Tag Archives: Jason Bosland

Speaking with magistrates about Open Justice #MLGriff

By MARK PEARSON

New magistrates from throughout Australia met in Brisbane last month for the National Magistrates Orientation Program and I was honoured to join a panel addressing them on open justice.

While magistrates have both legal qualifications and considerable experience, sadly open justice does not figure prominently in the curricular of most law schools so it is heartening to see the organisers of this program giving time to this important legal principle.

My fellow panellists for the session were former Queensland chief magistrate, District Court Judge Brendan Butler (who recounted his experiences with the media in prominent trials and inquests) and the Queensland Supreme and District Courts’ first Principal Information Officer Anne Stanford (@Anne_Stanford) (who explained her role and the interaction between the courts and the media in Queensland and in Victoria where she held a similar position).

I traced the origins and importance of the open justice principle in our legal system, citing English Master of the Rolls Lord Neuberger who described it as “a common law principle which stretches back into the common law’s earliest period” – to “time immemorial” – “…older than 6 July 1189, the date of King Richard the First’s accession to the throne” [Neuberger, Lord of Abbotbury (Master of Rolls) 2011, ‘Open justice unbound?’, Judicial Studies Board Annual Lecture, 16 March, < http://netk.net.au/judges/neuberger2.pdf>., p. 2].

Particularly important was the notion that the media should be free to report upon cases and publish the names of parties involved, with minimal exceptions, as recently stated in the UK by Baroness Brenda Hale, new President of the UK Supreme Court:

“The principle of open justice is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to law. In fact, there are two aspects to this principle. The first 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 is going on. … The second is that the names of the people whose cases are being decided, and others involved in the hearing, should be public knowledge. [… limited exceptions].” R (on the application of C) v Secretary of State for Justice [2016] UKSC 2, 1 (per Lady Hale).

I suggested that with diminished resources and finances available to mainstream media in both metropolitan and regional areas, magistrates might be the only people left to speak to the principle of open justice when lawyers and litigants want the court to be closed or names suppressed. Media organisations that might have formerly paid for lawyers to push for the courts to remain open might not be able to afford them, and court reporters might not be available to even report on the particular case being heard.

I attach here my Powerpoint presentation from the session for colleagues and students who might be interested.

MagistratesOrientationBrisbane8-9-17

 

 

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2017

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Is an Open Justice Advocate the solution to overly restrictive suppression orders? #MLGriff

By MARK PEARSON

Jason Bosland [@JasonBosland] – Deputy Director of the Centre for Media and Communications Law at Melbourne Law School – has called for the introduction of a state-funded Open Justice Advocate as a measure to alleviate the continuing practice of judges issuing overly restrictive suppression orders.

Bosland’s explanatory article in Pursuit and his research article the Sydney Law Review come just as we are about to examine open justice and court restrictions in our Griffith University Media Law course, so they are essential reading for students.

He is the acknowledged leader in the field of suppression order scholarship in Australia and his work tracked firstly the need for the Open Courts Act 2013 in Victoria and, more recently, its failings to impact effectively on court practices.

Bosland writes in the Pursuit article:

This leads to a critical question: who is going to protect the fundamental principle of open justice if the courts themselves are not as vigilant as they should be and if the media are increasingly unable or unwilling to intervene? It is my view that the only solution is for the introduction of a state funded open justice advocate.

His longer Sydney Law Review is an expert combination of insightful policy analysis, meticulous scrutiny of the legislation, and illuminating statistics drawn from his funded research projects on the topic. I commend them to all media law geeks and students.

His concludes that article with this wise counsel:

This state of affairs is clearly unsatisfactory. The solution, however, is not to be found in further legislative reform of the courts’ powers. Rather, attention should be directed towards further professional and judicial education, and the development of a range of suitable model orders. Furthermore, a scheme facilitating the appearance of contradictors in suppression order applications — such as the Open Courts Act Duty Barrister Scheme introduced at the instigation of the Chief Justice — is likely to improve current practices. However, it will only be truly effective in solving the problems identified in the present study if it can be extended to all courts.

Insightful indeed.

[See also – my article in The Conversation on how the 2015 edition of our textbook inadvertently breached a Victorian suppression order and had to be reprinted.]

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2017

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Filed under blogging, citizen journalism, contempt of court, free expression, journalism, media ethics, media law, Media regulation, social media, sub judice