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Last Updated: 22 May 2019
WikiLeaks and the Not-So-Super Injunction: the Suppression Order in DPP (Cth) v Brady
Jason Bosland[∗]
[In 2014, WikiLeaks published a ‘leaked’ court suppression order made by Hollingworth J of the Supreme Court of Victoria. The order prohibited the naming of 17 high profile foreign public officials in relation to allegations of corruption. The widespread publication by WikiLeaks had the effect of rendering the order futile and, as a result, was subsequently revoked by Hollingworth J in DPP (Cth) v Brady [2015] VSC 246. This is the first decision in Australia where a court has revoked an order where it has become futile following a breach online. This article considers three issues that arise from the order at issue and Hollingworth J’s decision to revoke it. First, the article considers the scope of the order and responds to false allegations by WikiLeaks and the mainstream media that the order was extremely broad – a ‘super-injunction’ or ‘blanket-ban’. Second, the article considers the purpose of the order. Controversially, the purpose of the order was to protect Australia’s international relations and was made under the recently introduced Open Courts Act 2013 (Vic) on the legal grounds of preventing prejudice to national security and the administration of justice. The article examines whether an order can be made for such an unusual purpose and on such grounds. Third, the article examines Hollingworth J’s decision to revoke the order following its breach and considers whether her Honour could have maintained the order to prevent the possible encouragement of future breaches and to reinforce the authority of the judiciary in granting effective suppression orders.]
I Introduction
On 25 July 2014, WikiLeaks controversially published on its website a ‘leaked’ court suppression order made by Hollingworth J of the Supreme Court of Victoria.[1] The order was issued by her Honour in the context of proceedings brought by the Commonwealth Director of Public Prosecutions (‘Cth DPP’) in relation to allegations that two subsidiaries of the Reserve Bank of Australia, Note Printing Australia Limited and Securency International Pty Ltd, and a number of their employees and agents, had conspired to bribe foreign banking officials regarding contracts for the production of polymer banknotes. The proceedings, which are ongoing and are likely to involve a series of trials in the near future, have been collectively referred to as ‘Australia’s biggest bribery scandal.’[2] The suppression order made by Hollingworth J effected a departure from the common law principle of open justice by prohibiting the publication of particular evidence that may be disclosed in the future hearings.[3] In particular, the order prevented the naming of any of seventeen high-ranking foreign public officials, both past and present, in connection with allegations that they were the recipients or intended recipients of bribes or improper payments.[4] The foreign officials named in the order included current and former prime ministers and/or presidents of Malaysia, Indonesia and Vietnam, amongst other high-ranking officials from those countries. While such individuals are not directly involved in the case, either as defendants or as witnesses, and the allegations that were set out in the suppression order do not form part of the prosecution’s case,[5] the order was made as a precautionary measure designed to ensure that the allegations would not be published if they happened to be raised in evidence in any of the forthcoming trials.
The stated purpose of the order, which was sought by the Department of Foreign Affairs and Trade (DFAT), was to ‘prevent damage to Australia’s international relations’ which may be caused by the publication of allegations harmful to the reputations of the foreign public officials and was made under the Open Courts Act 2013 (Vic) (‘OC Act’) on the legal grounds that it was necessary to prevent prejudice to the proper administration of justice and to prevent prejudice to the interests of the Commonwealth in relation to national security. The subsequent publication of the order by WikiLeaks, of course, had the effect of significantly undermining – if not, completely destroying – the efficacy of the order in achieving its aims. By publishing the order – which included the names of the relevant foreign public officials and specified in broad terms the allegations against them – WikiLeaks made the suppressed information freely available to the world at large and from a jurisdiction clearly beyond the Supreme Court’s reach.[6] In the first day of its publication by WikiLeaks, the order was reportedly retweeted 1656 times on Twitter.[7] Furthermore, the extensive coverage of the order and its leak by local and international media certainly contributed to the order’s futility: many international media outlets, who were not subject to any legal constraints, directly published the contents of the order,[8] while local media indirectly encouraged readers and audiences to view the order on the WikiLeaks website.[9] Following the breach of the order and its widespread publication, four media organisations applied to Hollingworth J to have the order revoked. They argued that the order could no longer be considered effective given the widespread exposure that the contents of the order had received following its publication via the WikiLeaks website. On 16 June 2015, Hollingworth J handed down her decision to revoke the order.[10] This is a significant decision because it is the first time an Australian court has agreed to revoke an order as a result of it being breached online.
For WikiLeaks and the Australian media, the publication of the order on the WikiLeaks website was patently justified: the order was depicted as an affront to freedom of speech[11] and the Australian public’s democratic ‘right to know’.[12] Given the nature of the charges and the fact that they have been brought against those with close connections to governmental and quasi-governmental Australian institutions, there is no doubt that such concerns over the order were entirely reasonable. But, at the same time, it is also true that most public discussions of the order were couched in grossly misleading and sensational terms. For example, upon publishing the order, WikiLeaks founder Julian Assange described it as ‘unprecedented’ and ‘the worst in living memory’, and claimed that Foreign Affairs Minister Julie Bishop, presumably due to her ministerial responsibility for DFAT, was ‘threatening every Australian with imprisonment’.[13] The scope of the order – as explained later in this article – was also subject to misleading and unwarranted criticism. Thus, WikiLeaks, along with the mainstream media, inaccurately described the order using the highly provocative terms ‘super-injunction’[14] and ‘blanket suppression’,[15] suggesting that Hollingworth J had imposed a complete ban on any discussion of the case whatsoever.[16] Others erroneously took the fact that the order itself could not be published without committing a breach as evidence of the order’s extreme secrecy.[17] But, while the mainstream media focused its efforts on peddling over-blown and unfounded claims regarding the order’s scope, the most legally contentious aspect of the order – its purpose – received far less critical attention.[18] An order made for the purpose of preventing damage to Australia’s international relations amounts to an extremely unusual and highly questionable justification for departing from the usual open justice rule that nothing should be done to prevent fair and accurate reports of proceedings conducted in open court.[19]
Leaving aside broader questions raised by this case regarding the effectiveness of suppression orders in the digital era,[20] the present article examines three important but distinct issues that emerge from what has just been described. They are: the scope and drafting of Hollingworth J’s order; the existence of the power to make orders for the unusual purpose of protecting Australia’s international relations; and, finally, Hollingworth J’s decision to revoke the order following its breach. The article proceeds as follows. Part II examines the drafting of the order and demonstrates why the order could not be described as a super-injunction or a blanket-ban. It also argues that the recently introduced OC Act required that the order be drafted in the way that it was and that this, in turn, explains why the order itself could not have been published. Part III examines the court’s powers to make suppression orders for the purpose of protecting Australia’s international relations. It argues that while an order for this purpose can, in certain circumstances, be made under the national security ground in the OC Act, such an order cannot be made on the alternative ground of preventing prejudice to the proper administration of justice. Finally, Part IV examines Hollingworth J’s decision to revoke the order following its breach and subsequent widespread publication by WikiLeaks. Despite legitimate concerns that revoking the order might encourage similar conduct in the future, an analysis of the authorities demonstrates that revoking the order once it became futile was the only decision available to her Honour as a matter of law.
II The Scope of the Order and the Operation of the OC Act
A The Scope of the Order
WikiLeaks and the mainstream media were extremely critical of the order’s scope. As mentioned above, many reports blindly adopted the ‘super-injunction’ and ‘blanket ban’ epithets;[21] others variously referred to the order as ‘wide in nature’,[22] ‘sweeping’[23] and ‘absolute’.[24] Indeed, one media commentator saw the order as so all-embracing that he felt compelled to coin a new term – ‘super-duper injunction’.[25] However, a careful reading of the text of the order reveals that it could not be said to come anywhere close to satisfying the description of either a ‘super-injunction’ or a ‘blanket ban’ – at least not as those terms are properly understood.
Before we turn to consider why Hollingworth J’s order was not a super-injunction or a blanket ban, it is necessary to first define what is meant by each of these terms. A ‘super-injunction’ is an extreme form of derogation from open justice prohibiting the publication of particular confidential information as well as the fact that an order has been sought and obtained to prevent such publication.[26] The term was first used by the UK media[27] in response to two controversial English cases where such orders were granted: the 2009 case of Trafigura[28] and the 2010 case of Terry v Persons Unknown.[29] In Trafigura, two related companies obtained an interim injunction against The Guardian newspaper to prevent it from publishing information contained in a leaked confidential company report (the ‘Minton report’) regarding the dumping of toxic waste along the Ivory Coast. The injunction prevented the disclosure of the companies’ identities and any details about the case, including the fact that an order had been sought and obtained.[30] In Terry, a short-term interim order was granted to prevent the disclosure of information regarding the claimant’s extra-marital affair along with the fact that the order had been granted. In response to a deluge of media criticism surrounding the orders made in these cases, Lord Neuberger MR established a Committee on Super-Injunctions to conduct an inquiry into the use of both super-injunctions and anonymity orders (orders made to protect a claimant’s identity).[31] The Committee found that, as a result of guidance issued by the Court of Appeal shortly after Trafigura and Terry in the case of Ntuli v Donald,[32] it was rare for an applicant to apply for a super-injunction and ‘even rarer for them to be granted on anything other than an anti-tipping-off, short-term basis.’[33] It is important to point out that, like the media reporting of Hollingworth J’s order, much of the media-led controversy over super-injunctions in the UK at the time was both exaggerated and misinformed, with the media often incorrectly referring to anonymity orders as ‘super-injunctions’.[34]
A ‘blanket ban’ suppression order, on the other hand, is another extreme form of derogation from open justice. Rather than prohibiting the publication of specific individual pieces or classes of information, such an order prohibits the reporting of any aspect of a particular proceeding. This would include, for example, the judge’s name, the identities of the parties, the particulars of the case and, presumably, like a super-injunction, the fact that the order was made. In other words, it is a complete blackout of the proceedings. In Victoria, such blanket-ban orders are typically drafted as follows:[35]
The courts orders that there is to be no publication of any report of the whole of the proceeding or any information derived from the proceeding.
Given the extreme nature of such derogation from open justice, it is expected that blanket-ban suppression orders will only be made in the most rare of circumstances.[36]
Based on these descriptions, Hollingworth J’s order could not be characterised as either a ‘super-injunction’ or a ‘blanket-ban’. In fact, despite claims regarding its breadth, the order was a very narrowly drafted order: that is, it was limited to prohibiting the publication of very specific information about specific individuals.[37] This is obvious from the terms of the order, set out as follows:
Subject to further order, there be no disclosure, by publication or otherwise, of any information...that reveals, implies, suggests or alleges that any person to whom this order applies:
(a) received or attempted to receive a bribe or improper payment;
(b) acquiesced in or was lawfully blind as to any person receiving or attempting to receive a bribe or improper payment; or
(c) was the intended or proposed recipient of a bribe or improper payment.
The order then proceeded to list the names and/or identifying positions of the relevant individuals. Further limiting the scope of the order, it also stated that the prohibition only applied to the publication of the relevant allegations where the information published was ‘derived from or prepared for the purposes of the proceedings (including the terms of these orders, and the affidavit of [X])’. This means that it did not prohibit the publication of the information where it was derived from sources other than the proceedings in question.
In apparent support of the ‘super-injunction’ interpretation of the order, one journalist claimed that the order was ‘itself suppressed’;[38] another said that it contained ‘a clause insisting that the terms of the order itself should remain secret’.[39] The first point to note is that neither claim meets the definition of a super-injunction. A prohibition on the publication of an order is not the same as a prohibition on publishing the fact than an order has been sought or obtained. Indeed, the very fact that the Australian media were able to report on the making of the order (and its leak and publication by WikiLeaks) indicates that the order was not a super-injunction, let alone a blanket-ban. The second point is that the claim about the order being suppressed is itself incorrect. The terms of the order were not suppressed and it contained no specific clause that prevented its publication. It is, however, correct that the order could not have been published without redaction. But this was not because the order contained a specific clause prohibiting its publication; nor was it because the order was ‘wide-ranging’[40] in scope. Rather, it was because – contrary to popular descriptions – the order was limited to very specific information and that information was set out in the order itself. It therefore follows that to have published the order in its entirely would have breached the order by disclosing the very information that was suppressed. The fact that the order specified that the information could not be published where it was derived from the order did not in any way extend the scope of the order: such information – being the suppressed information – could not have been published in any event.[41] It is also important to stress the clear distinction between saying that an order itself is suppressed (meaning that it cannot be published at all, even in redacted form) and an order – like the order made by Hollingworth J – which simply contains information that is suppressed (meaning that only certain aspects of the order cannot be published).
B The Drafting of the Order and the Operation of the OC Act
This, then, leads to the question of whether Hollingworth J was justified in drafting the order in such clear and specific, albeit ‘unpublishable’, terms. As explained in this section, not only does the order represent best practice in terms of drafting, it appears that her Honour was legally required under the recently introduced OC Act to draft the order as she did. So as to assist in understanding the effect of the OC Act on the drafting of suppression orders, including the order made by Hollingworth J, it is first necessary to briefly explain the basic legal principles that govern the making of suppression orders, including the introduction of the OC Act.[42]
While the principle of open justice requires that courts be ‘open’[43] and guarantees the right of the public (including the media) to report on proceedings,[44] the principle is not absolute. Under the common law, superior courts have inherent powers and inferior courts have implied powers[45] to order departures from open justice, including the making of suppression orders,[46] but only where such orders are necessary to secure the more fundamental object of the proper administration of justice[47] or to protect ‘more urgent considerations’ of national security.[48] There are a number of ‘few and strictly confined’[49] categories of cases under the common law where such an order might be considered necessary to protect the administration of justice, although courts have been willing to expand upon them in circumstances of ‘very close analogy’. [50] These include cases involving confidential information or trade secrets,[51] blackmail[52] and police informers.[53] Although unsettled and subject to contradictory authority, the inherent jurisdiction of the Supreme Court has also been held, at least in Victoria and some other jurisdictions, to extend to making suppression orders where publicity of a proceeding would pose a real and substantial risk to a forthcoming jury trial.[54] This might be thought to occur, for example, where the publication of a sentencing hearing[55] or a guilty plea or verdict[56] would impact on the fairness of a pending trial involving the same accused or a co-accused. It is important to emphasise for the present discussion, however, that the necessity test is not just concerned with the reasons for suppression; it also requires that a suppression order ‘be clear in its terms and do no more than is necessary’ to achieve its purpose.[57] This aspect of the necessity test applies to the scope of the information suppressed as well as to the duration of an order.
In most Australian jurisdictions,[58] the common law power to grant suppression orders is supplemented by broader statutory powers,[59] although the common law understanding of necessity is key to the interpretation of such statutes.[60] Previously in Victoria, such statutory powers have been contained in the courts’ respective establishing Acts.[61] However, in 2013 the statutory powers of all Victorian courts were consolidated into the OC Act. Although initially promoted by a desire to achieve harmonisation between the states and territories,[62] the OC Act was introduced to ‘strengthen’ open justice in Victoria[63] and to bring to an end some of the problems that were said to have plagued the practice of suppression orders in that state. In addition to the ambiguous and overly broad drafting of orders,[64] such problems included the sheer number of orders being made[65] and the fact that the vast majority of orders were expressed to continue for an unlimited duration.[66] As to the substantive law regarding the making of suppression orders, the provisions of the OC Act simply reflect the well-established requirements of the common law. Section 4, for example, provides that there is a ‘presumption in favour of disclosure of information’ to which courts must have regard in making suppression orders. This, of course, was already the position under the common law, where open justice is the presumptive state and any order for suppression is subject to the strict test of necessity. Similarly, in terms of the scope and duration of orders, the traditional approach of the common law necessity test continues to apply under the OC Act[67] – the order must cover no more information than is necessary,[68] should be clear in its terms[69] and should not continue for longer than is reasonably necessary.[70] However, in order to reinforce these established substantive requirements, the OC Act also imposes additional legal obligations in relation to the drafting of orders.
Of most relevance to the present discussion of Hollingworth J’s order is section 13.[71] This section requires that an order specify the information to which it applies with ‘sufficient particularity’[72] to ensure that it is limited to achieving its purpose. A similar requirement also appears in the NSW[73] and federal equivalents.[74] However, unlike the NSW and federal acts, the OC Act also requires that the suppressed information be specified with sufficient particularity such that it is ‘readily apparent from the terms of the order’ what information is covered by the order.[75] This is to ensure that those who are subject to the order (particularly the media) are able to ascertain what can and what cannot be published with an appropriate degree of certainty. Hollingworth J had these provisions in mind when she specified in the order itself the names of the foreign public officials and the allegations against them.[76] And there is certainly no doubt that this method of drafting satisfied the ‘sufficient particularity’ requirement; indeed, it is hard to imagine how her Honour could have drafted the order with any greater degree of particularity. Indeed, far from making an order extreme (as suggested by some),[77] specifying the suppressed information in an order itself is a method of drafting that has been, and continues to be, regularly used by the courts. And – perhaps ironically given the criticism of Hollingworth J’s order – calls for clearer and more specific orders using such a drafting technique were central to the media’s decade-long campaign for the reform of suppression order law and practice in Victoria.[78] However, in light of media criticism that the order could not be published to the public in its drafted form, it is necessary to consider what the ‘sufficient particularity’ standard under section 13 requires and, in particular, whether Hollingworth J could have meet that legal standard without setting out the suppressed information in the order itself.
Perhaps the most obvious way to draft an order without including the suppressed information is to indicate the information by a suitable reference. For example, in an order suppressing the identity of a person, the person may be referred to by their status in the proceeding (ie ‘the defendant/witness/victim’) rather than by their name.[79] In a case where particular evidence is suppressed, it may be possible to refer to the document containing the evidence (ie ‘the affidavit of X’) or the person who gave the evidence (ie ‘the evidence of X’) rather than setting out the contents of the document or the details of the evidence. Importantly, an order specifying the relevant information by such a reference can be published without disclosing the suppressed information itself and therefore avoids the criticism made of Hollingworth J’s order. The obvious problem with this approach, however, is that while the scope of an order may be clear on its face, the identification of the precise information is not. The information can only be ascertained by looking beyond the order. It is not, in other words, self-contained. The question is whether, in adopting such a drafting technique, it can be said that it is ‘readily apparent from the terms of the order what information is subject to the order’. Thus, will an order meet the ‘sufficient particularity’ requirement in section 13 if recipients of the order (usually members of the media and their lawyers) are required to consult sources of material extraneous to the order to ascertain precisely what information is suppressed?
In answer to this, it is important to point out that it will not always be practicable for a judge to set out all of the suppressed information in the order itself. For example, it will often be difficult, depending on content and length, to reproduce an entire document or part of a document in an order or to include it as a schedule to an order. Furthermore, one can certainly envisage circumstances where a court may form the view that it is undesirable that particularly sensitive or dangerous information should be contained in the order itself – for example, the names of police informers where serious risks to their personal safety would arise if their identities were to be published or leaked. As a consequence, it cannot be a reasonable interpretation of section 13 – despite its apparent mandatory language – that the relevant information must always be set out in full; in certain circumstances, it must be possible to meet the drafting requirements of section 13 by incorporating the information by some form of reference. A reasonable interpretation of section 13, therefore, would be to require as much information as is practically and reasonably possible in the circumstances to be specified in the order and that this, in some circumstances, may be achieved by a reference.
Having said that, one of the dangers of incorporating the suppressed information by reference to a document or the evidence of a particular person is the possibility that more information will be suppressed than is strictly necessary.[80] In the present case, Hollingworth J did not suppress the relevant information by reference to the evidence of a particular person or by reference to a particular affidavit. This may have been due to a concern that an order in such terms would have led to the suppression of more evidence than was necessary in the circumstances. As such, setting out the names and the allegations in the order itself was perhaps the only way that her Honour could have drafted the order in terms that were sufficiently narrow. If so, one possible alternative open to her Honour may have been to include the information in a confidential schedule to the order. This would have allowed the order itself, without the confidential schedule, to be published. However, given that any such schedule would need to have been provided to the parties and sent to the media (at least on request) to inform them of the precise information covered by the order,[81] it is doubtful that such a measure would have prevented disclosure in the present scenario – indeed, it is almost without doubt that WikiLeaks would have published alongside the order itself any such confidential schedule that was leaked to it.
III The Purpose and Legal Grounds for Making the Order
While the previous section has addressed criticisms regarding the drafting of the order and its scope, this section examines the purpose of the order and its legal basis. As explained earlier, the stated purpose of Hollingworth J’s order was ‘to prevent damage to Australia’s international relations’ that may be caused by damage to the reputations of the individuals that were specified in the order if the allegations against them were to be reported. In turn, Hollingworth J justified the order on the dual legal grounds that the avoidance of such consequences was necessary to ‘prevent prejudice to the administration of justice’ and to ‘prevent prejudice to the interests of the Commonwealth in relation to matters of national security’. Powers to make suppression orders on such grounds exist under ss 18(1)(a) and (b) of the OC Act, respectively. However, in the few instances where the purpose of the order was raised in media discussions, it was portrayed as being improper or legally unsound. For example, one high profile media lawyer described the order as an ‘abuse of legal process’;[82] others argued that neither harm to reputation[83] nor harm to international relations could legally justify the making of suppression orders.[84] While it is well established that potential harm to reputation will not, ‘standing alone’,[85] be sufficient justification,[86] it is clear in the present case that Hollingworth J’s order, taken on its face, was not concerned with protecting reputation as such.[87] Nor did it appear to be concerned with the participation in the proceedings of those whose reputations may be harmed. Rather, the order was clearly directed at avoiding consequential harm to Australia’s international relations that may flow from harm to the reputations of the foreign public officials.[88] There is certainly no doubt that such a purpose is extremely unconventional and, for this reason, deserves critical examination. Unfortunately, due to the absence of public reasons for the order and the lack of available facts,[89] it is difficult to comment precisely on the legal merits of the order. However, guided by comments made by Hollingworth J in her reasons for revoking the order (discussed further in Part IV), it is possible to make some observations regarding the potential legal arguments that could be advanced to justify the making of a suppression order for the purpose of preventing harm to Australia’s international relations. This involves applying general principles to examine whether avoiding such harm can be said to be necessary by reference to either of the two legal grounds under the OC Act pursuant to which Hollingworth J made the order.
A Prejudice to Australia’s national security
It is convenient to begin by considering the more specific national security ground upon which Hollingworth J made the order. Two possible lines of reasoning can be used to argue that an order for the purpose of preventing harm to international relations can be made under the national security ground in the OC Act:[90] the first relies on the argument that international relations directly falls within the definition of national security, while the second is that harm to international relations will indirectly invoke the national security ground where such harm might cause prejudice to national security. Despite not being apparent on the face of the order itself, it is obvious from Hollingworth J’s reasons for revoking the order that it was the latter line of reasoning that was relied upon in making the order. Thus, her Honour said:
Finally, DFAT did not seek the...order in order to prevent embarrassment per se; rather, it was to prevent damage to Australia’s international relations, which would in turn prejudice the administration of justice and national security.[91]
It is nevertheless important to consider both lines of reasoning in order to interrogate the scope of the national security ground in the OC Act and to understand why it cannot be used to directly justify orders where threats to international relations are at stake. This is useful because to date the national security ground for the making of suppression orders – whether under statute or under the common law – has been subject to scant judicial consideration.
In relation to the first possible argument – that international relations falls within the concept of ‘national security’ – it is important to note that the OC Act contains no definition of ‘national security’. This makes it necessary to turn to other sources to give content to the term. As for judicial interpretations, it is fair to say that in the absence of a statutory definition the courts have appeared reluctant to engage to any significant degree with what national security means,[92] whether in suppression order cases[93] or in other contexts where questions of national security have arisen (for example, claims of public interest immunity).[94] The judicial ambivalence about what national security means in law is perhaps due to a belief that a definition is so politically and temporally contingent that it is incapable of precise formulation,[95] or it might be due to a perception that the meaning is so obvious that no explanation is required. Lord Hoffmann appeared to endorse the latter view in Secretary of State for the Home Department v Rehman,[96] a case involving a decision to refuse a foreign national permission to remain in the UK on national security grounds.[97] His Lordship said that ‘what is meant by “national security” is a question of construction and therefore a question of law’ but continued: ‘there is no difficulty about what “national security” means. It is the security of the United Kingdom and its people.’[98]
The meaning of ‘security’ as it relates to a nation and its people, however, is not nearly as obvious as Lord Hoffmann would appear to suggest. It is evident from the vast array of governmental, non-governmental and scholarly literature where attempts have been made to define or interrogate national security that it is a highly contested (and contestable) concept and, over time, has been given a wide variety of meanings.[99] Thus, as remarked by Valverde:
‘[t]he abstract noun ‘security’ is an umbrella term that both enables and conceals a very diverse array of governing practices, budgetary practices, political and legal practices, and social and cultural values and habits’.[100]
Despite the range of possibilities, it has been said that the core meaning of national security relates to ‘the defence of the sovereign state against external threat’[101] or ‘freedom from foreign dictation’.[102] Of course, such a conception encompasses international relations of a particularly narrow type – the relationship between hostile or potentially hostile states. But national security has come to signify a much broader array of concerns than simply the state-centred notion of defence against external interference. It can now be seen to include matters that are focused much more upon the protection of the individual rather than the protection of the state – for example, economic, food, health and environmental security are all, to varying degrees, thought of as key components of what it means to keep the nation and its people secure.[103] This broader understanding means that internal threats might fall within the purview of national security, as might threats to external relations not confined simply to peacekeeping.[104] For example, concern for economic security might warrant taking steps to preserve a nation’s ‘economic relations with the rest of the world.’[105] An understanding of national security that extends beyond the protection of state sovereignty to include international relations of the type just described has some judicial support in Australia.[106] But, even so, what is meant by ‘security’ in relation to such matters, and how such security relates to international relations, is anything but obvious.
In the absence of a clear common law definition to guide the interpretation of the scope of national security under the OC Act, it is useful to turn to consider the various statutory contexts where definitions are given for the term. Notably, such definitions are varied in their specificity and breadth, reflecting the fact that the term can be ascribed a range of meanings. Relevant to the present discussion of Hollingworth J’s order, some definitions include an express reference to international relations as falling within the concept of national security. For example, under the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (‘NSI Act’), ‘national security’ is defined to mean ‘Australia’s defence, security, international relations or law enforcement’.[107] ‘International relations’ is, in turn, given a ‘very broad’[108] meaning to include ‘political, military and economic relations with foreign governments and international organisations.’[109] Applying such a definition to the OC Act would allow suppression orders to be made directly for the purpose of protecting prejudice to Australia’s international relations without showing specific harm to the security of the Commonwealth against any external threat. Such an interpretation would therefore appear to provide ample legal grounds for the making of Hollingworth J’s order.
However, in contrast to the NSI Act, there are other statutory contexts where national security and international relations are treated as ‘distinctly unique concepts’.[110] Under freedom of information legislation, for example, national security and international relations are often enumerated as separate grounds upon which freedom of information requests can be denied.[111] Furthermore, each ground has been defined and interpreted quite differently. Thus, the ‘security of the Commonwealth’ under the Freedom of Information Act 1982 (Cth) (‘FOI Act’) is defined as extending to ‘matters relating to the detection, prevention or suppression of activities...subversive of, or hostile to, the interests of the Commonwealth or of any country allied or associated with the Commonwealth’.[112] This specific and narrow definition of national security has been held to be distinct from the broader and more elusive concept of ‘international relations’.[113] While the term ‘international relations’ is not defined in the FOI Act itself, it has been interpreted as comprehending ‘intangible damage to Australia’s reputation’ and includes damage to intergovernmental relations arising from a loss of trust or confidence.[114] Under this approach, international relations cannot be said to fall within the meaning of national security. Thus, to adopt this definition of national security under the OC Act would not provide a sufficient basis for the making of a suppression order directly for the purpose of protecting international relations.
Considering the range of possible interpretations that have been given to the term ‘national security’ in legislation, it is necessary to question how it should be interpreted under the OC Act. Should it be given the broad definition of the NSI Act or the narrow definition applicable to the Cth FOI Act? Guidance in this regard is provided by the High Court of Australia’s decision in Hogan v Hinch.[115] It was held in that case that the principle of legality requires that any statutory power to derogate from the open justice principle ‘be construed, where constructional choices are open, so as to minimize its intrusion upon that principle.’[116] The High Court further held that the principle of legality and the Charter of Human Rights and Responsibilities Act 2006 (Vic) also requires an interpretation that has the least impact on freedom of expression.[117] Thus, following Hogan v Hinch there is a strong argument that the national security basis for making suppression orders under the OC Act must be given the narrowest possible scope and, as such, cannot be interpreted as extending to the making of orders for the direct purpose of protecting Australia’s international relations. This, then, leaves the second argument: that harm to international relations, while not directly covered by the national security ground, might lead to prejudice to national security.
In her reasons for revoking the order, Hollingworth J indicated in general terms that the connection between international relations and national security used to justify the order related to ‘areas of defence, security, counter-terrorism, transnational crime, and law enforcement (including extradition and mutual assistance requests).’[118] There is, of course, obvious force in the argument that harm to international relations may, in certain circumstances, occasion consequential prejudice to national security in the narrow sense set out above. Indeed, one might think of many examples where compromised relations with other nations might stymie efforts to protect national security. Furthermore, the connection between harm to international relations and national security is not unprecedented in the case law. In Fernandes v National Archives of Australia, for example, the Administrative Appeals Tribunal in reviewing whether access should be denied to archival material on national security grounds held that ‘significant damage that is occasioned to international relations may have consequential and predictable effects that flow on to damage security interests’.[119] Mason J also suggested the possibility of such effects in The Commonwealth v John Fairfax & Sons Ltd.[120] Consequently, it follows that suppression orders can be justified on national security grounds if there is cogent evidence that harm to Australia’s international relations could, in the language of the Cth FOI Act, threaten Australia with outside interference or with activities ‘subversive of, or hostile to the interests of the Commonwealth’.
It is important to note, however, that while the notion of harm to international relations causing prejudice to national security might, at least conceptually, be relatively straightforward, establishing the existence of such prejudice in any given case is likely to be contentious, especially when based on something as intangible as harm to reputation. In particular, apart from familiar concerns about the willingness of judges to defer to the views of the executive on questions of national security,[121] it is conceivable that claims based on this reasoning could be pitched at a particularly high level of abstraction. The concern is that such high level arguments, on the one hand, are superficially persuasive ones to make and, on the other, are likely to be difficult for a court to reject or for a contradictor to refute. In the case of Hollingworth J’s order, we do not know whether the connection between harm to international relations arising from damage to reputation and the prejudice to national security argued by DFAT was drawn at a high level of abstraction or whether it was based on more targeted national security concerns. We do know from her Honour’s reasons for revoking the order, however, that the affidavit evidence tendered to the court in support of the making of the order gave specific examples of Australia’s bilateral relations being damaged in the past and provided specific details of situations where Australia’s interests could be harmed by the withdrawal of co-operation by the named persons if the allegations regarding the foreign officials were to be made public.[122] Furthermore, the fact that her Honour refused to accept affidavit evidence in support of maintaining the order because it was ‘drafted at an unsatisfactorily high level of vagueness or generality’ suggests that she was acutely aware of the dangers of such claims being made in overly broad terms.[123] However, irrespective of the evidence actually relied upon by Hollingworth J, it is worth making the point that, given the importance of the open justice principle and the high degree of satisfaction required before departures from it can be justified, any non-specific or general claims asserting that harm to international relations will cause prejudice to national security should be treated with a high degree of scrutiny.[124]
B Prejudice to the administration of justice
Turning to the first stated legal ground upon which Hollingworth J made the order under the OC Act: preventing prejudice to the administration of justice under s 18(1)(a). Compared to the national security ground, it is much more difficult to see how an order made for the purpose of preventing harm to international relations could ever be made on the ground of preventing prejudice to the administration of justice. Certainly, harm to international relations does not directly fall within any of the earlier mentioned conventional categories of cases under the common law where the courts have accepted that derogations from open justice are justified as necessary to protect the administration of justice[125] (such grounds having been held to apply to the ‘administration of justice’ under the OC Act and its predecessors).[126] Harm to international relations, for example, does not involve blackmail, police informers or confidential information. Furthermore, unlike the publication of allegations of corruption themselves, it is hard to envisage how harm to international relations could, in and of itself, have the effect of prejudging or otherwise interfering with the fair trial of the instant proceedings, or any concurrent or pending proceedings. Having said that, it is possible to identify in Hollingworth J’s reasons for revoking the order a potential line of reasoning relied upon. However, as explained in the remainder of this section, it is a line of reasoning founded upon a misapprehension of the scope of s 18(1)(a).
Her Honour indicated that one of the adverse consequences of the publication of the allegations for Australia was a potential lack of ongoing cooperation with the countries in question regarding ‘extradition and mutual assistance requests’.[127] It might be that such lack of cooperation would place the administration of justice in jeopardy if such requests were required, or likely to be required, in order to bring proceedings against persons located overseas or in order to obtain admissible evidence necessary for successful future prosecutions.[128] Such a theory is consistent with a passage appearing later in her Honour’s reasons for revoking the order, where she states:
The concept of ‘the administration of justice’ in s 18(1)(a) is not limited to the administration of justice in the particular case then before the court. It is a very broad concept that may extend to future investigations or cases.[129]
Assuming this to be the basis of the order, it raises a number of issues regarding the scope and meaning of the ‘administration of justice’ under the OC Act – in particular whether her Honour is correct in the view that the ‘administration of justice’ in s 18(1)(a) includes prejudice to future proceedings and investigations and, if so, in what circumstances.
As a starting point to interpreting the scope of s 18(1)(a), it is important to recall the earlier mentioned point that the High Court has recently held that the principle of legality requires that statutory powers of suppression be interpreted in light of the common law principle of open justice.[130] It has also been held that the principle of legality requires that any statutory modification to the open court principle be expressed in ‘clear and unequivocal’ terms.[131] Thus, in the absence of language to the contrary, it follows that the power in s 18(1)(a) to make orders to prevent ‘prejudice to the administration of justice’ – which reflects the language of the common law[132] – must be interpreted as being conterminous with the common law.[133]
The question, then, is whether the common law powers (and hence s 18(1)(a)) extend to the protection of future proceedings. It has been held by some courts that the powers of suppression can only be exercised where necessary to protect the administration of justice in the proceedings before the court.[134] However, such an explanation of the scope of the power is not entirely accurate. Although cases involving confidential information may obviously fit this description (ie where publication would destroy the very subject matter of the litigation),[135] the same cannot be said of police informer and blackmail cases where the concern is clearly with the administration of justice as an ongoing process.[136] As Mahoney JA explained in John Fairfax Group Pty Ltd v Local Court of NSW, derogations from open justice are permitted in such cases because:[137]
...there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the court and deal with them.
Furthermore, as mentioned earlier, it is well-established in Victoria that suppression orders may be made by the Supreme Court under its inherent powers to prevent prejudice to the fair trial of an accused and this includes preventing the publication of one proceeding (ie a sentencing hearing or a verdict) in order to prevent prejudice to the administration of justice in another future proceeding before the courts (ie where an accused or a co-accused is facing further trials).
In regards to the latter type of order, it appears that a logical precondition to the exercise of the power to protect a particular future proceeding from such prejudice is that the proceeding at risk be one that is already pending in the courts. This is because there can be no interference with a proceeding that does not yet exist.[138] Thus, it is this author’s view that irrespective of the nature of the prejudice claimed, if Hollingworth J’s ‘very broad’ gloss on the ‘administration of justice’ under s 18(1)(a) of the OC Act purports to extend the protection of the administration of justice to a particular proceeding or proceedings expected to be commenced in the future, it is an interpretation that goes beyond what is permissible under the common law and therefore cannot be accepted. Such a far-reaching expansion upon the power to derogate from the open justice principle requires an express statutory mandate currently absent from the wording of s 18(1)(a). Indeed, such a broad reading almost certainly cannot be accepted in relation to future investigations. This is because, as held by the High Court in 1992 in R v Rogerson,[139] police investigations do not form part of the administration of justice by the courts in ‘any relevant sense’.[140] While R v Rogerson was concerned with perverting the course of justice rather than the law of suppression, its application in the suppression order context is consistent with the requirement that powers of derogation from open justice be interpreted strictly and, as pointed out by Sharon Rodrick, it is also consistent with the broader law of contempt of court.[141] Furthermore, Hollingworth J’s assertion that the administration of justice in s 18(1)(a) extends to future investigations is directly contrary to High Court obiter dictum on the point. Thus, in Re Application by Chief Commissioner of Police (Victoria),[142] a case concerned with the suppression of police investigative techniques, the majority decision clearly expressed doubt that a provision in almost identical terms to s 18(1)(a) in a predecessor to the OC Act extended as far as suggested by Hollingworth J in DPP (Cth) v Brady.[143]
Assuming the absence of a threat to any future proceedings already on foot, the only way that an order could be made to prevent prejudice to future mutual assistance or extradition requests in general is by drawing a ‘very close analogy’[144] with one or more of the accepted categories of cases where departures from open justice have traditionally been permitted to protect the administration of justice as an ongoing process, such as police informer and blackmail cases.[145] Such an analogy, however, should not be accepted. It is one thing to afford protection to informers and blackmail victims who might otherwise be reluctant to come forward due to fears of reprisals or public humiliation, and to extend this to, for example, victims of sexual servitude who might suffer similar anxieties about lodging complaints against their captors.[146] It is quite another to make inroads into the principle of open justice due to the potential that foreign states might refuse cooperation with domestic prosecuting authorities as a result of publicity being given to allegations made against those occupying positions of extreme power, including high political office.
IV Revocation of the Order on the Grounds of Futility
Putting aside any doubts that might surround the legitimacy of the order’s purpose or its legal basis, it is clear that the publication of the order and its subsequent global distribution had the effect of rendering it ineffective. This section examines Hollingworth J’s decision to revoke the order on the grounds of futility. In accepting the media’s application to have the order set aside, her Honour noted that the widespread overseas publication of its contents could not be ‘undone’ by continuing the order.[147] DFAT argued that lifting the order would result in new damage to Australia’s international relations[148] and that the order remained effective despite its widespread publication because it had not been published by the mainstream media in Australia.[149] In response, Hollingworth J said that because it was the overseas publication of the allegations that had the capacity to cause the greatest harm, especially in the home countries of the relevant foreign officials, and because the court lacked the power to restrain the ongoing publication of the allegations in those jurisdictions,[150] the harm caused by such publication would continue irrespective of whether the order preventing publication in Australia was maintained.[151] Furthermore, Hollingworth J held that maintaining the order would be likely to lead to further ‘rumour and innuendo’ if the identity of any of the foreign politicians could not be published in the event that they were referred to in court.[152] This, it was said, ‘may be more harmful to Australia’s interests than disclosing the actual name in the context of the relevant allegation.’[153]
It is well established that where orders have become futile they should not be maintained.[154] The importance of R v Brady lies in the fact that it is the only decision in Australia to have revoked a suppression order on the basis that it has become futile as a result of being deliberately breached online.[155] The decision has potentially significant ramifications. In particular, it has the potential to create incentives for future breaches. The concern is that a publisher intent on publishing suppressed material will be encouraged by the decision to anonymously leak an order or suppressed information online (through WikiLeaks or a similar website) and subsequently apply to have the order set aside once the information enters the public domain to a sufficient extent that it can no longer be said to achieve its original purpose. Hollingworth J was anxious to avoid such consequences when she warned:
This decision does not stand as authority for the proposition that if somebody deliberately breaches a suppression order, and circumvents the proper legal procedures for reviewing the order, it necessarily will be appropriate to lift the suppression order on review. To come to such a conclusion would be to encourage illegal activity. Each case needs to be determined on its own facts. In some cases, it would still be possible to protect the underlying public interest by maintaining the suppression order, notwithstanding the breach.[156]
Yet, where an order has become completely ineffective rather than simply less effective as a result of its breach, this is exactly the proposition for which the case must be said to stand. Consequently, it cannot be denied that the decision has the potential to encourage illegal activity.[157] This raises the question of whether, despite the futility of the order, Hollingworth J could have refused the application for revocation so as to avoid the potential for the decision to encourage future breaches and also to reinforce the court’s authority to enjoin publication of information by way of court order. These arguments do not appear to have been put to her Honour and she did not deal with them in her judgment; however, given the potential ramifications of the decision, they are important arguments to explore.
While concern for the creation of undesirable incentives does not appear to have previously arisen in the suppression order context, it is not an entirely novel concern in the analogous context of breach of confidence. For example, it was an argument that was made by the UK Attorney-General at various stages throughout the well-known Spycatcher litigation,[158] a saga which has some similarities to the circumstances at issue in DPP (Cth) v Brady. The facts can be recited briefly. Peter Wright planned to publish in Australia and elsewhere a book of memoirs called Spycatcher detailing his 20 years of service with the British Security Service, MI5. The UK Attorney-General commenced proceedings in Australia against Wright and his publisher Heinemann Publishers Australia Pty Ltd to restrain publication of the book.[159] Two newspapers in the UK, The Guardian and The Observer, published reports of the pending Australian litigation, revealing in broad terms the details of allegations contained in the book. Millett J granted an interlocutory injunction restraining any further publication in the UK. One year later, the book was published throughout the US where there were no legal restraints on publication. The US publication of the book prompted the two newspapers to apply to Millett J to have the interlocutory injunction discharged on the basis that the object of the injunction in restraining disclosure of the contents of the book could no longer be achieved. At first instance, Sir Nicholas Browne-Wilkinson VC acceded to the application on the basis that the interlocutory injunction was now futile, referring to the ‘old maxim that equity does not act in vain.’[160] However, on appeal to the Court of Appeal, the Attorney-General successfully argued that while the original purpose of the interlocutory injunction in maintaining secrecy was rightly seen as spent, it had a secondary purpose in protecting the secret service by reinforcing its cloak of secrecy and in deterring any future breaches by other secret service members.[161] The majority of the House of Lords confirmed this on further appeal.[162] Thus, as stated by Lord Templeman:
If the Millett injunctions were discharged, Mr Wright could write to the “Washington Post” making a serious new allegation or bolstering up old allegations citing names and actions and purporting to give chapter and verse. Once the ‘Washington Post’ had entertained an American audience with these revelations, then the products of Mr Wright’s recollections and imaginations could be plastered across the British press.[163]
The argument was again pursued at trial but eventually failed, including on another appeal to the House of Lords.[164] It was held that the risk that other security service agents would follow Wright’s lead in publishing security information – as to which there was scepticism at all levels as to whether the threat existed[165] – was not sufficient to outweigh the freedom of expression interests of the English media in being able to publish what was, given the futility of any injunction, otherwise freely available to the English public.[166] The alleged national security status of the information did not alter this conclusion.[167] However, rather than being dismissed as a matter of principle, it is important to point out that the argument appears to have been unsuccessful due to a lack of evidence that any such incentive would arise or that it was sufficiently serious to warrant granting a permanent injunction.[168]
Importantly, the ultimate outcome in the Spycatcher litigation reflects the robust approach of the courts in dismissing the availability of an injunction in breach of confidence cases once the information has entered the public domain, including where disclosure has occurred as a result of a breach of duty.[169] The exception appears to be where some overriding matter of public policy warrants a contrary conclusion. In Spycatcher, for example, it was held that Wright himself, unlike the press, was subject to a ‘lifelong’ duty of confidence as a former member of the security service and that he should not be relieved of his duty as a result of his ‘own wrongdoing’.[170] It might be thought that similar public policy considerations would arise where disclosure is in breach of an order already in place, being the overriding public interest in upholding the authority of the judiciary. This raises a further possible argument in favour of maintaining an order which has become futile as a result of a breach. Indeed, it was an issue briefly touched on in Spycatcher, although it did not require determination. Thus, alluding to the public interest in maintaining the authority of the courts to restrain publication by way of injunction, Wilkinson-Browne VC pointed out that the question remains as to ‘whether publications in contempt of court can have any effect on the validity of an existing order.’[171]
In the suppression order context, this question appears to have been subject to limited judicial consideration. In the few overseas cases where it has been considered, different conclusions have been reached. Some courts have held that a suppression order should not be revoked where it has become ineffective as a result of a breach, including where revocation is sought by innocent parties. In Television New Zealand v R, for example, the New Zealand Court of Appeal remarked:
The Court should be reluctant to leave an order in effect if it is already, or is likely to be, ineffective in practice because of actions which are not themselves a breach of the order.[172]
In Lewis v Wilson & Horton Ltd, the High Court of New Zealand extended this further and refused an application by the media to quash an order that was said to have become futile as a result of publication in breach of the order of the defendant’s identity overseas and on the internet. It was held that to accede to the request would ‘condone the breach of the order by which publication occurred and would be contrary to public policy.’[173] On appeal, the New Zealand Court of Appeal revoked the order on alternative grounds, but held that an order will not generally be renewed once quashed on review if the information has entered the public domain in the meantime, and that ‘how the information escaped (whether in breach of Court order or not) will not normally be of significance.’[174] It is unclear, however, whether this reasoning also applies where the ground of review itself is based on the fact that the information has entered the public domain as a result of a breach of an otherwise valid suppression order.[175]
The only other case on point – the English case of Re Stedman – came to the opposite conclusion to the New Zealand High Court in Lewis v Wilson. In Re Stedman,[176] an application was made by a county council for the continuation and extension of existing reporting restrictions preventing the publication of photographs of a number of children and the result of a DNA paternity test. King J refused the application on the basis that the information was already in the public domain, including on the internet. It was argued by the applicant that the DNA results entered the public domain as a result of publication by The Daily Mirror in breach of a suppression order (known as a ‘reporting restriction’ in the UK) and that the application to maintain the order should be accepted to ensure the maintenance of the ‘authority of the judiciary.’[177] In rejecting the argument, King J pithily stated that ‘another aspect of the maintenance of judicial authority...is that the courts must not be seen to make an order which would appear to the public to be ludicrous or absurd and which is unenforceable.’[178]
The reasoning of King J in Stedman is certainly convincing.[179] It would be a perverse result indeed if courts were to attempt to garner respect for the authority of the courts and promote compliance with future orders by insisting upon the continued observance of orders that no longer have any practical utility. It might be thought to be especially intolerable if those not complicit in any breach continued to be bound. However, there is another, even more fundamental reason why arguments based on maintaining the authority of the judiciary – and, indeed, avoiding undesirable incentives – must be rejected as valid justifications for keeping an otherwise useless order on foot. It is simply that the courts do not have the power to continue futile suppression orders on such grounds. This is because the continuation of a suppression order – like the decision to make an order in the first place – is subject to the strict test of necessity.[180] A futile order cannot in any sense be considered necessary; certainly, continuing such an order to ensure the broader effectiveness of future orders would not be sufficient to meet it. Thus, as already discussed, there is no broad power to make orders protecting the administration of justice in future cases and it is clear that there is no analogy that can be drawn between maintaining an order to protect the efficacy of future orders and the accepted categories of cases where suppression orders are permitted. Furthermore, the test does not admit of any judicial discretion to take these types of broader considerations into account in the granting or continuation of suppression orders; it is well established that the decision to depart from open justice is a strict ‘matter of principle and not one of discretion.’[181] It follows that despite the potential consequences of the decision for the effectiveness of future suppression orders and the opportunities that exist for the anonymous breach of suppression orders created by sites such as WikiLeaks, Hollingworth J had no option under the law but to revoke the order at issue in DPP (Cth) v Brady once it was concluded that the extent of the distribution of the order had rendered it futile.
V Conclusion
This article has considered a number of controversial aspects of the order at issue in DPP (Cth) v Brady and Hollingworth J’s decision to revoke it. It has argued that criticisms directed at the alleged scope of the order were both misinformed and unwarranted. Despite reports to the contrary, the order was a very narrowly drafted order; and while the order itself – which set out the suppressed information – could not be published in full, this was due to the specificity requirements of s 13 of the OC Act. Under this provision, Hollingworth J had no option but to draft the order as she did. Moreover, the order was far from a ‘super-injunction’ or a ‘blanket-ban’. The article has also analysed the legal grounds upon which the order was made. It has argued that while the principle of legality requires that the ‘national security’ ground to make suppression orders contained in s 18(1)(b) of the OC Act should be given a narrow construction, it is possible that an order for the purpose of protecting international relations can be made on such a ground where it can be shown that harm to international relations would cause prejudice to national security. It is practically inconceivable, however, that an order for the purpose of protecting international relations could be made to prevent ‘prejudice to the administration of justice’ under s 18(1)(a). In particular, the article has argued that Hollingworth J’s ‘very broad’ understanding of the ‘administration of justice’ in s 18(1)(a) to include ‘future investigations or cases’ to justify the order being made on such a ground is contrary to authority and cannot be supported. Finally, the article has considered Hollingworth J’s novel decision to revoke the order following its breach and subsequent widespread publication by WikiLeaks. It has argued that once the order became futile it could no longer satisfy the strict test of necessity, notwithstanding concerns that the decision might have the effect of encouraging future breaches or might undermine the authority of the court. As such, Hollingworth J’s decision to revoke the order was undoubtedly correct.
[∗] Senior Lecturer,
Melbourne, Law School, University of Melbourne; Deputy Director, Centre for
Media and Communications Law (CMCL),
University of Melbourne. Thanks to Tim
Kyriakou for outstanding research
assistance.
[1] A suppression order
is an order made by a judge or magistrate to limit what can be published about
particular legal proceedings.
[2]
Opinion, ‘Federal ICAC needed as graft knows no borders’, Sydney
Morning Herald, 1 August 2014,
18.
[3] The open justice principles
gives rise to a number of rules: that judicial proceedings are conducted, and
decisions pronounced, in
‘open court’; that evidence is not
concealed from members of the public present in court; and, finally, that
restraints
should not be imposed upon fair and accurate reporting of judicial
proceedings, including in the media. For a discussion of the open
justice
principle and the rules, see: Des Butler and Sharon Rodrick, Australian Media
Law (Thomson Reuters, 5th ed, 2015) 235-8. For a discussion of
the history and rationales for the open justice principle, see: Chief Justice J
J Spigelman,
‘Seen to Be Done: The Principle of Open Justice’ (Pt I)
(2000) 74(5) Australian Law Journal 290.
[4] The order can be downloaded
from the WikiLeaks website: <https://wikileaks.org/aus-suppression-order/WikiLeaks-Australian-suppression-order.pdf>.
[5]
DPP (Cth) v Brady & Ors [2015] VSC 246,
[23].
[6] The servers of the
WikiLeaks website are currently hosted in Sweden, although other servers are
reportedly located in different jurisdictions
around the world. None, however,
are located in Australia.
[7]
Michael West, ‘Culture of secrecy threatens our democracy’,
Sydney Morning Herald, 9 August 2014,
2.
[8] See, eg, Wahyudi
Soeriaatmadja, ‘WikiLeaks bribery claims: Yudhoyono asks Australia to
clear the air’, The Straits Times (Singapore), 1 August 2014;
‘Govt brings “worst of Asian values”’, Dominion
Post, 2 August 2014, 1; ‘Australia denies SBY’s involvement in
banknote graft case’, Tempo (Indonesia), 1 August 2014, 1; Ina
Parlina and Bagus BT Saragih, ‘SBY irked by Oz graft claim, proposes joint
investigation’,
The Jakata Post (Indonesia), 1 August 2014,
4.
[9] See, eg, Crikey,
‘Crikey says: rampant suppression orders an affront to free speech’,
Crikey (online), 30 July 2014
<http://www.crikey.com.au/2014/07/30/crikey-says-rampant-suppression-orders-an-affront-to-free-speech/>
(where it was said ‘it’s all just a Google search or a quick visit
to WikiLeaks site away’).
[10] DPP (Cth) v Brady &
Ors [2015] VSC 246.
[11]
Crikey, above n 9; Anne Hyland,
‘Corruption case gag order tests role of free media’, The
Australian Financial Review, 1 August 2014,
35.
[12] West, above n 7.
[13]
WikiLeaks, ‘Australia bans reporting of multi-national corruption case
involving Malaysia, Indonesia and Vietnam’ (press
release), 29 July 2014,
<https://wikileaks.org/aus-suppression-order/press.html>.
[14]
See, eg, ibid; West, above n 7; Robert
Booth, ‘Australia-wide gagging order exposed in leak’, The
Guardian, 30 July 2014, 20; Richard Ackland, ‘WikiLeaks gag order:
open justice is threatened by super-injunctions’, The Guardian
(online), http://www.theguardian.com/commentisfree/2014/jul/30/wikileaks-gag-order-open-justice-is-threatened-by-super-injuctions>.
Cf Bernard Keane, ‘WikiLeaks reveals (not so) superinjunction’,
Crikey, 30 July 2014 (who recognised that the order was ‘not quite
a superinjunction’).
[15]
See, eg, WikiLeaks, above n 13; John
Kerin, ‘“Explain” wanted on graft case’, The
Australian Financial Review, 1 August 2014, 11. See, also, ‘Australian
Court Imposes Generalized News Blackout on Bribery Case’ Reporters Without
Borders, Reporters Without Borders (30 July 2014)
<http://en.rsf.org/australia-wikileaks-reveals-sweeping-30-07-2014,46727.html>
.
[16]
Booth, above n 14; West, above n 7; Kerin, above n 15. See, also, Binoy Kampmark,
‘Suppression Order and Freedom of Expression: WikiLeaks, Corruption and
the Super Injunction’,
Global Research, Centre for Research on
Globalisation, 3 August 2014,
<http://www.globalresearch.ca/suppression-order-and-freedom-of-expression-wikileaks-corruption-and-the-super-injunction/5394488>
.
[17]
Booth, above n 14; Ackland, above n 14; Hyland, above n 11; Philip Dorling and Jane Lee,
‘Suppression order, can’t say too much’ The Age 31 July
2014, 7.
[18] Cf John Kerin,
‘Outcry over corruption case order’, The Australian Financial
Review, 31 July 2014, 8; Ackland, above n 14.
[19]
A-G (UK) v Leveller Magazine Ltd [1979] AC 440, 450 (Lord Diplock);
Hogan v Hinch (2011) 243 CLR 506, 532 [22] (French
CJ).
[20] In response to the
controversy, some argued that the publication of the order by WikiLeaks
demonstrates the ineffectiveness of suppression
orders in the digital age and
claimed that the use of such orders is universally archaic and pointless: see,
eg, Ackland, above n
14; Kampmakr, above
n 16.
[21] See nn 14-15 and accompanying text.
[22] Will Ockenden,
‘Wikileaks releases suppression order which limits Australian reporting on
bribery case’, Australian Broadcasting
Corporation Transcripts, 30 July
2014. See, also, Dan Box, ‘AFP to lead corruption pursuit’, The
Australian, 31 July 2014,
1.
[23] Booth, above n 14; Robert Booth and Rob Evans,
‘Australian court’s gagging order condemned as “abuse of legal
process”’,
The Guardian (online), 31 July 2014 available at
<http://www.theguardian.com/world/2014/jul/30/australian-court-gagging-order-abuse-legal-process>
.
[24]
Ibid (quoting Benjamin Ismail, head of Asia-Pacific desk for Reporters Without
Borders).
[25] Ackland, above n
14.
[26]
This is the definition given to a super-injunction by the Committee on
Super-Injunctions, Report of the Committee on Super-Injunctions:
Super-Injunctions, Anonymised Injunctions and Open Justice (20 May 2011),
iv, 2.13.
[27] The first known
news media use of the term ‘super-injunction’ was by Alan
Rushbridger, editor of the The Guardian in 2009, see:
<http://www.theguardian.com/media/2009/oct/13/guardian-gagged-parliamentary-question>
.
Notably, Rushbridger’s use of the term accords with the definition given
to it by the Committee on Super-Injunctions:
ibid.
[28] RJW and SJW v
Guardian News and Media Limited and Person or Persons Unknown [2009] EWHC
2540 (QB). For a useful discussion of the Trafigura case and the English
super-injunction controversy, see Sophie Matthiesson, ‘Who’s Afraid
of the Limelight? The Trafigura
and Terry Super-Injunctions, and the Subsequent
Fallout’ (2010) 2(2) Journal of Media Law
153-167.
[29] Terry
(previously LNS) v Persons Unknown (Rev 1) [2010] EWHC 119 (QB).
[30] The
‘super-injunction’ element of the order is as follows: ‘The
application hearing to which this Order relates
was held in private and the
publication of all information relating to these proceedings or of information
describing them or the
intended claim is expressly prohibited.’ A copy of
the order is available here:
<http://image.guardian.co.uk/sys-files/Guardian/documents/2009/10/20/SUPER-INJUNCTION.pdf>
.
[31]
See Committee on Super-Injunctions, Report of the Committee on
Super-Injunctions, Anoymised Injunctions and Open Justice (20 May 2011),
available at
<http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/super-injunction-report-20052011.pdf>
.
[32] See Ntuli v Donald
[2010] EWCA Civ 1276, referred to in Committee on Super-Injunctions,
Report of the Committee on Super-Injunctions, Anoymised Injunctions and Open
Justice (20 May 2011),
iv.
[33] Committee on
Super-Injunctions, Report of the Committee on Super-Injunctions, Anoymised
Injunctions and Open Justice (20 May 2011),
iv.
[34] See, for example,
the misunderstanding surrounding the Sir Fred Goodwin case. It was stated in the
UK Parliament on numerous occasions
(under privilege) and widely reported that
Goodwin had obtained a ‘super-injunction’ to preventing him being
referred
to as a ‘banker’: see, eg, Afua Hirsch, ‘Fred Goodwin
get superinjunction to stop him being called a banker’,
The Guardian
(online), 10 March 2011, <www.guardian.co.uk/business/2011/mar/10/fred-goodwin-superinjunction-banking>.
However, Goodwin had not obtained a super-injunction, but rather an anonymity
order: see criticism of this misreporting by Tugendhat
J in Goodwin v News
Group Newspapers Ltd [2011] EWHC 1309 (QB),
[9]-[11].
[35] Jason Bosland and
Ashleigh Bagnall, ‘An Empirical Analysis of Suppression Orders in the
Victorian Courts: 2008-12’ [2013] SydLawRw 27; (2013) 35 Sydney Law Review 671,
686.
[36] See, eg, The Queen v
Tait [1979] FCA 32; (1979) 46 FLR 386, 401 (‘To deny the public any part of the
proceedings of a court is a matter of gravity, especially where the court is
exercising
criminal jurisdiction’); Herald and Weekly Times Limited v
Craig Johnston [2001] VSC 439. A recent empirical study of suppression
orders in Victoria led by the present author demonstrates than blanket ban
orders, at least
in the past, have been issued by the Victorian courts on a
regular basis: ibid, 686. Over the five-year period covered by the study
(2008-2012), 442 out of 1501 suppression orders granted by the Victorian courts
were blanket bans. This equates to more than one
per week.
[37] DPP (Cth) v Brady
[2015] VSC 246, [56].
[38] Anne
Hyland, ‘Corruption case gag order tests role of free media’, The
Australian Financial Review, 1 August 2014, 35. See, also, WikiLeaks, above
n 13.
[39]
Robert Booth, ‘Australia-wide gagging order exposed in leak’, The
Guardian, 30 July 2014,
20.
[40] Mex Cooper,
‘Social media users could be charged for sharing WikiLeaks story’,
Canberra Times (online), 30 July 2014, available at
<http://www.canberratimes.com.au/national/social-media-users-could-be-charged-for-sharing-wikileaks-story-20140730-zye0b.html>
.
[41] DPP (Cth) v Brady
[2015] VSC 246,
[54]-[56].
[42] For a detailed
discussion of the legal principles regarding derogations from open justice, see:
Butler and Rodrick, above n 3, chapter
5.
[43] McPherson v McPherson
[1936] AC 177.
[44] A-G v
Leveller Magazine Ltd [1979] AC 440, 450; Hogan v Hinch (2011) 243
CLR 506, 532 [22]; Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327,
335 [15].
[45] Note, the implied
powers of inferior courts to make suppression orders have been abolished: see
Open Courts Act 2013 (Vic), s
5.
[46] There is judicial
disagreement as to whether powers exists under the common law for courts to
prevent the publication of material
heard in open court: see Butler and Rodrick,
above n 3, 257. However, this author
agrees with French CJ in Hogan v Hinch (2011) 243 CLR 506, who said (at
534) that the ‘better view’ is that the courts do possess such
powers.
[47] See, eg, Scott v
Scott [1913] AC 417, 436-7. This is because open justice is a means to an
end, not an end in and of itself: see Sharon Rodrick, ‘Achieving
the Aims
of Open Justice? The Relationship between the Courts, the Media and the
Public’ [2014] DeakinLawRw 4; (2014) 19(1) Deakin Law Review 123, 123, citing Re
Hogan; Ex Parte West Australian Newspapers Ltd [2009] WASCA 221,
[23].
[48] John Fairfax Group
Pty Ltd (Receivers and Managers Appointed) v Local Court (NSW) (1991) 26
NSWLR 131, 141 (per Kirby P). See, also, A v Hayden [1984] HCA 67; (1984) 156 CLR 532,
599; R v Mayas Pty Ltd (1988) 14 NSWLR 342, 346 (per Mahoney JA); R v
Lodhi [2006] NSWCCA 101; (2006) 65 NSWLR 573, 584-5; R v Governor of Lewes Prison; Ex parte
Doyle [1917] 2 KB 254, 271-272; Guardian News and Media Ltd v AB CD
[2014] EWCA Crim (B1), [4]. Note, the difference in the Australian and the
English approaches in relation to the national security
category. This was made
explicit in Guardian News and Media Ltd v AB CD [2014] EWCA Crim (B1),
where it was held (at [5]) that under the common law ‘[c]onsiderations of
national security will not
by themselves justify a departure from the
open justice principle’ but will only do so where the departure is
necessary to ensure that justice
can be done – for example, ‘by
deterring the Crown from prosecuting a case where it otherwise should do
so...’
See, also, R v Governor of Lewes Prison; Ex parte Doyle
[1917] 2 KB 254, 272. Australian courts, however, seem to adopt a different
approach: they treat the national security ground under the common law
as
founded upon more general concerns for the public interest rather than with the
fair and proper administration of justice as such:
see, eg, John Fairfax
Group Pty Ltd (Receivers and Managers Appointed) v Local Court (NSW) (1991)
26 NSWLR 131, where Kirby P said (at 141): ‘If the very openness of court
proceedings would destroy the attainment of justice in the particular
case (as
by vindicating the activities of the blackmailer) or discourages its attainment
in cases generally (as by frightening off
blackmail victims or informers) or
would derogate from even more urgent considerations of public interest (as by
endangering national security) the rule of openness must be modified to meet
the exigencies of a particular case’ (emphasis added). See, also, Re a
Former Officer of Australian Security Intelligence Organisation [1987] VicRp 70; [1987] VR
875, 877; R v Tillett; Ex parte Newton (1969) 14 FLR 101, 127. There is
no need, therefore, to specifically show that the disclosure of the national
security information will impact on the
administration of justice. Note,
however, that the English position may now reflect the Australian approach
following a more recent
decision of the England and Wales Court of Appeal in
Guardian News and Media Ltd v Incedal [2016] EWCA Civ Crim 11, [47]-[60]
(where the focus was on the effect of disclosing national security information
to the public).
[49] John
Fairfax Publications Pty Ltd v District Court (NSW) [2004] NSWCA 324; (2004) 61 NSWLR 344,
353; A-G (NSW) v Nationwide News Pty Ltd [2007] NSWCCA 307; (2007) 73 NSWLR 635, 640. See,
also, Hogan v Hinch (2011) 243 CLR 506,
531.
[50] R v Kwok [2005] NSWCCA 245; (2005)
64 NSWLR 335, 341. In Hogan v Hinch (2011) 243 CLR 506, French CJ said
(at 531) that the categories ‘will not lightly be
extended’.
[51]
Australian Broadcasting Corporation v Parish (1980) 43 FLR 129,
132.
[52] R v Socialist Worker
Printers and Publishers Ltd; Ex parte A-G [1975] QB 637, 649, 652; John
Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court (NSW)
(1991) 26 NSWLR 131 (extended to cases of
extortion).
[53] Cain v Glass
(No 2) (1985) 2 NSWLR
230.
[54] General Television
Corporation v Director of Public Prosecutions [2008] VSCA 49; (2008) 19 VR 68, where the
Victorian Court of Appeal said (at 75, ‘[c]learly, the usual exercise of
that inherent jurisdiction consists of orders suppressing the publication
of a part or parts of a proceeding or of evidence given or to be given in a
proceeding.
One usual example of this is the suppression of publication of the
sentencing hearing of an accused who has pleaded guilty to offences
shortly
before his or her co-accused is to face a trial’ (emphasis added); Re a
Former Officer of the Australian Security Intelligence Organisation [1987] VicRp 70; [1987]
VR 875, 877; Friedrich v Herald and Weekly Times Ltd [1990] VicRp 87; [1990] VR 995,
1005-6. While in Victoria such orders are usually made pursuant to statutory
powers (see, eg, R v Benbrika [2007] VSC 332; DPP v Lawson [2012]
VSC 469; R (on the application of the Registrar of the County Court) v
Wilson [2007] VSC 498, [5]), it is clear that the Victorian courts are of
the view that such power also arises as part of its inherent jurisdiction. See,
also, RW v Rayney [2012] WASCA 117, [32]; Skope Enterprises Ltd v
Consumer Council [1973] 2 NZLR 399. Cf John Fairfax Publications Pty Ltd
v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344, 360 (per Spigelman
CJ, who made it clear that the power to suppress a verdict could only be
exercised in a rare and ‘truly
exceptional’ case but that such a
‘case is so unlikely that it cannot form the basis for an implication of a
power on
a test of necessity’); R v Einfeld (No 2) [2008] NSWCCA 215; (2008) 71 NSWLR
31, 59 (no power to suppress leave to appeal application when trial pending);
R v Sheikh [2004] NSWCCA 38; (2004) 144 A Crim R 124, 142 (no power to suppress publication
of a verdict); C v R (1993) 67 A Crim R 562 (no power to suppress leave
to appeal application when trial pending but a pseudonym order could be
granted).
[55] General
Television Corporation v Director of Public Prosecutions [2008] VSCA 49; (2008) 19 VR 68,
75.
[56] Re Applications by
Chief Commissioner of Police (Vic) for Leave to Appeal [2004] VSCA 3; (2004) 9 VR 275, 288,
294; Re Application by ‘The Age’; R v Williams [2004] VSC
413, [12], [31] (where it was assumed that such powers exist under the common
law).
[57] John Fairfax &
Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465,
477.
[58] See, eg, Court
Suppression and Non-Publication Orders Act 2011
(NSW).
[59] For example, where
suppression is necessary to protect the safety of a person or to prevent
embarrassment to a victim or witness
in proceedings relating to a sexual
offence: see Court Suppression and Non-Publication Orders Act 2011 (NSW),
s 8(1)(c); Open Courts Act 2013 (Vic), s 18(1)(c). The statutory powers
do two things. First, they provide that suppression orders can be made in a
broader range of circumstances than
under the common law – for example, to
protect the safety of a person or to protect a witness or a victim from
embarrassment:
see Open Courts Act 2013 (Vic), ss 18(1)(d) and (e).
Second, they provide courts with the power to make orders restraining the
‘world at large’ (see, eg, R v Nationwide News Pty Ltd [2008] VSC 526; (2008)
22 VR 116, 129), a power which on the bulk of authority does not exist under the
common law: for a summary of the cases, see Butler and Rodrick,
above n 3, 257-8. See, also, Hogan v Hinch
(2011) 243 CLR 506, 534 (where French CJ declined to resolve the matter).
Even if a court cannot make an order under the common law directly binding
those
not present in court when an order is made, a media organisation with notice of
an order will be indirectly bound: see Attorney General NSW v Mayas
(1988) 14 NSWLR 342, 355; John Fairfax Publications Pty Ltd v District
Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344, 363; General Television Corporation v
Director of Public Prosecutions [2008] VSCA 49; (2008) 19 VR 68,
77.
[60] Lew v Priester (No 2)
[2012] VSC 153 (24 April 2012) [12].
[61] See, eg, Supreme Court
Act 1986 (Vic), s 18; County Court Act 1958 (Vic), s 80;
Magistrates’ Court Act 1989 (Vic), s
126(2)(c).
[62] Bosland and
Bagnall, above n 35, 673. The OC Act is
based on draft model legislation developed by the Standing Committee of
Attorneys-General (‘SCAG’)
in 2008 (and now implemented in NSW and
at the federal level in slightly modified form). The purpose of the SCAG model
was to clarify
the law, achieve uniformity across Australian jurisdictions and
also to respond to concerns that there were too many orders being
issued in some
states compared with others. Many of the provision of the OC Act, however,
depart substantially from the SCAG
model.
[63] Robert Clark,
‘New Law to Strengthen Open Justice’ (Media Release, 26 June 2013)
<http://www.premier.vic.gov.au/media-centre/media-releases/7168-new-law-to-strengthen-open-justice.html>
.
[64] See, eg, Prue Innes,
‘Report of the Review of Suppression Orders and the Media’s Access
to Court Documents and Information’
(Report, Australia’s Right to
Know, 13 November 2008) 35; Peter Bartlett, ‘A Minefield of Suppression
Orders’,
The Drum (online), 4 May 2010
<http://www.abc.net.au/unleashed/33928.html>
(accessed 20 January 2015); Andrew Kenyon, ‘Not Seeing Justice Done:
Suppression Orders in Australian Law and Practice’
[2006] AdelLawRw 8; (2006) 27 Adelaide
Law Review 279, 293; Justice Teague, ‘The Courts, the Media and the
Community – A Victorian Perspective’ (1995) 5 Journal of Judicial
Administration 22, 25-6; Mark Pearson and Caroline Graham,
‘Suppression orders: reskilling journalists and the judiciary’
(2010) 32(1) Australian Journalism Review 97,
102.
[65] See, eg, Bosland and
Bagnall, above n 35,
671-674.
[66] It has been found
that 69 per cent of orders made by the Victorian courts between 2008 and 2012
did not contain any temporal limitation
or were said to operate ‘until
further order’: see Bosland and Bagnall, above n 35, 691. See also, Innes, above n 64, 35; Kenyon, above n 64, 293; Teague, above n 64, 25; Media, Entertainment and Arts
Alliance (‘MEAA’), ‘Kicking at the Cornerstone of Democracy:
The State of Press
Freedom in Australia’ (Report, May 2012) 58
<http://issuu.com/meaa/docs/press_freedom_2012>
.
[67]
In addition, section 14 of the Open Courts Act 2013 (Vic) reflects the
common law requirement that an order can only be made on the basis of cogent
evidence (see, eg, John Fairfax & Sons Ltd v Police Tribunal (NSW)
(1986) 5 NSWLR 465, 477; Re Applications by Chief Commissioner of Police
(Vic) for Leave to Appeal [2004] VSCA 3; (2004) 9 VR 275,
286).
[68] Open Courts Act
2013 (Vic), s 13(1)(a) and
(b).
[69] Open Courts Act 2013
(Vic), s 13(1)(c).
[70]
Open Courts Act 2013 (Vic), s
12(4).
[71] Note also section 12,
which requires that orders be made to continue for no longer than is necessary
and that the duration be specified in the
order.
[72] Open Courts Act
2013 (Vic), s 13(1).
[73]
Court Suppression and Non-publication Orders Act 2010 (NSW), s 9(5).
[74] See, eg, Federal Court
of Australia Act 1976 (Cth), s
37AH(5).
[75] Open Courts Act
2013 (Vic), ss 13(1)(a)-(c) (emphasis
added).
[76] DPP (Cth) v
Brady [2015] VSC 246,
[56].
[77] See above n 17 and accompanying
text.
[78] See, eg, Innes, above
n 64, 35; Bartlett, above n 64; Bosland and Bagnall, above n 35,
672.
[79] See, eg, Witness v
Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429, 464 where an order was made in the following
terms: ‘Any matter which is likely to lead to the identification of the
witness is not to be reported by those in Court’ (emphasis added).
See, also, R v Nationwide News Pty Ltd [2008] VSC 526; (2008) 22 VR 116, where Mandie J
held (at 129-130) that a reference to ‘witness A’ was sufficient to
meet the common law requirement that
an order should be ‘clear, precise
and unambiguous’; cf. Australian Broadcasting Corporation v Local Court
(NSW) [2014] NSCSC 239,
[79]
[80] DPP (Cth) v Brady
[2015] VSC 246, [53].
[81]
Under the OC Act 2013 (Vic), s 11, media organisations are required to
receive notice of an application for a suppression order and it is an
established
practice that the media are emailed copies of all suppression orders
made by the Supreme, County and Magistrates’
courts.
[82] Booth and Evans,
above n 23 (quoting Mark
Stephens).
[83] http://www.abc.net.au/mediawatch/transcripts/s4060715.htm
(quoting Justin Quill).
[84]
Jason Bosland, ‘WikiLeaks, suppression orders and media
frustration’, The Age, p 19, 8 August
2014.
[85] Herald & Weekly
Times v Williams [2003] FCAFC 217; (2003) 201 ALR 489, 499
[36].
[86] See, eg, Herald
& Weekly Times v Williams [2003] FCAFC 217; (2003) 201 ALR 489, 499-500; Herald &
Weekly Times v Medical Practitioners Board of Victoria [1999] 1 VR 267,
294-6; Herald & Weekly Times Ltd v Magistrates’ Court of
Victoria [1992] VicRp 93; [1992] 2 VR 671; John Fairfax Group Pty Ltd v Local Court
(NSW) (1991) 26 NSWLR 131, 142; Raybos Australia Pty Ltd v Jones
(1985) 2 NSWLR 47; R v Tait [1979] FCA 32; (1979) 46 FLR 386. The same position
applies in relation to private or confidential facts, at least where the
revelation of such information would destroy
the subject-matter of the
litigation itself (for example, confidential information cases): see Scott v
Scott [1913] AC 417, 437; Australian Broadcasting Corporation v Parish
(1980) 29 ALR 228, 235.
[87] DPP (Cth) v Brady
[2015] VSC 246, [73].
[88]
Ibid.
[89] On the obligation to
give reasons for judicial decisions and the power to suppress such reasons, see
Jason Bosland and Jonathan Gill,
‘The Principle of Open Justice and the
Judicial Duty to Give Public Reasons’ [2014] MelbULawRw 20; (2014) 38(2) Melbourne University
Law Review 482.
[90] Note
that the same analysis would apply to the common law power to make suppression
orders to avoid prejudice to national security:
see above n 48.
[91]
DPP (Cth) v Brady [2015] VSC 246, [73] (emphasis
added).
[92] See, eg, Liora
Lazarus, ‘Mapping the Right to Security’ in Benjamin Goold and Liora
Lazarus (eds), Security and Human Rights (Hart, 2007), 325-346.
For a discussion of the ‘traditional judicial timidity’ of the
courts in the area of national security, see David Dyzenhaus,
‘Deference,
Security and Human Rights’ in Benjamin Goold and Liora Lazarus,
Security and Human Rights (Hart, 2007), 125-156. See, also, ‘Scope
and Content of Concept of “National Security”’ (1984) 58 ALJ
67; Peter J Hanks ‘“National Security” – A Political
Concept’ (1988) 14 Monash Law Review
114.
[93] See, eg, R v Lodhi
[2006] NSWSC 596; R v Lodhi [2006] NSWCCA 101; (2006) 65 NSWLR 573; R v Benbrika
(Ruling No 1) [2007] VSC 141; RJCG v Director-General of Security
[2013] FCA 269.
[94] See, eg,
Alister v The Queen [1984] HCA 85; (1983-1984) 154 CLR 404 (public interest immunity);
The Commonwealth of Australia v John Fairfax & Sons Limited [1980] HCA 44; (1980)
147 CLR 39 (confidential information).
[95] See, eg, Church of
Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25, where Mason CJ said (at 60)
‘that security is a concept with a fluctuating content, depending very
much on the circumstances
as they exist from time to
time.’
[96] [2001] UKHL
47.
[97] This decision was made
under the Special Immigration Appeals Commission Act 1997 (UK) ch 68,
where national security is undefined.
[98] Secretary of State for
the Home Department v Rehman [2001] UKHL 47,
[50].
[99] Lucia Zender,
Security (Routledge, 2009), 10-12. See, also, HP Lee, PJ Hanks and V
Morabito, In the Name of National Security: The Legal Dimensions (North
Ryde: LBC Information Services: 1995), Chapter 2.
[100] Mariana Valverde,
‘Governing security, governing through security’ in R Daniels, P
Macklem and K Roach (eds) The Security of Freedom: Essays on Canada’s
Anti-Terrorism Bill (Toronto: University of Toronto Press, 2001) 83-92, 90.
See, also, New York Times v United States, 403 US 670; 91 SCR 2140, where
Black J said (at 719) ‘[t]he word ‘security’ is a broad, vague
generality whose
contours should not be invoked to abrogate the fundamental law
embodied in the First Amendment’; Arnold Wolfers, ‘“National
Security” as an Ambiguous Symbol’ (1952) 67(4) Political Science
Quarterly 481; Peter Mangold, National Security and International
Relations (London: Routledge, 1990), Chapter
1.
[101] Zender, above n 99,
9.
[102] Harold Lasswell,
National Security and Individual Freedom (New York: McGraw-Hill, 1950),
51.
[103] See, eg, David A
Baldwin, ‘The Concept of Security’ (1997) 23 Review of
International Studies 5,
5.
[104] See, eg, Toby Mendel,
‘Defining the Scope of National Security: Issues Paper for the National
Security Principles Project’
(2013), 4, available at
<http://www.right2info.org/resources/publications/mendel-on-defining-national-security>
.
[105] Harold Brown,
Thinking About National Security: Defence and Foreign Policy in a Dangerous
World (Boulder: Westview Press, 1983),
4.
[106] See, eg, Irving v
Minister for Immigration, Local Government and Ethic Affairs [1996] FCA 663; (1996) 139 ALR
84, one of the few cases where a court has attempted to give some content
to the concept of national security, where it was held that
the term is not only
concerned with ‘external matters’ but also extends to ‘both
the internal security of the country
and also its relations with other
countries’ (at 90).
[107]
National Security Information (Criminal and Civil Proceedings) Act 2004
(Cth), s 8. See, also, Crimes Act 1914 (Cth), s 85ZL and Witness
Protection Act 1994 (Vic), s 3, where ‘national security
information’ is defined in both to mean ‘information affecting the
defence, security
or international relations of
Australia.’
[108] R v
Lodhi [2006] NSWSC 571, [26] (per Whealy
J).
[109] National Security
Information (Criminal and Civil Proceedings) Act 2004 (Cth), s 10. Note also
that it has been held that the term ‘security’ in the Australian
Security Intelligence Organisation Act 1979 (Cth) is ‘not to be read
in...[a] confined manner’: see Jaffarie v Director General Security
[2014] FCAFC 102; (2014) 313 ALR 593,
611.
[110] Fernandes v
National Archives of Australia [2014] AATA 180, [34] (per Kerr P considering
‘security...of the Commonwealth’ and ‘international relations
of the Commonwealth’
under the Archives Act 1983 (Cth), s 50A).
[111] See, eg, Freedom of
Information Act 1982 (Cth), 33(a)(i) and (iii); Freedom of Information
Act 1982 (Vic), s 29A(1)(a) and
(c).
[112] Freedom of
Information Act 1982 (Cth), s
4(5).
[113] See, eg, Re
Maher and Attorney-General’s Department (1985) ALD 731, 742, where
Davies J remarked (at [40]) that ‘[i]nternational relations have never
been matters easy to define or to
quantify’.
[114]
Ibid; see, also, Maksimovic v DPP (Cth) [2009] AATA 700, [13]; Re
BUI and Department of Foreign Affairs and Trade [2005] AATA 97,
[18]-[21].
[115] Hogan v
Hinch (2011) 243 CLR 506.
[116] Ibid 535. See, also,
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, 55. Cf Owners of
Ship ‘Ship Kobe Maru’ v Empire Shipping Company Inc [1994] HCA
54, [29]; (1994) 181 CLR 404, 420-421 (‘It is quite inappropriate to read
provisions conferring jurisdiction or granting powers
to a court by making
implications or imposing limitations which are not found in the express
words’).
[117] Hogan v
Hinch (2011) 243 CLR 506, 526, 534. Note, freedom of expression is protected
under s 15(2) of the Charter of Human Rights and Responsibilities Act 2006
(Vic). French CJ in Hogan v Hinch (at 535) also refers to
‘common law freedom of speech’.
[118] DPP (Cth) v Brady
[2015] VSC 246, [24].
[119]
[2014] AATA 180, [34].
[120]
[1980] HCA 44; (1980) 147 CLR 39, 54.
[121]
Courts, both in Australian and in other common law jurisdictions, generally
consider themselves ill-equipped to evaluate risk to
national security in other
contexts (ie public interest immunity claims) and usually rely heavily on the
affidavit evidence of relevant
government officials. See, eg, Alister v The
Queen [1984] HCA 85; (1983-4) 154 CLR 404, 435 (‘Questions of national security
naturally raise issues of great importance, issues which will seldom be wholly
within
the competence of a court to evaluate’, per Gibbs CJ); Church of
Scientology Inc v Woodward (1982) 154 CLR 60 (per Mason J) and 74 (Brennan
J); Council of Civil Service Unions v Minister for the Civil Service
[1985] AC 374, 402 (‘...in any event the judicial process is
unsuitable for reaching decisions on national security’, per Lord Fraser).
See, also, Secretary of State for the Home Department v Rehman [2001]
UKHL 47, [50] (per Lord Hoffmann); R v Halliday, ex parte Zadig [1917] UKHL 1; [1917] AC
260; Liversidge v Anderson [1941] UKHL 1; [1942] AC 206); A v Secretary for the Home
Department [2004] UKHL 56; [2005] 2 WLR
87.
[122] DPP (Cth) v Brady
[2015] VSC 246, [25].
[123]
DPP (Cth) v Brady [2015] VSC 246,
[72].
[124] See, eg, Baker v
Borough of Bethnal Green [1945] 1 All ER 135, where Lord Green MR rejected
an in camera order where the national security grounds were ‘of the
flimsiest description’. His Honour said (at 144): ‘...I
feel
constrained to say that applications for hearing in camera should be
made, and should be made only, on solid reasons; and it seems to me that one of
the dangers of making applications of that
kind is that, gradually and by
degrees, the conception of what is really necessary in the public interest
becomes whittled down until
circumstances which cannot on any serious ground be
considered to be matters of national security come to be regarded by the
Ministry
involved as demanding a secret trial.’
[125] See above nn 51-53 and accompanying
text.
[126] Based on case law
under predecessors to the Open Courts Act: see, eg, Herald & Weekly Times
Ltd v Magistrates’ Court of Victoria [1999] VSC 232; [1999] 2 VR 672; Herald &
Weekly Times Pty Ltd v County Court (Vic) [2004] VSC 512, [19]; DPP v Ho
(Ruling No 2) [2009] VSC 388,
[14].
[127] DPP (Cth) v
Brady [2015] VSC 246,
[24].
[128] Such requests can
be made under the Mutual Assistance in Criminal Matters Act 1987
(Cth).
[129] DPP (Cth) v
Brady [2015] VSC 246,
[64].
[130] Momcilovic v R
(2011) 245 CLR 1, 177 (per Heydon J); Hogan v Hinch (2011) 243 CLR
506, 532-3 (per French CJ). See, also, Australian Law Reform Commission,
Traditional Rights and Freedoms – Encroachments by Commonwealth Law:
Interim Report (2015),
286.
[131] Momcilovic v R
(2011) 245 CLR 1, 46-7 (per French
CJ).
[132] See Sharon Rodrick,
‘Open Justice and Suppressing Evidence of Police Methods: The Positions in
Canada and Australia –
Part One’ [2007] MelbULawRw 7; (2007) 31 Melbourne University
Law Review 171, 186.
[133]
See, eg, Raybos v Jones (1985) 2 NSWLR 47, where Kirby P (as he was then)
said (at 55): ‘Statutory derogation from openness is the exception. In
defence of the rule,
such statutes will usually be strictly and narrowly
construed. Unless the derogation is specifically provided for, courts are
loathe to expand the field of secret justice’ (emphasis added). See,
also, Re Applications by Chief Commissioner of Police [2004] VSCA 3; (2004) 9 VR 275,
288; Herald & Weekly Times Ltd v Magistrates’ Court of Victoria
[1999] VSC 232; [1999] 2 VR 672, 677; ABC v Parish (1980) 43 FLR 129, 133. There is
one exception to this: s 18 (and its predecessors) clearly empowers the courts
to make orders directly binding the ‘world at large’, not just
particular
individuals present in court when an order is made: see above n 59.
[134]
See, eg, Scott v Scott [1913] AC 417, 436-7 (per Viscount Haldane LC);
John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales
(1986) 5 NSWLR 465, 476-7; Ex parte the Queensland Law Society [1984]
1 Qd R 166, 170.
[135] Hogan
v Hinch (2010), [21].
[136]
Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 83
NSWLR 52, 66; John Fairfax Group v Local Court of New South Wales (1991)
26 NSWLR 131, 141 (Kirby P), 161 (Mahoney JA); R v Kwok [2005] NSWCCA 245; (2005) 64 NSWLR
335, 342; R v White [2007] VSC 471; (2007) 17 VR 308, 313. See, also, Andrew T Kenyon,
‘Not Seeing Justice Done: Suppression Orders in Australian Law and
Practice’ [2006] AdelLawRw 8; (2006) 27 Adelaide Law Review 279, 284-6; Butler and
Rodrick, above n 3,
267.
[137] (1991) 26 NSWLR 131,
161.
[138] See James v
Robinson [1963] HCA 32; (1963) 109 CLR 593; c.f. Dupas v Channel Seven Melbourne Pty Ltd
[2012] VSC 486, [10], where Kyrou J said (at [10]) that James v Robinson
was ‘not determinative of this issue’; Channel Seven Adelaide
Pty Ltd v Draper [2004] SASC 351; [2004] 90 SASR 160, 173 (suppression order was justified
under the court’s inherent jurisdiction as protecting the administration
of justice in
the event that the relevant person was charged with an
offence).
[139] R v Rogerson
[1992] HCA 25; (1992) 174 CLR 268, 276 (per Mason CJ).
[140] As to the application of
R v Rogerson [1992] HCA 25; (1992) 174 CLR 268 to the interpretation of the term
‘administration of justice’ as it relates to statutory powers to
make suppression orders,
see Applications by Chief Commissioner of Police
(Victoria) [2004] HCATrans 286 (McHugh J, 10 August 2004). See, also,
Rodrick, above n 132,
451.
[141] Rodrick, above n 132,
452.
[142] [2005] HCA 18; (2005) 214 ALR 422,
425 (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ). The provisions under
consideration were ss 18 and 19 of the Supreme Court Act 1986 (Vic),
which were a replaced by ss 17 and 18 of the Open Courts Act 2013
(Vic).
[143] Ibid
425.
[144] See above n 50.
[145]
The protection of the identities of police informers are considered necessary in
the interests of justice because otherwise ‘sources
of information would
dry up and the prevention and detection of crime would be hindered’: see,
eg, R v Smith (1996) A Crim R 308, 311 (per Gleeson CJ, Clarke and
Sheller JJA). As for blackmail cases, it has been said that derogations from
open justice are permitted
due to the difficulties that ‘may be suffered
in getting complainants to come forward’: R v Socialist Workers
Printers and Publishers Ltd; Ex parte Attorney-General [1975] QB 637, 644,
affirmed in Hogan v Hinch (2011) 243 CLR 506, [21] (per French
CJ).
[146] R v Kwok
[2005] NSWCCA 245; (2005) 64 NSWLR 335.
[147]
DPP (Cth) v Brady [2015] VSC 246, [75],
[77].
[148] DPP (Cth) v
Brady [2015] VSC 246,
[68].
[149] DPP (Cth) v
Brady [2015] VSC 246,
[77].
[150] DPP (Cth) v
Brady [2015] VSC 246, [75],
[77].
[151] DPP (Cth) v
Brady [2015] VSC 246,
[68].
[152] DPP (Cth) v
Brady [2015] VSC 246,
[66].
[153] DPP (Cth) v
Brady [2015] VSC 246,
[66].
[154] See, eg,
Television New Zealand Ltd v R [1996] NZCA 505; [1996] 3 NZLR 393, 397-8; Westpac
Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513,
525.
[155] The identity of the
person or persons who leaked the order to WikiLeaks is subject to an Australian
Federal Police
investigation.
[156] DPP
(Cth) v Brady [2015] VSC 246,
[80].
[157] Furthermore, any
such consequences will not be avoided by appealing to the longstanding rule that
a person who is in breach of an
order, and therefore in contempt of it,
‘cannot take a proceeding in the cause for his own benefit’ (see,
eg, Short v Short (1973) 22 FLR 320; Price v Price (No 2) [1962]
NSWR 819; Hadkinson v Hadkinson [1952] 2 All ER 567; Hobson v Hobson
(1910) 27 WN (NSW) 124; Chuck v Cremer [1846] EngR 924; (1846) 47 ER 820). This is
because the rule does not apply to proceedings for the removal of the
order under which the contempt was committed (Price v Price (No 2) [1962]
NSWR 819, 820; Chuck v Cremer [1846] EngR 924; (1846) 47 ER 820). However, in Westpac
Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513, counsel
for the respondent (Westpac) submitted that the general rule applied where an
order restraining publication of confidential
information was breached by
various media organisations and those media organisations subsequently sought to
have the injunction
set aside on the grounds that their own publications had
passed the confidential information into the public domain. Powell J, having
decided to maintain the order on other grounds, did not deal with this
submission. But, even if the rule were to apply, such a bar
to standing would
likely be ineffective in preventing an application for revocation by a person in
breach given that their identity
as the person in breach is unlikely to
be known or
ascertainable.
[158] It was
also touched on by Kellam J in Australian Football League v The Age Co
Ltd [2006] VSC 308; (2006) 15 VR 419 (at 433) in the context of determining whether
confidential information published anonymously as speculation on the internet
resulted
in it entering the public
domain.
[159] The case in
Australia was ultimately rejected: see Attorney-General (UK) v Heinemann
Publishers Australia Pty Ltd [1988] HCA 25; (1988) 165 CLR
30.
[160] Attorney-General v
Guardian Newspapers Ltd [1987] UKHL 13; [1987] 1 WLR 1248,
1269-70.
[161]
Attorney-General v Guardian Newspapers Ltd [1987] UKHL 13; [1987] 1 WLR 1248, 1277
(Donaldson MR), 1279 (Gibson LJ), 1281 (Russell
LJ).
[162] Attorney-General
v Guardian Newspapers Ltd [1987] UKHL 13; [1987] 1 WLR 1248, 1290-1 (Lord Brandon), 1299
(Lord Templeman), 1303-5 (Lord Ackner); cf 1285-6 (Lord Bridge), 1317 (Lord
Oliver).
[163]
Attorney-General v Guardian Newspapers Ltd [1987] UKHL 13; [1987] 1 WLR 1248,
1299.
[164] Attorney-General
v Guardian Newspapers (No 2) [1990] 1 AC 109.
[165] Attorney-General v
Guardian Newspapers (No 2) [1990] 1 AC 109, 170-1 (Scott J), 224-226
(Bingham LJ), 259 (Lord Keith), 275 (Lord Griffiths), 290 (Lord Goff); cf 197
(Donaldson
LJ), 204 (Dillon LJ),
[166] Attorney-General v
Guardian Newspapers (No 2) [1990] 1 AC 109, 171-2 (Scott J), 196-7
(Donaldson MR), 224-6 (Bingham LJ), 204-5 (Dillon LJ); 276 (Lord Griffiths),
290-2 (Lord
Goff); cf Lord Keith, who rejected that there was any public
interest in granting an injunction and therefore did not feel the need
to
consider the newspapers’ freedom of speech
interests.
[167]
Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109, where Lord
Goff said (at 291): ‘once information relating to national security has
entered the public domain,
I find it difficult to see upon what basis further
disclosure of such information can be
restrained.’
[168] 259
(Lord Keith), 275 (Lord
Griffiths).
[169] See, eg,
Commonwealth v John Fairfax & Sons Limited [1980] HCA 44; (1980) 147 CLR
39.
[170] Attorney-General v
Guardian Newspapers (No 2) [1990] 1 AC 109, 259 (Lord Keith), 266 (Lord
Brightman), 271 (Lord Griffiths); cf 286-289 (Lord Goff). Note, there are other
circumstances
where the duty of confidence has endured despite public
disclosure, see, eg, Cranleigh Precision Engineering Ltd v Bryant [1964]
3 All ER 289; Schering Chemicals Ltd v Falkman [1981] 2 All ER 321. These
cases have been explained on alternative theories. Some argue that
confidentiality is retained due to the information have
a ‘special
significance’ within the context of the confidential relationship (see,
eg, Gurry on Breach of Confidence, [5.40]), while others explain these
cases on the footing that the special significance of the relationship gives
rise of a fiduciary
duty (see Arnold J’s explanation in Vestergaard
Frandsen A/S v Bestnet Europe Ltd [2009] EWHC 1456 (Ch), [56]-[61]; Andrew
Stewart and Michael Chesterman, ‘Confidential Material: The Position of
the Media’ [1992] AdelLawRw 1; (1992) 14 Adelaide Law Review 1,
13).
[171] Attorney-General
v Guardian Newspapers Ltd [1987] UKHL 13; [1987] 1 WLR 1248, 1259 (emphasis
added).
[172] Television New
Zealand v R [1996] NZCA 505; [1996] 3 NZLR 393,
398.
[173] Lewis v Wilson
& Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546, 553.
[174] Ibid
569.
[175] See, eg, Police v
Slater 2011] DCR 6, 31-32, where Harvey J seems to suggest that it does
not.
[176] [2009] EWHC 935
(Fam).
[177] Ibid,
[86].
[178] Ibid,
[87].
[179] See, also,
Attorney-General v Guardian Newspapers Ltd [1987] UKHL 13; [1987] 1 WLR 1248, 1269-70
(per Wilkinson-Browne VC), cited with approval in Attorney-General (UK) v
Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86, 134-5 (per Kirby
P).
[180] Hogan v
Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651, 664
[32].
[181] Bosland and
Bagnall, above n 35, 675, citing
Scott v Scott [1913] AC 417, 435.
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