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To Open Courts or Close Courts?

Each intern who attends court during their internship with me, takes away something different from the experience.

Some, like Aishwarya B. Verma, better understand the challenges of self-represented litigants. Others, like Will Rice, gain greater confidence with court procedures.

Still others, who conclude that court work is not their cup of tea, vow never to become litigators (but never say never!).

In her Intern Research Project titled "To Open Courts or Close Courts?", Zara Jays focuses on the rawness of the court process and how people's private lives are laid bare for everyone to see.

Here is part of what she wrote after watching her first court case in the Family Court:

"The defendant, a father, stepped into the witness box and the plaintiff’s advocate began to cross-examine him. She delved into his criminal history, illicit substance use and even home life on a mundane Wednesday morning where he and the mother, the plaintiff, were arguing about the messiness of their house over pancakes.

Sitting in the third row back, I felt like an intruder, ogling at this seemingly average Australian family’s life. I also felt self-conscious about evoking wariness and discomfort in the defendant as he was already partaking in one of the most stressful situations: sitting in a witness box.

The litigation process is a traumatic experience as the lawyers gain complete control and agency as the parties become tools to prove the other side’s case. It is a truly unedifying experience.

While sitting there, the experience prompted me to consider and ponder the rationale behind opening Australian courts to the public and what benefits and harms arise.

In its 1913 decision in Scott v Scott, the House of Lords identified the right of public access to the courts as “one of principle ... turning, not on convenience, but on necessity.” ...

I believe that the Courts’ openness to individuals and bearing witness to court proceedings is a form of ‘civic duty’ as the public acts as regulators and protectors of the ‘Rule of Law.’

However, my uneasiness in hearing the intimate and sensitive details of this family’s life is perhaps the harm arising from the open court principle: usurping the parties’ privacy.

Ultimately, the broader implications are that the court can delve into the private lives of individuals and we must ask ourselves, Where does the line lie? Is open court just a spectacle for nosy Australians like our fascination for salacious celebrity gossip?

Alternatively, does it serve a genuine, rational and reasonable purpose in promoting values that underlie Australia’s commitment to upholding the ‘Rule of Law’?"

Dr. Peter Macmillan and Bianka Duzelovski are Directors of the Peter Macmillan & Associates Internship Program, one of the largest internship programs for law students and graduate lawyers in Australia. Peter is also Founder of the The Macmillan School of Practising Lawyers.

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