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Panpa Bulletin : June 2006
22 | PANPA BULLETIN June 2006 MEDIA LAW MarK PolDen It is common for any journal- ist who has covered courts to have seen or heard of a suppression order being made. Unsurprisingly, the reaction of the editor or publisher who is told about the order is usually one of immense frustration. These stories evoke a paper's desire to let the public know what is happening but are most likely to involve an application for a suppression order. Typical cases involve serious product tampering or national security issues, proceedings in which the identity of convicted gang rapists and drug-using ce- lebrities is likely to be revealed, or information tending to identify a police officer, local government councillor or person in religious orders who is charged with a seri- ous offence, usually child sexual assault. So, what is the basis upon which such orders may be made and, perhaps more importantly, can they be challenged? Open Justice A foundation principle upon which our legal system operates, equal in importance to trial by jury, the presumption of inno- cence and the privilege against self-incrimination, is the princi- ple of open justice. This principle requires that justice not only be done, but be seen to be done; that justice takes place in public, not behind closed doors. A corollary of the open jus- tice principle is the right to make a fair report of court proceedings. That right out- weighs the right to reputa- tion, so that a publisher who makes a fair and accurate report or summary of court proceedings, no matter how defamatory or damaging it may be, has a good defence to any defamation case which may be brought. Exceptions to Open Justice - Common Law There is a narrow and well-de- fined class of case in which the common judge-made law, as op- posed to statute, recognises excep- tions to the open justice principle. The main exceptions involve po- lice informers, blackmail and extor- tion, trade secrets and confidential information, national security and public interest immunity. Some of these categories may overlap. Exceptions to Open Justice – Legislation Awide range ofstatutesimpinge substantially on the open jus- tice principle. Those most com- monly encountered involve laws which prohibit the identification of children involved (whether as the accused, victim, witnesses or a person related to any of these) in criminal, adoption or care pro- ceedings; identification of victims or complainants in connection with proceedings for sexual of- fences; laws limiting or prohibit- ing reports of Coronial inquests and Family Court proceedings, and anti-discrimination laws. Powers of Courts State and Territory Supreme Courts (including the Court of Appeal), the Federal Court and the High Court have wide ranging powers to suppress information, whether in the interests of the particular case with which they are dealing at the time, or in the interests of justice generally. Local Courts, Magistrates' Courts, the District Court (or County Court) and various tribu- nals (such as the Police Tribunal) have much narrower powers, to make orders in the interests of justice in the particular case be- fore them. Basis for Orders The starting point is that a court can only depart from the principle of open justice where its observance would frustrate the administration of justice or some other public interest for the protection of which Parlia- ment has modified the open justice rule. The principle of open justice also requires that nothing should be done to dis- courage the making of fair and accurate reports of what occurs in court. Who is Bound? Courts have no general power to control people in their conduct outside the courtroom. That is an exercise of legislative, as opposed to judicial power. Court orders are binding, however, upon the par- ties, witnesses and others present in the courtroom. Obviously, this incudes reporters present in court. Despite this, conduct outside the courtroom which deliberately frustrates the effect of a court or- der (for example, by disclosing a name which is known to have been suppressed) may constitute a contempt of court. For this rea- son, it is increasingly common for courts to email such orders to news media, to put them on no- tice that orders have been made. It is also becoming common for the lawyers acting for parties who have obtained a suppression or- der to email or fax copies to news media who were not present in court, in an effort to ensure that they are caught. Challenging Suppression Orders The media has the right to be heard in opposition to a suppres- sion order, or to make an applica- tion to have an order overturned. That right is, however, subject to the court's convenience in sched- uling its business. It is also subject in some narrow categories of case (for example, in NSW, the case of children found guilty of serious indictable offences like murder and rape) to laws which effec- tively require the application to be made at a particular time (for example, at the time of sentenc- ing). In some of these cases, there is no power for the same or an- other court to revisit the decision at a later date. If an order is to be challenged, it is important to give the court notice at the earliest possible op- portunity of the media's desire to be heard. In practical terms, delay can easily mean that an applica- tion is not worth making because of the substantial cost and delay in getting it overturned, particularly if it becomes necessary to re-con- vene the original bench (which may involve more than one judi- cial officer) which made the order, and to ensure that Counsel for the parties to the proceedings can also be present. Mark Polden is a media lawyer with John Fairfax Holdings Limited. A publisher who makes a fair and accurate report or summary of court proceedings, no matter how defamatory or damaging it may be, has a good defence to any defamation case which may be brought Case closed or open slather? Suppression orders whet the media’s appetite and Mark Polden explains whether they can be challenged.