Journalists to Face Court over Pell Suppression Order

Fairfax, Mamamia, Nine among journalists who breached Pell suppression order

A total of 36 journalists and news agencies have been accused of breaching a suppression order that prohibited the publication of material about the Pell trial.

It is anticipated that Victoria’s Director of Public Prosecutions will allege that at least 34 of the publications in question “had a tendency to interfere with the due administration of justice in the prosecution of Pell”.

When news broke of Pell’s conviction we wrote about why a suppression order was in place for the case, which can be read here.

Who’s in trouble?

Victoria’s Director of Public Prosecutions has released a list of 36 media organisations and journalists who have been called to a Supreme Court hearing on 15 April 2019.

The list includes The Herald and Weekly Times, News Life Media, Nationwide News, Fairfax Media, The Age Company, Mamamia and Nine Entertainment.

The law

While Pell’s case was in Victoria (and is therefore subject to Victorian legislation), NSW suppression and non-publication legislation shares many similarities with the Victorian statute.

In NSW, the power to close a court or a make a suppression or non-publication order is primarily outlined by the Court Suppression and Non-publication Orders Act 2010 (CSPA).

What is a non-publication order?

Non-publication orders are defined in section 3 of the CSPA. A non-publication order prohibits or restricts the publication of information (but does not prohibit the disclosure of information).

In order words, a non-publication order will prohibit a journalist from publishing certain information.

What is a suppression order?

Suppression orders are also defined in section 3 of the CSPA.

A suppression order is more extreme than a non-publication order.

According to the legislation, a suppression order is an order that prohibits or restricts the disclosure of information (by publication or otherwise).

Suppression orders vs open justice

Suppression orders are often criticised for impinging on the principles of open justice and free speech.

The principle that court proceedings should take place “publicly and in open view” is one of the fundamental characteristics of Australia’s justice system. The importance of preserving the principle of open justice has been confirmed by the High Court.

However, the High Court has recognised that the principle of open justice is not absolute. It can be departed from in “exceptional cases”.

To determine whether it is permissible to depart from the open justice principle, the court will adopt the “necessity” test; that is, it will need to determine whether it “is really necessary to secure the proper administration of justice”.

The necessity test is a high threshold. A circumstance will not be “necessary” merely because it is “convenient, reasonable, sensible, or serves some notion of public interest”.

When can the court make an order?

The court may make a suppression or non-publication order if the order is necessary to:

  • Prevent prejudice to the proper administration of justice,
  • Protect national or international security,
  • Protect the safety of any person,
  • Avoid causing undue distress or embarrassment to a party or witness in criminal proceedings involving an offence of a sexual nature

The court may also have grounds to make an order if the public interest in making the order significantly outweighs the public interest in open justice. The court may make an order on its own initiative, or on application by a person that the court regards as having a sufficient interest in the making of an order.

Jurisdiction issues

Suppression orders cannot be addressed to “the world at large”. The Pell case highlighted the difficulty of enforcing suppression orders in our digitalised world. When the Pell verdict was decided, back in December 2018, a number of international news outlets published the news without consequence.

Where to now?

Many of the media organisations in question have outlined that they intend to fight the charges.

Meanwhile, the NSW Government has recently called for a review of the operation of suppression and non-publication orders and access to information in NSW courts and tribunals.

If you need advice or representation for a criminal matter please contact Hamilton Janke Lawyers 24 hours a day, 7 days a week on 4038 1666.

Thumbnail image via ABC

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