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Here's Why We Can't Report On That Story You Want To Read

You might have heard of very high-profile court proceedings occurring in Australia recently.

While the story has been reported by international media outlets, and splashed across your Facebook and Twitter feeds, there are virtually no details about it in Australia's largest and most reputable mainstream media outlets.

There's a very important reason why.

It's not because we don't want to report it. It's not because we are ignoring it, or that someone has ordered us to pretend it hasn't happened.

We'd like to tell you what happened, instead of speaking in riddles, but our legal system -- specifically, the legal system of one Australian state -- forbids us from telling you.

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We can't even tell you why we can't tell you. But it raises a question:

"How much are we entitled to know about the workings of our criminal justice system?"

Far less than most people would like, it seems.

The details of this case have been kept secret by court suppression orders, a binding legal restriction that prohibits media outlets from reporting specific details of a case.

In some instances, this is about protecting victims of heinous crimes, like children or sexual assault victims.

In others, suppression orders are imposed by judges worried that reporting details of a case may impact on the ability of the accused to have a fair trial, with fears that a jury may be prejudiced by media reporting.

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"The court is saying to the jury 'your job is to focus on this case, what they've been accused in this occasion and nothing else'," Dr Joseph Fernandez, associate professor of journalism at Curtin University, told 10 daily.

"Suppression orders have a role to play in our society, even though we subscribe to a system where we uphold very strictly the principle of open justice.

This is where the opposing interests, of openness and transparency against protecting vulnerable people, come into collision and clash."

Suppression orders restrict what journalists can report about certain cases, and when we can report it.

Fernandez said suppression orders can even stay in force, blocking or limiting reporting on a case, long after a case had been decided and a verdict handed down.

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"This can possibly be because the court feels there is some distance to go before this person is fully judged, or there are still pending matters, and that there is a danger that person cannot get a fair trial in outstanding matters," he said.

But suppression orders are local, and the sharing of information knows no boundaries.

Many Australian news audiences may be frustrated that they have seen reporting of a certain issue on international outlets or on social media, while their local go-to source of news is quiet on the issue.

This is because suppression orders issued by a state court can't reasonably apply to overseas or social media.

"Our suppression order system is a pre-internet phenomenon.

It’s absurd to think an order is going to stop people learning what the information is that the judge has suppressed," said Mark Woods, a former president of the Law Institute of Victoria and chairman of the Access to Justice Committee of the Law Council of Australia.

He said it's no criticism of the judge or media, it's a statement of fact.

"The proposition that we can now claim that because of a suppression order, that a future jury wont be influenced by media attention including social media, is just nonsense."

"That's a worry."

The current system is outdated and "overcautious", said Julie Posetti, an Australian journalism academic and senior research fellow at the Reuters Institute for the Study of Journalism at Oxford University.

"It assumes juries are only able to be impacted by traditional media, as distinct to backroom conversations and back channel conversations on social media," she told 10 daily.

"People are influenced just as much by peer-to-peer conversations. We’re dealing with a degree of anachronism, and there is a need for review and transformative conversations to take place."

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Victoria recently undertook a review into suppression orders, with retired judge Frank Vincent finding that even though these orders gagged traditional media, there was little courts could do to police discussions online.

He called for reforms to the system to reflect "real world" concerns and circumstances.

The review found nearly 1600 suppression orders had been imposed in Victorian courts between 2014 and 2016.

Posetti claimed Australia's current system for suppression orders could not effectively deal with "explosive" international ramifications.

She says the framework effectively stops local journalists from reporting the news while placing no such restrictions on international or online outlets, or indeed normal citizens on social media.

"There's no capacity to block whole social networks. Think how hard it would be to track every person’s friends and followers," she said.

"I expect this is the case that will bring this into sharp focus. As well-intentioned as the order may be, it’s just not achievable in the global sphere we occupy."

Woods concurred.

"The law, as it stands, doesn't do what it sets out to do," he said.

Contact the author jbutler@networkten.com.au