The Federal Court judge who presided over former federal political staffer Bruce Lehrmann’s defamation case says court secrecy is increasing, despite laws to promote transparency in the legal system, and that attempts should be made to “Marie Kondo-fy” piecemeal laws that allow suppression orders to be made.
Justice Michael Lee said it was now commonplace to see even experienced practitioners seeking suppression orders on an impermissibly broad basis.
Justice Michael Lee says suppression orders should only be made when they are necessary for the administration of justice.Credit: Dion Georgopoulos
Extensive suppression and non-publication orders were often proposed by consent with the other side, without the benefit of detailed submissions or analysis – though it was when both sides agreed that information should be kept from the public that the court should be most vigilant.
He said his observations were supported by data compiled by News Corp, which suggested the total number of suppression orders made in Australia rose from 859 in 2017 to 1113 in 2023, but that was probably an underestimate given that the media were only routinely notified of such orders in Victoria and South Australia.
Victoria experienced an increase from 444 in 2017 to 521 in 2023, the highest of any state, despite introducing laws to improve transparency in 2013.
Victorian Supreme Court Justice Frank Vincent, calling for better education of judges and magistrates, said there was “an important cultural dimension to the problem”.
Lee told a conference in Western Australia on Sunday run by lawyers’ organisation the Piddington Society: “To anyone interested in open justice, the sobering reality is that because of the number of courts empowered to suppress material, legacy issues, and the lack of any repositories of data, we simply have no idea how many suppression orders have been made by courts, or how many such orders remain extant.
“One thing seems plain: despite laws directed to the laudable end of giving primacy to transparency, in practice we are moving in the opposite direction.”
Recent examples included the Sydney case of Graham James Kay, otherwise known as the North Shore Rapist, who went on to indecently assault a young woman after he successfully applied for a suppression order over his name in 2020. He had already served time for the rape of six women and girls at knifepoint in the 1990s, and attempted rape of two others.
The suppression order was lifted only after The Sydney Morning Herald challenged it in court.
“The lesson for present purposes is that but for a media organisation spending its own money to intervene and oppose further suppression and non-publication orders, it appears that the judge would not have received the benefit of a contradictor,” Lee said.
More recently, on August 30, NSW Liberal MP Rory Amon signalled his intention to apply for a suppression order, and only withdrew the application after media outlets prepared to mount a challenge in Manly Local Court.
“It seems to me stamping out vestiges of a culture of secrecy and promoting principles of open justice are indispensable for the optimal operation of our criminal and civil justice system,” Lee said
He offered six ways that court secrecy could be improved.
Firstly, by collecting data on the number of suppression orders currently in force.
Secondly, by attempting to “Marie Kondo-fy the piecemeal, inconsistent and, in some respects, baffling system of various state and territory laws by which suppression orders are made”, Lee said. The inconsistencies were increasing, including most obviously in the way different states sought to protect victims of domestic violence and sexual offences, he said.
Thirdly, by making uniform court provisions for access to court documents; fourthly, by creating a national register of suppression and non-publication orders to aid compliance where orders have been properly made; and fifthly, by recognising the role of the media, which was often the only practical check on inappropriate suppression.
“At a time when traditional media is suffering revenue decline and costs pressure, it cannot simply be left to the fourth estate to protect a grundnorm [foundational principle] of our justice system on a haphazard basis,” the judge said.
Lee’s sixth suggestion was that the presiding judicial officer should be required to state the reasons for granting an order and its duration, and that should be publicly available on the national register.
His speech came two weeks after he presided over an application for a suppression order by shopping giant Super Retail Group over the statement of claim lodged by a former employee in an unfair dismissal case, which included allegations of an intimate relationship between its chief executive officer and chief human relations officer. The employee and two media outlets - the Australian Financial Review and the Australian - opposed the company’s application.
He dismissed the applications for suppression orders.
“Parties and witnesses must accept the embarrassment, damage to reputation and the possible consequential loss which can be inherent in litigation,” he ruled. “Adverse publicity, even to third parties, is an often inevitable by-product of litigation and is part of the price paid for open justice.”
The matter is under appeal and the information remains suppressed pending that appeal.
Start the day with a summary of the day’s most important and interesting stories, analysis and insights. Sign up for our Morning Edition newsletter.
clarification
This story has been updated to clarify that a former employee of Super Retail Group lodged a statement of claim and that the employee and two media organisations opposed the company’s application for a suppression order.