As a matter of general Australian law, the courts are open and transparent.In addition to providing the press with an endless supply of salacious material to report, this openness is a fundamental tenet of democracy, so that everyone is demonstrably equal before the law.
However there is a significant body of case law about the principles which should be applied before the closing of a court to the public and the media and a ban on the reporting of evidence. These principles, and a frequent run down to the courts to oppose the issue of a suppression orders were my bread and butter legal work when I was a media lawyer between 2000 and 2013.
The issue is also one relevant to the Fair Work Commission and the public nature of its work and its hearings. I came across this case yesterday.
“The principles of open justice were most recently considered in the Commission in Bowker and Ors v DP World Melbourne Ltd & Ors 3. They have also been considered in Amie Mac v Bank of Queensland & Ors4 and Justin Corfield.5 Although the two latter decisions dealt primarily with the de-identification of parties to a matter, the principle of open justice is discussed more generally.
In Bowker Deputy President Gostencnik considered an application to restrict publication of certain documents which had been filed in the matter before him. The Deputy President said:
Section 594 (1) of the Act vests a discretion in the Commission to make an order prohibiting or restricting the publication of certain things in relation to matters before the Commission if satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason.
Considerations of open justice and the administration of justice are clearly relevant to the exercise of discretion to make an order under section 594 (1) of the Act. However, these considerations are not to be applied in a vacuum and need to be considered in the context of the express power to prohibit or restrict publication of certain material having regard to its confidential nature or for any other reason and the circumstances of a particular case.
The Deputy President made the order sought and in doing so observed that it would not undermine the principles of open justice as it did not seek to:
shield DP World from disclosure of the allegations made against it by the applicants or from any embarrassment, discomfort or inconvenience that might arise from the public scrutiny of the allegations made. Nor does the order seek to limit disclosure or scrutiny of DP World’s workplace behaviour policy. 6
The Deputy President also stated that ‘the question whether to make an order involves balancing the considerations of open justice and the interests of fairness and justice, taking into account how the order would affect each side.’ 7
And see Sidney v Employsure Pty Ltd (2016) FWC 2009 delivered 1 April 2016 per Bissett C