Justice King suppressed it. Roberta Williams and Judy Moran said she did the right thing The Court of Appeal lifted the suppression, except for Channel Nine, but did its best – successfully – to chill everyone it could from even watching it. And, now, a new censor rises:

Media Release – 29 May 2008 – Statement by the Director of Public Prosecutions Concerning Television Series ‘Underbelly’

A Supreme Court jury today convicted Evangelos Goussis of the murder of Lewis Moran. As a result of the verdict, the orders previously made by Justice Betty King and the Court of Appeal prohibiting the publication of the television series ‘Underbelly’ or any part of it in Victoria cease to have effect.

However, due to there being a number of criminal proceedings pending in Victoria which could be adversely affected if ‘Underbelly’ were to be shown, the Director of Public Prosecutions, Mr Jeremy Rapke QC, today cautioned members of the public and commercial organisations from deliberately publishing any part of ‘Underbelly’ in Victoria. He said that he would take whatever steps were necessary to ensure that accused persons involved in those cases received a fair trial free of any adverse publicity.

Mr Rapke said – “I will not hesitate to take contempt of court proceedings against any person or organisation that deliberately publishes ‘Underbelly’ or any part of it“.

When will the Commonwealth’s Classification Board – the actual censor – join in? (After all, the very first people to call for Underbelly to be taken off TV was the Australian Family Association, who said it breached the Australian Commercial TV Code of Conduct.)

But one of these people is not like the others. That’s right: Judy Moran and Betty King have more in common than their outrageous glasses. Neither of them is bound by the Charter. Nor is the Court of Appeal or the Commonwealth’s Classification Board of the Australian Family Association. But Jeremy Rapke sure is, three times over:

4(1) For the purposes of this Charter a public authority is-

(a) a public official within the meaning of the Public Administration Act 2004; or

(b) an entity established by a statutory provision that has functions of a public nature; or

(c) an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority…

And that changes the rules. Well, this one, anyway:

38(1) …[I]t is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

Now we all know which right is being limited. And there are no Charter-based fig leaves for the DPP. The suppression is aimed (as it always was) at everyone, not just a corporation. And Mokbel was charged after 1/1/7, so Charter s. 49(2) doesn’t apply either. He’ll be the first gangster to have all his Charter rights. And this will be the first gangster proceedings where everyone will be free to use the Charter to the max.

So, was Rapke’s threat – no, scratch that, promise! – to prosecute anyone – every person or organisation – who publishes Underbelly – ‘imparts [that] information and [those] ideas’  – in every circumstance whatsoever lawful? This raises the general question that I addressed in an earlier post: when is it ever OK for a public authority to limit anyone’s rights?  As it happens, this example illustrates both possible approaches to this question.

I’ve previously argued that, in general, the only Charter provison that permits a public authority to limit rights is this one:

38(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

In this situation, this translates as the question: is there a law that means that the DPP could not reasonable do anything but publish the above media release? Now, if we were in continental Europe, then the answer would be clear: the DPP must prosecute anyone who she or he thinks has committed any crime. But we’re not. We’re in Victoria, where prosecutors have a discretion, which they’re supposed to exercise in the public interest. So, the DPP doesn’t have to prosecute anyone.

However, there are at least three Victorian laws that could arguably satisfy Charter s38(2):

  • the DPP’s statutory function ‘to institute… proceedings on an application to a court for punishment of a person for a contempt of court committed… in relation to a criminal proceeding (whether pending or otherwise)’
  • the requirement that the DPP ‘must have regard to- (a) considerations of justice and fairness; and (b) the need to conduct prosecutions in an effective, economic and efficient manner’
  • the combination of Charter s. 38(1) – yes, the conduct mandate – and Charter s. 24(1), the right of all charged defendants to a fair hearing before an impartial court

The crucial question is whether, given these or similar laws, the DPP ‘could not reasonably have acted differently’ than making the media statement above. This requires the DPP to think hard about what reasonable options the law leaves him. And, of course, all the above laws would have to be interpreted by him in accordance with the interpretation mandate.

Doubtless, the DPP couldn’t rule out a prosecution for publishing Underbelly, at least if you buy the argument that a televised recreation of at least some pertinent facts is mysteriously poisonous to rational, independent reasoing. But I struggle to see why the DPP’s only reasonable option is to flat out chill anyone from publishing any of it in Victoria in any context. In particular, I cannot see how the law leaves the DPP with no reasonalbe option but to toinstitute contempt of court proceedings in these circumstances:

  • a pub in Mildura puts on Episode 1 (set in 1995)
  • a Melbourne University class on media law shows some scenes from Episode 10 to better understand the Court of Appeal’s Underbelly judgment
  • some prison officers decide to show the whole series to interested prisoners – all ineligible for jury duty, at least in a gangland war trial (and excluding potential witnesses in a gangland trial) – in Barwon prison

These are, of course, all instances where Victorians, but for the DPP’s warning, would feel free to exercise freedom of speech. None of them could possibly – possibly! – prejudice Mokbel’s trial. Indeed, I can’t for the life of me see how Channel Nine broadcasting Underbelly in its entirety this weekend could prejudice Mokbel’s trial, in light of all the publicitly in recent weeks due to Mokbel’s extradition and Goussis’s verdict. Remember, the issue is whether any leaves the DPP with no reasonable choice but to promise to prosecute in each and every case. This case seems to illustrate what I suspected in this comment was a situation that will often arise in practice and which puts 38(2) front and centre in the development of a Victorian human rights culture. Importantly, it puts the question of whether limiting rights to the extent that a public authority wants to is the only reasonable option the applicable law leaves front and centre.

Alas – for my neat argument anyway – my general claim that s38(2) is the only pertinent rights-limitng option for public authorities doesn’t apply in this situation. The problem is that s15(2) – the right to freedom of expression – has its very own limiting provision:

15(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary- (a) to respect the rights and reputation of other persons; or (b) for the protection of national security, public order, public health or public morality.

Much as I’m convinced that Charter s7(2) phrase ‘subject under law’  limits restrictions on rights to laws, I think it’s much harder to argue that Charter s15(3) is so limited. Instead, all it seems to require is that anything restricting speech (i.e. conduct, such as issuing a suppression order or a proxy press release) be ‘lawful’, ‘reasonably necessary’ and for one of the purposes in (a) or (b). I am, frankly a little dubious about whether an official promise to prosecute ‘without hesitation’ (i.e. without any exercise of individual discretion) is a lawful one for the DPP to make. But, apart from that, the only issue is whether the ban is ‘reasonable necessary’ to serve one of the purposes in Charter s15(3). And, alas, this does seem to be – more or less- the same as asking whether the DPP’s ban is reasonable. That’s a very different question from the one posed by Charter s38(2).

The big difference is 15(3)(b). 15(3)(a), assuming it’s confined to Charter rights, really operates in this context in a pretty similar manner to the interaction of Charter s38(1), s38(2) and s24(1), outlined above. But s15(3)(b) crucially broadens the reasonableness examination to include broader government interests. The DPP, relying on Charter s15(3), may well argue that an overbroad ban – deliberately chilling anyone from doing anything with Underbelly – is a reasonable way of achieving a much narrower goal of fireproofing a future trial of Mokbel against even the slightest chance of a successful stay or appeal. That’s a goal not under 15(3)(a) – Mokbel’s rights – but rather 15(3)(b), i.e. the sound wrapping up of the gangland saga. Once the DPP can set aside what the law requires and instead pursue what one of these more amorphous interests in 15(3)(b) requires, the question just collapses into whether the ban serves the public interest. Thus, public authorities – including the DPP, but not just them – can limit the right to freedom of expression more or less when they think it’s worth doing.

I seriously doubt, of course, that the DPP gave much – if any – thought to his new obligations under Charter 38(2). But, alas, when freedom of expresion is at stake, I don’t believe that the Charter places anything but the gentlest bump in the road of a public authority’s determination to shut everyone up to serve any of the interests in Charter s15(3)(b).

One thought on “Resuppressed

  1. one of your underbelly posts has an automatically generated link to another Underbelly blog. When you go there, surprise surprise, there’s the following message:

    Note: Due to victoria’s ban on underbelly my blog had to be removed

    Maybe they should get a link back to your discussion and reconsider…

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