Targeting Secrecy in the Suppression State

A long-awaited overhaul of federal suppression order laws should clear up confusion for courts and journalists. Minter Ellison lawyers Sandip Mukerjea and Mark Silberer say it's a win for open justice and 'the suppression state.' Victoria, should follow suit.

A long-awaited overhaul of federal suppression order laws should clear up confusion for courts and journalists. Minter Ellison lawyers Sandip Mukerjea and Mark Silberer say it's a win for open justice and 'the suppression state.' Victoria, should follow suit.

On 23 November 2011, Attorney General Robert McClelland announced a new bill to substantially reform the powers of Commonwealth Courts in relation to suppression orders.

The new bill follows the passage of similar legislation in New South Wales (the Court Suppression and Non-Publication Orders Act 2010 (NSW)).

Both the federal bill and the NSW Act are products of the model suppression order law developed by the Standing Committee of Attorneys-General (SCAG).  The SCAG model legislation was developed in response to criticism from the legal and media community concerning the volume and breadth of suppression orders granted by some state courts, particularly in Victoria and South Australia.

One of the major components of the model law was the recommended introduction of an express reference in suppression order legislation to the over-arching public interest in open justice, and an express recognition that the primary objective of suppression order powers should be to safeguard the open administration of justice. This recommendation was implemented in the NSW Act and has been adopted in the federal bill.  Theoretically, it should make it more difficult to obtain suppression orders.

Less favourable to media proprietors was the recommendation in the model law of an additional basis on which to grant suppression orders, namely, where it is 'otherwise in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.'  The NSW Act incorporates the additional 'public interest' ground for suppression but, significantly, the federal bill, as presently drafted, deliberately excludes it in order to narrow the court's power to make suppression orders and ensure that the principle objective of open justice is promoted and observed. 

According to Attorney-General Robert McClelland, the bill is designed to “assist courts to appropriately craft suppression orders, so that they are only made when they are clearly justified, and in as narrow terms as necessary to achieve their purpose, recognising the important rule that open justice plays in upholding the rule of law.”

The incorporation of specific recognition in the federal bill of the over-arching public interest in open justice, coupled with the deliberate rejection of an additional 'public interest' ground for suppression, has the potential to significantly improve access issues for journalists in relation to Federal Courts and represents a welcome departure by the Federal Government from the approach recommended by SCAG and adopted in NSW.  The SCAG model and NSW Act give rise to the paradoxical risk that legislation intended to reduce the number of suppression orders may actually result in more such orders being made on the basis of vague 'public interest' notions.  It would also increase uncertainty and predictability in suppression order matters, making it more difficult for media proprietors and journalists to assess whether or not to oppose (often at great expense) particular applications for suppression orders.

In addition to the above matters, the federal bill offers several advantages over the current federal and Victorian suppression order laws as it provides much clearer legislative guidelines with respect to:

1. the grounds on which suppression orders can be made;
2. what information suppression orders can cover;
3. how long such orders should last for (the bill requires the Court to place a time limit on all orders);
4. how broad the orders can be;
5. what information the orders should contain (that is, how precise they need to be); and
6. who can apply to have a suppression order made and who may be heard in opposition – in particular, the standing of the media to intervene is expressly acknowledged.

A similar legislative initiative would be most welcome in Victoria.  A new Victorian Act in similar terms to the federal bill would consolidate the multitude of suppression order powers that currently exists in Victoria, thus establishing a modicum of simplicity.  It would also displace the curious statutory power vested in Victorian courts to suppress information not derived from the proceedings before them.  Currently, the Magistrates’, County and Supreme Courts of Victoria have a statutory power to suppress any 'specified information' for a specified period of time.  This is often used by the courts to issue far-reaching suppression orders which suppress information of all kinds, including information that was not before the Court or which was obtained from an independent source.

In contrast, the federal bill limits the Court's suppression power to the issue of orders relating to the identity of or information concerning parties or witnesses in proceedings, and any other information derived form the evidence or documents tendered in proceedings.

The repeal of this wide-ranging Victorian power in favour of the more limited federal formulation would be provide a significant boost to open justice in Victoria – albeit that the Supreme Court would retain an inherent, common law jurisdiction to suppress information not derived from proceedings, where to do so may be necessary in the interests of justice.

Sandip Mukerjea and Mark Silberer

Minter Ellison