Balancing Open Justice, the Right to Privacy and Freedom of Expression

XFJ v Director of Public Transport (Occupational and Business Regulation) [2009] VCAT 96 (9 February 2009) The Victorian Civil and Administrative Tribunal has confirmed that society's interests in an individual's rehabilitation can override the principle of 'Open Justice' and the right to freedom of expression.  Herald and Weekly Times Pty Ltd ('HWT') applied to lift an order suppressing the identity of a man who had previously been acquitted of murdering his wife by reason of insanity and had recently been issued a taxi driver's licence.  VCAT declined to revoke the order because publication of the man's identity could adversely affect his rehabilitation.

Facts

In 1992, XFJ was acquitted of murdering his wife for reason of insanity.  He was released from a psychiatric institution conditionally in 1997, then unconditionally in 2003.  In both 1997 and 2003, the Supreme Court of Victoria made orders suppressing the man's identity.

In 2008, XFJ appealed a decision of the Director of Public Transport to refuse XFJ a taxi licence.  In the course of that proceeding, VCAT made orders suppressing the man's identity and closing the case file from public inspection.

In November 2008, the Herald Sun reported on XFJ's attempts to get a taxi licence.  The front page story carried the headline 'Killer Cabbie on our Roads'.  The publisher of the Herald Sun, HWT, applied to VCAT for the suppression order to be lifted.

Decision

Deputy President Macnamara refused to lift the suppression order in light of a number of factors.

HWT argued that the principle of Open Justice dictated that the man's identity should not be subject to a suppression order.  They further submitted that, in accordance with the right to freedom of expression (Charter s 15), the Herald Sun should be allowed to publish the man's name and photo.  HWT argued that the principles of Open Justice and freedom of expression were of primary importance, and should only be departed from in exceptional circumstances.  HWT argued that the order in this case was not 'necessary' and did not did not justify departure from the paramount principles.  Furthermore, the taxi licence application had been determined, therefore publication of the man's identity would not adversely affect either party's interests in that application.

HWT also argued that XFJ had been in good psychiatric health for many years, therefore his rehabilitation would not be adversely affected by the publication of his identity and any related publicity.  The Deputy President held that this argument was unconvincing and ironic, since HWT had only recently labeled XFJ an 'insane killer' on the front page of its largest circulating daily newspaper.  The Deputy President said that HWT's 'sensational reporting ... laced with emotive language and replete with inaccuracies, describing him as 'insane' and as 'a murder' has the capacity to set back his rehabilitation for years'.

VCAT held the public's primary interest in this case was in the man's rehabilitation, and his return to society as a useful citizen.  Any publication of the man's identity might adversely affect his rehabilitation, and therefore would not be in the public's interest.  The public interest in the man's rehabilitation justified the departure form the principle of Open Justice and limitation of the right to freedom of expression.  It was relevant that the man had never been convicted of a crime, had a recent history of good mental health, had been working in the aged care industry without incident, and that the Supreme Court had also made order suppressing the man's identity.

HWT also argued that potential taxi passengers have a right to know the man's identity.  VCAT held that this was not a human right, and was outweighed by the public's interest in the man's rehabilitation.

Application of the Victorian Charter

The Deputy President contrasted the freedom of expression in s 15 of the Charter with the United States' Free Speech clause in the First Amendment.  In the US, free speech is an overriding right which trumps other rights.  In contrast, there is nothing in the Charter which indicates that the right to freedom of expression should trump other rights.  In fact, the right to freedom of expression is expressly subject to lawful restrictions.  As such, the right should be balanced against other rights and considerations.  VCAT's power to grant suppression orders under the Victoria Civil and Administrative Tribunal Act 1998 is a 'lawful restriction' which can limit the right to freedom of expression.

Additional matters relating to the Charter but not explored in the reasons include:

• According to s 24(3), decisions should be made public unless 'the best interests of a child otherwise requires or a law other than this Charter otherwise permits'. In this case, the decision was made public but XFJ's identity was withheld, such order being made under the VCAT Act. In addition to the factors discussed above, there was also some suggestion in this case that the best interests of the man's child should prevent the suppression order being lifted. This matter was not determined since VCAT held that the public interest in the man's rehabilitation alone justified the suppression order.
• The right to privacy and reputation is enshrined in s 13 of the Charter. In this case, there is a question as to whether publication of the man's identity would unduly interfere with his right to privacy and reputation. VCAT highlighted the fact that the Herald Sun had published that the man was 'a murderer' despite the fact that the man had never been convicted of a crime. Arguably, such 'sensational reporting ... replete with inaccuracies' would amount to an unlawful attack on the man's reputation. As such, the right to privacy and reputation would tend to support continuance of the suppression order.
• Section 8 provides that each person is entitled to the equal protection of the law without discrimination. Accordingly, XFJ has the same right to any Charter protections as any other person, notwithstanding the fact that he had previously been acquitted of a crime due to what was at the time the equivalent of mental incapacity.

The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/96.html.

Helen Conrad is on secondment to the Human Rights Law Resource Centre from Mallesons Stephen Jaques