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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This legislative instrument amends the Federal Court Rules 2011, Federal
Court (Criminal Proceedings) Rules 2016, Federal Court (Bankruptcy) Rules 2016,
and Federal Court (Corporations) Rules 2000 to provide updates to references to
rules, regulations and the Federal Circuit and Family Court of Australia. It
clarifies the transfer
of proceedings to and from the Federal Circuit and Family
Court of Australia (Division 2)
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Portfolio
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Attorney-General
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Authorising legislation
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Last day to disallow
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15 sitting days after tabling (tabled in the Senate and the House of
Representatives on 6 February 2023). Notice of motion to disallow
must be given
by 23 March 2023 in the House and by 29 March 2023 in the
Senate[2]
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Right
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Freedom of expression
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2.47 The committee requested a response from the minister in relation to the instrument in Report 2 of 2023.[3]
2.48 These rules provide that a person who is not a party to a Federal Court proceeding cannot inspect certain court documents in a proceeding until after the first directions hearing or the hearing (whichever is earlier).[4]
2.49 This applies to documents such as originating applications; pleadings; statements of agreed facts; judgments or orders of court; notices of appeal; and reasons for judgment.[5]
2.50 Restricting access to court documents, which journalists may use to help them accurately report on cases before the Federal Court, engages and limits the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, either orally, in writing or print, in the form of art, or through any other media of an individual's choice.[6] The United Nations (UN) Human Rights Committee has noted the important status of this right under international human rights law.[7]
2.51 The right to freedom of expression extends to the communication of information or ideas through any medium, including written and oral communications, the media, public protest, broadcasting, artistic works and commercial advertising.[8] A free, uncensored and unhindered press is essential to ensure freedom of opinion and expression, and the enjoyment of other civil and political rights.[9]
2.52 The right to freedom of expression may be subject to limitations that are necessary to protect the rights or reputations of others,[10] national security,[11] public order, or public health or morals.[12] Additionally, such limitations must be prescribed by law, be rationally connected to the objective of the measures and be proportionate.[13]
2.53 The committee noted that restricting access to certain court documents prior to a hearing, including access by journalists, engages and limits the right to freedom of expression. The committee considered further information was required to assess the compatibility of this measure with this right, and as such sought the Chief Justice's advice in relation to:
(a) what is the objective behind preventing people who are not parties to a proceeding from inspecting certain documents in the proceeding until after the first directions hearing or the hearing;
(b) is restricting such access likely to be effective to achieve that objective; and
(c) is this a proportionate way to achieve that objective. In particular, are there any safeguards in place or any less rights restrictive ways to achieve the objective (for example, allowing non-parties to apply for access; allowing decisions to be made on a case-by-case basis).
2.54 The full initial analysis is set out in Report 2 of 2023.
2.55 The Chief Justice advised:
(a) What is the objective behind preventing people who are not parties to a proceeding from inspecting certain documents in the proceeding until after the first directions hearing or the hearing?
The principle of "open justice", including justice being seen to be done and ensuring that nothing is done to discourage the making of fair and accurate reports of proceedings, is an overarching principle which guides the Court in its judicial and procedural operations. However, the principle of open justice is not absolute, and must be balanced with the need of the Court to act at all times in the "interests of justice" and avoid prejudice to the administration of justice or other potential harm.
"Interests of justice" is a broad concept that gives rise to many matters that a Court must consider when assessing a request for access, including the interests of all parties (e.g. questions of confidentiality and privacy), the community, the application of any Commonwealth law, and any reasonably necessary requirements to ensure the just and fair administration of justice. Further, the Court must consider whether a request may be unreasonably burdensome on the administration of justice.
It is not the objective of the Federal Court, nor the amendment to subrule 2.32(2) of the Federal Court Rules 2011 pursuant to the Federal Court Legislation Amendment Rules 2022 (which subrule must be read as part, and in the context, of the whole rule, especially subrule 2.32(4)), to prevent in all circumstances people who are not parties to a proceeding from inspecting documents in a proceeding until after the first directions hearing or a hearing (whichever comes first).
The objective of the amendment to subrule 2.32(2) (as part of rule 2.32) is to protect the administration of justice through the protection of the legitimate rights and interests of parties to proceedings in the Court. It is contrary to the administration of justice for respondents to learn of the case made against them, whether through the media or other publication, before they are served and before they have a reasonable opportunity to protect their legitimate interests and rights by seeking properly-founded suppression or non-publication orders. The amendments to subrule 2.32(2) are about ensuring that the Rules of the Court are not used, knowingly or innocently, as an instrument of injustice.
The Court is mindful of the need to adopt procedures that afford the same protections to all parties and to guard against the abuse of its procedures. When commencing proceedings, applicants are able to take steps to protect confidential information in their own interests. As a matter of fairness, it is necessary to ensure that respondents (and in some instances third parties) are afforded the same opportunity. Additionally, applicants are able to make allegations that have not been scrutinised by respondents. Publication of claims and allegations before respondents have been given an opportunity to raise any claim that the Court's procedures are being used improperly also creates the possibility of unfairness and opportunities for abuse.
Subrule 2.32(2) establishes the first directions hearing or hearing (whichever is earlier) as the point in time at which non-parties are—in the absence of other orders—generally permitted to inspect unrestricted documents. As such, it is the default rule. Subrule 2.32(2) must not however, be considered in isolation. Subrule 2.32(2) must be considered in conjunction with subrule 2.32(4). Subrule 2.32(4) provides that a person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect. The effect of the operation of these two subrules is that, prior to a first directions hearing or hearing (whichever is earlier), a non-party will require leave of the Court to inspect such documents. Non-parties are therefore not necessarily prevented from inspecting documents prior to the earlier of the directions hearing or hearing by rule 2.32. Non-parties, including the media, before a first directions hearing or hearing (whichever is earlier) may still inspect documents at this time. The amendments to subrule 2.32(2) do however mean that such inspection is by leave of the Court. In many, if not most cases, the originating processes will be available upon application before the first directions hearing or hearing (whichever is earlier), if application for access is made.
Subrule 2.32(4) was not subject to recent amendments. Leave of the Court has long been required for non-parties to access restricted documents. The effect of the amendments to subrule 2.32(2) is simply to extend that requirement for leave for a limited period of time, and require access by leave regulated by a practice note (as to which, see below).
The Federal Court has not expanded the processes or basis of suppression or non-publication orders through the amendment to subrule 2.32(2). The amendment does not enable a party to simply avoid embarrassment through suppression or non-publication orders. Further, the Court expects parties to lodge any application seeking suppression or non-publication orders promptly.
On 10 February 2023, the Federal Court introduced an amended practice note, the Access to Documents and Transcripts Practice Note (GPN-ACCS) which provides detailed guidance in respect of access to documents in the court file relating to a proceeding in the Court, including by non-parties and the media, and including guidance on access to originating process before the first directions hearing.
Without going into too much detail, the processing of such requests by a non-party involves the following:
• coordination by the National Operations Registry in conjunction with the Director of Public Information and assisted by Court and Tribunal staff from within each Registry;
• an initial assessment to determine whether the relevant proceeding has been allocated to a judge;
• consultation with the parties to determine whether the originating application and supporting material have been served on the respondent or respondents;
• the provision of a reasonable opportunity for the parties to file an application seeking suppression or non-publication orders; and
• in the ordinary course of events the grant of leave to access the document by a Registrar.
Where an application for a suppression or non-publication order is made, this will be quickly allocated to a judge for consideration. Nothing in the practice note is intended to remove any entitlement of any interested person (including the media) to be heard on the application for a suppression or non-publication order.
If leave is granted to inspect an otherwise restricted document, then, in the ordinary course of events and subject to any order of the Court, a Registrar will grant leave for the inspection of that document pursuant to subsequent requests.
The practices outlined within the practice note ensure applications for leave to inspect documents are considered promptly and efficiently by the Court. A copy of the practice note is attached.
(b) Is restricting such access likely to be effective to achieve that objective?
Yes. The restriction provided by subrule 2.32(2) (when read in the context of the whole rule, including subrule 2.32(4)) is an essential element of a practice that ensures that non-parties can only access court documents prior to a first directions hearing or hearing (whichever is earlier) by seeking leave of the Court and having that application considered on a case-by-case basis.
Subrule 2.32(2) as amended is highly effective in meeting the objectives outlined in response to your first question. It is also highly effective in enabling the Court to act in the "interests of justice", whilst avoiding prejudice to the administration of justice or other potential harm, including to the rights and interests of respondents (and in some instances third parties).
(c) Is this a proportionate way to achieve that objective? In particular, are there any safeguards in place or any less rights restrictive ways to achieve the objective (for example, allowing non-parties to apply for access; allowing decisions to be made on a case-by-case basis)
Yes, subrule 2.32(2) is a proportionate way to achieve that objective. As outlined in the response to your first question, subrule 2.32(2) must not be considered in isolation, but must be considered as part of the whole rule, especially in conjunction with subrule 2.32(4). The Court has not created a blanket prohibition on access to documents by a non-party prior to a first directions hearing or a hearing (whichever is earlier). The restriction provided by subrule 2.32(2) is an essential element of a practice that ensures that non-parties can only access court documents prior to a first directions hearing or hearing (whichever is earlier) by seeking leave of the Court and having that application considered on a case-by-case basis. That case-by-case assessment will be founded on two questions: whether the originating process has been served, and whether it contains material that gives rise to a properly-founded application for suppression.
The Federal Court has encouraged non-parties, including the media, to apply for access by seeking leave of the Court pursuant to subrule 2.32(4). Detailed guidance is provided on how such applications are made, handled and considered within the Access to Documents and Transcripts Practice Note.
As has already been detailed, a non-party, including the media, may still inspect unrestricted documents prior to the first directions hearing or hearing (whichever is earlier), provided leave of the Court is obtained pursuant to subrule 2.32(4).
There are no fees associated with an application for leave to inspect a document and such an application can be considered on the papers without need to appear in Court. A non-party seeking leave of the Court to inspect a document only needs to complete a short access request form. The same form is used for both non-party requests requiring leave of the Court and those that do not require leave of the Court.
The Access to Documents and Transcripts Practice Note provides the detail as to how a non-party may make a request for these documents and the processes put in place by the Court to ensure those requests are considered promptly and efficiently.
2.56 In relation to the objective behind preventing people who are not parties to a proceeding from inspecting certain documents until after the first directions hearing or the hearing, the Chief Justice advised that this is to protect the administration of justice through the protection of the legitimate rights and interests of parties to court proceedings. The Chief Justice stated that it is contrary to the administration of justice for respondents to learn of the case made against them, whether through the media or other publication, before they are served and before they have a reasonable opportunity to protect their interests and rights by seeking suppression or non-publication orders. The Chief Justice noted that the court rules already provide that a person may apply to the court for leave to inspect a document that the person is not otherwise entitled to inspect, meaning that prior to a first directions hearing or hearing (whichever is earlier), a non-party will be able to inspect such documents with leave of the Court. The Chief Justice stated that the effect of the amendments is to extend that requirement for leave for a limited period of time, and to require access by leave as regulated by a practice note. In this regard, the Chief Justice stated that this amendment balances the principle of open justice with the need of the court to act in the interests of justice, and to avoid prejudice to the administration of justice or other potential harm. Protecting the administration of justice through protecting the legitimate rights and interests of parties to court proceedings would constitute a legitimate objective for the purposes of international human rights law.
2.57 As to whether restricting such access is likely to be effective to achieve that objective, the Chief Justice stated that the restriction, read in its context, ensures that non-parties can only access court documents prior to a first directions hearing or hearing where they have sought leave of the court and that application has been assessed on a case-by-case basis. The Chief Justice also stated that the amendment is highly effective in enabling the court to act in the interests of justice, while avoiding prejudice to the administration of justice or other potential harm, including to the rights and interests of respondents (and in some instances third parties). This measure would therefore appear to be rationally connected to the stated objective.
2.58 As to whether this a proportionate way to achieve that objective, the Chief Justice stated that this amendment does not establish a blanket prohibition on access to documents by a non-party prior to a first directions hearing or hearings. Rather, it ensures that non-parties can only get early access to court documents by seeking leave of the court and having that application considered on a case-by-case basis. The Chief Justice stated that this assessment will be founded on two questions: whether the originating process has been served, and whether it contains material that gives rise to a properly-founded application for suppression.
2.59 The Chief Justice also stated that the Federal Court has encouraged non-parties, including the media, to apply for access by seeking leave of the court, and noted that detailed guidance is provided on how such applications are made, handled and considered within the Access to Documents and Transcripts Practice Note. The Chief Justice stated that no fees are associated with such an application, and that a non-party seeking leave of the court to inspect a document only needs to complete a short access request form. The Chief Justice further stated that the Practice Note provides detail as to the processes to ensure that such requests are considered promptly and efficiently. Having regard to this additional information, it appears that the measure constitutes a proportionate means by which to achieve the stated objective. As such, it appears that these rules are compatible with the right to freedom of expression.
2.60 The committee thanks the Chief Justice for this response. The committee considers that, by providing that a person who is not a party to a Federal Court proceeding cannot inspect certain court documents until after the first directions hearing or the hearing (whichever is earlier), this measure limits the right to freedom of expression.
2.61 The committee considers that, having regard to the detailed information provided by the Chief Justice, particularly the fact that non-parties, including the media, are able to apply to the court to obtain access to court documents prior to the first hearing, this measure is compatible with the right to freedom of expression.
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Suggested action:
2.62 The committee recommends that the statement of compatibility with
human rights be updated to include the information provided
by the Chief
Justice.
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2.63 The committee considers that its concerns have been addressed and makes no further comment in relation to this legislative instrument.
Mr Josh Burns MP
Chair
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Federal Court Legislation Amendment Rules 2022 [F2023L00033], Report 4 of 2023; [2023] AUPJCHR 35.
[3] Parliamentary Joint Committee on Human Rights, Report 2 of 2023 (8 March 2023), pp. 45-48.
[4] Schedule 1, item 4.
[5] See Federal Court Rules 2011, subrule 2.32(2).
[6] International Covenant on Civil and Political Rights, article 19(2).
[7] UN Human Rights Committee, General comment No. 34: Article 19: Freedoms of opinion and expression, CCPR/C/GC/34 (2011) [2]–[3].
[8] International Covenant on Civil and Political Rights, article 19(2).
[9] UN Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion and expression (2011) [13].
[10] Restrictions on this ground must be constructed with care. For example, while it may be permissible to protect voters from forms of expression that constitute intimidation or coercion, such restrictions must not impede political debate. See UN Human Rights Committee, General Comment No. 34: Article 19: Freedoms of Opinion and Expression (2011) [28].
[11] Extreme care must be taken by State parties to ensure that treason laws and similar provisions relating to national security are crafted and applied in a manner that conforms to the strict requirements of paragraph 12(3) of the International Covenant on Civil and Political Rights. It is not compatible with paragraph 3, for instance, to invoke such laws to suppress or withhold from the public information of legitimate public interest that does not harm national security or to prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated such information. See UN Human Rights Committee, General Comment No. 34: Article 19: Freedoms of Opinion and Expression (2011) [30].
[12] The concept of 'morals' here derives from myriad social, philosophical and religious traditions. This means that limitations for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition. See UN Human Rights Committee, General Comment No. 34: Article 19: Freedoms of Opinion and Expression (2011) [32].
[13] UN Human Rights Committee, General Comment No.34: Article 19: Freedoms of Opinion and Expression (2011) [21]–[36].
[14] The Chief Justice's response to the committee's inquiries was received on 23 March 2023. This is an extract of the response. The response is available in full on the committee's website.
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