With thanks for contributions from Leanne O’Donnell (@mslods / mslods.com), Virginia Leighton-Jackson and Griffith University media freedom interns
Chapter 4: Open Justice and Freedom of Information (suppression orders and FOI)
Recent News
ICAC suppresses name of witness despite no safety threat
The NSW Independent Commission Against Corruption Commissioner Megan Latham has taken the unusual step of suppressing the name of a witness who was concerned that their business would suffer if Google search results linked him to the fraud enquiry of three NSW universities.
Commissioner Latham said that it was standard practice only to grant suppression of a person’s identity if security or safety was threatened.
In this case the witness said that he was concerned about damage to his reputation and damage to his company’s work with charities.
There are concerns that this could set a precedent for more such orders to be made.
Whitbourn, M. 17.02.2015, “The Google effect; ICAC suppresses identity of witness”, The Sydney Morning Herald, < http://www.smh.com.au/nsw/the-google-effect-icac-suppresses-identity-of-witness-20150217-13gofl.html>
Changes to the Freedom of Information system
- The Abbott Government was pushing through legislation to abolish the Office of the Information Commissioner, returning the position to an Ombudsman and Attorney General.
- The government estimates that the change would save $10.2 million over the next four years.
- “The Bill will largely restore the system for the management of privacy and FOI issues that was in operation before the establishment of the OAIC in …2010”
- The Bill was introduced in October of 2014, and was held over for more debate in 2015, however doubts were raised as to whether the changes would go ahead due to opposition in the Senate.
-Virginia Leighton-Jackson
Freedom of Information Amendment (New Arrangements) Bill 2014, < http://www.comlaw.gov.au/Details/C2014B00210>
APP. 12.02.2015, “FOI changes likely dead in the water”, News.com.au, < www.news.com.au/national/breaking-news/FOI-changes-likely-dead-in-the-water/story-e6frfku9-1227217151405>
WikiLeaks reveals Australian “super-injunction”
- The Supreme Court of Victoria issued Australia’s first recognised super-injunction in June 2014
- The injunction means that the matters discussed in the investigation/ trial cannot be published by the media, neither in physical copy or online, nor can the terms of the injunction and, in most cases, the existence of the injunction itself.
- One month later, WikiLeaks revealed the injunction by publishing a copy of the order on their website, along with Julian Assange’s commentary on the subject. It should be noted that without this action by WikiLeaks, the Australian public would still be largely unaware of the existence of the super-injunction or of its contents.
- While the order gags mainstream media Australia-wide for a term of five years (unless revoked sooner), commentators have noted that the porous nature of the Internet means that WikiLeaks and other anonymous sites are able to discuss the case in detail, and its implications for open justice in Australia.
- Tweeting and using social media which links back to the WikiLeaks article also leaves users open to contempt by breaching the order, as the user is providing access to the identities of those protected by the order.
- Comments on news articles regarding the WikiLeaks breach can also prove problematic, with many sites disabling the function to reduce the risk of an unintentional breach.
- Human Rights Watch in New York has commented 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.”
- This reflects the statement made by Assange in his media release on the subject, which is unable to be linked as the page provides details prohibited by the order.
-Virginia Leighton-Jackson
ABC, 30.07.2014, “WikiLeaks court document: website publishes details of suppression order granted in June”, ABC News, < www.abc.net.au/2014-07-30/wikileaks-publish-details-of-suppression/5634800>
Ackland, R. 30.07.2014, “WikiLeaks gag order: open justice is threatened by super-injunctions”, The Guardian, < http://www.theguardian.com/commentisfree/2014/jul/30/wikileaks-gag-order-open-justice-is-threatened-by-super-injuctions>
Dorling, P. 20.07.2014, “WikiLeaks publishes ‘unprecedented’ secret Australian court suppression order”, The Age: National, < http://www.theage.com.au/national/wikileaks-publishes-unprecedented-secret-australian-court-suppression-order-20140729-zyc6m.html>
Keane, B. 30.07.2014, “WikiLeaks reveals (not so) superinjunction”, Crikey, < www.crikey.com.au/2014/07/30/wikileaks-reveals-not-so-superinjunction>
International News
Lessons from the Trafigura case (UK)
- In 2009 through to mid-2012 the UK court system saw dozens of cases brought by oil trading company Trafigura. The company was thrust into the spotlight after it was revealed that it dumped toxic waste in West Africa, poisoning thousands of locals.
- To avoid the media spotlight Trafigura was granted suppression orders for multiple documents in its own trial for the dumping of the waste, and in the actions it brought for libel (defamation), confidence injunctions (breach of confidence), and contempt of court. Media organisations including the BBC and The Guardian were sued for defamation and contempt of court.
- In the case of The Guardian, this increased their criticism and coverage of the issue.
- In 2009 Trafigura also attempted to obtain an order to prevent outlets from reporting parliamentary proceedings with discussed the case – this attempt failed but was heavily criticised.
- To avoid the media spotlight Trafigura was granted suppression orders for multiple documents in its own trial for the dumping of the waste, and in the actions it brought for libel (defamation), confidence injunctions (breach of confidence), and contempt of court. Media organisations including the BBC and The Guardian were sued for defamation and contempt of court.
- Many of these orders were directly thwarted by the use of twitter and other social media. In the case of the parliamentary gag order attempt, the content of the proceedings was posted by multiple twitter users who discussed the details which may have been suppressed, before the High Court could rule on the order. Throughout the episode, information regarding the suppressed material was readily available online.
- The incident and potential misuse of suppression orders and super-injunctions by corporations seeking to maintain their public image prompted calls to overhaul the process, as well as calling for changes to libel laws.
- Over the next few years, fewer long term super-injunctions were issued in the UK, especially during 2011.
-Virginia Leighton-Jackson
Leigh, D. 08.01.2010, “Trafigura returns to court in attempt to suppress lawsuit documents”, The Guardian, < http://www.theguardian.com/world/2010/jan/07/trafigura-lawsuit-court-documents>
Leigh, D, 14.10.2009, “Trafigura drops bid to gag Guardian over MP’s question”, The Guardian, < http://www.theguardian.com/media/2009/oct/13/trafigura-drops-gag-guardian-oil>
Bowcott, O, 27.04.2011, “Andrew Marr superinjunction challenge cost ‘tens of thousands’ says Ian Hislop”, The Guardian, < http://www.theguardian.com/media/2011/apr/26/andrew-marr-superinjunction-cost-hislop>
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