Senior journalists and editors from across the media industry have written to the federal court in “dismay” at its decision to restrict access to crucial documents, saying the shift “contradicts principle of open justice”.
The federal court last month enacted new rules limiting access to documents for non-parties until a case’s first directions hearing, a rule that would considerably delay media access to key information about proceedings.
The changes were made without any consultation and were only publicly revealed last week – a process the court justified by claiming the changes were “administrative or internal in nature”.
Fifty-eight journalists from the ABC, Guardian Australia, Nine, and News Corp wrote to the chief justice, James Allsop, on Monday, urging him to undo the changes.
The letter said the restrictions would have an “extraordinary impact on our ability to do our work in providing the public with timely and accurate reports of the important work of your court”.
“We are journalists who rely on timely access to Federal Court documents to produce accurate and relevant coverage of cases before your court,” the joint letter said.
“We write to express our shock and dismay at your court’s unexpected decision to dramatically reduce public access to court documents, and to urge you to abandon this change, which represents a full-frontal assault on the principle of open justice.”
Last week, a federal court spokesperson said the rules were designed to manage release of “potentially sensitive or confidential content” by allowing the respondent time to seek to have documents suppressed.
But journalists have warned the restrictions fundamentally misunderstand the nature of news – and the importance of timely reporting – and will therefore invite inaccurate reporting of cases before the court.
Without timely access to court documents, journalists will be forced to rely on the parties for information about cases.
“Parties who wish to prosecute their cause in the public domain have an obvious incentive to provide us with information that is partial, inaccurate or incomplete, and because we are now unable to obtain the documents from your court in a timely fashion we will be unable to check what they are saying against the court record before publication,” the letter says. “It may also expose us to increased legal risk because parties may claim that our reports no longer qualify as fair and accurate reports of a court proceeding.”
The Media Entertainment Arts Alliance media section president, Karen Percy, told Guardian Australia last week the changes were “utterly disgraceful”, while Kieran Pender, an honorary lecturer at the ANU college of law, said they were “extremely disappointing” and “out of step with open justice”.
The Law Council of Australia said media reporting of cases was “central to open justice”. But president Luke Murphy said there was a “delicate balancing act” needed to avoid the “potential for sensitive information being disclosed prior to a hearing”.
“The extent to which court documents are made available prior to hearings must balance the benefits of journalists having advanced awareness of the substance of a claim, with the potential for sensitive information being disclosed prior to a hearing,” Murphy said.
“This is a delicate balancing act, and the Law Council is still giving consideration to the amendments.”
In Monday’s letter, the 58 journalists reminded Allsop that he and many of his judges had previously stressed the importance of open justice.
“At its core, the new rule contradicts principle of open justice – a principle previously recognised by you as ‘an overarching principle which guides the Court in its judicial and procedural operations’,” the letter said.
Nine newspapers reported on Tuesday that a separate letter, penned by the editors of the The Australian Financial Review, The Sydney Morning Herald, The Age, Brisbane Times and WAtoday, has also been sent to Allsop in protest of the changes.
