Victoria's Attorney-General Sonya Kilkenny committed in late June to reviewing the state's Open Courts Act, following intense public scrutiny of open justice after two high-profile events. The first involved convicted rapist Tom Silvagni, son of football legend Stephen Silvagni and media personality Jo Silvagni, who obtained a suppression order over his identity on mental health grounds. The second was a debunked study by two Monash academics claiming Victoria makes more suppression orders than almost every other Australian jurisdiction combined. While Victoria may not be the "suppression order capital" based on statistics, open justice is at crisis point. Secrecy is widespread, and judicial disdain for the media's role is rife.
The Importance of Open Justice
Publicity ensures judges act fairly, impartially, and according to law. It is fundamental to the rule of law: that everyone is equal before the law and must obey it. Addressing this situation requires significant work. Here are six issues central to reforming Victoria's court system.
1. Tightening Suppression Orders on Mental Health Grounds
Suppression orders prohibiting publication of an accused's identity based on mental health consequences of publicity (as in the Silvagni case) need tightening. Such orders fall short of public expectations and create a perception that those with financial means to hire expensive lawyers and obtain psychiatric reports receive special treatment. As one psychiatrist explained: "How can any psychiatrist confidently separate the effect of publication from the effect of being accused, charged, discussed within one's family or community, exposed to gossip or social media, brought before a court, or ultimately tried and convicted? A psychiatrist may reasonably conclude that a person is vulnerable. It is far harder to say that naming them, rather than the prosecution itself, is the decisive additional factor."
2. Imposing Time Limits on Interim Suppression Orders
Statutory time limits should be placed on "interim" suppression orders, which are meant to operate short-term to preserve the status quo until the court considers the merits. In South Australia and New South Wales, interim orders operate for no longer than a few days. In Victoria, they routinely last weeks or months. One interim order remained in place for nearly six years.
3. Regulating Pseudonym and Concealment Orders
Pseudonym orders and concealment orders—which require parties or witnesses to be referred to by a pseudonym or material withheld from the public in court—are not covered by the Open Courts Act. Courts grant them more flexibly than suppression orders, which makes no sense. These orders operate as de facto suppression orders and are more restrictive, restricting both publication outside court and what the public in court may know about identity or case aspects.
4. Requiring Published Legal Reasoning
The Open Courts Act should include a statutory requirement for courts to issue publicly available reasons for all decisions except minor matters. This obligation is already part of common law, but too many judges ignore it. Several County Court judges have refused to provide copies of reasons for final decisions even when no suppression order prevented publication. Open justice should never be at the whim of individual judges.
5. Ensuring Public Access to Court Documents
A right to public access to documents filed with the court and exhibits used in open court should be included in the act. Currently, if the media want to report using exhibits like photographs or film footage, they must apply to the trial judge. The decision is often delayed until after verdict, by which time newsworthiness has evaporated. In contrast, England and Wales have a protocol established in 2005 between the media and Crown Prosecution Service, where exhibits are made available to the media at the end of each trial day as routine. This bypasses courts and has never led to an issue, let alone a mistrial.
6. Establishing an Independent Open Justice Advocate
The system would benefit from a fully-funded, independent Open Justice Advocate, especially as media capacity to perform this protective role dwindles. Open justice is the main way the judicial branch is held accountable. A principle with such constitutional importance should not lack an effective institutional guardian.
