Kilkenny must act to restore confidence in suppression laws

March 7, 2026 — 5:00am

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“I doubt that many people’s mental health is in good condition after being charged with serious crimes.”

This remark by retired Supreme Court judge Betty King, in a piece she wrote for The Age, goes to the heart of a growing issue in Victoria: the proliferation of suppression orders granted in courts on “mental health grounds” in cases of public interest.

On Wednesday, 10 of the state’s leading media organisations, including The Age, and the Melbourne Press Club sent a letter to Attorney-General Sonya Kilkenny calling for action to improve the open administration of justice. In the letter, media outlets argued that one line in the 2013 Open Courts Act has had unintended consequences and requires a small but significant revision.

That line, in section 18 of the act, states that a suppression order may be made “to protect the safety of any person”. As Robert Clark, who as attorney-general in 2013 introduced the act, has said: “The safety ground for a suppression order was about protecting people from threats of violence or similar, not about claims of psychological distress.”

Yet in recent years, increasing numbers of high-profile defendants are relying on psychiatric evaluations commissioned by their lawyers to argue that “safety” includes the damage to their mental health that would result from being identified as the subject of charges.

A recent example of this is the case involving Tom Silvagni, son of a celebrated AFL family, whose identity was protected for 18 months after his defence team convinced a judge his mental health would be so damaged by publication of his name that he would be unable to properly instruct his lawyers. (That order was lifted after he was convicted on two counts of rape. He is appealing the verdict.)

At the time of the verdict, it emerged that a “how to” document on obtaining this kind of gag on reporting was circulating in the legal profession. One of its three authors was a junior barrister who appeared in the Silvagni case.

An analysis conducted by The Age found that of the 477 suppression orders granted for which the media received notification, 146 were made on safety grounds (about 30 per cent). This includes orders granted to protect both the physical and psychological safety of defendants and other people involved in criminal proceedings. Former attorney-general Clark says this number suggests the law isn’t working as designed.

Kilkenny urged to axe privacy protections for high-profile Victorians

On Thursday, Kilkenny said she was looking “with some urgency” at whether mental health-based suppression orders were being misused, citing the need to respect voices of victims and survivors of crime. While The Age welcomes this news, there is no substitute for action.

We would also note that victims are not the only people denied fairness by the current state of affairs. As senior Age journalist and Press Club president Michael Bachelard wrote recently, the public’s right to know about the work of our courts is vital to ensuring confidence in our justice system – and to ensure change can be called for in an informed way when that confidence is shaken.

At a time when suppression orders are under constant pressure from social media, where rumour and misinformation are rife, the justice system should be reaching out to established media organisations to achieve a more responsible approach to information-sharing.

Instead, as Monash University journalism professor Johan Lidberg, co-author of a report commissioned by the Press Club, told The Age: “The number of suppression orders, combined with deteriorated access to information and court documents, has caused a situation in the main Victorian courts where senior court reporters struggle to do their job in the public interest.”

This is part of a much wider freedom of information issue in this state, which we have repeatedly drawn attention to, where it often takes years to uncover matters the public has a right to know, on subjects from the Ben Roberts-Smith investigation to the Big Build.

These suppression orders also raise questions of equity. As King points out, very few people have the resources to obtain the sort of expert reports that are shielding some of these high-profile defendants. Where there is one court experience for the wealthy and another for those without means, faith in the justice system is at risk of erosion.

Mental health is a real and pressing issue in our society. But if it is to be put before the court as a reason for suppressing information, it is vital such claims are properly tested – King suggests cross-examination of psychiatrists making the assessments – and do not simply rely upon a loophole in the Open Courts Act. Only rarely should they outweigh the public’s right to know.

As the letter from media organisations to Kilkenny says, “the way in which mental health issues impact the judicial process requires a considered and long-term legislative approach”.

I’m a retired Supreme Court judge. Tom Silvagni should not have been prosecuted in secret

Betty KingRetired Supreme Court judge

Retired Supreme Court judge

The Age notes that shadow attorney-general James Newbury shares our concern over the impact of these suppression orders, which means the attorney-general can expect opposition support for changes to the act to clarify the meaning of “personal safety” so that it is limited to physical threats. A collegiate approach is also needed to consider how mental health safeguards fit into the picture and who they should protect.

With more cases of this sort involving high-profile figures in the offing, there is no time like the present to ensure that Victorians have proper insight into the administration of justice in this state.

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