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Panpa Bulletin : August 2006
Should the media be stopped from accessing court and government documents if they are in the public interest asks Mark Polden MEDIA LAW MarK Polden This month I am writing about access to court and government documents. Sounds dry, but this is a hot is- sue at the moment in various jurisdictions. The NSW Attorney-General's Department has just released a review of access guidelines, with some disturbing implications. It suggests, amongst other things, that all exhibits other than pa- per-based ones should be clas- sified as restricted access. That would mean, for example, that video-taped records of inter- views, admitted as evidence in a criminal trial and seen by the jury, are unlikely ever to see the light of day. In an even stranger twist, the department has pro- posed that criminal antecedents should not be made available, even on conviction, as to do so might prejudice convicted per- sons of their privacy. So much for the public's right to know. Things get stranger when it comes to FOI. In one cur- rent case, involving The Sydney Morning Herald, the Common- wealth Government maintains that there is no basis upon which it can conclude that releasing documents which the SMH has sought relating to welfare re- form, which it admits would be of public interest, is likely to lead to any of their content being communicated to the public. To return to the NSW propos- als, the Attorney General's De- partment would also like to see orders made for the removal of news stories from web archives where it is possible that they may have a prejudicial effect, for the duration of any criminal tri- al. It goes so far as to suggest that law reports relating to previous court decisions should also be removed by on-line legal pub- lishers. The utter futility of these measures, given the existence of web-crawlers and the caching of online content by search en- gines such as Google, seems not to have been noticed. Some of these issues were thrown into prominence in re- cent litigation in the NSW Su- preme Court and Federal Court, involving a wrongful dismissal case, in which the Packer- owned Nine television network obtained an injunction in NSW over material contained in an affidavit, filed in a wrongful dismissal action. The affidavit made lurid claims about the conduct of senior network exec- utives, including the suggestion that they should "bone" a female newsreader. The utter futility of the strat- egy adopted in attempting to keep the material out of the pub- lic domain was manifest when The Age published the allega- tions interstate. Nine then ap- proached the Federal Court for orders restraining the release of further damaging material, but the Court was having none of it. When Nine barrister Tony Bannon sought to prevent re- lease of what he described as "untested allegations", Justice Steven Rares responded, saying: "That's an interesting submis- sion for a media organisation. They are not normally seeking to suppress information from the public gaze." Rares pointed out to Nine's lawyers that embarrassment was not a sufficient reason to block publication of information. Under the NSW proposals, however, all access to court doc- uments setting out the parties' respective cases, including the statement of claim and defence, would not be available until after the conclusion of proceedings, even when they have been read out in open court. Exactly how this is intended to facilitate the preparation of fair and accurate court reports is anyone's guess. Mark Polden is a media lawyer with John fairfax holdings limited. It goes so far as to suggest that law reports relating to previous court decisions should also be removed by on-line legal publishers. Access all areas? Not any more august 2006 PANPA bULLETIN | 27 Channel Nine launch their summer of sport, including The Ashes cricket series against England, to advertisers and media buyers. PbL CEO Eddie McGuire with morning presenter Jessica Rowe before the launch started, 25 July 2006. SMH Picture by JON REID FAIRFAXPHOTOS