Open justice is worth fighting for

Open justice allows ordinary citizens to understand better how and why court decisions are made. The deterrent value of knowing uncomfortable details will be made public should not be underestimated. Federal Court Chief Justice Debra Mortimer no doubt has compassionate grounds on which to support the greater use of suppression orders, but will they always be in the best interests of justice? Not according to Federal Court judge Michael Lee, who presided over the high-profile defamation case involving Bruce Lehrmann, Brittany Higgins and Network Ten. It is difficult to imagine a more public and embarrassing court proceeding for those involved. But Justice Lee repeatedly has instructed media organisations to hold the courts to account and fight “swingeing” suppression orders.

Justice Mortimer argues that open justice is not tantamount to open slather. She says the values that sit behind the phrase open justice do not favour disclosure of everything and anything filed with a court or adduced in evidence. This may well be correct but there must always be a contest around what can properly be withheld from the public. It may be inconvenient for some judges who Justice Mortimer says bemoan the hefty workload that comes from approving or dismissing requests from journalists who apply for court documents to break exclusive stories or provide fair and accurate report of proceedings. But that is part of the job of all concerned.

Justice Mortimer is right to say judges are required to balance the public operation of the court with what is fair to parties and witnesses. But that calculation also must include the public’s right to know. Justice Mortimer argues that the common law and the parliaments have built up a body of law that seeks to strike a balance between being faithful to the general principle of courts doing their work in public and being faithful to what is fair to litigants, witnesses and wider third-party interests in the whole context of a particular case, and what facilitates doing justice between the parties. More contentious is Justice Mortimer’s claim that “over time, these balances might change as public policy and community expectations change”.

Rather than become social activists, courts must be wary of taking fashionable stands. Justice Mortimer’s view that her court “does not make many” suppression orders is open to appeal. Preliminary statistics provided by the Chief Justice showed that in only 5 per cent of all judgments (91 of 1830) published online in the past financial year a suppression order was recorded. “In 84 of the 91 judgments, orders were made solely on the ground that an order was ‘necessary to prevent prejudice to the proper administration of justice’,” Justice Mortimer said.

But as we report on Tuesday, these statistics do not take into account suppression orders made by judges on the spot when there is no contest from either party or an external interested group. It also does not include spoken reasons, when interim orders were made in a judge’s chambers, or when existing orders were varied in chambers.

The community has a reasonable expectation that court processes will be as open as practically possible and that decisions will be explained publicly. This is an enduring community expectation that must be preserved at all costs. The media has a right and duty to argue for transparency. Public embarrassment should never be sufficient grounds for judicial secrecy.