Open Justice and Free Access to Case Law (A Submission to the NSW Law Reform Commission)

Abstract

The New South Wales Law Reform Commission (NSWLRC) in relation to the Consultation Paper (CP22) in its ‘Open Justice Review’. This paper is a submission to that review on issues relating to how free online access to court and tribunal decisions has become an important part of 'open justice' in countries like Australia. The submission argues that a high value should be placed on facilitating (or not impeding) free access to timely, high quality, full reports of court decisions, and a recognition that publication of such decisions raises different issues than those presented by publications of news media. It argues that all statutory prohibitions on publication should contain a general exception allowing publication of decisions by a publisher with the consent of, or at the request of, the court, to that publisher. A general exception to such prohibitions is desirable. Further, courts making discretionary non-disclosure or suppression orders should be required to consider whether there should be an exception allowing the information to be published on legal websites publishing the full text of decisions in legal databases. These submissions are relevant to free access publishers of case law in other countries, particularly those with a similar approach to 'open justice' as is found in Australia.