The publication by Wikileaks of a Victorian Supreme Court suppression order has prompted a deluge of debate in the media about the state of open justice in Victoria. There is no doubt that Victoria has a problem with suppression orders and that the circumstances of the making of the order in question – which prohibits the naming of a long list of high profile international public officials in connection with allegations of corruption – is of immense public concern. However, some balance and perspective, along with some basic accurate information regarding the suppression order at the centre of the controversy, must be injected into the debate.
A logical place to start is to get the facts straight about precisely what the order made by Justice Hollingworth does and does not prohibit. A little bit boring and perhaps a bit inconvenient. Nevertheless, when discussing matters of such importance as the conduct of the judiciary, accuracy is critical.
Perhaps not surprisingly, Julian Assange referred to the order using the provocative term ‘blanket-ban’. The media have used the attention-grabbing term ‘super-injunction’. However, both terms are grossly misleading and sensational in describing the order in question. A so-called ‘super-injunction’ is an extreme order prohibiting not only the publication of the particular sensitive material but also the publication of the fact that a suppression order has been made. A ‘blanket-ban’, on the other hand, is an even more extreme order prohibiting the reporting of any aspect of particular proceedings.
Justice Hollingworth’s order meets neither description. This is because it is limited to the publication of very specific pieces of information: that is, in short, the publication of the allegation that any of the persons specified in the order were the intended recipients of bribes or had received or attempted to receive bribes. In fact, compared to many orders made by the Victorian courts, this order is actually a very well drafted order. I should know. I recently completed (along with my co-author, Ashleigh Bagnall) an empirical study of all suppression orders made by the Victorian courts over a five-year period between 2008-2012. Three months and 1,501 orders later, I can tell you that this order – at least in terms of its drafting – is exemplary. While in the past I’ve been extremely critical of the Victorian approach to suppression orders, credit where credit is due.
As evidence of the supposed breadth of the order the media has claimed that it is not even possible to report the terms of the suppression order itself. But, this is actually a very good thing. It reflects the fact that the order sets out, in very specific, narrow and precise terms, the information that cannot be published – exactly what a properly drafted suppression order should do. For years the media have been campaigning for greater clarity and specificity in the drafting of suppression orders. Yet having more clear and specific orders obviously means that the orders themselves cannot be published: to do so, as in this case, would frustrate the very purpose of the order by disclosing the information concerned. Orders drafted in general and broad terms – in other words, orders that can be published – are, in fact, a much greater and much more concerning restraint on media freedom.
But, just because this particular order cannot be said to be a super-injunction or a blanket ban does not mean that there is not a problem with the drafting of suppression orders in Victoria. During the period covered by my research, true ‘blanket ban’ orders were made on more than a weekly basis in Victoria. For example, during the period covered by the study, around 55 per cent of the suppression orders made by the County Court of Victoria (236 out of 432 orders) were orders prohibiting the publication of any information regarding proceedings, which would include the very fact that an order had been made. Such ‘blanket-bans’ were also regularly made by the Victorian Supreme Court (61 out of 247 orders) and the Magistrates’ Court (145 out of 547 orders). Furthermore, most orders were made without a sufficient end date and most remain operative today despite no longer being necessary.
The real issue in the present case is not the scope of the ban but the unusual subject matter of the order, the reason for its making and the fact that the litigation deals with matters of utmost public importance. But it does not automatically follow that the order was inappropriately made as a matter of law.
The stated purpose of the order is to protect Australia’s international diplomacy. The Supreme Court of Victoria has express statutory powers as well as long-standing powers under the common law to make orders where it is necessary to ‘prevent prejudice to the interests of the Commonwealth in relation to national security.’ Indeed, the Parliament of Victoria, exercising the will of the Victorian people, has vested in the courts the power to make orders on such grounds in the Open Courts Act. Therefore, an order made on this basis is not necessarily undemocratic or underhanded, as has been suggested by some. There is, of course, a distinction between protecting Australia’s international diplomatic relations and protecting national security. Without further information, it is difficult to know the basis upon which Justice Hollingworth was satisfied that publication of the information was necessary to protect Australia’s national security interests. On this point, at least at this stage, we can only speculate. However, given the nature of the case, there is no doubt that it is of enormous public interest.
But, if the media thinks that the order was inappropriately made – that is, not made in accordance with powers vested in the court by the parliament – it should have exercised its right to be heard at the time that the order was made. Indeed, under the Open Courts Act, the media must now receive prior notification that an application for a suppression order is to be made to the court. In this case, at the time that the order was made, the media did not make an appearance. However, if the media remains of the view that the order is unnecessary, it has standing to seek to have the order revoked. Such a challenge is perhaps now likely to succeed. The test of whether an order is valid is whether it can be said to be necessary in order to protect national security. The publication by Wikileaks means that the proverbial ‘dam has burst’ and that if challenged the court might be hard pressed to justify keeping it on foot.
In my view, challenging the order should be the media’s preferred course of action.
Jason Bosland is a Senior Lecturer at Melbourne Law School and is Deputy Director of the Centre for Media and Communications Law.
For a critical discussion of the media reporting of this order see “Opinion: An Australian Court issues a “Gagging order” which is being called an “abuse of process”. Fair assessment or not?, Gideon Benaim, Simkins.