When the new legal term started in Australia in February, no one could have foreseen the impact of COVID-19 on our courts. Judges and practitioners alike have been thrust into a “new normal”. Significant trials had to be vacated despite wasted court resources and costs to the parties. Judges, associates and practitioners have all had to upskill just to keep the justice system going. A matter of weeks ago, many would have been hard pressed to describe what Microsoft Teams, WebEx, Blue Jeans and Zoom were, let alone how to use them. Yet now, without this technology, the justice system would have ground to a halt.

Prior to COVID-19, Australian courts – like those in the UK – had been slow to adopt practices such as live streaming and other forms of technology that enable remote access to court proceedings. The pandemic, and the associated restrictions on movement and public gatherings, have restricted public access to the courts, presented significant challenges for judges and practitioners in the conduct of hearings and forced the adoption of new technologies and procedures. But it has also raised serious questions about open justice and whether it is being adequately protected during this crisis.

Here, we look at open justice in Australia drawing on the practical experience of journalists with the new COVID-19 measures and consider what the future of open justice might look like post-pandemic.

Based on our research, we conclude that the online hearing technology introduced in the wake of COVID-19 to facilitate remote access to justice has – for the most part – safeguarded the public interest in open justice. It has therefore been welcomed by journalists.  As in the UK and the US, the Australian experience reveals that this kind of technology better facilitates journalist and public access to court proceedings.  While there are some concerns, including about the adequacy of the technology, these are not insurmountable and should hopefully be addressed by the passage of time as the courts and practitioners become more adept with its use and with appropriate investment in court infrastructure and capabilities. In this way, the COVID-19 restrictions have ushered in promising innovations for open justice in Australia: a silver lining to the COVID-19 cloud.

We wish to express our gratitude to a number of Australian media entities and journalists – including in house legal counsel and court reporters from News Corp Australia (News), Nine Publishing (covering former Fairfax mastheads), Nine Broadcasting, the Special Broadcasting Service (SBS), and the Australian Broadcasting Corporation (ABC) – who have taken the time to share with us their considered feedback and experience.

Open justice and open courts: general principles 

In Australia, as in the United Kingdom, the public interest in open justice is one of the most fundamental aspects of the justice system.[1] As the former Chief Justice of NSW, the Honourable J.J. Spigelman AC previously acknowledged, the principle is “one of the most pervasive axioms of the administration of common law systems”. [2] Generally, Australian courts have applied the same common law principles that will be familiar to practitioners and court reporters in the United Kingdom and elsewhere in the Commonwealth. However, as we will explain, there are a number of significant differences.

In short, open justice is directed at providing a safeguard for the “pure, impartial and efficient administration of justice”. In other words, justice should not just be done but be seen to be done.[3] Court proceedings are therefore ‘subjected to public and professional scrutiny’'[4] thereby maintaining and promoting a fair trial and the public’s confidence in the integrity and independence of the courts.[5] Or, to borrow the words of Jeremy Bentham:

“Publicity is the very soul of justice. It keeps the judge, while trying, under trial”.

This kind of consideration is particularly pertinent in criminal trials where, as Lord Steyn said in Re: S (A Child) (Identification: Restrictions on Publication):

“The glare of contemporaneous publicity ensures that trial are properly conducted. It is a valuable check on the criminal process…Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the value of the rule of law.”

Unlike in the UK , Australia has given open justice statutory force, both at a Federal level[6] and in two states: New South Wales (NSW) and Victoria (Vic).[7] Those provisions were enacted after the Standing Committee of Attorneys-General endorsed a model law to attempt to harmonise open justice law in Australia: Court Suppression and Non-publication Orders Bill 2010 (the model law).[8] The common law remains operative in Queensland (Qld), Tasmania (Tas), South Australia (SA), Western Australia (WA), Northern Territory (NT) and Australian Capital Territory (ACT).

A corollary of the open justice principle is that the media is entitled to publish a fair and accurate report on court proceedings[9] and, subject to any successful claim of confidentiality, is also entitled to access evidence and documents that have been tendered in open court.[10]  Nothing should be done to discourage the making of such fair and accurate reports of judicial proceedings conducted in open court.[11] Pursuant to these principles, journalists often make applications to court for leave to access evidence and documents to produce an accurate report.[12]

In practical terms, open justice requires that court proceedings should be conducted in ‘open court’ so that the public and the media alike are permitted to attend court proceedings and hear the evidence presented so that they may properly understand proceedings and any judgment.

Limitations to open justice 

In Australia, as in the UK, open justice is not absolute and is subject to certain limitations - where necessary. Many of these limitations are provided by express statutory provision. For example, there is the prohibition of publication of any matter which identifies the complainant in certain sexual offence proceedings and which prohibits the identification of a child who is a witness or is a victim in criminal proceedings.[13] The Family Law Act 1975 (Cth) prohibits identification of any party to matrimonial proceedings.[14] Parliament has also mandated that courts should be closed to prevent disclosure of information that may prejudice national security.[15] 

Statutory limitations aside, any other limitation to open justice in Australia can only properly be made in a few strictly defined circumstances, including where they are “necessary” to prevent prejudice to the administration of justice and/or, as set out in NSW legislation adopting the model law, where the public interest “significantly outweighs” the public interest in open justice.[16] As recently affirmed by the Federal Court, during the pandemic, the word “necessary” is a deliberately high bar to surmount.[17] As the NSW Court of Appeal carefully pointed out in Rinehart v Welker,[18] where constructional choices are open, the principle of legality favours a construction of the relevant legislation that has the least adverse impact on open justice and common law free speech.[19] 

One of the significant differences between Australia and the law of the UK is that Australian courts do not have to engage with what the UK Supreme Court has called the “ultimate balancing exercise” between articles 8 (right to privacy) and 10 (right to freedom of expression).[20] Australian courts have long expressed the view that considerations such as privacy must be sacrificed “to the greater public interest in adhering to an open system of justice”.[21] As the High Court has more recently pointed out, suppression and non-publication orders are not “necessary” if it appears to the court: 

"…to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some 'balancing exercise', the order appears to have one or more of those characteristics"[22]

Limitations on open justice and the right to the right to a public hearing are also provided for in international human rights law: see Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR), the equivalent of Article 6 of the European Convention on Human Rights (ECHR).  Article 14(1) provides that:

“The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice…”

Australia is a signatory to the ICCPR (which entered into force on 13 November 1980) and is bound by its provisions. While it has not been directly implemented as part of domestic law (cf: the implementation of the ECHR under the Human Rights Act 1998 in the UK), the permitted limitations in Article 14(1) are, arguably, already reflected in existing domestic law and the test of strict necessity, as outlined above.[23]

As the United Nations has made clear, “the situation presented by the COVID-19 pandemic requires many countries worldwide to take extraordinary measures to protect the health and well-being of the population”.[24] This might include measures which restrict human rights, such as lockdowns and social distancing,  restricting freedom of movement and limitations on public access to court hearings, which restricts the operation of the principle of open justice. These restrictions must be time-bound and meet the requirements of legality, necessity and proportionality: they must be provided by law and be the least coercive measures by which public health protection can be achieved.   

The response to COVID-19 and the Australian Courts

In March 2020, Prime Minister Scott Morrison announced lockdown measures in response to COVID-19. Each State and Territory subsequently introduced new laws and measures to protect public health and prevent the spread of the virus, which generally restricted gatherings to members of households or two-ten people only, and to maintain social distancing (e.g. of at least 1.5m), even while accessing essential services.[25] 

As a public institution, the courts provide an essential government service that must maintain public confidence in the administration of justice. Indeed, as the Federal Court put it, Australian courts also “facilitate the continuation of the economy”.[26] 

Notwithstanding this, the COVID-19 laws have clear ramifications for the operation of all courts throughout Australia and for open justice. While the rule against gatherings of more than two people does not apply to a gathering necessary to fulfil a legal obligation (including attending a court or tribunal),[27] this did not – during the initial lockdown period – permit the general public to attend and observe court hearings. However, journalists are deemed essential workers and, therefore, were permitted to attend court to continue to report.

By the end of March 2020, most Australian courts had published a response to the pandemic focusing on practical matters and the adaptation of court practices in light of the extraordinary circumstances presented by COVID-19. A number of notices focused on the implementation of social distancing measures[28] and enhanced e-filing capabilities.[29] In mid-March, most began a fast transition away from open courtrooms. Reflecting a nationwide move, the Supreme Court of Victoria announced that, in both the criminal and civil courts, they were rapidly moving to a position where appearances will be managed through the electronic and digital environment”.[30] Across the States and Territories, new jury trials were suspended (currently set to resume in late June),[31] lists were vacated,[32] and hearings and trials were moved to remote telephone and/or video-link.[33] On 18 March, the Supreme Court of Western Australia announced that, “[u]nless otherwise ordered, all appearances in person at appeal hearings are suspended.  Both criminal appeal and civil appeal hearings will be conducted by telephone”.[34] Similarly, on 20 March, the Supreme Court of Victoria announced that the Court of Appeal would not be conduct any in-person hearings and that both civil and criminal appeals would all be conducted by video-link.[35] The NSW Supreme Court and the Federal Court said that from 24 March, there would be no more personal appearances unless “exceptional circumstances” applied.

Clearly mindful that such significant operative changes would affect open justice, the NSW Supreme Court said:

“The Court will be reviewing all operations with a view to maintaining open justice, consistent with the current constraints and health advice”. 

Similarly, the Supreme Court of Victoria stated that:

“Principles of open justice have been an important part of the Court’s planning of its response to the coronavirus (COVID-19) pandemic. The means of achieving this will be considered on a case by case basis.”[36]

Likewise, the Federal Court said it was:  

“…considering streaming and other methods of ensuring the requisite degree of public access to hearings conformable with the open justice and open court principles”.

Most matters, including urgent Duty Judge matters and weekly lists, are now being case managed by way of virtual hearings. Other courts, such as the exceptionally busy commercial and technology list in the NSW Supreme Court, have stated that they will determine “any matters in dispute on the papers, unless a hearing is necessary and appropriate”.[37] Determinations of this kind, while consistent with the overriding purpose of the Civil Procedure Act 2005 (NSW), must nevertheless safeguard open justice despite the fact they are not published in open court. We return to this below. 

Superior courts have tried to make virtual hearings possible. For example, the NSW Supreme Court has attempted to stream a notorious criminal trial on YouTube (discussed further below) whilst the Federal Court admirably publishes a list of daily online hearings conducted through its preferred remote access technology, Microsoft Teams[38], as well as a National Practitioners and Litigants Guide to Online Hearings and Microsoft Teams. That Guide is directed amongst others to “any member of the public” and provides clear instructions how they may observe Online Hearings.[39] The NSW District Court too has published a similar publication entitled “Media Access to Virtual Courts”.[40] However, the access details for the virtual courtroom are only to be used by accredited media. Should anyone else “access” the system for “inappropriate purposes” or in a way that “interferes with the administration of justice”, those persons may be punished for contempt of court. 

It is not at all unusual for this kind of technology to be used between courts in Australia. Ordinarily, however, it would be utilised by each party physically attending a court building. For example, as the national court of Australia, each Federal Court building in Australia is equipped with sophisticated technology that enables the hearing to proceed remotely. One party might appear by video link from Sydney, another in Melbourne and the Docket Judge may be in Adelaide. Similar technology exists in the superior courts in each State and Territory. It is arguably less prevalent in lower courts.

In Millar v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 664, Perram J stated (at [5]) that the Federal Court has put in place the best possible practical arrangements to safeguard open justice at this point in the pandemic. Similar remarks may be made of other superior courts in Australia. At least interested members of the public are permitted to observe online hearings.

Nevertheless, the pandemic has exposed the inadequacy of the technology available to conduct any hearing without physically attending a court building. For example, in a criminal trial of some notoriety, R v Macdonald; R v Edward Obeid; R v Moses Obeid (McDonald & Obeid Trial), Fullerton J observed that, at least at 6 April 2020, the technology available rendered the trial “impractical” for a number of reasons including technical glitches and the integrity of transcription being compromised. Consequently, despite originally intending to stream the case live on YouTube, the trial had to be adjourned part heard to August 2020. Three days later the Chief Justice of NSW communicated to the NSW Bar Association that judges and associates in the NSW Supreme Court were being brought up to speed on how to use the alternative technology, including Microsoft Teams. His Honour also stated that other technology may be used, albeit at the parties’ expense.

Anecdotally, it appears that whatever technology is preferred, both practitioners and journalists have continued to complain of technological glitches, users’ screen being ‘frozen’ and poor reception.[41] Likewise, the use of online hearing technology has - in some instances – contributed to courts sitting long into the evening to dispose of a matter as quickly and efficiently as possible.[42] Indeed, some cases wholly unsuited to a virtual courtroom have, for similar reasons to those expressed by Fullerton J, been adjourned.[43] 

However, this is not true of all civil cases. Perram J recently remarked that although conducting a virtual trial is unsatisfactory, “these are not ordinary circumstances …[and] we must do our best to make this trial work. If it becomes unworkable then it can be adjourned, but we must at least try”.[44] 

So, where possible, the show must go on. As Perram J again observed, this approach is consistent with the overarching purpose of the Federal Court Act, that is, to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible.[45] As foreshadowed above, similar considerations plainly apply to State civil courts.[46]

Despite the majority of cases proceeding by way of virtual hearing, no uniform approach has yet been adopted to safeguard open justice. On 8 May 2020, the NSW Chief Justice endorsed a Protocol for Remote Hearings (Protocol) proposed by the NSW Bar Association. In so far as it concerns open justice, the Protocol relevantly states (at [17]) that, where appropriate, steps may be taken to permit members of the public and the media to attend remote hearings. It further noted that if this cannot occur, “it may constitute a powerful consideration weighing against the remote hearing proceeding”. With respect, so much should be commended. The Protocol then goes onto consider (at [18]) that:

“However, there may be circumstances where the interests of justice favour limiting remote non-party attendance if there are capability or capacity issues in relation to the technology - particularly in criminal matters where the accused is in custody. This may mean that no, or limited, access is available for those not directly concerned in the litigation, for example, one member of the media nominated to act as the 'in court' hub for others and similarly for family members or support persons.”

This is problematic for a number of reasons and should be treated with caution. Nominating a member of the media to act as an ‘in court hub’ for others may be easier said than done. Differences between journalistic mediums (television, radio and digital for example) are not insignificant in this context. Likewise, journalistic style, availability of court reporters and resourcing, amongst other commercial decisions, are all factors (albeit perhaps not insurmountable) that may militate against such a consideration. However, more fundamentally, as Lord Hoffmann carefully (if not somewhat satirically) observed, the law reports are filled with impressive and emphatic statements about freedom of speech and the press, but they are often followed by a troubling paragraph that begins with “nevertheless” (or, here, “[h]owever”). But open justice and freedom of speech are freedoms which are restricted only by clearly defined exceptions laid down in common law or statute: not what judges (or anyone else) think is responsible or sensible.[47] 

As the practice of Australian courts during the pandemic has plainly shown, technology can be used to protect open justice where physical attendance is justifiably restricted.

Journalists’ experience: any cause for concern?

What impact are these restrictions and new measures, such as remote access to hearings, having on open justice and journalist access to court hearings? Is the public interest in open justice being adequately upheld? In what ways might open justice benefit from, or be facilitated by, this new environment?

To answer these questions, we made a number of enquiries with media entities and journalists at the coal face.

On the whole, court reporters expressed admiration for the way Australian courts have confronted such unprecedented circumstances. Experienced court reporter, Michaela Whitbourn (Sydney Morning Herald), emphatically praised both the Federal and NSW Supreme Courts:

“… the [Federal] court was really helpful. Have also watched Supreme Court hearings on YouTube. The courts are working hard to keep justice open. Glitches sometimes but I applaud them”

Respectfully, we share that view. Indeed, it has highlighted the benefits of remote hearings, including live streaming, for journalists. Many we spoke with asked why this couldn’t have been done before. It is, after all, a regular occurrence in the UK Supreme Court and, very recently the US Supreme Court has commenced streaming oral argument. Australian courts have generally avoided this. While superior courts have gradually allowed the media to broadcast judgments in cases with an obvious public interest element,[48] it does not happen regularly. It is almost unheard of in the lower courts. Allowing access to hearings in this way is especially beneficial to the media – especially during the pandemic – for the reasons explained by Adam Cooper (The Age):

“I think the higher courts have been good at appreciating we're working [remotely] so are making livestreams available. But the Magistrates Court has never embraced this concept, so to cover anything there we have to attend court in person. So far we've been lucky that AAP reporters are still covering court cases in person.”

Many journalists we spoke to emphasised that remote access facilitated and supported open justice by making it easier, economical and more efficient for journalists to follow hearings in different locations from their desk. As Liam Walsh (Australian Financial Review) observed of the Federal Court in Brisbane: “judges are letting us listen in to cases which means I can now listen to a case in Sydney or Melbourne)”. This was a view that Sydney based Stephen Murray (Gazette of Law and Journalism) shared of remote access “[I] certainly didn't feel at a disadvantage from a reporting point of view; actually assisted by having access to my desktop (and two monitors) to view and type.”

As media organisations’ budgets are squeezed, and with the closure of the Australian Associated Press (AAP), many emphasised that remote access could become essential in ensuring the media can discharge its fundamental watchdog role on the administration of justice. As Karen Percy (ABC) said,

“There is increased pressure on journalists, with the AAP going down and more cuts coming to the ABC, which is going to make it harder to keep up our scrutiny of the court system. Ideally, you do things in real time in court, but easier online access to documents and court files – like in the County Court [Vic] – and the ability to watch web-streams, will become more important to ensuring the media can properly cover the courts”.

She also emphasised the importance of this for journalists in rural and regional areas, where journalists have to cover a wide range of subjects and often do not have the time to be able to attend court.

Many of the journalists we spoke to were also quick to specifically praise the proactive Federal Court communications team. For example, Hannah Wootton (Australian Financial Review), amongst others, told us:

“I also cannot commend Bruce from the NSW Fed Court comms team enough for how helpful he has been while the system has been down. He sends through interesting judgments etc or updates you on cases as he knows we can't do that for ourselves in a time effective way at the moment”. 

Amber Wood (Senior Legal Counsel, SBS) provided similar praise for courts in Brisbane noting, in particular, the “helpful nature of court staff” . 

Nevertheless, there were a number of areas that caused journalists some concern.

Overwhelmingly, journalists emphasised that the pandemic has revealed the current technology used to support remote hearings is grossly inadequate, with technical glitches such as frozen screens as well as video and audio drop-out. Lucy Hughes Jones (News) told us that she experienced difficulties daily and, “[i]n every case I have covered so far where the parties appear via AVL, at least one (if not multiple) parties drop off the connection at some point during the proceeding.” Similarly, Kelly Fedor (Nine Broadcasting) said “I’ve only attended court in person and every single case has been plagued with tech issues, mainly problems with people connecting to and dropping off the AVL.” Karen Percy (ABC), the ABC’s court reporter in Victoria, also told us, “it’s great when it works, but problematic when it doesn’t”.

The primary complaint being that this has often made it difficult to provide a fair and accurate report of proceedings and comply with onerous deadlines. It was issues of this kind that concerned her Honour Fullerton J in the McDonald & Obeid Trial (discussed above). Walkley award winning journalist Kate McClymont (Sydney Morning Herald), covered that trial and, consistent with the observations of Fullerton J, didn’t pull any punches:

“The Obeid/Macdonald "virtual trial" was a disaster. First of all, the media was given details to log into YouTube to follow proceedings. That worked well but the process itself was a disaster as it involved three accused, and all their legal teams, The Crown and the DPP solicitors, all on different computers in different locations. Internet connections kept dropping out, the sound wouldn't work...none of the changes has been favourable on reporting court cases” 

Another area of concern for journalists included the practical difficulties arising from not being physically present in court.  As foreshadowed above, ordinarily, court reporters may readily access relevant documents when at court by making the appropriate requests of the parties or the court. Likewise, it is not unusual for journalists to seek contemporaneous clarification about issues in the hearing from lawyers present at the hearing. Since those accessing a remote hearing are expected to have provided an undertaking to remain silent and have their camera turned off, journalists have had to issue requests for documents and seek clarification electronically. This has understandably resulted in a delay in obtaining responses thereby applying further pressure on already time poor reporters. For example, in the criminal context, Craig Dunlop (News) explained that in the ACT:

“Access to files is more difficult. In this jurisdiction the expectation of the court is that, in criminal matters, the prosecution provides media with exhibits. Since prosecutors are appearing remotely, it is not possible to approach them. This causes a practical issue and has resulted in an inability to meet deadlines, but has not prevented reporting. The DPP has been accommodating in providing exhibits by email, which is relatively easy, since evidence is being tendered by email.”

These kinds of issues might be ameliorated by making available on each court website, or at least to the media, the written submissions and documents tendered in open court, together with transcripts and any audio of hearings. Some courts, such as the County Court in Victoria, already make audio of some hearings available but this is not a uniform practice.

The pre-existing concern about the lack of consistency between courts, even in the same state, on what is available to journalists has been compounded and highlighted during the pandemic. For example, in Victoria there is a lot of material available online and electronically in the County Court, including audio of hearings which journalists can access afterwards to fact check and prepare their reports. But, as Karen Percy (ABC) explained, “this is usually a back-up, second option to attending in person – whereas, now it is how people are reporting”. But in other courts in Victoria, such as in the Magistrates Courts (where journalists have to apply for documents by paper application in person), there are obvious access issues when journalists cannot be physically present.

Similarly, journalists have expressed concern about their ability to intervene in hearings to resist reporting restrictions when appearing remotely. Karen Percy from the ABC told us,

“Suppression orders are a real problem in Victoria. In most courts, you can indicate that you want to fight a suppression order. But where it is being done administratively or over the phone, it is harder for journalists to know it is happening and to challenge it when it is happening on the phone rather than in person.”

This could be addressed by courts providing guidance for journalists on how to intervene when attending remotely. Further, to the extent that it has not been done already, clear and uniform guidance could be given to the judiciary about this. There may be some merit in publishing a practice note.

Journalists have also complained about applications hearings, including bail applications, being determined on papers (consistent with the new practice notes in the NSW District Court and in the commercial and technology list of the NSW Supreme Court) without judgments from those hearings being made available. This is problematic from an open justice perspective. Paper determinations are an efficient way for the court to navigate the issues raised by the pandemic, but they should still conform to open justice principles, as recently explained in two cases of note in the UK .[49] At the very least those judgments should be made available online (such the NSW Caselaw website and/or Austlii), preferably with access to any written submissions, as was emphasised by Nicklin J in the recent decision in the UK, Hanson v Associated Newspapers Ltd [2020] EWHC 1048. 

We were also informed of a small number of incidents in NSW and ACT where journalists were initially denied access to open court hearings. In one instance, the transcript revealed that the Court did not consider journalists to be ‘essential workers’ for the purposes of the new COVID-19 laws. This is, of course, wrong and journalists can and should challenge their exclusion from the courtroom on open justice grounds. However, these reported instances appear to have been caused by genuine mistake and uncertainty about the new COVID-19 rules and evolving government advice.

Conclusion

In many ways, the experience in Australia mirrors that in the United Kingdom. Australia, like the UK, has until recently been slow to embrace technology in courtrooms – whether that be electronic filing systems which are available to the public, remote access to hearings by telephone or by online streaming of hearings (as seen in the UK and US Supreme Courts). As a result of COVID-19, the courts and the profession have been forced to adopt some of these practices in order to keep the justice system going, which have been – for the most part – welcomed by journalists.

Technology has offered the ability to ensure remote access to justice. Practitioners and the public cannot be physically present in court, but the experience so far suggests that it should be continued once COVID-19 restrictions are lifted to better facilitate journalist and public access to court proceedings. The teething problems associated with the technology can, and should, be worked out and improved over time, and for access to all levels of court in Australia. In a positive sign, the recent announcement from Chief Justice Bathurst on resuming in-person hearings in the NSW Supreme Court suggests that this use of technology will continue:

“For the first time in living memory, personal appearances were essentially banned in our courtrooms two months ago to help minimise the spread of the virus…The move to virtual courtrooms, seemingly overnight, created unprecedented disruption to our usual processes… The shift to a remote system of justice was not without its technical challenges, yet I am confident we are getting better each day, and I see an innovative and flexible future ahead.”[50]

Similarly, many of the suggestions made here to ensure open justice during remote hearings in the COVID-19 crisis – such as making available online all court documents, documents tendered in open court, transcripts and written submissions – could, respectfully, be implemented and continued post-pandemic to better safeguard the public interest in open justice. 


[1] Rinehart v Welker (2011] NSWCA 403 (Welker), [32]; John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344 (District Court), [18]).

[2] The Honourable J.J. Spigelman AC, “The Principle of Open Justice: a comparative perspective” (Speech delivered at the Media Law Resource Centre Conference, London, 20 September 2005).

[3] R v Sussex Justices; Ex parte McCarthy [1924] KB 256, 259 (Lord Hewart CJ). 

[4] Russell v Russell (1976) 134 CLR 495, 520 (Russell).

[5] Hogan v Hinch (2011) 243 CLR 506, [20]; Russell, 520;  Police Tribunal of New South Wales v John Fairfax & Sons, 476-77; Welker, [32].

[6] Section 37AE, Federal Court Act 1976 (Cth)

[7] Section 6, Court Suppression and Non-Publication Orders Act 2010 (NSW) (CSPOA); Section 4, Open Courts Act 2013 (Vic) (OCA)

[8] Second Reading Speech, Access to Justice (Federal Jurisdiction) Amendment Bill 2011, Parliamentary Debates, Hansard, 22 November 2012; See also the Explanatory Memorandum (p. 2) to the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) (No.186 of 2012).

[9] John Fairfax v District Court of NSW (2004) 61 NSWLR 344 at [18] to [20] per Spigelman CJ (District Court); John Fairfax & Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465 (Police Tribunal), 476G to 477B.

[10] R v Elomar & Ors [No 3] [2008] NSWSC 1443; Seven Network Limited v News Limited (2005) FCA 193.

[11] Police Tribunal, 476G-477B.

[12] See for example, NSW Supreme Court Practice Note SC Gen-2, Access to Court Files; Federal Court of Australia Practice Note: Access to Documents and Transcripts Practice Note (GPN-ACCS)   

[13] Crimes Act 1900 (NSW), s 578A; Children (Criminal Procedure) Act 1987 (NSW), s 15A.

[14] Section 121, Family Law Act 1975 (Cth).

[15] National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).

[16] Section 8(1)(e) CSPOA; See also s.18 and 30 OCA (albeit confined to the Coroner’s Court). This kind of basis is not replicated at Federal Law.

[17] Clark v National Australia Bank (No 2) [2020] FCA 652, [13]-[14].

[18] Cited in footnote 1 above.

[19] Welker, [26].

[20] Re: S [2005] 1 AC 593, [17].

[21] See for example, John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131, 141(G).

[22] AB v CD; EF v CD [2019] HCA 6, [14]; Hogan v Hinch [2011] HCA 4; 85 ALJR 398, [31]; AB (a Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; see also Welker, [27]-[28] and [31].

[23] The Hon Justice Michael Kirby AC CMG “Privacy in the Courts” (2001) 24(1) University of New South Wales Law Journal 247, [24]; cf The Hon Justice McColl JA AO “An Australian Perspective on Privacy Law Developments”, Media Law Resource Centre Conference, 30 September 2009, [86]

[24] https://www.ohchr.org/Documents/Events/EmergencyMeasures_COVID19.pdf

[25] See, for example, the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) made under s. 7 of the Public Health Act 2010 (NSW) and the COVID-19 Legislation Amendment (Emergency Measures) Act No 1 2020 (NSW) and the Home Confinement, Movement and Gathering Direction made under the Public Health Act 2005 (Qld), following the declaration of a public health emergency under s. 319(2) of that Act. 

[26] Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486, [5]; JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38, [8]; Special Measures Information Note (SMIN-1) issued by the Federal Court, dated 31 March 2020.

[27] See, for example, s. 6(2)(i) of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW).

[28] See, e.g. Victorian Supreme Court, ‘Supreme Court changes in response to COVID-19’ (20 March 2020) https://www.supremecourt.vic.gov.au/news/supreme-court-changes-in-response-to-covid-19 (stating that ‘[w]here in-person appearances are necessary, listing times may be staggered to allow for social distancing’); Supreme Court of Western Australia, ‘Updated Public Notice — COVID-19 (18 March 2020) https://www.supremecourt.wa.gov.au/_files/Speeches/2019/COVID-19UpdatedNotice(including%20Court%20of%20Appeal)18March2020.pdf (stating that civil and criminal trials ‘will only occur in courtrooms that can ensure appropriate social distancing’) and ‘Public Notice COVID-19: Gatherings in Courtrooms and Tribunals’ (31 March 2020) https://www.supremecourt.wa.gov.au/_files/Speeches/2019/COVID-19NoticeUpdate4gatherings31March2020.pdf (confirming that gathering at a court was not a prohibited gathering and stating that ‘in accordance with the directions made in each individual court and tribunal, the gathering of persons at each court and tribunal is being kept to the minimum necessary to allow those essential services to be provided’).  

[29] See, e.g. Supreme Court of the Northern Territory, ‘Courts and Tribunals COVID-19 response’, https://supremecourt.nt.gov.au/about/whats-new/2020/courts-and-tribunals-covid-19-response (noting that ‘measures for electronic filing, and appearances via telephone and AVL being fast-tracked); Northern Territory Local Courts, Practice Direction 0 COVID-19 (Electronic Filing) (30 March 2020) https://localcourt.nt.gov.au/sites/default/files/covid_19_practice_direction.pdf.

[30] Statement from the Chief Justice of Victoria: E-Court Pilots (20 March 2020) https://www.supremecourt.vic.gov.au/news/statement-from-the-chief-justice-of-victoria-COVID-19-update-2

[31] See, e.g. Victoria Supreme Court (15 March 2020) https://www.supremecourt.vic.gov.au/news/new-jury-trials-suspended-from-monday-16-march; Supreme Court of Western Australia (16 March 2020)  https://www.supremecourt.wa.gov.au/_files/Speeches/2019/CriminalTrialsPublicNotice16March2020.pdf; We note the NSW Attorney General announced on 11 May 2020 that District Court jury trials are to resume from 15 June 2020 (https://inbrief.nswbar.asn.au/posts/08b347d11316f1372f3414b4c411fcae/attachment/11.5.20%20AG%20MR%20re%20DC%20jury%20trials.pdf) and in the NSW Supreme Court from 29 June 2020:

(https://inbrief.nswbar.asn.au/posts/08b347d11316f1372f3414b4c414743b/attachment/M20.5.20%20media%20release_NSW%20Supreme%20Court%20moves%20towards%20resuming%20face-to-face%20hearings_200520.pdf)

[32] See, e.g. Supreme Court of Western Australia (18 March 2020) https://www.supremecourt.wa.gov.au/_files/Speeches/2019/COVID-19UpdatedNotice(including%20Court%20of%20Appeal)18March2020.pdf; Australian Capital Territory Magistrates Court (19 March 2020) https://www.courts.act.gov.au/__data/assets/pdf_file/0020/1503443/200319-PRACTICE-DIRECTION-COVID-19-Measures-No-2-Final.pdf and (23 March 2020) https://www.courts.act.gov.au/__data/assets/pdf_file/0005/1505345/200323-PRACTICE-DIRECTION-COVID-19-Measures-No-3.pdf.

[33] See, e.g. Supreme Court of Western Australia, ‘Public Notice COVID-19 (16 March 2020)’ https://www.supremecourt.wa.gov.au/_files/Speeches/2019/COVID-19NoticeUpdate16March2020.pdf (stating that ‘[w]herever possible, all directions hearings, case management conferences and strategic conferences will be conducted by telephone’); ACT Magistrates Court, Interim Practice Direction: COVID-19 Measures (No. 1) (18 March 2020) https://www.courts.act.gov.au/__data/assets/pdf_file/0007/1502278/COVID-19-Measures-No-1-200318-PRACTICE-DIRECTION.pdf (stating that’ ‘Parties and their representatives are to be appear, where possible, by AVL or telephone in the following lists’, which included the A1 General List, B Children’s Court general list, F1 Family violence list, and A2 Bail list).

[34] Updated Public Notice — COVID-19 (18 March 2020) https://www.supremecourt.wa.gov.au/_files/Speeches/2019/COVID-19UpdatedNotice(including%20Court%20of%20Appeal)18March2020.pdf

[35] ‘Supreme Court changes in response to COVID-19’ (20 March 2020)’ https://www.supremecourt.vic.gov.au/news/supreme-court-changes-in-response-to-covid-19

[36] ‘Supreme Court changes in response to COVID-19’ (20 March 2020) https://www.supremecourt.vic.gov.au/news/supreme-court-changes-in-response-to-covid-19

[37] “Changes to procedures relating to the Commercial List, Technology & Construction List and Commercial Arbitration List”, 25 March 2020: http://www.supremecourt.justice.nsw.gov.au/Pages/Oar_Mace_Admiralty.aspx

[38] Defined as hearings conducted through Microsoft Teams.

[39] National Practitioners and Litigants Guide to Online Hearings and Microsoft Teams, [5.1]-[5.5]. 

[40] Available at: http://www.districtcourt.justice.nsw.gov.au/Documents/For%20Media%20-%20Virtual%20Court%20Fact%20Sheet.%20(3).pdf

[41] See, for example, https://www.abc.net.au/news/2020-05-20/coronavirus-pandemic-for-victorian-courts-judges-justice-system/12258858

[42] For example, the Queensland Court of Appeal recently used remote online technology to hear oral argument in the long running defamation case between Nine Network Australia and the Wagner family. The Court reportedly sat until early evening. For the first instance judgment see, Wagner v Nine Network Australia & Ors [2019] QSC 284. 

[43] See for example, Roberts-Smith v Fairfax Media Publications Pty Ltd (No.4) [2020] FCA 614.

[44] Capic v Ford Motor Co of Australia Ltd (Adjournment) [2020] FCA 486

[45] Section 37M, Federal Court Act 1976 (Cth) .

[46] Sections 56-59 Civil Procedure Act 2005 (NSW) and in corresponding provisions for each State and Territory.

[47] R v Central Independent Television plc [1994] Fam 192, 202–3.

[48] The NSW Supreme Court, for example, allowed the media to live stream the sentencing judgments in well known cases such as R v Curtis (insider trading), R v Wran (a murder trial that concerned the daughter of the former NSW Premier, Neville Wran). In late 2019, the court also streamed the Queensland flood class action on YouTube. As foreshadowed above, it was also prepared to stream the R v Macdonald; R v Edward Obeid; R v Moses Obeid trial by YouTube.

[49] Hewson v Times Newspapers Ltd [2019] EWHC 650, [25]; and for more comprehensive discussion, see “Open Justice and Paper Determinations”, Claire Overman available at https://insights.doughtystreet.co.uk/post/102g6im/open-justice-and-paper-determinations

[50] NSW Supreme Court Moves Towards Resuming Face-to-Face Hearings”, 20 May 2020, https://inbrief.nswbar.asn.au/posts/08b347d11316f1372f3414b4c414743b/attachment/M20.5.20%20media%20release_NSW%20Supreme%20Court%20moves%20towards%20resuming%20face-to-face%20hearings_200520.pdf