Broadcasting court proceedings

18/06/2014

The NSW Government announced in March this year that it would introduce legislation to create a presumption in favour of granting applications from the media to film and broadcast certain court proceedings. A bill giving effect to that commitment is now before the Legislative Assembly.

The Courts Legislation Amendment (Broadcasting Judgments) Bill 2014 amends the District Court Act 1973 and Supreme Court Act 1970 to require those courts to permit the recording and broadcast of civil and criminal judgments given in open court, unless satisfied that one of a limited number of exclusionary grounds is present. The presumption will also apply to proceedings in the Court of Criminal Appeal.

The Bill only permits ‘judgment remarks’ to be broadcast. This is defined to mean:

• in relation to a criminal trial—the delivery of the verdict, and remarks made by the Court when sentencing the accused person, that are delivered or made in open court

• in relation to any civil proceedings—remarks made by the Court in open court when announcing the judgment determining the proceedings.

The following are the exclusionary grounds upon which an application may be refused:

a. that the broadcast of the judgment remarks would be likely to reveal the identity of a person in circumstances where the disclosure, publication or broadcast of the person’s identity is prohibited by a suppression or non-publication order or by law,

b. that the judgment remarks will contain material:

• that is subject to a suppression or non-publication order or the disclosure, publication or broadcast of which is otherwise prohibited by law, or

• that is likely to be prejudicial to other criminal proceedings (including proceedings for the same or a related criminal offence) or a current criminal investigation, or

• that is likely to reveal the existence of a covert operation carried out by law enforcement officials,

c. that the broadcast of the judgment remarks would pose a significant risk to the safety and security of any person in the courtroom or who has participated, or has otherwise been involved, in the proceedings, or

d. that the Chief Judge or the Chief Justice has directed that the judgment remarks not be recorded or broadcast because, in their opinion, the broadcast of the judgment remarks would be detrimental to the orderly administration of the court.

The presence of exclusionary ground (a), (b) or (c) will not be sufficient justification to refuse permission unless the court is also satisfied that it is not reasonably practicable to implement measures when recording or broadcasting the judgment remarks to prevent the broadcast of any thing that gives rise to the exclusionary ground.

The courts will be able to make rules about the manner in which recordings of judgment remarks are to be made. For the avoidance of doubt, proceedings under the Bail Act 2013, Children (Criminal Proceedings) Act 1987, Children and Young Persons (Care and Protection) Act 1998, Crimes (Forensic Procedures) Act 2000 and the Supreme Court’s parens patriae (care and protection) jurisdiction are expressly excluded. Proceedings held in closed court are also excluded.

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