
Australian Gag Order Stokes Global Debate on Secrecy - my_first_acct
https://www.nytimes.com/2018/12/14/world/australia/australia-gag-order-court.html
======
lysp
Australian newspapers are actually getting a bit creative in relation to this
case due to the profile of the person.

On the day of the conviction, they released online articles about "suppression
orders".

\-----

* [https://www.theage.com.au/national/victoria/why-the-media-is...](https://www.theage.com.au/national/victoria/why-the-media-is-unable-to-report-on-a-case-that-has-generated-huge-interest-online-20181212-p50lta.html)

* [https://outline.com/jVdYJr](https://outline.com/jVdYJr)

# Why the media is unable to report on a case that has generated huge interest
online #

> A very high-profile figure was convicted on Tuesday of a serious crime, but
> we are unable to report their identity due to a suppression order.

> The person, whose case has attracted significant media attention, was
> convicted on the second attempt, after the jury in an earlier trial was
> unable to reach a verdict. They will be remanded when they return to court
> in February for sentencing.

\-----

The article then goes on about suppression orders and how Google Trends for
the person's name increased on the day of the trial.

So anyone who is internet-savvy would be able to figure out who it was.

~~~
onetimemanytime
>> _A very high-profile figure was convicted on Tuesday of a serious crime,
but we are unable to report their identity due to a suppression order._

Pell Online has the name, I think :) .

So stupid these orders, trying to change the truth.

~~~
enriquto
> So stupid these orders, trying to change the truth.

These euphemisms are getting ridiculous. The person is cardinal George Pell,
who has been convicted of sexual abuse (after an unanimous guilty verdict by
the jury). He is the highest ranking member of the Catholic Church ever to be
convicted as a sex offender.

------
simonblack
Pell is involved in two separate trials. Until the second trial is completed,
the gag suppresses news on the verdict in the first trial.

Without the gag, it's very unlikely that it would possible to obtain a
conviction against Pell in the second trial.

Once the second trial is over, both verdicts are able to be discussed and
circulated as news.

~~~
ShorsHammer
Something I'm clueless about, but why aren't jurors allowed to know prior
convictions? That seems like highly relevant information. If a person has
robbed ten banks before why not tell the jury in the trial for the eleventh?

Sure if a person had a multitude of driving convictions in a child abuse case
I can understand the court denying it as irrelevant, but that isn't what's
happening here.

~~~
jstarfish
This question gets asked a lot.

Prior criminal history isn't relevant at all to a criminal trial. Just because
he robbed 10 banks before doesn't mean he robbed _this_ one. It's prejudicial
and really problematic any time a repeat offender is on trial-- the mentality
becomes "well, the evidence is weak and nobody saw him do it, but he must be
guilty...he's a criminal!"

Convictions are supposed to be made after considering the facts of the case as
presented, not speculation based on past behavior.

~~~
Rainymood
I totally agree with your point and I'm setting a dangerous precedent by
arguing the point I'm going to argue for in a second. Please note that I am
fully against what I'm going to argue now but I'm going to argue it for the
sake of playing the devil's advocate.

That being said ...

>Convictions are supposed to be made after considering the facts of the case
as presente

The fact that someone robbed 10 banks is a fact. You're literally witholding
(relevant) facts from the case.

How is a person's history not a fact? I mean, the robbery happened in the
past, which is also a fact. How are the two different.

So we rob a bank at T=10, Imagine that person robbed a bank at T=1, not
relevant, what if person robbed a bank at T=2, T=3, .. etc. Even if we rob a
bank at T=9.999... it is suddenly not relevant anyore?

I realize the absurdity of the point I'm making but how is previous crime not
a valid feature? If we train a machine learning algorithm to predict
guilty/not guilty (I'm going into dangerous territory here, I realize this)
and the training set contains criminals that are repeat offenders, wouldn't
"repeat offender" get a high feature weight in say a random forest?

~~~
lincolnq
Indeed, a prior conviction raises the Bayesian probability of a given suspect
having committed a similar crime. In probability terms, the prior probability
of suspect S having committed crime Cn, given that they committed crime C0,
C1, etc., is certainly higher than without that information.

But how much higher? Given 8 billion people in the world, the priors are quite
low for any given person P having committed any particular crime Cn. On the
other hand, humans (including jurors) are liable to bias, and without other
alternatives they can very easily be fooled. By the time someone has been
dragged in front of you, and you're told that they committed C0, C1, etc.,
then you're asked if they committed crime C and to you it looks very plausible
because it's hard to take into account the (still) very low prior, especially
if you lack other alternative hypotheses.

So while you're right that it is a valid inference, we choose not to allow
that inference in order to counter the much higher magnitude of bias caused by
the representativeness heuristic and the like.

------
Benjamin_Dobell
Yeah... look, with our Government passing far reaching anti-encryption laws
(that impact the _entire world_ ) without the need for judicial oversight[1]
and planning to move our embassy from Tel Aviv to Jerusalem after officially
recognising the latter as the capital of Israel[2], and the general Australian
population paying no bloody attention at all; gag orders are pretty low down
on the list of stupid shit going on.

It's getting down-right depressing to be an Australian citizen.

[1] [https://www.itnews.com.au/news/australias-encryption-bill-
fa...](https://www.itnews.com.au/news/australias-encryption-bill-
faces-17-changes-to-pass-parliament-516547) [2]
[https://www.theguardian.com/world/2018/dec/14/australian-
gov...](https://www.theguardian.com/world/2018/dec/14/australian-government-
to-recognise-jerusalem-as-israels-capital)

~~~
tzs
> planning to move our embassy from Tel Aviv to Jerusalem after officially
> recognising the latter as the capital of Israel

Note that your source says that they are not moving the embassy until after a
peace deal is reached.

~~~
Benjamin_Dobell
Scott Morrison said:

> _And we look forward to moving our embassy to West Jerusalem when practical,
> in support of, and after, final-status determination_

So he is indeed already _planning_ to move the embassy, and chose to make this
decision public.

~~~
tzs
You offered this as an example of Australian government stupidity. My point is
that their planned move is to take place after the issues that make moving it
stupid will no longer be applicable.

Moving it before the status of Jerusalem is settled, like the US plans to, is
stupid.

Saying you'll move it, but only after the city's status is settled by a two
state peace deal, does not seem to be stupid.

------
neotek
A few days ago I, an Australian, got an Apple News alert on my laptop about a
Washington Post article that discussed Pell's conviction. When I clicked the
alert, Apple News opened and displayed the article in full, uncensored.

I'm curious to know if Apple would therefore be in breach of the suppression
order even though they're not the publisher, and if they are in breach, if
anything is likely to happen to them as a result. I haven't seen any mention
of it anywhere else, but I can't imagine I'm the only person to have received
the alert.

~~~
SpicyLemonZest
That's part of the question on how gag orders can possibly work in a global
information economy. How is Apple supposed to know that they have to pick out
articles about this particular case and ensure that no Australian sees them?
How is Australia supposed to send a gag order to the transitive closure of
every content aggregator which might include the case?

~~~
sjwright
They don't need to work 100%, they just need to work enough so that a jury can
be empanelled.

------
caf
This week there have also been very similar issues raised around a gag order
issued by a court in New Zealand, which is intended to keep the identity of a
murder accused secret. The victim in this case was a British tourist, so the
media in England has been reporting heavily on the case.

~~~
Taniwha
To make it worse Google auto-emailed a whole bunch of people breaking the gag
order ....

------
afedseedx
Media the world over do withhold names: rape victims, underage defendants, so
it isn't impossible for them to control themselves if there was a clear risk
of a miscarriage of justice (which may or may not be the case in this
instance).

Slightly off-topic, but the picture in the article of a (recently demolished)
newsstand neatly represents the international portrayal of Australia...laid
back people in flip-flops lounging about without a care in the world. The
reality is that, given the location, those were far more likely to have been
tourists.

~~~
jamesrcole
> _The reality is that, given the location, those were far more likely to have
> been tourists_

That's my hometown and I doubt they're far more likely to be tourists. I think
it's more likely they're University students (from QUT).

------
jp57
So who is it?

~~~
berbec
Cardinal George Pell, 77, was convicted Tuesday on five counts of child sexual
abuse in Melbourne. [1]

1:
[http://outline.com/https://www.washingtonpost.com/lifestyle/...](http://outline.com/https://www.washingtonpost.com/lifestyle/style/an-
australian-courts-gag-order-is-no-match-for-the-internet-as-word-gets-out-
about-prominent-cardinals-
conviction/2018/12/13/5137005c-fef5-11e8-83c0-b06139e540e5_story.html)

------
primroot
The first thing I recalled after learning about this case, was the case of
Lindy Chamberlain-Creighton [0].

I have heard arguments in the past for this kind of censorship. In my country
(Panama) the closest thing is called "reserva del sumario," (secrecy of the
proceedings) but there is no way enforce it legally against parties not
involved in the trial afaiu. The most the former chief prosecutor (of a very
corrupt governement) was able to call on the main journalistic association to
remind journalists of their dury to respect the secrecy of the proceedings.

I stand in favor of not limiting freedom of expression. We should not limit
ourselves to framing the issue as one of free expression vs a free trial (or a
free election, since I just mentioned a Latin American country). Risking being
too optimistic, I think that instead of framing the issue as one overexposed
potentially false suspicions or opinions, one should see it as one of
underexposed relevant opinions.

[https://en.wikipedia.org/wiki/Lindy_Chamberlain-
Creighton](https://en.wikipedia.org/wiki/Lindy_Chamberlain-Creighton)

------
muro
Anyone knows how such trials work? What evidence can there be from 30 or more
years ago? Is it two parties saying the opposite and the jury choosing who to
believe?

------
vermontdevil
But what about social media? Can’t see how these gag orders work anymore when
you can see results on your FB wall or Twitter etc.

~~~
mwill
Interestingly, the mods of /r/australia were mostly adhering to the order,
which surprised me.

------
my_first_acct
From the Hacker News guidelines [1]: "If they'd cover it on TV news, it's
probably off-topic." (IIRC, this particular guideline dates back to when
Hacker News was called Startup News).

The linked article, from the New York Times, elliptically discusses a topic
that the New York Times itself cannot report on in its online edition, due to
a gag order by an Australian judge. So it is not covered, and cannot be
covered, by the modern-day equivalent of TV news.

[1]
[https://news.ycombinator.com/newsguidelines.html](https://news.ycombinator.com/newsguidelines.html)

~~~
phs318u
Admittedly, the guideline says "probably". In this case, I'd suggest that the
global reach of online media and the fact (as you point out) that the New York
Times, an American media company, is effectively banned (not really banned,
but more "erring on the side of caution" I imagine) from reporting it, is of
interest.

As an Australian, I read an article stating that George Pell had been removed
from the Pope's "council of nine (cardinals)", and then almost immediately
after, read an article on the suppression order. A bit of quick searching, and
I found out what the news was. Which begs the question, if the NYT (and
presumably other international online media orgs) self-censored in the way
described above, why would Google, Bing, DuckDuckGo, not do the same?

EDIT: I'm not suggesting that the search engines should self-censor (or that
they shouldn't), I'm just wondering why they'd come to a different conclusion
than, say, the NYT.

~~~
mjevans
They aren't publishing it, just indexing what others have published.

The aggregation of information should never be censored; it is telling you
where things are out there in the world.

As a loosely related topic; the conveyance of truthful or believed to be
truthful information should never be suppressed. However polity asking someone
to be quiet for a time or for some other reason might be. This is why I
believe 'state secrets' and secrets of all other types should only be for a
specific limited time, and that all official records MUST receive re-
classification on a regular interval (say once every 10 years, but a new
review party who must also agree that it's worth keeping secret for another 10
years). Failure to review should result in publishing ~1 year after the
expiration period.

~~~
phs318u
Good points.

On indexing, I'd question if that's all that search engines do. They used to
"only index" (in reality, "simple" index), but doesn't the complexity of
current promotion/demotion algorithms go beyond that (given the biases those
algorithms encode)? Might that cross the line? Do these algorithms encode a
sort-of editorial policy?

Also, agree in principle re: classification timeouts and mandatory review,
though the sheer number of state/corporate secrets might make that
impractical.

------
baybal2
Just yet another reason for common law countries to adopt constitutions that
are explicitly not open to interpretation

You can see how easy even a body without executive power per se can mop the
floor with weakly defined common law freedom of speech statues

~~~
cyphar
Australia does need constitutional human rights protections (currently we are
in violation of a few international agreements, since we don't even have
statutory protections).

But having a constitution that is not open to interpretation would be
unprecedented and would be an awful decision. Without constitutional
interpretation by the High Court, we wouldn't have the Mabo decision (an
interpretation of the "on just terms" wording) nor would we have the right to
freedom of political speech (an interpretation of the definition of
representative government). And almost every country in the world has
constitutions that are interpreted by their Supreme Courts -- not doing so
would make the Constitution unusable as a supreme law of the land.

~~~
baybal2
You substantiation for your position are weak.

The degree that separates a constitutional state vs. inconstitutional ones is
the firm definition of its legal state – a source of truth in the system, and
not an amorphous interpretation existing in heads of demented supreme court
justices.

~~~
cyphar
Can you give an example of a constitutional state which does not have
"amorphous interpretation existing in heads of demented supreme court
justices"? None come to mind.

~~~
baybal2
I can give you both, an extreme example of a country whose judiciary champions
the trollishly named concept of "legal realism" (better to be called legal
surrealism,) and a number that continue to uphold the rationality that law was
written to a rule to follow.

The first one is USA, whose judiciary gladly swallowed the executive order
6102, and the entirety of nonsense surrounding domestic surveillance programs.
One whose supreme court said that a man has "in fact gained" wealth from
surrendering his gold for less than half of its price, and managed to validate
FISA courts whose very existence goes prima fascie against the word of 10+
constitutional statutes.

The second, the best example I know of is Pakistan, and to some extend India.
British legal process, as well as German empire's one was textualist for quite
long time. A very famous case of late British empire law, if not the most
known one was when a man sentenced to hanging was pulled out of the noose in
the very last moment, when a lawyer argued that "a sentence of hanging, gives
no permission for murder." Even today, a supreme justice of Pakistan, a man
known for the thunderous legal activism, _is_ bound by hands and legs by the
word of constitution, and hits the stone wall of SJC's opposition when his
actions diverge even by a single letter from his formal legal mandate.

~~~
cyphar
> The second, the best example I know of is Pakistan, and to some extend
> India.

I cannot speak about Pakistan, but I will comment on India.

India has a concept of the "basic structure" of the constitution[1], and that
no constitutional amendment may violate the fundamental rights that the
constitution's "basic structure" grants. Now, it should be clear that
politically this has been overturned a few times by different leaders, but
conceptually the Indian constitution is very much interpretive -- and in fact
the "basic structure" doctrine is a Supreme Court decision.

So India most definitely does not fit the mould you describe. I couldn't find
any information about literalism in Pakistan's constitution, so I really
cannot comment on that.

> when a lawyer argued that "a sentence of hanging, gives no permission for
> murder."

This is not an example of interpretation -- in fact it's actually a wilful
ignorance of the law. The sentence in British law has been (since its
inception), "to be hung by the neck until dead". In any case, I have serious
doubts that such a story is true (it's also clearly embellished).

> The first one is USA [...]

I disagree with domestic surveillance as well as many of things you mentioned,
but you haven't given an example of how these things were allowed under
constitutional interpretation. There in fact is a lot of evidence that shows
that PRISM violated the constitutional rights of US citizens. I don't think
there's any Supreme Court decisions about it though, so there isn't really a
good argument in saying it's an interpretation problem if the constitution has
never been interpreted for this particular case.

[1]:
[https://en.wikipedia.org/wiki/Basic_structure_doctrine](https://en.wikipedia.org/wiki/Basic_structure_doctrine)

~~~
baybal2
Both FISA court and executive order 6102 went through the supreme court, don't
feign ignorance. Googling both quickly reveals a number of supreme court
cases.

> concept of the "basic structure" of the constitution

Which comes out of its plain text meaning, requiring no legal creativity to
devise it. Were legal decisions of pre-independence India public. I would've
put tons and tons examples for you. Out of all edge cases, you picked the
biggest one.

Please fully accept that constitution is the source of truth of the legal
system. The very purpose, and the literal meaning of the word stand for
constitutions being the mechanism establishing reason for any legal action.

