Australian Press Council submission to the Attorney-General's Department on the proposal for a national register of suppression and non-publication orders.

September 24, 2009

The Council thanks the Attorney-General for his invitation to comment on the discussion paper that sets out the proposal for a national register of suppression orders.

As you would appreciate, the whole subject of suppression and non-publication orders is of vital interest to the Australian Press Council and its members. The Council has a strong commitment to the principles of open justice, which includes support for the principle of the public right to know and the consequential right of the media to publish information related to court proceedings and the administration of justice.

Breach of an order is a serious matter. It can have adverse impact on the rights of an accused person to a fair trial; adverse impact on the cost and efficiency of court processes if a proceeding is aborted or if contempt proceeding are pursued. A person, such as a journalist, who inadvertently releases information contrary to an order may be subject to criminal prosecution. This concern is exacerbated when journalists, particularly those writing outside the jurisdiction in which the order has been made is unaware of the existence of the order and works for an outlet that may publish or broadcast in the relevant jurisdiction. It is therefore in the interests of all to ensure that any national electronic register works effectively.

The Council congratulates the Attorney and the Standing Committee of Attorneys-General for the decision in November 2008 to progress the development of a legal and administrative framework for a national electronic register of suppression and non-publication orders. It is pleased to see that this commitment has been followed up with a discussion paper prepared by a SCAG working group, in consultation with the Federal Court, that proposes a national register.

The Australian Press Council welcomes a proposal for a single national register, and is pleased to see at point 3 of the discussion paper that the suppression orders project has two aspects being:

• development of a framework of, and detailed proposals for, the register and
   
• development of model laws about the making of suppression orders, to improve harmonisation across jurisdictions.

However, the Council has concerns about the details of the proposed scheme for a national register. These are set out below. The Council is also disappointed that the discussion paper does not address the second aspect of the suppression orders project, as the two aspects must be inextricably linked if there is to be an effective national approach to the use, issue, notification and registering of suppression and non-publication orders.

Comments on part 4 of the discussion paper

4.1 Who will host the register?

The Council has no objection to the proposal that the register be hosted by a single court, in this case the Federal Court, nor to the proposals that limit the responsibility of the Federal Court in taking on this role.

4.2 Existing arrangements

The discussion paper lists as an appendix a summary of existing arrangements and indicates that "the register would simply be a central database" and that "it is not intended to replace existing arrangements".

The potential value of a central register is that it will be a "one stop shop" for access to information about suppression orders upon which users can rely. There is little point in having a single register if the user cannot be confident in the timeliness and accuracy of the details provided and if there is a high level of inconsistency between the quality and level of detail provided.

An important part of this project will be to establish consistency of approach between jurisdictions and to set standards for the degree of detail, terminology, quality and timeliness of information provided so that a person searching the register can have confidence that they do not need to search all other databases.

A report produced by Australia's Right to Know titled Report of the Review of Suppression Orders and Media Access to Courts, 13 November 2008, provides a more detailed examination of the existing arrangements and their effectiveness. That report clearly identifies considerable deficiencies and material variation in practices between various jurisdictions. In some cases the deficiencies are so severe that the relevant court does not know how many orders it currently has.

Unless these deficiencies are addressed as part of the project for establishing a national register the reliability and usefulness of the register will be severely compromised and indeed the register itself may soon fall into disrepute. It is for this reason that the Council is disappointed that the discussion paper did not simultaneously address the second aspects of the suppression orders project about the making of suppression orders.

The occasion of developing a national register provides the opportunity to establish best practice across Australia in the making, reporting, notifying and recording of suppression orders.

The Council would favour consistency in arrangements and the adoption of "best practice" including the introduction that all courts be required to notify the media routinely of suppression orders and that this be done by a single identified responsible court officer, as currently applies in Victoria and NSW. This notification could take place at the same time that information about the order is posted to the central national register.

A requirement that all courts have a system for routine notification to the media of suppression orders, accompanied by a requirement that information orders be routinely posted to the national register would systematically reduce the risk of inadvertent publication in contravention of a suppression or non-publication order.

4.3 What would the register look like?

4.3.1 Format and access

The technical aspects of the register are a matter for agreement between various jurisdictions and hence the Council has no comment other than to point out that whatever format is selected be something that can be readily accessed by all potential users.

4.3.2 Who would be responsible for what?

The Council supports the allocation of responsibility as proposed. However there is a need to consider what mechanism (or sanctions) will apply to courts that do not supply information that is complete, accurate and timely.

4.3.3 Fields?

The matter of which fields should be included will depend on the option for access that is selected (see 4.3.4). The Council favours a model of register that would allow public access to basic information and restricted access to more detailed information so that journalists have all the information that they need from the one central register.

To this end, the Council would support the view that public have access only to name of relevant court, names of parties (to the extent that this would not breach the order), a note of the existence of an order and contact details of the authorised person in the relevant court.

However, in order to avoid the inadvertent publication or broadcast of material covered by an order, the media should have access to all the "extensive range" of fields as set out in the paper as well as additional fields, being:

• reasons for the order,
   
• duration of the order,
   
• terms of the order (to the extent to which the order is able to permit).

Further, the Council believes that Courts should initially issue interim orders (except in cases of urgency) so that the media or others have an opportunity to oppose the issue of an order and therefore supports the inclusion of a field that shows whether the order is an interim or final order.

4.4 Possible models - publicly accessible register

4.5 Possible models - restricted access register

The discussion paper proposes two models:

• a publicly accessible register that would have no restriction on who can see the register and
   
• a restricted access register that can only be accessed by a closed group, e.g. media representatives.

As the purpose of a suppression order or non-publication order is to prevent the publication or broadcasting of details that, in the opinion of the court, are likely to be prejudicial to the proper administration of justice or that would cause severe hardship to a victim or party, priority should be given to establishing a register that provides those who are most likely to have need for this information, i.e. journalists, with sufficient information to be aware that there is an order, the reasons for the order, the terms of the order and its duration.

The benefit of a national register is that journalists would have a single point from which they could obtain all the information that is required to understand restrictions that apply to their ability to report. It also recognises that media distribution crosses borders, so that journalists working outside a jurisdiction may still have material published within the jurisdiction in which the order is made.

The value to journalists of a national register would be reduced if the journalist then had to consult other sources of information to get the details. If the register were to have full public access, then the extent of available details is likely to be constrained.

The Council therefore has concerns about the attitude that is expressed in the discussion paper and refutes the comment that "the complexity and resultant costs attached to a restricted access model, and the likely sensitivities of privileging one group over others in distributing information about suppression order, makes a proposal for a restricted access register unattractive and impractical".

A well-functioning restricted access register from which authorised persons can obtain sufficient information that is also complemented by processes by each court to provide routine notification to media personnel (as for example exists in Victoria) would considerably reduce risk of inadvertent publication of information.

In relation to costs of operating a restricted access register, beyond additional short-term costs associated with set up and changes to processes, there are actual and potential offsets including:

• the benefits and potential cost and time savings to authorised users of having a single access point for complete information on all orders,
   
• the reduced on-going staffing resources that each court will need to field extensive enquiries about orders when sufficient information can be provided on a reliable central register to satisfy the information needs of the majority of potential users,
   
• the efficiency saving to each court itself of having streamlined processes in each court to ensure that the information for inclusion on the register is complete and timely and is available for its own use,
   
• the potential cost and time savings of not having to conduct contempt prosecutions for inadvertent breach of orders,
   
• the savings in court time and resources from reducing the potential risk that inadvertent publication may interfere with pending or current trials and the cost of aborting current trials.

Once a restricted access system is functioning effectively then, consistent with its commitment to open justice, the Council supports the need for a publicly accessible register. This would simply require an information technology solution that provides that certain fields only are available to the general public and that access to comprehensive fields is only available to authorised users, using some form of log in or other security measure.

4.6 Will the register have any legal effect?

The value of the register and complementary processes for direct notification to media outlets should minimise the risk of inadvertent publication. Once the register and processes are established then the legal status should be reviewed so to enable authorised users to rely on the register.

4.7 Legal framework to support the register

The paper proposes that arrangements be established by way of Memoranda of Understanding among the Commonwealth, State and Territories. While this is a useful starting point to establish the administrative arrangements, it neither provides any legal obligation nor sanctions on courts that will be responsible for posting information to the register.

Once agreement has been reached and the register is operating effectively then consideration should be given to States and Territories agreeing to pass simultaneous legislation to give legislative effect to arrangements so as to create legal obligations on the courts to maintain the register.

This could be considered in the context of the second aspect of the suppression order project that will address the development of model laws about the making of suppression orders, to improve harmonisation across jurisdictions.

The SCAG working group should consider the South Australian legislation, notably s69A of the Evidence Act 1929. Whilst the Right to Know report on suppression orders identified that there are serious deficiencies in the implementation and operation of this section of the Act that need to be addressed, the section might serve as a useful starting point for a discussion of a better model to be implemented across the jurisdictions.

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See also
Index of website material on courts and contempt

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