Today,I want to give you one example of the challenge theHerald faces in bringing you information in the public interest. To do this,I am going to hand you over to our,who,along with our court reporters,has been fighting a suppression order for quite some time now.
Chief reporter Jordan Baker has been fighting a suppression order in the Children’s Court.Janie Barrett
The following has been written by Jordan,and I hope you find it insightful:
On Tuesday,the perpetrator of a serious crime faced Children’s Court. Guilt was not the issue;the teen has already been sentenced. The hearing was about whether the Herald would be allowed to write about it.
We were not asking to name the teen. That’s prohibited by law – a juvenile has a legal right to have their identity kept secret and their record wiped clean as they move into adulthood – and we take our obligations seriously.
We just wanted to tell our readers what happened – what the teen did,the impact on those they hurt,and how they were punished. We know;we think it’s in the public interest for you to know,too.
Journalists spend much of their time fighting for information,and navigating legal hurdles to publish it. It’s a frustrating part of the job that readers don’t see,particularly when we have to fight for information to which we should rightfully be allowed access.
Legal limitations often stop us from publishing stories,or curtail what we can say.
A crime story might prejudice someone’s right to a fair trial;for example,we haven’t been able to publish a gallery of the many men accused of killing their partners this year because they haven’t been convicted,and their cases may drag on for years.
A story might be defamatory,although we do run stories that expose us to defamation action because they are important and we can prove they are true,such as the story about killing unarmed prisoners in Afghanistan.
Ben Roberts-Smith sued the Herald for defamation,and lost,after a series of stories accused him of war crimes.Getty
Or it might contravene a court order expressly forbidding us from writing about something. Just last week, about a government investigation into whether a casino operator involved in a new Brisbane venture,Chow Tai Fook Enterprises,had links to organised crime.
But sometimes,we disagree,and argue back. TheHerald is fighting the Chow Tai Fook injunction. And on Tuesday,our executive legal counsel Larina Alick attended Children’s Court to oppose a continued ban on publishing even bare facts about the teen’s crime.
A magistrate granted an interim non-publication order when the teen first came to court in 2020 because their identity was known by some in their circle. They had been harassed and threatened,and their mental health was fragile.
A two-year order was granted at their sentencing hearing in 2022,for the same reasons.
On Tuesday,the teen applied for a third non-publication order.
Alick argued that the risk of identification and harassment had reduced over the past four years,given the offender had changed their name and that those who knew about the crime had moved on.
She also said that the principle of open justice – that court proceedings should be held in public to protect the rule of law and to inspire public confidence in the legal system – still applied even when it involved juveniles.
The magistrate disagreed. He granted the non-publication order,saying the principle of open justice was not relevant in the NSW Children’s Court.
Over the past decade,the Children’s Court has become one of the hardest jurisdictions for journalists to access,despite the strict identification prohibitions that have long been in place to protect those who come before it.
Technically,a news reporter is “entitled to enter or remain in the place where the proceedings are being heard”,unless the court directs otherwise (according to the Children[Criminal Proceedings] Act 1987). In practice,it’s the opposite. Journalists have to apply to the magistrate to be allowed into court at all.
That involves presenting to the court on the day,filling out a form that asks for details not made public in that jurisdiction,such as the case number and the defendant’s name,and hoping the magistrate is one of those who are more sympathetic to open justice.
There are issues in other courts,too.
In the Local Court,court staff are now taking it upon themselves to limit access to documents if they contain names that cannot be published,even if news organisations are legally entitled to the documents,are aware of the prohibitions,and give written undertakings to abide by them.
When lawyers for news organisations challenge these decisions,at significant cost,the registrar’s decision is always overturned.
At Federal Court level,new rules introduced at the beginning of last year mean documents that were once freely available early in a case now take months to be released,if they are released at all.
We don’t usually write stories about the stories we’re not allowed to write. For one thing,there’d be far too many. But it’s something our subscribers,as supporters of news and active participants in the public debate,need to understand.
Slowly,limits on the information journalists are allowed to access are tightening. We have to fight harder,and use more resources,to find out what was once considered our right to know under the principle of open justice.