Growing hostility between media, judiciary impacting open justice
A new report warns that growing hostility between judges and the media and the failure of laws designed to keep courts open to public scrutiny are making Victoria’s court system the least transparent in Australia.
The study, by Monash University researchers commissioned by the Melbourne Press Club, warns that the overuse of print orders and deteriorating public access to court documents is creating a “crisis” in court reporting that threatens the fundamental principle of open justice.
The report calls for an overhaul of Victoria’s Open Courts Act (OCA) – legislation introduced 13 years ago to limit the use of restraining orders – and urgent steps to repair the broken relationship between judges and journalists reporting from their courts.
The report’s authors concluded: “The limitations of conducting public interest news journalism in Victoria are now so severe that journalism’s critical role of holding powerful institutions and individuals to account is under serious pressure.”
“The report found that Victorian courts frequently and routinely breach the OCA with impunity. This is serious and could undermine the doctrine of natural justice on which the legitimacy of the courts depends. Courts are supposed to uphold the law, not break it.”
The report, prepared by Monash University Associate Professor of Journalism Johan Lidberg and senior lecturer Alicia McMillan and based largely on interviews with working journalists, also examines the state’s “broken” Freedom of Information system and access to information through police and political reporters.
Among the journalists interviewed were senior reporters. Age, Guard And ABC.
Lidberg said he was struck by the “despair” in the statements of court reporters whose work had previously been recognized by the courts.
In this article, he said, “The relationship and communication between the judiciary and the media has broken down.” “The public is not served well by having a distance between the media and the courts.
“Court reporters used to be viewed as part of the open justice doctrine. Now they feel like they’re not and are actually viewed as the enemy.”
Chief Justice Lisa Hannan, District Court Chief Judge Amanda Chambers and Supreme Court Chief Judge Richard Niall declined to contribute to the research, and none of the judges present accepted an invitation to speak at a Melbourne Press Club event where the report was to be formally launched.
Niall issued a statement on Monday defending the “significant and daily” interaction between the courts and journalists and expressing disappointment with the report.
“It contains a number of misleading allegations, selective quotes and restraining order data that have proven to be incomplete and misleading,” the judge said.
editor AgePatrick Elligett, messenger of the sun editor Sam Weir and former Supreme Court justice Betty King will discuss the report’s findings at Tuesday’s launch.
The state’s Director of Public Prosecutions, Brendan Kissane, RoC, rejected two of the report’s key findings: that Victoria issues more suppression orders than other jurisdictions and that judges misapply the law.
He said the number of suppression orders issued would not be an issue if each one was necessary.
“It is not clear that Victorian courts have issued a greater number of suppression orders compared to other Australian jurisdictions,” Kissane told researchers. “No evidence was presented that the courts did not apply the criteria appropriately.”
The report claims that almost half of all restraining orders in Australia are issued by Victorian courts. This is based on previously published data compiled by News Corp lawyers showing restraining orders granted in every jurisdiction in 2023.
Figures show that of 1,113 suppression orders, 521 were issued in Victoria, 133 in NSW and 38 in Queensland.
Melbourne Law School Associate Professor Jason Bosland, an open justice advocate whose research led to the introduction of the state’s Open Courts Act, agrees there is a serious problem in Victoria and that the law has failed to achieve its fundamental purpose.
He also says the data on which the report is based is flawed because it only covers orders where the media was briefed, not all restraining orders issued by the courts. South Australia is the only jurisdiction that requires all restraining orders to be notified and reported annually.
“To present this as the overall number of suppression orders issued in Australia is fundamentally misleading,” Bosland said. “The idea that Victorian judges were more inclined to make orders based solely on the numbers we have doesn’t hold water.”
Lidberg acknowledges that the data is controversial and likely underestimates the actual number of restraining orders issued.
“The worst case is neither here nor there,” he said. “The crux of the matter is that a large number of restraining orders combined with reduced access to information and court documents has led to a situation in Victoria’s main courts where senior court reporters are struggling to do their jobs in the public interest.”
Melbourne Press Club president Michael Bachelard said the study confirmed that “secrecy, oppression and distortion have replaced openness and disclosure in many of our institutions”.
The Open Courts Act was last reviewed in 2018 by retired Supreme Court judge Frank Vincent, who found that the number of restraining orders issued had not decreased significantly since the law came into force. He concluded that “more emphasis should be given to the training of judges” on how and when decisions are made.
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Chip Le Grand leads our state politics reporting team. He had previously served as the newspaper’s chief correspondent and was a journalist with 30 years of experience.Connect via email.
