Open justice: A national approach?
This speech was delivered by the Hon Justice Michael Lee at the Boojarah (Margaret River) Conference, on 8 September 2024.
The Hon Justice Michael Lee was appointed a Judge of the Federal Court of Australia in 2017, and is based at the Sydney Registry of the Court. He holds a commission as an additional judge of the Supreme Court of the Australian Capital Territory.
His Honour was born in Perth but was raised in Sydney. After graduating in law from the University of Sydney, he commenced work as a solicitor in 1989 with a firm that later became one of Australia’s largest national partnerships. He was made a senior associate of the firm in 1992 and was appointed its youngest partner, in 1995. He eventually became a senior litigation partner and national practice group leader before coming to the New South Wales Bar in 2002.
His Honour developed a nationwide and eclectic practice and acted in a very broad range of superior court matters at both first instance and on appeal. He took silk, after 9 years, in 2011. Both before and after taking silk he acted in both civil and criminal matters.
His Honour, while at the Bar, appeared primarily in Sydney and Melbourne but also conducted cases in every superior State and Territory Court throughout the Commonwealth.
In 1923, a man named Mr McCarthy collided with another vehicle while riding his motorcycle. Mr and Mrs Whitworth sustained injuries and sued Mr McCarthy for damages. The police charged Mr McCarthy for dangerous driving.
At the hearing of the charge, when the justices retired to consider their decision, a temporary deputy clerk of the Magistrates’ Court retired with them. As it happened, the deputy clerk was a partner of the firm acting for the Whitworths. Mr McCarthy’s solicitor gave evidence that had he known of that fact, he would have taken an objection prior to the commencement of the trial. He applied to have Mr McCarthy’s conviction quashed.
The justices gave evidence that when retiring to consider their verdict, they had not consulted the deputy clerk, on either the evidence or the law. For this reason, it was argued that the decision was not affected by bias. Lord Hewart CJ disagreed. In giving his reasons, his Lordship said the following:
It is said, and, no doubt, truly, that when [Mr Langham] retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. 2
I have previously explained why is ironic (in the true sense of that word) that an aphorism so well-known to the law, and repeated on innumerable occasions in the context of apprehended bias, was penned by Lord Hewart. 3 Prior to his appointment as Lord Chief Justice, Sir Gordon Hewart was the Attorney-General and very much wanted to become Lord Chief Justice despite having no judicial experience (and having a temperament memorably described by a contemporary, C P Harvey, as lacking “the one quality that should distinguish a judge: that of being judicial”). 4
By reason of what has been described as “a peculiar, and thoroughly undesirable convention” by Graeme Williams KC (in his amusing work A Short Book of Bad Judges), the Attorney- General had a first right of refusal upon the post falling vacant. The famously wily Prime Minister, David Lloyd George, belatedly engineered it for him by initially appointing an ancient puisne judge (Lord Trevethin) to the post, subject to procuring an undated but signed letter of resignation, which was later triggered, but only after Lord Trevethin read of his own resignation in The Times. 5
By way of an aside to anyone interested in defamation, the Lord Chief Justice went on, among other things, to preside over one of the worst conducted defamation trials in English history, The Nottingham Journal Case. He received communications from the jury which were not disclosed to counsel; failed to leave critical issues with the jury; and, when the jury indicated a tentative view in favour of the defendant, hurried to engineer an early conclusion to the trial before the jury had time to change their minds. 6 In 1940, Lord Hewart was asked by 10 Downing Street to resign, and did so a short time later; garnering a reputation that Lord Devlin described in the following terms:
Hewart … has been called the worst Chief Justice since Scroggs and Jeffries in the seventeenth century. I do not think that this is quite fair. When one considers the enormous improvement in judicial standards between the seventeenth and twentieth centuries, I should say that, comparatively speaking, he was the worst Chief Justice ever. 7
It is no surprise that some have sought to place distance between the famous remark and its author. The principle was not anything new and has a much broader relevance than apprehended bias. It reflected a fundamental aspect of the common law system also evident in the observation of Lord Atkinson made a decade before R v Sussex Justices; ex parte McCarthy in Scott v Scott that a trial held in public and accessible to the public was the “best security” for public confidence in the impartiality and efficiency of the justice system. 8
About a fortnight ago, in what can only be described as auspicious timing for my topic today, I had occasion to revisit these important principles when hearing an application involving a public company seeking confidentiality orders over certain court documents. I will be circumspect in my remarks because the company has sought leave to appeal. Be that as it may, in the introduction my judgment, I said the following:
The importance of open justice as a venerable and indispensable part of our justice system is oft remarked upon in almost lyrical terms.
Jeremy Bentham went so far as to declaim: “where there is no publicity, there is no justice. Publicity is the very soul of justice”. Bentham recognised that the law secures against the abuse of power, but it also creates new opportunities for abuse, and the only effective solution to this problem lay in publicity; the most robust and comprehensive system of public oversight of public power in all its forms … 9
Despite these sorts of exhortations and the repeated deprecation of the practice by some judges, it is now commonplace to see practitioners, even highly experienced practitioners, seeking suppression and non-publication type orders of various types on an impermissibly broad and infirm basis. Moreover, one sometimes comes across examples, particularly in duty matters, of extensive suppression and non-publication orders being proposed (and sometimes made) by consent without the benefit of detailed submissions or analysis — notwithstanding the caution of Lord Woolf MR that it is when both sides agree that information should be kept from the public that the Court should be “most vigilant”. 10
This phenomenon is supported by data which indicate that there has been a general upward trend in the number of suppression and non-publication orders granted across most Australian jurisdictions. 11 Although is no centralised register of suppression orders exists (a matter to which I will return), News Corp has compiled data between 2017 and 2023 suggesting the total number of suppression orders made in Australia rose from 859 in 2017, to 1113 in 2023. 12 But this is no doubt incomplete, as Victoria and South Australia are the only jurisdictions in which media organisations are routinely notified of suppression orders.
Curiously, however, it is those States that do have notification regimes that appear to have experienced the sharpest increase.
In South Australia, 179 orders were made 2017, which increased to 268 in 2021 and to 308 in 2023. It is instructive to put these statistics into perspective. This tally is surpassed only by Victoria, and the increase has occurred notwithstanding legislative change in 2007, enacted for the express purpose of sending what was said at the time to be a “strong signal” to South Australian courts, including Magistrates, that they must give more weight to the public interest in open justice. Despite this, the willingness to make suppression orders continues unabated and notably, of 351 suppression orders made in South Australian in 2022, 225 were made in the Magistrates Court. 13
As to Victoria, despite the passage of the Open Courts Act 2013 (Vic), between the beginning of 2014 and the end of 2016, Victorian courts and tribunals made 1,594 orders with the effect of suppressing information under various sources of power, with 1,279 orders made under the Open Courts Act. Between 2017 to 2023, Victoria experienced an increase in such orders from 444 to 521. In 2019, a former Supreme Court judge 14, addressing the difficulty in finding the optimal balance between transparency and other values observed that legislative intervention is of limited effect. In the process of calling for better education of judges and magistrates, the point was made that “[t]here is an important cultural dimension to the problem”. 15
Attention has been given by various State Parliaments to legislative reform promoting open justice, but the reality is that there is a widespread perception that in some States, a judicial and legal culture exists that is apparently more open to suppression than other parts of the country. In this regard (whether it can be empirically justified or not), one of Australia’s most experienced media lawyers said last year “Victoria has for a number of years been known in the legal profession as the suppression state … [being the] state where your right to know is given the least value by our judicial system”. 16
This not to say there are not reasons to be concerned as to the prevalence of orders elsewhere. Data from this State indicates that the number of suppression orders granted is likely to be considerably higher than that recorded by News Corp, and it has been reported that between 2013 and 2016, the number of suppression orders made annually across all courts in Western Australia increased from 205 to 275.
In New South Wales, my home State, an increase in both applications for suppression orders and in the number of orders granted, strangely coincided with the introduction of the Court Suppression and Non-publication Orders Act 2010 (NSW). The NSW Attorney-General’s department has acknowledged the increase but could not identify the reason and could only speculate it was due to a rise in cases of a sensitive nature. For completeness, and doing the best one can with incomplete data, it appears Queensland Courts have issued relatively fewer suppression orders compared to other jurisdictions but has seen an increase from 10 orders issued in 2017, to 38 in 2023. Tasmania and the Territories also issue relatively fewer suppression orders but have seen similar proportionate increases.
To anyone interested in open justice, the sobering reality is that because of the number of courts empowered to suppress material, legacy issues, and the lack of any repositories of data, we simply have no idea how many suppression orders have been made by courts or how many such orders remain extant. This includes Victoria, notwithstanding its current notification processes, because there is no record of how many suppression orders with no end date have been issued by the Supreme, County and Magistrates’ courts and which remain operative.
So, what do we take from all this and what can we do about it?
Prior to making some suggestions let me pause to reflect on two very recent cases from New South Wales.
First, is the State of New South Wales v Kay. 17 In that case, Graham James Kay, then known by the pseudonym GJO, applied for a final non-publication and suppression order in relation to his name, identity, image, residential address, workplace and any other identifying information, including any reference to being labelled “The North Shore Rapist”. The State, which was applying for a third Extended Supervision Order (an order that is conditioned upon a judge of the Supreme Court being satisfied to a “high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order” 18) was recorded as being “neutral” in relation to the final suppression application. However, Fairfax Media Publications intervened to oppose the application and retained counsel from my old floor, Level 22 Chambers, Matthew Lewis.
Between December 1995 and December 1996, Kay committed a number of serious sex offences involving the sexual assault of a number of different women at knifepoint, having been followed (in most instances) after using public transport. In 2000, he was sentenced to a term of imprisonment of 20 years with a non-parole period of 15 years. In 2015, Kay was released to parole. In April 2018, Kay committed an offence of failing to comply with a condition of his first Extended Supervision Order and was sentenced in the Local Court to a term of imprisonment for four months, and then in April 2018, he committed an assault on a 16 year old girl and was convicted and sentenced to a 15 month conditional release order. Suppression orders were made thereafter.
The evidence put forward on his behalf in support of the proposed 2024 order is worth noting.
He set out how he felt “relieved” when details of his case, personal details, residential address and image were initially suppressed and that it encouraged him to build relationships with people and maintain employment. In January 2021, he started work as a forklift driver, and stated:
I had made friends with a number of people, and it made me feel more connected to the community which I felt increased my self-worth. As far as I was concerned, life was looking more positive for me.
But despite what he perceived to be the then benefits of the suppression of information, he was nonetheless arrested and charged in January 2022 for offences of sexually touching another person without consent and stalk or intimidate with the intention to cause fear of physical harm.
He was released to parole in September 2023 and wore an ankle monitoring bracelet. In support of his suppression application, he noted:
Due to the stress of the proceedings, and the prospects that my case and history will be ventilated in the media again, I struggle to apply for any jobs or try to develop any meaningful friendships because I feel it will all be taken away.
I believe my reintegration back into society and my rehabilitation will be significantly impacted if a non-publication and suppression order is not made.
The alleged necessity for a suppression order focussed on two matters: (1) undermining his opportunity for what was described as “continued rehabilitation”; and (2) the risk of self-harm or physical violence from others. Justice Rothman rejected both arguments, finding a risk of likely self-harm was not proven and that there was no imminent threat to imperil the offender’s safety.
The Editor of the Sydney Morning Herald later noted that around the time of the suppression orders in 2020, the State accepted conditions which no longer forced Kay to provide a schedule of his movements to supervisors and then posed the question:
What happened next? Surprise, surprise, Kay stalked a young woman through Sydney’s CBD for two hours, followed her home into her apartment building and indecently assaulted her. Crucial details of the crime could not be reported due to the suppression order.
The Herald’s executive counsel Larina Alick brought this sorry state of affairs to my attention recently and we agreed to challenge the suppression order so the Herald could tell the public about this despicable man, and the state’s inexplicable decision to water down monitoring conditions.
It is not for me to remark on what happened or comment on the characterisation of the actions of the State made by the Editor of the Sydney Morning Herald, but legitimate issues of public concern arose.
The lesson for present purposes is that but for a media organisation spending its own money to intervene and oppose further suppression and non-publication orders, it appears the judge would not have received the benefit of a contradictor in the light of the State’s “neutrality” to the issue of suppression and non-publication orders. Given the great experience of the judge concerned this may not have mattered — but it often can matter.
Secondly, even more recently, on 30 August 2024, a New South Wales Member of Parliament was charged with five counts of having sexual intercourse with a child between the ages of 10 and 14; two counts of indecent assault of a person under 16; two counts of attempted sexual intercourse with a child between the ages of 10 and 14; and committing an act of indecency with a person under 16.
According to the Sydney Morning Herald, his solicitors signalled an intention to apply for a suppression order at Manly Local Court on the day of arrest, which would have prevented publication of the case.
However, just as media outlets were ready to fight the suppression order before the Magistrate, the solicitors withdrew the application. Again, but for the media being willing to make arguments, would the Magistrate, dealing with the matter in a no doubt busy list, have had the benefit of cogent submissions as to why a suppression order would have not been necessary?
So let me come to making some suggestions as to how things may be improved.
First, there is need for data. Sufficient funds would be required to be allocated by executive governments to allow a full review to be undertaken as to the full extent of suppression orders currently in force throughout the Commonwealth. In 2018, the Council of Attorneys-General indicated there was to be a “stock-take and review of suppression order regimes” but it is unclear from publicly available material the real scope of that stock-take and its progress. 19 The scope and cost of a thorough “stock-take” ought not be underestimated, but I would argue it is a necessary step in order to optimise the benefit to be obtained by any other reforms including, as discussed below, the creation of a national register.
Secondly, we should attempt to “Marie Kondo-fy” the piecemeal, inconsistent and, in some respects, baffling system of various State and Territory laws by which suppression orders are made. Tidying-up, simplifying (and harmonising between jurisdictions) the statutory provisions under which suppression and non-publication orders are made is a task worth pursuing. At present, the inconsistencies between State and Territory regimes are increasing rather than decreasing. Bespoke provisions whereby suppression and related orders can be made keep popping up.
This can be seen most obviously in no doubt well-meaning legislation designed to protect victims of crimes of domestic violence and sexual offences, and other violent criminal offences. Different State regimes deal differently with issues such as closing courts when a complainant gives evidence and when the media, and the public, may be excluded from the courtroom. Further, following the making a recommendation made in The Respect@Work Report, I understand the Councils of Attorneys-General have left it to the various States and Territories to consider how best to protect alleged victims of sexual harassment who are witnesses in civil proceedings, particularly where concerns of privacy and confidentiality arise. 20
In this respect (and others), it appears we are moving down a path of expanding the current miscellany of inconsistent provisions rather than being guided by a harmonised and straightforward principle, with deep roots in the common law, that orders ought to be made, and only be made, when, in the particular circumstances of the case, it is necessary to do so in the administration of justice. 21 This broad and straightforward principle is adaptable to all manner of cases where there is a demonstrated need to protect the identity and safety of persons. If there is a class of cases (like family law, cases involving children, blackmail, or sexual violence) where it is thought the nature of the case itself demonstrates necessity, then we should strive for uniformity in how courts deal with suppression in such cases.
Thirdly, and connected to the last point, we have an integrated federal judicature and an ever increasing growth of a truly national legal profession. As the lawyers here know, our autochthonous expedient, being the constitutional choice to use State courts as repositories of federal jurisdiction, means those courts commonly exercise federal jurisdiction (and they always do so in dealing with prosecutions for Commonwealth offences or in quelling the vast bulk of complex commercial controversies).
There is little to commend a system where there are significant differences in the way in which the media, and through them, the public, has access to material by which it can understand the way in which federal judicial power is being exercised. Uniform provisions as to access to Court documents and the evidence adduced in open court may go some way to addressing the different cultures that seem to have grown up in different States as to suppression.
None of this is new. Recommendation 5(1) of the Open Courts Act Review recommended that: the “harmonisation of the law and practice relating to suppression orders be referred to the Council of Attorneys-General for further consideration”. At a time where the publication of material spans jurisdictional boundaries, harmonisation makes manifest sense.
Fourthly, a national register of suppression and non-publication orders would not only facilitate transparency and uniformity but also aid compliance and enforcement where orders have been properly made. A national approach to collate and allow access to court information would provide greater clarity for media, and breaches would likely reduce if there was a central repository detailing what is being suppressed by an Australian court and for how long. Increasing costs pressures, the decline of subeditors, and social and digital media growth means assumptions we may have made historically about the training and competence of those making reports of cases may no longer be justified. A central repository would also assist in addressing some difficulties faced by courts enforcing orders in an age where information knows no boundaries.
Fifthly, is to recognise that the role of the media is indispensable. A former Chief justice of this State observed it is “vital for the courts to recognise and appreciate that the media are precisely what the word connotes — namely, the medium by which the principle of open justice is communicated to the community which we serve”. 22
But it is more than that: fair reports of cases show the public how an arm of the government operates and holds its accountable. Of course, much of what goes on in the courts is wholly devoid of any interest except to those directly involved (and, even then, it is often difficult as a practitioner to muster up enthusiasm for some cases) — but that is not the point. The transparency itself is a discipline.
At present, traditional media is often the only or most effective practical check on inappropriate suppression. If laws are to be harmonised, there is much to be said for suppression orders to be made on an interim basis only until notification — and then always allowing those with a real interest in opposing suppression to be heard. One does not envy the local court magistrate vexed by a demanding workload, and being urged, without real opposition, to make suppression orders. Surely it is not beyond the wit of those involved in the justice system to encourage a group of eager young lawyers to be participants in a national scheme or panel to assist media outlets, or members of the public, in providing urgent assistance to judicial officers in ensuring principles of open justice are properly taken into account when any final orders are being considered. At a time when traditional media is suffering revenue decline and costs pressure, it cannot simply be left to the fourth estate to protect a grundnorm of our justice system on a haphazard basis.
Sixthly, in any harmonised regime, some discipline in the making of final orders could be encouraged by ensuring the judicial officer is required to address the ground upon which the order is made with specificity and provide a short statement of reasons for doing so, including the justification for its terms and duration, which would then be publicly available on the register.
I am a realist. It is far from clear there is, at present, the will to implement reform. Whatever else is unclear in this area, one thing seems plain: despite laws directed to the laudable end of giving primacy to transparency, in practice we are moving in the opposite direction.
I am a judge, not a law reformer. But it seems to me stamping out vestiges of a culture of secrecy and promoting principles of open justice are indispensable for the optimal operation of our criminal and civil justice system. Lawyers are sometimes long on rhetoric but short on taking steps to make the reality match that rhetoric. If, as a democratic society operating under the rule of law, we truly believe that proceedings held in public and accessible to the public is the best security for public confidence in the impartiality and efficiency of the justice system, its protectors have a responsibility to do what we can to promote the principle of open justice.
References
1 A Judge of the Federal Court of Australia and an additional Judge of the Supreme Court of the Australian Capital Territory.
2 R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 (at 259).
3 Lehrmann v Network Ten Pty Limited (Livestream) [2023] FCA 1452.
4 Geoffery Watson, “The strange resignation of a chief justice — Lord Trevethin” (2017) Bar News 56 (at 57).
5 Ibid.
6 The Hon Justice Spigelman AC, “The Principle of Open Justice: A Comparative Perspective” (2006) The Principle of Open Justice 147 (at 148).
7 Lord Patrick Devlin, Easing the Passing: the Trial of Dr John Bodkin Adams (1985) (at 92).
8 Scott v Scott [1913] AC 417 (at 463).
9 Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954 (at [1]–[2]).
10 R v Legal Aid Board; Ex parte Kaim Todner (a firm) [1999] QB 966 (at 977).
11 The Hon Frank Vincent AO KC, “Open Courts Act Review” (September 2017), 50 [193]–[194] (New South Wales); [188]–[201] (Queensland); 52 [207]–[208] (Western Australia); 55 [217] (South Australia); 56 [221] (Tasmania); 57 [229] (Northern Territory); 58 [232] (Australian Capital Territory).
12 Gina McWilliams (Senior Legal Counsel, News Corp Australia, Sydney) written submission to SALRI, dated 26 July 2023, cited in South Australian Law Reform Institute, “Stemming the Unstoppable Tide? An Evaluation of the Role and Operation of ‘Suppression Orders’ in South Australia” (Report №19, April 2024) (at 214).
13 South Australian Law Reform Institute , Adelaide Law School, University of Adelaide Suppression Orders Project Report — Report 19, April 2024.
14 The Hon Frank Vincent AO KC, “Open Courts Act Review” (September, 2017) (at 4).
15 The Hon Frank Vincent AO KC.
16 Justin Quill, “Why secrecy in Victoria’s Spent Convictions Act should outrage us all” Herald Sun (August, 2023).
17 [2024] NSWSC 993 (Rothman J).
18 Crimes (High Risk Offenders) Act 2006 (NSW), s 5B(d).
19 Council of Attorneys-General (Communique, 23 November 2018) (at 4).
20 Standing Council of Attorneys-General (Communique, 1 December 2023) (at 2).
21 Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (French CJ, Gummow, Hayne, Heydon and Kiefel JJ).
22 The Hon Wayne Martin, “Access to Justice The Media, the Courts and the Public Record” Australian Press Council (March, 2007).
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