While that famous case and the oft-cited aphorism it gave rise to may have been directed primarily at judicial bias, a hot topic of late, its sentiment is equally applicable to another immutable legal principle: open justice. This concept, broadly that court proceedings must be publicly accessible, represents a cornerstone of the Australian legal system. As former NSW chief justice James Spigelman observed, comparing the principle to water and electricity: "No one thinks about it. We take it for granted."

There are, though, legitimate exceptions to the dictates of open justice. National security, confidential information and cases involving children can all justify exceptions to this judicial norm, with the likes of closed hearings, suppression orders and party de-identification permitted by both common law and statute.

Yet these exceptions are narrowly drawn. As the Federal Court of Australia Act points out, in considering such an application "the court must take into account that a primary objective ... is to safeguard the public interest in open justice". The doors of justice are not closed lightly.

It was therefore surprising to see the Defence Department try just that earlier this year, while resisting an application lodged in the Fair Work Commission's relatively new anti-bullying jurisdiction. In May, the department sought a de-identification order, trying to ban publication of the respondents' names (the department and four public servants). It argued that publication "puts the individual respondents to this application at risk of harm" due in part to "the significant potential for the matter to be reported in the media".

Although the commission has statutory power to make these orders (and, technically, is a non-judicial tribunal and therefore not so strictly bound by open-justice principles), the common law still stands as a considerable obstacle to such applications. The department also faced a line of precedent, in the commission and elsewhere, suggesting that media embarrassment was not a sufficient justification. As Michael Kirby noted while president of the NSW Court of Appeal: "The consequence of the principle of open justice is that embarrassing, damaging and inconvenient facts may occasionally come to light. That consideration has never been regarded as a reason in itself for the suppression of evidence or for an order restricting access."

Relying on a recent key commission decision, which had cited Kirby's passage with approval, Deputy President John Kovacic refused the Defence Department's request. He noted "it is not sufficient to justify the making of a non-disclosure order merely on the basis that allegations have been made which are embarrassing, distressing or potentially damaging to reputations" and, accordingly, Kovacic was "not satisfied that it is desirable to make the non-disclosure orders sought".

While it is tempting to criticise the department's approach, and indeed one might wonder how such an application can be reconciled with the spirit, if not the letter, of the model litigant guidelines to which the department is beholden, countervailing considerations also exist.

Firstly, government departments have a legitimate interest in protecting the reputation (and mental well-being) of their employees. Where the department is confident that no bullying has taken place, it is not unreasonable that it may seek to prevent the public airing of such allegations and the possible consequent media coverage. Moreover, in this particular case, the applicant herself had requested a suppression order, albeit on somewhat different grounds.

There are reasons to suggest that open justice will become an increasingly contested battlefield across the Australian judicial landscape. The Rinehart family trust saga saw suppression applications aplenty, while the Defence Department's failed attempt at de-identification adds to a growing line of such cases in the anti-bullying jurisdiction. More broadly, a 2013 Sydney Law Review contribution by Jason Bosland and Ashleigh Bagnall found a high (and increasing) rate of suppression orders being granted by Victorian courts, in an empirical study that was met with some alarm.

The position that Commonwealth departments adopt could have considerable legal and normative implications. As model litigants, it would not be outlandish to suggest that the actions of government lawyers may provide a signal to other members of the profession. If Defence's legal team believed in good faith (rightly or wrongly) that their application had reasonable prospects of success, more such de-identifications requests could follow from parties involved in similar litigation.

Ultimately, though, courts are the final bulwark against erosion of the open-justice principle. While several recent judgments have been encouraging, the Australian judiciary must remain astute to encroachment on this fundamental legal value, particularly in the face of seemingly persuasive arguments to the contrary.

In a seminal British case, Lord Shaw of Dunfermline cautioned that the "usurpation" of this right threatened to "shift the foundations of freedom from the rock to the sand". It would be advisable for the Commonwealth to stand firmly behind the dunes in this respect.

John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. john.wilson@bradleyallenlove.com.au