Arthur Moses, SC
Suppression orders and open justice

The rise of the digital age has virtually thrown open the doors of Australian courts far wider than the jurists who first wrote of the need for open justice could have imagined.

Much has been said in recent weeks about the operation of suppression orders in high-profile cases. From the DPP v Pell, to the naming of “Lawyer X” Nicola Gobbo, the subject of the ongoing Victorian Royal Commission into Management of Police Informants, and the lifting of a suppression order in the case of former Labor Party branch president Peter Hansen.

A common element in these discussions has been vigorous debate over whether the use of suppression orders impermissibly jeopardises the long-held principle of open courts and open justice. At its core, this issue involves striking the right balance between open justice including the public interest in court reportage, and an individual’s right to a fair trial.

More often than not, these principles are mutually reinforcing. Article 14 of the International Covenant on Civil and Political Rights provides that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. The significance of the double-barrelled requirement that a hearing be both fair and public should not be underestimated.

Undeniably, there are matters where it can be argued that suppression is also in the interests of justice. Where competing tensions arise, recent experience suggests we need to reconsider and recalibrate that balance in this age of digital communication and globalisation. We must ensure suppression laws are fit for purpose and promote, not curtail, the administration of justice.

Open justice requires not only that justice be done but that justice be seen to be done. This means that, wherever possible, the media should be able to report on matters before our courts.

Court reporting is critical to protect the integrity of our justice system, to promote fair and transparent trials, to safeguard against arbitrary or idiosyncratic judicial decisions, and to maintain public confidence in the judiciary and courts.

Court reporting also serves the purposes of our justice system and the very policy reasons why society criminalises behaviour, including to educate and to deter.

There is an important place for journalists in our courtrooms to faithfully and honestly report on justice in action. The Australian Press Council once suggested the media is “a trustee of the public interest” in these matters.

The fourth estate is a crucial check-and-balance on the three arms of government, including the judiciary.

Unlike the executive or the legislature, the judiciary is not elected. Former High Court chief justice (Francis) Gerard Brennan explained that the “power base” of the judiciary is public confidence. In his words, the judiciary does not have, nor does it need, “the power of the purse or the power of the sword to make the rule of law effective, provided the people whom we serve have confidence in the exercise of the power of judgment”.

The trouble is we live in an age where the public’s trust in traditional institutions – our banks, churches, parliaments, governments, courts, law enforcement and lawyers – has been eroded.

The public and media are right to query any interference with the openness of our courts. Suppression orders, by nature, impede open justice.

The question is whether this can ever be justified.

That question can only be answered by stepping back to consider whether the laws that govern suppression orders are appropriately calibrated to give effect to their real purpose.

Legislation governing suppression orders is inconsistent between state, territory and Commonwealth jurisdictions. Hundreds of statutes grant varying powers to courts to make suppression orders on a wide range of issues.

Suppression orders serve vital purposes in some cases, including to insulate a trial from unfairly prejudicial evidence against the accused, protect the safety of a witness or victim, vulnerable people or children, and prevent evidence being compromised.

Law reports are rich in common law principles that ground these statutes, some principles developed centuries before the internet. Close attention is required to ensure the spirit of this law is maintained in the face of contemporary challenges, not frustrated by modern technologies.

So, in the aftermath of the DPP v Pell, are we asking the right question?

Both principles – open justice and the right to a fair trial – are worth defending. In this, there is furious agreement. The issue is how to best uphold both principles in modern courts and a modern media.

The Law Council of Australia is calling for national uniformity of suppression orders and an examination of whether these laws need to be reviewed in the digital era, to ensure these mechanisms remain fit for purpose. We have asked the attorney-general, Christian Porter, to refer the matter to the Australian Law Reform Commission for inquiry.

Harmonisation must be a key consideration. This was put on the table 10 years ago by the standing committee of attorneys-general and nothing has occurred to bring it to fruition. The time to act is now. One tenet of the rule of law is that legislation must be knowable and able to be obeyed. Current laws create confusion and uncertainty for journalists and the public.

The state of Victoria commissioned a report into suppression orders, delivered in 2017 by Frank Vincent, QC, and a reform process is under way. The Law Council will carefully consider these reforms and crucially their impact in practice, to determine whether any of the measures should be recommended for adoption by other jurisdictions. The New South Wales attorney general has also announced a review of suppression laws. While reform is undoubtedly necessary, it cannot be truly effective without a national focus and a national discussion.

The internet has no borders. This has in many ways advanced the administration of justice by enabling legal professions around the world to shine a light on abuses of the rule of law and human rights, which might not otherwise be possible.

A corollary is that something suppressed in Australia can be reported in other countries by journalists who have not been present in the courtroom.

Vincent conceded: “Quarantining a jury from all outside influences and information has always been extremely difficult, but, in many cases, it is now virtually impossible” due to the internet and social media.

We must rethink our approach.

Australian journalists are among the best trained and respected in the world. Informed reporting by Australian journalists of our legal system maintains public confidence in the judiciary and the courts. Where there are sensitive matters, it is preferable these be handled by Australian journalists who understand and respect our legal system.

Consequently, we should consider whether alternative mechanisms such as jury directions could be better deployed in place of suppression orders to take account of modern realities.

In considering reform, we must ensure due respect is shown to all concerned – from journalists, to those on trial, to the juries we entrust to deliver verdicts on behalf of our community, to judges called to make difficult decisions on whether to suppress information.

Because striking the right balance on this issue is important to us all.

This article was first published in the print edition of The Saturday Paper on March 9, 2019 as "Law and orders".

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Arthur Moses, SC is the president of the Law Council of Australia.

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