Open Justice in Question: NSW Court of Appeal Refuses Media Access to Records in Freund v Attorney General of NSW
Updated: 1 minute ago
Published 14 November 2026
Judicial Accountability | Open Justice | Procedural Fairness | Rule of Law | NSW Courts
An extensive and highly critical report published today, 14 November 2026, by Janet Albrechtsen in The Australian raises serious questions about open justice, the NSW Court of Appeal, the Judicial Commission, Attorney-General Michael Daley and institutional accountability in the administration of justice.
Of particular concern is the reported refusal by two NSW Court of Appeal judges to grant media access to court records in Freund v Attorney General of New South Wales [2026] NSWCA 232, following the Court's judgment delivered on 30 October 2026.
According to The Australian, Justice Mark Leeming declined its initial request for access to court transcripts and tendered evidence. A subsequent request was also declined by Justice Anthony Payne.
Both judges were members of the three-judge Court of Appeal bench that determined the Freund proceedings. The newspaper reports that no suppression order prevented access to the requested materials.
When journalists seeking to report on matters of significant public interest are refused access to records from proceedings conducted in open court, fundamental questions arise about transparency, public scrutiny and the practical meaning of open justice.
Read the full article in The Australian:
Janet Albrechtsen, “Treatment of Local Court judge by Judicial Commission reeks of elite legal club protecting its own” (14 November 2026).
Key Takeaways
Media access to court records refused
The report questions the refusal of access to transcripts and tendered evidence from proceedings conducted in open court, despite no reported suppression order. Justice Payne's explanation, conveyed through the court's media manager, was that the documents already released were sufficient to understand the case.
Apprehended bias and procedural fairness
The Court of Appeal set aside the Judicial Commission's August 2026 referral decision on the ground of apprehended bias, following revelations concerning communications involving Chief Judge Michael Allen and Commission members.
Judicial Commission processes under scrutiny
Albrechtsen questions the Commission's handling of complaints, disclosure of communications, decision-making processes and the adequacy of institutional safeguards.
Attorney-General Michael Daley's involvement
Albrechtsen questions Daley's role in escalating the Freund matter by referring a complaint to the Judicial Commission, which subsequently referred it to its Conduct Division. The article also discusses his reported referral of Judge Penelope Wass to the Commission amid the separate controversy involving NSW DPP Sally Dowling SC.
Judicial Commission's independence and structure
Albrechtsen questions whether serving heads of jurisdiction should participate in determining complaints involving judicial officers within their own courts, and whether a Commission comprising retired judges would provide stronger safeguards for independence and impartiality.
What Happens Next?
The Court of Appeal proceedings have concluded, with the first challenge dismissed by consent and the second resulting in the Judicial Commission's referral decision being set aside for apprehended bias.
However, the concerns raised by The Australian regarding the refusal of media access to court transcripts and tendered evidence from those concluded proceedings raise further questions about open justice, transparency and the ability of the media and public to meaningfully understand and scrutinise the case, the judicial process, the Court's reasoning and the outcome reached.
Importantly, although the Judicial Commission's referral decision has been set aside, Attorney-General Michael Daley's underlying complaint has not been dismissed. The matter has been remitted to the Judicial Commission for reconsideration according to law.
Given the seriousness of the allegations concerning Deputy Chief Judge Sharon Freund, which remain allegations rather than established findings, the question now is how the Judicial Commission will reconsider the complaint and what outcome will follow.
The matter remains one of significant public interest. The integrity of the process, procedural fairness to all concerned and transparency concerning the eventual outcome will be essential to public confidence in judicial accountability.
The next chapter warrants close public scrutiny.
Reflections
The issues raised extend beyond any individual judicial officer. They concern the integrity, transparency and accountability of institutions entrusted with administering justice.
The reported refusals also highlight a broader concern: the considerable authority courts exercise over access to judicial records, even where proceedings have been conducted in open court.
It was also notable during the Freund proceedings that references to the underlying allegations, adverse assessments and matters forming part of the chronology were made cautiously and largely at a general level, often by reference to documents, without the particulars being openly articulated. Consequently, members of the public observing the hearing may not have gained a complete understanding of the underlying matters. Those particulars were largely absent from the published judgment.
These observations, together with the latest reporting concerning access to court records, raise a fundamental question: What does open justice mean when proceedings are conducted publicly, yet the underlying matters remain difficult for the public to fully understand or scrutinise?
Open justice, judicial record integrity, procedural fairness and institutional accountability are fundamental to the rule of law.
The rule of law must apply equally, regardless of position, status or institutional authority.
Related Articles
For further discussion of open justice, judicial record integrity and the Freund proceedings, see my earlier publications:
Disclaimer: This article is published for information, education and commentary. It reflects independent observations and analysis of matters of public interest. References to third-party reporting, allegations and opinions are attributed to their respective sources and should not be construed as established findings of fact unless expressly identified as such. Nothing in this article constitutes legal advice.
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