A new report from Monash University reveals that Victorian courts issued the highest number of suppression orders in Australia in 2023, averaging more than one per day. The findings suggest Victorian courts accounted for nearly half of all national suppression orders, prompting major media organizations and legal experts to call for an urgent review of the state's Open Courts Act, particularly concerning orders granted on mental health grounds.
Victoria's Suppression Order Statistics Lead Nation
Research from Monash University, commissioned by the Melbourne Press Club, reported a staggering 521 suppression orders issued by Victorian judicial officers in 2023. This figure represents 47 percent of the 1,113 orders made nationwide.
Victoria's total exceeded the combined number of orders from South Australia, Queensland, the Northern Territory, Western Australia, and the ACT.
South Australia recorded the second-highest number with 308 orders, followed by New South Wales with 133.
Editors from Victoria's major newspapers and broadcasters have requested an urgent review of existing laws and the establishment of a media freedom act. The report characterizes Victoria's court system as the "least transparent" in Australia due to the frequent use of these orders, suggesting a "crisis" in court reporting.
Application and Transparency Concerns
Suppression orders in Victoria are governed by the state's Open Courts Act, which permits them under specific conditions, including preserving an accused person's right to a fair trial, national security concerns, or protecting victims or witnesses. The Act also emphasizes the principle of open justice as fundamental for maintaining public trust in the legal system.
Alicia McMillan, co-author of the Monash University report, observed that journalists frequently reported suppression orders are disproportionately granted to individuals with significant financial resources. This practice can restrict public knowledge of individuals appearing in court.
McMillan expressed concern that orders are currently being sought and granted based on concerns about reputational damage, which she argued is not a sufficient reason for anonymity in serious criminal proceedings.
She stated that the high number of suppression orders hinders journalists' ability to report, potentially affecting public faith in the transparency of the justice system.
Focus on Mental Health-Based Suppression Orders
A coalition of major media organizations, including The Age, The Australian, Herald Sun, The Guardian, ABC, and commercial broadcast networks, has petitioned Attorney-General Sonya Kilkenny to amend the Open Courts Act. The coalition aims to curb the use of suppression orders granted on mental health grounds, contending that their increasing number undermines open justice.
Currently, suppression orders can be granted if it is deemed "necessary to protect the safety of any person." This provision is increasingly being utilized by individuals, including sportspeople and politicians, who argue that public disclosure of their identity would negatively impact their mental health or psychiatric safety.
Victims of crime have reported feeling silenced by such orders. One woman, a victim of sexual assault, stated that her rapist used this provision to protect his identity during his committal hearing and trial, which she found unjust. Shadow Attorney-General James Newbury supported reform, noting that many victims feel silenced and that mental strain is inherent in serious legal matters.
Legal Experts Weigh In- Associate Professor Jason Bosland of Melbourne Law School, a contributor to the Open Courts Act's design, indicated the law intended mental health-based suppression orders to be "extremely rare." He noted the difficulty in distinguishing genuine mental health risks from attempts to avoid public scrutiny.
- Sam White, a media lawyer from Nine, argues that "harm to mental health wasn't contemplated when this legislation was introduced" and raises issues of equity due to the high cost of obtaining expert evidence for such applications.
- Prominent media lawyer Justin Quill described mental harm as the "new battleground" against suppression orders.
- Tom Silvagni: His identity was protected for 18 months based on claims that publication would damage his mental health, hindering his ability to instruct lawyers. The order was lifted after his rape conviction.
- Former Victorian councillor: His identity remains suppressed due to mental health arguments, after being charged with drugging and raping a 17-year-old.
- Kaawirn Ugle-Hagan: An order was granted on the basis that publishing his name would affect his footballing brother's mental health. This order was later revoked.
Proposed Amendments and Precedent
The media coalition proposes an amendment to explicitly define "safety of any person" as referring to a real and substantial physical safety risk from another person. This amendment aims to prevent defendants from using concerns about their mental health to obtain identity suppression. The coalition's letter argues that the "enormous recent increase" in these orders indicates their use as a tactic to circumvent open court principles.
The current Victorian Open Courts Act section on suppression orders was initially identical to a New South Wales law. New South Wales amended its law in 2018 to make it more difficult for defendants to secure suppression orders on mental health grounds, following a controversial case involving a paedophile whose identity was initially suppressed.
Official and Judicial Perspectives
Attorney-General Sonya Kilkenny stated the government is working to balance the need for court transparency with an individual's right to a fair trial. She did not confirm a review of the 13-year-old legislation but emphasized the importance of achieving the correct balance, referencing the recent ban on "good character" references in sentencing.
Former Supreme Court justice Betty King, KC, suggested that psychiatric reports used to justify mental health suppression orders pose a significant threat to court transparency.
King stated these reports should be subject to more rigorous testing in court, describing the current situation as a "misinterpretation." She also defended the broader use of suppression orders as necessary to ensure fair trials and prevent mistrials, dismissing the concept of an external reviewer for judicial decisions as impractical.
Courts Council chair Chief Justice Richard Niall criticized the Monash report, stating it did not accurately reflect the level of positive engagement between Victorian courts and the media. He claimed the report contained "misleading claims, selective citations and suppression order data which has been debunked as incomplete and misleading," and noted its failure to consult with the legal profession regarding the application of suppression orders. Chief Magistrate Lisa Hannan, County Court Chief Judge Amanda Chambers, and Supreme Court Chief Justice Richard Niall did not participate in the research.
Historical Context of Suppression Orders
The application of suppression orders in Victoria has been subject to scrutiny previously. In 2018, extensive suppression orders were implemented during the sex abuse trial of Cardinal George Pell. While Australian media was barred from reporting, international outlets published information, which highlighted challenges with modern suppression orders. Subsequently, several Australian media outlets faced significant fines for breaching these orders.
The Open Courts Act was last reviewed in 2018 by retired Supreme Court justice Frank Vincent. That review concluded that the number of suppression orders had not significantly decreased since the law's enactment and recommended increased education for judges on their appropriate use.