Suppression orders are intended to keep matters out of the news, but a string of recent events means the orders themselves are making headlines.
“You’re supposed to leave the bench when you are angry, but I’ll stay for a bit longer to finish this hearing off.”
It was Thursday 13 December in the County Court of Victoria and Chief Judge Peter Kidd was not happy. The previous day, Cardinal George Pell – Australia’s highest-ranking Catholic – was convicted of historical child sex offences in His Honour’s court. It’s the latest chapter in an abuse scandal that rocked the world.
Pell was charged in May 2018 and the allegations against him were split into two separate trials, referred to as the “Cathedral Trial” and the “Swimmers Trial”. When the first trial commenced, a suppression order was issued to protect the integrity of the second. This is relatively common where there are back-to-back trials, but what happened next was anything but.
That Thursday, news outlets around the country reported that a major conviction had taken place, but that they were prohibited from publishing the details at that time because of a court order. The topic was trending on social media and full details were published on international mastheads just a quick internet search away. His Honour called a mention, summoning to court the Director of Public Prosecutions and counsel for the accused to discuss the coverage.
“Some of the media that has occurred overnight at the very least raises a serious question as to whether my suppression order has been breached in the most egregious way possible,” Judge Kidd told the lawyers. “The media coverage overnight also raises a serious question, quite independently of that, of contempt of the court, namely bringing inappropriate and improper pressure upon me to vary or revoke my suppression order application.”
When the Swimmers Trial was dropped on 26 February, a media storm erupted. The Cathedral Trial took over the front pages of every major news outlet. The same day, it was reported that Victoria’s Director of Public Prosecutions, Kerri Judd QC, sent letters to dozens of members of the media asking them to “show cause” as to why they should not be charged with contempt of court. More than 30 journalists, editors and publishers now face prosecution. The potential charges include contempt for breach of the suppression order, sub judice contempt of court, contempt for scandalising the court, and aiding and abetting overseas media to commit contempt.
In the wake of the Pell case, the Law Council of Australia (LCA) has called for a national review of suppression laws. The LCA’s President, Arthur Moses, says the laws need to become uniform around Australia and should be examined to determine whether they are effective or relevant in the modern media environment.
“At its core, this issue involves striking the right balance between open justice including the public interest in court reporting, and the right of the individual to a fair trial,” Moses said in a statement.
“Media reporting of cases that come before our courts is central to open justice – it means that not only is justice done, it is also seen to be done [by the public] … While suppression orders and closed hearings are appropriate in particular cases, such as family court hearings and when hearing evidence from child witnesses, or where an accused may otherwise be unable to obtain a fair hearing, their [needs] should always be balanced with the broader public interest in open justice.”
In NSW, the Law Reform Commission is now calling for preliminary submissions to review the operation of suppression and non-publication orders.
Advising the media
Media law is a niche practice. Sources tell LSJ there are probably only about 30 in-house media lawyers around Australia. It can be very collegiate. In fact, during one interview for this article, counsel for a publisher received a call from the lawyer of another publisher to seek advice on the approach taken to a particular story. Media companies also often join together to share the costs of briefing barristers.
The Courts Suppression and Non-publication Orders Act 2010 (NSW) requires a “necessity test” for suppression orders. There are five grounds to be tested, including in circumstances where the subject matter prejudices the proper administration of justice, protects the safety of a person, or is necessary to the public interest and so on.
These orders aren’t designed to keep matters secret. Aside from special circumstances like closed courts, journalists and members of the public may freely attend any hearing they choose. Suppression orders are intended simply to prohibit publication when necessary.
At its core, this issue involves striking the right balance between open justice including the public interest in court reporting, and the right of the individual to a fair trial.
Arthur Moses, President, Law Council of Australia
How do suppression orders work?
Practitioners share a number of frustrations. First, they say many fail to meet the “necessity” test. Second, notification of suppression is inconsistent across jurisdictions – processes and laws vary from state to state. Third, orders are often made even where there are pre-existing statutory protections – in cases involving children, victims of sexual offences and vulnerable witnesses, for example.
Larina Alick is Editorial Counsel for Nine Publishing and Australian Community Media, formerly known as Fairfax Media. She looks after more than 200 newspaper titles around the country. Much of her role includes analysing articles before they are published, looking for legal red flags such as breach of suppression orders or risk of defamation, as well as managing complaints and litigation.
Alick says that on multiple occasions she has asked courts for the specific wording of suppression orders, or transcripts of the hearings discussing those orders – only to be refused because of the very orders about which she is inquiring. Other orders have referred her to specific pages of court documents, such as affidavits, to which she has been denied access for the same reason.
The irony, she says, is that she needs to know the details to ensure sthe orders are complied with.
Her view is that many suppression orders go above and beyond what is necessary to protect the administration of justice. Some 200 orders were issued in the Lindt Cafe siege inquest, for example – so many that Alick says the orders covered the wall of the media room “like wallpaper” and it became “surreal”.
“I went into the inquest and fought for the video footage – they did a reconstruction of the raid, at the end of the siege, and they had cartoon characters of police officers with A, B, C and D written over their heads, which were the pseudonyms given to them,” says Alick. “The version of the video released to me had to have those letters blanked out – we weren’t even allowed to know which pseudonym was on which cop.
“The fact is any person can walk into [a] court room and hear it for themselves, but the journalists who are the eyes and ears of the public are not allowed to tell the public what’s going on … I think they’re being issued without sufficient consideration of the factors involved.”
You can’t advise in a vacuum
Some jurisdictions have statutory regimes in place to ensure publishers can be informed as soon as suppression orders are made. In Victoria, for example, emails are automatically sent to publishers when orders are made. In South Australia, courts are required to maintain a register of suppression orders, which is available for public inspection on a secure computer in the court building in Adelaide.
However, according to Gina McWilliams, Senior Editorial Legal Counsel at News Corp Australia, reporting in most other jurisdictions is “very haphazard”. This is especially so where lower courts are concerned.
McWilliams has kept statistics on the suppression order notifications News Corp receives, which vary enormously from state to state. This is not necessarily because of the court load or the total number of orders made, but due to the numerous different systems in place.
SUPPRESSION ORDER NOTIFICATION MASTER COUNT 2018
On top of that, McWilliams says that key details including the names of the parties, reasons for suppression, and specific details that cannot be published are frequently omitted. She would like to see a compulsory reporting system that, at the very least, requires courts to let solicitors know the names of the parties, what details are being suppressed, and which limb of the Act applies.
She says news outlets are keenly aware of their responsibility to the community when it comes to perpetuating the open administration of justice. However, insufficient notification means it can be very difficult to advise stakeholders such as journalists and editors as to how to best uphold the orders.
“We have to be there, we have to be reporting on courts, because otherwise it’s a star chamber, just purely by virtue of the fact that nobody is there,” she says.
“We want to do the right thing. If you don’t know the proper terms of the order, you can’t advise at all, because you can’t say what’s safe or not safe to publish. You can’t advise in a vacuum.”
Almost always successful
Kathryn Wilson works as in-house counsel for the Australian Broadcasting Corporation (ABC) and is currently Acting Team Leader, Disputes. She says her team fights suppression orders “at least monthly”, and that overlap with pre-existing statutory protections is very common.
Monitoring the incidence of suppression orders is important and if there’s an ongoing or pervasive trend, that’s a concern. However, if in a particular case particular measures are taken, I don’t think that tells us straight away if there’s cause for concern in other matters moving forward.
Professor David Rolph, The University of Sydney Law School
On Four Corners last year, the ABC ran a story called “I am that girl” about Saxon Mullins, a Central Coast woman who was the alleged victim in one of Australia’s most controversial rape trials. The story went viral and was watched around Australia but suppression orders initiallty prevented the ABC from revealing her identity – despite Mullins freely agreeing to be involved in the story.
“There was a statutory protection on Saxon’s identity, which allowed her to speak publicly if she chose to do that, but the courts in that case made non-publication orders on her identity on two occasions,” says Wilson. “That was well-intentioned, but it abrogated [Mullins’] freedom of speech, so we had to go to court to have orders lifted in circumstances where there were existing protections. Arguably, if we hadn’t been able to lift those orders, that story might not have been told – and certainly not that way.
“We’re almost always successful in having them lifted or varied, because we often find orders are made unnecessarily or they’re unclear or they’re not finite in their operation.”
Question of futility
Jason Bosland is Deputy Director of the Centre for Media and Communications Law at Melbourne Law School, whose research led to the introduction of the Victorian Open Courts Act 2013. He says public interest has resulted in a number of myths around suppression orders – the biggest of which is that they are futile in a digital environment, when foreign publishers and private individuals can publish whatever they like.
“The evidence just doesn’t support it,” Bosland says. “I’ve looked at thousands and thousands of suppression orders made in Australia and I can count on one hand the number that have been rendered futile by publication online.”
One of those is the infamous Underbelly case of 2008, involving the broadcast of a television show depicting events the subject of the contemporaneous criminal trial of Evangelos Goussis – a gangland hitman who was eventually jailed for murdering underworld figure Lewis Moran. The story was so popular with the public that the court held there was essentially no point in suppressing the trial.
Another example is the Securency case of 2015, which involved bribes that Reserve Bank of Australia employees paid to foreign officials. Media outlets joined together to fight a suppression order on the grounds that the information was published on Wikileaks and circulated so widely there was no point in trying to suppress it. The court agreed.
“The test is necessity,” explains Bosland. “Does the order remain necessary to protect the fair trial? If the information is so well-known that it can no longer be effective in protecting fair trial, then the order cannot be necessary.”
Professor David Rolph from the University of Sydney Law School argues that suppression orders still do play an important part in preserving the right to a fair trial, even in the digital age. He notes that only major media outlets have the resources and inclination to do court reporting and their influence is still far greater than that of private individuals.
However, Rolph says this is an area of law that needs to be watched to ensure suppression orders are not granted “too readily”.
“I think it is something that has to be monitored, but I’m concerned when people take a very binary view about those sorts of things,” he says. “The sorts of situations that arise can vary and it’s always a bad idea to try and argue about the efficacy of particular laws based on an exceptional or atypical case. Monitoring the incidence of suppression orders is important and if there’s an ongoing or pervasive trend, that’s a concern.”