“Suppression” is the Australian media-law word for 2018 … Everyone wants to know more about what has been suppressed by the courts … Invariably the cat gets out of the bag … Latest suppression statistics Australia-wide … Are suppression orders sensible in the age of the internet?
The suppression order regime enforced by courts around Australia is booming. It has never looked so healthy.
Gina McWilliams, the senior legal counsel at News Corp, is the official keeper of the figures, where we find that for the year to Saturday, December 8, Victorian courts issued 301 suppression or no-publication orders, followed by New South Wales with 169, South Australia with 157, the Northern Territory with 57 and Queensland at 14.
A PhD student somewhere is no doubt untangling why Victoria, with fewer judges and an overall smaller jurisdiction than NSW, would be issuing nearly twice the number of suppressions than their cousins across the Murray.
Indeed, why does tiny Northern Territory make four times as many orders as the much larger Queensland court system?
The regimes that govern suppression orders possess idiosyncrasies that are not easily explainable. It may be that some jurisdictions reflexively think that the less the public knows about cases before the court, the better.
This is not to say that all suppression orders are squandered for unworthy purposes, it’s just that the prevention of “prejudice to the proper administration of justice” is an elastic term, which has morphed into all manner of extended meanings, including saving people from embarrassment, distress, the protection of feelings or health-related issues.
“The public interest in open justice” is the countervailing requirement to be weighed by judges when working out whether to suppress or not – yet “publicity as the very soul of justice” has for some time been relegated to the backseat.
Still, we do hear high flown Benthamite sentiments from the top reaches of the judicial food chain, sentiments that rarely take hold in the middle or lower levels of the chain.
Justice Michael Kirby had a Benthamite moment in 1992, when on the High Court: “an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms …”
In a case involving Gina Rinehart and her children, NSW chief justice Tom Bathurst and appeal judge Ruth McColl overturned a suppression order, and in a breakthrough moment said:
“The principle of open justice is one of the most fundamental aspects of the system of justice in Australia … Open justice ensures public confidence in the administration of justice … It is the price of open justice that allegations about individuals are aired in open court …”
The sticking point is with criminal proceedings where an accused faces multiple-trials within close range of each other, or where the identities of witnesses have to be protected?
This is the nub of many a suppression order, particularly so when similar facts or tendency evidence or even a verdict from one hearing is not supposed to fertilise the minds of jurors hearing the next case against the same accused.
These orders don’t always invariably find support upstairs. In Fairfax Digital v Ibrahim, the NSW Court of Criminal Appeal overturned a suppression order affecting the trial or Fadi and Michael Ibrahim and Rodney Atkinson, finding it too far-reaching in its application. In the process, some important statements were made about the limits of this area of the law.
We’re also seeing more and more “take down” orders in criminal cases.
Just before the 2016 criminal trial of Eddie Obeid the NSW DPP asked the media to stop publishing ICAC’s widely known findings about the accused. Further, it attached a spreadsheet of 1,800 online news articles about Obeid that it said should be taken down.
The mainstream media obliged, most others ignored the request or were unaware of it.
In suppression intense Victoria, the Court of Appeal actually overturned an internet takedown order in relation to historical articles about gangland figure Tony Mokbel.
In another Victorian case, the Securency banknote bribery trial in 2014, the Supreme Court on an application from the Department of Foreign Affairs and Trade under the Open Courts Act, suppressed the names of 17 leading political and government figures in the region. This included “any current or former Prime Minister of Malaysia”, the president of Vietnam and the president of Indonesia and his predecessor.
This was a super-injunction, whose very existence was suppressed, yet Wikileaks believed the information important enough to publish and was content to ignore the terms of the court’s order. It issued a press release via it’s Twitter account and the super-injunction was thereby rendered “futile”.
If it’s “futile” a suppression cannot be “necessary”, as required by the legislation, so inevitably the order had to be revoked.
And that’s the rub. Publishing information on the internet has tipped on its head the carefully coiffed system for the protection of the administration of justice designed for an earlier, more obedient and less agile era.
Consequently, we now have laws that apply to large media organisations with assets, and the same laws that don’t apply to a large number of atomised and often feral publishers. This can only be seen as a legal embarrassment.
The tech giants also are significantly immune from the long arm of the courts. We’ve just seen Google breaching a New Zealand Court order suppressing publication of the name of the alleged accused in the murder of English tourist Grace Millane.
The notorious Trafigura case in Britain concerned a super-injunction over the reporting of the dumping of toxic waste in the Ivory Coast. Parliament decided to debate a confidential report into the dumping of industrial pollution and, in the contest of parliamentary privilege over court orders, parliamentary privilege won, under the direction of the speaker of the House of Commons.
Carter-Ruck, Trafigura’s law, firm even went so far as to press the futile argument that there could be no parliamentary debate about super-injunctions.
Parliament also was the forum for the outing of English footballers who got the courts to keep their extra-marital affairs out of the Red Top newspapers and again, more recently, in the case of Sir Philip Green, the wealthy businessman who persuaded the Master of the Rolls to enforce non-disclosure agreements with various of his sexual harassment victims.
It was Peter Hain who, in the House of Lords, put everyone out of their speculative misery by naming Green as the man who could not be named.
However, it is over two years since the UK Supreme Court suppressed the name of a well-known celebrity “in the entertainment business”, who engaged in a same-sex “three-way”. As far as publication by the UK media is concerned, his name remains off-limits.
“PJS” fought on privacy grounds against The Sun on Sunday’s attempt to publish the sex-romp story, and ultimately the Supreme Court said the injunction should remain in place, even though PJS’s identity was widely known as a result of overseas and online reports. See PJS v News Group Newspapers Ltd.
In the recent “Lawyer X” case in Victoria, it took years of judicial consideration before the High Court ultimately heard the case and decided that the proper administration of justice was more important than protecting the safety of the barrister/informant, who stood a good chance of being eliminated by her former criminal clients.
These cases take on a fictional quality when the name of a person whose identity is subject to a suppression order is already on everyone lips.
Is there a ready solution? Can the jury system exist alongside an internet where information is porous? Can judges admit that the internet exists? Do injunctions have a sensible place in the internet age?
To completely remove jurors from the contamination of prejudicial information might require reverting to the ancient system of locking them up or taking them around and around town on the back of horse-drawn carts until they made up their minds.
This post originally appeared in the Gazette of Law and Journalism. Australia’s leading online media law publication.