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  • Controversial suppression orders recently made by the Victorian Supreme Court raise important questions about the value Australian courts place on open justice
  • The orders, made under the Open Courts Act (2013) (Vic), only became known in Australia after they were published on Wikileaks and have since been widely discussed and criticised overseas
  • An order that applies “throughout Australia” and does not prevent someone overseas publishing the prohibited information – and which Australians can access easily on the Internet – is a futile order and should not have been made, let alone maintained

Why are court hearings open to the public? Because “open justice” enhances significant democratic ideals. Members of the community, including journalists, can see how justice is dispensed (or not), report it, comment on it, and criticise it. In that way, public confidence in the administration of justice – itself a significant social value – is maintained. That is a well-established common law principle that now has statutory force both in NSW and (relevantly for the purposes of this article) Victoria.

Recently, sophisticated international commentators have raised important questions about the value Australian courts place on open justice as a result of a controversial suppression order made by the Victorian Supreme Court. Despite the provisions of the Open Courts Act 2013 (Vic) – an Act based on the model provisions developed for the Standing Committee of Attorneys-General to harmonise laws on suppression – to notify news media organisations of orders that may inhibit their right to publish, the orders in question appear to have become known in Australia and to Australian media organisations only after they were published on the Wikileaks website. The orders themselves are now openly discussed on blog sites, social media, and in traditional media.

While the fact the orders exist has been mentioned in mainstream Australian media, their content has not been disclosed there. Indeed, it would probably be a breach of the orders for us to do so here. Yet, any reader with a computer and a mouse and access to the internet can find them. Should the orders be maintained in those circumstances? Should they have ever been made at all?

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