Evidence from the Archive: Implementing the Court Information Act in NSW

Sydney Law Review (2011) 33: 575-598.

25 Pages Posted: 9 Jul 2013

See all articles by Katherine Biber

Katherine Biber

University of Technology Sydney, Faculty of Law

Date Written: February 29, 2012

Abstract

The Court Information Act 2010 (NSW) attempts to achieve transparency and accountability under the framework of an ‘open justice’ system. The Act aims to make court information more accessible to members of the public and media organisations, and to achieve this consistently across all of the NSW jurisdictions. In effect, the Act opens the judicial archive, making court records accessible to the public. By making this material accessible, the legislation has the potential to put evidence into a fresh context, after the facts have been resolved in litigation. This article considers several examples from Australia and abroad in which evidence from legal proceedings was put to unexpected uses — either by artists, curators or scholars — giving rise to ethical challenges to how we think about evidence after the conclusion of legal proceedings. Re-contextualising evidence carries with it the risk of harm, humiliation, and the exposure of sensitive and secret material. This article will argue that the Act cannot address the dangers of misuse of evidence without adopting an archival sensibility. It sets out some of the theories and practices adopted by archivists that could guide us before we open the evidentiary archive.

Keywords: evidence, archive, visual culture, open justice

Suggested Citation

Biber, Katherine, Evidence from the Archive: Implementing the Court Information Act in NSW (February 29, 2012). Sydney Law Review (2011) 33: 575-598., Available at SSRN: https://ssrn.com/abstract=2013616

Katherine Biber (Contact Author)

University of Technology Sydney, Faculty of Law ( email )

Sydney
Australia

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