Suppression orders
Past press freedom reports have been alarmed at the number of suppression orders being issued in some legal jurisdictions and also the sheer breadth of their suppression in preventing what can and can’t be reported in the public interest. Victorian courts have earned the reputation for being particularly excessive in their use of such orders.
Fairfax Media reported that Victorian courts are still issuing hundreds of suppression orders a year, including blanket bans on information which prevent media organisations from even reporting that a case is underway, despite new legislation in 2013 called the Open Courts Act. The Age reported that the findings had prompted calls for a government-funded Office of the Open Courts Advocate to argue in courts against the suppression of information.
The newspaper said that a Fairfax Media investigation in conjunction with the University of Melbourne has found “judges and magistrates have issued at least 383 suppression orders, plus almost 50 interim orders, since the act came into effect on December 1, 2013”.
The Victorian State Parliament had passed the 2013 act to try to bring them under control and to “strengthen and promote the principles of open justice and free communication of information”.
“But the new analysis shows that, in the first year of its operation, 254 orders were imposed — 35 in the Supreme Court, 102 in the County Court and 117 in the Magistrates Court. This was similar to the number issued before the act.”
The newspaper quoted University of Melbourne researcher Jason Bosland, who said there were several worrying aspects; the most concerning was the increase in the number of blanket bans. “What’s unbelievable is that 37 per cent of the suppression orders are complete blanket bans — you can’t publish anything about those proceedings at all. The wording is: “no report of the publication of the whole or any part of the proceedings”. In terms of scope, a blanket ban is the most extreme type of order and should only be made in truly exceptional circumstances.”
Some orders applied even broader strictures, with the example from the Magistrates’ Court, where several orders had been issued that didn’t say what was to be suppressed, with the space in the order left blank. “A County Court order from 2014 issued a ‘prohibition on publication of any information of any kind relating to this matter’. However, since the name of the defendant was also suppressed, it was difficult for the media to tell what it could not report,” the newspaper said.
The research found that the most common reason given for the issuing of a suppression order was to protect “the administration of justice”. More than 200 were made on that basis, while 189 were made to protect the safety of witnesses and only four to protect national security.
Bosland said judges and magistrates were using the “administration of justice” ground broadly, suppressing evidence deemed so embarrassing that it might affect a witness’s willingness to give evidence if it were to be published. “This is an expansion which has really taken off over the past few years … and you don’t want broad and open-ended categories of exceptions that didn’t exist before, because this will erode the fundamental protection that open justice gives the whole system.”
The Age reported that: “Of 28 of the orders that analysed, including nine in the Supreme Court — 7 per cent of the total — did not specify what grounds they were granted on at all, even though the legislation requires it. The study shows that 62 suppression orders were granted by the courts by themselves, 51 after a motion by the prosecution and 47 when the defence asked for it. Very often, the prosecution and defence agree to suppress information, and there is nobody to argue against them.”
The Chief Justice of Victoria, Marilyn Warren, responded to The Age article in writing, saying: “The argument by The Age undermines confidence in, and respect for, the judiciary. No suppression order issued in Victoria’s Supreme Court is made without a valid reason. They are certainly never issued on “relatively weak grounds” or “for good measure”, as has been suggested by The Age.
“The principle of open justice is fundamental to the proper administration of justice, which is reinforced by every judge in every court and tribunal in Australia. But Parliament has recognised that there are circumstances where restrictions must be placed on what can be disclosed about a case.
“Suppression orders are most commonly issued to protect the safety of people involved in criminal trials, such as witnesses, victims and informants. They are also made to protect national security and ensure that people charged with criminal offences who are yet to face court can receive a fair trial before an impartial jury.
“Most orders do not prevent reporting of the trial altogether, but rather delay the publication of the suppressed information until the conclusion of the proceedings or associated case. Media organisations have a right to apply, at any time, to have a suppression order reviewed, varied or revoked. Yet they rarely do,” Warren wrote.
She went on to say that to further strengthen public confidence in the process, the Supreme Court will soon utilise a service of the Victorian Bar, where barristers will appear — free of charge — when requested by a judge, to make submissions on public interest grounds, in the absence of any other contradictors such as the media. “This is an initiative of the courts themselves together with the Victorian Bar, one of the state’s most highly respected independent legal bodies.
“Victoria is the only state that maintains a database of all suppression orders issued — so it is therefore difficult to compare the number of orders made here against other Australian jurisdictions. The Victorian Supreme Court figures are certainly on par with our New South Wales counterpart, however,” Warren said.
