Illustration: michaelmucci.com
I hear there’s rumours on the, uh, internets – George W. Bush, St Louis, Missouri 2004.
”The Decider” was onto this newfangled ”internets” thingamijig early in the piece. Many in Australia’s esteemed legal fraternity however are not so internets savvy, as evinced by George W. Brandis’ wrestle with the concept of metadata this week.
It’s tricky stuff. The ”dark dungeons of the internet”, as George W. Bush dubbed them, have been playing terrible havoc with our diplomatic and judicial corps.
On June 19, Justice Elizabeth Hollingworth of the Supreme Court of Victoria handed down a suppression order that gagged the press, and anybody else, from reporting details of a case concerning alleged bribes paid by agents of the Reserve Bank of Australia to officials in south-east Asia.
This was a tight suppression order, stopping all and sundry from discussing its contents. It had, alas, the opposite effect.
The document was soon on WikiLeaks, where it was posted, tweeted and retweeted around the globe. As it listed a retinue of high-ranking officials in Malaysia, Vietnam and Indonesia, this was big news. Except in this country, where the media were bound by the terms of the order and open to contempt of court proceedings for any breach.
Still holed up in the Ecuadorian embassy in London, WikiLeaks founder Julian Assange demanded to know why Foreign Minister Julie Bishop (the order was sought by the Department of Foreign Affairs) was ”threatening every Australian with imprisonment in an attempt to cover up an embarrassing corruption scandal involving the Australian government”.
If the orders had sought to head off a diplomatic embarrassment for Canberra and its Asian neighbours they backfired with flair.
By Tuesday this week, Indonesia’s President Susilo Bambang Yudhoyono was demanding ”full transparency”.
”We want to hear directly from Australia,” said Yodhoyono, who then took to Twitter to demand there should be no ”cover up”.
Being lectured by the Indonesians on open justice was no joke. The Australian government rushed out a statement explicitly denying that Yudhoyono or his predecessor Megawati Sukarnoputri were involved in the scandal.
”This is a long-running, complicated case which names a large number of individuals,” the statement read. ”The naming of such figures in the orders does not imply wrongdoing on their part.”
Yodhoyono and others can be forgiven for wondering what sort of show we are running down here. Already upset by revelations that he and his wife had been spied on by the previous regime in Canberra, now he’s embroiled in a cover-up by their incumbents.
The diplomatic damage is one thing, the implications for free speech and Australia’s democracy another. Hollingworth is a highly regarded judge but she is also part of an encroaching culture of secrecy.
Suppression orders in the Victorian courts are running at a rate of almost one a day. Contemplate these numbers from newspaper lawyers:
”Our records indicate that from August 7, 2013 to date [that is, the past 12 months], there have been approximately 352 suppression orders made [in Victoria].
”For just the period of January 1, 2014 to date, there have been approximately 218 suppression orders made. Some of these would have been varied or revoked by now.”
This from another media lawyer: ”My figures are 215 notifications of suppression orders from Victoria and 31 from NSW. That is from January 1, 2014 to date.”
One justification Victorian judges make for their gag orders is that they reduce the number of prosecutions of the media for contempt (for breaching gag orders). Such prosecutions though are very rare – in NSW perhaps a handful in the past two decades.
There can be valid reasons for gag orders – in the event, for instance, where jurors in a criminal trial may be unduly swayed by evidence in another case.
Transparency though ought to be the rule rather than the exception, particularly now things can be posted online in other countries with impunity and accessed here with the ease of a keystroke.
In the old days, media organisations were happy to send lawyers down to the courts to challenge gag orders. Now they contend with smaller budgets, this is not often the case.
As the courts remain stranded in a bygone era – ”Sorry, you will have to write a letter to the chief justice before we can attend to your request for [public] information and you can come down to the registry and collect it once such-and-such gets back from holidays” – the world has moved on.
WikiLeaks has 2.32 million followers. Its alerts on the super-injunction were retweeted 1656 times on July 29 alone. Links and hyperlinks to the order, articles naming south-east Asian officials and other infringing content were retweeted 3820 times on that day alone. This doesn’t count retweets of retweets or the dozens of articles since published in the international press.
Without an informed public, democracy cannot function. While the judiciary dithers in arcane process, the executive is pondering increasing freedom of information charges. Meanwhile, the ever-swelling ranks of corporate lobbyists have ever greater access to and influence over politicians. Political donations are as disguised and sneaky as ever.
It’s time people reminded their elected representatives, not to mention the bureaucracy and the judiciary, that they are funded by the taxpayer dollar and ought to be publicly accountable for their actions and transparent in their decisions.
Michael West established Michael West Media in 2016 to focus on journalism of high public interest, particularly the rising power of corporations over democracy. West was formerly a journalist and editor with Fairfax newspapers, a columnist for News Corp and even, once, a stockbroker.