Suppression orders
Suppression orders are 19th century tools incapable of responding to 21st century borderless digital publishing.
The widespread use and misuse of suppression orders by the courts has been a major press freedom issue for many years and has been mentioned in several MEAA annual press freedom reports.[1] But the suppression order surrounding the trials of George Pell has sparked unprecedented discussion.
The Pell trials’ suppression order was issued on Monday, June 25 2018 by the Melbourne County Court Chief Judge Peter Kidd in the matter of Director of Public Prosecutions v George Pell. “The prosecution had applied for the suppression order to prevent ‘a real and substantial risk of prejudice to the proper administration of justice’ because Pell originally was to face a second trial on separate charges.”[2]
It is important to note that no media organisations challenged the suppression order.
Just three days earlier, on Friday June 22 2018, the Victorian Director of Public Prosecutions Kerri Judd QC writing an opinion piece in the Herald Sun said:
As Director of Public Prosecutions, it is my responsibility to ensure that the prosecution of serious criminal offences is fair. I must also ensure prosecutions proceed in a manner that will not put the safety of any person at risk or cause undue distress or embarrassment to children, victims of sexual offences and victims of family violence.
Our justice system is open and transparent. Anyone can walk into our courts and watch justice at work. The media reports extensively on criminal justice hearings and the courts are doing more to communicate the work they do.
Sometimes the unrestricted reporting of a case by the media will compromise the right to a fair trial, lead to national or international security concerns or lead to the inappropriate identification or location of vulnerable members of our society.
In these situations it is my duty to either apply for or support the making of a suppression order.
A suppression order will often prevent the media reporting certain aspects of a prosecution such as the name of a witness or the methodology used by police to detect crime. It will sometimes delay the media reporting on a case so as to ensure a jury hearing a separate future trial does not receive information that could unfairly impact upon their deliberations. However, in almost all of these cases, any suppression order obtained will not put a blanket prohibition on the media reporting the proceeding…
Orders are only made by judges when they are necessary and appropriate, and they only remain in force for a specified period.
Victoria has led the way in maintaining and distributing a database of suppression orders through our courts to all media outlets.
I will continue to apply for suppression orders as they play an important role in the administration of criminal justice. I will continue to balance requirements for open justice, a fair trial, protecting the community from danger, enabling the police to properly investigate and detect crime and the protection of vulnerable victims and witnesses.[3]
On September 20 2018, a five-week trial was declared a mistrial after the jury failed to reach a verdict. A retrial began on November 7 2018 and resulted in a guilty verdict on December 11 2018 — as with the trial, this verdict remained subject to the suppression order and could not be reported.
Breaching the order
However, the verdict result subsequently leaked. The Guardian said: “Some international media outlets — who were unlikely to have been in court — published or broadcast the news. These international outlets included the Daily Beast, the Washington Post and several Catholic websites.”[4]
As a consequence, these news stories could be found within seconds of utilising search engines and were being distributed further and discussed on global social media platforms such as Twitter and Facebook.
The Australian said: “More than 140 international news reports about Cardinal George Pell’s guilty verdict were published within 24 hours of his conviction last December, despite strict suppression orders.”[5]
There was little effort to remove any of these mentions except in a few instances where overseas media outlets came to recognise the legal issue surrounding publication. Some overseas media outlets flouted their breaching of the suppression order with apparent disdain for the reasons why the order had been issued, arguing the public had a right to know information that was in the public interest.
For instance, the Washington Post said this on December 12 2018:
“Cardinal George Pell has been found guilty in Australia of charges related to sexual abuse, according to two people familiar with the case and other media reports, becoming the highest-ranking Vatican official to face such a conviction.”[6]
The following day the Washington Post discussed[7] media organisations that had breached and observed the suppression order, saying that the order “has proved futile against the internet” before explaining its own actions:
An Australian court’s gag order and the forces of the Information Age collided on Thursday in a largely futile effort to keep news about the conviction of a high-ranking Vatican official from reaching readers. While some U.S. and British news organizations, including the New York Times, did not report on the conviction of Australian Cardinal George Pell on the judge’s order, social media and other news outlets defied it.
The Times’ deputy general counsel, David McCraw, said the newspaper is abiding by the court’s order in Australia ‘because of the presence of our bureau there. It is deeply disappointing that we are unable to present this important story to our readers in Australia and elsewhere… Press coverage of judicial proceedings is a fundamental safeguard of justice and fairness. A free society is never well served by a silenced press.’
The Associated Press and Reuters news services — two of the largest news organizations in the world — also did not report the news about Pell. Both services have bureaus in Australia that could face potential liability.
An AP spokeswoman, Lauren Easton, issued a brief statement reading, ‘AP is working to report the story while complying with the gag order.’ She declined further comment.
A Reuters spokeswoman, Heather Carpenter, also issued a statement but declined to comment further. ‘Reuters is a global news organization with nearly 200 locations around the world — including in Australia — and is subject to the laws of the countries in which we operate,’ she said.
The Washington Post reported Pell’s conviction on Wednesday. But its story was removed from Apple News, the news aggregation app owned by Apple Inc. that is available in the United Kingdom, U.S. and Australia.
NPR, the Daily Beast and the National Catholic Reporter, among others, also reported Pell’s conviction.
The suppression order led to bizarrely curtailed reports in the Australian media, but did little to stop the news from emerging on social media.
A story in the Sydney Morning Herald published Wednesday, for example, didn’t refer to the name, position or even gender of the person involved. One… story began, “A very high-profile figure was convicted on Tuesday of a serious crime, but we are unable to report their identity due to a suppression order. The person, whose case has attracted significant media attention, was convicted on the second attempt, after the jury in an earlier trial was unable to reach a verdict. They will be remanded when they return to court in February for sentencing.”
Courts in the Australian state of Victoria — where Pell’s trial took place — issued nearly 1600 suppression orders between 2014 and 2016 after Victoria enacted a law protecting court proceedings in 2013, according to a review of the practice by a retired Australian judge, Frank Vincent. Victoria accounted for about half of all the orders issued in Australia, according to the [Sydney] Morning Herald.
The orders restrict what journalists can report about certain cases, and when they can report it.
But the gag rule has proved futile against the Internet. By Wednesday afternoon, Pell and the charges against him were the subject of thousands of tweets and shared posts on Facebook. The posts included links to websites where the news was available.
‘The social-media age has really made this approach untenable in my view, especially in cases like this where there is genuine international public interest in the verdict and conviction involving a prominent figure in the hierarchy of one of the world’s most powerful institutions,’ said Julie Posetti, an Australian-born journalist and academic who is a senior research fellow at the Reuters Institute for the Study of Journalism in Great Britain.
Since a gag order suppresses professional news reporting but not social-media sharing, it may have the unintended consequence of elevating ‘unverified rumour and gossip’ over actual journalism, she said.
In a statement, Washington Post executive editor Martin Baron said the order would not deter The Post’s reporting. ‘This story is a matter of major news significance involving an individual of global prominence,’ Baron said. ‘A fundamental principle of The Washington Post is to report the news truthfully, which we did. While we always consider guidelines given by courts and governments, we must ultimately use our judgment and exercise our right to publish such consequential news. Freedom of the press in the world will cease to exist if a judge in one country is allowed to bar publication of information anywhere in the world.’
Baron was formerly editor of the Boston Globe and oversaw its coverage of sexual abuse allegations against priests in the Boston archdiocese in 2002. The stories won a Pulitzer Prize and were the basis for the movie Spotlight, which won the Oscar for best picture in 2016.[8]
The New York Times also weighed in on the use of a suppression order in the Pell trials: “The slow-moving case — charges were filed in June — has been a test of both Australia’s justice system and the Vatican’s efforts to hold clerics accountable after decades of abuse scandals. It is occurring in a country where defamation law favours plaintiffs, where criminal law protects defendants more than it does in many other countries, and where a number of legal standards restrict reporters’ ability to publish information related to criminal cases.”[9]
Lawyer Justin Quill, whose law firm Macpherson Kelley acts for News Corporation publications, was reported in The Australian as saying: “The problem is, with this unusual case that attracts such international notoriety, the international media organisations published. That meant individuals in Australia, on Facebook and Twitter and other social media, were talking about it and the only people who were not talking about it were the mainstream media in Australia. This case is the perfect storm to demonstrate the law hasn’t kept up with developments in social media.”[10]
The Australian also reported: “Peter Bartlett, who represents The Age and several international media outlets such as the BBC and CNN, which did not report on the conviction for Australian audiences… said suppression orders had become common in Victoria: “Suppression orders are simply out of control. That said, it’s understandable why the Pell suppression order was made, because clearly reporting of the conviction in the first trial would prejudice the second trial if it went ahead.”[11]
Interestingly, the breaching of the suppression order with news of the guilty verdict provoked at least one significant response. On December 13 — the same day as overseas media was reporting the outcome — the Vatican, now presumably aware of the verdict, announced that Pope Francis had removed Pell from his inner circle of advisers — the Council of Cardinals. “Two other council members — the newly retired archbishop Cardinal Laurent Monsengwo Pasinya of Kinshasa, 79, and Chile’s Francisco Errázuriz Ossa, 85, who has been accused of concealing abuse while archbishop of Santiago — were also removed from the group of nine on the council, which is known as C-9.”[12]
Lawyer Justin Quill commented again on the issue of international reporting of the verdict:
When Pell was found guilty the mainstream media wasn’t permitted to tell the Australian public what had happened, while the international media were openly reporting it on the internet where it could be downloaded by Australians.
Then, private Australian citizens took to social media — Facebook and Twitter in particular — to talk about the case and spread the very news that the mainstream media weren’t allowed to — and didn’t — talk about.
The Herald Sun waited until Tuesday [after the lifting of the suppression order on February 26 2019] to report on this case. International media and some citizens did not.
This is not a criticism of the judge in this case but rather a demonstration that the law has not kept up to date with what technology allows people to do.
The laws of contempt and suppression orders have been around for decades. When the front page of the newspaper was the only real source of news, the law made sense. But we live in a different world and this case demonstrates that.[13]
Contempt
In February 2019, up to 100 individuals and media organisations were sent a letter over breaching the Pell trials’ suppression order. “Victoria’s director of public prosecutions, Kerri Judd QC, has written to as many as 100 individual publishers, editors, broadcasters, reporters and subeditors at the media giants News Corp Australia, Nine Entertainment, the ABC, Crikey and several smaller publications, accusing them of breaching a nationwide suppression order imposed during the case.”[14]
Judd asked some recipients of the letter to reply by 15 February as to why they should not be charged with contempt of court. All the publications which referenced the Pell case, even obliquely, were targeted because there was blanket suppression on any information about the case.
Some of the alleged breaches were considered to be more flagrant than others. As many as 30 people at the Herald Sun and the Age received letters — even those who were not involved or who were not working on the day.
When the judge was made aware of the breaches he told a closed court they were of a serious nature and certain editors faced imprisonment… [see more detail below]”[15]
The outlets which published or broadcast pieces in relation to the trial included the Herald Sun, the Age, Macquarie Media, Nine News in Melbourne, an ABC radio program outside Melbourne and News Corp’s The Australian. Private Media’s Crikey website published a wrap of how the newspapers covered the Pell verdict, with snapshots of the front pages. The small website alone received five letters from the DPP.
The Herald Sun published the most dramatic piece: a black front page with the word CENSORED in large white letters. “The world is reading a very important story that is relevant to Victorians,” the page one editorial said. “The Herald Sun is prevented from publishing details of this very significant news. But trust us, it’s a story you deserve to read.”
Importantly, a key cohort of court-reporting journalists did not receive “please explain” letters from DPP Judd:
A group of eight court reporters who attended both Pell trials every day, who included journalists from Guardian Australia and ABC News, did not breach the suppression order.[16]
Reacting to the Judd letter regarding the breaching of the Pell trials’ suppression order, The Age reported: “In a response to Ms Judd, lawyer Justin Quill, who is representing 53 media clients including those at The Age, writes that the ‘virtually identical’ letters represent a scatter-gun approach and threatening so many journalists without specifics is ‘inappropriate and disturbing’.
“Mr Quill writes that the allegations are wholly without foundation and notes that many of those who received letters had no involvement in the publication of the articles in question, and were greatly distressed. ‘It is difficult to understand your letters as anything other than a concerted and strategic attack on the media, rather than an upholding of the law’.”[17]
The Age later reported: “The day after The Age and other media published their stories, a court hearing was held, without notice to the media, between Judge Kidd, Ms Judd and Pell’s defence lawyer Robert Richter, QC. The transcript was subsequently made available to the media.”[18]
County Court Chief Judge Kidd’s response to the breach of the order was swift. The Guardian said:
When the judge was made aware of the breaches he told a closed court they were of a serious nature and certain editors faced imprisonment.
The local online articles were removed when editors read Kidd’s angry comments in a transcript sent to media outlets. Nine’s The Australian Financial Review, which published Kidd’s angry comments, also received two letters from the DPP.
Kidd told the court the publications had potentially breached the law, brought improper pressure upon the court and had committed a “potentially egregious and flagrant” contempt of court.
“A number of very important people in the media are facing, if found guilty, the prospect of imprisonment and indeed substantial imprisonment, and it may well be that many significant members of the media community are in that potential position,” Kidd said on 13 December.
Rival news organisations have been working together to respond to the charges. Lawyers for Nine’s the Age and News Corp’s the Herald Sun have prepared a joint response to the DPP, a source said.
Addressing Pell’s defence barrister, Robert Richter QC, Kidd said the media were “operating on a misinformed basis that it’s OK to print everything and anything apart from the name of your client”.
Discussing the Herald Sun report, Richter said although Pell’s name was not mentioned, the reference to “a very prominent Australian figure” meant the “connection cannot fail to be made”.
“I am told it was on Wikipedia last night — I haven’t seen that but it was apparently removed this morning — and so it really is a matter for showing cause if there is one,” Richter said.
Kidd said he believed some of the articles were designed to put pressure on the court, a tactic he labelled “breathtaking”.
The Age reported after the suppression order was lifted on Tuesday that its lawyer Justin Quill was representing 53 media clients including those at The Age.
Quill wrote to the DPP saying that the “virtually identical” letters had distressed the staff, represented a scattergun approach and were “inappropriate and disturbing”.
“It is difficult to understand your letters as anything other than a concerted and strategic attack on the media, rather than an upholding of the law,” Quill wrote.
A spokeswoman for Nine Entertainment said Quill was representing all the Nine outlets, News Corp and smaller websites like Mamamia. “Like a large number of media outlets, we received these letters,” she said. “We deny all the allegations made by the DPP.”
The Melbourne broadcaster Jon Faine, who has not been sent a letter, mentioned the suppression order on his ABC program this month without referring to the specifics of the case.
Faine said when suppression orders were “properly used” any breaches must be prosecuted. “This week, a large number — I am told 70 — media outlets and journalists across Australia and some overseas — including sadly one ABC program — have been asked to show cause why they ought not be proceeded against for a clear breach of a suppression order from one of our courts.
“Editors and publishers as well as journalists could well go to jail. This mass prosecution could lead to a test of the powers of the courts in the digital age, to control the flow of information that can interfere with the administration of justice.
“Judge-alone trials — instead of juries — in publicity sensitive matters are part of the answer and must be adopted urgently.”[19]
On March 26 2019, a total of 36 journalists, editors and media organisations were named as having been summoned to appear in the Supreme Court of Victoria on April 15 over alleged breaches of the suppression order. The Director of Public Prosecutions called for “orders for imprisonment”. No overseas media organisations were summoned.[20] There was also no action taken against global search engines or social media platforms over their publication of information in breach of the order.
The Guardian reported on the April 15 hearing: “Prosecutors agreed to a more comprehensive statement of claim, which will be provided to the court by 20 May. The defence was ordered to file its response to that statement by 21 June. The case will next return to the court on 26 June.”[21]
Fixing the suppression problem
It is important that MEAA’s position on the press freedom implications regarding the use of suppression orders is understood.
MEAA accepts the use of non-publication/suppression orders in situations where they are properly formatted and where they are demonstrably required for the administration of justice. However, as MEAA has stated before in recent press freedom reports,[22] the courts have been responsible for misusing suppression orders.
Indeed, the former Victorian Supreme Court judge Frank Vincent’s review of Victoria’s Open Courts Act 2013[23] was scathing in its findings about the use of suppression orders. It found particular fault among the courts themselves, noting their failure to acknowledge and adapt to the impact of technological change — change that in reality makes some suppression orders not fit for purpose.
More attention needs to be given to the education of judges with respect to their obligation not only to comply with the provisions of the Open Courts Act but with its objectives and, of course, to the validity of the foundational propositions upon which orders are regularly made.
In common with other institutions that have been developed over a long period to meet the varying needs of the community, increasingly rapid changes in the social and technological environments within which it must function have presented a wide range of issues for the legal system.
Some of the traditionally-accepted propositions upon which its operating principles and rules have evolved have not withstood the scrutiny and investigative analyses of more recent times. Adaptation of the system to accommodate these new challenges has been slow and patchy. The courts, in particular, can be seen to have experienced difficulty in responding to the substantial changes that are required to address them.
This is evident in the manner in which the issues posed by applications for suppression orders and related areas have been approached. The making of some suppression orders has been based essentially upon a number of traditionally accepted and largely-unquestioned propositions of dubious validity inherited through the common law concept of binding precedent.[24]
The Vincent review examined the data relating to the issuing of suppression orders in Victoria. The review found that the courts were clearly making orders improperly and against the spirit of the principle of open justice intended in the Open Courts Act:
The data collected in the course of the Review revealed that, between the period 1 January 2014 and 31 December 2016, Victorian courts and tribunals made 1594 orders with the effect of suppressing information under various sources of power, with 1279 orders made under the Open Courts Act.
There does not appear to be a significant overall decrease in the number of suppression orders made since the Act’s passage.
In 12% of suppression orders made under the Act, and in clear breach of a basic and simple provision of the Act, there was no ground specified at all, general or specific.
In 22% of suppression orders under the Act, “blanket bans” were imposed that either failed to identify what was to be suppressed or more commonly stated that the order covered the “whole or any part of the proceeding”, although there appears to be at least some justification for this result.
While there was a problem with the duration period for orders it was not as bad as feared. The review found that most appropriately stated their period of duration; only 7 percent of orders were not sufficiently specific as to their date of expiry and “there appears to be no substance to the complaint that orders were too frequently being made for a period of five years”.
The complaint that there was insufficient notice of orders was difficult to establish:
It was not possible to establish the degree to which courts and tribunals met their obligation to give interested parties such as media organisations notice of applications for suppression orders.[25]
The review came down harshly on the courts and judges’ responsibility for the situation:
Viewed as a whole, these levels of both formal and substantive non-compliance are both surprising and unacceptable.
Although the absence of grounds and specific subject matter does not of itself indicate that orders should not have been made or that their terms were inappropriate, they raise doubts, which were reinforced in six consultations conducted with stakeholders and the examination of individual transcripts and audio recordings conducted in the review, as to the level of awareness of a number of members of the judiciary of their statutory responsibilities and their appreciation of the fundamental importance of transparency in our legal processes.[26]
It’s worth remembering two comments made by Victorian judges about the media. In a speech delivered to the Melbourne Club on November 13 2009 (prior to the Open Courts Act), former Victorian Supreme Court Justice Betty King boasted that she was “probably responsible for the majority of suppression orders imposed in Victoria in the last three years”[27] and that for every worthy media report there were equally reports that were “inaccurate, salacious, mischievous, morally indefensible and just plain prurient”.[28]
In October 2015, Victorian Chief Justice Marilyn Warren[29] (who left office in October 2017) wrote about the media’s challenging of suppression orders:
It needs to be remembered that the media has its own interests here: it wants to attract readers, viewers and online participants. Crime sells.
MEAA believes these remarks traduce the media to purely commercial entities while failing to acknowledge the public’s right to know. The narrow view expressed by the former Chief Justice may go some way to explain some of the difficulties the media confronts with the suppression orders issued by Victorian courts.
The Vincent review suggested both the judiciary and the media had played a part in creating the suppression order mess:
There can be little doubt that the approach of the judiciary to the restriction of dissemination of information has been heavily influenced by a justifiable concern about the frequency with which decisions and information concerning cases and individuals involved in them have been inaccurately, selectively and unfairly presented in the media.
The existence of some tension between the judiciary and the media is inevitable as they endeavour to perform their respective roles. No institution or group of human beings is likely to be entirely comfortable when their operations are subjected to external criticism or adverse comment.
However, and providing that it is accurately and fairly presented, exposure of what is happening is essential to ensuring accountability.[30]
As strongly recommended by MEAA in its submission to the review,[31] Vincent said there is a need to open a dialogue between Victoria’s courts and the media to both “clear the air” and develop workable solutions to the problem:
The review has not been concerned with attributing or distributing levels of responsibility for this mutual distrust but with its possible impact upon the operation of our legal system and what is happening in the courts. It is for this reason that the recommendation is made that the Department of Justice and Regulation establish a mechanism to facilitate discussion between the courts, legal practitioners and the media of their differing perspectives and legitimate expectations.[32]
The Pell trials and the subsequent breaching of suppression orders have clearly demonstrated the problems with Australia’s suppression order regime.
MEAA believes suppression orders are 19th century tools responding to the age of the printing press but now are proving incapable of meeting the challenge of containing 21st century borderless digital publishing platforms such as Twitter, Facebook, Instagram et al and internet search engines such as Google, as well as the global access to news via the web sites of myriad overseas media outlets. The means of immediate global news distribution is impossible for a single court in an Australian city to effectively contain using an antiquated and ill-suited method like a judge’s non-publication order. The issues surrounding the Pell trial have signalled that it is high time the whole regime of non-publication orders be examined in a national context and why a 19th century judicial relic is wholly unsuited to today’s world.
In discussing the Australia-wide issues arising from the Pell trials’ suppression order, the Law Council of Australia acknowledged that, while Australian court reporting is of an excellent standard, it is virtually impossible to quarantine jurors from instantaneous social media postings or second-hand reporting overseas that is quickly accessible via a search engine.
The Law Council has called for national uniformity of suppression orders and an examination of whether such laws need to be reviewed in the digital era. Council president Arthur Moses said he will ask Attorney-General Christian Porter to refer the matter to the Australian Law Reform Commission (ALRC) for an inquiry.
At its core, this issue involves striking the right balance between open justice including the public interest in court reporting, and the right of the individual to a fair trial. In an age of digital communication and globalisation, uniformity of suppression orders across Australia should be considered and we need to recalibrate the balance. This is important in order to ensure that suppression laws are fit for purpose and promote open justice.
Suppression orders should operate in a consistent manner across Australian jurisdictions — which does not currently happen — to ensure that the right balance is achieved between open justice and the need for suppression. Media reporting of cases that come before our courts is central to open justice — it means that not only is justice done, it is also seen to be done. Open justice is one of the fundamental attributes of a fair trial and this means wherever possible, media should be able to report on matters that come before our courts.
While suppression orders and closed hearings are appropriate in particular cases, such as family court hearings and when hearing evidence from child witnesses, or where an accused may otherwise be unable to obtain a fair hearing, their need should always be balanced with the broader public interest in open justice.
The internet has no borders, so something that is suppressed in Australia can be reported in other countries by journalists who have not been present in the court room. Our journalists are amongst the best trained and respected in the world and informed reporting of our legal system maintains public confidence in the judiciary and the courts.[33]
MEAA’s condemnation of the excessive use of suppression orders was made clear in its a detailed submission to the Vincent review.[34] MEAA welcomed that the review took on board so many of MEAA’s recommendations.
The Vincent review recommended:
If adopted, the broad features of the suggested framework governing the making of orders would result in a situation where:
a. The power to make orders would be restricted to circumstances where there were no existing statutory restrictions on disclosure of the information involved. (This should assist in reducing the number of unnecessary orders and direct attention to what may be required in the circumstances.)
b. The making of orders would be approached in the understanding that the principle of open justice is fundamental to our legal system through the insertion of a preamble to the Open Courts Act and the recognition that orders constitute exceptions to open justice, where necessary in the circumstances of the case. (This is intended to address the current treatment of the principle of open justice as nothing more than a statutory presumption in favour of transparency.)
c. All orders, whether by application of a party or on the court’s own motion, would be treated as interim for a period of five days after which, in the absence of an application for it to be set aside or varied, it would operate according to its terms. (This recommendation is directed to ensuring that, as far as is practicable and consistent with the purposes of the order, an opportunity must be afforded to those concerned to object to its making or terms.)
d. The court or tribunal would be required in the absence of good reason to the contrary to transmit all orders for inclusion in a central, publicly accessible register. (This, it is considered, would be far more satisfactory an arrangement than the present one under which each body separately informs 7 media organisations or individuals on an email list of notice of an application for suppression or the contents of an order.)
e. A judge making an order would be required to address each ground on which it is made and prepare a statement of reasons for doing so, including the justification for its terms and duration. As far as practicable in the circumstances, this would be publicly available. (This is of special importance where the order is made on a general ‘interests of justice’ ground but it is principally directed to ensuring that there is both formal and substantive compliance with the statutory obligations and the principle of open justice.)
f. Interested parties (such as media representatives) would be able to appear to object to the making of an order or its terms. The judge would be able to secure the assistance of the Public Interest Monitor as contradictor to assist in this process. (The objective of this recommendation is to ensure that the necessity for an order is properly considered and that its terms are clear, an important consideration in the event of a possible breach.)
g. Entry of the order on the register, supported by the reasons for its making, would be regarded as sufficient notice to any who may wish to disseminate the information that the order had been made. (A central register would also be of value in the overall monitoring of the use of suppression orders and in their enforcement.)
h. Orders intended to expire at the completion of a proceeding would continue in effect until the period allowed for appeal had also passed. In the event that an appeal had been instituted the order would remain in force until revoked or varied by the appellate court or on the completion of that proceeding. (This recommendation is made to simplify the process by avoiding the necessity for applications for continuance of orders in these situations.) i
i. The distinction between proceeding and broad suppression orders would be removed. (What is important is that the purpose, terms and duration of an order are clearly identified, not whether the order relates to a single proceeding. Removal of the distinction would produce a simpler structure and avoid the complexities and necessity for several orders to be made that can occur under the current provisions.)
j. Enforcement of orders would be more realistic. (The reduction in the overall number of orders, the clarification of their terms and duration and the establishment of a single central register to which the media and others who wish to disclose protected information would be expected to have recourse, should substantially improve the position. At present, the Director of Public Prosecutions encounters difficulty at all of these levels.)
k. The Public Interest Monitor should be required to report annually on the operation of the system. (This should involve any issues identified by the Monitor when acting as contradictor and more generally from the data obtained from the central register.)[35]
MEAA supports the Vincent report’s recommendations.
The Act is now subject to two tranches of amendments[36] implementing most of the Vincent review’s recommendations. Of the first tranche: “The Bill will require that suppression and closed court orders only be used when necessary, such as where publication of information would be unfair, or risk harming victims or other parties. Under the proposed amendments, courts will have to give reasons for making suppression orders, outlining the basis on which it is made, its duration, and the scope of information it covers.”
The matter of resourcing the Public Interest Monitor to act as an intermediary and contradictor in the issuing suppression orders is still being considered. The Vincent review said the Monitor needed additional funding and resources necessary to perform the following functions:
1. The Monitor should be empowered, if requested by the judge to appear as contradictor, to make submissions and ask questions when the judge is determining whether orders should be made under the Open Courts Act, on what grounds and the framing of their scope.
2. Orders, once made, can be referred to the Monitor for consideration by interested parties to enable the independent consideration of the need, terms and duration of the order while maintaining the security of the underlying information. The Monitor’s decision whether or not to pursue the review of an order is final.
3. If it is considered necessary in the public interest to intervene, the Monitor should be able to seek the review of the order by the judge or prosecute an appeal.
4. The Monitor would report annually to the Attorney General on the operation of the Open Courts Act.[37]
The Andrews Government has also asked the Victorian Law Reform Commission to review contempt of court laws and enforcement of suppression orders. The Commission is due to report to government on December 31 2019.[38]
MEAA believes that the Pell case and the Vincent review have sparked a conversation that demonstrates the urgent need to examine the use and misuse of suppression and non-publication orders in Australia.
A review of the different orders regimes across the country is required with the aim of creating a uniform national approach.
On February 28 2019 the NSW Law Reform Commission announced an “open justice review”.[39] The review would on the operation of legislative prohibitions on the disclosure or publication of NSW court and tribunal information; NSW court suppression and non-publication orders, and tribunal orders restricting disclosure of information, and access to information in NSW courts and tribunals.
In particular, the Commission is to consider:
a) Any NSW legislation that affects access to, and disclosure and publication of, court and tribunal information, including:
- The Court Suppression and Non-Publication Orders Act 2010 (NSW);
- The Court Information Act 2010 (NSW); and
- The Children (Criminal Proceedings) Act 1987.
b) Whether the current arrangements strike the right balance between the proper administration of justice, the rights of victims and witnesses, privacy, confidentiality, public safety, the right to a fair trial, national security, commercial/business interests, and the public interest in open justice.
c) The effectiveness of current enforcement provisions in achieving the right balance, including appeal rights.
d) The appropriateness of legislative provisions prohibiting the identification of children and young people involved in civil and criminal proceedings, including prohibitions on the identification of adults convicted of offences committed as children and on the identification of deceased children associated with criminal proceedings.
e) Whether, and to what extent, suppression and non-publication orders can remain effective in the digital environment, and whether there are any appropriate alternatives.
f) The impact of any information access regime on the operation of NSW courts and tribunals.
g) Whether, and to what extent, technology can be used to facilitate access to court and tribunal information.
h) The findings of the Royal Commission into Institutional Responses to Child Sexual Abuse regarding the public interest in exposing child sexual abuse offending.
i) Comparable legal and practical arrangements elsewhere in Australia and overseas.
j) Any other relevant matters.
A uniform suppression order regime must uphold the principle of open justice; apply sensible, practical and limited-time orders in situations where they are justifiably required; allow a properly resourced Public Interest Monitor to play the role of contradictor rather than always relying on the media to fund challenges; and to create an accessible register of orders so that all interested parties can be kept informed.
The Vincent review’s recommendations show the way.
[1] Criminalising Journalism: the MEAA Report into the State of Press Freedom in Australia in 2018, MEAA, May 3 2018 https://www.meaa.org/download/criminalising-journalism-the-meaa-report-into-the-state-of-press-freedom-in-australia-in-2018/ and The Chilling Effect — the report into the State of Press Freedom in Australia in 2017, MEAA, May 3 2017 https://www.meaa.org/download/the-chilling-effect-the-report-into-the-state-of-press-freedom-in-australia-in-2017/ and Criminalising the Truth, Suppressing the Right to Know, MEAA’s annual report into the state of press freedom in Australia in 2016, MEAA, May 3 2016 https://www.meaa.org/download/press-freedom-report-2016/
[2] “Up to 100 journalists accused of breaking Pell suppression order face possible jail terms”, Amanda Meade, The Guardian, February 26 2019 https://www.theguardian.com/media/2019/feb/26/dozens-of-journalists-accused-of-breaking-pell-trial-suppression-order-face-possible-jail-terms
[3] “The right to a fair trial and the right to open justice, Director of Public Prosecutions Kerru Judd QC, as reported in the Herald Sun, via Office of the Public Prosecutions Victoria, June 22 2018 http://www.opp.vic.gov.au/News-and-Media/Latest-news/News/The-right-to-a-fair-trial-and-the-right-to-open-ju.aspx
[4] “Up to 100 journalists accused of breaking Pell suppression order face possible jail terms”, Amanda Meade, The Guardian, February 26 2019 https://www.theguardian.com/media/2019/feb/26/dozens-of-journalists-accused-of-breaking-pell-trial-suppression-order-face-possible-jail-terms
[5] “Suppression order failed to block overseas reports”, Mark Shields and Tessa Akerman, The Australian, February 27 2019 https://www.theaustralian.com.au/business/media/suppression-order-failed-to-block-overseas-reports/news-story/ca6814794c8fc3376efb36baa5c7971c
[6] “Australian court convicts once-powerful Vatican official on sex-abuse-related charges”, The Washington Post, December 12 2018 https://www.washingtonpost.com/world/australian-court-convicts-once-powerful-vatican-official-on-sex-abuse-related-charges/2018/12/12/da0d909c-fe20-11e8-a17e-162b712e8fc2_story.html?noredirect=on&utm_term=.77e4abd4f153
[7] “An Australian court’s gag order is no match for the Internet, as word gets out about prominent cardinal’s conviction”, Paul Farhi, The Washington Post, December 13 2018 https://www.washingtonpost.com/lifestyle/style/an-australian-courts-gag-order-is-no-match-for-the-internet-as-word-gets-out-about-prominent-cardinals-conviction/2018/12/13/5137005c-fef5-11e8-83c0-b06139e540e5_story.html?noredirect=on&utm_term=.18770937f510
[8] ibid
[9] “Why the Cardinal Pell Case Has Been So Secretive”, Damien Cave and Adam Baidawi. The New York Times, April 30 2019 https://www.nytimes.com/2018/04/30/world/australia/why-the-cardinal-pell-case-has-been-so-secretive.html
[10] “Suppression order failed to block overseas reports”, Mark Shields and Tessa Akerman, The Australian, February 27 2019 https://www.theaustralian.com.au/business/media/suppression-order-failed-to-block-overseas-reports/news-story/ca6814794c8fc3376efb36baa5c7971c
[11] ibid
[12] “George Pell: Pope Francis removes Australian cardinal from inner circle”, Melissa Davey, The Guardian, December 13 2018 https://www.theguardian.com/australia-news/2018/dec/13/australian-cardinal-george-pell-removed-from-inner-circle-by-pope-francis
[13] “George Pell case shows laws of contempt and suppression orders are out of date”, Justin Quill, The Herald Sun, February 26 2018 https://www.heraldsun.com.au/news/opinion/george-pell-case-shows-laws-of-contempt-and-suppression-orders-are-out-of-date/news-story/eef5cf2ef1a469aa7891e92b549d6103
[14] “Up to 100 journalists accused of breaking Pell suppression order face possible jail terms”, Amanda Meade, The Guardian, February 26 2019 https://www.theguardian.com/media/2019/feb/26/dozens-of-journalists-accused-of-breaking-pell-trial-suppression-order-face-possible-jail-terms
[15] ibid
[16] ibid
[17] “Dozens of Australian journalists threatened with contempt of court over Pell stories”, Clay Lucas, The Age, February 26 2019 https://www.smh.com.au/national/dozens-of-australian-journalists-threatened-with-contempt-of-court-over-pell-stories-20190226-p5109j.html
[18] ibid
[19] “Up to 100 journalists accused of breaking Pell suppression order face possible jail terms”, Amanda Meade, The Guardian, February 26 2019 https://www.theguardian.com/media/2019/feb/26/dozens-of-journalists-accused-of-breaking-pell-trial-suppression-order-face-possible-jail-terms
[20] Shannon Deery, Twitter, March 26 2019 https://twitter.com/s_deery/status/1110342918991024128
[21] “George Pell contempt case: media lawyers call for more details about charges”, Melissa Davey, April 15 2019 https://www.theguardian.com/australia-news/2019/apr/15/george-pell-contempt-case-media-lawyers-call-for-more-details-about-charges
[22] Criminalising Journalism: the MEAA Report into the State of Press Freedom in Australia in 2018, MEAA, May 3 2018 https://www.meaa.org/download/criminalising-journalism-the-meaa-report-into-the-state-of-press-freedom-in-australia-in-2018/ and The Chilling Effect — the report into the State of Press Freedom in Australia in 2017, MEAA, May 3 2017 https://www.meaa.org/download/the-chilling-effect-the-report-into-the-state-of-press-freedom-in-australia-in-2017/ and Criminalising the Truth, Suppressing the Right to Know, MEAA’s annual report into the state of press freedom in Australia in 2016, MEAA, May 3 2016 https://www.meaa.org/download/press-freedom-report-2016/
[23] Open Courts Act Review, The Hon. Frank Vincent AO QC, September 2017 https://s3.ap-southeast-2.amazonaws.com/hdp.au.prod.app.vic-engage.files/9215/2211/1859/Review_of_the_Open_Courts_Act_2013_-_March_2018.pdf
[24] ibid
[25] ibid
[26] ibid
[27] http://mlsv.org.au/wp-content/uploads/2013/09/Justice-Betty-King-Underbelly.pdf
[28] ibid
[29] http://www.smh.com.au/comment/valid-reasons-for-suppression-orders-victoria-chief-justice-20151017-gkbkvu.html
[30] ibid
[31] MEAA submission to review of Victoria’s Open Courts Act and suppression orders, March 2017 https://www.meaa.org/mediaroom/meaa-submission-to-review-of-victorias-open-courts-act/
[32] Open Courts Act Review, The Hon. Frank Vincent AO QC, September 2017 https://s3.ap-southeast-2.amazonaws.com/hdp.au.prod.app.vic-engage.files/9215/2211/1859/Review_of_the_Open_Courts_Act_2013_-_March_2018.pdf
[33] “Law Council calls for ALRC review of suppression orders, uniformity across jurisdictions”, Law Council of Australia, February 27 2019 https://www.lawcouncil.asn.au/media/media-releases/law-council-calls-for-alrc-review-of-suppression-orders-uniformity-across-jurisdictions
[34] MEAA submission to review of Victoria’s Open Courts Act and suppression orders, March 2017 https://www.meaa.org/mediaroom/meaa-submission-to-review-of-victorias-open-courts-act/
[35] Open Courts Act Review, The Hon. Frank Vincent AO QC, September 2017 https://s3.ap-southeast-2.amazonaws.com/hdp.au.prod.app.vic-engage.files/9215/2211/1859/Review_of_the_Open_Courts_Act_2013_-_March_2018.pdf
[36]”First Stage Of Suppression Order Overhaul Begins”, Attorney General of Victoria, February 19 2019 https://www.premier.vic.gov.au/first-stage-of-suppression-order-overhaul-begins/
[37] Open Courts Act Review, Department of Justice and Community Safety, September 2017 https://engage.vic.gov.au/open-courts-act-review
[38] “First Stage Of Suppression Order Overhaul Begins”, Attorney General of Victoria, February 19 2019 https://www.premier.vic.gov.au/first-stage-of-suppression-order-overhaul-begins/
[39] “Court and tribunal information: access, disclosure and publication — Terms of Reference”, NSW Law Reform Commission https://www.lawreform.justice.nsw.gov.au/Pages/lrc/lrc_current_projects/Courtinformation/Terms-of-reference.aspx
