Prior to the commencement of the highly publicised defamation trial commenced by Bruce Lehrmann against Network Ten Pty Ltd (Network Ten) and Lisa Wilkinson, the Court had formed the view that the matter was of sufficient public importance to warrant a livestream of the hearing.

On the first day of the hearing, Network Ten raised objections to the hearing being livestreamed to the public, and proposed an alternative proposal which granted access to the livestream upon making an application to the Court. The Court rejected Network Ten’s objections and proposal for the reasons set out below, and re-affirmed that livestreaming of proceedings of public importance facilitates open justice in the modern Court room: see Lehrmann v Network Ten Pty Limited (Livestream) [2023] FCA 1452 (NSD 103 of 2023) (Livestream Judgment).

Background: open justice in Australian courts

The principle of open justice is of critical importance to the Australian justice system. Open justice demands that the public have access to the evidence adduced in Court proceedings, and that hearings be conducted in a transparent manner, to allow for scrutiny by the public. The conduct of Court proceedings in public is a central quality of all Australian Courts, and Courts do not have the power to exclude the public, save for exceptional circumstances (requiring proof).

This backdrop is relevant to a recent ex tempore decision of the Federal Court of Australia in the defamation proceedings commenced by Bruce Lehrmann against Network Ten and Lisa Wilkinson.

Prior to the commencement of the trial to be heard before Justice Lee, the Court determined that the hearing of the matter was “of sufficient public importance to warrant a livestream”.

Network Ten’s objection to livestreaming the proceedings

On the first day of the hearing, Network Ten, the first respondent in the proceedings, objected to the livestreaming of the proceedings, and proposed an alternative regime whereby journalists, instructing solicitors and other interested persons would only be granted access to the livestream upon making an application to the Court and providing an undertaking not to disseminate or record the proceedings.

Network Ten raised four arguments in opposing the livestreaming of the hearing:

• Firstly, the significant public attention on the matter has been “intrusive, offensive and … distressing” to its participants, and when members of the public “inevitabl[y]” breach the Court’s restrictions on recording and creating screenshots of the livestream, this would have an adverse effect on the participants’ personal safety and wellbeing: Livestream Judgment at [14].
• Secondly, the trial concerns allegations of sexual assault, which is highly relevant since criminal trials involving prescribed sexual offences routinely take evidence of a complainant in camera (i.e., in chambers or in private): see, for example, Criminal Procedure Act 1986 (NSW) s 291(1). The suggestion was that since allegations of a criminal nature would be made in the proceedings, a similar approach should be adopted: Livestream Judgment at [15].
• Thirdly, the “uncontrolled” livestream could prejudice Mr Lehrmann’s right to a fair trial in any future criminal proceedings (noting that Mr Lehrmann has been charged with two sexual offences in relation to separate events in Toowoomba, Queensland): Livestream Judgment at [16].
• Fourthly, absent any livestream, the public would still be properly informed of developments given the trial is likely to be widely reported by journalists and the media: Livestream Judgment at [17].

The Court rejected each of Network Ten’s arguments. In respect of each of the four arguments described above, the Court determined as follows:

1. His Honour considered that Network Ten’s argument that the public would inevitably breach restrictions on the use of the livestream assumes the worst of the public, whereas the Court should, at least initially, operate on the assumption that the public will obey the law in relation to recording and/or disseminating the livestream footage. The law is otherwise amply equipped to respond to any breaches, should that be necessary. For example, the law of contempt is available to deal with any breaches, and protection is afforded to witnesses both prior to, during and after giving evidence.
2. Although practices in criminal trials referred to by Network Ten may not be irrelevant, this matter concerns a civil trial, and the need for transparency should be the primary consideration. However, the Court may reconsider the issue for specific aspects of the evidence upon application by the parties.
3. In relation to the argument that livestreaming may impact the fairness of Mr Lehrmann’s criminal proceedings, there had been no suggestion by prosecuting authorities that livestreaming the trial may interfere with any criminal proceedings in Queensland, Mr Lehrmann’s express preference is for the hearing to be livestreamed, and Mr Lehrmann had previously given evidence via livestream in the proceedings. As such, this was not considered a reason not to livestream the hearing.
4. The public interest in facilitating a fair and accurate report of proceedings in Court is not to be enjoyed by journalists to the exclusion of the public.

The Court refused Network Ten’s proposal, and determined that the appropriate livestreaming of proceedings of public importance facilitates open justice in the modern Court room.

Impact of the decision: ‘Justice should not only be done, but should be livestreamed to be done’

The public interest in open justice informs central aspects of common law procedure in Australian Courts and is enshrined in numerous substantive rules: Livestream Judgment at [5]. The Court’s decision re-affirms the importance of open justice, and makes clear that Courts have and will continue to place significant importance on ensuring open justice in the conduct of all proceedings. This includes practices such as maintaining online Court files and livestreaming proceedings perceived to be of public interest. Orders such as to close the Court, or providing for non-publication and suppression of evidence will only be made in exceptional circumstances.

Livestreaming has become a regular practice of the Federal Court of Australia, particularly since the Covid-19 pandemic. The Court’s decision makes clear that livestreaming will continue to be utilised by Courts as an important mechanism of open justice.

Importantly, however, the decision also makes clear that there are exceptions. The default position of ‘open access’ to justice is subject to it being proven “necessary to take a different course”: Livestream Judgment at [25]. In such exceptional circumstances, should they arise, the Court is able to make suppression or non-publication order, and/or to close the Court. Exceptional circumstances include, for example, to protect complainants from publicity in sexual offence proceedings, to protect children in criminal proceedings, to prevent terrorism, and to ensure witness protection, amongst other concerns. However, Federal and State Parliaments have enacted various pieces of legislation which require Courts to consider one of the primary objectives of the administration of justice, being “to safeguard the public interest in open justice”, when deciding whether to make such suppression or non-publication orders: see, for example, Federal Court of Australia Act 1976 (Cth) s 37AE; Family Law Act 1975 (Cth) s 102PD, Court Suppression and Non-Publications Orders Act 2010 (NSW) s 6; Open Courts Act 2013 (VIC) s 4; Evidence Act 1929 (SA) s 69A(2).