Opinion: An Australian Court issues a “gagging order” which is being called an “abuse of process”. Fair assessment or not?

Posted: July 31, 2014

An Australian court has granted an injunction to prevent the publication of bribery allegations involving a number of senior international political leaders. There has been outrage expressed by some, see for example

Guardian

Russia Today

Daily Mail

The media are reporting that the Judge made such a “Draconian” court order:

to prevent damage to Australia’s international relations that may be caused by the publication of material that may damage the reputations of specified individuals who are not the subject of charges in these proceedings.”

But is this really the only reason, as is being hinted at, or is the court order much more nuanced and balanced, in that it tries to weigh the competing rights, allow for proper investigation and appease the media at the same time?

You can probably decide for yourself because the Guardian has printed a redacted version of the Injunction here

On closer look however the Order applies only throughout Australia, and yes it is to prevent unnecessary damage to international relations, but it has also been deemed necessary to prevent “a real and substantial risk of prejudice to the administration of justice”, and, to prevent “prejudice to the interests of [Australia] in relation to national security”.

The Order clearly states that it does not prevent disclosures to “[Australian] officers” or “international investigators, international prosecuting authorities and other like international entities”. It does not prevent “provision by the Court to registered media organisations….. of transcripts and exhibits” or to the Australian “Director of Public Prosecutions”.

Furthermore, it applies for a period of “5 years” only unless the order is revoked sooner. And here is the ultimate qualification, there is “liberty to apply” to set aside or qualify the order. 

So the question is whether it is really excessive and Draconian, or this is yet another example of distorted coverage? Now of course I don’t know all of the background details but surely there is something to be said for the protection of individuals (those who are not on trial – at least yet, and, those who cannot defend themselves in court – as they are not present) from being dragged through the mud in open court (with absolute and qualified privilege), before such time as there is a truly valid reason for going public?

 

Gideon Benaim from the Reputation Protection team at Simkins