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4.1 The general rule in the United Kingdom is that a hearing is to be public. Early this century Lord Haldane established in Scott v Scott[175] that the right of public access to the courts was "one of principle ... turning, not on convenience, but on necessity". The freedom of the press to report on proceedings is a logical consequence of this rule. Provision is, however, made for specific exceptions.[176]
4.2 The right to privacy, which is recognised in South Africa, has not yet received recognition as a general right in English law.[177] The protection afforded to privacy by English law is piecemeal, incomplete and indirect. Concern about the adequacy of the protection of privacy has long been voiced[178] and has been the subject of three reports[179] in recent years, as well as several private members' Bills.[180]
4.3 The government's response to the various reports has been that it attaches great importance to the safeguarding of the freedom of the press, that it regards self-regulation by the media as the most practical way forward and that it does not support any other major legal reform.[181]
4.4 A Press Complaints Commission (PCC)[182] was established in January 1991 in place of the then existing Press Council. It is a non-statutory body which has been set up by the newspaper industry for purposes of self-regulation.
4.5 With the incorporation of the European Convention on Human Rights (ECHR) into the United Kingdom law by the Human Rights Act 1998,[183] the protection of privacy of the individual has again become a hotly debated topic.[184] Once again the government has stated its policy to be to accord precedence to the freedom of the press and the media over the right to privacy of the individual,[185] but requiring the press to develop privacy codes and leaving the judges to develop a common-law protection for personal privacy.[186]
4.6 Despite this strong leaning towards press freedom, provision has been made, in exceptional circumstances, for restrictions to be imposed on the publication of information relating to cases heard in the Family Jurisdiction.[187] These restrictions are dealt with in a number of statutes, namely :
(i) Judicial Proceedings (Regulation of Reports) Act, 1926;
(ii) Childrens Act, 1989; and
(iii) Administration of Justice Act, 1960;[188]
and more recently in the new Civil Procedure Rules.[189]
4.7 A clear distinction is drawn in the United Kingdom between cases concerning children and other cases. [190]The overall effect of the provisions set out in these statutes is that there are strict rules whereby firstly, the courts that hear cases concerning children sit in private; and secondly, the publication of proceedings concerning children is prohibited.[191]
4.8 With respect to applications for principal relief, namely divorce, nullity, etc, the court is open and publicity is permitted, but not a detailed account of the evidence being given.[192] With regard to publication of ancillary relief, the court sits in Chambers unless otherwise ordered. Ancillary relief includes orders for financial provision, maintenance pending suit, property adjustment orders and variation orders.[193]
4.9 Where a court is sitting in private,[194] limited publicity is permitted.[195] Because the Family Division Court sits in private, no members of the public or media are permitted in the court room and no publication of information relating to the proceedings before the court is permitted.[196]
4.10 The Lord Chancellor[197] has indicated that holding divorce proceedings in private would not be a breach of the ECHR[198] and that in his view it is justifiable to distinguish between family proceedings and other civil proceedings in so far as public access is concerned.
4.11 The secrecy of proceedings relating to children and the non-publication concerning the proceedings has been the subject of comment. In an address to a conference in 1994, Mr Justice Wall advocated more open courts and greater publicity with, however, the caveat that identification of children should be prohibited.[199]
4.12 The court in its inherent jurisdiction also has the power to grant injunctions restraining publication. Two examples of such an injunction are to be seen in Oxfordshire County Council v L & F.[200]
4.13 The following guidelines [201] for granting an order have been extracted from the cases.[202]
(1) The court will attach great importance to safeguarding the freedom of the press.
(2) The court will take into account Art 10 (freedom of expression) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
(3) The above freedoms are subject to exceptions which include restrictions upon the publication of information imposed for the protection of children.
(4) When considering whether to impose a restriction on publication to protect a child, the court must carry out a balancing exercise in which [in specific circumstances] the welfare of the child may not always be the first and paramount consideration.
(5) In carrying out the balancing exercise, the court will weigh the need to protect the child from harm against the right to publish or comment. An important factor will be the nature and extent of the public interest in the matter. A distinction can be drawn between cases of mere curiosity and those involving information or comment about a subject of genuine public interest.
(6) In almost every case the public interest in favour of publication can be satisfied without identification of the child to persons other than those who already know the facts. However, the risk of some wider identification may have to be accepted on occasion if the story is to be told in a manner which will engage the attention of the public.
(7) Any restraint on publication which may be imposed is intended to protect the child and those who care for him or her from the risk of harassment (or to protect some legal right or interest of the child). The restraint must therefore be in clear terms and be no wider than necessary to achieve the purpose for which it was imposed. Save in an exceptional case, the child cannot be protected from any distress which may be caused by reading about himself.
(8) In addition to protecting the welfare of the child, an injunction may also be granted to protect a child's legal rights or interests, including a right to confidentiality, and to protect the administration of justice. Note that parents and care-givers owe a duty of confidentiality to a child.[203]
4.14 Virtually all divorce proceedings in New Zealand are held in private and no publicity is permitted except with leave of the court. [204]
4.15 The New Zealand Family Court has jurisdiction to hear applications relating to divorce, nullity, spousal maintenance and paternity proceedings under the Family Proceedings Act 1980. Sec 169 of the same Act contains a general restriction on the publication of Family Court proceedings. No persons are permitted to be present during the course of the proceedings except officers of the court, parties and their legal advisers, witnesses and any other person whom the judge permits to be present.
4.16 Except in the case of applications relating to divorce and nullity, no person is permitted to publish any report of proceedings under the Act except with leave of the court. In cases relating to divorce and nullity, the following particulars may be published: (a) the name and address of the parties; (b) the name of the presiding judge (c) the order made by the court. [205]
4.17 In a letter to the Commission Hellen Colebrook, a researcher at the New Zealand Law Commission, stated that in New Zealand the media very rarely attempt to publish cases relating to dissolution of marriage or applications to declare a marriage void. Furthermore, where a judge thinks that it is likely that there will be public interest in a case (for example where there are particularly salacious details), he or she will usually make an order to prevent the publication of any details that might lead to the identification of the parties.
4.18 Cases concerning guardianship, custody and access are brought pursuant to the Guardianship Act, 1968. By that Act no persons are permitted to be present during the proceedings except as permitted under the Family Proceedings Act. Again there is an absolute prohibition on publication of reports of proceedings under the Guardianship Act without the leave of the court. [206]
4.19 Cases relating to settlement of property are brought pursuant to the Matrimonial Property Act, 1976. These proceedings can be commenced either in the Family Court or in the High Court. Sec 35 of that Act states that any application or an appeal should be heard in private if the husband or the wife so desire it. Sec 35A makes it an offence for a person to publish any report of the proceedings under the Act except with the leave of the court.
4.20 In 1995 the principal Family Court judge in New Zealand established a Public Affairs Committee to consider inter alia whether the present family law should be amended to permit wider attendance at and reporting of Family Court proceedings.
4.21 This Committee consulted widely in New Zealand and published its report in April 1995. As the Committee noted, commentators recognised that a balance needs to be drawn between the need of the community in general to know and understand what happens in Family Courts and the need for the personal and family problems of individuals to remain private, especially where the interests of children are involved. The majority view was that there should be no change to the present rules. The minority view argued for the admission of the public or the media to proceedings. However, the Committee stated that two essential limitations should remain. These were that the judges retain the right to exclude members of the public and media and that there be a prohibition on publication of names or identifying information concerning the parties or their children.
4.22 The final recommendations were that a standing public affairs committee should consider guidelines for wider admission to the court by those with a genuine interest. However, it saw no need to change the current legislation, and recommended that the media should continue to be excluded from these proceedings where this is currently the case.
4.23 The New Zealand Family Court sits in small towns, resulting in a high risk of parties being identified. The informality which permits the court to receive evidence which would otherwise be inadmissible, coupled with stringent rules of privacy, results in the parties being more forthcoming with information of a sensitive nature. This would not be the case if access by the public or the press were permitted.
4.24 There is no general right of privacy in Australia.[207] Nevertheless, many aspects of privacy are given incidental protection by laws primarily aimed at other objects.
4.25 Under the Australian Constitution, family law matters are dealt with by federal legislation. The provision relating to publication of proceedings in the Family Court is sec 121 of the Family Law Act 1975 (Cth). [208]
4.26 Sec 121 of the Family Law Act[209] prohibits publication in the media of any account of proceedings which identifies any or all of the persons involved. Family law proceedings are held in open court, unless otherwise ordered by the judge.[210]
4.27 The current state of affairs is more open than the situation when the Family Law Act first came into operation in 1975. At that time all proceedings were held in camera, and there was a prohibition on any reporting of proceedings. As a result of recommendations of parliamentary committees, the Act was changed in 1983. However, the media have complained that the continuing prohibition upon reporting of identifying factors has in essence stopped all reporting of family law cases.
4.28 There are a number of exceptions to the publication restrictions. [211] One exception is that family law proceedings may be reported in case reports provided for the profession. Law reports of family law cases can, and do, contain identifying features. This is now seen to be an inadequate protection given that many parties appearing in family law matters represent themselves, and therefore read the law reports. Furthermore, family law cases are reported on-line and on the Internet, with identifying features.[212]
4.29 In practice, the protocol has been adopted that where the case involves a parenting order, a child maintenance order, or an order regarding the welfare of a child, the report contains non-identifying information. Reports of other family law cases contain identifying information.
4.30 This issue has been considered on a number of occasions by parliamentary committees. In 1997 a report was made to the Department of the Federal Attorney-General. [213]
4.31 In the report it was argued that the ban on publicising Family Court cases should be greatly relaxed on the grounds that it was no different from other courts regarding the legitimate role of the media in reporting its work. Without media reporting the public had to rely on hearsay, which was often distorted. Fears of sensational and salacious reporting could be overcome by banning the publication of daily accounts of evidence.
4.32 The following recommendations were made, inter alia:
(a) That in child cases, where a parenting order, a child maintenance order or an order in the welfare jurisdiction is sought, non-identifying information relating to the case ought to be permitted.
(b) That in all other cases publicity be permitted, including the names, addresses and occupation of the parties and witnesses, a concise statement as to the nature of the application, submissions on the law and the decisions thereon, the orders made and reasons given, the name of the judicial officer and legal representatives. What would not be permitted would be a daily account of the evidence.
(c) That the court be given an overriding power to withhold publication in whole or in part or to permit publication in any particular case.
4.33 However, the Law Council of Australia and others raised concerns, including the need to protect the interests of children.[214]
4.34 To date there has been no amendment of sec 121 of the Family Law Act as a result of the report. There is currently a Bill before the Federal Parliament which, if passed, will inter alia extend the definition of publication under sec 121 to include publication by electronic means. However, many of the issues raised in the above report have not been dealt with.
4.35 With the absence of a Bill of Rights in Australia, the balance between the right to privacy and the right to freedom of information often sways, depending upon the prevalent political climate. Issues of privacy are being strongly debated at present in Australia, with pressure to introduce privacy legislation that applies to the private as well as to the public sector. There is freedom of information in each state, territory and federal jurisdiction, with the exception of the Northern Territory. Freedom of information legislation contains a number of exceptions, one relating to personal privacy concerns. The trend in the past ten years has been to promote the right to privacy over the right to information, although not to the total exclusion of the right to information.[215]
4.36 Canada has a federal system of government, and each province has its own jurisdiction. Divorce is under federal jurisdiction. Alberta is one province which limited the publication of information arising out of court proceedings in matrimonial disputes. Secs 30 and 31 [216] of the Judicature Act, 1980 of the Revised Statutes of Alberta[217] are similar to our sec 12 of the Divorce Act 70 of 1979.
4.37 In 1989, in the case of Edmonton Journal v Alberta (Attorney-General),[218] the Canadian Supreme Court invalidated the above sec 30 of the Alberta Judicature Act. Four of the seven judges agreed that sec 30(1)[219] contravened sec 2(b),[220] the guarantee of freedom of expression of the Canadian Charter of Rights and Freedoms and that the legislation was not a reasonable limitation under sec 1.[221] The Canadian Charter of Rights and Freedoms does not specifically provide for the protection of personal privacy.
4.38 The majority held that freedom of expression is of fundamental importance to a democratic society and that it is essential for a democracy and crucial to the rule of law that the courts are seen to function openly. Sec 30(1) could not be justified as legislation necessary to safeguard public morals, nor was there evidence to show that the provision was needed to ensure access to the courts by people who wished to litigate matrimonial matters. It was acknowledged that sec 30(1) was aimed at protecting the privacy of individuals, which is a pressing and substantial concern in a free and democratic society. However, the section did not reflect the required proportionality between the effect of the impugned measure on the protected right and the attainment of the objective. It constituted a very substantial interference with freedom of expression and significantly reduced the openness of the courts. The necessity of assessing the importance and purpose of a right in context, rather than in the abstract, was stressed.
4.39 The three dissenting judges held that the interference with freedom and expression by sec 30(1) was narrowly defined, since the general information about the case could be published by the media. The prohibition set out in the section was limited to the details and particularities of the case that dealt with personal and family matters, often of a private and intimate nature. Privacy interests ranked high in the hierarchy of values meriting protection in a free and democratic society. The protection from intrusion into the privacy of the individual, the family and witnesses afforded a sufficiently compelling objective to warrant some curtailment of freedom of the press in the present context. The provision was also intended to prevent obstacles to access to the courts. The minority judgment was that given the very limited character of the restriction as compared to the serious deleterious effects on the important values sought to be protected by the legislation, it met the test of proportionality. It was a reasonable limitation on the freedom of the media since it restr icted that freedom as little as possible.
4.40 Part 5 (which consists of secs 30 and 31) of the Judicature Act was repealed in 1991 by sec 15 of chapter 21 of the Miscellaneous Statutes Act, 1991.
[175] Supra at 438 as referred to by Lord Irvine of Lairg, The Lord Chancellor Reporting the Courts: The Media's Rights and Responsibilities 4th RTE/UCD Lecture University College of Dublin 14 April 1999.
[176] Rule 39.2 of the new Civil Procedure Rules in England and Wales.
[177] Glidewell LJ in Kaye v Robertson [1991] FSR 62: "There is no law of privacy, as such, in England and Wales." However, the results of a Guardian/ICM opinion poll in The Guardian on 12/11 97 revealed that almost 90% of respondents were in favour of a privacy law. Fiddick J The Human Rights Bill [HL], Bill 119 of 1997-98: Privacy and the Press Research paper 98/25 Home Affairs Section House of Commons Library 13 February 1998 (hereinafter referred to as "Fiddick").
[178] Mostert at 726, referring to Winfield (1931) 47 LQR 23.
[179] Justice Report Privacy and the Law 1970, Younger Committee Report Cmnd 5012 July 1972 and the Report of the Committee on Privacy and Related Matters Cmnd 1102 (1990) (Calcutt Committee Report). The Lord Chancellor furthermore published a Consultation Paper entitled "Infringement of Privacy", which invited comments on the proposal that the right to privacy should now be recognised as a matter of principle in the English and Scots law. The House of Commons National Heritage Select Committee published a report Privacy and Media Intrusion Fourth Report HC 291-1, 1993 in which the enactment is proposed of a Protection of Privacy Act that would contain civil and criminal remedies for invasion of privacy and that would not only apply to the press.
[180] Burchell at 368.
[181] Fiddick at 30.
[182] The PCC is charged with the enforcement of a Code of Practice that was drafted by the newspaper industry's Code Committee and approved by the PCC in June 1993. The Code of Practice includes inter alia provisions in relation to privacy (clause 4) and certain public interest exceptions (clause 18). Members of the press have a duty to maintain the highest professional and ethical standards in accordance with the Code. A tightening up of the privacy code has resulted in a new code ratified in November 1997.
[183] Although the Convention has been incorporated officially into law only recently, the UK ratified the ECHR in 1951 and has been implementing the Convention in the UK for nearly fifty years.
[184] Both the right to freedom of expression (art 10) and the right to personal privacy (art 8) are set out in the Convention.
[185] Sec 12 of the Human Rights Act put a gloss on the protection of the right to freedom of expression in the Convention.
[186] Samuels A “The Rights of Privacy and Freedom of Expression: The Drafting Challenge” 1999 Statute Law Review, Vol 20 66 at 71.
[187] Description of position in United Kingdom as set out in McCall at 37-42.
[188] See also in general the Contempt of Court Act, 1981, the Defamation Act, 1996, the Protection from Harassment Act, 1997 and the Broadcasting Act, 1996.
[189] Rule 39.2 of the Civil Procedure Rules provides as follows:
(1) The general rule is that a hearing is to be in public....
(3) A hearing, or any part of it, may be in private if -
...............
c. it includes confidential information(including information relating to personal financial matters) and publicity would damage confidentiality;
d. a private hearing is necessary to protect the interests of any child or patient;.........
This rule adapts the Scott v Scott exceptions referring to wards and lunatics.
[190] The position in England about publication and permission to publish as interpreted by the courts is complex. In Re Z (a Minor) (Freedom of Publication) [1996] 1 FLR 191 Ward J set out the principles involved. These relate to what are referred to in England as public law proceedings.
(a) In the first place there are areas in which the court's inherent jurisdiction is invoked which fall outside the prohibition of publication because the material to be published is not directed to the manner of the child's upbringing. Where this is the case freedom of publication may well override the welfare of the child. The child may be harmed and his or her self-esteem may be damaged but as Ward L J said, all that has to be accepted as "part of the slings and arrows of misfortunes of life". In such cases freedom of press is so fundamental that it must triumph over welfare.
(b) Secondly, the child's welfare is the court's paramount consideration when the court is dealing with a question relating to the upbringing of a child (see Sec l (1) Children's Act 1989).
What is meant by questions relating to upbringing of the child is not always easy to determine. As Ward L J pointed out:
[I]t is not being determined when the welfare of the child is being weighed in the scales in determining whether or not to make an 'ouster order' under the Matrimonial Homes Act l983 (Richards v Richards [19841 AC 174, [19841 FRIL 11); or when blood testing is in issue (S v McC ); or when seeking leave to apply for an order under sec 8 of the Children Act. Re A (Minors) (Residence orders: Leave to apply) [1992 1 Fam 182, sub nom Re A and W (Minors) (Residence Order. Leave to Apply) [1992 1 FRIL 154).
In the Re W category of case on publicity it is now firmly established, as Neill L J stated in his fourth guide-line, that ' in this situation the welfare of the child is not the paramount consideration'.
[191] With respect to proceedings relating to children under the Children Act, unless the court otherwise directs, the hearing is to be in Chambers. (See Family Proceedings Rules 1991 r.4.16 (7).) Proceedings in respect of children (other than under the Children Act) and proceedings for ancillary relief are heard in Chambers (See Family Proceedings Rules 1991 r.2.33 and 2.66).
[192] Sec 1 (b) of the Judicial Proceedings (Regulation of Reports )Act, 1926 deals with judicial proceedings for divorce, nullity, separation, or restitution of conjugal rights. According to this Act it is not lawful to print or publish any particulars relating to the case except for the following:
(i) the names, addresses and occupation of the parties and witnesses;
(ii) a concise statement of the charges, defences and counter-charges in support of which evidence has been given;
(iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court hereon;
(iv) summing up of the judge and the findings of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment.
The English provision originated from the recommendations of a Royal Commission on Divorce and Matrimonial Causes set up to consider concerns that had arisen out of extensive and sensational press coverage of divorce trials. This was followed by a report by a Select Committee on Matrimonial Causes in 1923 which adapted the provisions set out in Scott v Scott above.
[193] See Family Proceedings Rules 1996 p.1305.
[194] See generally Nicholls M "In Practice: Publicity and Children’s Cases" 1993 Fam Law 108 (hereinafter referred to as "Nicholls").
[195] The Administration of Justice Act, 1960 provides for the consequences of the court sitting in private. Sec 12 of the Act states that the publication of information relating to proceedings before any court sitting in private is not of itself a contempt, except in the following cases:
(a) where the proceedings-
(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii) are brought under the Children Act, 1989; or
(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor.
The English courts have construed the section as giving to the court a discretion to give leave in proper cases to publish information relating to wardship and adoption proceedings heard in private.
[196] Proceedings under the Children Act brought in the magistrates' courts are subject to a ban on publicity pursuant to Sec 97(2). By that section, it is an offence for a person to publish material likely to identify a child involved in any such proceedings or the address or school of such a child.
[197] Lord Irvine speech, see 39 n 178 above.
[198] X v UK No. 7366/76 2 Digest 452(1977) as referred to in The Lord Chancellor's speech above.
[199] See Wall at 137. See also Hoyal J "Secrecy in Children Cases" 1996 Fam Law 286.
[200] [1977] 1 FLR 235 at 247.
[201] Nicholls at 108.
[202] Re X (A Minor)[1975]Fam 47. Re C (A Minor) (No2) (Wardship: Publication of Information) [1990] 1 FLR 263. Re M and N (Wards) (Publication of Information ) [1990] 1 FLR 149.
[203] Nicholls at 108.
[204] Position in New Zealand as set out in McCall at 43.
[205] Sec 169 of the Family Proceedings Act, 1980 provides as follows:
169. Restriction of publication of reports of proceedings
(1) Subject to subsection (2) of this section, no person shall publish any report of proceedings under this Act (other than criminal proceedings or proceedings under section 130 of the Act) except with the leave of the court which heard the proceedings.
(2) Notwithstanding subsection (1) of this section, any person may, unless the court otherwise orders, publish, in relation to proceedings under Part IV of this Act, the following particulars:
(a) The names and addresses of the parties;
(b) The name of the presiding Judge;
(c) The order made by the court.
(3) Every person who contravenes subsection (1) of this section commits an offence against this Act and is liable on summary conviction-
(a) In the case of an individual, to imprisonment for a term not exceeding 3 months or to a fine not exceeding $500;
(b) In the case of a body corporate, to a fine not exceeding $2,500.
(4) Nothing in this section shall be construed to limit-
(a) The provisions of any other enactment relating to the prohibition or regulation of the publication of reports or particulars relating to judicial proceedings; or
(b) The power of any court to punish any contempt of court.
(5) Nothing in this section shall apply to the publication of any report in any publication that-
(a) Is of a bona fide professional or technical nature; and
(b) Is intended for circulation among members of the legal or medical professions, officers of the Public Service, psychologists, advisers in the sphere of marriage counseling, or social welfare workers.
[206] Sec 27A.
[207] This principle was confirmed in the 1937 Victoria Park Racing case as referred to in Armstrong M, Lindsay D & Watterson R Media Law in Australia 3rd ed Oxford University Press Melbourne 1995 at 203.
[208] Family Law Act 53 of 1975.
[209] Sec 121 of the Family Law Act 53 of 1975 provides :
121. Restriction on publication of court proceedings
(1) A person who publishes in a newspaper or periodical publication or by radio broadcast or television, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(2) A person who, except as permitted by the Rules of Court, publishes in a newspaper or periodical publication or by radio broadcast or television, or otherwise disseminates to the public or to a section of the public by any means (otherwise that by display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(3) Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:
(a) it contains any particulars of:
(i) the name, title, pseudonym or alias of the person;
(ii) the address of any premises at which the person resides or works, or the locality in which any such premises are situated;
(iii) the physical description or the style of dress of the person;
(iv) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(v) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(vii) any real or personal property in which the person has an interest or with which the person is otherwise associated;
being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated as the case requires.
(b) in the case of a broadcast or televised account - it is accompanied by a picture of the person; or
(c) in the case of a broadcast or televised account - it is spoken in whole or in part by the person and the person's voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.
(5) An offence against this section is an indictable offence.
[210] Lagan B reported in a newspaper article "Court to name parents who refuse to pay" The Sydney Morning Herald 19 March 1999 that the Federal Government decided in March 1999 to relax the strict ban on public identification of people involved in Family Court hearings so that the court will be able to allow, in cases it chooses, the publication of names of a non-custodial parent who abducts children, a custodial parent who refuses to allow contact with the other parent, or a parent who fails to pay child support.
[211] Section 9 of Act 53 of 1957 provides as follows:
(9) The preceding provisions of this section do not apply to or in relation to:
(a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings;
(b) the communication of any pleading, transcript of evidence or other document to:
(i) a body that is responsible for disciplining members of the legal profession in a State or Territory; or
(ii) persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory;
(c) the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case;
(d) the publishing of a notice or report in pursuance of the direction of the court;
(e) the publication of any publication bona fide intended primarily for use by the members of any profession, being:
(i) a separate volume or part of a series of law reports; or
(ii) any other publication of a technical character; or
(f) the publication or other dissemination of an account of proceedings or of any part of proceedings:
(i) to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or
(ii) to a person who is a student, in connection with the studies of that person.
[212] In an e-mail to the Commission dated 10/11/99, Peter Quinton refers the Commission to the fact that in the early days of the Internet a particular issue arose when the pre-eminent Australian legal Internet publisher "AustLII" put up all of the accumulated family law reports in a searchable database, thereby giving ordinary people and journalists unexpected access to a large amount of sensitive and private detail (although such information had been gathering dust in legal libraries for years). After consideration, the Commonwealth Attorney-General confirmed the AustLII practice.
[213] McCall 43.
[214] Lagan B "Court to name parents who refuse to pay" The Sydney Morning Herald 19 March 1999.
[215] Blackman L, Legal Policy Officer at the Australian Law Reform Commission, in a letter to the Commission dated 15 November 1999.
[216] Secs 30 and 31 of Part 5 of the Judicature Act, 1980 on 'Reports on Judicial Proceedings' provide as follows:
30. (1) No person shall within Alberta print or publish or cause or procure to be printed or published in relation to a judicial proceeding in a court of civil jurisdiction in Alberta for dissolution of marriage or nullity of marriage or for judicial separation or for restitution of conjugal rights or in relation to a marriage or an order, judgment or decree in respect of a marriage, any matter or detail the publication of which is prohibited by this section or any other particulars except -
(a) the names, addresses and occupations of the parties and witnesses,
(b) a concise statement of the charges, defences and counter- charges in support of which evidence has been given,
(c) submissions on a point of law arising in the course of the proceedings and the decision of the court thereon, and
(d) the summing up of the judge and the finding of the jury, if any, and the judgment of the court and observations made by the judge in giving judgment.
(2) No person shall, before the trial of any proceedings had in a court of civil jurisdiction in Alberta or, if there is no trial, before the determination of the proceedings within Alberta, print or publish or cause to be printed or published anything contained in a statement of claim, statement of defence or other pleading, examination for discovery or in an affidavit or other document other than -
(a) the names and addresses of the parties and their solicitors, and
(b) a concise statement of the nature of the claim or of the defence, as the case may be, in general words such as, "the claim is for the price of goods sold and delivered", or "the claim is for damages for personal injuries caused by the negligent operation of an automobile", or as the case may be.
(3) Nothing in this section applies -
(a) to the printing of a pleading, transcript of evidence or other document for use in connection with judicial proceedings,
(b) to the communication of a pleading, transcript of evidence or other document for use in connection with a judicial proceeding to persons concerned in the proceedings,
(c) to the printing or publishing of a notice or report pursuant to an order or direction given by a court competent to so order or direct, or
(d) to the printing or publishing of a matter-
(i) in a separate volume or part of a bona fide series of law reports that does not form part of another publication and that consists solely of reports of proceedings in courts of law, or
(ii) in a publication of a technical character bona fide intended for circulation among members of the legal or medical professions.
31. (1) A person who contravenes section 30 is guilty of an offence and, in respect of each offence, liable
(2) When the offence consists in the printing and publication of a matter, detail or thing in a newspaper, circular or other publication printed and published in Alberta, the proprietor of the newspaper, the editor of the newspaper and the publisher are each guilty of the offence.
(3) When the offence consists of the publication in Alberta of a matter or thing contained in a newspaper, circular or other publication that is printed outside Alberta and that continually or repeatedly publishes writings or articles that are obscene, immoral or otherwise injurious to public morals, every person within Alberta is guilty of an offence who-
(a) receives that newspaper, circular or other publication, and
(b) is engaged in the public distribution of it or does an act or thing for the purpose of the public distribution of it.
(4) In a prosecution with respect to an offence under subsection (3), the fact that the accused was in possession of more than 6 copies of a newspaper, circular or other publication referred to in subsection (3) is prima facie proof that the accused was engaged in the public distribution of it.
(5) No prosecution for an offence under subsection (3) may be commenced by any person without the consent of the Attorney-General.
[217] The provisions of secs 30 and 31 were first introduced in Statutes of Alberta (S.A.) in 1935 in Chapter 22 as "An Act to Regulate the Publication of Reports of Judicial Proceedings in Civil Matters in the Province". The provisions were re-enacted when the Alberta Statutes were consolidated in 1942. When the Alberta Statutes were again revised in 1980, the provisions that had previously constituted "The Reports of Judicial Proceedings Act" were moved to Part 5 (consisting of secs 30 and 31) of the Judicature Act.
[218] Supra at 577.
[219] All seven judges agreed that sec 30(2) was unconstitutional.
[220] Sec 2(b) of the Canadian Charter of Rights and Freedoms set out as Part 1 of the Constitution Act, 1982 provides:
Fundamental freedoms
2. Everyone has the following fundamental freedoms:
.....
(b) freedom of thought, belief, opinion and expression, including the freedom of the press and other media of communication; .......
[221] Sec 1 of the Canadian Charter of Rights and Freedoms set out as Part 1 of the Constitution Act, 1982 provides:
Rights and freedom in Canada
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
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