Chief Justice, Victorian legal leaders reject suppression order crisis claims

The analysis, authored by Monash academics and commissioned by the Melbourne Press Club, found that Victorian courts were responsible for nearly half of all suppression orders issued nationwide in 2023.

Suppression orders, which stop the media from reporting on specific details or even entire court cases, were reportedly used 521 times by Victorian judges last year, accounting for nearly half (47 per cent) of all 1,113 suppression orders recorded nationwide.

By comparison, South Australia issued 308 suppression orders and NSW just 133, with all other states and territories accounting for the remainder.

But Chief Justice Niall and Victoria’s legal bodies rejected the report’s findings, arguing they misrepresent the facts and overlook the essential role suppression orders play in safeguarding the integrity of the justice system.

Niall CJ stressed that the courts are “committed to working with journalists” to give the public a clearer view of Victoria’s justice system and to make court proceedings as open and transparent as possible.

The state’s top judge explained that the courts have a “longstanding history” of working with journalists and revealed that they handle “more than 750 media requests” each week.

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Expressing disappointment in the Monash report’s findings, Niall CJ asserted that it failed to capture the “scale and scope” of the court’s “positive engagement” with media across Australia.

Niall CJ stressed that suppression orders are issued in only a “tiny fraction” of cases out of the more than 350,000 cases heard in Victoria each year, and are carefully used to safeguard individuals, vulnerable witnesses, undercover officers, and sensitive national security information.

He also criticised the report for relying on interviews with only 12 journalists, ignoring input from key legal voices, and including misleading claims and incomplete suppression order data that do not reflect the courts’ work.

“The report was based on interviews with 12 journalists from five media outlets,” Niall CJ said.

“It includes, but does not engage with, the response from the Director of Public Prosecutions and appears to have made no attempt to engage with the legal profession who apply for suppression orders, or the reasons for which orders are made.

“It contains a number of misleading claims, selective citations and suppression order data which has been debunked as incomplete and misleading.”

The Law Institute of Victoria (LIV) echoed these concerns surrounding the credibility of the report, highlighting how there is no evidence that the courts are misusing suppression orders.

“The depth of verifiable analysis is questionable – no evidence has been provided that the courts are not applying the criteria for issuing a suppression order correctly,” LIV said.

“In fact, the Victorian Director of Public Prosecutions, Brendan Kissane KC, is quoted in this report as saying he does not view that the number of suppression orders issued is inappropriate or excessive.”

Consequently, the LIV cautioned the public not to rely on the report’s claims.

The Criminal Bar Association also voiced concerns about the Monash report and the picture it painted of the state’s suppression orders, with chair Chris Carr SC arguing that much of the report relied on “factually unfounded assertions”.

A striking element that Carr SC flagged that wasn’t included within the report was the Open Courts Act, which ensures media organisations are always given advance notice of suppression order applications.

“Strikingly absent from the recent media reporting are some important features of the Open Courts Act. Media organisations are given advance notice of every application for a suppression order,” Carr SC said.

“The media have the right to oppose any such application, and to challenge any evidence that is relied upon. Media organisations can also seek to have orders made reviewed or appealed to a higher court.”

Carr SC emphasised that the courts have recently “taken significant steps” to make media reporting easier, including liaison teams, live-streamed hearings, and transcripts for major cases.

He said: “No legitimate criticism can be made of the courts in their application of the Open Courts Act.”