Victoria’s top law officer says she is working to balance the need for transparency in the courts with the right to a fair trial, after a report warned of a “crisis” in open justice.
But a former Supreme Court judge has defended the system, saying it is psychiatrists providing evidence for mental health suppression orders who pose the biggest threat to transparency, and that while some judges are “dills”, they are outliers in the profession.
The Age reported on Tuesday that a Monash University study, commissioned by the Melbourne Press Club, judged Victoria’s court system to be the least transparent in Australia.
It warned the prolific use of suppression orders had produced a crisis in court reporting, and pressed for an overhaul of the state’s Open Courts Act.
Speaking to reporters, Attorney-General Sonya Kilkenny side-stepped questions about whether the legislation that was introduced 13 years ago needed to be reviewed.
But she repeatedly said that Victoria needed to strike the right balance “between an open court system and a person’s right to a fair trial”.
“We will continue work to make sure that that balance is struck,” Kilkenny said.
She pointed to last week’s announcement that “good character” references would be banned in the state. Good character references are used during the sentencing process to reduce criminals’ jail time.
“We need to make sure that balance is right, and we need to make sure also, as we have clearly demonstrated, that we listen to voices of victim-survivors, and we will continue to do that work,” Kilkenny said.
Chief Magistrate Lisa Hannan, County Court Chief Judge Amanda Chambers and Supreme Court Chief Justice Richard Niall all declined to contribute to the research, and no current judge accepted an invitation to speak at a Melbourne Press Club event, where the report was formally launched on Tuesday night.
Speaking at the event alongside The Age editor Patrick Elligett and Herald Sun editor Sam Weir, former Supreme Court justice Betty King, KC, suggested psychiatrists posed the greatest threat to courts’ transparency, as they wrote untested psychiatric reports, which ultimately led to suppression orders.
King suggested some psychiatrists abused the system, and their reports – along with the legislation that led to mental health-based suppression orders – should be tested in court.
“They write compelling reports, saying, ‘I am treating this person’ … now, you’ve got that [psychiatric] report in front of you, and no one’s contesting it,” King said.
“So, what do you do as a judge or a magistrate?
“The most worrying thing we’ve got to face at the moment is this mental health suppression order. I do think it’s obviously wrong.
“It’s a misinterpretation, and we really need to start looking at the psychiatric reports.”
The Monash study was based largely on interviews with working journalists, and called for urgent steps to repair what researchers found to be fractured relationship between judges and journalists who report from their courts.
King said she was surprised by the findings, and most judges had a lot of respect for journalists. “I really would have thought it’s more outliers. It’s like every profession, you’ve got some dills,” King said.
“What you’ve got to do is remember there’s media liaison officers in all of the courts, and they should be the people that if you’re having problems, you go to them.”
King defended the broader use of suppression orders as necessary to ensure the fairness of the justice system, and avoid mistrials.
The former Supreme Court judge has jokingly referred to herself as the “Queen of suppression orders”, and famously presided over the trial of slain underworld boss Carl Williams.
“This concept that we’re trying to hide everything – we’re not. It’s about trying to ensure that people get a fair trial, and one of the ways we do that is by occasionally a suppression order,” King said.
“There’s no point getting a trial that’s partway through and then aborted because something comes up that is really so adverse that a jury can’t put it aside.”
All decisions made by a magistrate or judge were capable of being reviewed by different levels of the judiciary, so the idea of an external reviewer or commissioner was futile, she suggested.
“Let’s get real.”
Courts Council chair Chief Justice Richard Niall earlier said he was disappointed by the report, which did not reflect the scope of “positive engagement with media by the courts across Victoria”.
It appeared to make no attempt to engage with the legal profession, or consult them about why they applied for suppression orders, he said.
“It contains a number of misleading claims, selective citations and suppression order data which has been debunked as incomplete and misleading,” the judge said.
The Open Courts Act was last reviewed in 2018 by retired Supreme Court justice Frank Vincent who found the number of suppression orders issued had not significantly decreased since the law came into force. He concluded that “more attention needs to be given to the education of judges” about how and when to issue them.
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Chip Le Grand leads our state politics reporting team. He previously served as the paper’s chief reporter and is a journalist of 30 years’ experience.Connect via email.
