Secrecy in Victoria’s courts is rife. Here are 6 reforms that would make the system better
- Written by: Weekend Times
In late June, Victoria’s Attorney-General Sonya Kilkenny committed to reviewing the operation of the state’s Open Courts Act. This follows a period of immense public scrutiny of the state of open justice
in Victoria following two high-profile events.
The first was the public consternation that followed the revelation that convicted rapist Tom Silvagni, son of football legend Stephen Silvagni and media personality Jo Silvagni, had obtained a suppression order over his identity on mental health grounds.
Unfortunately, there are many more such cases, but we can’t discuss them as they remain suppressed.
The second was the publication by two Monash academics – since debunked – suggesting Victoria makes more suppression orders than almost every other jurisdiction in Australia combined.
While Victoria may not deserve the mantle of “suppression order capital” of Australia based on statistics, there’s no doubt open justice is at crisis point in the state. Secrecy is widespread, and judicial disdain and scepticism for the media’s role in open justice is rife.
The importance of the principle of open justice cannot be overstated. Publicity ensures that judges act fairly, impartially and according to law. It’s fundamental to the operation of the rule of law: that everyone is equal before the law and must obey it.
Addressing this situation will require a lot of work. Here are six issues that should be central to reforming the court system in Victoria.
1. Suppression orders on mental health grounds
There needs to be a tightening up of suppression orders being made to prohibit the publication of an accused’s identity based on the mental health consequences of publicity (like in the Silvagni case).
Such orders fall short of public expectations. They create a perception (if not a reality) that those with the financial means to hire expensive lawyers and to pay for psychiatric reports obtain special treatment in our courts.
Furthermore, as one psychiatrist recently explained:
How can any psychiatrist confidently separate the effect of publication from the effect of being accused, charged, discussed within one’s family or community, exposed to gossip or social media, brought before a court, or ultimately tried and convicted? […] A psychiatrist may reasonably conclude that a person is vulnerable. It is far harder to say that naming them, rather than the prosecution itself, is the decisive additional factor.
2. Time limits
Statutory time limits need to be placed on “interim” suppression orders.
Interim orders are meant to operate as short-term orders to preserve the status quo until the court can consider the merits of a suppression order.
Interim orders should operate for no longer than a few days. This is the law and practice in both South Australia and New South Wales.
In Victoria, they routinely operate for weeks, if not months. Recently, one interim order remained in place for nearly six years.
3. Pseudonyms and concealment
Pseudonym orders and concealment orders (orders which require that parties or witnesses be referred to in court and in court documents by a pseudonym, or require that material be withheld from members of the public who are in court) are not covered by the Open Courts Act.
Furthermore, courts approach the granting of pseudonym and concealment orders much more flexibly than the granting of suppression orders.
This does not make sense. Pseudonym orders and concealment orders operate, in effect, as de facto suppression orders.
Indeed, contrary to what the courts have said, they are more restrictive than suppression orders. Not only do they restrict the publication of reports of proceedings outside of the court, they also restrict what the public in court may know about the identity of participants or particular aspects of a case.
4. Publishing legal reasoning
The Open Courts Act should include a statutory requirement that courts issue publicly available reasons for all decisions, other than minor matters.
This obligation is already recognised as part of the common law of open justice. However, too many judges ignore it. I know of several instances where County Court judges have refused to provide copies of reasons for final decisions, even though no suppression order prevented publication.
Open justice, including the public availability of reasons, should never be at the whim of individual judges.
5. Making documents publicly available
A right to public access to documents filed with the court and documents and exhibits used in open court should be included in the act.
At present, if the media want to report on a trial by using exhibits put before a jury (such as photographs or film footage), they have to put in an application to the trial judge.
The judge’s decision on access is inevitably kicked down the road until the end of the trial, possibly after verdict, by which time the newsworthiness in reporting the case will have evaporated.
Contrast to the position in England and Wales , where under a protocol first established between the media and the Crown Prosecution Service in 2005, exhibits are made available to the media at the end of each day of a criminal trial as matter of routine. This bypasses the courts and has never led to an issue, let alone a mistrial. Not once.
6. Open justice advocate
The system would benefit from the introduction of a fully-funded, independent Open Justice Advocate.
This is particularly needed in the current environment where the media’s capacity to perform such a protective role is dwindling.
Open justice is the main way by which the judicial branch of government is held to account. A principle with such constitutional importance should not be left without an effective institutional guardian.
Jason Bosland does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
