Suppression orders and lawyers’ arrogance undermine democracy

Australia has a major problem with transparency and accountability. The electorate increasingly believes power in Australia is used to serve special interests rather than the national interest, to benefit those with money and influence rather than the community, and that power is wielded to this end behind closed doors, out of sight, beyond scrutiny.

The lack, until now, of a federal anti-corruption body, the lack of proper oversight of our frighteningly powerful security agencies, the lack of anything like a credible political donation disclosure system or lobbyist regulatory system, all suggest voters are right to worry about the misuse of power.

Australia’s courts are part of the problem in this regard. At the moment, the Commonwealth is engaged in a desperate effort to cover up the illegal bugging of the Timor-Leste cabinet by demanding the prosecution of Witness K and Bernard Collaery be undertaken in secret, on the basis of “national security”. The court may very well allow this cover-up to proceed, which would prevent the media from properly reporting a malicious prosecution designed to punish two people who have committed the crime of embarrassing the Australian government and both major parties.

But the situation is particularly bad in Victorian courts, which show a reflexive resort to the use of suppression orders. The draconian nature of suppression orders mean they should be a last-resort tool used only in extremis; the justification for censoring the media, silencing public discussion and threatening with jail anyone who dares express a view about a matter before the courts — or documents relating to such a matter — should be compelling. Instead, Victorian courts seem to see suppression orders as a routine tool in their administration of criminal justice.

But it is more than just suppression orders. While the left revelled in the fate of government ministers Alan Tudge, Greg Hunt and Michael Sukkar when they criticised Victorian courts and were threatened with contempt of court, it was the behaviour of the court that was an outrage, not that of the ministers. They had merely accurately noted that there appeared to be a real issue around the willingness of Victorian courts, and its wider criminal justice system, to properly protect the community. For that outrage, they were made to apologise to the court.

The recent case of the murderer Hassan Khalif Shire Ali, who had repeatedly ignored court dates without judicial or police action, suggests Tudge, Sukkar and Hunt, however clumsily they may have expressed their concerns, had a point. Maybe if Shire Ali had criticised a judge, instead of simply not showing up to court, he would have been locked up before committing his act of terror.

Suppression orders and this kind of lawyerly arrogance infantilise the community. They are based on the bizarre notion that only lawyers, magically, can engage in the kind of rational consideration of evidence that the criminal justice system requires; that juries are irrevocably tainted by knowing basic information about defendants that lawyers tell themselves they shouldn’t know; that community faith in the legal system is so fragile it can be undermined by a politician — a profession regarded with far greater contempt than the court system — expressing a critical view.

Moreover, suppression orders are evermore at odds with the simple reality of modern news media and the borderless nature of the internet. Rather than adjust to the 21st century, the legal industry in globally trivial jurisdictions like Victoria instead tries to assert global dominion, making itself a laughing stock.

All this will enrage lawyers and particularly criminal lawyers, who will insist that defendants’ rights, and community faith in the justice system, are so weak that only the most draconian restriction on basic rights of free speech, and a free press, can protect them. Instead, suppression orders undermine exactly that very faith, and appear to confirm that power in Australia is about the exercise of influence in secret, to serve special interests, rather than the community’s.

If the legal industry truly believes it serves the community well, it should be happy to allow sunlight into its activities, rather than reflexively hide them behind threats to jail journalists and politicians.