Strong case for suppression scrutiny
Research suggests Victorian courts might be undermining the transparency of the justice system by overusing their power to block publication of case details, and that a public advocate should be created to protect the right to ‘‘open justice’’.
There is no doubt judges must have the power to issue suppression orders – publication of certain facts or speculation can undermine the fundamental rights to the presumption of innocence and a fair trial. But statistics indicate that Victorian courts are heavy-handed in the exercise of their extraordinary entitlement to quash free speech, a hefty responsibility. Just as the presumption of innocence is a pillar of the legal system, freedom of speech is a pillar of democracy and justice.
Media organisations are wary of the number of suppression orders pumped out each day, but do have the resources to contest anything but a fraction. The courts claim they issue them only when absolutely necessary, and that this is only a fraction of the overall cases.
Evidence encourages scepticism. Concern suppression orders might be overly used in Victoria is such that the state government launched an inquiry a few years ago. Former Court of Appeal judge Frank Vincent’s recently released report cited data showing Victoria, which has about a quarter of the nation’s population, accounts for about half the suppressions orders issued nationally in recent years. Research by the Centre for Media and Communications Law at Melbourne University has found that many orders made by the County Court and Magistrates Court are beyond their powers, some do not specify reasons, and more than 40 per cent are blanket bans.
The government has implemented a number of the recommendations, including restricting the use of suppression orders if other laws prevent publication, requiring courts to provide written reasons, and treating all suppression orders as ‘‘interim orders’’ for the first five days, so submissions can be lodged against them.
It is considering a further change, one for which there appears to be strong argument. The inquiry recommended an independent advocate be established to test suppression orders. Should the courts be confident all orders are indeed unimpeachable, they should have no objection to scrutiny by an independent expert whose overriding priority is the public interest. The values and principles involved are clear and crucial, but the tensions between them can lead to complex conundrums. That is why we would argue a well-resourced and transparently independent assessor could be a great merit. The government says it is open to the notion.
Commenting on the report, Attorney-General Martin Pakula said: ‘‘I asked Frank Vincent to review the Open Courts Act because I was concerned that suppression orders were being used too broadly ... His recommendations strike the right balance between the right to a fair trial and the public’s right to know.’’
We call on the state government to appoint a voice for greater transparency of courts’ important work. For years, too many suppression orders have been issued on relatively weak grounds. A public advocate would be a just calibration of the justice system.