“To write this article I applied for a copy of the magistrate’s reasons for decision for the 40-year order for AB. Despite setting out my career experience and my article plan, my application was quickly refused,” says legal columnist HUGH SELBY. 

When making decisions affecting others, the exercise of the power should be the minimum necessary for the circumstances.

How and why it is the minimum needs to be explained by the decision maker.

To fail to explain or to overreach when imposing a decision upon others is to undermine public trust in the source and exercise of that power.

Recent events in Sydney illustrate how easy it is to go awry.

What follows is an example of how open justice (the notion that so far as possible what happens in our courts and tribunals is open to all to see and hear) can be needlessly damaged.

The background is straightforward. Around May 2023 a NSW police officer, member of some special group, is alleged to have got plastered at a couple of work functions, then driven the work car homeward, but crashed it and left the scene. Hence no testing for alcohol.

It is also alleged that their insurance report on the accident omitted to mention alcohol.

Criminal charges were laid last November, just within the six-month limitation period.

The NSW Police then applied in the Local Court (the equivalent of the ACT Magistrates Court) for the identity of the allegedly errant officer “AB” to be suppressed.

Two Sydney Morning Herald journalists pointed out in mid-November that, “AB has appeared in media stories in recent years without police raising any concerns”. So what changed?

There’s an easy-to-follow 2010 NSW Law that covers “suppression”, the Court Suppression and Non-Publications Orders Act (the Act).

On December 1, a magistrate made an order that the identity of police officer AB (by which s/he is to be known) is suppressed, not for a few months, or a few years, but for 40 years.

That’s much longer than the 20 to 30 years claimed for secrecy with federal cabinet documents.

There is a proper way in which these applications are to be made and dealt with. An instructive, short example is the decision last year of the NSW Court of Criminal Appeal in O’Dell (a pseudonym) v R. 

The positive features of this decision are that the background circumstances, the reasons for suppressing the identity of the offender, and the attention to there being “exceptional circumstances” are all clearly set out.

Any court making a suppression order must make clear how the facts and the order are linked so that there is no apparent “overreach” in the order (section 9.5).

Among the reasons (section 6) for making a suppression order are the need to protect the safety of any person. 

The “person” (O’Dell) had given assistance to authorities (ie. implicated others) and was therefore at long-term risk of a revenge attack.

Importantly, the Act states that any order is to operate for no longer than is reasonably necessary to achieve the purpose for which it is made (section 12.2). 

The court in O’Dell fixed a 30-year term. The bases for that period are not disclosed. Hence, we have no way of knowing how “reasonably necessary” it was. That is an omission in the disclosed reasoning.

Two cases demonstrate flaw in the Act

These two 2023 cases, O’Dell in the Court of Criminal Appeal, and AB in the Local Court, demonstrate a flaw in the Act. 

“Media” has a right to appear and be heard on these applications; however, it is unlikely that it/they will have sufficient information to put a good argument.

It is difficult to know how to persuade a court when the court and other side have shared information – such as information handed up by police to the judge – that is withheld from you.

The Act needs to be amended to set up a panel of “contradictors”, that is experienced advocates who can be called on to assist a court about the competing arguments when these suppression applications are made. 

Such “contradictors” need to be able to test and respond to the evidence and the submissions relied upon by police and/or prosecuting authorities. Hence, they need to be cleared to look at secret information.

These “contradictors” must also have a right to initiate an appeal against a suppression order. 

The Act’s list of those that may now appeal is too limited. For example, “any other person with a sufficient interest” may appeal. That phrase does not include well-intentioned busybodies.

To write this article I applied for a copy of the magistrate’s reasons for decision for the 40-year order for AB. Despite setting out my career experience and my article plan, my application was quickly refused. Were I to attempt to appeal the Local Court decision I would expect to fail as having “insufficient interest”. 

Returning to the opening point of this article, what is “necessary” cannot be predicted with any certainty. Orders for 20 or 30 plus years are, on their face, beyond “necessary”. The speculation about an unknowable future is too broad.

The Act, therefore, should specify a maximum period, say 10 years, but permit a fresh application to be made if there are facts to support it.

Legal affairs columnist Hugh Selby is a former barrister. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.