The Journalist's Guide to Media Law - Chapter 4 - Open Justice

Open Justice is a concept that the judicial process should be open to public examination.

This would mean that people should be able to sit in the courtroom and observe cases in progress.

By extension the media are seen in the same way as the rest of the public unless a magistrate has offered special privileges to a journalist such as a recording or court transcript.

"In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place, can any of the checks applicable to judicial injustice operate. Where there is no publicity, there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial."

The open justice concept was tied closely to the notion that justice was compromised if conducted behind closed doors.

Today - The principle of open justice is reinforced at the highest level - that of the United Nations, Article 14 of the International Covenant on Civil and Political Rights reads (OHCHR 1976)

"1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children."

While some court proceedings may be closed to the general public most states have exemptions too allow journalists such as the Children's Court allows journalists to sit in and cover stories provided children are not named or witnesses etc.

Page 72 of the Journalists Guide to Media Law speaks of a journalist, Melissa Ketchell (23 November 1999) from the Townsville Bulletin who wrote to a magistrate to be allowed access to a court involving both children and sex. The resulting story - School officer tells of 'rape' - Met the requirements by detailing the circumstances of the case without identifying any of the children involved.

In recent years the use of tape recorders has been allowed - However if permission is not first sought from the magistrate your likely to be seen as contempt of court.