Victoria Leads Australia in Court-Imposed Gag Orders, Raising Open Justice Concerns

Victoria has the sorry distinction of being the national capital for court-imposed gag orders.

The courts and tribunals of that state issue more than half the tally of suppressions for all the other states and territories combined.

A count of these orders is religiously kept by Gina McWilliams, a senior legal counsel at News Corp. Her tally for 2025 totalled 1,226 suppression and no-publication orders Australia-wide.

Victoria, including the civil and administrative tribunal, issued 640 – under the ambit of the Orwellian-named Open Courts Act.

Raw data doesn’t explain the reason for this. Maybe there are simply more applications of this type south of the Murray than in the rest of the nation, or quite possibly the judges in that jurisdiction are more predisposed to keeping proceedings and identities hidden.

Some of that tally would be reduced by subsequent court orders to lift the veil of secrecy – and that would also apply in all the other jurisdictions.

It was not entirely surprising that the accused in a high-profile Melbourne rape case managed to have his identity protected by a county court suppression order.

Quite apart from the case attracting attention in the media and elsewhere, the accused himself was also repeatedly described in news bulletins as a “well-connected Melbourne businessman”.

On Tuesday a jury found him guilty of two counts of rape and one of sexual assault of a former employee visiting his home. An intention to appeal has been flagged by his lawyers – in fact his defence counsel said that his client has been the subject of a “gross miscarriage of justice” and that there was a prospective application to stay the sentencing.

His psychiatrist has given evidence about his mental health. In 2024, after the high-profile individual was charged, she told the court that he had a series of inpatient admissions related to mental distress as a result of being charged and prospectively being identified in the media. A suicide attempt was self-reported.

She had been told by her patient: “If I’m guilty, put it on the front page.” Among many in Melbourne his identity is an open secret.

Clearly, there are balls in the air that are yet to land. Despite the verdict, the suppression order on his identity remains in place to be revisited in court on Monday, where his lawyers could apply to extend the order.

The psychiatrist is expected to give further evidence next week.

This could well be a situation where a person is clinging to their business and social standing, which already has been jettisoned.

The familiar shibboleth trotted out at judicial conferences is that justice is open, the courts have to be seen to be doing their work, otherwise who knows what monkey business judges might get up to.

Yet, like everything else in life, there are exceptions to the rule. Various statutes proclaim that the names of children caught in the cruel machinery of the courts cannot be published, also litigants in family court cases, so too complainants in sexual assault trials, and people afflicted by serious mental health problems.

The judges themselves have the power to dish out suppression or non-publication orders for a variety of reasons, broadly swept up in the “administration of justice”. For instance, reporting of proceedings that could prejudice the fairness of other proceedings are generally forbidden.

When it comes to the shame of being dealt with by the criminal justice system, former high court justice Michael Kirby has said that personal embarrassment should not be a deciding factor to issue a gag order – open justice must prevail.

But it seems exposure, embarrassment and mental health are all closely aligned, requiring great judicial agility to determine the relevant basis for open justice.

Swirling speculation also surrounds the identity of a man whose name has been suppressed by a Cairns magistrate. The online gossip mill tells us that the man is a prominent “Queensland figure” and that his identity was used as leverage by another man to extort a former female partner, who may or may not have been closely involved with the unmentionable “Queensland figure”.

It sounds too salacious for the wider public to be told anything more, for now.

Bruce Lehrmann also got an identity suppression order in relation to two counts of rape before the district court in Toowoomba. His lawyers raised concerns about self-harm if his name was published in connection to the case. His condition was described as potentially “catastrophic”.

However, this did not prevent him engaging with the media in self-serving TV interviews and suing Network Ten for defamation.

Later, supreme court justice Peter Applegarth upheld a decision to reverse an earlier order protecting his identity.

It is not entirely a special area of the law for prominent people who are accused of rape. The Nine newspapers, for example, at the beginning of the year lost a battle for a 50-year suppression order to stop publication of the details of a deed of settlement with a woman who appeared as a witness in the Ben Roberts-Smith defamation case and who accused the former soldier of assaulting her while they were having an affair – something which he denies.

Again, the utility of a mainstream media suppression order is rendered meaningless when the secret gems were out there already on the internet.

It is one of the curiosities of the law that, after very contained and limited reports of the guilty verdict in the Cardinal Pell trial, major Australian media organisations were being prosecuted for contempt while full details of the jury’s decision were published by major international online news organisations.

Members of the legal profession itself are in a rarefied category of judicial protection. In several states and territories misconduct proceedings against lawyers are conducted with their identity anonymised.

Quaintly, this is to protect their professional “reputation”. There is one Sydney barrister who “behaved badly” with a young women at a bar dinner and is enjoying an order to hide his name – the duration of which will see out the lifetime of most living newspaper reporters.

Court suppression applications can be readily thrown around, a bit like confetti. Due to the sensitivities at stake, the reasons for granting them are often shrouded in mystery. There are so many of them made on a daily basis that the media cannot possibly be on hand with submissions to protect the public interest.

Richard Ackland publishes Spilled Ink and the law journal Justinian