Does our Supreme Court hold itself in contempt?
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Does our Supreme Court hold itself in contempt?

If a court can't police its suppression orders, it should ditch them and allow justice to be open.

<em>The Public Sector Informant</em>, December 2018.

The Public Sector Informant, December 2018.Credit:David Pope

The saga of David Eastman has ended – for now. A jury of 12 Canberrans decided last month there remained too much doubt to convict him of murdering ACT police chief Colin Winchester almost three decades ago. Of course, a judicial inquiry had earlier warned prosecutors this would happen, and had found it would be against the public interest to proceed with the trial. Oh well. Maybe the Director of Public Prosecutions, Jon White, will explain his unusual decision one day.

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You can read about the case elsewhere. Let me tell you instead about what you can't read.

The Eastman trial was overseen by a visiting judge, Acting Justice Murray Kellam, who was brought in from Victoria. That state happens to be Australia's suppression-order capital. Its courts have deviated so far from the traditions of open justice that Premier Daniel Andrews was compelled to raise the problem before the recent state election, saying he would change the law "to make it clear that suppression and closed court orders are exceptions to the principle of open justice and should only be made when absolutely necessary".

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So the conduct of the Eastman trial was perhaps unsurprising. In the words of Canberra Times reporter Alexandra Back, who was in court throughout the six-month ordeal: "Closed sessions and various suppression orders knit into a poorly constructed quilt of prohibited communication about various names and incidents tendered during the trial, many detailing the suggestion it was the Mafia behind the killing." Back also points out many of the orders were ancient, and some information marked for non-publication was widely known, having been published in books, online and even made available in public court decisions. Throughout the trial, Kellam also denied standard, and relatively innocuous, media requests to access evidence discussed in court.

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Credit:Fairfax Media

Nonetheless, The Canberra Times, which has published many tens of thousands of words covering the Eastman case, respected the 26 or so suppression orders in place.

Now to The Australian newspaper. A couple of weeks ago, it published a 2000-word feature on the Eastman verdict, headlined: "So, who did kill Winchester?" A good question, but the article breached four of the Supreme Court's active suppression orders. Whether those orders should still exist is beside the point: the court had reminded media to comply with them.

(The newspaper also managed to slip in a statement from Winchester's family saying, in effect, that they believed Eastman was guilty. But I'll leave that separate legal matter for Eastman, the family and The Australian to sort out.)

Back to the breached orders: an innocent mistake, right? Well, one might accept that excuse if it weren't for that newspaper's form. Readers might remember the Informant's long-running campaign two years ago to get the Supreme Court to drop a non-publication order related to the multimillion-dollar sale of the ACT Brumbies' training ground. The suppressed document's contents were described in hearings as explosive and highly inflammatory. The court warned The Canberra Times several times not to publish it. Indeed, our entire office was up-ended when a party to the case insisted on subpoenaing every document we had in which a journalist had mentioned the secret report.

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The Australian? It just went ahead and broke that order, too – twice.

For months, I asked the judge overseeing that case, Richard Refshauge (now retired), why the court had apparently held The Canberra Times to a different standard; why this newspaper was expected to comply with the law while The Australian wasn't. In an apparent response, Refshauge later wrote it was not his role to initiate contempt charges, as the court "does not have an investigative function and has no staff qualified or with powers to undertake any investigation". Which was a bizarre suggestion, as it implies the public is free to breach the court's orders unless someone has a personal interest in policing those orders, and will do the required legwork on the court's behalf.

So what will the nation's most timid supreme court do this time? It's certainly shown in the past it has no stomach for challenging The Australian's contempt for it. If this remains the case, its judges should simply drop their sham suppression orders and let justice be open, as it should be.

Markus Mannheim edits The Public Sector Informant and writes regularly about government.

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