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Some key take aways from Jason Bosland of unimelb's new article 'Debunking the myth: why Victoria is not the suppression order 'capital' of Australia' in Volume 24 of the Media and Arts Law Review ($ on Lexis) (thread):
First, the accusation that Victorian courts are more trigger-happy with suppression orders appears to be based on very incomplete data compiled by News Corp and relied upon by other commentators (News Corp shared its most recent tally with Bosland).
In particular, the figures 'are collated by counting the number of orders that were notified to media organisations (usually via email from the courts but also sometimes directly to journalists who are present in court) rather than the number of suppression orders actually made'.
Victoria’s reputation as Australia’s 'suppression order capital', therefore, 'can be explained, ironically, as an unfortunate consequence of the Victorian courts being more transparent regarding levels of suppression than courts in other jurisdictions.'
The NSW Supreme Court, by the way, issued at least 50% more suppression orders than its Vic counterpart. NSW lower courts (which are busier than the SC) get to avoid scrutiny altogether, because order notifications are rare and the registries don't keep track of the numbers.
Second, the claim does not account for the variety in the types of suppression orders that can be made.
A significant number of Vic suppression orders are made under statutory powers designed to deal with specific contexts, such as details of post-custodial sex offenders, or the names of people found not guilty by reason of mental illness. Other states don't have these powers.
Bosland notes that views may differ about whether we should include these numbers. The point is more that the data should account for the fact that not all orders represent courts' 'general' approach to suppression, but rather respond to specific interventions by Parliament.
Finally, comparisons between states make the most basic of errors: they don't account for massive differences in caseloads (as a result of differences in population).
If you take numbers of judicial officers as a proxy for caseload, Victorian judges made an average of 1.5 general power suppression orders per judge, compared to 2.3 in SA and 2.2 in WA. If you include the specific statutory orders mentioned above in Vic, Vic goes up to 2.4.
Of course, other states let themselves off the hook for this comparison with a lack of data. If you compare just the Supreme Courts in Vic and NSW, for which there is better data, Victorian judges made 1.36 orders per judge, NSW 1.84 (as a Victorian, that is simply delicious)
FWIW, I think including Victoria's statutory orders in the data would be justified. The fact that they have a lower threshold, deal with specific situations, and were introduced by Parliament, doesn't remove them entirely from an assessment of Vic's approach to these orders.
Despite its deliciousness, comparisons between supreme courts may be limited. SCs have much lower case loads than lower courts, and we may need to look further into differences in case types (eg, does one SC do more of a kind of case that attracts more suppression apps?)
Otherwise, it seems to me that if you took the most hawkish approach to Bosland's analysis, your conclusion would still be: 'we can't be sure which State or Territory is the suppression capital of Australia, but we know Victorian courts and tribunals are the most transparent'.
