Principles of open justice demand our right to know

On Tuesday, the perpetrator of a serious crime faced the Children’s Court. Guilt was not the issue; the teenager was sentenced two years ago. The hearing was about whether the Herald would be allowed to write about it.

Your right to know.Credit: Alex Ellinghausen

We were not asking to name the teenager. That’s prohibited by law – a juvenile has a legal right to have their identity kept secret and their record wiped clean as they move into adulthood – and we take our obligations seriously.

We just wanted to tell our readers what happened; what they did, the impact on those they hurt, and how they were punished. We know; we think it’s in the public interest for you to know, too.

Journalists spend much of their time fighting for information and navigating legal hurdles to publish it. It’s a frustrating part of the job that readers don’t see, particularly when we have to fight for information to which we should rightfully be allowed access.

Legal limitations often stop us from publishing stories, or curtail what we can say.

A crime story might prejudice someone’s right to a fair trial; for example, we haven’t been able to publish a photo gallery of the many men who’ve killed their partners this year because they haven’t been convicted and their cases may drag on for years.

A story might be defamatory, although we do run stories that expose us to defamation action because they are important and we can prove they are true, such as the story about Ben Roberts-Smith murdering unarmed prisoners in Afghanistan.

Or it might contravene a court order expressly forbidding us from writing about something. Just last week, a court blocked a story about a government investigation into whether a casino operator involved in a new Brisbane venture, Chow Tai Fook Enterprises, had links to an organised crime. But sometimes, we disagree, and argue back. The Herald is fighting the Chow Tai Fook injunction.

On Tuesday, the Herald’s executive legal counsel Larina Alick attended Children’s Court to oppose a continued ban on publishing even bare facts about the teenager’s crime.

A magistrate granted a two-year non-publication order when the teen was sentenced in 2020 because their identity was known by some in their circle. They had been harassed and threatened and their mental health was fragile.

Another order was granted two years later for the same reasons.

On Tuesday, the teenager applied for a third non-publication order.

Alick argued that the risk of identification and harassment had reduced over four years, given they had changed their name and that those who knew about the crime had moved on.

She also said that the principle of open justice – that court proceedings should be held in public to protect the rule of law and to inspire public confidence in the legal system – should apply even when it involved juveniles.

The magistrate disagreed. He granted the non-publication order, saying the principle of open justice was not relevant in the NSW Children’s Court.

Over the past decade, the Children’s Court has become one of the hardest jurisdictions for journalists to access, despite the strict identification prohibitions that have long been in place to protect those who come before it.

There are issues in other courts, too.

In the Local Court, court staff are now taking it upon themselves to limit access to documents if they contain names that cannot be published, even if news organisations are legally entitled to the documents, are aware of the prohibitions, and give written undertakings to abide by them.

When lawyers for news organisations challenge these decisions, at significant cost, the registrar’s decision is always overturned.

At federal court level, new rules introduced at the beginning of last year mean that documents that were once freely available early in a case now take months to be released, if they are released at all.

We don’t usually write about the stories we’re not allowed to write. For one thing, there’d be far too many. But it’s something our subscribers need to understand.

Slowly, limits on the information journalists are allowed to access are tightening. We have to fight harder, and use more resources, to find out what was once considered our right to know under the principles of open justice.

Bevan Shields sends an exclusive newsletter to subscribers each week. Sign up to receive his Note from the Editor.