Suppression orders have become a blight on the NSW judicial framework

The revocation of a suppression order protecting the identity of a rapist who terrified women on the north shore during the 1990s and, after a 2020 court decision muzzling the media from publishing his name, indecently assaulted another young woman two years ago, is an important moment in holding courts to account on open justice principles.

The Herald on Tuesday won a legal bid to publicly name Graham James Kay, the so-called North Shore Rapist. Now 73, Kay raped six women and girls and attacked two more victims and was sentenced to 20 years in prison when a judge concluded his crimes were calculated to instil “the fear of death” into his victims. Since his parole in 2015, the NSW government has taken out a series of Extended Supervision Orders designed to help him quietly rejoin society.

But he did not quietly rejoin society. He grabbed and kissed a terrified 16-year-old girl in a supermarket, brought a sex worker to his home in breach of his order and followed a young woman home and groped her. Those crimes of stalking and sexual touching were reported in the media briefly, but crucial details – including the NSW government dropping a “significant restraint” that might have prevented his latest attack – remained secret because of the 2020 suppression order.

The NSW government has serious questions to answer about why an order that helped Kay to re-offend was made. Kay’s ability to remain anonymous is just the tip of an iceberg. The number of suppression orders taken out across Australia has grown like a blight on the judicial framework. In the first six months of this year 467 suppression orders were circulated to the media (although far more were granted). Last year they totalled 1111 and have been mounting steadily since 2017 when 857 were circulated or notified.

And it is a blight. The media can be prevented from publishing names, but the biggest potential victims may be the people of NSW, who are kept ignorant of the identities of rapists, murderers, terrorists and gangsters simply because the Court Suppression and Non-publication Orders Act 2010 does not require courts to explain their decisions or even acknowledge they have been asked to suppress names.

It was not meant to be like this. Legislation 14 years ago granting public access to documents and other court information was supposed to balance the Court Suppression and Non-publication Orders Act. But successive NSW governments have failed to enact the Court Information Act. As a result, suppression orders have mushroomed: the Herald is fighting three times as many suppression cases as defamation cases.

The suppression order fiasco adds to the lack of trust in the courts identified  by Federal Court Justice Michael Lee, who said alienation of Australia’s middle class from the legal system and a lack of affordability for complainants to litigate were indicative of failures of Australia’s justice framework.

The repeated granting of suppression orders to Kay exposes how easily the system can be gamed to keep the people of NSW in the dark. But the sunlight of public scrutiny is a crucial safeguard for the integrity of the court system, and only improves the administration of justice.

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