What is a suppression order?
A suppression order is made when a court prohibits the disclosure of information about a legal case.
These are ordered in Australia for a variety of reasons – in the interest of national security, to protect the safety of witnesses, or to guarantee a fair trial.
They can be wide-ranging, clamping down on nearly all – and at times all – information about a trial, or narrow, obscuring just one person’s name.
How can a suppression order help a fair trial?
When someone is on trial, the jury is not allowed to know sensitive information, such as rejected evidence or the accused’s prior convictions.
If news like that is widely publicised, it can unfairly influence jurors. This means the trial can be declared a mistrial and the person acquitted.
For this reason, even without suppression orders, no reporter in Australia can report the prior convictions of a person on trial.
In 2016 the news site Yahoo7 caused a mistrial halfway through a Melbourne murder case. There was no suppression order but the journalist included information that had not been shown to the jury.
This is known as sub judice contempt of court. It is separate to a suppression order, but suppression orders can be made to prevent sub judice contempt occurring.
What kinds of cases have suppression orders?
Under Victorian and New South Wales law, the following reasons can be grounds for suppression order:
Preventing prejudice to the proper administration of justice
National or international security
Protecting the safety of a person
To avoid causing undue distress to a witness who suffered a sexual offence or family violence offence
To avoid identifying a child who is a witness
If the victim was a child at the time of the offence
Suppression orders are commonly used in all Australian jurisdictions in sexual offence trials.
The above is not an exhaustive list, and the grounds for granting suppression orders vary between jurisdictions.
Here are a few examples
In New Zealand there is a suppression order in place over the name of the accused killer of the British woman Grace Millane, who is now facing trial, so the publicity does not cause a mistrial.
In Melbourne a partial suppression order is also in place in the case of Lawyer X. The lawyer defended gangland figures, but also acted as a police informant against them, and the court ordered the suppression of her identity to protect her safety.
The entire case had been under a suppression order for three years – but this was partially lifted by the high court this month, which is why all the information came out.
Famously, in 2008, a Victorian court also issued a suppression order over the airing of Channel Nine’s gangland drama Underbelly, because it could prejudice the ongoing trial of the gangland killer Evangelos Goussis.
The order expired a few months later, after Goussis’s trial was over and he was convicted.
Orders are also used when the accused person faces multiple trials – this is to prevent reporting of the first trial causing a mistrial in the second. In 2015 the Victorian county court imposed an order in the case of Adrian Bayley, who had been convicted of murdering Jill Meagher in 2013, because he was facing new charges of rape against other victims.
In all cases, suppression orders are not permanent – they are limited to a particular purpose.
Who do suppression orders affect?
Technically, everyone. Media outlets and reporters are not allowed to publish suppressed information because they expose it to a wide audience including potential jurors.
But anything written or said in a partially public forum counts as a “publication”. If you run a small self-published blog, write a tweet, or post in a Facebook group, technically you could be punished, too. It’s up to the public prosecutor whether they press charges.
Australian suppression orders apply overseas because they usually include anything that “can be accessed in Australia”. Thanks to the internet, this means any online news published by an overseas outlet, a tweet or post – unless it is geoblocked. Again, whether such breaches could lead to prosecution will largely be a matter of practicality.
One way of dealing with a high level of publicity is to hold a judge-only trial, with no jury. All jurisdictions allow this for criminal trials, barring Victoria, Tasmania and the Northern Territory. (Victoria announced this week it was seeking advice on the question of overturning that ban.)
Will I know if there is a suppression order in place?
Sometimes. For most cases, the existence of a suppression order is allowed to be reported, and news outlets will tell you that’s why information is missing.
Other times, the court can issue a suppression order on the suppression order. This means nobody can even report that the order exists – so they can’t explain why they’re silent.
What’s the punishment?
In Victoria, you can be jailed for a maximum of five years, fined $96,714 or both for breaching a suppression order. In NSW, it’s a maximum of 12 months in prison and/or a $110,000 fine.
Media outlets and the parties in question can challenge suppression orders by applying to a judge, and can potentially get them lifted or altered.
What are the arguments for and against these orders?
Suppression orders have been criticised as going against the principles of open justice and of free speech.
Australia broadly operates under the idea of open justice – that court proceedings and rulings should be made accessible to all.
Usually, anyone can go into a courtroom and report on what happens there, what the witnesses say, and what the outcome or verdict is. This has been affirmed by multiple Australian courts. In 2011 the high court said: “An essential characteristic of courts is that they sit in public.”
Critics of some suppression orders say they go too far and clamp down on open justice, or hide corrupt behaviour by powerful people, or are outdated in the modern world.
On Thursday Victoria’s premier, Daniel Andrews, said his government would fully implement the recommendations of a 2017 independent review into the state’s use of suppression orders, which was delivered by the retired judge Frank Vincent.
Vincent found that many suppression orders were being easily breached online and through social media. He called on courts to adopt a more practical, “real-world” approach.
But suppression orders can play a valuable role in preventing mistrials and ensuring that everyone receives a fair trial.
Prosecutors sometimes ask for suppression orders so they have a better chance of convicting the accused in high-profile cases.
For whistleblowers, child witnesses and victims of sexual assault, suppression orders can prevent unnecessary harm and violent reprisals against them for coming forward.
And, even without suppression orders, courts have stressed the importance of avoiding a “trial by media”. In 1997 the Victorian supreme court fined Nationwide News a then-record sum of $75,000 for prejudicing the trial of Brian Quinn.
“Quinn was entitled to a trial by 12 members of the community … Trial by media is unacceptable,” Justice Gillard said.
More information about suppression orders, contempt of court and the rules around court reporting can be found here.