WikiLeaks gag order: open justice is threatened by super-injunctions

Richard Ackland
theguardian.com
30 July 2014

Australian courts have increasingly been issuing suppression orders preventing the publication of legal proceedings – and an implicit dislike of the media is partly to blame

Last month, an Australian judge issued a super-duper injunction preventing the reporting of bribery allegations which involved south east Asian political figures, and in some cases their family members.

The allegations have arisen in a criminal case before the supreme court of Victoria. The super-injunction, which not only prevents publication of the allegations, but the detailed terms of the injunction itself, only came to light because WikiLeaks published the intimate details on July 29.

So while WikiLeaks, anonymous blogs and social media are buzzing with the details of these sweeping court orders, which apply Australia-wide, the mainstream media cannot trespass in this territory for fear of facing proceedings for contempt of court. This is the ludicrous nature of overreaching suppression orders, and this one is to last for five years unless earlier revoked.

The internet has made them so porous as to be useless. Only those who publish above the radar with sizeable assets and readily identifiable journalists and executives (at least ones that are not corralled in foreign embassies) are effectively injuncted from publishing.

Among the parties to these proceedings, which can be reported, are lawyers for the Commonwealth of Australia, instructed by the department of foreign affairs. So you can put two and two together and guess that the government was the applicant for this injunction.

Maybe the judge was trying to protect people whose names would come up in the criminal trial without warning or without legal representation. At the same time, it does seem an extraordinarily wide order to grant on the application of someone who is not a party to the criminal proceedings and whose self-interest lies beyond the issues to be tried and determined by the court.

Is it a contempt to tweet from Australia a link to the WikiLeaks story? “Yes”, says media lawyer Peter Bartlett, because it would reveal the names of the parties whose identity in this context is now protected.

At the same time, it would be acceptable to use a #WikiLeaks hashtag without a link. Anyone vaguely interested in this can easily find out in this global news village what we are not allowed to publish from Australia. Such is the disjuncture between proscriptive court orders and the real world of information.

The erosion of the principle of open justice has been steadily ratcheted-up with each passing year. Almost on a daily basis, the courts are issuing suppression orders preventing publication of entire proceedings or aspects of proceedings. In Victoria alone, there were 1,502 suppression orders over a five year period.

Since the passage of legislation in both NSW and Victoria that purports to create a presumption in favour of openness, the opposite has been the case and there seems to be a steady rise in orders restricting reporting of proceedings. Rarely are they accompanied with judicial reasons that carefully balance the argument between open justice and protecting the administration of justice – a flexible term which means more or less whatever a judge wants it to mean.

Judges do bang-on about the importance of open justice and love to quote Jeremy Bentham:

Publicity is the very soul of justice … it keeps the judge himself, while trying, under trial.

Yet, in their hearts they don’t like things being too open at all. There’s also an implicit dislike of the media trampling on their patch.
The overriding judicial belief is that the administration of justice is a delicate flower that can all too readily wilt if reporters are telling their readers, viewers or listeners what is going on chapter and verse inside their courtrooms.

This is not to say some suppression is not be justified, including where the physical safety of witnesses is at stake; interconnected criminal trials; family law cases; victims of sexual assault; and trials involving children come to mind. National security is also a popular one for governments to trot out, particularly in terrorism cases or hearings involving security assessments of refugees. Judges have a tendency to be far too craven in the face of overblown claims for suppression on grounds of national security.

Human Rights Watch in New York has been drawn to comment on the Victorian orders, with general counsel Dinah PoKempner saying:

The gag order published by WikiLeaks … is disturbing on its face as it suggests the Australian government is suppressing reporting of a major corruption scandal to prevent diplomatic embarrassment. The embarrassment of diplomatic partners is not the same thing as a threat to national security, or to the integrity of the judicial process.

Britain saw a spate of suppression orders on privacy grounds in relation to the extra-mural sexual activities of sports stars, and in the infamous Trafigura case involving suppression of a report about the company dumping toxic waste on the coast of west Africa. Ultimately, these court orders were rendered worthless by hundreds of thousands of tweets and even questions raised under parliamentary privilege in the House of Commons.

In Australia, the courts have issued internet take down orders in relation to pending criminal trials. The mainstream media tends to comply, while the rest of the internet, including Google, studiously ignores these attempts to quarantine the jury system.

Surprisingly, this pressing issue is missing from the agenda of next week’s big free speech spectacular put on by the Australian Human Rights Commission. The courts have failed to adjust to an environment where suppression orders, injunctions and super-injunctions can be steadfastly ignored by countless self-proclaimed publishers.

Justice Wilmot, an 18th century English judge, said the law of contempt was important to keep the courts surrounded by a “blaze of glory”. Issuing orders whose observance most people now regard as optional does not assist in that mission.