New federal court rules barring media from accessing documents until the first directions hearing have been labelled “utterly disgraceful” and a breach of the concept of “open” justice.
Enacted in mid-December by federal court judges without consulting the media and published on the gazette Thursday, the rules appear designed to protect respondents against reporting of allegations at the earliest stages of a case.
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.
By blocking access to documents including the originating application and statement of claim, journalists will be unable to report on how and why the plaintiff alleges the law was breached unless supplied the information by the parties or until the first directions or other hearing.
The court routinely publishes the names of litigants in active cases, raising the prospect of well-known Australians engaging in court battles the substance of which remains unknown for days, weeks or months.
In some cases, directions hearings are delayed until litigation settles, raising the prospect of litigants accessing the federal court system then abandoning the case without media ever being able to report on their claims.
Karen Percy, the president of the media section of the Media Entertainment Arts Alliance, said the decision was “utterly disgraceful”.
Percy told Guardian Australia the decision was “infuriating” and “goes against the concept of open court and the ability to shine light on important issues”.
“We’re seeing a constant erosion of press freedoms, whether it is pre-emptive suppressions or this kind of lack of consultation with journalists and not really thinking through the impact of it [on open justice].
“Justice needs to be seen to be done, when you don’t allow that to happen, it’s hugely problematic.”
Percy said attempting to prevent prejudicial material entering the public domain was a “slippery slope” and that balance is achieved in reporting after both sides present their case, or a defence to allegations.
“I take issue with the lack of contemporaneity – it’s not good enough to find out later.”
Kieran Pender, an honorary lecturer at the ANU college of law, called the change “extremely disappointing” and “out of step with open justice”.
The rules also conflict with the practice of other courts, including the high court, which allows non-parties to pay to view documents including notices of appeal.
The court’s spokesperson said the rules were developed by its rules committee after a request to consider an amendment “to address issues that arise when parties file an originating application and statement of claim with potentially sensitive or confidential content”.
“The amendment ensures that a respondent has seen the document and can make a decision about whether to seek that the documents be suppressed or subject to a non-publication order prior to access by a non-party,” the spokesperson said.
The rules passed unanimously at a national meeting of federal court judges on 16 December, they said.
