Cardinal George Pell’s trial on child abuse charges is probably the highest profile criminal case ever shrouded in secrecy by an Australian suppression order.
The ban on media reporting of his trial in any format accessible from Australia accentuated the free-speech arguments against such court orders that are commonplace in every Australian state and in Britain. The order also highlighted the difficulty in enforcing such an order in the digital world and in an historic case against Pope Francis’ finance minister that carries global ramifications.
The point of suppressing news of the August-September trial, which ended in a deadlocked jury, and his retrial in November and December was to keep 12 Melbourne jurors in Pell’s next trial in the dark.
Prosecutors and defense lawyers agreed that knowledge Pell had previously been accused of child sex offenses could color the jurors’ judgment when they heard another child abuse case against him in a second trial in April.
But prosecutor Fran Dalziel told the Victoria state County Court on Tuesday that charges alleging Pell indecently assaulted two boys aged 9 or 10 and 11 or 12 as a young priest in the late 1970s in a public pool in his hometown of Ballarat had been dropped.
His lawyer Robert Richter initially wanted an opportunity to ask an appeal court to issue its own suppression order in case Pell’s convictions were overturned and he faced a retrial. An appeal of his convictions was filed last week.
Dalziel objected, saying Pell “was not a special case.” Richter eventually withdrew his application to prevent the suppression order being lifted.
Breaching a suppression order could result in a prison sentence for the guilty reporter and a fine for a media company that has assets in Australia that put it within reach of the law. Journalists and media organizations beyond Australian shores are unaffected, even if the reporting is visible on the internet from Australia.
The U.S. Constitution’s First Amendment would prevent such censorship in the United States. But many lawyers argue that suppression orders are preferable to an alternative exercised in many countries, closed courts.
Concerns are mounting in Australia that the courts have got the balance wrong between ensuring fair trials and the public’s right to know.
That balance could also be shifting away from open courts because a fragmented media industry is losing the resources and the commercial incentive to fight for greater access to the courts.
The Australian journalists’ union — Media, Entertainment and Arts Alliance — argues that Victoria and South Australia were two states that stood out for their propensity to make suppression orders to prevent media reporting some or all aspects of courts cases. Comparisons are difficult to make since Victoria is the only state that keeps records of how many orders are made.
The Alliance is also concerned that the courts consider themselves the sole judges of what is in the public interest.
The Alliance cites former Victorian judge Betty King who boasted in a speech in 2009 that she was “probably responsible for the majority of suppression orders imposed in Victoria in the last three years.”
King added that for every worthy media court report, there were others that were “inaccurate, salacious, mischievous, morally indefensible and just plain prurient.”
But others outside the lopsided tug-of-war between judges and reporters recognize there is a problem with the principle of open justice in Victoria.
Both Australia and Britain are bound by the 1913 ruling of the British House of Lords, once the highest court of appeal for both countries, that justice must not only be done, it must be seen to be done.
The right to a fair and public trial are included in the European Convention on Human Rights and Fundamental Freedoms as well as the International Covenant on Civil and Political Rights
The Victorian parliament passed the Open Courts Act in 2013 that legislates “a presumption in favor of disclosure of information to which a court or tribunal must have regard in determining whether to make a suppression order.”
Courts are also required to limit the scope of suppression orders and their durations to what is essential to achieve the order’s purpose.
Jason Bosland, the deputy director of the Center for Media and Communications Law at Melbourne University, found that the new laws failed to reduce the frequency of suppression orders that Victorian judges made over the two years since the Open Courts Act became law.
Bosland also found that around 200 suppression orders were made a year from 2008 and 2013 for often unclear reasons and unlimited periods.
“It’s in the public interest that justice be done but it’s also in the public interest that justice be seen to be done. So there’s this tension between the workings of the courts and publicity,” Bosland told The AP.
“When an application is made for a suppression order, the judge may be inclined to make it out of an abundance of caution,” he added.
The Victorian government is planning to change the laws in favor of open courts following a review of suppression orders by retired judge Frank Vincent.
The government supports most of the review’s recommendations, including allowing a five-day window for media to make submissions against any suppression order before that order became permanent.
“We are taking action to ensure suppression orders are clear and only made when absolutely necessary,” Attorney General Martin Pakula said.
But the government is less enthusiastic about Vincent’s recommendation for a state-appointed advocate to argue for the public’s right to know in cases where suppression orders are sought.
Such a champion for open justice would fill a role that media lawyers are less likely to play as fewer media companies assign dedicated court reporters.
Australian suppression orders have proven wanting in a digital media environment, particularly in cases that attract international interest.
Victorian judge Elizabeth Hollingworth in 2014 tried to protect Australia’s national security and internationals relations by suppressing the names of Indonesian, Malaysian and Vietnamese officials and political leaders both past and present that were raised in a foreign bribery conspiracy trial involving two Australian central bank subsidiaries.
But the suppression order was published by WikiLeaks, including the names of the 17 Southeast Asian political figures that were barred from publication.
International news outlets subsequently republished the suppression order and disclosed its contents.
Despite mainstream Australian media obeying the terms of the order, Hollingworth decided the order no longer served a purpose and lifted it.
“In this case, it is the overseas publications that have the greatest potential to cause future harm to Australia’s interests. The existing overseas publication is widespread and cannot be undone,” she said.
Australia Federal Police investigated the course of the leak but were unable to find someone to charge.
Bosland said the internet was a game changer for suppression orders. While once broadcast news disappeared into the ether and newspaper editions quickly faded away after their publication dates, information remained widely accessible on the internet regardless of suppression orders.
“Given the global nature of the internet, in certain cases it’s becoming pretty apparent that if there’s sufficient public interest worldwide, then suppression orders can potentially be ineffective,” Bosland said.