A well-known reporter suddenly vanishes from the spotlight, and nobody is allowed to say why. Welcome to the Kafkaesque world of suppression orders in Victoria, where the rules can be so prohibitive that a scenario such as this is entirely possible and could happen in a case currently before the courts. Victoria has an “Open Courts Act”, which was introduced in 2013 to improve transparency of the legal process. Despite it, research suggests that restrictions on what the public can and can't know about ongoing cases are getting worse. Former judge Frank Vincent conducted a review into the Open Courts Act. Credit:Joe Armao Suppression orders, which are used to prevent reporting on all or part of a case, are often broad, vague, and sometimes even lack the legal basis to be imposed in the first place.

What’s more, the rate of orders has not decreased since the introduction of the act, which begs the question: is Victoria the suppression state? And if so, how can this alarming trend be reversed? Loading The latest analysis of data, contained in a review by former Court of Appeal judge Frank Vincent, found that 1594 orders to suppress information were made between January 1, 2014 and December 31, 2016. Of those, 22 per cent were blanket bans that either failed to say what was being suppressed or simply stated that the “whole or any part of the proceeding” could not be reported. A further 12 per cent did not give any grounds at all. And according to at least one analysis – highlighted in a joint media submission to the Vincent review – Victoria leads the way when it comes to the number of suppression orders, with 51.8 per cent of the national total.

“There does not appear to be a significant overall decrease in the number of suppression orders made since the act’s passage,” Judge Vincent wrote in a report handed down to the Andrews government last year. “Viewed as a whole, these levels of both formal and substantive non-compliance are both surprising and unacceptable ... More attention needs to be given to the education of judges with respect to their obligations not only to comply with the provisions of the Open Courts Act but with its objectives.” Suppression orders are generally issued to ensure that people charged with criminal offences can receive a fair trial before an impartial jury. They are also imposed to protect national security, or the safety of people involved in a trial, such as witnesses, victims and informants. Presumably, they shouldn’t result in people being sent to jail in secret for reasons that can’t be revealed. But critics, of which the media is the most vocal, say the pendulum has swung too far.

In 2014 a Supreme Court order granted to the Australian government prevented reporters from naming Indonesia’s then-president in connection to a corruption case involving printing note firm, Securency. The order was made to save the Indonesian leader from embarrassment but Australia’s own embarrassment ensued when Wikileaks published the details, placing the government under fire for its own secrecy, and prompting people to ask: what did it have to hide? There’s even been a recent trial in which journalists were directed not to report the accused’s name, former occupation, or where she had previously worked, even though the jury has been presented with this information. Judges say it’s difficult to establish whether Victoria has a greater culture of suppression than other states, because numerous jurisdictions do not maintain comprehensive records. A Supreme Court spokeswoman also pointed out that the proportion of orders in was minuscule compared with the overall caseload of the courts. “Suppression orders are considered on a case-by-case basis and are always given very careful consideration by judges,” the spokeswoman said.

But if suppression orders are more common in Victoria, judges told the Vincent review, there are likely to be two underpinning reasons: firstly because of concerns about the prejudicial impact of “inaccurate or one sided” media reporting; secondly, because some judges had lost confidence in alternatives to suppression, such as contempt laws and statutory bans against publication. The media, on the other hand, argues that suppression orders are too readily imposed, and sometimes without adequate warning. Eurydice Dixon, 22, was killed as she was walking home from a comedy gig. Last week, for instance, lawyers for 19-year-old Jaymes Todd, who has been charged with the rape and murder of Melbourne comedian Eurydice Dixon, successfully applied to have his image suppressed from publication without any notice. Figures also suggest that of 137 suppression orders made in Victoria between January 1, 2017 and April 28, 2017, media outlets had received notice on just 24 occasions.

Jason Bosland, the deputy director of the Centre for Media and Communications Law at Melbourne University, reckons part of the solution lies in the creation of a publicly-funded “open justice advocate”. Such a person would appear in court to act as a “contradictor”, arguing against suppression orders that were not in the public interest. This is a role that media outlets, faced with declining revenues and resources, are not able to play as regularly as they did in the past, and even less so since the volume of suppression orders increased. His research shows that large number of orders made by the County Court and Magistrates Court were beyond their powers (17 per cent of cases in the County Court alone) and many did not specify the reasons for suppression (16 per cent in the Supreme Court). And more than 40 per cent are blanket bans, according to his latest analysis, making it “almost inconceivable that they meet the necessary tests” for open justice. “The problem isn’t just the number of suppression orders,” Bosland says. “It’s also the way they are drafted.” In the halls of power at Spring Street, the Andrews government is considering an independent advocate to test suppression order applications, but its preferred model is to use the existing Public Interest Monitor, which was set up to assess police and IBAC applications for the use of telephone intercepts and other coercive powers.