Victorian Chief Justice Marilyn Warren

Victorian Attorney-General Martin Pakula has stayed decided out of a battle over the state judiciary’s use of suppression orders, after an extraordinary spray in their defence from the Victorian Chief Justice.

On Monday, Victoria’s Chief Justice Marilyn Warren wrote a highly unorthodox op-ed in The Age defending the state’s use of suppression orders, after an analysis by Melbourne University academic Jason Bosland found the Victorian Open Courts Act, implemented in 2013 to reduce reliance on suppression orders, had had no marked effect.

Unusually, the state’s Attorney-General has not come out in support of the state’s top judge nor the operation of the courts, with a spokesperson responding to Crikey‘s queries with a brief statement to say the government was monitoring the situation. “The government continues to monitor the effectiveness of the Open Courts Act and suppression orders more generally,” the spokesperson said.

Suppression orders are legal orders created by a court preventing the publication of things like names, criminal histories and other factors where publication is deemed likely to influence the course of justice in a court case. They can be issued to prevent prejudice on a part of a jury, to protect the names and reputations of victims, or to prevent embarrassment. While difficult to enforce in the internet age, they are viewed by much of the legal profession as a key component of ensuring justice. For journalists, they are a frequent complication in court reporting, and necessitate the employment of expensive media lawyers. Those who do not avail themselves of legal advice can and do frequently fall foul of such orders, potentially jeopardising ongoing cases and facing possible sanction themselves.

In 2013, the Victorian Open Courts Act created a legal presumption in favour of disclosure and open justice. It limited the grounds on which suppression orders could be granted by Victorian Courts — there was hope this would limit the use of suppression orders. But an analysis by Bosland published in The Age earlier this month found no marked decrease in the use of suppression orders since 2013. Bosland had previously done an analysis of Victorian courts from 2008-2012, which charted both the number and breadth of Victoria’s suppression orders and has confirmed many of the anecdotal claims about the broad scope of such orders issued in Victoria.

Lawyers and experts Crikey spoke to for this piece generally declined to comment on the record, not wanting to get into a public tit-for-tat with the Chief Justice. Nonetheless, the stridency of the piece caused a tremor throughout the profession.

As well as a robust defence of the use of suppression orders, Warren directly addressed and defended several orders that had been criticised by The Age as being unnecessary. Her op-ed said current criticism of the use of suppression orders risked undermining “confidence in, and respect for, the judiciary”. And she took aim at media criticism head on:

“No suppression order issued in Victoria’s Supreme Court is made without a valid reason. They are certainly never issued on ‘relatively weak grounds’ or ‘for good measure’.”

She dismissed claims that Victoria issued more suppression orders than other states:

“Victoria is the only state that maintains a database of all suppression orders issued — so it is therefore difficult to compare the number of orders made here against other Australian jurisdictions. The Victorian Supreme Court figures are certainly on par with our New South Wales counterpart, however.”

The media’s criticisms of suppression orders, she added, were self-interested: “Crime sells.” She also wrote that media representatives did not often attend court to argue against suppression orders, which are always granted in open court. As an example, she used the high-profile injunction in a bribery case, which the media, including Crikey, reported on only after WikiLeaks published the order:

“Notification of the application was emailed to 90 members of the news media and their lawyers, yet no journalists, or lawyers acting on their behalf, attended the hearing six days later when submissions as to why it was necessary were made in open court.

“Instead, the media inaccurately reported — only after the contents of the order had been published on the controversial news-leak website WikiLeaks — that a ‘super injunction’ and ‘blanket ban’ prevented them reporting the case.”

Objecting to suppression orders in court costs money, and in these days of falling profits and squeezed revenues, media organisations just don’t have the cash, insiders say — particularly as most suppression orders merely delay publication of certain facts. “It’s too expensive for the media to pay for lawyers to attend court to oppose the issuing of a suppression order,” one lawyer said when asked to respond to Warren’s criticism.

Partly in a bid to address this, the Victorian Supreme Court will soon implement a service where judges will be able to call on barristers in the Victorian Bar on a pro-bono basis to make submissions on public interest grounds about why suppression orders shouldn’t be granted, given media organisations no longer are able to pay to fulfil this role. The initiative has been welcomed by media lawyers in Victoria, and is being closely watched interstate. “The Victorian Chief Justice should be commended for advocating and encouraging the Victorian bar to implement this,” another lawyer said. “It’s a very good development.” Others were more circumspect. “It does seem a little unfair to require barristers to work for free to defend a fundamental institution of the legal system,” one noted.

Criticism of the use of suppression orders isn’t hard to find in legal circles, even among the ranks of the judiciary. For example, Victorian Supreme Court of Appeal judge Justice Simon Whelan told the Melbourne Press Club in July that judges often issued orders that were unnecessary because they were overly cautious or defensive.

“The Chief Justice has come out and defended suppression orders in this way when you’ve got current and former judges who are quite open in saying they’ve seen courts make orders that aren’t justified,” another lawyer said. “To deny there’s a problem in the way she has kind of reinforces that there is a problem.”