In recent years, there has been increasing criticism by elements of the media about the use of suppression orders and other restrictions on the publication of matters before the courts. Recently, there has been widespread reporting of a Monash University report about the state of media access to the Courts.
Liberty Victoria supports the Chief Justice’s statement on the Monash report and its flaws.
Open justice is a vital democratic principle. However, open justice does not mean open slather. Reporting on what may seem publicly interesting may not always be in the public interest.
In some cases, restricting access to information is necessary to protect important human rights, for example, to a fair hearing, safety and privacy (including of vulnerable persons and victims).
Additionally, as retired judge of the Victorian Supreme Court, Justice Betty King, explained recently, the community has an interest in ensuring cases are heard expeditiously, cost-effectively and as fairly as possible, thereby ensuring that justice can be served. Restrictions on publications can help achieve that goal.
The Monash report overlooks this important context.
The Monash report also relies on flawed data. Melbourne University Associate Professor Jason Bosland’s report “Debunking the Myth: Why Victoria is not the suppression order capital of Australia” — published in 2020 — highlights the problem of using raw statistics based on incomplete data, as the Monash report does, to conclude that Victorian judges are more likely to make suppression orders.
As the Bosland report explains, Victoria is one of only two Australian jurisdictions which routinely provide media organisations with a notice about every suppression order issued by every court in the state and, relative to its population, has one of the lowest per capita number of suppression orders for individual cases.
It is very disappointing that the Monash report failed to consider this research.
Further, recent criticism that applicants for suppression orders can hide their identity on the grounds of mental health issues and concerns about potential self-harm has failed to properly consider how the courts determine applications.
Evidence relied upon by applicants can always be tested in courts, whether through cross-examination of an expert or by the adducing other evidence. Courts must assess whether the evidence is sufficiently robust to support making an order, and these applications are regularly refused.
Finally, it is relevant that elements of the media, relying on what is a deeply flawed report, have a financial interest in increasing the publicity of matters before the court. We must be careful that we do not sacrifice important protections, including our fundamental right to a fair hearing, based on a media campaign.
Unfair criticisms of courts, such as those contained in the Monash report, serve only to undermine confidence in the judicial system — which leaves us all worse off.
https://www.supremecourt.vic.gov.au/news/statement-from-the-chief-justice