Open justice is a bedrock principle in liberal democratic systems of government. It is central to ensuring public confidence in the administration of justice and maintaining the rule of law. It keeps judges, who exercise power on behalf of the community, under constant scrutiny.
But my most recent research, which is to be published in the next issue of the Sydney Law Review, shows that open justice is increasingly being undermined in Victoria due to the inappropriate use of suppression orders by the courts. This is despite the Victorian Parliament’s intention to ‘strengthen and promote open justice’ by introducing the Open Courts Act in 2013.
There are, of course, legitimate reasons for suppression. Sometimes suppression orders are necessary to prevent prejudice to the fair trial of an accused. In other cases they can be made to protect the safety of a person or to protect the victim or witness in a case from suffering undue embarrassment. But what my research shows is that orders are increasingly broad and ambiguous in scope and that they often lack sufficient legal foundation.
A recent suppression order granted by the Supreme Court of Victoria last week has underscored some of the problems with the current approach to suppression orders in the Victorian courts. Regrettably, it does little to inspire confidence that the courts themselves can be left to their own devices to guard the principle of open justice. It also demonstrates that the media, who have traditionally taken on the important role of protecting open justice by challenging suppression orders in the courts, are increasingly incapable of protecting the principle into the future.
On February 24, 2017, the Department of Public Prosecutions dropped criminal proceedings that were about to commence in Victoria’s Supreme Court against a number of persons for an extremely serious criminal offence alleged to have been committed in Geelong in November 2015. This is all very cryptic, but I am unable to say much more about the case. This is due to an extremely wide-ranging suppression order made by Justice Beale that prevents the reporting of ‘any detail or particulars of the alleged … offending against the complainant other than the time and place that it is alleged to have occurred’.
Hard to justify
On a plain reading of this order I cannot name those accused of the crime, their age or gender, or the nature of the crime. Nor can I mention the age or gender of the alleged victim. Interestingly, the media have continued to publish such details. They have named the former defendants in the case and have described the nature of the alleged offence. The media, by continuing to publish such details, have either decided to take a calculated risk that they will not be charged with breaching the order or they believe, as is more likely the case, that the order was not intended to cover such details. If the latter is correct, the media have been required to ‘read into’ the order a limitation that it is not apparent on its face. From a legal perspective, such sloppy drafting is extremely problematic.
However, if we assume, as we must, that Justice Beale intended the order to mean what it says, it is an extremely broad order and one that, I believe, would be difficult to justify. While there are clearly legitimate reasons to protect the alleged victim in this case, it is hard to see how this order, which is tantamount to a ‘blanket-ban’, does not go beyond what is conceivably necessary in the circumstances. Indeed, not being able to mention the nature of the alleged crime or the names of the alleged perpetrators seems absurd given the seriousness of the alleged offence and the widespread media attention that the case has already received.
In addition to the breadth of the order, it also specifically required all media organisations operating in Australia to take down all previously published internet articles containing such information. It is my view that this aspect of the order would have failed to meet the necessity test. This is because reports of the case by foreign media hosted on overseas internet servers are not subject to the order, which means that the suppressed information will continue to be readily accessible in Australia. As such, this aspect of the order would have been largely futile, and logic dictates that a futile order cannot possibly be characterised as one of necessity. Indeed, such a view has the support of Victorian and New South Wales appellate courts.
Twist in the tale
However, in a remarkable twist, it turns out that the take down clause was included in the order by mistake and was rectified by Justice Beale on 28 February at the request of the DPP. I should point out that this mistake may have remained uncovered without my persistent efforts to obtain a copy of the transcript of the proceedings from the Supreme Court and my subsequent discussions with Larina Mullins, Senior Litigation Counsel for News Corp Australia. This reinforces why open and transparent justice is so important.
But even if we leave aside questions regarding the legality of the order (and the mistake contained within it), there are other aspects of this case that are troubling from an open justice perspective. First, Justice Beale has not issued reasons for the making of the order. The provision of reasons, as I’ve written about previously, is essential to the open justice principle and is a constitutional requirement.
In the transcript of the hearing, his Honour simply says ‘it is appropriate’ to make an order extending a previous order made by Justice Lasry. However, the new order does not simply extend Justice Lasry’s previous order because the grounds for that order were completely different. Justice Lasry’s order was made to protect the administration of justice under s 18(1)(a) of the Open Courts Act. The new order, on the other hand, was made to protect the victim from embarrassment under s 18(1)(d) of the Open Courts Act. Thus, Justice Beale should have provided specific reasons as to why the order was necessary to achieve that new purpose.
Furthermore, providing reasons would have explained why his Honour came to the view that what is, essentially, a ‘blanket-ban’ was justified. Without reasons, we are only left to speculate. But being left to speculate does not, by any measure, inspire confidence in the administration of justice.
Second, the transcript reveals that there was a complete lack of argument in court as to the necessity of the order. It was based entirely upon the private affidavit evidence of the victim’s mother which had been filed with the court prior to the hearing. The transcript reveals that the DPP offered to elaborate in open court as to why the order was necessary, but given the order was not opposed by those present in court, Justice Beale dismissed this as unnecessary. Importantly, the only journalist present in court was not privy to the contents of the mother’s affidavit and was therefore unable to understand the basis upon which the order was considered by his Honour to have met the necessity test. This lack of transparency has the potential to create the perception that the order was simply made by consent. A suppression order made by way of consent is contrary to the law.
Solution is a public advocate
Third, the order was not opposed by the media. The media were given three days’ notice of the DPP’s application, as required by law. However, the notice was largely meaningless. This is because the media were uninformed that the order was sought in the context of the case being discontinued. Given the gravity of the alleged crime and the media and public interest in it, I am confident the media would have appeared to oppose the order had they been made aware that the DPP was dropping the case.
Unfortunately, now that the order has been made, it seems that there is little appetite amongst the media to appeal it. This may be partly out of respect to the victim, but it also reflects increasing resource constraints in the media. The traditional media, faced with ever declining revenue streams, have become increasingly conservative in defending freedom of speech and open justice in the courts. In this case, it appears that the potential costs of litigation were not seen as justified despite the clear public interest in the merits of this order being subject to review.
This leads to a critical question: who is going to protect the fundamental principle of open justice if the courts themselves are not as vigilant as they should be and if the media are increasingly unable or unwilling to intervene?
It is my view that the only solution is for the introduction of a state funded open justice advocate.
Jason Bosland, Director of Studies, Communications Law, Deputy Director of the Centre for Media and Communications Law, Melbourne Law School, University of Melbourne
This article was first published by Pursuit, a blog from the University of Melbourne.