I’m going to tackle this in more depth a little later. But the other day I was shown (Hat-tip Izen) the existence of something called super-injunctions, of which prior till now I’d been blissfully ignorant. It’s important enough to call you all round today for a discussion on it.
We’ve all been aware of gag orders in the past. Basically, the court imposes an injunction on reporting or disseminating material on something or other. There can be some quite legitimate reasons for a court to do so. National security, intelligence and military matters in which the public release of certain information poses a real risk to the lives of soldiers and others is a good example. Courts often impose gag orders surrounding criminal cases of a sexual nature, where there is a reasonable supposition that the accused, even if acquitted, will suffer permanent damage to his or her reputation, or the reputations of other innocent parties are similarly imperilled.
The press have always resisted such orders, and while generally complying, have always sought to let it be known there was something they were being compelled to comply with—a point to which I’ll be returning in a moment. In 1944, Australia’s wartime Chief Censor, Garrett Bonney, with the support of Information Minister Arthur Calwell (later leader of the parliamentary Labor Party) suppressed the reporting of widespread coal strikes, which were being largely driven by communist elements within the union movement and which threatened Australia’s war effort. Newspapers complied but defied suppression requirements by printing large blank spaces on the front page. Calwell initially responded with force, using the police to physically prevent distribution of newspapers. The Australian public responded with overwhelming support of the press, forming long queues to buy newspapers and subvert Calwell’s orders. My mother, a teenager at the time, recalls the censorship surrounding the Japanese bombing of Darwin in February 1942, which she did not read about until the end of the war.
In Britain in 1963, Special Branch and MI5 officers became aware that the Macmillan government’s Secretary of State for War, John Profumo, was engaging in a clandestine affair with callgirl Christine Keeler, whose simultaneous paramours included Yevgeni Ivanov, a naval attaché with the Soviet embassy in London. While the affair became common knowledge on Fleet Street, reporting of the issue at the time was almost non-existant, beyond a few coy juxtapositions of articles covering unrelated issues concerning the principal actors.
A so-called super-injunction is something else again. In Britain this year, courts have issued injunctions, not only suppressing certain facts or details of court cases, but of even reporting the fact that an injunction exists at all. The best-known example concerned the case of oil trading company Trafigura, and a toxic chemical spill off Côte d’Ivoire. The defendant obtained an injunction, not only suppressing an internal company report concerning the spill that had found its way onto the internet, but of even reporting the fact of the injunction. Outraged citizens went to their Members of Parliament, who quite correctly raised the issue in the Commons under parliamentary privilege. It is a centuries-old convention that parliamentary proceedings may be reported freely and without hinderence; thus the super-injunction was subverted. To head off an inevitable showdown between contempt of court and contempt of parliament, the court hurriedly varied its injunction to permit reportage of itself.
This has not stopped the totalitarian-minded, who have countered with the concept of a hyper-injunction. Those of you who at this point sense that I am struggling to contain my Libertarian outrage, you are quite correct, and bear with me. The mere term hyper-injunction triggers my own gag reflex—pun most definitely intended. For those of you who, like me, were unaware of the term, a hyper-injunction is a move on the part of a court seeking to circumvent parliamentary privilege over-riding a super-injunction, as happened in the Trafigura case. A hyper-injunction not only prevents reporting of the fact of the injunction itself, as in super-injunctions, but orders the injunction may not be made known to, or discussed with, journalists, lawyers, and—above all—Members of Parliament.
I am not making this up. We’re getting into secret trials territory here. This is real, exists today in the legal system of the United Kingdom, and unless enough of us get outraged, will probably infect the legal systems of your country and mine in the not-too-distant future. That a court of law in a Western democracy could arrogate to itself the power to prevent a citizen discussing anything with his elected representative in parliament is beyond appalling. Gob-smacked doesn’t even come close. Ladies and gentlemen, this issue strikes at the very heart of the concept of a liberal society. Wars have been fought, revolutions raised, over far less than this.
I’m so angry about this right now that I’m going to preempt an article I’m currently writing about codifying rights. It is my opinion that the only way a Bill, or Charter of Rights can exist, such that a court, referring to it, may declare a law of parliament it deems in its breach, while still locating ultimate power in a popular mandate, is if we move to the system that has existed in some American states: an elected judiciary, accountable directly to the people—a concept itself fraught with peril. If we are to permit our courts to have this level of power, then it is no good having judges whom we cannot sack, appointed directly or indirectly by politicians, who may be long gone by the time those judges exercise power to which we object. So too with this insane concept of super-injunctions and hyper-injunctions. It’s that simple.
I’ll tell you something else: I strongly suspect that, in this matter, we will find common cause with many of those with whom we may have locked horns on environmental and other subjects. This truly is an issue that transcends any left-right divide. It is Liberty versus Authority—pure and simple.
I’ll leave you with that thought. I’m going outside with my axes, for I feel the need to work off some steam. But I’ll also leave you with this amusing snippet from the world of free speech:
On May 10, WikiLeaks founder and whistle-blowing head honcho Julian Assange was awarded the Sydney Peace Foundation’s gold medal for his “exceptional courage in pursuit of human rights”.
A few days later a newly leaked internal contract revealed that Assange requires employees to sign a pledge not to disclose any of the organisation’s classified information. Failure to comply, says the contract, will lead to a pound stg. 12 million ($18.5m) fine.
I’ll check in again a little later.