Tag Archives: suppression orders

Insights into open justice law reform


The NSW Law Reform Commission is conducting a review into open justice. 

Congratulations to the NSW Government for commissioning such a review.

Here are some insights I will be presenting to a roundtable convened by the commission. Some are drawn from a joint preliminary submission I prepared with colleagues Jane Johnston, Patrick Keyzer and Anne Wallace. Others are my own views after considering the Commission’s Consultation Paper 22 on the topic.

1. Macro versus micro issues

My first major concern is to do with the nature of most such inquiries – their primary focus is on the reform of the law related to the topic in the particular jurisdiction – in this case NSW. While this inquiry’s terms of reference do direct it to consider the findings of the (Commonwealth) Royal Commission into Institutional Responses to Child Sexual Abuse regarding the public interest in exposing child sexual abuse offending and ‘comparable legal and practical arrangements elsewhere in Australia and overseas’, the latter consideration is mainly used as a reference point to help guide the NSW reforms. There is too little encouraging steps towards uniformity of the laws across jurisdictions, which should be the number one priority in an era where media and social media defy jurisdictional borders. To this end:

a. A key recommendation should be to collaborate with other jurisdictions (perhaps using joint law reform commission inquiries on such matters) to achieve a semblance of uniformity so that journalists and others do not need to know the myriad of publishing restrictions that might apply to a single investigation or post across multiple states and territories (plus the Commonwealth).

b. When reviewing the micro changes to particular rules or laws affecting media research or publication, such inquiries should provide a table of inter-jurisdictional approaches to the topic and then propose the most common/popular approach as the default, only supplanted by compelling arguments to the contrary. This would represent a significant step to uniformity on each facet of the reforms.

c. Reform commissions should seek out national solutions to cross-jurisdictional publishing problems. For example, on the topic of a register of suppression orders, a recommendation should be that the Attorney-General be advised to bring forward to the Meeting of Attorneys-General (MAG) a proposal for a new national register of suppression orders, with all state, territory and Commonwealth jurisdictions feeding into the system. The Commission should be applauded for suggesting a national regime for access to court documents as part of its consultation paper (at p. 155).

2. Micro issues

I bring to the roundtable some views on the specific topic at hand – ‘Enforcing restrictions on publication or disclosure and other digital technology issues’.

a. The Commission is considering two options to help increase awareness of the existence of suppression and non-publication orders – to either to improve the notification system by establishing a new public body to notify likely parties that a suppression order exists, or to create a searchable register of NSW suppression orders available to the public and/or the media. To my mind, these options should not be mutually exclusive. Both could be proposed, and the proposal for a register should suggest a collaboration for a new national system. Any notification body should also be briefed to monitor social media actively for breaches and notifications/warnings, because the mainstream media is strongly disadvantaged by the current situation that allows for rampant social media discussion in breach of suppression orders while the media, who are aware of such orders, have their hands tied and continue to lose audience to social media in the process.

b. The issue of the extraterritorial application of offences for the breach of NSW publishing restrictions also has strong social media vs mainstream media dimensions. A breach by traditional media becomes much more obvious and enforceable, even though its audience might only number in the thousands while social media users might be committing the same breach in their millions. This happened in the Pell case in Victoria. So too did the international breach of orders by major media entities beyond the reach of prosecutors. It can become futile to issue and attempt to enforce restrictions when there is no international reach. Nevertheless, a social media active approach by the proposed new public body could make some inroads.

c. International online intermediaries need to be held account for not acting within a reasonable time to remove flagrant breaches of publishing restrictions once they have been brought to their attention. Given the size of such operations, a 24 hour notice period should be negotiable starting point as a time limit after notification. Again, a new public body established in this space could be responsible for monitoring and initiating such demands on a routine basis.

d. The myriad of offences, penalties, elements and exceptions certainly require standardisation to a recklessness standard. Strict liability is too high a hurdle given the widespread level of court and justice illiteracy among the broader social media population. Financially stricken mainstream media organisation have also reduced training in this space. A new public body with judicial powers could institute a warning system once a breach has been identified, and breaches could then be dealt with as disobedience contempt or at an “intent” level if the breach recurs after the warning.

e. This approach would feed into the question of support standardising penalties across the different offences. Defiance of an order could be dealt with harshly under the disobedience contempt powers of the new public body. However, in a democratic society jail penalties should only be used in the most extreme cases of disobedience, and certainly not at first instance. Financial penalties – perhaps accompanied by other innovative orders related to suspension of social media use – should be preferred. The scale of financial penalties can increase for the most serious cases once imprisonment is removed from the equation.

f. Two years is too long a period to bring a prosecution for a publishing offence. A one year limitation period applies effectively to defamation, so there is no reason why it should not also apply to such publishing offences.

g. The suggestion to establish a Court Information Commissioner should be applauded, with the functions as described in the report.

h. Proposals for helping avoid juror to exposure to prejudicial information are reasonable, particularly having them swear or affirm they will not make inquiries, repeating jury directions and allowing judge-alone trials when pre-trial publicity has stood to prejudice proceedings. However, missing here is the mention of juror training in the area. A simple juror course on the issue can be administered and tested online and would add to their understanding of the issue. Again, this is a topic that should be reformed nationally.

i. The extent to which the use of social media in court by journalists should be examined as part of national reform. Journalists attend court in different jurisdictions and there needs to be uniformity. A 15 minute delay before posting is a reasonable approach.

j. As virtual courts become more necessary and common, they should be as open to the public and media as other proceedings given the importance of open justice as a principle. New rules might need development and reinforcement, such as a ban on the screen capturing of images or broadcasting footage from proceedings, as with recent BBC contempt fine – https://www.lawgazette.co.uk/law/bbc-fined-28000-for-broadcasting-footage-of-remote-hearing/5107273.article

© Mark Pearson 2021

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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Rare victory for truth defence in vocational education case – #MLGriff


CASE REPORT: Charan v Nationwide News Pty Ltd [2018] VSC 3

The Australian newspaper had a rare victory using the truth (or justification) defence to defamation in a recent case involving a vocational education businessman.

Pure truth defences rarely make their way through the courts because they are usually either settled or decided on other defences such as honest opinion, fair report, triviality or qualified privilege.

Plaintiffs will not usually undergo the pain of public defamation trials if there is some semblance of truth to the allegations against them which will be aired for all to see in media coverage.



On November 20, 2015, The Australian newspaper published a print article (‘Watchdog takes peak training college to court’) and a similar online version (‘ACCC to take top training college Phoenix Institute to court’). The story was about proposed court action by the Australian Competition and Consumer Commission (ACCC) against a vocational training college called Phoenix Institute owned by the publicly listed Australian Careers Network company (CAN) in the midst of a general crackdown on the sector over unscrupulous door-to-door marketing practices. The article mentioned earlier media reports that alleged Phoenix had sent sales staff into housing commission estates, pressuring potential students to join up and stated that the parent company was under investigation by both the Federal Department of Education and the Australian Skills Quality Authority and that its shares had been suspended from trade for the previous month. The article identified the plaintiff, Atkinson Prakash Charan, as one of the company’s heads and stated he had amassed a $35 million fortune from the vocational education business. In short, it suggested that, “whilst under his management, VET organisations acted unscrupulously, in breach of regulatory standards, and that he made a large amount of money as a result of that conduct” (para 2). Mr Charan had in fact left the company about a year earlier and The Australian the next day published a correction to that effect in its print edition and later an online apology for the error.


The plaintiff pleaded eight imputations arose from the article, which the judge grouped into four headings:

  1. Mr Charan was head of ACN, a company which engaged in unscrupulous business practices that took advantage of vulnerable consumers

  2. Mr Charan was head of ACN, a company which engaged in misleading and deceptive conduct.

  3. Charan was head of ACN, which engaged in unscrupulous door-to-door marketing practices to vulnerable consumers

  4. Mr Charan [as head of] ACN carried on a business which was significantly non-compliant with quality standards (para 27).

The defendant Nationwide News – publisher of The Australian – argued successfully that imputations 2 and 3 did not arise and defended the imputations of unscrupulous business practices and significant noncompliance with quality standards successfully using the justification defence by proving that the imputations were substantially true as required under section 25 of the Defamation Act 2005. To prove the unscrupulous conduct allegations it had to convince the court under the civil burden of proof – the ‘balance of probabilities’ – that there was ‘clear and cogent proof’. To do so it drew upon a host of material obtained after the publication, including:

(a) the oral testimony of a number of witnesses who had worked in the CTI group;

(b) the oral testimony of three “students” allegedly enrolled in CTI courses conducted by CTI companies;

(c) the contents of a series of audit reports, student interviews and file reviews (with associated documentation) of CTT and AMA, carried out in 2015 under the instructions of DET; and

(d) a large number of emails and associated documents flowing to and from Mr Charan and other officers or employees of the CTI companies” (para 77).

The latter included records of phone calls and messages subpoenaed from Mr Charan’s telephone service provider Telstra.

Justice Forrest found the plaintiff was ‘was an entirely unreliable witness, not only on this issue but as to all matters relevant to his claim’ (para 111). He concluded with a concise summary of his 768 paragraph judgment:

(a) Mr Charan was defamed in both the written and online versions of the article;

(b) the article defamed him by conveying imputations that:

(1) Mr Charan managed a VET organisation which engaged in unscrupulous business practices which took advantage of vulnerable consumers which resulted in him making a large amount of money; and

(2) Mr Charan managed a VET organisation which was significantly non-compliant with quality standards

I am satisfied that Nationwide has established the substantial truth of both imputations. (paras 762 -763).

Lessons for professional communicators

Several lessons arise from this rare but successful use of the justification (truth) defence by a publisher:

  • Considerable evidence can be required to prove the truth of imputations stemming from an article, and sometimes this has to be located after the reporting and publishing process has finished, although as much evidence as possible should be available at the time of publication;
  • A publisher defendant can still win a case on the pleaded imputations even if there is basic error in the story – in this case the fact that Mr Charan had not been formally involved with the management of the company for a year. (Of course, such errors should normally be avoided).;
  • Defamation cases can be enormously expensive. In this case the 35-day trial was reported to have cost both side mores than $3.5 million in legal fees (Duke and Vedelago, 2018)

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 2018

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INFORRM a highly recommended resource for journalists and media law students #MLGriff


Congratulations to UK-based media law blog INFORRM (INternational Forum for Responsible Media) on reaching an impressive 4 million hits since it started seven years ago.

The site – international but with an understandable UK orientation – boasts more than 5,500 followers including  3,500 on Twitter @inforrm.

INFORRM has just listed its Top Twenty Posts of all time (in descending order of popularity):

From time to time over recent years they have been kind enough to repost my blogs or commentary pieces, including these:

Australia: Whither media reform under Abbott? – Mark Pearson

25 11 2013

Where will the new Liberal-National Coalition government led by Prime Minister Tony Abbott head with the reform of media regulation? Communications Minister Malcolm Turnbull and Attorney-General George Brandis were vocal opponents of the former Gillard Government’s proposals to merge press self-regulation with broadcast co-regulation into a new framework.

Read the rest of this entry »

Privacy in Australia – a timeline from colonial capers to racecourse snooping, possum perving and delving drones – Mark Pearson

13 10 2013

Australia MapThe interplay between the Australian media and privacy laws has always been a struggle between free expression and the ordinary citizen’s desire for privacy. I have developed this timeline to illustrate that tension. Read the rest of this entry »


Privacy On Parade – Mark Pearson

12 05 2012

The right to privacy is a relatively modern international legal concept. Until the late 19th century gentlemen used the strictly codified practice of the duel to settle their disputes over embarrassing exposés of their private lives.

The first celebrity to convert his personal affront into a legal suit was the author of The Three Musketeers, Alexandre Dumas père, who in 1867 sued a photographer who had attempted to register copyright in some steamy images of Dumas with the ‘Paris Hilton’ of the day – 32-year-old actress Adah Isaacs Menken. Read the rest of this entry »


Australia: News Media Council proposal: be careful what you wish for – Mark Pearson

10 03 2012

The Finkelstein (and Ricketson) Independent Media Inquiry report released on 28 February 2012 is a substantial and well researched document with a dangerously flawed core recommendation.

An impressive distillation of legal, philosophical and media scholarship (compulsory reading for journalism students) and worthy recommendations for simpler codes and more sensitivity to the needs of the vulnerable are overshadowed by the proposal that an ‘independent’ News Media Council be established, bankrolled by at least Aus$2 million of government funding annually. Read the rest of this entry »


Consumer law holds solution to grossly irresponsible journalism – Mark Pearson

9 11 2011

This post originally appeared on the Australian Journlaw blog.  It suggests an interesting new approach to media regulation which, as far as we know, has not been suggested in debates in this country.  We are reproducing it with permission and thanks to provide a further perspective on those debates.

Australia does not need a media tribunal with regulatory powers to punish ethical transgressions.  It already has one – in the form of the Australian Competition and Consumer Commission (“ACCC”). Read the rest of this entry »

… as well as occasional snippets in their useful Law and Media Roundup section and this review of my book Blogging and Tweeting Without Getting Sued by media lawyer Leanne O’Donnell:

Book Review: Mark Pearson “Blogging and Tweeting Without Getting Sued” – Leanne O’Donnell

11 04 2012

Professor Mark Pearson’s Blogging & Tweeting Without Getting Sued will be welcomed by anyone writing online … Melbourne media lawyer Leanne O’Donnell reviews this timely legal guide to a rapidly evolving media landscape

Mark Pearson’s new book Blogging & Tweeting Without Getting Sued: A global guide to the law for anyone writing online – is very accessible guide to laws relevant to the all those writing online. Read the rest of this entry »

I find the INFORRM “Blogroll” is a particularly useful resource – regularly updated and featuring these media law blogs from throughout the world. Together they provide a wonderful resource for media law students, journalists and researchers. (Thanks for including journlaw.com,  INFORRM!)

Surely sufficient bedtime reading for even the most avid media law geek!

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 2017

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Speaking with magistrates about Open Justice #MLGriff


New magistrates from throughout Australia met in Brisbane last month for the National Magistrates Orientation Program and I was honoured to join a panel addressing them on open justice.

While magistrates have both legal qualifications and considerable experience, sadly open justice does not figure prominently in the curricular of most law schools so it is heartening to see the organisers of this program giving time to this important legal principle.

My fellow panellists for the session were former Queensland chief magistrate, District Court Judge Brendan Butler (who recounted his experiences with the media in prominent trials and inquests) and the Queensland Supreme and District Courts’ first Principal Information Officer Anne Stanford (@Anne_Stanford) (who explained her role and the interaction between the courts and the media in Queensland and in Victoria where she held a similar position).

I traced the origins and importance of the open justice principle in our legal system, citing English Master of the Rolls Lord Neuberger who described it as “a common law principle which stretches back into the common law’s earliest period” – to “time immemorial” – “…older than 6 July 1189, the date of King Richard the First’s accession to the throne” [Neuberger, Lord of Abbotbury (Master of Rolls) 2011, ‘Open justice unbound?’, Judicial Studies Board Annual Lecture, 16 March, < http://netk.net.au/judges/neuberger2.pdf>., p. 2].

Particularly important was the notion that the media should be free to report upon cases and publish the names of parties involved, with minimal exceptions, as recently stated in the UK by Baroness Brenda Hale, new President of the UK Supreme Court:

“The principle of open justice is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to law. In fact, there are two aspects to this principle. The first is that justice should be done in open court, so that the people interested in the case, the wider public and the media can know what is going on. … The second is that the names of the people whose cases are being decided, and others involved in the hearing, should be public knowledge. [… limited exceptions].” R (on the application of C) v Secretary of State for Justice [2016] UKSC 2, 1 (per Lady Hale).

I suggested that with diminished resources and finances available to mainstream media in both metropolitan and regional areas, magistrates might be the only people left to speak to the principle of open justice when lawyers and litigants want the court to be closed or names suppressed. Media organisations that might have formerly paid for lawyers to push for the courts to remain open might not be able to afford them, and court reporters might not be available to even report on the particular case being heard.

I attach here my Powerpoint presentation from the session for colleagues and students who might be interested.




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 2017

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DEFAMATION CASE UPDATE: Zoef v Nationwide News Pty Ltd – identification and offer of amends appealed #MLGriff


CASE UPDATE: Zoef v Nationwide News Pty Ltd – 2015, 2016 and 2017

I blogged in 2016 about a case where the mistaken identification of an innocent octogenarian tailor in place of his alleged gun-running son produced a useful case study for media law educators trying to explain the basic elements of defamation.

Indeed, the NSW District Court case of Zoef v Nationwide News Pty Limited & Ors [2015] NSWDC 232 remains an excellent introduction to defamation, although in October 2016 the NSW Court of Appeal overturned the publisher’s defence of “offer of amends” which was originally granted by the lower court, in the appeal case of Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, and awarded the plaintiff $150,000 in damages. The appellant, Mr Tony Zoef, also had a partial victory in a more recent appeal over the backdating of the damages award, costs and interest owing in Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2.

The first appeal is useful for educators explaining identification issues in defamation and the “offer of amends” defence requirements under s 18 of the Defamation Act 2005 (NSW) (Defamation Act) – and its equivalent in other Australian jurisdictions – while the 2017 appeal holds little value for media law teachers.

The case centred upon an article published in The Daily Telegraph on 22 August 2013.

It appeared a relatively straightforward case of confused identity, where the reporter mistakenly attributed to the older Mr Zoef – a suburban Sydney tailor – the alleged crimes of his son who lived at the same address. At trial, the sole basis on which Mr Zoef’s claim was dismissed was the newspaper’s defence that Mr Zoef had failed unreasonably to accept its offer of amends.

The article in the Telegraph (22-8-13, p. 9) carried the heading “Tailor’s alter ego as a gunrunner”, which might also make an interesting topic of discussion for students around the issue of sub judice contempt: Does such a heading carry a presumption of the accused’s guilt when accompanying a report of a preliminary court appearance? [The article in question is attached to the judgment as a pdf file.]

The article portrayed a then 81-year-old suburban tailor (with a distinctive surname ‘Zoef’) as a gun-runner who had been arrested, charged and appeared in court facing charges related to him holding a huge cache of weapons and ammunition at his home.

Police had indeed raided his premises and had found weapons and ammunition in the house’s garage, occupied by the tailor’s 43-year-old son, who shared his father’s name and was the actual individual who had appeared in court facing those charges.

As I blogged in 2016, the trial judgment by District Court Judge Leonard Levy is a fascinating one for student discussion because several basic concepts in defamation were contested and resolved, including:

  • imputations – how they are worded and presented
  • the misidentification’s impact on the plaintiff’s relationships, business and emotional state
  • the question of identification and case law establishing the extent of defamation of a second person with the same name and address as the first [*** considered on appeal].
  • whether a claim for defamation will hold when some other identifying factors do not match one of the named individuals. [In this case, while the headline identified the plaintiff as a tailor, the article featured a small photograph of his 43 year old son and mentioned the younger man’s age]. [*** considered on appeal].
  • whether the defences of a fair report of proceedings of public concern could apply when there were serious inaccuracies in the article
  • whether an offer of amends had been reasonable and whether it had been accepted by the plaintiff [***the trial judge’s decision which was subsequently overturned on appeal].

The trial judge had held that, despite the serious errors in the reporting of the story and a dispute over whether the publisher’s offer of amends was reasonable and had been withdrawn, the newspaper was entitled to the offer of amends defence.

In the leading appeal judgment, Justice Fabian Gleeson stated:

Taking into account the seriousness of the defamatory imputations and the significant hurt they caused the appellant, the damage to his business as a tailor, the unequal prominence the respondent afforded to the proposed correction and apology and their resultant inadequacy, the modest monetary component of the offer, and the likelihood of the proceedings being successful, the offer of amends was not reasonable. His Honour was in error in finding to the contrary and upholding the respondent’s defence under s 18 of the Defamation Act. (at para 78).

His reasons for that decision involved a step-by-step appraisal of the offer of amends defence and thus make useful instructional material for educators wanting to explain this defence to students. It should also serve to remind journalists that the offer of amends is very much a ‘lawyers’ defence’ – not something that should be handled by journalists or editors independent of legal advice – and given its time constraints it means that counsel from lawyers on the efficacy and wording of any such offer should be sought promptly.

The publisher also challenged the trial judge’s findings on whether the plaintiff had been identified in the article when it carried a photograph of his son and stated his age as 43 years old.

The Court of Appeal affirmed the trial judge’s decision that Mr Zoef Sr had been identified in the article despite those countering factors. Justice Gleeson ruled:

The article in this case contained a prominent and sensational headline, which, when read together with the first paragraph (par 29), would be reasonably understood to refer to the appellant. The strength of the general impression thereby created surpasses and dominates that of the subsequent reference in par 30 to a “43 year old” which is not something the ordinary reasonable reader might be expected to have focused on, let alone re-read or reviewed. It lacked the prominence of the sensational headline and the focus on the local, relatable indicia of the identified person’s name, profession and locality in the foregoing paragraph.

In respect of the photograph, his Honour’s finding that it was “immaterial” is supported by three considerations. One is that the photograph was small, cropped, and, as his Honour found, “less than distinct”. Next, the appellant gave unchallenged evidence in cross-examination that his son was not known to his customers. No identification would therefore have been made on a visual basis by the appellant’s customers. Finally, the use of historical photographs in newspaper articles is not so uncommon as to render unreasonable a conclusion by the ordinary reasonable reader that the article (with an unfamiliar photo) referred yet to the appellant. (paras 159-160).

So there you have it. The Zoef case – both at trial and on appeal – holds valuable lessons for media law students and educators are encouraged to use it as a case study. I have done so successfully with both journalists and tertiary students.


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 2017

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Is an Open Justice Advocate the solution to overly restrictive suppression orders? #MLGriff


Jason Bosland [@JasonBosland] – Deputy Director of the Centre for Media and Communications Law at Melbourne Law School – has called for the introduction of a state-funded Open Justice Advocate as a measure to alleviate the continuing practice of judges issuing overly restrictive suppression orders.

Bosland’s explanatory article in Pursuit and his research article the Sydney Law Review come just as we are about to examine open justice and court restrictions in our Griffith University Media Law course, so they are essential reading for students.

He is the acknowledged leader in the field of suppression order scholarship in Australia and his work tracked firstly the need for the Open Courts Act 2013 in Victoria and, more recently, its failings to impact effectively on court practices.

Bosland writes in the Pursuit article:

This leads to a critical question: who is going to protect the fundamental principle of open justice if the courts themselves are not as vigilant as they should be and if the media are increasingly unable or unwilling to intervene? It is my view that the only solution is for the introduction of a state funded open justice advocate.

His longer Sydney Law Review is an expert combination of insightful policy analysis, meticulous scrutiny of the legislation, and illuminating statistics drawn from his funded research projects on the topic. I commend them to all media law geeks and students.

His concludes that article with this wise counsel:

This state of affairs is clearly unsatisfactory. The solution, however, is not to be found in further legislative reform of the courts’ powers. Rather, attention should be directed towards further professional and judicial education, and the development of a range of suitable model orders. Furthermore, a scheme facilitating the appearance of contradictors in suppression order applications — such as the Open Courts Act Duty Barrister Scheme introduced at the instigation of the Chief Justice — is likely to improve current practices. However, it will only be truly effective in solving the problems identified in the present study if it can be extended to all courts.

Insightful indeed.

[See also – my article in The Conversation on how the 2015 edition of our textbook inadvertently breached a Victorian suppression order and had to be reprinted.]

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 2017

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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 tom.morton@uts.edu.au

Kate Burns kate@ruleoflaw.org.au


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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Barrister and co-author Mark Polden chats with @journlaw on #defamation defences: #MLGriff


Defamation laws can be intimidating for journalists, bloggers and other professional communicators. The key, according to barrister Mark Polden, is in researching and writing to the basic defences.

Mark Polden was in-house counsel at Fairfax Media for many years before going to the Bar, and is my co-author of The Journalist’s Guide to Media Law (Allen & Unwin).

In this 11 minute interview with @journlaw, he outlines in simple terms the three ‘bread and butter’ defences used by writers and publishers – truth, fair report and honest opinion (fair comment).


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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On Skype with @journlaw – barrister and co-author Mark Polden on #defamation basics: #MLGriff


Exactly what is defamation and how does it apply to your average journalist or blogger?

That’s what I asked barrister Mark Polden in this short interview on defamation basics. Mark Polden was in-house counsel at Fairfax Media for many years before going to the Bar, and is my co-author of The Journalist’s Guide to Media Law (Allen & Unwin).

Here he offers a lay definition of defamation and gives some examples of how journalists, bloggers and other professional communicators might write to minimise the threat of legal action.


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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15 mins with @journlaw – Peter Gregory on the art of court reporting #MLGriff #medialaw


What is the secret to good court reporting? Highly experienced court reporter and academic Peter Gregory [@petergregory17] – author of Court Reporting in Australia (Cambridge University Press, 2005) – tells @journlaw the essential techniques needed by a journalist wanting to cover the court reporting round.

CourtReportinginAustraliacoverGregory explains how he recently returned to duty when he filled in to cover the sentencing of Adrian Bayley for the murder of Jill Meagher – in a marathon 12 hour shift!

He discusses the court reporter’s difficulties in writing fair and accurate reports of trials, particularly when they might be unfolding in different courtrooms at the same time.

He also gives tips on how a journalist might stand up in court to oppose a suppression order being imposed by a judge or magistrate.

Useful viewing for journalism and law students – and for anyone wanting an insight into the work of the court reporter.


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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Filed under blogging, contempt of court, courts, free expression, media ethics, Media freedom, media law, Press freedom, sub judice, suppression, Uncategorized