SA’s courts do not have culture of secrecy, report finds, despite near record suppression order use by judges and magistrates
The near-record use of suppression orders last year doesn’t display a courtroom “culture of secrecy”, researchers say – because open justice can’t be “an absolute rule”.
Police & Courts
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The state’s courts do not have a culture of secrecy and suppression order laws do not need reform, a peak study says – despite the near-record use of publication bans last year.
In a report published on Thursday, the SA Law Reform Institute says open and transparent justice remains “a strong premise” in the courts but “cannot be an absolute rule”.
It says suppression orders are “not all about the numbers” – despite the 308 bans handed down in 2023 – and open justice “must be carefully qualified” to protect victims, children and an accused’s right to a fair trial.
Among its 17 recommendations for “simple change”, the institute says the term “suppression order” should be changed to “non-publication order” to “dispel misconceptions”.
It also calls for “careful, ongoing review” of laws allowing alleged sex offenders to be named after their first court hearing, rather than when ordered to stand trial.
Those laws were only changed four years ago, following a 20-year campaign by victims of sexual abuse and their advocates.
The institute concludes there is “little to suggest systemic concerns or a culture of secrecy”, suggesting courts award costs against media outlets who fail to remove material “within a reasonable time”.
That should be accompanied, it says, by Victorian-style “take-down” laws that can force media outlets to erase stories from the internet hours, weeks or years after publication.
Former District Court Chief Judge Geoffrey Muecke, who helped lead the study, said he hoped people would read the full report and “become better educated” about the issue.
“People will understand that it’s not just awful people who are accused of a crime that have their names occasionally suppressed,” he said.
“It’s also lots of innocent people who are victims, or who are mentioned in court.
“We hope people will read the report, get better informed and make up their own minds as to whether there should be fewer non-publication orders or, perhaps, more.”
The institute’s study commenced in March last year and heard submissions from judges, lawyers, journalists, social media commentators and the public.
In March, The Advertiser revealed the number of suppression orders imposed in 2023 was just 20 shy of the all-time record – 328 in 2000, during the “bodies in the barrels” trial.
That tally does not include automatic, statutory suppression orders imposed for the protection of children, nor victims of sexual offending.
It includes only orders made by judges and magistrates on the application of prosecution and defence counsel.
The number of suppression orders made in SA has continuously risen for the past five years, in line with increases in all states save NSW.
Only Victorian judges made more suppressions than SA’s judiciary, imposing 442 orders over the same 12-month period.
In its 350-page report, the Institute says the challenges in protecting an accused’s right to a fair trial, in the digital media age, did not render suppression orders futile.
“The fundamental premise of open justice is, and remains, beneficial and important – however, this is not and cannot be an absolute proposition,” it says.
“Open justice is in fact a means to an end and not an end itself … open courts do not necessarily result in the integrity of and confidence in the administration of justice.
“Open justice is a vital promise, but is not an absolute rule … suppression orders are, and remain, an important means to protect a fair trial.”
It says the term “suppression order” should be abandoned as incorrect, because information is merely unable to be lawfully published, not suppressed from dissemination.
The report’s other recommendations include greater suppression protections for Aboriginal and young offenders, and providing media “limited” online access to the register of orders.
Media, it recommends, should have to undergo “court-led accreditation”, and an offence should be created for non-journalists and social media users who breach suppression orders.
The Courts Administration Authority, meanwhile, should “consider taking a more active and direct role” in communicating case outcomes to the public.
It further says the Attorney-General’s Department should report annually on not only the number of orders, but also the reasons for which each was made.
On Thursday, lead researcher and author Jemma Holt said the institute had worked hard to take into consideration the views of all stakeholders.
She said the courts “could play a bigger role” in informing the community about cases and their outcomes.
“Non-publication orders are complex, as are the legal principles and policies that underpin them,” she said.
“The hope of this report is that it explains those many complexities.”
The full report, which will be provided to the state government, can be read at the institute’s website.
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