Open Court and the problem with suppression orders

When it comes to big, brassy flourishes about the inherent nobility, fairness and majesty of their function in life, there are few more superlative at the task than lawyers and judges.

Take the long-held principle of open justice, one of the bedrocks of democracy. In one clean sweep the 19th-century legal philosopher Jeremy Bentham – “the present but non-voting member” of University College London – said the very thing everyone likes to trot out:

“Publicity is the very soul of justice. It is the keenest spirit to exertion and the surest of all guards against improbity. It keeps the judge, while trying, under trial.”

More modern people have repeated the sentiment in different forms. Lord Justice Toulson said in one of the recent English open justice cases, Guardian v City of Westminster Magistrates Court, that: “The rule of law is a fine concept, but fine words butter no parsnips ... In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light…” Blah, blah, blah.

And it’s impossible to go far in life without finding a relevant quote from Justice Michael Kirby: “It has often been acknowledged that 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…”

The flame of freedom and openness brightly shines aloft, except on the ever increasing occasions when it doesn’t – when justice deems that too much of a good thing is bad for itself, and where it’s “necessary” or in the “public interest” to bring the shutters down and snuff out the light.

Judges are absolutely paranoid about juries and fear that criminal trials will run off the tracks because of prejudice.

Former Victorian Supreme Court judge Philip Cummins describes this as “slippage”, where considerations of the “prophylactic or therapeutic” take over. At a symposium on suppression orders held last month by the Melbourne Press Club, he warned of a danger where the principle of sub judice is “supplanted by erroneous suppression orders”.

At the moment there is a small tsunami of suppression orders flowing from the courts, preventing publication of details of important criminal trials, particularly in New South Wales and Victoria.

You can appreciate the difficulty of writing about a subject the pertinent details of which are forbidden to be mentioned, on pain of prosecution for contempt. Suffice it to say that almost daily there are orders from judges preventing the media, and therefore the public, knowing many things, including recently: the reasons why the Roger Rogerson and Glen McNamara murder trial ran off the tracks and the jury was discharged; identities of witnesses in the Robert Xie murder case; the name of a deceased in another trial; numerous orders preventing publication of pre-trial applications and judgements in the forthcoming Eddie Obeid criminal case; and even, in another case, exchanges between Justice Michael Adams of the NSW Supreme Court and the bar table “throughout the hearing”.

In many instances there are orders – which seem to be on the cusp of super-injunctions – where mention of the very fact that a pre-trial application has been heard is suppressed.

A week ago a generalised and very unsatisfactory order was made by a magistrate suppressing the names of all the survivors of Sydney’s Family Court bombings, and if these victims have been identified previously those stories will have to be removed “immediately”.

The court did not specify whose names should not be published and the media muffin from the Department of Justice was not exactly going to depart from an ancient script after a newspaper lawyer requested more information. Apparently it is up to your reporters to determine whether a victim is alive or not. The court is not going to provide further details and the files can be viewed at Campbelltown courthouse but cannot be copied.

This sort of suppression order seems to be well within the ambit that Justice Kirby, as he then was, and other luminaries were so anxious for the courts to avoid.

Last month an email was fired off to media organisations from the acting NSW director of public prosecutions, in relation to the forthcoming criminal trial of Eddie Obeid. The prosecutor wants the media to refrain from publishing certain widely known findings of the Independent Commission Against Corruption (ICAC), presumably in the hope that if they are not mentioned for the next few months then a jury will have no idea that such things ever existed.

Attached to the email was a spreadsheet itemising about 1800 articles concerning Obeid, explaining that they should be removed from the internet. If they are not, it is conceivable that proceedings against relevant media organisations will be commenced.

It’s questionable if these take-down requests, or orders, are as effective as the authorities hope. In 2011 a NSW judge ordered that a large number of stories about a notorious criminal, in prison in Victoria for murdering two police officers and another person, be removed from the internet because he was facing trial for another murder in NSW.

While the mainstream media attempted to scrub their news websites clean of the old stories, a Google search of his name at the time of his conviction in NSW revealed that there were literally hundreds of stories still readily available online about his past crimes, including on Wikipedia and countless Facebook entries and crime websites hosted all over the world.

Compliance varies, depending on who is the publisher and where the information is hosted.

The Victorian courts are even more energetic in dishing out suppression orders. On one day within the past month there were eight orders suppressing publication of current proceedings, in whole or in part. Eight a day from a single jurisdiction must be some sort of suppression record.

The odd, but not entirely surprising, aspect of this is that suppression, no-publication and take-down orders only started to really blossom once there was legislation in NSW and Victoria that consolidated the powers the courts had inherently long possessed.

The Victorian Open Courts Act is in keeping with Orwellian traditions, and has exactly the opposite effect to that suggested by its title. The NSW model is the more wordy and even less worthy Court Suppression and Non-Publication Orders Act.

In one breath they say a primary objective of the administration of justice is to safeguard the public interest in open justice, and in the next they say it is just as important to safeguard the administration of justice itself.

The courts have taken this to mean that protecting their patch overwhelms fine notions of protecting the public’s patch. The consequence is that more and more of the work of the courts is conducted in secret, upending Bentham’s idea that the judge, while judging, is under trial.

In Victoria, there was the notoriously farcical suppression order surrounding the Securency banknote bribery case. In June 2014 the Supreme Court acceded to an application under the Open Courts Act by the Department of Foreign Affairs and Trade to suppress publication of the names of 17 leading politicians and government officials from the region, including “any current or former prime minister of Malaysia”, the president of Vietnam, the then president of Indonesia, Susilo Bambang Yudhoyono, and former president of Indonesia Megawati Sukarnoputri.

The fact that the suppression order was made could not be published, and it was all done because DFAT persuaded the court that if these names were reported in connection with the bribery case then it would cause damage to Australia’s international relations.

As a rightly indignant SBY said a month later, while the suppression order was still in force in Australia, the damage to our international relations was done because no one was able to explain why his name and that of his officials was gagged.

Of course, WikiLeaks had the forbidden fruit plastered all over the web and issued a press release on its website and on Twitter to its 2.3 million followers.

It was a year after the order had been breached that the Supreme Court of Victoria rather sourly revoked it, with Justice Elizabeth Hollingworth saying: “The widespread online dissemination that has already occurred cannot now be undone.”

Now that vast swaths of the world’s population are online publishers, using platforms such as Twitter and Facebook, overarching court orders have become much more porous. This was shown to be so in Britain where in the Trafigura case and that of high-profile football players, the suppression of corporate misbehaviour and private dalliances was gaily breached by tens of thousands sending out their two-bob’s worth on social media.

Certainly the main aim of the Australian courts has been to protect the sanctity of the jury system, which is said to be the least worst method of finding an outcome for an accused person.

Judges are absolutely paranoid about juries and fear that criminal trials will run off the tracks because of prejudice. This anxiety on the part of the judiciary actually reflects a lack of faith in jurors, so much so that, ludicrously enough, if a juror steps outside the tight confines of the way trials are conducted, such as doing private research, they can be punished, even sent to jail.

The courts conspicuously have been unable to adjust to a world where suppression orders, no-publication orders, injunctions, super-injunctions and take-down orders can in large part be ignored by a vast array of self-publishers. How then can the jury system continue to operate along traditional lines?

Justice Wilmot, an 18th-century English judge, was a great believer in the law of contempt because, he said, it kept the courts surrounded by a “blaze of glory”. Issuing orders whose observance a lot of people now regard as optional has rather doused the blaze and dimmed the glory.

Open Court and the problem with suppression orders