When open justice is closed



Society should regard the principle of open justice as precious because it reassures the public and the parties that courts apply the law. An important aspect of the principle is that justice should be done in open court, so that the people interested in the case, the wider public and the media can know what happens. It offends that aspect of the principle whenever there is not complete transparency in the court proceedings.

Yet the courts have long recognised that complete transparency is not ideal in all instances. For instance, courts have allowed certain classes of people, principally children and mental patients, to not be named in proceedings about their care, treatment and property. Confidential information is protected from disclosure in proceedings brought to preserve the confidentiality. Similarly if publicity would defeat the object of the proceedings, such as matters involving national security. Sometimes anonymity is required to protect life or avoid ill-treatment. Sometimes, although rarely, it is granted to protect the privacy of the individual.

Parliament has also made exception to the principle of open justice though the Courts (Suppression and Non-Publication Orders) Act 2010.

Both the common law developed by the courts (C, R (on the application of) v Secretary of State for Justice [2016] UKSC 2) and the legislation (AA v Satyananda Ashram Pty Ltd [2016] NSWSC 236 and companion decisions BB and CC) were involved in decisions in the last 2 months in which suppression orders were made. So, whilst the principle of open justice is important, it is not essential. It is not so important that it trumps all other considerations. It gives way where it is necessary to attain the court’s primary object of justice before the law to exclude the public from a hearing, or suppress the names of parties, or witnesses, or anonymise evidence and the like.

But what justification is there for proceedings in the Superannuation Complaints Tribunal, conducted pursuant to Superannuation (Resolution of Complaints) Act 1993, to be anonymised? The Act (s63) makes it an offence to disclose any information in connection with a complaint made to the Tribunal. Now why would that be needed or appreciate? And how does this fit with the concept of open justice?

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