It’s not all about the numbers: no overhaul of suppression orders needed

SALRI's Suppression Order report co-authors, back former Chief Judge of the District Court and Adjunct Professor the Hon Geoff Muecke, SALRI Deputy Director Associate Professor David Plater, Taylor Portelli , Sarak Klimek, Lisa Cooper; front: Olivia Gerhardy, lead author and researcher Jemma Holt, Gemma De Nichilo, Elaine Marinas. (Absent: Yasmin Ilhan.)

After extensive consultation and review of existing laws, the independent South Australian Law Reform Institute (SALRI), based at the University of Adelaide, has found that suppression orders do not need major reform.

SALRI's findings and recommendations are contained in their report Stemming the Unstoppable Tide? An Evaluation of the Role and Operation of 'Suppression Orders' in South Australia, publicly released today, Thursday 2 May.

The major review was completed by lead researcher and author Jemma Holt, as well as former Chief Judge of the District Court and Adjunct Professor the Hon Geoff Muecke, SALRI Director Professor John Williams AM and Deputy Director Associate Professor David Plater.

"There is a strong premise behind open justice and transparency in what happens in the courts, but also longstanding recognition this cannot be an absolute rule," said Associate Professor Plater.

"SALRI's research and consultation highlights that open justice must be carefully qualified in some circumstances such as to protect an accused's right to a fair trial and to protect parties like children or victims of sexual abuse or domestic violence."

The report outlines 17 recommendations to parliament to clarify and improve the use of suppression orders, including changing the terminology from suppression to non-publication orders.

"SALRI proposes simple changes to terminology and record keeping practices which are key to dispelling misconceptions about suppression orders", said Ms Holt.

"This is in line with other states and reflects the fact that these orders don't actually prohibit the disclosure of information, but rather the publication of information.

"SALRI recommends discrete changes to laws and surrounding administration practices as opposed to substantive changes."

A key part of the review centred on the examination of suppression order statistics, with South Australia long criticised as having an excessive use of the laws.

"It's not all about the numbers," said Professor Williams.

"SALRI found that though there are administrative and other issues, there is little to suggest systemic concerns or a culture of secrecy."

Proposed changes target demonstrated issues with suppression orders in practice, including greater protection for children and youths accused of crime, clearer enforcement and holding website administrators liable for content published by third parties in appropriate cases.

The recommendations aimed at the courts focus on better record keeping, improved administration practices, and the introduction of a courts media accreditation scheme.

"SALRI acknowledges that these recommendations do not come without resourcing implications," said Professor Williams.

SALRI also recommends changes to make take down orders more readily available and to make wasted cost orders an available penalty against those who breach non-publication orders.

A take down order issued by the courts requires the publisher, or owner of a public website to remove any prejudicial or restricted material published within Australia within a reasonable time, as set by the courts.

"There is a widespread lack of knowledge and understanding regarding non-publication orders," said the Hon Muecke.

"The more transparency there is about what these orders are and why they are made will serve to dispel much of the controversy that has long been associated with them."

SALRI acknowledges the support of the Law Foundation of South Australia to be able to carry out this project.

"This report draws on SALRI's wide research and consultation," said Associate Professor Plater.

"We would like to thank the many parties who contributed to this project in various ways. A particular thanks to our co-authors and researchers, including the Law Commission of England and Wales and the Law Reform students at the University of Adelaide who took part."

The report is now with the state government for its consideration.

SALRI's Suppression Order review project team former Chief Judge of the District Court and Adjunct Professor the Hon Geoff Muecke, lead researcher and lead author Jemma Holt, Director Professor John Williams AM and Deputy Director Associate Professor David Plater. 

About the South Australian Law Reform Institute

The South Australian Law Reform Institute (SALRI) is an independent nonpartisan law reform body, which utilises the expertise of University of Adelaide staff, graduates and students in reviewing, researching and engaging with interested parties with a view to making recommendations for the modernisation and consolidation of the law. SALRI also draws on the work undertaken as part of the linked Law Reform class.

SALRI, which is based at the University of Adelaide Law School, was formed by an agreement between the Attorney-General of South Australia, the University of Adelaide and the Law Society of South Australia.

Further information about SALRI can be found here.