Australian Government’s latest national security bill to stifle debate


The Australian Government has opted for censorship and secrecy over scrutiny and natural justice with its latest national security bill introduced in the Senate last week.


Haneef – A Question of Character, by Jacqui Ewart

The National Security Legislation Amendment Bill (No. 1) 2014 extends security agencies’ powers to search and use surveillance devices in the new communication environment, introduces a new ‘multiple warrants’ regime, offers immunity to intelligence personnel who break all but the most serious laws, while increasing penalties for whistleblowing and criminalising the reporting of leaked intelligence-related information.

Australian Attorney-General George Brandis introduced the legislation on Thursday (July 17).

The crucial section affecting journalists and bloggers is straightforward:

35P Unauthorised disclosure of information

(1)  A person commits an offence if:

(a)  the person discloses information; and

(b)  the information relates to a special intelligence operation.

Penalty: Imprisonment for 5 years.

It continues to set a 10 year jail term if the disclosure is deemed to “endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.”

A selective list of exemptions makes no mention of material being published in the public interest.

The provision is clearly aimed at preventing Wikileaks or Snowden-style leaks of recent years and their broad publication in the world’s media and across social media, to the embarrassment of governments including Australia’s.

As I detailed in my recent Walkley Magazine article, ‘Terror on the books’ (May 29, 2014), Australian governments from both Labor and the conservative parties have contributed to the enactment of more than 50 pieces of legislation at national level (and many more at state level) since the 9/11 terrorist attacks on the US, many of which have impacted free expression and reportage. Colleagues Dr Jacqui Ewart, Joshua Lessing and I detailed this trend in a recent article in the Journal of Media Law.

The central problem for the media and free expression advocates in Australia is that this country is unique among Western democracies in that it has no bill of rights or constitutional amendment to protect free expression or media freedom, which means Australian governments have been able to push through such legislation without a formal mechanism for reviewing the implications for free expression. Such processes exist in the United States, the United Kingdom (and other European democracies), and in Canada and New Zealand.

This legislation stands to seriously undermine the public’s right to information about important national security matters and scrutiny of the handling of such matters by government agencies. In recent Australian history, the Haneef case in 2007 stands out as a case where an innocent individual might well have been jailed if his arrest had formed part of such a secret operation and the media had not been privy to certain details that ultimately led to charges being dismissed against him.

So it operates on at least two levels – the broader public’s freedom to be informed on such matters so citizens can assess their governments’ policies and actions on national security matters – and the individual citizen’s rights to natural justice and a fair an open trial when accused of such crimes. Sadly, this means that journalists might be imprisoned under such a clause as collateral damage when trying to report upon such matters.

This is the most flagrant example of the Australian government posing an open threat to the liberty of journalists and other communicators simply trying to do their job in the reporting of news important to all citizens. Several other anti-terror laws have serious consequences for the journalists and their sources, including the suppression of information in terror trials and strong regulations on the sharing of information about citizens under control orders, but this stands to the be the most chilling.

By proposing such legislation – whether or not it is ultimately passed – the Australian Government is sending the clear message to the world community that jail is an acceptable penalty for journalists simply trying to do their job in national security correspondence and that such harsh penalties are a reasonable device to shut down criticism of government policies and the actions of government agencies. It is the kind of legislation abused so often in other countries and asks the community to ‘trust us’ when information is being stifled by the government on other important fronts such as in the reporting of the fate of asylum seekers and the coverage of activities in detention centres.

Put simply, this proposal by the Australian message sends a poor example to countries where media freedom is fragile because paves the way for the argument “If Australia passes such laws, then why should we not have them and use them?”

Journalists, journalism students, academics and free expression agencies and advocates should write to the Federal Attorney-General at opposing this legislation and, at the very least, calling for a public interest exemption to be included so that courts are obliged to weigh the public’s right to be informed about an important national security matter against the government’s interest in maintaining a veil of secrecy over its operations.

They should also make submissions stating any concerns to parliamentary committees reviewing the legislation when it reaches the committee stage. Sadly, in Australia there will be no formal review of the free expression implications of the bill.

© Mark Pearson 2014

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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Maintain the rage: support for Greste heartening, but needs to be escalated. Sign up. #FreeAJStaff


Additional research by journalism student MELANIE WHITING

AS Australian journalist Peter Greste languishes in an Egyptian jail just three weeks into his seven year sentence for simply doing his job reporting for Al Jazeera, it was heartening to see friends and colleagues rally in his support in Melbourne yesterday (July 14).

Clearly, the problem faced by all such political prisoners is that pressure for their release can diminish after their initial sentence disappears from the news agenda.

Almost 11,000 people have now signed the Canadian Journalists for Free Expression (CJFE) petition for the release of Greste and his colleagues, which will be sent tomorrow (July 16). Please go to and sign it.

In the days following the verdict political leaders including US Secretary of State John Kerry and Australian Prime Minister Tony Abbott expressed shock and condemnation over the Egyptian court’s decision on June 23.

Labor foreign affairs spokesperson Tanya Plibersek has been supportive and Greens leader Christine Milne has called upon the Abbott Government to escalate its diplomatic efforts on Greste’s behalf.

Media companies, unions and free expression groups have been united in their push for the release of Greste and his Al Jazeera colleagues.

Representatives of News Corp Australia and Fairfax Media told AdNews they saw the  sentence as a threat to press freedom.

The Media Entertainment and Arts Alliance (MEAA) issued a statement on their website condemning the verdict and maintained that Greste had acted as an ethical and responsible journalist.

A group of top international journalists united to send a letter to the Egyptian President asking for Greste and his colleagues to be released.

Petitions are important, so please sign any or all of these:

Go ahead – please sign them all NOW!

[The MEAA petition at has now closed.]

© Mark Pearson 2014

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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Australian Press Council Chair Julian Disney with @journlaw


I recently had the chance to interview Australian Press Council chair Professor Julian Disney on the role and direction of the Council.

In this interview he discusses the recent reforms to the Council, the move to improve its editorial standards, and the future for media ‘self-regulation’ as broadcast, print, online and social media formats continue to converge.

(12 mins, recorded 17 March 2014). Apologies for some audio sync issues!

© Mark Pearson 2014

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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MsLods’ news round-up: law + technology


Great regular roundup from @mslods. Note #MLGriff students, one to follow!

Originally posted on MsLods:


 Why Australia should sign the Marrakesh Treaty: Trish Hepworth. | ALIA |

“Australia does not have an obligation … to impose liability on internet access providers for their users’ copyright infringements”:  Associate Professor Kimberlee Weatherall. | ZDNet |

Australian Digital Alliance submission to JSCOT on the Intellectual Property provisions of Korea-Australia Free Trade Agreement. | ADA |

iiNet’s Steve Dalby to Village Roadshow: “It’s not our job to stop online infringers”. | Gizmodo |

Choice Australia on piracy and access to content. | Choice |

New copyright infringement laws will increase piracy: Paul Budde. | Buddle Blog |

7th Circuit confirms Sherlock Holmes is in the public domain. | The IPKat |

Athletes’ tattoo artists file copyright suits, leave indelible mark. | WSJ |

Defamation and media law

 East Timor elites try to muddle media. | Crikey News |


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National security and anti-terror laws continue to threaten journalism


* This article was first published as ‘Terror on the books’ in the Walkley Magazine on May 29, 2014.


More than 50 anti-terror laws have been introduced by the Australian government since the September 11 attacks in the US in 2001, and they continue to impact on our coverage of national security issues and place journalists and their sources at risk.

No Australian journalist would want to see lives lost in a terrorist attack, but there is evidence that existing laws give police, security agencies and the courts too much power in monitoring media activities and suppressing reports that are in the public interest. Two major reports now confirm some of these existing laws are over-reaching.

The long overdue Council of Australian Governments (COAG) Review of Counter-Terrorism Legislation was released in 2013.

As well as recommending changes to basic definitions of terrorist threats and harm, it proposes there be more opportunity for judicial reviews of the agencies’ search and seizure powers, and introducing some safeguards to the control order system (a control order restricts where a person goes and who they can meet).

The committee suggested that the communications restrictions be eased to allow a person subject to a control order access to a mobile phone, a landline phone and a computer with internet access.

Most importantly for journalists, the review recommended the repeal of Section 102.8 of the Criminal Code dealing with “associating with terrorist organisations”. This reform would put beyond any doubt the likelihood of a journalist being convicted of this serious offence by just undertaking normal reporting duties.

Another major report came in November 2013 from Bret Walker SC, the Independent National Security Legislation Monitor (INSLM). It was his third report since being appointed to the review role in 2011.Walker repeated his earlier recommendation that ASIO’s questioning and detention warrants should be abolished and suggested improvements to the definition of a “terrorist act”.

He called for a simpler system of listing terrorist organisations and inserting an exception to the “associating with terrorist organisations” provisions for humanitarian groups such as the Red Cross.

While both reports focused on issues of natural justice and human rights, neither the COAG review nor the INSLM addressed the stifling of journalism in the anti-terror laws.

Sadly, there was little in the way of media lobbying to do so either. The COAG counterterror review received 30 submissions which it posted to its website, none of which were from media-related companies or journalism or free expression organisations.

The ripples of international security operations were also felt in Australia. In 2013 the Media, Entertainment & Arts Alliance wrote to Prime Minister Tony Abbott asking for a review of the extent of metadata surveillance conducted by governments in the wake of former US National Security Agency (NSA) contractor Edward Snowden’s revelations.

There was good reason to be concerned. At least three cases in recent years have shown how the confidentiality of journalists’ sources can be compromised by surveillance by security agencies or anti-terror operations.

The retrial of “Jihad” Jack Thomas on terrorism charges in 2008 was based partly on interview materials gathered by Sally Neighbour from Four Corners and The Age’s Ian Munro and subpoenaed by the prosecution.

It emerged in the trial that up to 20 telephone calls between Neighbour and Thomas had been monitored by an ASIO agent.

The issue of confidentiality of whistleblowers’ identities also arose in the aftermath of the convictions of the Holsworthy Barracks bomb plot conspirators in 2011. The Australian had published an exclusive account on the raids in the hours before they occurred. (The three convicted plotters lost their appeals against their 18-year jail sentences last year.)

The Australian’s Victoria Police source, Simon Artz, paid for his leaks to the newspaper in the Victorian County Court with a four-month suspended sentence for unauthorised disclosure of information.

It was not a good year for whistleblowers internationally. WikiLeaks founder Julian Assange is holed up indefinitely in Ecuador’s embassy in London as he avoids extradition to Sweden on sex charges (and feared extradition to the US over security leaks). His US Army source – Private Chelsea (formerly Bradley) Manning – was sentenced by a military court to 35 years in jail for leaking classified documents. Meanwhile, Edward Snowden had fled to Russia to avoid prosecution over his leaks.

The whistleblower’s revelations about the extent of government surveillance continue to cause embarrassment, including in Australia where Prime Minister Tony Abbott reacted by attacking the ABC over its reportage. In an interview in early 2014, Abbott voiced his disapproval that the ABC had run stories about security services eavesdropping on Indonesian leaders’ phone conversations, a fact revealed by Snowden’s leaks.

The ABC then faced an “efficiency study”. It seems the Abbott government’s approach is to put the budgetary microscope on the ABC’s operations rather than wind back national security laws in the interests of media freedom.

The suppression of reporting on terrorism-related trials or evidence tendered in national security cases is an ongoing issue. The use of a closed court – combined with government media management – was central to the misplaced prosecution of Gold Coast Hospital registrar Dr Mohamed Haneef in 2007.

More than 30 suppression orders under anti-terror powers were imposed during the Benbrika trials in 2008 and 2009. In that case, Abdul Benbrika and 11 other Muslim men from Melbourne were charged with intentionally being members of a terrorist organisation. Their arrests in 2005 followed Operation Pendennis, a 16-month surveillance operation by Victoria Police, the Australian Federal Police and ASIO.

While by 2014 legislation covering suppression and non-publication orders had been introduced into only the Commonwealth, New South Wales, Victorian and South Australian jurisdictions, it appears that other states and territories are following suit to harmonise the laws.

© Mark Pearson 2014

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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Threats to media freedom in Australia so far in 2014

This semester I have had the privilege of working with two capable press freedom interns who have been helping me research my reports to Reporters Without Borders in Paris as their Australian correspondent.

Reporters-Without-BordersHere is a summary of the posts from TONI MACKEY and EVE SOLIMAN:


ABC’s Two Independent Audits Clear Accusation of Biased Coverage

There were two cases where ABC was accused of having a biased coverage. These cases were the news coverage of the 2013 Election against the Prime Minister Tony Abbott and the news coverage on Australian Asylum Seeker issues. Andrea Wills conducted an audit of 23 items that involved radio coverage of the 2013 election and found the items all followed the ABC’s Editorial Policies found in section 4. Gerald Stone conducted the audit on the asylum seeker issue and analysed 97 reports. He found the 93 were unbiased and followed ABC’s Editorial Policies. Source:

Malcolm Turnbull’s Media Reform

Malcolm Turnbull is proposing media reforms however Labor is opposing them because they are worried that it will affect local TV news. These reforms could affect Nine Entertainment, Seven West Media and the Ten Network in preventing them owning regional affiliates. Turnbull is also considering repealing the laws that prevent anyone from owning two out of three media outlets in the one market. Source:


Rinehart’s Court Order to help the introduction of uniform shield laws

Mining magnate Gina Rinehart demanded Adele Ferguson to release her sources, however a court has ruled in Ferguson’s favour with Rinehart’s business having to pay all of her court costs. This case is also being used in support of uniform shield laws for journalists throughout Australia. There have been several previous cases in Australia where journalists have been threatened and charged over not releasing sources. Source:

Politician warned over releasing media statements regarding the military unless given permission

Defence Chief General David Hurley has warned the newly elected Jacqui Lambie against using the media to criticise the military. This was after she released a statement about abuse being an intractable problem in the forces. He sent her a letter stating that if she had any problems with the military then she should take them up with him and not via the media. Source:


Proposed Legislation Changes Freedoms on Hate Speech

Section 18C of the Racial Discrimination Act –  making it illegal to publicly offend, insult, humiliate on the grounds of race – has been slated for removal in a reform. The proposed legislation states : “it is unlawful for a person to do an act, otherwise than in private, if a) the act is reasonably likely (i) to vilify another person or a group of persons; or (ii) to intimidate another person or group of persons.” Section 18D would be repealed and replaced with “ this section does not apply to words, sounds, images, or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.” Source:


Prime Minister Supports Australian Journalist in Egyptian Jail

Prime Minister Tony Abbott has finally intervened and asked the Egyptian President for the release of journalist Peter Greste. The President has assured Tony Abbott that Greste’s case would be subject to a fair and just trial. He has assured Greste’s family that he would receive all the legal support and assistance that is needed. This comes after a previous article reporting the Opposition Labor Party had pushed for the PM to intervene. They have also declared their support and assistance towards this matter. Source:


Gag Order involving Gangland Lawyer X by the Victorian Supreme Court placed on Media Outlets

The Herald Sun  in Melbourne has received a gag order from the Victorian Supreme Court. This order is to prevent publication of any information involving Lawyer X which could give away his identity. This order was extended to all media outlets the following day. It is suspected that the lawyer was a police informant from 1996 to 2010. Source:



Dob in a public servant campaign

Public servants have been urged to dob in their colleagues for posting political criticisms on social media. This comes under the Australian Public Service Code of Conduct and breaches of this act include “harsh or extreme in their criticism of the Government, Government policies, a member of parliament from another political party, or their respective policies, that they could raise questions about the employee’s capacity to work professionally, efficiently or impartially.” It covers posts that are made on facebook, twitter, youtube, pinterest, flikr, blogs, forums and wikipedia. Source:

Seven Network’s reputation damage by the Australian Federal Police

Seven Network suffered damages to its reputation after an Australian Federal Police raid that was looking for evidence of a deal with Schapelle Corby. The network says that even if there was a deal, there was no criminal offence and that because of the raid it has suffered damage to its corporate image from it imply they have committed an offence. They stated that they complied with the instructions to hand over documents to the AFP, however it was implied that there was further material that was being withheld. Source:


Mamma Mia Faces Possible Contempt of Court

Mamma Mia journalist Kate Leaver’s article included alleged prejudicial remarks on the Hughes case. At this time however the jury was still in session, the article was published with a headline that did not state the subject of Robert Hughes which meant that the jury members could have been exposed to biased information. Coverage on this possible conviction of contempt of court was banned to be reported on until after the trial was over. The article involved accusations against Hughes’ wife. Judge Zahra referred the matter to the NSW Attorney General Source:


Clive Palmer may back Cross Media Law Changes

Clive Palmer has said that he is considering voting for the repeal of cross media ownership. This is because of the introduction of new media outlets such as internet. Source:

Journalist Wins First Round in Court Case

Natalie O’Brien has sued ABC’s Media Watch over defamatory remarks critiquing her reporting. She has won the first round of legal battles. This is in regards to her report over poisonous chemicals detected near a children’s playground in July last year. Source:


Australian Journalist Deported

An Australian journalist was deported from Myanmar. This was because he was covering a press freedom demonstration. The authorities accused him of breaching the terms of his business visa. They believe that he was taking part in the demonstration. This follows a previous journalist working for the same website Democratic Voice of Burma, being sentenced a year in jail. Source:

Photographer attacked

The photographer  Sam Mooy was taking photographs of former boyfriend of previous PM Julia Gillard. Bruce Wilson is reported to have just lashed out and struck the photographer’s equipment, grabbed him by the collar and attempted to strike him. Source:


A Senate Inquiry found that the AFP bungled the raid on the Seven Network and that sources should be protected.

A government inquiry has found that the AFP raid on Seven network attempting to gather evidence of chequebook journalism being used in an exclusive interview with Schapelle Corby was incompetent and costly. The inquiry also found that sources should be protected in the case of such raids. Source:


Budget Cuts Get Rid of Office of the Australian Information Commissioner

The Federal Budget has called for the disassembly of the Office of the Australian Information Commissioner by 1 January 2014. This is an effort to save $10.2 million a year. This dissolution means the duties will have to be relocated to four other bodies. Source:


Treasurer Joe Hockey Suing Fairfax

Treasurer Joe Hockey is suing Fairfax over articles published that defamed him. They are about a fundraising event alleging in exchange for donations the donors gained access to him. He believes he has been greatly injured, shunned and avoided. His lawyers say his reputation has been brought into disrepute, odium, ridicule and contempt. He is claiming damages, interest and costs. Source:

Budget Media Cuts

Treasurer Joe Hockey’s budget contains a 1% cut to ABC and SBS funding for the next four years. Although this may seem minute in reality this also includes the media outlet not benefiting from the 3% inflation rate adjustments and remaining stagnant. The 1% cut amounts to an annual decrease of $9 million the first year, also the complete cancellation of funding for The Australia Network. ACMA (The Australian Communications and Media Authority) also is receiving a $3.3 million cut over four years. Source:

Asher Wolf Case

Asher Wolf is a freelance journalist reporting of privacy breaches made by the Department of Immigration. However they then demanded Asher Wolf to hand over the materials relevant to the story. This breach was found on the Department of Immigration’s website where complete personal information of over 10,000 (1/3) of Australia’s asylum seekers with full name, birth date, arrival, placement etc. was accessible to unauthorized personnel. Source:

Morcombe’s publicly call for a Change in Laws

Father of murdered schoolboy Daniel Morcombe, Bruce Morcombe,  has publicly pleaded for a change in law to allow juries to know about a defendant’s past crimes when they are on trial. Morcombe believes that “members of the public are smart enough to hear the truth in court”. During the murder trial the jury heard about the past crimes of another suspect, but not of the defendant’s. Source:

Government Snooping

Accusations have arisen regarding Government bodies snooping on the public’s social media pages. It started from a tweet from the Department of Immigration and Border Protection (DIBP) to a pro-asylum seeker activist that gave the impression that they had seen posts on her private Facebook page. On April 4 2014, the DIBP sent Vanessa Powell a twitter message stating “it’s come to our attention that a Facebook post on your wall contains an offensive remark directed at a staff member”.  The tweets from the DIBP stated “If you do not remove your Facebook post with immediate effect, we will consider our options further” and “Post in question is dated yesterday, with a picture of a bus and contains a comment by George Georgiadis”.  This last tweet is in response to Ms Powell asking what tweet they were referring too. This post has since been removed from Ms Powell’s Facebook page. According to a Sydney Morning Herald article the DIBP hires private contractors who monitor social media every day to determine Australian perceptions on different policies. Source:

Australia-based African Defamation Case

Australian- based Zimbabwe African National Union Patriotic Front writer Reason Wafawarova is being sued for defamation by former Zimbabwe Envoy ambassador Jacqueline Zwambila. Zwambila filed for a lawsuit back in 2011 where she claimed that Wafawarova defamed her in an article published in the Zimbabwean state media in 2010. This article claimed that a former Zimbabwean envoy had stripped in front of embassy staff. She has claimed that the article has followed her around, her name had been stigmatised and that it had taken dignity away from the country. Wafawarova has said that he is unable to receive a fair trial because his witnesses are Zimbabwean diplomats that have since been redeployed from the embassy and that their governments had refused his request for their appearances. He has also argued that the article was about something that happened on Zimbabwean soil and in a Zimbabwe newspaper so therefore Australia should have no jurisdiction over the matter. Source:

Senator Faulkner and Spy Cameras

Senator Faulkner has accused the Department of Parliamentary Services (DPS) of spying on him using CCTV cameras, which he says is a breach of parliamentary privilege. The head of DPS has been questioned by Senator Faulkner in a Senate Estimates hearing, where she has admitted to the footage being accessed “to gather evidence in a potential code of conduct case around an individual, yes”. It is believed by media that the reason behind this was to identify a whistleblower who was leaking information to the Senator. Source:

Fairfax Defamation Cases

Nick Di Girolamo who was the former chief executive of Australian Water Holdings is also suing Fairfax media in a $12.5 million defamation suit. He says that his reputation was trashed by stories published in the Sydney Morning Herald. These stories were from 2012 and 2013 and investigated involvement of the corrupt former Labor Minister Eddie Obeid in the water company. Sources:

Australian journalists face the possibility of extra delays in their freedom of information appeals with Australian federal budget cuts doing away with the Office of the Australian Information Commissioner (OAIC) by January 2015.

The cut is meant to save $10.2 million a year, but dissolving  the OAIC will mean the duties that the agency carried out will have to be shifted into four other bodies.

The privacy functions that are carried out by the Privacy Commissioner will continue as an independent legislative position within the Human Rights Commission.

The external examination of Freedom of Information (FOI) will be adopted by the Administrative Affairs Tribunal.

The Commonwealth Ombudsman will take the responsibility of filing and treatment of FOI complaints.

The last function will be divided into the Attorney General’s Department, whose responsibility will include the administering of “FOI guidelines, collecting statistics and providing explanatory material on the operation of the Freedom of Information Act 1982” (Office of the Information Commissioner disbanded as part of budget reforms, Ashurst Australia).

The budget cuts aimed at saving $10.2 million annually but will only save $3.3 million in direct financing this year and the cost of financing the continued duties, once carried out by the federal budget will be passed onto the four separate departments that it absorbed into. Source:

© Toni Mackey and Eve Soliman 2014

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Justice Open and Shut – Suppression Orders and Open Justice – live blog #openshut


I’m at the Australian Centre for Independent Journalism’s ‘Justice Open and Shut’ Symposium at UTS Sydney today and will be writing this live blog of highlights from today’s speakers as the day unfolds. Drop in if you’re in the neighbourhood to Mary Anne House, Level 3, 645 Harris St, Ultimo, Sydney.

Testing the law in NSW with the ‘Keeper of Secrets’ Miiko Kumar

The open justice system incorporates open reasons for decisions as well, says media law barrister and academic Miiko Kumar.

Media law barrister Miiko Kumar

Media law barrister Miiko Kumar

Open justice ensures justice is imparted fairly and openly, the senior lecturer in law at the University of Sydney told the Justice Open and Shut conference at UTS.

Kumar said justice can be closed by excluding the public, restricting access to confidential information, non-publication orders, pseudonym orders, witnesses giving evidence via CCTV or from behind screens, and through the use of secret evidence.

Secret evidence is where a party tenders evidence that the other parties do not see, but that is rare.

Both the common law and key statutes give courts their power to suppress in NSW, including Court Suppression and Non-Publication Act 2010 and the Civil Procedure Act. Of course, other legislation exists for specific types of witnesses, such as the Children (Criminal Proceedings) Act 1987.

She said the common law test for the issue of a suppression order was a ‘test of necessity’, not a balancing test.

“It does not mean it is just convenient or to save someone embarrassment – that is not enough,” she said.

A wide section of people have standing to apply for a suppression order in NSW, and it can be made at any time during a trial.

The NSW legislation was tested in the recent Gina Rinehart case when she applied for a stay of proceedings along with a suppression order on the grounds that the confidentiality of the proceedings would be breached.

The court was open but there was a non-publication order over the proceedings.

[ Welker & Ors v. Rinehart [2011] NSWSC 1094 (Brereton J) 13/9/11 … Appeal: Rinehart v. Welker & Ors [2011] NSW CA (Tobias AJA) 31/10/11 … Appeal: Rinehart v. Welker [2011] NSWA 403 (Bathurst CJ and MColl JA; Young JA) 19/12/11].

Suppression order was lifted in that final appeal.

“The decision shows us that the court takes the administration of justice seriously,” she said.

“The media was the one who objected to the order. It is important for the media to know when the orders are made because they are usually the ones who will object.

“The parties are more concerned about their case so they are focussed on that.”

Kumar also explained public interest immunity where a court determines a claim by having the document that is the subject of a claim and considering it in closed session.

Victoria – the state of suppression

A study of non publication orders over a five year period in Victoria found that more than 1500 had been imposed across the state’s court system , according to the deputy director of the Centre for Media and Communications Law at the Melbourne Law School, Jason Bosland.

UTS professor Wendy Bacon and Melbourne Law School's Jason Bosland

UTS professorial fellow Wendy Bacon and Melbourne Law School’s Jason Bosland

Mr Bosland reported to the  ‘Justice Open and Shut’ Symposium at UTS Sydney on his team’s research on the breakdown of legislative or common law powers under which the various courts imposed suppression orders.

Some orders were made under the provisions of an act of parliament that did not even give the courts power to issue orders.

About 70 per cent of all orders made by Victorian courts did not contain an end date or any other temporal limitation to bring them to an end. The Magistrates Court made 398 orders without a specified end date over the period. Only 128 orders revoked 202 suppression orders over the period.

More than half of the suppression orders were ‘blanket orders’ – banning the whole of proceedings from publication – including about 80 per cent of non-publication orders in the state’s County Court.

“There were real problems with ambiguity and breadth,” Mr Bosland told the conference.

Many of the orders related to the revelation of the identity of a victim in circumstances where other legislation might already prohibit this publication.

Mr Bosland has also been researching the suppression of judicial reasons. He found that in Western Australia 47 judgments of the Supreme Court and 17 of the Court of Appeal had been withheld from publication, with nine across the Supreme, appeal and district courts in NSW, and about 20 in Victoria.

He further found a simple search of the terms “Judgment Suppressed” and “Judgment Restricted” into the database Austlii generated several pages of search results.


The UK situation: Translucent justice? Digital and physical access to UK courts

The physical doors to UK courts are ‘open’, but virtual legal information is not, says UK researcher Judith Townend from City University London.


Judith Townend, City University London

The notion of open justice seems to stall at the online level. Very little can be systematically documented about what is happening in the courts, she said.

For example, there is no systematic recording of data on the outcome of defamation claims.

“It’s a given that we do want to have open access to the courts but there are particular challenges that need to be considered,” she said.

She cited the recent development of a ‘right to be forgotten’ as an emerging issue standing in the way of open justice online, along with copyright, defamation, spent convictions and the tort of misuse of private information.

She explained the proliferation of so-called ‘super injunctions’ in the UK from 2009-2011.

“Particularly worrying were the sorts of injunction where the fact that they existed could not even be reported – and these were the so-called ‘super injunctions’, Townend told the  ‘Justice Open and Shut’ Symposium at UTS Sydney.

“It is not known how many existed, but it is thought there was a small number of the truly ‘super’ kind.”

Her research has been investigating the fate of a reporting restrictions database proposed in England and Wales in 2007. Despite a freedom of information request, she was unable to find out why it had not been implemented despite an effective simple operating in the Scottish jurisdiction.

The Law Commission had found a simple system similar to the Scottish online list of orders in force would cost a government department no more than three to four hours of labour per month. It recommended such a system should be introduced, also specifying the details of the order.

However, there was a “lack of momentum to carry the proposal forward”.

She said the proposal raised questions of who should be able to access such a database, what it would cost for users, and longer term issues over the liability for breach of the orders on such a list (particularly if an order was left off the list).

Townend drew parallels with proposals in Australia for a restricted access with full details of suppression orders.

“The focus is very much on the media … but there is a broader question we need to make about public access,” she said.

“What if you are an ordinary member of the public? Should courts be obliged to share details of restrictions with the wider public?”

There are strong arguments for better data collation, she said.

“Systematic recording of injunctions would allow media and academic scrutiny of orders in different courts – types, reasons and frequency,” Townend explained.

“There would be practical benefits for reporters to help avoid inadvertent contempt and it would help inform legal policy development around contempt.”

Keynote address ‘Open Courts: Who Guards the Guardians?’ – former justice Philip Cummins

Suppression orders should only be made as a last resort, not as a first resort, former Supreme Court justice and Victorian Law Reform Commission chair Philip Cummins told the  ‘Justice Open and Shut’ Symposium at UTS Sydney today.


Justice Philip Cummins

Quoting Kafka, Bentham and several higher court judgements, Justice Cummins said in his keynote address ‘Open Courts: Who Guards the Guardians?’ that it was the essence of the judicial process that it was public.

“The two functions of transparency of the justice system are that abuses may flourish undetected without it and it maintains the integrity of the courts. They are splendid principles often enunciated by the courts,” Justice Cummins said.

“The courts, rightly, have traditionally resisted pressure to function in private. Sometimes that pressure is from high motives, sometimes base… but it is ever present and must be resisted.

“It’s plain that courts cannot be open in every case. There are plainly justifications for courts to be closed.”

He cited sexual matters, terrorism trials and others involving safety of witnesses.

“Those categories are justifiable … in individual cases the orders are not justified even though the category has been made out,” he said.

“They need to be looked at on a case by case basis. The critical thing is that suppression orders should only be made as a last resort, not as a first resort.”

He labelled the path of reasoning required of judges under legislation when called upon to grant a suppression order was ‘erroneous reasoning’.

“It introduces a balancing of interests that should not be balanced – they are not equal,” he said.

He said instead there were key questions judges should consider:

  • orders shouldn’t be made if they were already covered by other legislation;
  • if the principle of sub judice applies. it would be erroneous if the principle of sub judice was replaced by suppression orders: “Sub judice needs to be protected by all of us. It would be a very profound error for suppression orders to take over the function of sub judice.”;
  • orders should not be made on therapeutic or prophylactic or prudential grounds instead of essential; and
  • there was a lack of understanding of the integrity of the jury system.

“We know that juries are robust. We know that they are living entities and that they see various things in the course of a trial,” he said.

“I have great confidence juries are robust and I think it is a profound mistake for judges to underestimate the robustness and integrity of juries.”

He said the gangland trials were over, but the question arises: “Has the culture changed?”

In some ways there was a judicial culture that worked against open justice. He said judges were usually supportive of open justice in principle – but sometimes until it came to the case at hand.

“If the culture of the courts is erroneous then the appeal system is not the solution. My tipstaff once said to me ‘whoever discovered water, it wasn’t a fish’,” he said.

But he rejected a suggestion by media lawyer Peter Bartlett that judges saw the media as a ‘nuisance’. Rather, Justice Cummins said, it was a question of priorities because their main goal was to ensure a fair trial.

“I do think that the judiciary is concerted in applying itself to these sorts of issues. In my 22 years on the bench not once was I let down by the media,” he said.

“Parliament has a significant role to play in advancing open justice,” he said.

On the question of court public information officers, he said they had been very valuable and had not proven to be ‘second guessing’ the court as some naysayers had predicted before the role was introduced two decades ago.

“I think a media officer can perform a very valuable function,” he said.

Justice Cummins agreed a ‘two speed’ system of coverage of major criminal trials had developed with the mainstream media more shackled because of its broader coverage.

“With a lot of the technology that a lot of us have spoken about it is morphing into a new set of issues we have to be astute to,” he said.

Media lawyer Peter Bartlett said that issue was not necessarily a new one.

“Traditionally we have found that print media has been sued more often than radio or television,” he said.

“I think there is a two speed [system developing] in that mainstream media is sued far more often. There is an increasing number of actions against online sites or blogs but their level of circulation is restricted so their level of damage is restricted.”


The media and suppression orders in Victoria: reporters’ experiences

The increase in suppression orders during the gangland trials in Victoria had not diminished since the trials finished, Digital News Editor at the Herald-Sun Elissa Hunt told the  ‘Justice Open and Shut’ Symposium at UTS Sydney today.

fergusonShe was joined on a panel by Gina Rinehart biographer and Fairfax senior business writer Adele Ferguson (centre) who shared  her courtroom experiences on reporting under suppression – and senior journalist and documentary producer Sharon Davis (left).

“We do write in different ways as journalists now and have to think on our feet all the time and update for the web,” Hunt said.

“There’s not time to sit down with a lawyer and negotiate whether we can get away with this or that.

“You just had to know what you could or couldn’t say.

“Yesterday I did a dump of the suppression orders logged on our system this year and I counted 144. We’re on track for maybe 300 suppression orders this year.

“I’m not seeing a decrease in the number of orders.”

Ferguson said suppression orders take many forms. She cited the spent convictions provisions under the Crimes Act as an example of material that could not be published about a corporate regulation executive who had been in a partnership with a criminal history.

She mentioned the Gina Rinehart subpoena order against her demanding her sources last year where Steve Pennells from the West Australian was also served. Rinehart eventually backed down. She had two other subpoenas year as well.

Hunt explained the phenomenon of the ‘silent listing’ where courts would not reveal where a trial was being held, leaving reporters unable to engage lawyers to challenge the suppression.

When she queried such a silent listing she was told it was a security issue. She showed the symposium a form where people could apply to have their listings made silent under a practice direction from the Victorian Chief Magistrate.

Their outdated computer system meant courts could not use a pseudonym so the only way to keep their name off the list was the only mechanism to protect a witness.

Photos of victims that had been published many times were also suppressed by Victorian courts, Hunt said. In one case such a suppression was applied to a photo of a baby who was a high profile crime victim so juries were not prejudiced.

“I think it’s a worry we have so many judges who think the jury system is this fragile thing … our own judges don’t trust the system enough to let the jury do what they are meant to do,” she said.

Ferguson agreed with Davis  individuals are using the law more creatively to take advantage of the diminished resources of the major groups to challenge orders.

“It’s really time consuming and it’s costly and I think without doubt you are seeing more subpoenas issued and more defamation,” she said.

Hunt said: “The reality is that the only ones fighting a suppression order are the media. Unless they are doing it nobody else will be. We just can’t be there for all of them.”

She explained the complicated process involved in extracting material from the digital world once a suppression order or take down order has been issued.


Media can’t afford to oppose as many suppression orders, says top media lawyer

Dwindling media resources have impacted on free expression because news organisations do not have the resources to oppose as many suppression orders as they did previously, Minter Ellison Lawyers partner Peter Bartlett told the  ‘Justice Open and Shut’ Symposium at UTS Sydney today.

Screen Shot 2014-06-04 at 10.14.48 AM

“It does not happen as much as it used to because the rivers of gold have evaporated,” he said.

Because the media is not there to oppose applications for suppression orders there was a risk more and more will be issued that go further than they should go.

Mr Bartlett is speaking on ‘Suppression Orders: A Fine Balance”, where he is examining topical case studies including The Rolf Harris trial, ‘Lawyer X’, Julian Assange and Oscar Pistorius.

Judges will say open justice is an important principle ‘but’ … and that ‘but’ is the problem, he said.

“The trouble is you get judges who quite rightly are focused on prepartion for the trial … that they do not spend enough time on whether an application for a suppression order should be granted and just go ahead and approve that order.

It is a difficult task for the judge in balancing the right to a fair trial and the right to free expression.

“There is no doubt that where there is a clash the right to a fair trial should take precedence.

“A proper instruction to a jury reduces the need for a suppression order in many cases.”

He commended recent Victorian legislation giving the media a right to appear to oppose suppression orders and making it clear there should be an end date to suppression orders. Previously it was difficult getting older suppression orders lifted because all the parties had to be found and brought to court. However, some recent suppression orders had been issued without the recommended end dates, he said.

He said there were at least four or five suppression orders issued each day in Victoria.

He was receiving many applications to take down historical articles because of their potential effect on a trial.

He noted the seeking of urgent injunctions by high profile wealthy individuals and linked this to the ‘reasonableness’ test for defamation defences which requires defendants to have sought a reply from the plaintiff prior to publication.

Three times in the past 18 months he had experienced injunctions being sought after an approach by a journalist to get a comment from a high profile individual about allegations against them.

This had sometimes led to long delays, including one example of a judge ordering a story be held from December until the next May so the matter could be tried.

He criticised the assumption of some judges that any media coverage would lead to an unfair trial.

He suggested the orders made against the Underbelly program in Victoria were futile because people found other means of access.

The Rolf Harris trial raised interesting issues where Australian newspapers could cover the trial which was suppressed in the UK but not put it on their websites. Fairfax newspapers included a warning to others not to publish the material online. The stories ran without a byline to avoid difficulties for the reporter sitting in the London court covering the trial.

Media law experts line up in Sydney for open justice seminar

It’s a stellar line-up of Australian media law experts with the welcome guest presentation from Judith Townend from the Centre for Law, Justice and Journalism at City University, London, on ‘Transluscent justice? Digital and physical access to UK courts’.

Keynote speaker is the Hon. Philip Cummins, former Supreme Court judge and Chair of the Victorian Law Reform Commission, Chair of the Victoria Law Foundation and Chair of the Protecting Victoria’s Vulnerable Children Inquiry.

Dr Tom Morton and I are speaking about progress with our research project on a forensic mental health patient we called ‘The Man Without A Name” because of restrictions on identifying people involved in NSW Mental Health Tribunal proceedings. Section 162 Mental Health Act (NSW) bans ID of anyone involved in either tribunal or forensic proceedings, with further requirements under the Mental Health (Forensic Provisions) Act. A breach can incur a fine of $5500 or a 12 month jail term. See my earlier blog on this and Tom’s Background Briefing piece by the same name for Radio National.


Conference program:

Justice Open and Shut: Suppression orders and open justice in Australia and the UK

“There is one hell of a fight going on in Australia to preserve our free press. We are increasingly seeing the rich and powerful resort to litigation to pursue journalists’ sources or lodge defamation writs purely to stop the publication of stories and scare off the rest of the media.”

Nick McKenzie, Fairfax Media, 2014 Press Freedom Australia Address

The increasing use of suppression orders undermines fair and accurate reporting of the courts and the fundamental principle of open justice.  This workshop will explore the operations and impact of suppression orders on reporting in Australia and the UK.

A workshop for journalists, lawyers, academics and anyone with an interest in open justice, the media and freedom of the press.

The  conference schedule is now available.

Keynote address: ‘Open Courts: Who Guards the Guardians?’

Keynote speaker: Hon. Philip Cummins - former Supreme court judge and Chair of the Victorian Law Reform Commission, Chair of the Victoria Law Foundation and Chair of the Protecting Victoria’s Vulnerable Children Inquiry.

Other speakers:

  • Peter Bartlett: Partner Minter Ellison, Chair of the Advisory Board at the Centre for Advanced Journalism ast Melbourne University. Author of the law precis for MEAA State of Pres Freedom in Australia. Bartlett has represented Fairfax media and others in relation to suppression orders. He will speak on the use of suppression orders and its impact on the media and journalism, the operation of take down laws and trends observed since the introduction of the new Acts.
  • Miiko Kumar: Barrister, Jack Shand Chambers and Senior Lecturer, Faculty of Law, University of Sydney. Kumar appears regularly in applications for suppression orders on behalf of government agencies. She will provide an overview of the law relating to different forms of suppression orders, as well as recent cases involving Gina Rinehart and her attempted use of suppression orders in relation to court proceedings.
  • Judith Townend: Centre for Law, Justice and Journalism, City University, London. Townend will speak on ‘Transluscent justice? Digital and physical access to UK courts’.
  • Academics and journalists Mark Pearson (Griffith) and Tom Morton (University of Technology, Sydney): Open justice, investigative journalism and forensic patients.
  • Elissa Hunt: has been a court and legal affairs reporter with the Herald-Sun in Victoria for more than 13 years.  Her work has been recognized through numerous awards from the Victorian Law Foundation, including the 2014 Law Foundation’s Reporter of the year on Legal Issues. Elissa has recently been appointed as the Digital News Editor.
  • Adele Ferguson: a multi-award winning senior business writer and columnist for the Age and the Sydney Morning Herald and author of the best selling unauthorised biography Gina Rinehart: The Untold Story of the Richest Woman in the World. Prior to joining the Age and the SMH, Adele was a senior commentator with the Australian. She has also worked at BRW Magazine as deputy editor and chief business commentator, leading many major investigations into the corporate sector.
  • Jason Bosland: Deputy Director of the Centre for Media and Communications Law at Melbourne Law School where he teaches communications and intellectual property law. He holds degrees from Melbourne and the London School of Economics. His primary research interests lie in media law, including defamation and privacy, open justice and the media, contempt of court and freedom of speech.

This workshop is hosted by the Rule of Law Institute of Australia and the Australian Centre for Independent Journalism and is supported by the Centre for Cosmopolitan Civil Societies, University of Technology, Sydney.

Media Enquiries:

Tom Morton

Kate Burns


4 June 2014
10:00 am – 4:30 pm


Venue: Mary Anne House, Level 3, 645 Harris St, Ultimo, Sydney.


Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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