Suppression orders reveal ‘toxic relationship’ between courts and the press

By Lucy Smy,  Centre for Advancing Journalism

September 18, 2019

As 36 journalists, editors and media companies come before the Supreme Court accused of breaking the George Pell suppression order, it is further evidence of what experts are describing as a ‘toxic relationship’ between the courts and the press.

In his review of Victoria’s Open Courts Act, currently before parliament, retired Supreme Court Justice Frank Vincent found that around 40 per cent of the suppression orders granted in Victoria were either blanket bans or bans without stated judicial grounds, which he said should only have been used in exceptional circumstances.

Justice Vincent blamed a ‘toxic relationship’ that had developed between judges in Victoria and journalists for this level of suppression orders. He said the courts had become “very sensitive” to media criticism. “I think that led to an unnecessary making of orders. It doesn’t matter whether you’re a judge or in any other occupation, you don’t really like being criticized. And still less do you like being criticised, if you think it’s unfair,” he said.

Sitting on a panel organised by the University of Melbourne’s Centre for Advancing Journalism, Justice Vincent disagreed vehemently with two journalists who had sat all through the trial unable to write because of the suppression order, but who were in favour of it.

Only a tiny handful of journalists sat all the way through the Pell trial. They sat for 10 weeks through a first trial ending in a hung jury, followed immediately by a retrial. It was a commitment of time and resource that changed those involved. In contrast to the crowd of journalists and editors now charged with contempt, this handful of journalists have not been charged.

During their extended period in court, the journalists said they became convinced that if the suppression order had been lifted the second trial Pell faced – the swimmers trial – would be jeopardised and the media would be responsible for a failure of justice.

Lucie Morris-Marr, reporter for CNN and The New Daily admitted her respect for the suppression order hadn’t come naturally. She said: “We like sharing stories. We like breaking exclusives. We like telling people. That’s the nature and DNA of a journalist. We don’t like keeping secrets and at the beginning of the Pell trial I was very much ‘Oh this is annoying! I want to share it.’ But actually, as I went through I realized how fragile that courtroom was. It was fragile, like an eggshell.”

Melissa Davey, bureau chief for The Guardian Australia in Melbourne, said: “The key fact is in this case is that Pell was to face another trial. Think about the coverage over the past couple of weeks and just how much you have seen of Pell. Would it be possible to empanel an unbiased jury in the face of all of that coverage?”

Although there was disagreement on the need for a suppression order on the Pell trial, both the journalists and judge agreed that there was a conversation about Victoria’s use of suppression orders overall.

Ms Davey said: “There’s undoubtedly a need for a conversation about the overuse of suppression orders. And, there’s also a really useful conversation about how effective suppression orders can be in this era of social media.”

Justice Vincent had examined the challenge posed to suppression orders by social media in his report. He said: “I think the struggle to suppress is going to often be quite fruitless. I think the emphasis ought to be more directed to ensuring that the system can cope. With the fact that more and more people are going to know more and more stuff. And that we’re going to have to adapt our procedures.”

Dr Jason Bosland, co-director of the Centre for Media and Communications Law at the University of Melbourne and a leading researcher into open justice, questioned whether Victoria deserved its reputation as the suppression order capital of Australia. Overall, Victorian courts do issue the largest number of suppression orders, but per head of population, the number is actually lower than in South Australia, which has the most closely comparable legal system. Dr Bosland said: “I would say that that indicates that we don’t have a problem with suppression orders in Victoria. We have a problem with suppression orders in Australia.”

The public panel on suppression orders versus open justice after the Pell trial was held by the Centre for Advancing Journalism at the University of Melbourne on 13 March. A Media Files podcast was made from a recording of the event and is hosted by The Conversation. https://theconversation.com/podcast-pell-trial-reporters-a-judge-and-a-media-lawyer-on-why-the-suppression-order-debate-is-far-from-over-111634