Court Records As Archives: The Need for Law Reform to Ensure Access

In Ron Levy, Molly O’Brien, Simon Rice, Pauline Ridge and Margaret Thornton (eds), New Directions for Law in Australia: Essays in Contemporary Law Reform (ANU Press, Canberra, 2017)

10 Pages Posted: 22 Dec 2019

See all articles by Andrew Henderson

Andrew Henderson

Australian National University, College of Law; University of Canberra - School of Law and Justice

Kim Rubenstein

ANU College of Law

Date Written: September 22, 2017

Abstract

The Federal Court of Australia performs a fundamentally important role within Australia’s democratic system. It has served as a site for the disputation, negotiation and resolution of issues fundamentally important to Australian society. It does so in the context of a constitutional system affirming the principle of separation of powers and the rule of law, as a means of preserving and enforcing the rights of individuals and navigating the boundaries of the powers of the state. In that context, its records, gathered both through the internal workings of the court and through the cases that come before it, contain a narrative shaping our contemporary understanding of the rights of the individual and the role of the state. Despite the importance of its records in that narrative, the preservation and access to the Federal Court’s records continues to be seen through the lens of traditional understandings of the management of litigation. This paper explores the Federal Court’s role within the broader context of constructing our understanding of the roles and responsibilities of citizenship and illustrates the importance of the Court’s records as an archival resource. In doing so, it highlights the parallels and inconsistencies between traditional archival institutions and the Court in relation to selection, preservation and access to records.

Keywords: courts, records, archive, court records, public law, public access, rights, human rights

JEL Classification: K39, K41, K49

Suggested Citation

Henderson, Andrew and Rubenstein, Kim, Court Records As Archives: The Need for Law Reform to Ensure Access (September 22, 2017). In Ron Levy, Molly O’Brien, Simon Rice, Pauline Ridge and Margaret Thornton (eds), New Directions for Law in Australia: Essays in Contemporary Law Reform (ANU Press, Canberra, 2017), Available at SSRN: https://ssrn.com/abstract=3043024

Andrew Henderson (Contact Author)

Australian National University, College of Law ( email )

Canberra, Australian Capital Territory 0200
Australia

University of Canberra - School of Law and Justice ( email )

Australia

Kim Rubenstein

ANU College of Law ( email )

Canberra, Australian Capital Territory 0200
Australia

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