| Court suppression orders still issued in their hundreds in Victoria |
Open justice is elusive despite the 2013 Open Courts Act. Suppression orders continue to be issued in great numbers by Victorian courts, and in some cases without giving a reason for the order.
Victorian courts are still issuing hundreds of suppression orders a year, including blanket bans on information which prevent media organisations from even reporting that a case is underway, despite new legislation in 2013 called the "Open Courts Act".
The findings have prompted calls for a government-funded "Office of the Open Courts Advocate" to argue in courts against the suppression of information.
A Fairfax Media investigation in conjunction with the University of Melbourne has found judges and magistrates have issued at least 383 suppression orders, plus almost 50 interim orders, since the act came into effect on December 1, 2013.
Suppression orders prevent reporting of all or part of a court case, and their use has exploded in recent years, including in Victoria.
State parliament passed the 2013 act to try to bring them under control and to "strengthen and promote the principles of open justice and free communication of information".
But the new analysis shows that, in the first year of its operation, 254 orders were imposed -- 35 in the Supreme Court, 102 in the County Court and 117 in the Magistrates Court. This was similar to the number issued before the act.
The courts were on track for a similar result in 2015, with 129 issued up to August 10.
"It is true that the numbers have not reduced," a Supreme Court spokeswoman acknowledged.
The Coroners' Court and the Victorian Civil and Administrative Tribunal, which were not included in the survey, are known to be even more likely to issue orders that prevent information being reported.
University of Melbourne researcher Jason Bosland, who analysed the orders (though not the suppressed information itself) from the three criminal courts, said there were several worrying aspects. The most concerning was the increase in the number of blanket bans.
"What's unbelievable is that 37 per cent of the suppression orders are complete blanket bans – you can't publish anything about those proceedings at all," he said.
The wording is: "no report of the publication of the whole or any part of the proceedings".
"In terms of scope, a blanket ban is the most extreme type of order and should only be made in truly exceptional circumstances," Mr Bosland said.
Some orders were even broader. In the Magistrates' Court, a number of orders didn't say what was being suppressed, with the space in the order left blank.
A County Court order from 2014 issued a "prohibition on publication of any information of any kind relating to this matter". However, since the name of the defendant was also suppressed, it was difficult for the media to tell what it could not report.
The research shows that the most popular reason for a suppression order was to protect "the administration of justice". More than 200 were made on that basis, while 189 were made to protect the safety of witnesses and only four to protect national security.
Mr Bosland said judges and magistrates were using the "administration of justice" ground more and more broadly, for example, suppressing evidence they deem so embarrassing that it might affect a witness's willingness to give evidence if it were to be published.
"This is an expansion which has really taken off over the past few years ... and you don't want broad and open-ended categories of exceptions that didn't exist before, because this will erode the fundamental protection that open justice gives the whole system."
Worryingly, 28 of the orders analysed, including nine in the Supreme Court – 7 per cent of the total – did not specify what grounds they were granted on at all, even though the legislation requires it.
The study shows that 62 suppression orders were granted by the courts by themselves, 51 after a motion by the prosecution and 47 when the defence asked for it. Very often, the prosecution and defence agree to suppress information, and there is nobody to argue against them.
Justice Simon Whelan, of the Appeals Court, said recently this was "a real issue because the defence and the prosecution often have a joint interest in secrecy" and that, "unopposed applications are usually successful".
Mr Bosland said the state government consider appointing an open courts advocate to argue on behalf of the public in such cases.
Attorney-General Martin Pakula told Fairfax Media there were no plans to do this, though the Supreme Court chief justice Marilyn Warren has asked the state's barristers to consider filling that role "pro bono," or without charge.
The analysis shows the act has improved a number of areas of the courts' operations, including a big increase in the proportion which have an end date either at a particular time or in five years (the default under the act). However, even though this is a requirement under the act, 9 per cent of orders still do not include an end date.
The level of detail provided -- the grounds for the suppression order, and precisely what is suppressed -- have also improved as a result of court templates put in place following the introduction of the Open Courts Act.
Mr Pakula said the government "continues to monitor the effectiveness of the Open Courts Act and suppression orders more generally".
SUPPRESSION CITY
Robyn Lindholm
During the murder trial of "femme fatal" stripper Robyn Lindholm, the fact that she was the former girlfriend of gangster Al Gangitano or was linked to the Hell's Angels was suppressed by a Magistrate, as was "any adverse opinion" expressed about her.
Supreme Court judge Lex Lasry continued these orders during her trial, and added another for good measure, stopping the publication of "any image in any medium".
The measure was to prevent a risk to the "proper administration of justice".
Tony Mokbel
24 suppression orders kept the life and crimes of Tony Mokbel secret for years as drugs and murder charges made their way through the courts.
It stopped the Nine Network in 2008 from screening the Underbelly series in Victoria. In 2009, a judge ordered media organisations to remove all articles about him from the internet – an order later overturned on appeal.
The suppression orders were finally lifted when Mokbel pleaded guilty to serious drug trafficking charges in 2011.
Susilo Bambang Yudhoyono
In 2014 a Victorian Supreme Court judge suppressed the name of then Indonesian president Susilo Bambang Yudhoyono, and others, in connection with an alleged corruption scandal involving Australian note printing company in the Securency case.
The order was issued to save him embarrassment.
Wikileaks published the suppression order causing Yudhoyono to ask for an immediate clarification from Australia. The judge later ruled that, because it had now been so widely published, it was now useless, and the order was lifted.
After Bayley was convicted of Jill Meagher's rape and murder in 2013, he also faced three other rape trials. For two years, even in general stories about violence against women, Bayley could not be mentioned.
A number of media organisations inadvertently breached those orders, and each time, Judge Sue Pullen referred them to the police for investigation. She angrily delayed two trials by nine months each.
Only in March 2015, when Bayley was found guilty of all three rapes, could his full history be published.
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