Bosland, Jason --- "Two Years of Suppression under the Open Courts Act 2013 (Vic)" [2017] SydLawRw 2; (2017) 39(1) Sydney Law Review 25

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The Open Courts Act 2013 (Vic) (‘OC Act’) was introduced in response to concerns that suppression orders were granted too frequently by the Victorian courts and that problems often existed in relation to the breadth, clarity and duration of such orders. Some of these concerns were verified in a 2013 study of all suppression orders made in Victoria between 2008 and 2012. In order to assess the impact of the OC Act, this article presents the findings of a follow-up empirical study of suppression orders made by the Victorian courts in the two years following the commencement of the OC Act on the 1 December 2013. The main results show that there has been no notable reduction in the overall number of suppression orders since that time and that the OC Act has led to no improvements in terms of the scope and clarity of orders. Furthermore, while the data demonstrates a significant reduction in orders being made without sufficient end dates, it is also found that the County and Magistrates’ courts frequently make orders that they do not have the power to make.

I Introduction

The Open Courts Act 2013 (Vic) (‘OC Act’) came into force on 1 December 2013. It was introduced to ‘strengthen and promote open justice’ in Victoria^[1] following ongoing concerns that the use of suppression orders by the courts in that state was placing the fundamental principle of open justice in jeopardy.^[2] The media, in particular, claimed that too many suppression orders were being made in Victoria compared to other jurisdictions in Australia and that this was undermining the usual open justice rule that the media, other than in exceptional circumstances, should be unrestrained in providing fair and accurate reports of proceedings conducted in open court.^[3] The supposedly large number of suppression orders was said to be the result of orders being made on grounds not justified according to the strict requirements of the law,^[4] a view echoed by others, including the Honourable Philip Cummins, a retired Justice of the Supreme Court of Victoria.^[5] In the period prior to the OC Act, for example, Cummins claimed that orders were often made on ‘therapeutic, prophylactic or prudential grounds falling short of the true ground of necessity’ required by the law and that many orders were superfluous due to existing restraints on publication.^[6] Alongside these concerns, problems were also said to exist in relation to the drafting of orders, with claims that many were imprecise and overly broad in scope,^[7] and often contained insufficient limitations as to their duration.^[8] These latter concerns were confirmed by this author (with Bagnall) in an empirical study of all suppression orders made by the Victorian courts between 2008 and 2012 (‘2013 Study’).^[9] However, it should be emphasised that no attempt was made in that study to assess whether allegations of unjustified orders were well founded or not.

The OC Act, which was shaped, in part, by reference to the results of the 2013 Study,^[10] was introduced specifically to address the problems identified above. However, with a few notable exceptions set out in Part II of this article, it does so mainly by codifying and clarifying the pre-existing law, rather than by implementing substantive changes to the law of suppression. Indeed, this is consistent with the findings of the 2013 Study that the problems with suppression orders in Victoria were not the result of deficiencies in the substantive law; rather, they rested with the application of the law and with judicial practice.^[11] The main benefit of the OC Act, therefore, is in the reinforcement of the existing legal principles by placing them on a firm and accessible statutory footing. But, while the primary goal of introducing the OC Act was to modify judicial behaviour as a means of enhancing openness and accountability, there have been recent claims of little change in the overall number of suppression orders issued by the Victorian courts.^[12] On 9 November 2016, the Attorney-General of Victoria announced the appointment of the Honourable Frank Vincent, former Justice of the Victorian Court of Appeal, to conduct a review into the operation of the OC Act.^[13]

This article contributes to the assessment of the impact of the OC Act by presenting the findings of a follow-up empirical study of suppression orders made by the Victorian courts under the OC Act in the two years following its commencement on 1 December 2013. Using the results of the 2013 Study as a baseline, this new research assesses the effectiveness of the OC Act in relation not only to the number of suppression orders being made by the various courts, but also — and perhaps more importantly — to whether it has resulted in improvements in the drafting of orders in terms of their scope, clarity and duration.

Part II of this article provides an overview of the key reforms introduced by the OC Act. Part III sets out the results of the present study and compares them with the results of the 2013 Study. The main findings are that there has been no significant overall reduction in the rate of suppression (that is, the number of suppression orders issued) following the introduction of the OC Act and that there have been no improvements in terms of the breadth and clarity of orders. Furthermore, while there has been a significant reduction in the proportion of orders made without specified end dates, it is also found that the County and Magistrates’ courts often made orders that they did not have the power to make and that all courts frequently failed to comply with the basic drafting requirements expressly mandated in the OC Act. In light of these results, Part IV provides some comments on the rate of suppression in Victoria, examines why many of the issues identified with suppression orders in the 2013 Study continue unabated under the OC Act, and considers what might be done to ensure greater compliance with the OC Act in the future.

II Overview of the Open Courts Act

It is important to note at the outset that the OC Act was ‘framed having regard to’ draft model legislation endorsed by the Standing Committee of Attorneys-General (‘SCAG’).^[14] The SCAG convened a working group in 2008 to develop the draft legislation in order to clarify what was long considered the ‘unclear and unsettled’^[15] law regarding suppression, to achieve greater harmonisation across Australian jurisdictions and to respond to claims that orders were being made far more frequently in some states than in others, particularly in Victoria and South Australia.^[16] The SCAG model has since been adopted in New South Wales (‘NSW’)^[17] and, in slightly modified form, at the federal level.^[18] However, the

OC Act departs substantially from the SCAG model in a number of significant respects. While an analysis of the SCAG draft legislation and its adoption in NSW is beyond the scope of this article, suffice to say that the decision to depart from it was in part due to the need to address the specific problems identified in Victoria and in part due to concerns that its implementation in NSW had actually had the perverse (but not entirely unexpected)^[19] effect of significantly increasing the number of suppression orders being made in that state.^[20] This Part of the article explains the main features of the OC Act.

A Abrogation of Inferior Courts’ Common Law Powers

A significant reform introduced by the OC Act is that it abrogates the common law powers of inferior courts to make suppression orders.^[21] Under the common law, it is well established that superior courts have inherent powers and inferior courts have implied powers to depart from the principle of open justice by making suppression orders to prohibit publicity being given to proceedings.^[22] In light of the importance placed on open justice, such powers can only be exercised in ‘few and strictly’ confined categories of cases^[23] where it is considered strictly necessary to secure the more fundamental object of the proper administration of justice^[24] or to protect ‘more urgent considerations’ of national security.^[25] These limited common law powers have long been supplemented in Victoria by somewhat broader statutory powers contained within the courts’ respective establishing Acts.^[26] Importantly, the abrogation of inferior courts’ implied powers under the OC Act means that the County and Magistrates’ courts must now rely exclusively upon statutory powers of suppression.^[27] Although this might seem to be a radical reform, it is likely to be of relatively little consequence in practice: most, if not all, suppression orders made by the Magistrates’ and County courts prior to the OC Act were made under existing statutory powers of suppression, rather than the common law. This is because such statutory powers, which have now been replaced by powers in the OC Act, contained grounds of suppression that directly overlapped with and extended beyond those available under the common law.

However, while the common law no longer provides a source of power for inferior courts to make suppression orders, there are two reasons why the common law remains relevant. First, the OC Act expressly preserves the Supreme Court of Victoria’s common law powers of suppression.^[28] This is due to the fact that to abolish this aspect of the Supreme Court’s inherent jurisdiction could possibly violate ch III of the Australian Constitution: that is, it would potentially remove a ‘defining characteristic’ of a ‘Supreme Court of a State’ as a superior court of record of general jurisdiction.^[29] Second, the common law remains relevant because the principle of legality requires that statutory powers allowing derogations from open justice are to be interpreted strictly in light of the common law principle of open justice^[30] and should only be taken to extend beyond the common law where expressed in ‘clear and unequivocal’ terms.^[31] This means that the common law principles for the making of suppression orders are central to the interpretation and application of the statutory powers contained in the OC Act.^[32] That said, as explained later in this Part, most of the restraints imposed by the common law on the making of suppression orders have now been incorporated as express requirements in the OC Act.

B Reform of Statutory Powers to Make ‘Proceeding’ Suppression Orders

In addition to abrogating the common law powers of suppression of inferior courts, the OC Act also reforms and consolidates the existing statutory powers of courts to make suppression orders. Prior to the OC Act, s 18 of the SC Act 1986 (Vic) enabled the Supreme Court of Victoria to make an order ‘prohibiting the publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding’. Such an order could only be made on limited grounds set out in s 19 — namely, where the restraint on publication was necessary not to:

Corresponding provisions were contained in ss 80–80AA of the County Court Act 1958 (Vic) (‘CC Act’) and s 126(2)(c) of the Magistrates’ Court Act 1989 (Vic) (‘MC Act’), although the latter did not contain the public decency or morality ground. The OC Act consolidates these various powers into a single source of power for all courts.^[33] Thus, ss 17 and 18 of the OC Act provide the power to make what are called ‘proceeding’ suppression orders and are in substantially the same terms as ss 18 and 19 of the SC Act, subject to five important modifications.^[34]

The first and perhaps most significant modification is that the ‘bar’ has been set higher in relation to the ‘administration of justice’ ground. Rather than simply being necessary to avoid prejudice to the administration of justice as previously required, s 18(1)(a) of the OC Act now provides that an order made on this ground must be necessary to avoid ‘a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means’.^[35] This not only potentially raises the bar in terms of the seriousness of the risk, it also reminds judges that suppression orders should be the last and not the first resort.^[36] The extent to which this apparently higher threshold will have an effect in practice, however, remains to be seen. Second, the ‘safety’ ground is no longer limited to physical safety.^[37] Thus, it can now include other forms of personal safety, such as the prevention of psychological harm,^[38] although the seriousness threshold in relation to such psychological harm is yet to be determined. Third, the public decency and morality ground has been abolished. Fourth, the undue embarrassment grounds have been consolidated into a single ground and extended beyond sexual offence cases to include criminal proceedings involving family violence offences.^[39] Fifth, a ground has been added to enable the making of suppression orders where necessary ‘to avoid causing undue distress or embarrassment to a child who is a witness in any criminal proceeding’.^[40]

It is worth noting that although the overarching purpose of introducing the OC Act was to enhance open justice by reducing the number of suppression orders being made in Victoria, three of the five modifications to the statutory grounds just described actually extend the grounds upon which suppression orders can be granted.

C ‘Broad’ Suppression Orders

Part 4 of the OC Act deals with what are called ‘broad’ suppression orders. Unlike proceeding suppression orders discussed in Part IIB above, broad suppression orders do not restrain reports of proceedings or the publication of information derived from proceedings; instead, they relate to material extraneous to a proceeding where publication of that information would threaten to prejudice the administration of justice in a particular proceeding. Well-known examples include the publication of prior convictions, allegations of past or subsequent criminal behaviour,^[41] and the broadcasting of a particular television program that recreates an alleged crime currently being tried in the courts.^[42] Importantly, unlike proceeding suppression orders, broad suppression orders do not impact on the principle of open justice because they do not restrict the publication of proceedings.^[43] Rather, the ‘countervailing’ interest at stake is the right to freedom of speech, which must be balanced against the threat posed to the administration of justice by publication of the material.^[44] The Supreme Court has the power to make broad suppression orders under its common law inherent powers in circumstances where it is necessary to regulate and ‘protect its own curial processes and to protect the fair trial of [a] person’.^[45] This common law power, however, does not extend to inferior courts: instead, the County and Magistrates’ courts can only make such orders under powers expressly granted by statute.

Prior to the OC Act, the County Court had such a statutory power under s 36A(3) of the CC Act, which conferred upon it the same power as the Supreme Court to grant injunctions in criminal proceedings restraining the publication of any material in order to ensure the fair and proper conduct of proceedings.^[46] The Magistrates’ Court had a similar, but much broader, power under s 126(2)(d) of the MC Act, which provided that an order could be made to restrict the publication of ‘any specified material, or any material of a specified kind, relevant to a proceeding that is pending in the court’. Importantly, the circumstances where the Magistrates’ Court could exercise this power included the same grounds upon which the Magistrates’ Court could make a proceeding suppression order under s 126(2)(c) (that is, to ensure the safety of any person, avoid embarrassment, etc). This meant that the power available to the Magistrates’ Court could be exercised in a much broader range of circumstances than the powers available to both the Supreme and County courts.

Part 4 of the OC Act reforms the law of broad suppression orders. While s 25 replaces the County Court’s power under s 36A(3) of the CC Act in identical terms, s 26 replaces the Magistrates’ Court’s power under s 126(2)(d) of the

MC Act, but reduces the available grounds to two: where such a broad suppression order is necessary either to: (1) ‘prevent a real and substantial risk of prejudice to the proper administration of justice’; or (2) ‘protect the safety of any person’.

The Supreme Court continues to rely upon its common law powers to make broad suppression orders.

D ‘Proceedings-plus’ Suppression Orders

The most significant, but perhaps least obvious, feature of Part 4 of the OC Act, however, is that it effectively abolishes the powers of the Magistrates’ and County courts to make what were referred to in the 2013 Study, for want of a better term, as ‘proceedings-plus’ orders. In the course of the analysis in the 2013 Study, it became apparent that the courts often made orders that could not be characterised as either proceeding suppression orders or broad suppression orders.^[47] That is, while these orders prohibited the publication of proceedings information — information disclosed or likely to be disclosed in proceedings — they went beyond the limits of proceeding orders by prohibiting publication of such information in the non-reports context and in circumstances where the information was not derived from proceedings. A common example is an order prohibiting the ‘publication of the name [X]’, where X is a participant in a proceeding. Such an order prohibits the publication of proceedings information — the person’s name — but extends to prohibiting the publication of the name in any context and in circumstances where the name is obtained by the publisher from sources other than the proceeding in question.

Although the power in s 126(2)(d) of the MC Act was almost certainly broad enough to enable the Magistrates’ Court to make proceedings-plus orders, the power of the County Court in this regard was much less certain.^[48] If at all, such orders could only be made by the County Court under s 36A(3) of the CC Act or under its common law implied powers. Under the OC Act, however, neither court now has the power to make proceedings-plus orders. This is because s 5 removes the common law as a potential source of power, while s 24 precludes reliance upon the ‘broad’ statutory powers in Part 4. As to the latter, s 24 provides that the powers to make broad suppression orders contained in Part 4 cannot be exercised in relation to information that ‘could be’ the subject of a proceeding suppression order. Given that proceedings information (the subject of a proceedings-plus order) could be the subject of a proceeding order under Part 3, it follows that it cannot be the subject of a ‘broad’ suppression order under Part 4. In other words, the effect of s 24 is that Parts 3 and 4 of the OC Act have mutually exclusive spheres of operation: proceeding information can only be the subject of a proceeding suppression order in Part 3, which is limited to prohibiting reports of proceedings or the publication of information derived from proceedings, while the power to make broad suppression orders in Part 4 can only be used to prohibit the publication of nonproceeding (that is, extraneous) information.^[49] This is a significant curtailment of what seemed to be an extremely broad power previously available to the Magistrates’ Court under the s 126(2)(d) of the MC Act.^[50]

E Presumption of Openness and General Provisions on Drafting and Procedure

Alongside the reform and consolidation of the powers of suppression outlined in the preceding three sections, the main way the OC Act seeks to curb the making of suppression orders is through the introduction of a statutory ‘presumption of openness’. The presumption is applicable to the making of all suppression orders, including proceeding suppression orders under Part 3, broad suppression orders under Part 4 and suppression orders made by the Supreme Court under the common law. It is contained in s 4 as follows:

To strengthen and promote the principles of open justice and free communication of information, there is a presumption in favour of disclosure of information to which a court or tribunal must have regard in determining whether to make a suppression order.

In one sense, s 4 contains a clear overstatement: the presumption does nothing to ‘strengthen’ open justice as a legal principle, nor does it ‘create’ a ‘new’ presumption in favour of open justice, as suggested in the parliamentary debates.^[51] This is because open justice always has been, and continues to be, the presumptive state under the common law, with any departure subject to the strict test of necessity. Moreover, irrespective of the statutory presumption, the principle of legality already requires that any statutory power to make suppression orders be interpreted strictly in light of the common law principle of open justice^[52] (as well as ‘common law freedom of speech’).^[53] Nevertheless, it is fair to say that placing the presumption on a statutory footing might be expected to ‘strengthen’ and ‘promote’ the principles of open justice and freedom of expression in practical terms by reminding judges of their respective importance.

In addition to the statutory presumption in s 4, Part 2 of the OC Act also sets out various drafting and evidentiary requirements for the making of suppression orders. As with the statutory presumption just discussed, these largely reflect existing common law requirements for the making of suppression orders, rather than introducing any substantial reform. Section 14, for example, codifies the common law requirement that suppression orders can only be made on the basis of cogent evidence as to the necessity of an order.^[54] It provides that, in making an order, ‘a court ... must be satisfied on the basis of evidence, or sufficient credible information that is satisfactory to the court ..., that the grounds for making the order are established’.

Section 13, on the other hand, essentially codifies the common law requirements that an order must extend no further than necessary and must be clear and precise in its terms.^[55] It does so by mandating that the information to which the order applies must be specified with ‘sufficient particularity’ to ensure that it is limited to achieving its purpose and that it covers no more information than is necessary to achieve that purpose.^[56] Furthermore, the standard of specificity must be such that it meets the additional requirement of ensuring that it is ‘readily apparent from the terms of the order what information is subject to the order’.^[57] Section 13 also includes a requirement that the purpose of an order be specified^[58] and, where made by any court under s 17 or by the Magistrates’ Court under s 26, that it also specify the statutory grounds under which it was made.^[59]

Section 12 of the OC Act responds to the specific problem of the duration of orders. Prior to the OC Act, courts frequently made orders that either did not have an end date or specified that the order was to operate ‘until further order’.^[60] With very few of these orders being revoked,^[61] they effectively operated indefinitely and, presumably, well beyond the point of necessity. The OC Act codifies the common law requirement that orders should not operate for longer than is necessary,^[62] but introduces the additional requirement that orders must specify an end date.^[63] Moreover, such end dates must be specified by reference to either a ‘fixed or ascertainable period’ or the ‘occurrence of a specified future event’.^[64] Where the future event is not bound to occur (that is, where an order is made to operate ‘until further order’), an order must also contain a fixed end date not exceeding five years from the date of the order.^[65]

For completeness, it is important to mention that Part 2 of the OC Act also establishes a notice regime. Under s 10(1), an applicant for a suppression order is required to give three business days’ notice of the application to the court and the parties in the proceeding, although the notice period can be waived by the court in the interests of justice or where there is ‘good reason’.^[66] Upon receiving notice, s 11 requires that the court take ‘reasonable steps’ to notify all ‘news media organisations’^[67] that are normally notified of the making of suppression orders that a suppression orders will be applied for.^[68] The primary purpose of the notice regime is to ensure that the media, as the traditional guardians of open justice, have adequate opportunity to exercise their right to be heard and oppose the making of suppression orders at the time when their substantive merits are being considered by the courts.^[69] The expectation is that media challenges to suppression orders will not only reduce the making of unjustified orders, but will also improve the quality of the orders that are ultimately made.

III Empirical Analysis of Orders under the Open Courts Act

A Overview of Methodology

The purpose of the present empirical research is to assess whether the reforms discussed in Part II above have had an impact on the making of suppression orders in Victoria. It does so by comparing the results of the present study with the results observed in the 2013 Study. It is useful, therefore, to commence with an overview of the methodology used in both studies. The dataset for the 2013 Study was comprised of all ‘regular’ suppression orders made by the Victorian Supreme, County and Magistrates’ courts between 25 February 2008 and 31 December 2012 and which were notified to the media by the media liaison officers of the respective courts.^[70] Regular suppression orders were those made pursuant to either the common law or under the establishing Acts of the courts.^[71] Orders that amended or continued earlier orders were excluded to ensure that ‘double-counting’ did not skew the data. Each order in the dataset was read and certain information was recorded in a Microsoft Excel spreadsheet, including basic ‘court information’ (court and judge) and the following information about the substance of each order: the power or powers relied upon in making the order; the duration of the order; the ‘type’ of order (‘proceedings-only orders’; ‘proceedings-plus’ orders; ‘broad’ orders; and ‘all-material orders’); and the subject matter of the order. An assessment was also undertaken as to the breadth and clarity of each order and the language used. The main findings were that the rate of suppression was indeed high when compared to reported figures in other jurisdictions and that there were significant problems with the breadth, clarity and duration of orders being made by the courts.^[72] The more detailed results of the 2013 Study are presented alongside the results of the present study in the remainder of this Part.

The dataset in the present study includes all orders made under the OC Act and the Supreme Court’s common law powers during the two years following the commencement of the OC Act (from 1 December 2013 to 30 November 2015 inclusive). The methodology is the same as the 2013 Study, subject to two exceptions. The first is that additional data was collected about each order as a result of the mandatory drafting requirements of the OC Act. Thus, data was also collected regarding the grounds, purpose and specificity of each order. The second difference relates to the method of data collection and the source of the orders in the dataset. In the 2013 Study, the orders were directly emailed to the author by the courts via the same email list used to notify the media of the making of suppression orders. However, around the same time that the results of the 2013 Study were published, the Supreme Court removed the author from that email list. As such, the present study could only be undertaken by obtaining the orders from alternative sources. The County Court agreed to provide all suppression orders made by the judges of that court, while Fairfax Media generously provided orders made by the Supreme and Magistrates’ courts. Importantly, all orders provided by Fairfax Media were appropriately redacted so as to ensure that none of the orders were breached in providing them to the author. Unfortunately, due to the fact that orders made by the Supreme and Magistrates’ courts could only be obtained via an intermediary, it is possible that not all of the suppression orders sent by those courts to the media have been captured in the dataset. This, however, is not a problem given that the main benefit of the current research is in analysing trends in the drafting of orders, rather than in obtaining an accurate calculation of the overall number of orders made.

There are two aspects of the regime under the OC Act that are not assessed in the present research. First, there is no assessment of the extent to which the notice provisions in the OC Act have been complied with. This is because, while an integral aspect of the OC Act, it was not possible to obtain the data necessary to assess the operation of the notice regime in practice. It should be noted, nevertheless, that the media and others have claimed that the requirement for notice has been adhered to in relatively few instances where suppression order applications have been made.^[73] This is most likely due to the fact that, in many instances, the application for a suppression order will be made once a court has commenced hearing a proceeding. Where this is the case, it is understandable that the presiding judge will exercise his or her discretion to waive the notice requirement on the ground that it is in ‘interests of justice’ that the proceeding not be relisted, interrupted or delayed in order to observe the notice period. Second, this study excludes interim orders. Where an application is made for a proceeding suppression order under s 17 of the OC Act, s 20 empowers a court to make an interim order without determining the substantive merits of the application. Interim orders are excluded from the present study because they are made to operate only until the court considers the substantive merits of the application as a ‘matter of urgency’ and, therefore, cannot be said to reflect the general approach of the courts to the making of suppression orders.

Before moving on to consider the results in the present study, it is necessary to make an additional point about methodology. The Chief Justice of Victoria, the Honourable Marilyn Warren, has criticised the present method of analysing suppression orders on the basis that it does not assess the reasons given for the making of the orders in the dataset.^[74] Indeed, consistent with her Honour’s remarks, it is important to emphasise that no attempt was made in either the 2013 Study or the present study to assess whether concerns about unjustified orders were well founded or not,^[75] although in the 2013 Study certain findings were at least consistent with claims that many orders did not meet the strict test of necessity required under the law.^[76] It is important to point out, however, that undertaking an analysis of the reasons for each suppression order in the dataset would be nearly impossible. For one, it would require examination of court transcripts and court files which, in this context, are difficult to obtain. Moreover, reasons for suppression orders in the lower courts are often given ex tempore and costs associated with transcription, even if access were granted, would be prohibitive. The inability to incorporate a detailed assessment of the underlying reasons for suppression is undoubtedly a key limitation of the present empirical research. However, this does not mean that the present study has no merit or utility — far from it. Given the important role that open justice plays in the constitutional order^[77] and the operation of the rule of law,^[78] the public has an inherent interest in knowing the extent to which courts are departing from this important principle, even if it cannot be revealed whether the reasons for such departures meet the strict requirements of the law. This is true not only in terms of the overall number of orders but also their scope, clarity and duration. Furthermore, the Chief Justice’s criticism overlooks what the present study is capable of doing — that is, evaluating whether the OC Act has achieved its desired effect of reducing the number of suppression orders in Victoria and whether there have been notable changes in favour of openness in the terms of the orders themselves, including whether the courts are complying with the drafting requirements of the OC Act. It is also possible to evaluate whether courts are making particular types of orders that they do not have the power to make (that is, proceedings-plus orders). Indeed, these are all matters that can be determined by analysing the text of the orders themselves in isolation from their underlying reasons.

B Orders under the Open Courts Act: Results

A logical starting point for the empirical analysis is to look at overall numbers. Table 1, below, sets out the number of regular suppression orders identified in the 2013 Study, alongside the number of suppression orders made under the OC Act and by the Supreme Court under the common law during the first two years of the OC Act. The data is presented by year and by court.

What is apparent from the data in Table 1 is that the overall number of regular suppression orders made by the courts per year has remained relatively stable, albeit slightly under the 2009–12 average, despite the introduction of the OC Act. This confirms that the OC Act has not resulted in a noteworthy decrease in the overall rate of suppression, despite this being one of the core aims of the reform.^[79] When the data is looked at by court, however, it is evident that the number of orders made by the County Court in Year 2 markedly increased (by 33%) when compared with the average results in the 2013 Study. In contrast, the number of orders made by the Supreme Court and, at least in Year 2, the Magistrates’ Court appears to have decreased considerably (by approximately 35–38% in the Supreme Court and 38% in the Magistrates’ Court). It is important to recall, however, that the author was not able to obtain suppression orders directly from the Supreme or Magistrates’ courts and it is possible that some orders made by those courts have not been captured in the dataset.

						Average	*OC Act*
Court	2008^a	2009	2010	2011	2012	2009–12	Year 1^b	Year 2^c
Supreme Court	41	56	42	60	48	52	34^d	32^d
County Court	59	84	84	99	106	93	106	124
Magistrates’ Court	72	109	114	147	105	119	117^d	73^d
Total	172	249	240	306	259	264	257	229

The orders in the dataset were categorised according to the three ‘types’ of orders described above:

While most orders fell within one or more of these three types based on their natural and ordinary meaning, there were some orders made by the County and Magistrates’ courts that were drafted in terms that were so expansive and imprecise that they prohibited the publication of all-material relating to a particular proceeding, which would include proceedings information published in any context, as well as unspecified extraneous information. Such orders, which did not feature in the 2013 Study, have been called ‘all-material orders’ for present purposes and were typically drafted as follows:

There is a prohibition on publication of any information of any kind relating to this matter.^[81]

The frequency with which the courts made each of the four ‘types’ of suppression orders in the dataset is presented in Table 2 below.

Court	Proceedings-only		Proceedings-plus		Broad		All-material
Court	2013 Study	OC *Act*	2013 Study	OC *Act*	2013 Study	*OC Act*	OC *Act*
Supreme Court	128/247 (51%)	51/66 (76%)	118/247 (48%)	27/66 (42%)	29/247 (12%)	1/66 (1%)	–
County Court	295/432 (68%)	127/230 (55%)	150/432 (35%)	84/230 (36%)	8/432 (2%)	5/230 (2%)	26/230 (11%)
Magistrates’ Court	426/547 (78%)	82/190 (43%)	147/547 (27%)	116/190 (61%)	12/547 (2%)	2/190 (1%)	7/190 (4%)
Total	849/1126 (70%)	260/486 (53%)	415/1226 (34%)	227/486 (47%)	49/1226 (4%)	8/486 (2%)	33/486 (7%)

There are two notable features of the data in Table 2. The first is the considerable number of all-material orders made by the County (11%) and Magistrates’ courts (4%). Such orders are extremely concerning. This is because all-material orders are so broad and indefinite in scope that courts simply do not possess the power to make them, regardless of the strength of any underlying justification. Importantly, it is well established that when orders are made without power by inferior courts, including the County and Magistrates’ courts, they are considered null and void ab initio and are therefore unenforceable.^[84]

The second notable feature of Table 2 is the substantial proportion of orders made by all courts that were classified as proceedings-plus orders. Indeed, in the Magistrates’ Court there was a substantial increase in the proportion of orders classified as proceedings-plus — 61% compared to 27% in the 2013 Study.^[85] This is deeply problematic given that neither the County Court nor the Magistrates’ Court has the power under the OC Act to make such orders.^[86] The proceedings-plus orders in the dataset therefore require closer examination.

In the 2013 Study, proceedings-plus orders were classified as either ‘clear’ or ‘unclear’. Clear proceedings-plus orders were those that clearly prohibited the publication of the information in the non-reports context and where the information was not derived from the proceeding — for example, an order ‘prohibiting the publication of the name [X]’. However, the vast majority of proceedings-plus orders (84%) were unclear.^[87] That is, it was ambiguous as to whether such orders were limited to preventing the publication of information in a report or discussion of a proceeding, or whether they extended to preventing publication in any context. An example is an order prohibiting the ‘publication of the name of the witness’ or an order prohibiting the publication of any information that would ‘identify the witness in the proceeding’. The difficulty is that such orders can legitimately be interpreted in one of two ways: they can be read broadly to prohibit publication of the name or identity of the person who is the witness, or they can be read more narrowly to prohibit the publication of the name or identity of the person as the witness in the proceeding. In other words, they could be interpreted as being proceedings-plus or proceedings-only orders.

As in the 2013 Study, most of the proceedings-plus orders in the present study were ‘unclear’. This was true across all courts: in the Supreme Court it was 89% (24/27); in the County Court, 84% (71/84); and in the Magistrates’ Court, 97% (112/116). However, as pointed out in the 2013 Study,^[88] it is likely that these ‘unclear’ orders were intended to be proceedings-only orders but were inadvertently drafted using overly broad and ambiguous language. Indeed, this is consistent with the fact that all but one of the Supreme Court and all of the County Court proceedings-plus orders were made pursuant to the proceeding order power in s 17 of the OC Act. However, when we look at the types of orders made by the Magistrates’ Court against the relevant section of the OC Act under which they were made, a more concerning picture emerges. This data is presented in Table 3 below.

Table 3: Magistrates’ Court suppression orders: relationship between type and power

	Proceedings-only	Proceedings-plus	Broad	All-material
OC Act s 17	71	93	1	1
OC Act s 26	8	22	1	6
Other (OC Act s 52) or not specified	3	1	–	–

It is apparent from the data in Table 3 that there is significant misunderstanding on the part of magistrates regarding the scope of each of the respective statutory powers in ss 17 and 26 of the OC Act. On the one hand, 93 proceedings-plus orders were made by the Magistrates’ Court under s 17 of the OC Act, indicating that they were intended to be proceedings-only orders. However, Table 3 also indicates that, in many instances, the Magistrates’ Court has failed to appreciate that ss 17 and 26 of the OC Act, unlike ss 126(2)(c)–(d) of the MC Act, each have mutually exclusive fields of operation. This lack of understanding is evident from the fact that eight proceedings-only orders and 22 proceedings-plus orders — orders that prohibit the publication of proceedings information — were made pursuant to the s 26 power to make broad suppression orders, which, as explained in Part II of this article, is a power that can only be used to suppress non-proceedings (or extraneous) information. In other words,

at least 16% of orders made by the Magistrates’ Court (30/190) were made pursuant to the incorrect power.

Two further important points can be made about the proceedings-plus orders. The first is that it might seem overly pedantic to focus too heavily on the distinction between proceedings-only and proceedings-plus orders given that the vast majority of proceedings-plus orders were likely intended to be proceedings-only orders, but have been expressed in ambiguous terms. This, however, is beside the point: the law is that suppression orders must be as unambiguous as possible.^[89] The power in s 17 is clearly confined to the making of orders proscribing the publication of reports of proceedings, in whole or in part, or of information where it is derived from proceedings. It follows that any order made pursuant to that statutory power should indicate in the clearest possible terms that the prohibition on publication is limited in that way. This is usually best achieved by using the s 17 statutory language of ‘reports of the proceeding’ and/or ‘derived from the proceeding’ in the body of the order itself.^[90] Indeed, such limits cannot be read into an order simply by specifying in the order that it was made pursuant to s 17 of the OC Act.

Second, it is crucial to emphasise the consequences of inferior courts making proceedings-plus orders without having the power to do so. In relation to clear proceedings-plus orders, such orders are, like the ‘all-material orders’ discussed above, undoubtedly beyond the powers available to inferior courts under the OC Act and are, therefore, null and void from the time that they are made.^[91] Based on the figures above, this means that the 17 clear proceedings-plus orders made by the County and Magistrates’ courts are, in this author’s opinion, invalid and unenforceable. If we add to this the 33 all-material orders discussed earlier, the result is that almost 17% (39/230) and 6% (11/190) of all orders made by the County and Magistrates’ courts, respectively, are invalid for being beyond power. This is an extraordinary development, especially in the County Court, and is a judicial practice that must be addressed as a matter of urgency. Admittedly, the position is less certain when it comes to unclear proceedings-plus orders. However, if we accept that unclear proceedings-plus orders are open to the broad ‘proceedings-plus’ interpretation, despite the fact that the courts are likely to have intended to make narrower proceedings-only orders,^[92] such orders are also in danger of being found to be beyond jurisdiction and therefore invalid.^[93] The data shows that 44% of all orders made by the County and Magistrates’ courts combined (183 unclear proceedings-plus orders) fall within this category. This, again, is an extraordinary result. At the very least, it is problematic that orders are being routinely drafted in terms that could potentially undermine their validity.

As explained above, orders were classified as proceedings-only where it was clear that they only prohibited publication of reports of proceedings or where information was derived from proceedings. Orders that were drafted in terms identical with or similar to the wording of the statutory power to make proceeding orders under s 17 of OC Act clearly fell to be classified as proceedings-only orders. The following is an example of an order using the statutory language:

Pursuant to s 17 of the Open Courts Act 2013 (Vic), the disclosure by publication or otherwise of a report of the whole or any part of the proceeding or any information derived from the proceeding is prohibited ...^[94]

Orders departing from the statutory language were only classified as proceedings-only orders where there was some ‘link’ with the proceeding to make it clear that the prohibition on publication was limited to reports or where the information was derived from the proceeding. For example, the following orders are clearly limited to prohibiting the publication of reports revealing the identity of the witnesses in the proceedings:

[T]he following is prohibited[:] ... (a) Publication of the fact that [X] is a witness in this proceeding.^[95]

Publication of the following is prohibited: ... (a) Any reference, either directly or indirectly, to the name, address or any identifying features of [A] as a witness in the trial of [X], [Y] and [Z].

The proceedings-only orders were analysed in terms of the language used and their scope. The data on language is presented in Table 4 below.

Table 4: Proceedings-only orders under the OC Act according to language used

Court	‘Report/derived from the proceeding’	‘Report’	‘Derived from the proceeding’	Other link to proceeding
Supreme Court	10	6	6	29
County Court	40	33	7	47
Magistrates’ Court	11	4	14	53
Total	61	43	27	129

Based on the data in Table 4, the proportion of proceedings-only orders that reproduced the statutory language of the OC Act is approximately 50%. This is a considerable reduction from the 90% of proceedings-only orders that relied upon the statutory language in the 2013 Study.^[96] This, in and of itself, is not a problem. However, as discussed above, such departure from the statutory language of s 17 runs the risk of orders being inadvertently drafted in broader and potentially invalid ‘proceedings-plus’ terms.

One of the key findings in the 2013 Study was that 52% of proceedings-only orders (or 36% of all regular orders) prohibited the publication of the whole of the proceeding in question, as opposed to part of a proceeding or particular proceedings information.^[97] Such orders are known as ‘blanket-ban’ orders and are the most extreme form of proceedings-only suppression order that can be made by a court. Table 5, below, sets out the proceedings-only orders in the present study by court and by scope.

Court	Proceedings-only	Whole of proceedings (‘blanket’ orders)	Part of proceedings
Supreme Court	51	19 (37%)	32 (63%)
County Court	127	86 (68%)	41 (32%)
Magistrates’ Court	82	59 (72%)	23 (28%)
Total	260	164 (63%)	96 (37%)

Table 5 shows that 63% of proceedings-only orders in the dataset are blanket bans, an increase of 11% compared to the 2013 Study. By court, it is apparent that this increase is confined to the Magistrates’ Court (72%, up from 34% in the 2013 Study), with the Supreme and County courts showing decreases from 48% to 37% and 80% to 68%, respectively.^[98] Furthermore, as a proportion of all orders in the dataset, it appears that blanket bans have decreased slightly from 36% to 33% (164/486 orders).^[99] However, when we add to this data the 33 all-material orders discussed above — which extend to prohibiting the publication of any proceeding information along with undefined extraneous matter — the number of blanket-ban orders increases to 197, or 41% of the 486 orders in the dataset, up from 36% in the 2013 Study.^[100] The data on the scope of orders is significant. It indicates that the OC Act has had no overall effect whatsoever in narrowing the scope of orders made by the courts, despite s 13 expressly reminding judges that suppression orders should not apply to more information than is strictly necessary in the circumstances. Furthermore, given the extreme nature of such orders and their recognised ‘gravity’,^[101] it must be pointed out that it is highly improbable, in this author’s opinion, that such a large proportion of blanket-ban orders in the dataset could be justified. Confirming that this is the case, however, would require further research into the circumstances of each of the blanket-ban orders, which is beyond the scope of the present study.

As discussed in Part II of this article, s 13 of the OC Act requires that where an order is made by a court under s 17 or by the Magistrates’ Court under s 26, the statutory ground or grounds relied upon must be specified in the order. Table 6, below, sets out the frequency with which each of the statutory grounds have been specified in the orders in the dataset according to court.

It is not at all surprising that the ‘administration of justice’ and the ‘personal safety’ grounds are the most frequently relied upon grounds for the making of suppression orders. What is surprising is that 31 orders in the dataset did not specify the relevant statutory ground or grounds upon which they were made despite this being a mandatory requirement of the OC Act. This was most prevalent in the Supreme Court in terms of proportion of orders, where 16% of orders (10/61 orders made under s 17) did not specify grounds where grounds were required.^[102]

Section 13 of the OC Act also requires that the purpose of an order must be specified. The orders in the dataset specified purpose using two different methods. Some orders simply repeated, without more, the ‘generic’ statutory grounds, whereas other orders set out the purpose with greater specificity — for example, by stating that the purpose of the order was to ‘avoid prejudice to the jury and to ensure the fair trial for the accused’^[103] or ‘to protect the safety of [X], an informer’.^[104] Table 7, below, presents data on the specificity of purpose (generic, specific or unspecified) by court.

It is this author’s view, however, that specifying the purpose in this manner fails to meet the requirement in s 13(2) and is, therefore, inadequate. This is because s 13(2) requires that both the purpose of an order and the grounds upon which it is made be specified in the order; if the statutory requirement to specify purpose can by satisfied by simply stating the statutory ground, the purpose requirement would be superfluous. Such an understanding of s 13(2) would go against the basic principle of statutory interpretation that all words and provisions within a statute have meaning and effect and that, where possible, no provision can be given a meaning which would render it superfluous or insignificant.^[105] It is also concerning that, despite the mandatory language of s 13(2), the Supreme Court failed to specify any purpose at all in 13 of the 66 orders made by that court (20%). This was a much higher proportion than both the County Court (2/230, or fewer than 1%) and the Magistrates’ Court (18/190, or just over 9%).

Court	Prejudice to the administration of justice	National or international security	Safety of any person	Undue distress or embarrassment (sexual offence or family violence)	Undue distress or embarrassment of child in any criminal proceeding	No ground specified
Supreme Court	33	1	28	2	2	10
County Court	134	1	103	17	10	6
Magistrates’ Court	99	4	99	38	27	15
Total	266	6	230	57	39	31

Court	Generic	Specific	Unspecified
Supreme Court	30	23	13
County Court	156	72	2
Magistrates’ Court	168	4	18
Total	354	99	33

As explained in Part II of this article, s 13 of the OC Act requires that an order must specify the suppressed information with ‘sufficient particularity’ so as to ensure that the information to which it applies is ‘readily apparent from the terms of the order’. However, what this section precisely requires in terms of specificity has not yet been the subject of detailed judicial consideration.^[107] On its face, it would appear that orders must be self-contained so as to ensure that intending publishers are not required to consult extraneous sources to ascertain the information that is the subject of the order.^[108] While such an interpretation of s 13 would appear to require the precise suppressed information to be set out in the order itself, this will not always be practicable.^[109] First, it might be that the information is simply too voluminous to include in the order itself. For example, the suppressed information might be the contents of a lengthy document or the entire evidence of a given witness. In such circumstances, it would be desirable to include the suppressed information by a suitable reference. It may be sufficient to meet the sufficient particularity requirement if the document or transcript of the evidence were either annexed to the order^[110] or made available upon the request of those with notice of the order.^[111]

Second, there are circumstances where a court might have legitimate concerns that including the precise information in the order itself would create an unacceptable risk that the information will be disclosed, including by widespread publication of the order itself online.^[112] This is most likely to arise where sensitive national security information is concerned or where an order suppresses the identity of an informer. Indeed, names and identity pose a particular difficulty in this regard and there is seemingly contradictory authority as to whether an order must include a person’s name, rather than just their role in the proceeding (that is, ‘the witness’) to be sufficiently certain.^[113] Finally, including the precise information in an order itself might be impracticable where the suppression order is concerned with consequences, rather than with particular information. An example is an order prohibiting publication of ‘any material which reveals, or has a tendency to reveal, the identity of the witness, [X]’.

Given the uncertainty as to what drafting techniques will or will not meet the sufficient particularity requirement in s 13, the orders in the dataset were assessed for how the information was specified, rather than whether the specificity was adequate. Thus, excluding the 33 all-material orders, which clearly fail to meet the sufficient particularity requirement, the specificity of the information in each order was classified according to whether the information was specifically denoted in the order itself, referred to, or defined by reference to particular consequences. This data is presented in Table 8 below.

Court	Denoted	Reference	Consequences	No information specified
Supreme Court	19	42	16	-
County Court	55	132	48	2
Magistrates’ Court	35	117	42	6
Total	109	291	106	8

Two comments can be made about the data in Table 8. First, it is noteworthy that only 22% of orders in the dataset (109/486) denoted the suppressed information, the method of drafting most likely to meet the sufficient particularity requirement. Second, two County Court and six Magistrates’ Court orders specified no information whatsoever. It almost goes without saying that such orders would not only fail to satisfy s 13, they would also be invalid and unenforceable.

Where orders in the dataset referred to identity — either where identity was the subject matter of an order, or was used in another sense to define the subject matter of an order (that is, ‘publication of evidence given by X’) — data was collected on whether the person in question was named or simply referred to by their role in the proceeding. It was found that 281 orders in the dataset referred to identity and 183 of those orders referred to the relevant person by name. This was highest in the County Court (83%), followed by the Supreme Court (70%) and the Magistrates’ Court (48%). This information is significant because orders that denote the name of the person are more likely to have met the sufficient particularity requirement and, even if not strictly required as a matter of law, it is undoubtedly best practice.

The 2013 Study confirmed claims that suppression orders were frequently being made without sufficient temporal limitations. It was found that 69% of orders (847/1226) did not contain any limitation or were made ‘until further order’.^[115] As explained in Part II, s 12 requires that all suppression orders contain an end date, either by specifying a specific date or period of operation, or a specific event that will automatically bring the order to an end (that is, ‘verdict’, ‘release from prison’ or the death of a person). Table 9, below, presents data on temporal limitations.

Court	Event	Period	Date	Until further order	Permanent	Unspecified
Supreme Court	29	10	18	5	-	4
County Court	87	24	112	6	1	-
Magistrates’ Court	33	21	111	20	1	4
Total	149	55	241	31	2	8

As can be seen from Table 9, 41 orders in the dataset did not contain an appropriate temporal limitation. This was most prevalent in the Supreme (9/66) and Magistrates’ courts (25/190), where approximately 13% of orders made by each court either did not adequately specify duration (that is, ‘until further order’) or did not specify any duration at all. This is remarkable given that end dates are mandated by the OC Act in the clearest possible terms.

Table 10, below, presents data on the duration of the orders made by reference to either a fixed period or date.

Court	Short term 30 days or less	Short–medium term > 30 days –1 year	Medium term > 1 year but < 5 years	Exactly 5 Years	Long term > 5 years
Supreme Court	6	7	3	12	–
County Court	23	19	23	62	8
Magistrates’ Court	32	67	19	12	2
Total	61	93	45	86	10

What is significant about the data in Table 10 is that 18% of orders in the dataset (86/486) were made to operate for a period of exactly five years. This was most common in the County and the Supreme courts (27% and 18%, respectively). This is a curious result because in terms of necessity of duration, there is nothing significant about a five-year period of operation that would explain the prevalence of such orders in the dataset. It appears that it can only be attributed to the wording of s 12. As explained above, s 12 provides that an order made to operate for a duration that is defined by reference to an event that may not occur (that is, ‘until further order’) must also specify a fixed period of duration ‘not exceeding 5 years’. It may be that some judges are treating this reference to five years as a ‘default’ period for the making of suppression orders. This may be in lieu of actually considering the necessity of duration or it may be that it is being applied where judges are unable to ascertain a more appropriate period of duration. Either way, to read s 12 as providing a five-year default period is a clear misinterpretation of the provision. It should also be noted that of the orders in the dataset made to operate for five years, only 11 had this duration specified as an alternative to an event that may not occur. This indicates that five years has become the general default period of operation for some judges and not simply as the ‘fall back’ for orders otherwise made ‘until further order’.

IV Discussion

The key findings that emerge from the results presented in Part III of this article can be summarised as follows. First, the data shows no significant overall reduction in the rate of suppression orders issued in Victoria since the OC Act came into force. While there has been a notable reduction in orders made by the Supreme Court and, to a lesser extent, the Magistrates’ Court, this is offset by an increase in the number of orders made by the County Court in Year 2 of the present study. Second, there has been no reduction in the scope of suppression orders made by the Victorian courts, with blanket bans continuing to comprise a large proportion of orders made (41% including all-material orders). Surprisingly, there has even been a slight overall increase in such orders under the OC Act and a substantial increase in the number of such orders issued by the Magistrates’ Court. Third, all courts continue to make ambiguous proceedings-plus orders at a significant rate, indicating that a problem continues to exist in relation to the clarity of orders. Fourth, inferior courts have made a large number of orders that are clearly beyond their powers (clear proceedings-plus orders and all-material orders) and that are, therefore, invalid and unenforceable. Alarmingly, almost 17%, or just over one in six, orders made by the County Court in the dataset were objectively beyond power. Fifth, it is evident from the orders made by the Magistrates’ Court that there is significant misunderstanding regarding the operation and scope of the powers afforded to the Magistrates’ Court under ss 17 and 26 of OC Act, with 16% of orders being made pursuant to the incorrect power. Sixth, the mandatory requirement regarding duration of orders in s 12 of the OC Act has resulted in a considerable reduction in orders being made without end dates or ‘until further order’. This is an important improvement. However, a seventh and final result is that judicial officers, particularly in the Supreme Court, frequently fail to comply with the mandatory drafting requirements in the OC Act regarding duration, grounds and purpose.

On balance, these findings — particularly the scope of orders and the frequency of invalid orders — indicate that open justice in Victoria is arguably in a worse state under the OC Act than it was previously. This Part briefly reflects on the rate of suppression under the OC Act. It also considers why significant problems continue to plague the practice of suppression orders in Victoria despite the OC Act and what measures might be adopted to promote greater compliance with the law.

A The Rate of County Court Suppression Orders under the
Open Courts Act

The apparent reduction in the rate of suppression orders in the Supreme and Magistrates’ courts might indicate that the OC Act has been successful in bringing down the number of suppression orders in those courts. However, given the uncertainty regarding the completeness of the data upon which these observations are based, the following discussion is confined to the rate of suppression in the County Court.

There are three possible explanations as to why the rate of suppression in the County Court has not reduced under the OC Act. First, it may be attributed to the fact that the OC Act expands, in some respects, the grounds upon which courts can make suppression orders, as discussed in Part II of this article. For example, based on the results in Table 6 (statutory grounds), there were 10 orders made by the County Court to prevent undue distress or embarrassment to a child in a criminal proceeding. This ground did not exist under the pre-OC Act regime and, therefore, such orders could not have been made. It is also possible that the expansion of the safety ground to include psychological harm and the undue distress and embarrassment ground to include family violence offences accounts for some of the 120 orders made under those grounds. However, given that the majority of orders made by the County Court did not contain an adequately specified purpose, it is not possible (based on the orders themselves) to ascertain how many of those orders, if any, were made for a purpose falling within such expanded circumstances.

The second explanation is that the rate may have remained stable (and even increased in Year 2) despite legislative intervention because the assumption as to the need for a reduction was itself misplaced. In other words, it may be the case that no problem existed with the County Court’s approach to suppression orders that required modification or correction and that this is reflected in the fact that the rate of suppression has not reduced in response to the OC Act. This explanation is consistent with the views of the Chief Justice of Victoria regarding the approach of the courts more broadly to suppression orders in Victoria. In responding to an article published by The Age^[116] critical of the number of orders in Victoria, her Honour said that ‘[t]o suggest, as The Age has, that courts make orders without justification, even casually, is wrong. It undermines confidence in, and respect for, the judiciary.’^[117] It is assumed, of course, that by stating that courts do not make orders ‘without justification’ her Honour meant that courts do not make orders that are not justified according to the stringent requirements of the law.

Alternatively, if we assume that suppression orders in the County Court prior to the OC Act were frequently being made in circumstances not justified by law, the results in the present study strongly suggest that this remains the case and that the OC Act has had limited, if any, effect in modifying the approach of judges in that Court. This is consistent with the views expressed by the Honourable Justice Simon Whelan of the Victorian Court of Appeal. In a 2015 address to the Melbourne Press Club, his Honour is reported to have stated that there was a desire for fewer orders in Victoria^[118] and observed, in line with the earlier view expressed by the Honourable Philip Cummins,^[119] that they continue to be made under the OC Act in circumstances where judges are defensive or overly cautious or in relation to matters ‘already addressed by legislation or the sub judice rule’.^[120] In other words, despite the introduction of the OC Act, orders continue to be made by the courts in circumstances where they are not strictly necessary.

The present study, as already emphasised, does not purport to confirm the issue of unjustified orders one way or the other. However, that being said, the raft of objective shortcomings identified in Part III of this article undoubtedly make it difficult to accept, in the absence of convincing evidence, any assurances that might be given that there is not a problem with unnecessary orders in Victoria and that the persistent claims to the contrary made by the media and their lawyers, and even by judges themselves, are without foundation. The present study has shown, for example, that all courts have encountered frequent difficulty in complying with even the most basic drafting requirements of the OC Act and that inferior courts are in the habit of making orders that are objectively beyond their powers. There is no reason to assume, in light of these findings, that the courts are any stricter when it comes to the question of the necessity of orders.

B Problems with the Drafting of Suppression Orders under the Open Courts Act?

While the present study is limited in terms of the conclusions that can be drawn as to the rate of suppression, it does provide objective evidence that significant problems exist with the drafting of suppression orders in Victoria. Some such problems, particularly ambiguous and overly broad orders, were first identified in the 2013 Study and have been shown in the present study to continue despite the introduction of the OC Act. This, then, raises questions as to why, with the exception of improvements to the duration of orders, the OC Act has been broadly ineffective in improving the drafting practices of the courts and what can be done to improve the approach of judges going forward.

The first potential reason for the failure of the OC Act in reforming suppression order practice is that change requires more than legislative intervention. Both this study and the 2013 Study demonstrate that the problems with suppression orders in Victoria are not the result of deficiencies in the law, but with the application of the law. Assuming, as we must, that judges and the practitioners that appear before them intend to comply with the law, what the results suggest is a need for an increased focus on professional education on the requirements of the OC Act. Educational seminars have been conducted through the Judicial College of Victoria to educate judges, and through the Victorian Bar to educate practitioners, on the details of the OC Act. An Open Courts Bench Book has also been produced to guide judges through the making of suppression orders.^[121] However, it is evident that these initiatives have had limited effect in practice and that much more needs to be done, especially in the lower courts where judges are clearly in need of further guidance as to the scope of the powers available under the OC Act and the methods of drafting that will best ensure compliance with those powers.

A second explanation that might account for at least some of the problems that persist in relation to the drafting of orders is the uncritical adoption of past orders as templates by judges or their associates, or by legal counsel who apply for them. Indeed, there are numerous standard forms of drafting that appear to have become entrenched as a matter of practice simply by virtue of their common usage. However, some such orders are inherently problematic, either because they are ambiguous (that is, unclear proceedings-plus orders) or because they are expressed in terms beyond the powers of the courts (that is, clear proceedings-plus orders and all-material orders). Others, such as the traditional form of blanket ban,^[122] will be inappropriate because they suppress far more information than is usually necessary in the circumstances. There are two ways of curbing the use of such orders. The first is through judicial and practitioner education, discussed above, as to appropriate forms of drafting. The second is through the use of better model orders, bearing in mind that judges should not slavishly adopt model orders if they are not specifically fit for purpose. The Open Courts Bench Book contains a model ‘proceeding’ suppression order, which is drafted as follows:

The Court orders that publication of [insert a succinct and inclusive statement of matters the subject of the order] ... [is/are] prohibited pursuant to s 17 of the Open Courts Act.^[123]

The problem with this model order, however, is that it does not limit the restraint on publication to reports of proceedings or where the information is derived from proceedings. For obvious reasons, use of the model order as it is currently drafted is likely to result in overly broad and potentially invalid proceedings-plus orders. Furthermore, it is important to point out that it is doubtful that a single model order, regardless of its form, is capable of providing an appropriate template to cover all of the usual circumstances where suppression orders can be validly made. Efforts, therefore, should be directed towards devising a range of tailored model orders for use in commonly occurring circumstances where suppression orders can be granted.

A final possible explanation for persistent problems with the drafting of suppression orders, both prior to and since the introduction of the OC Act, stems from the fact that many applications proceed unopposed in the courts. That is, often there is no effective contradictor to challenge the making of a suppression order, either in relation to the grounds or, relevant to the present discussion, the form in which the order is ultimately drafted. This might be because the opposing side consents to the making of the order or has no interest in challenging it. Furthermore, while the media has traditionally performed the role of contradictor in many applications, the decline in media revenue streams as a result of audience fragmentation has meant that media challenges are becoming far less frequent and are likely to become even less so in the future.^[124] On the one hand, it might be thought that the presence or absence of a contradictor should have little effect on whether a suppression order complies with the law. Judges should not accede to an application for a suppression order without adhering to the stringent requirements of the law simply because there is no contradictor present.^[125] On the other hand, the presence of an effective contradictor will help ensure that a presiding judge is fully aware of all of the relevant authorities and any countervailing arguments relevant to the decision whether to grant a suppression order in a particular case.

A contradictor experienced in the law and practice of suppression orders will also be able to assist the court in ensuring that orders are drafted in suitable terms.

In recognition of the important role that contradictors can play in suppression order applications and in light of the declining number of applications where media interests are represented, the Chief Justice of Victoria has commendably responded to concerns about the operation of the OC Act by initiating an agreement with the Victorian Bar for an ‘Open Courts Act Duty Barrister Scheme’. Under the Scheme, duty barristers are available to appear pro bono as amicus curiae in applications under the OC Act if the presiding judge is of the view that such an appearance would assist the court.^[126] The Pilot Scheme, which commenced in May 2016 and will operate for an initial period of 12 months, is confined to applications heard in the Supreme Court. It is beyond the scope of this article to consider whether it is ideal that the protection of a principle as fundamental as open justice should be left to the goodwill of the Victorian Bar, rather than a fully state-funded ‘open courts advocate’. Nevertheless, there is no doubt that a scheme for the appearance of suitably trained contradictors has the potential to assist in reducing many of problems with suppression orders highlighted in the present article. Furthermore, it is hoped that the results in the present study will enhance the operation of any such scheme by assisting those who appear as amici curiae in identifying and avoiding the shortcomings that have been identified.

However, it is important to point out that the Duty Barrister Scheme in its current form is likely to be of limited effectiveness in addressing the problems revealed in the present study. This is because the pilot only operates in the Supreme Court, while this study has shown that the most serious issues with the drafting of suppression orders — invalid and overly broad orders — arise much more frequently in the lower courts. It follows that the effectiveness of the Scheme would be greatly enhanced if it were extended, either at the conclusion of the pilot or before, to the County and the Magistrates’ courts. Having said that, it is envisaged that the deployment of the Scheme in such courts is likely to give rise to case management issues that are not presently faced to the same extent in the Supreme Court. In particular, the significantly higher caseloads of the County and Magistrates’ courts would make it difficult to accommodate the Scheme given that it would require that proceedings be adjourned or relisted for hearing in order to facilitate appearances under the Scheme. It may be that many of the case management obstacles could be avoided by relying upon the notice provisions of the OC Act. That is, while the notice regime is not intended to alert a court as to whether a contradictor will be needed in an application for a suppression order, it could be relied upon to warn the Victorian Bar that a duty barrister may be required to assist the court on short notice if no other contradictor, such as the media, is present. This would require, of course, that the courts insist upon observance of the notice provisions of the OC Act and for this reason may be problematic. In any event, it is not intended that these issues be resolved here. It is simply important to point out that unless the Scheme is extended to the County and Magistrates’ courts, it will be of little assistance in solving the issues that persist with suppression orders in those courts.

V Conclusion

The purpose of the OC Act was to improve open justice in Victoria. Unfortunately, it has largely failed to achieve this aim. The empirical research presented in this article has shown that the introduction of the OC Act has resulted in no overall reduction in the rate of suppression in Victoria; nor has it brought about improvements in either the breadth or clarity of orders. Indeed, the opposite is true: since the OC Act came into force, the overall proportion of blanket-ban orders has increased, along with the rate of ambiguous proceedings-plus orders. Moreover, the lower courts have made a significant number of invalid all-material orders and the Magistrates’ court has frequently relied upon incorrect powers in the making of suppression orders. The only overall improvement observed was in relation to the duration of orders, but, even then, courts frequently failed to specify an end date in accordance with the OC Act and many orders were made for a ‘default’ period of five years. This state of affairs is clearly unsatisfactory. The solution, however, is not to be found in further legislative reform of the courts’ powers. Rather, attention should be directed towards further professional and judicial education, and the development of a range of suitable model orders. Furthermore, a scheme facilitating the appearance of contradictors in suppression order applications — such as the Open Courts Act Duty Barrister Scheme introduced at the instigation of the Chief Justice — is likely to improve current practices. However, it will only be truly effective in solving the problems identified in the present study if it can be extended to all courts.

^[∗]Senior Lecturer, Melbourne Law School, University of Melbourne; Deputy Director, Centre for Media and Communications Law, University of Melbourne. The author wishes to thank Carly Lloyd, Paul Conroy and the County Court of Victoria for providing orders made by the County Court, and to Michael Bachelard and Fairfax Media Ltd for providing redacted copies of orders made by the Supreme and Magistrates’ courts. Thanks also to Jonathan Gill, Vicki Huang, Marcia Neave and two anonymous referees for their useful comments.

^[2] For a detailed discussion of the principle of open justice, see Des Butler and Sharon Rodrick, Australian Media Law (Thomson Reuters, 5^th ed, 2015).

^[4] See, eg, Peter Bartlett, ‘Our System of Open Justice Under Threat’, The Australian (Canberra), 19 November 2010, 29–30; Prue Innes, ‘Report of the Review of Suppression Orders and the Media’s Access to Court Documents and Information’ (Report, Australia’s Right to Know Coalition, 13 November 2008) 38; Andrea Petrie and Adrian Lowe, ‘A Heavy Hand on Justice’ in Media and Entertainment and Arts Alliance (‘MEAA’), Kicking at the Cornerstone of Democracy: The State of Press Freedom in Australia (2012) 61, 61 <https://issuu.com/meaa/docs/press_freedom_2012/1>.

^[5] P D Cummins, ‘Justice and the Media’ (Speech delivered at the Melbourne Press Club, Melbourne, 17 August 2010) <http://www.lawreform.vic.gov.au/sites/default/files/Justice%20and%20the%

^[7] See, eg, Innes, above n 4, 35; Justice Teague, ‘The Courts, the Media and the Community —

^[8] See, eg, Innes, above n 4, 35; Teague, above n 7, 25; MEAA, ‘Suppression Orders and Access to Court Information’ in Kicking at the Cornerstone of Democracy: The State of Press Freedom in Australia (2012) 58 <https://issuu.com/meaa/docs/press_freedom_2012/1>.

^[10] Robert Clark, ‘Tradition and Reform in the Law’ (Speech delivered at the Law Oration, Melbourne Law School, University of Melbourne, 3 October 2013) <http://www.victorialawfoundation.org.au/

^[14] Victoria, Parliamentary Debates, Legislative Assembly, 27 June 2013, 2418 (Robert Clark, Attorney General). Note that the Standing Committee of Attorneys-General was replaced by the Standing Council on Law and Justice, which was in turn replaced in 2014 by the Law, Crime and Community Safety Council.

^[15] New South Wales Law Reform Commission, Contempt by Publication, Discussion Paper No 43 (2000) 308 [10.20].

^[16] Victoria, Parliamentary Debates, Legislative Council, 15 October 2013, 3089 (Sue Pennicuik); Commonwealth, Parliamentary Debates, House of Representatives, 23 November 2011, 13 553–4 (Brendan O’Connor, Minister for Privacy and Freedom of Information and Minister for Justice).

^[20] The increase in NSW can be attributed to the SCAG model’s extremely broad ‘public interest’ ground for the making of suppression orders: see, eg Bosland and Bagnall, above n 9, 696.

3 NSWLR 230), blackmail (R v Socialist Worker Printers & Publishers Ltd; Ex parte A-G (UK) [1975] 1 QB 637, 649, 652 (Lord Widgery CJ)), extortion (John Fairfax Group Pty Ltd (rec and mgr apptd) v Local Court (NSW) (1991) 26 NSWLR 131 (‘Fairfax v Local Court’)), and wards of the state and the mentally ill (Scott v Scott [1913] AC 417, 437 (Viscount Haldane LC) (‘Scott’)). The inherent jurisdiction of the Supreme Court also extends to the making of suppression orders to protect forthcoming jury trials: General Television Corporation Pty Ltd v DPP (Vic) [2008] VSCA 49; (2008) 19 VR 68, 75 [21] (‘General Television’); Re a Former Officer of the Australian Security Intelligence Organisation [1987] VicRp 70; [1987] VR 875, 877 (Brooking J); Friedrich v Herald & Weekly Times Ltd [1990] VicRp 87; [1990] VR 995, 1005–6.

OC Act pt 8, and pt 8 was itself repealed on 1 December 2014 under the OC Act s 67.

^[27] The common law powers to order other types of derogations from open justice — such as in camera, pseudonym and concealment orders, and orders restricting access to court documents — are unaffected: OC Act s 7.

303–8 (where it is argued that to abrogate aspects of the inherent jurisdiction of a State Supreme Court may be unconstitutional).

^[30] Momcilovic v The Queen (2011) 245 CLR 1, 177 [444] (Heydon J) (‘Momcilovic’); Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506, 526 [5], 535–6 [29] (French CJ); Raybos Australia Pty Ltd v Jones (1985)

2 NSWLR 47, 55 (Kirby P). See also Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws, Report No 129 (2015) 232 [8.55].

^[32] See, eg, Lew v Priester [No 2] [2012] VSC 153; (2012) 35 VR 216, 220 [12] (Davies J). One principle of particular relevance is that the decision to make a suppression order under the common law, and therefore under statute, is a matter of principle, rather than one of discretion: Scott [1913] AC 417, 435 (Viscount Haldane LC). See also Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651, 664 [33]; R v Tait [1979] FCA 32; (1979) 24 ALR 473, 487 (‘Tait’) (in relation to in camera orders made under the common law). Instead, a suppression order will either be strictly necessary to ensure that justice is done (or to ensure that some other harm specified in the statute is avoided) — and therefore must be granted — or it will not: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651, 664 [33].

^[33] OC Act ss 17–18. The OC Act also provides specific additional powers for the Victorian Civil and Administrative Tribunal (‘VCAT’) and the Coroners Court, see OC Act ss 18(1)(f) and 18(2) respectively. VCAT and the Coroners Court are excluded from the scope of the empirical study in this article.

^[34] Note, the OC Act does not affect powers of suppression under subject matter specific legislation (see, eg, Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 75) or various ‘automatic’ statutory prohibitions on publication (see, eg, Judicial Proceedings Reports Act 1958 (Vic) s 4).

^[49] This distinction will sometimes be difficult to draw in practice. For example, a suppression order prohibiting the publication of any photograph that reveals the identity of a participant in proceedings could be conceptualised as proceedings (ie identity) or non-proceedings (ie a photograph) information.

^[50] Section 24 of the OC Act, however, does not limit the Supreme Court’s ability to make proceedings-plus orders under the common law, although there are significant doubts that the Supreme Court’s inherent powers can be said to extend that far in any event: see, eg, Fairfax v Police Tribunal (1986) 5 NSWLR 465, where Mahoney JA held that an order prohibiting the publication of the name of a police informer in any context was beyond power because it did not have ‘the necessary relationship to the proceedings in the court to justify the making of it’: at 473.

^[51] See, eg, Victoria, Parliamentary Debates, Legislative Assembly, 27 June 2013, 2417–19 (Robert Clark, Attorney-General); Victoria, Parliamentary Debates, Legislative Assembly, 4 September 2013, 2946 (Martin Pakula); Victoria, Parliamentary Debates, Legislative Assembly, 4 September 2013, 2954 (Wade Noonan).

^[67] A ‘news media organisation’ is defined as a ‘commercial enterprise that engages in the business of broadcasting or publishing news’ or a ‘public broadcasting service that engages in the dissemination of news through a public news medium’: OC Act s 3 (definition of ‘news media organisation’).

^[69] Section 19 of the OC Act provides news media organisations with the right to appear and be heard in relation to the making of proceeding suppression orders. Under the common law, the media have no absolute right to be heard at the time when a suppression order is applied for: see Herald & Weekly Times Ltd v Medical Practitioners Board (Vic) [1999] 1 VR 267, 297 [103] (Hedigan J); Fairfax v Police Tribunal (1986) 5 NSWLR 465, 482 (McHugh JA).

^[71] Thus, orders made under subject matter specific legislation were not included.

^[73] Shannon Deery and Padraic Murphy, ‘Mass of Court Suppression Orders Stop Victorian Public’s Right to Know’, Herald Sun (online), 31 August 2015 <http://www.heraldsun.com.au/news/law-order/mass-of-court-suppression-orders-stop-victorian-publics-right-to-know/news-story/d6f0e9cd8

^[74] Marilyn Warren, ‘In Defence of Suppression Orders, by Victoria’s Chief Justice’, The Age (online), 19 October 2015 <http://www.theage.com.au/comment/valid-reasons-for-suppression-orders-victoria-chief-justice-20151017-gkbkvu.html>.

^[79] See, eg, Victoria, Parliamentary Debates, Legislative Assembly, 4 September 2013, 2949 (Clem Newton-Brown); Victoria, Parliamentary Debates, Legislative Assembly, 4 September 2013, 2963 (Neil Angus); Victoria, Parliamentary Debates, Legislative Assembly, 4 September 2013, 2959 (David Southwick).

^[80] This was the term used in the 2013 Study and is used in the present article in preference to the statutory term ‘proceeding orders’ so as to ensure consistency with the 2013 Study and to ensure that such orders are clearly distinguished from ‘proceedings-plus orders’.

^[83] Orders have been counted multiple times where they contained a combination of the different types of orders. There were 56 orders that contained a combination of more than one type.

^[84] See, eg, Fairfax v Police Tribunal (1986) 5 NSWLR 465, 473 (Mahoney JA); Mayas (1988)

14 NSWLR 342, 357 (McHugh JA), 344 (Hope JA agreeing); Herald & Weekly Times Pty Ltd v Victoria [2006] VSCA 146; (2006) 25 VAR 124, 137 [33]; Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435, 445 [27] (Gaudron, Gummow and Callinan JJ). However, all orders made by superior courts, even if made without jurisdiction, must be obeyed until set aside: New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118, 132–6 [28]–[41] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ), 140–1 [54]–[56] (Gageler J) (‘Kable No 2’).

^[89] Court orders, particularly injunctions, should be drafted in terms ‘sufficiently specific to leave no uncertainty what the affected person is or is not allowed to do’: Lord Roger G Toulson and Charles M Phipps, Confidentiality (Sweet & Maxwell, 3^rd ed, 2012) 214 [9-005], citing A-G (UK) v Punch Ltd [2002] EWCA Civ 1641; [2003] 1 AC 1046, 1055–6 [33]–[37] (Lord Nicholls), 1073 [111] (Lord Hope). It has been held by courts that it would be unfair to hold a person in contempt for non-compliance with an unclear or ambiguous order: see, eg, A-G (UK) v Leveller Magazine Ltd [1979] AC 440, 453 (Lord Diplock).

^[90] This is despite legitimate warnings regarding the dangers of simply transposing statutory terms into suppression orders: see, eg, Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506, 546 [58] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ), citing ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248, 259–262 (Lockhart J) (‘ICI Australia’).

^[92] See, eg, Fairfax v Police Tribunal (1986) 5 NSWLR 465, 473 (Mahoney JA). See also DPP (Vic) ex rel Davey v Dale (2010) 30 VR 282, 289 [30]–[31] (Beach J) (involving questions regarding the interpretation of a similarly worded statutory provision).

^[93] The fact that an unclear proceedings-plus order might be given a narrower proceedings-only interpretation will not necessarily prevent it from being found to be beyond jurisdiction: see, eg, Fairfax v Police Tribunal (1986) 5 NSWLR 465, 473 (Mahoney JA).

^[102] A further five orders were made by the Supreme Court where grounds were not required to be specified.

^[105] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 (McHugh, Gummow, Kirby and Hayne JJ), citing Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405, 414 (Griffiths CJ).

^[106] This table only includes orders where grounds were required to be specified under the OC Act. Furthermore, orders containing multiple grounds have been counted multiple times.

^[107] In DPP (Cth) v Brady, Hollingworth J explained that she included the suppressed information (names of particular persons in connection with allegations against them) in the order itself in order to comply with the sufficient particularity requirement: [2015] VSC 246 (5 December 2014),

^[108] This interpretation would be consistent with the common law position regarding injunctions having to be ‘self-contained’: see, eg, ICI Australia (1992) 38 FCR 248, 262 (Lockhart J), 268–9 (French J).

^[109] See, eg, Jason Bosland, ‘WikiLeaks and the Not-So-Super Injunction: The Suppression Order in DPP (Cth) v Brady’ (2016) 21(1) Media and Arts Law Review 34, 41–7.

^[110] Although it has been held that orders must be self-contained ‘so far as possible’ and ‘preferably’ should not refer to annexed documents, referring to annexed documents has not been entirely ruled out in the case of injunctions: see ICI Australia Operations (1992) 38 FCR 248, 262 (Lockhart J), 268–9 (French J).

^[113] See, eg, R v Nationwide News [2008] VSC 526; (2008) 22 VR 116, 129–30 [60] (Mandie J) (reference to ‘witness A’ was sufficient to meet the common law requirements of certainty and specificity of suppression orders); cf Australian Broadcasting Corporation v Local Court (NSW) (2014) 239 A Crim R 232, 250–1 [79] (Adamson J) (orders too wide because they did not specify the names of informers).

^[114] Orders that used a combination of drafting techniques have been counted multiple times.

victoria/court-suppression-orders-still-issued-in-their-hundreds-in-victoria-20151010-gk611a>.

^[118] State of Suppression: Justice Served or Hidden? (Melbourne Press Club, 9 July 2015) 17:30 <https://www.melbournepressclub.com/article/state-of-suppression--justice-served-or-hidden>.

^[120] State of Suppression: Justice Served or Hidden? (Melbourne Press Club, 9 July 2015) 17:30 <https://www.melbournepressclub.com/article/state-of-suppression--justice-served-or-hidden>.

^[121] Judicial College of Victoria, Open Courts Bench Book (1 December 2013) Judicial College of Victoria <http://www.judicialcollege.vic.edu.au/eManuals/OCBB/index.htm#47147.htm> . The County Court has also developed a detailed internal guide on the operation of the OC Act. However, this document is not publicly available and request for access by the author was denied.

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