New South Wales

Legal Proceedings (Access to Documents and Reporting) Bill 2003

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Overview of Bill

The object of this Bill is to make provision about access to documents involved in legal proceedings and the reporting of legal proceedings. The Bill:

(a) creates a general public right of access to documents that form part of the court record in relation to a proceeding held in open court, and

(b) provides for a court to grant access to certain other documents in court records, and

(c) provides for a court to impose conditions on access to documents in proceedings or to prevent access to such documents, and

(d) creates a general statutory right to publish a fair and accurate summary of the contents of certain documents in court records, and

(e) provides for a court to make a suppression order (that is, an order that no report be published of the whole or any part of any proceeding, of any document, evidence, submission or material relating to the proceeding or of any finding made by the court in the proceeding) or an interim suppression order, and

(f) provides for appeals against suppression orders or interim suppression orders and sets out the persons who may be heard regarding the making, variation or revocation of suppression orders.

Draft

New South Wales

Legal Proceedings (Access to Documents and Reporting) Bill 2003

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Contents

Part 1 Preliminary

1 Name of Act

2 Commencement

3 Definitions

4 Notes

5 Act to bind Crown

6 Act applies to all criminal and civil proceedings

Part 2 Access to documents in court records and right to publish documents

Division 1 Right to inspect documents in court records

7 General public right of access to documents in court records

8 Parties and others may object to right of access to documents in court records

Division 2 Proceedings regarding access to documents

9 Applications may be made for access to certain documents in court records

Division 3 Restrictions on right of access to documents

10 Court may impose conditions on access to documents

12 Appeals regarding orders relating to access to other documents in court records

Division 4 General

13 General right to publish documents

14 Access to documents is subject to any law restricting access

Part 3 Suppression orders and interim suppression orders

Division 1 Suppression orders

15 Suppression orders

16 Enforcement of suppression orders

17 Applications for suppression orders

18 Variation and revocation of suppression orders

19 Persons who may be heard regarding making, variation or revocation of suppression orders

20 Appeals relating to suppression orders

21 Duration of suppression orders

Division 2 Interim suppression orders

22 Interim suppression orders

23 Enforcement of interim suppression orders

24 Applications for interim suppression orders

25 Persons may seek leave to be heard concerning interim suppression orders

26 Variation and revocation of interim suppression orders

27 Appeals relating to interim suppression orders

28 Duration of interim suppression order

Division 3 General

29 Other provisions may suppress publication

Part 4 Miscellaneous

30 Costs

31 Nature of proceedings for offences

32 Regulations

33 Rules

34 Savings and transitional provisions

35 Amendment of other Acts

Schedules

1 Savings and transitional provisions

1 Savings and transitional regulations

2 Parties may object to general right of access to documents already on court file

3 Saving of certain suppression orders and directions

2 Amendment of other Acts

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New South Wales

Legal Proceedings (Access to Documents and Reporting) Bill 2003

No , 2003

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A Bill for

An Act about access to documents involved in legal proceedings and the reporting of legal proceedings.

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The Legislature of New South Wales enacts:

Part 1 Preliminary

1 Name of Act

This Act is the Legal Proceedings (Access to Documents and Reporting) Act 2003.

2 Commencement

This Act commences on a day or days to be appointed by proclamation.

3 Definitions

(1) In this Act:

civil proceeding means a proceeding other than a criminal proceeding and includes:

(a) a proceeding by way of an appeal in relation to a civil proceeding, and

(b) an inquest or inquiry held under the Coroners Act 1980.

(a) means:

(i) the Supreme Court (including the Court of Appeal), the Court of Criminal Appeal, the Land and Environment Court, the Dust Diseases Tribunal, the Industrial Relations Commission, the Children's Court, the District Court or a Local Court, or

(ii) any other court that, or person who, exercises criminal or civil jurisdiction, and


(b) in relation to an inquest or inquiry held under the Coroners Act 1980--means the coroner, and

(c) in relation to a committal proceeding--means the Justice or Justices hearing the proceeding.

(a) a proceeding for the committal of a person for trial,

(b) a proceeding for the sentencing of a person following conviction,

(c) a proceeding relating to bail (including a proceeding during the trial or sentencing of a person),

(d) a proceeding relating to an order under Part 15A (Apprehended violence) of the Crimes Act 1900,

(e) a proceeding that is preliminary or ancillary to a prosecution for an offence, a proceeding for the committal of a person, a proceeding relating to bail or a proceeding relating to an apprehended violence order,

(f) a proceeding by way of an appeal with respect to the trial or sentencing of a person.

(a) anything on which there is writing, or

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or

(c) anything from which sounds, images or writing can be reproduced with or without the aid of anything else, or

(d) a map, plan, drawing or photograph.

proceeding means a civil proceeding or a criminal proceeding.

suppression order means an order made under section 15.

(2) A reference in this Act to a document includes a reference to:

(a) any part of the document, or

(b) any copy, reproduction or duplicate of the document or of any part of the document, or

(c) any part of such a copy, reproduction or duplicate.

Notes included in this Act do not form part of this Act.

5 Act to bind Crown

This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.

6 Act applies to all criminal and civil proceedings

This Act applies to all criminal proceedings and civil proceedings.

Part 2 Access to documents in court records and right to publish documents

Division 1 Right to inspect documents in court records

7 General public right of access to documents in court records

(1) Any person has the right to inspect any of the documents specified in subsection (2) that form part of the court record in relation to a proceeding held in open court unless an objection to the exercise of the right is made in accordance with section 8.

(2) The documents are as follows:

(a) pleadings, to the extent that their content is relied on in the proceeding and referred to as forming the basis of the case argued by a party,

(b) judgments and orders made in the proceeding,

(c) a transcript of the evidence in the proceeding or any other document that records what was said or done in the court,

(d) documents comprising evidence in the proceeding (but not where the proceeding is a bail or committal proceeding or coronial inquiry),

(e) written submissions, to the extent that their content is relied on in the proceeding and referred to as forming the basis of the case argued by a party,

(f) documents recording the offences with which a person has been charged in the proceeding.

(4) A person may make, or be furnished by the court registry with, a copy of any document that the person has the right to inspect under this section. A reasonable fee may be charged for the making of copies by the court registry.

(5) If a person has a right to inspect a document under this section and the document is not in written form, the court may make any orders that are reasonable and practicable to facilitate the right to inspect given by this section.

(6) The right to inspect a document under this section is subject to:

(a) compliance with any conditions relating to inspection of the document imposed under section 10 (Court may impose conditions on access to documents), and

(b) any order under section 11 preventing inspection of the document (Court may prevent access to documents), and

(c) any suppression order prohibiting publication of a report that is contained in the document, and

(d) any interim suppression order prohibiting publication of a report that is contained in the document, and

(e) any Act, or any instrument made under an Act, that prohibits the publication of the document.

(1) An objection may be made to the exercise by a person other than a party to a proceeding in a court or an officer of the court who is engaged as such in the proceeding of a right under section 7 to inspect a document that forms part of the court record in relation to the proceeding.

(2) An objection must be made to the court concerned before or at the time when a right to inspect the document would, but for the objection, arise under section 7.

(3) An objection may be made by or on behalf of:

(a) a party to the proceeding, or

(b) any other person who satisfies the court that the person has a sufficient interest in the proceedings or in the question whether the right to inspect should be exercised.

Division 2 Proceedings regarding access to documents

9 Applications may be made for access to certain documents in court records

(1) Any person may make an application to a court before which a proceeding has been heard or is being heard seeking leave:

(a) to inspect any document relating to the proceeding that the person would have a right to inspect under section 7 were it not for an objection made under section 8, or

(b) to inspect any other document relating to the proceeding that the person does not have a right to inspect under section 7.

(3) If an application is made under this section in relation to any document relating to a proceeding, the parties to the proceeding may make submissions to the court concerning the application.

(4) In proceedings on an application under subsection (1) (a) for leave to inspect a document, the onus is on the person who objected under section 8 to the exercise of a right to inspect the document (the objector) to establish that the application should not be granted. An application must be granted unless the objector shows that it would be contrary to the due administration of justice to grant it.

(5) In proceedings on an application under subsection (1) (b) for leave to inspect a document, the onus is on the applicant to show why leave to inspect the document should be granted.

(6) The court may:

(a) grant an application (with or without conditions), or

(b) refuse an application.

(8) A person may make, or be furnished by the court registry with, a copy of any document that the person is granted leave to inspect under this section. A reasonable fee may be charged for the making of copies by the court registry.

(9) If a person is granted leave to inspect a document under this section and the document is not in written form, the court may make any orders that are reasonable and practicable to facilitate the person's inspection of the document.

Division 3 Restrictions on right of access to documents

10 Court may impose conditions on access to documents

(1) A court before which a proceeding is proposed to take place, is taking place or has taken place may, on application or on its own initiative, make an order imposing any condition in relation to the inspection of:

(a) a document in the proceeding that any person has a right to inspect under section 7 (General public right of access to documents in court records), or

(b) a document in the proceeding in relation to which leave to inspect has been granted to any person under section 9 (Applications may be made for access to certain documents in court records).

(3) Any person may make an application to a court for an order under this section.

(4) In proceedings on an application under this section to impose conditions in relation to the inspection of a document, the onus is on the applicant to show why conditions should be imposed. The application should not be granted unless the applicant shows that it would be contrary to the due administration of justice for inspection to take place unless it takes place subject to those conditions.

11 Court may prevent access to documents

(1) On the application of any person, a court before which a proceeding is proposed to take place, is taking place or has taken place may make an order:

(a) that a particular document or class of documents in that proceeding is not to be inspected, or

(b) that a particular person or class of persons is not to inspect a particular document or class of documents in that proceeding.

(3) Such an order has effect despite section 7 (General public right of access to documents in court records).

12 Appeals regarding orders relating to access to other documents in court records

(1) A person who has made an application under section 9, 10 or 11 may appeal against:

(a) a refusal of the application, or

(b) the imposition of conditions on the grant of the application, or

(c) in the case of an application under section 10--the imposition of conditions that differ from those applied for.

(a) the granting of an application under section 9 for leave to inspect a document relating to the proceeding, or

(b) the imposition of conditions in relation to inspection of the document, or

(c) the granting of an application for an order under section 10 imposing conditions in relation to inspection of a document relating to the proceeding, or

(d) the granting of an application under section 11.

(a) the grant of an application under section 9, 10 or 11 by any person, or

(b) the refusal of such an application, or

(c) the imposition of conditions on the grant of such an application.

(a) if the decision the subject of the appeal was made by a court other than the Supreme Court--by a single judge of the Supreme Court, or

(b) if the decision the subject of the appeal was made by the Supreme Court--by the Court of Appeal.

Division 4 General

13 General right to publish documents

(1) Any person may publish the contents of, or a fair and accurate summary of the contents of, any document or part of a document:

(a) that any person may inspect under section 7 (General public right of access to documents in court records), or

(b) in relation to which an application for leave to inspect has been granted to any person under section 9 (Applications may be made for access to certain documents in court records).

(a) compliance with any conditions relating to inspection of the document imposed under section 10 (Court may impose conditions on access to documents), and

(b) any order under section 11 preventing inspection of the document (Court may prevent access to documents), and

(c) a suppression order prohibiting publication of the document, and

(d) an interim suppression order prohibiting publication of the document, and

(e) any other prohibition or restriction imposed on the publication of the document:


(i) by any other Act, or

(ii) by an instrument made under an Act or any other instrument, or

(iii) by any order made under an Act or instrument.

Any restriction on inspection of documents under this Part applies in addition to any other applicable prohibition or restriction relating to inspection of documents imposed:

(a) by any other Act, or

(b) by any instrument made under an Act or any other instrument, or

(c) by any order made under an Act or instrument.

Division 1 Suppression orders

15 Suppression orders

(1) A court may, on application or on its own motion, order that no report be published of:

(a) the whole or any part of any proceeding of the court, or

(b) any document relating to the proceeding, or

(c) any evidence admitted in the proceeding, or

(d) any evidence tendered but not admitted in the proceeding, or

(e) any oral submissions made by counsel in the proceeding, or

(f) any material that would lead to the identification of a party or witness involved in the proceeding, or

(g) any finding made by the court in the proceeding.

(3) A suppression order may be made subject to conditions.

16 Enforcement of suppression orders

(1) A person must not breach a suppression order.

Maximum penalty:

(a) in the case of an individual--50 penalty units or 12 months imprisonment or both, and

(b) in the case of a corporation--2,000 penalty units.

17 Applications for suppression orders

(1) An application for a suppression order may be made by a person who satisfies the court that the person has a sufficient interest in the question as to whether the suppression order should be made.

(2) A person may make an application without being joined as a party to the relevant proceeding.

(3) A person who has made an application may call or give evidence in support of the application.

(4) The court may delay a proceeding to allow the application for a suppression order to be made or evidence to be called or given.

18 Variation and revocation of suppression orders

(1) A suppression order may be varied or revoked by the court that made it, however constituted and on any ground that to the court appears sufficient.

(2) The power to vary or revoke a suppression order may only be exercised on application.

(3) An application for the variation or revocation of a suppression order may be made by any person who satisfies the court that the person has a sufficient interest in the question whether the suppression order should be varied or revoked.

19 Persons who may be heard regarding making, variation or revocation of suppression orders

(1) Any of the following may object to or support the making of a suppression order:

(a) the applicant for the suppression order,

(b) a representative of a newspaper, of a radio or television station or of a news website,

(c) any other person who has, in the opinion of the court, a sufficient interest in the question whether the suppression order should be made.

(3) A person referred to in subsection (1) or (2) may object to or support the making, variation or revocation of a suppression order without being joined as a party to the relevant proceeding.

(4) Such a person may call or give evidence for or against the making, variation or revocation of a suppression order.

(5) The court may adjourn the main proceeding to allow the objection to or statement in support of the making, variation or revocation of a suppression order to be made or evidence to be called or given in relation to the suppression order.

(6) This section applies whether the court makes a suppression order on an application or of its own motion.

20 Appeals relating to suppression orders

(1) Any person referred to in section 19 (1) or (2) may appeal against the decision of a court:

(a) to make a suppression order, or

(b) not to make a suppression order, or

(c) to vary or revoke a suppression order, or

(d) not to vary or revoke a suppression order.

(a) who made an application under section 17, or

(b) who was heard by a court under section 19,

(3) Any person who satisfies the court that the person has a sufficient interest in the making of the suppression order may seek leave to be heard by the appellate court.

(4) An appeal against a decision made under this Division is to be heard:

(a) if the suppression order was made by a court other than the Supreme Court--by a single judge of the Supreme Court, or

(b) if the suppression order was made by the Supreme Court--by the Court of Appeal.

21 Duration of suppression orders

A suppression order remains in force until it is revoked or lapses according to its terms.

Division 2 Interim suppression orders

22 Interim suppression orders

(1) A court may make an order (an interim suppression order), on application or on its own motion, that no report be published of:

(a) the whole or any part of any proceeding of the court, or

(b) any document relating to the proceeding, or

(c) any evidence admitted in the proceeding, or

(d) any evidence tendered but not admitted in the proceeding, or

(e) any oral submissions made by counsel in the proceeding, or

(f) any material that would lead to the identification of a party or witness involved in the proceeding, or

(g) any finding made by the court in the proceeding.

(a) that the order be made, and

(b) that the order be made without delay.

(1) A person must not breach an interim suppression order.

Maximum penalty:

(a) in the case of an individual--50 penalty units or 12 months imprisonment or both, and

(b) in the case of a corporation--2,000 penalty units.

24 Applications for interim suppression orders

(1) An application for an interim suppression order may be made by a person who satisfies the court that the person has a sufficient interest in the question whether the interim suppression order should be made.

(2) A person may make an application without being joined as a party to the relevant proceeding.

(3) A person who has made an application may call or give evidence in support of the application.

(4) The court may delay a proceeding to allow the application for an interim suppression order to be made or evidence to be called or given.

(5) The court, in hearing an application under this section, may:

(a) inform itself of such material as it considers relevant to and sufficient for its determination of the application, and

(b) make orders or give directions regarding the determination of the application, including on the matters of notice and parties to the application.

Any of the following may seek leave to be heard on the question of whether an interim suppression order should be made:

(a) the applicant for the interim suppression order,

(b) a representative of a newspaper, of a radio or television station or of a news website,

(c) any other person who has, in the opinion of the court, a sufficient interest in the question whether the interim suppression order should be made.

(1) An interim suppression order may be varied or revoked by the court that made it, however constituted and on any ground that to the court appears sufficient.

(2) The power to vary or revoke an interim suppression order may only be exercised on application.

(3) An application for the variation or revocation of an interim suppression order may be made by any person who satisfies the court that the person has a sufficient interest in the question whether the interim suppression order should be varied or revoked.

(4) The court, in hearing an application under this section, may:

(a) inform itself of such material as it considers relevant to and sufficient for its determination of the application, and

(b) make orders or give directions regarding the determination of the application, including on the matters of notice and parties to the application.

(1) Any person who was heard by a court in an application under section 24 or 26 may, with the leave of the appellate court, make an appeal against the decision of the court:

(a) to make an interim suppression order, or

(b) not to make an interim suppression order, or

(c) to vary, revoke or continue an interim suppression order, or

(d) not to vary or revoke an interim suppression order.

(3) Any person heard by a court in an application under section 24 or 26 is entitled to be heard by the appellate court.

(4) An appeal against a decision made under this Division is to be heard:

(a) if the interim suppression order was made by a court other than the Supreme Court--by a single judge of the Supreme Court, or

(b) if the interim suppression order was made in the Supreme Court--by the Court of Appeal.

28 Duration of interim suppression order

(1) An interim suppression order has effect until:

(a) a suppression order prohibiting the reporting of the same or like material is made under section 15, or

(b) the interim suppression order is revoked, or

(c) the interim suppression order lapses according to its own terms, or

(d) 7 days have passed since the interim suppression order was made,

(2) The fact that an interim suppression order has ceased to operate by virtue of subsection (1) (b)-(d) does not prevent the court from making another interim suppression order, or a suppression order under section 15, prohibiting the publishing of a report of the same or like material.

(3) During the time when an interim suppression order has effect a second or subsequent interim suppression order, or a suppression order under section 15, prohibiting the reporting of the same or like material may be applied for and may be granted. The court, in granting such an order, may stipulate that it should come into effect on the expiry of the current interim suppression order.

Division 3 General

29 Other provisions may suppress publication

The prohibition on publishing of reports under this Part applies in addition to any other prohibition or restriction imposed by any other Act or law on the publication of such reports.

Part 4 Miscellaneous

30 Costs

A court hearing an application made under this Act may:

(a) make an order for costs against the applicant, a party to the relevant proceeding or any other interested person involved in the proceedings, and

(b) make orders dealing with any other incidental or ancillary matter.

(1) Proceedings for an offence under this Act or the regulations may be dealt with:

(a) summarily before a Local Court constituted by a Magistrate sitting alone, or

(b) summarily before the Supreme Court in its summary jurisdiction.

32 Regulations

The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

33 Rules

(1) The power to make rules under an Act regulating the practice and procedure of a court extends to making any rules prescribing all matters necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) Rules so made must not be inconsistent with this Act or any regulation made under section 32.

(3) This section does not affect any power to make rules under any other law.

34 Savings and transitional provisions

Schedule 1 has effect.

35 Amendment of other Acts

Each Act specified in Schedule 2 is amended as set out in that Schedule.

Schedule 1 Savings and transitional provisions

(Section 34)

1 Savings and transitional regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:

this Act

(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.

(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

A party to a proceeding or any other person referred to in section 8 may object to the inspection of a document tendered for admission into evidence before the commencement of section 8.

3 Saving of certain suppression orders and directions

(1) An order or direction that, immediately before the commencement of section 35, was an order made or direction given by a court under any of the following provisions is taken to be a suppression order made under this Act, subject to any condition imposed when it was made:

(a) section 18 of the Community Protection Act 1994, or

(b) section 562NC of the Crimes Act 1900, or

(c) section 119 of the Criminal Procedure Act 1986, or

(d) section 14 of the Law Enforcement and National Security (Assumed Identities) Act 1998, or

(e) section 28 of the Law Enforcement (Controlled Operations) Act 1997, or

(f) section 35 of the Public Health Act 1991.

(2) Such an order or direction continues in force as if the provision under which the order was made were still in force and a breach of such an order or direction is to be dealt with as if that provision were still in force.

Schedule 2 Amendment of other Acts

(Section 35)

2.1 Community Protection Act 1994 No 77

Section 18 Orders prohibiting publication of material that may identify persons

Omit the section.

2.2 Crimes Act 1900 No 40

Section 562NC Publication of names and identifying information about persons involved in ADVO proceedings

Omit the section.

2.3 Criminal Procedure Act 1986 No 209

[1] Section 119 Publication of evidence may be forbidden in certain cases

Omit the section.

[2] Schedule 2 Savings, transitional and other provisions

Omit clause 12.

2.4 Law Enforcement and National Security (Assumed Identities) Act 1998 No 154

[1] Section 14 Identity of certain officers not to be disclosed in legal proceedings

Omit "a court," from section 14 (1).

[2] Section 14

Omit " the court," wherever occurring. Insert instead "the".

2.5 Law Enforcement (Controlled Operations) Act 1997 No 136

[1] Section 28 Identity of certain participants not to be disclosed in legal proceedings

Omit "a court," from section 28 (1).

[2] Section 28

Omit " the court," wherever occurring. Insert instead "the".

2.6 Public Health Act 1991 No 10

Section 35 Restrictions on publication

Omit the section.