Federal Court of Australia

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Media access to Court documents

This memorandum sets out how a media representative (being a journalist or a person acting on behalf of a media organisation) may obtain access to one or more documents in a proceeding in the Federal Court.

1. Access to a document in a proceeding in the Federal Court is determined in accordance with Order 46 rule 6 of the Federal Court Rules.

2. A media representative may search in a Registry for, and inspect and copy, any of the following documents unless the Court or a Judge has ordered that the document is confidential:

• an application or other originating process;
• a notice of appearance;
• a pleading or particulars of a pleading;
• a notice of motion or other application;
• a written submission;
• a judgment;
• an order;
• a notice of appeal;
• a notice of discontinuance;
• a notice of change of solicitors;
• a notice of ceasing to act;
• in a proceeding to which Order 78 applies:
  • an affidavit accompanying an application, or an amended application, under section 61 of the Native Title Act 1993;
  • an extract from the Register of Native Title Claims received by the Court from the Native Title Registrar.

3. A media representative may only inspect and copy any of the following documents with the leave of the Court or a Judge:

• an affidavit (other than an affidavit accompanying an application, or an amended application, under section 61 of the Native Title Act 1993);
• an unsworn statement of evidence filed in accordance with a direction given by the Court or a Judge;
• interrogatories or answers to interrogatories;
• a list of documents given on discovery;
• an admission;
• evidence taken on deposition;
• a subpoena or document lodged with the Registrar in answer to a subpoena for production of a document;
• a judgment, order, or other document that the Court has ordered is confidential; or
• a document filed in the proceeding to support an application for an order that a document, evidence or thing be privileged from production.

4. A media representative must not inspect any document in the proceeding that is not referred to in paragraphs 2 or 3 above except with the leave of the Court or a Judge, or with the permission of the Registrar.

5. Where leave is necessary in order to inspect and copy a document, a media representative may seek such leave by completing the attached application form. Copies of the form are available from each District Registry and below.

6. The application form asks for the name and contact details of the media representative making the request, and for information about the document or documents the representative wishes to inspect and copy. The form includes an agreement by the media representative that

(a) the document or documents will not be provided until any fees prescribed by the Federal Court of Australia Regulations have been paid; and

(b) the document or documents will only be used for the purpose of reporting on the proceeding; and

(c) no part of the document or documents will be copied or made available to any other person except for that purpose; and

(d) any additional conditions specified by the presiding Judge will be complied with.

7. The application form must be sent to the associate of the presiding Judge.

8. Upon receiving the application, the Judge may

(a) approve the request, either in whole or in part, and subject to any additional conditions the Judge considers appropriate; or

(b) ask the representative to send a copy of the application form to the parties to the proceeding with an invitation to them to comment on the request; or

(c) refuse the request.

9. As a general approach, leave to access a document referred to in paragraph 3 or 4 above, including an exhibit, will be granted where the document has (or the relevant parts of the document have) been admitted into evidence or read out in open court. However, there may be cases where leave to access a document may be refused on the basis that

(a) only parts of the document have been admitted into evidence or read in open court; and

(b) it would be unduly burdensome for Court staff to provide a redacted version of the document showing only those parts that are in evidence or have been read out.

10. Once the Judge’s decision is made, a copy of the form signed by the Judge will be returned to the media representative. The original form will be kept by the Court. The Judge’s decision to refuse or approve the request, and any additional conditions, will be set out in the spaces provided on the application form.

11. If approval is given, the representative must

(a) arrange with the relevant Registry to inspect and copy the document or documents to which the approval applies; and

(b) pay to the Registry any fees prescribed by the Federal Court of Australia Regulations.

12. If the request is not approved, the media representative may make an application to the Court for an order under Order 46 subrules 6(3), (4) or (5) of the Federal Court Rules (depending on the document or documents the subject of the request).

Media request form for access to documents

Copies of the form are also available from each District Registry.

February 2005