Attorney-general considers overhaul of secrecy laws used by high-profile defendants

The attorney-general who wrote the law governing the use of suppression orders in Victorian courts has revealed he never intended it to protect the mental health of people accused of serious crimes.

Robert Clark, the chief law officer who introduced the Open Courts Act 13 years ago under the previous Coalition government, says the number of suppression orders being issued on “safety” grounds suggested the law wasn’t working as designed.

“The safety ground for a suppression order was about protecting people from threats of violence or similar, not about claims of psychological distress,” Clark said.

“The legislation has separate provisions about distress to complainants and witnesses in sexual and family violence cases and about distress to children.”

An analysis conducted by The Age of suppression orders issued last year by Victorian courts found that a “safety” ground – which in recent years has been used by defence barristers to protect the mental health of their clients – was more frequently cited than any other criteria in the act.

Of the 477 suppression orders granted for which the media received notification, 146 were made on safety grounds (30 per cent). This includes orders granted to protect both the physical and psychological safety of defendants and other people involved in criminal proceedings.

The second-highest reason for orders being granted was to prevent a real and substantial risk of prejudice to the proper administration of justice.

Attorney-General Sonya Kilkenny said on Thursday she would consider “with some urgency” potential law changes. This follows a campaign by victims of crime and major media groups in Victoria to tighten the use of suppression orders following the rape trial of Tom Silvagni.

Kilkenny acknowledged that some victims believed the current system was failing to strike an appropriate balance between the right to a fair trial and the principle of open justice.

“Suppression orders should only be used in exceptional circumstances. They should be rare, and they should be really targeted.”

The identity of Silvagni, a scion of a famous footballing family, was shielded from view during his criminal proceedings after a judge accepted publicity about his case would impact his mental health.

The order was lifted after his conviction, which he is appealing.

Jackie Rakov, the treating psychiatrist who provided evidence about Silvagni’s mental state, said her opinion was robustly tested in court and, in her experience, there was a high bar for criminal defendants to convince judges they faced significant harm from being publicly named.

“I think it is widely accepted that publication is undesirable for the accused, but there is a difference between that and material harm,” she told The Age.

“If it is a matter where someone just doesn’t want their name in the paper, I am not going to put forward supporting evidence to say this is going to cause them significant harm. I don’t want to waste their money or my time.”

Australian Lawyers Alliance spokesman Greg Barns, SC, urged caution in any reform of the Open Courts Act. He said in his work as a barrister he had represented clients who were suicidal, including some who had ended their lives before their cases reached trial.

“If there is to be a broader discussion about how suppression orders are working and being made on grounds of mental illness, that’s a discussion that requires considerable thought,” Barns said.

“In my view, the best people to judge that are the courts because they administer justice.”

Kilkenny said she would seek advice about possible changes to the act, including regarding the issuance of suppression orders on mental health grounds.

University of Melbourne Associate Professor Jason Bosland said the act should be “comprehensively reviewed” with particular attention to the provisions used by Silvagni’s lawyers to obtain suppression orders.

He also called for the establishment of a publicly funded, open justice advocate who would provide independent scrutiny of how courts administer the act and, where necessary, intervene in cases on public interest grounds.

Under the Open Courts Act, magistrates and judges may grant orders suppressing a defendant’s identity if it is proven “necessary to protect the safety of any person”.

This legal threshold is increasingly being invoked by high-profile figures – including sportspeople, politicians and lawyers – who argue public identification would pose a significant risk to their mental health or psychiatric safety.

A report by Monash University published this week by the Melbourne Press Club found Victorian courts “frequently and routinely” breached the Act, and the number of suppression orders issued by the courts was threatening open justice.

The study’s findings were rejected by Victorian Supreme Court Justice Richard Niall who said suppression orders were a “tiny fraction” of cases before the courts.

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