of NSW & Ors (2004) 61 NSWLR 344, 18 (McHugh J). John Fairfax Publications Pty Ltd v Attorney General for NSW [2000] NSWCA 198, 53 (Spigelman J). John Fairfax & Sons v Police Tribunal of NSW (1986) 5 NSWLR 465, 476-477. Attorney General vLeveller Magazine Ltd [1979] AC 440; Ibid. John Fairfax vLocal Court of NSW (1992) 26 NSWLR 131, 159 (Mahoney J). John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512, 45 (Spigelman CJ); O’Shane v Burwood Local Court (2007) 178 A Crim R 392, 34.

8. Open Justice 101 / 6 Baroness Brenda Hale, new President of the UK Supreme Court: “The principle of open justice is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to law. In fact, there are two aspects to this principle. The first is that justice should be done in open court, so that the people interested in the case, the wider public and the media can know what is going on. … The second is that the names of the people whose cases are being decided, and others involved in the hearing, should be public knowledge. [… limited exceptions].” - R (on the application of C) v Secretary of State for Justice [2016] UKSC 2, 1 (Lady Hale).

9. Current issues Depleted mainstream media resources = fewer court reporters, fewer in-house lawyers and fewer challenges to court rulings. This means the magistrate might be the only advocate for open justice in a court room because of its constitutional significance [John Fairfax Publications Pty Ltd v Attorney General for NSW [2000] NSWCA 198, 53 (Spigelman J).] Depleted resources = inexperienced reporters = $300k contempt fine for Yahoo!7 and conviction for reporter. [DPP v Johnson & Yahoo!7 [2016] VSC 699 / DPP v Krystal Johnson & Yahoo!7 Pty Ltd (No 2) [2017] ] Inconsistency across jurisdictions on a host of fronts, including suppression orders, journalists’ privileges and statutory publication restrictions – despite publishing now crossing all those jurisdictions on a daily basis

10. Double standards with SM Mainstream media is at a disadvantage in the era of social media because it is more likely to be noticed breaching an order, and is more likely to be conficted of contempt of court: Cf Journalist and blogger DerrynHinch jailed for 50 days after refusing to pay a $100k fine for breaching a suppression order [R v Hinch [2013] VSC 520 (2 October 2013),; R v Hinch (No. 2) [2013] VSC 554 (18 October 2013)]

11. Second Twitter defo case Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652 • Hockey provided “privileged access” to a “select group” in return for donations to the Liberals via “secretive” fundraising body, the North Sydney Forum • “Treasurer for Sale” or “Treasurer Hockey for Sale” headings in all bar The Canberra Times. Same words in tweets and SMH poster. *** Tweets considered in own right and could not rely on articles for context or defences • Damages for imputations in the SMH poster ($120k) and in the first two of The Age tweets ($80k)