Case: Australian Broadcasting Commission v Parish (1980) 29 ALR 228
Outcome: applied
As Bowen CJ observed in Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 233-4, s 50 provides for an encroachment on the principle of open justice. Whilst open justice is the underlying assumption of the section, that public interest may be affected by the need to prevent prejudice to the administration of justice. 24 What is required is a "weighing in the scales" of the countervailing public interests involved: see Parish at 234 per Bowen CJ. The public interest in the need to do justice between the parties may not be the only public interest to be weighed against the principle of open justice: Johnston v Cameron [2002] FCAFC 251 ; (2003) 195 ALR 300 at [24] per Branson J. 25 Section 50 confers a broad discretionary power to depart from the prima facie rule of open justice and the weight to be given to that interest will vary from case to case: see Parish at 254 per Deane J. His Honour dissented in the result but his approach to the construction and effect of the section has not been doubted. 26 The balancing process involves an assessment of a variety of factors including the importance of the evidence in the conduct of the proceedings and to an understanding of the the result: Parish at 256 per Deane J. 27 The cases in which an order may be necessary to prevent prejudice to the administration of justice vary widely; they include cases where, in the absence of a confidentiality order, the subject matter of the litigation may be rendered nugatory: Parish at 233 per Bowen CJ. 28 The Court will respect legitimate claims for confidentiality which should not be unduly discounted in the weighing process. Legitimate expectations of confidentiality "as to private and confidential transactions" should not be lightly disregarded: Parish at 255 per Deane J. 29 The degree of encroachment on the principle of open justice is an important factor to be weighed in the balance. Thus, the Court will guard against proceeding behind closed doors and it will also lean against a practice of unduly restricting public access to evidence: Parish at 236 per Bowen CJ. The observations of Sackville J in Seven Network Limited v News Limited (No 2) [2005] FCA 1394 ; (2005) 148 FCR 1 at [27] are to similar effect, though in a different context. 30 The weight to be given to the principle of open justice may vary according to whether the other party to the proceeding opposes or consents to the making of an order under s 50: Parish at 254 per Deane J. 36 In Parish at 255, Deane J pointed to the need to avoid undue discounting of legitimate claims to confidentiality. He said to do so may discourage access to the courts for vindication of legal rights. Equally, the failure to give weight to a respondent's claim for confidentiality may be prejudicial to the administration of justice because it may bear upon the practical ability of a respondent to meet claims made against it. 37 It is therefore necessary for me to weigh this public interest in the balance to determine whether an order under s 50 is necessary to prevent prejudice to the administration of justice which warrants a departure from the principle of open justice. 38 It is clear from the authorities that not every claim to confidentiality will be sufficient to warrant protection through an order under s 50. Weight may be given only to "legitimate claims": see for example Parish at 255. 39 I do not consider the opinions expressed by Ms Davies to be mere assertions lacking any evidentiary support. It seems to me that a fair reading of the SCAG Procedures, the COAG Compendium and the Policy Paper suggests the confidentiality arrangements between the responsible Ministers were put in place to achieve cooperation between all of the governments on a matter of national importance. 40 The confidentiality policy agreed to in the Policy Paper on 26-27 July 2007 confirmed the principle which already applied to SCAG censorship discussions and documents under clause 5(e) of the SCAG Procedures and principle 14 of the COAG Compendium. 51 Second, whilst I do not find that disclosure of the confidential material would render nugatory or destroy the entire basis of the National Classification Scheme, I have taken into account the risk of damage to its effective operation: Parish at 235. 52 Third, there is only a slight degree of encroachment on the principle of open justice in the order restricting access to the confidential material: Parish at 236. This is because I do not consider that the order substantially impinges upon the transparency of the process or of my reasons. I deal with this in my fourth reason below. 53 Fourth, the evidence in the confidential material was of little importance in the conduct of the proceeding. Nor is it of any real assistance in understanding the result: Parish at 256. The public interest in being able to follow the way in which the proceedings were resolved is not, in my opinion, affected by the restriction of access to the minutes and papers referred to in the order which I made under s 50 of the Act. 54 It follows that I propose to dismiss the application to revoke the Orders which I made on 6 September 2007 in relation to the extracts of the minutes and the copies of the papers that were before SCAG. 55 However, it does seem to me that in balancing the competing interests, including the need to understand my reasons, I ought to vary the orders so as to permit access to [131] [134] of Adultshop's written submissions to which I referred in my reasons for judgment.