Non-publication and suppression orders

[62-000] Circumstances in which automatic non-publication or suppression provisions apply

1.: A number of legislative provisions specify certain circumstances in which an automatic non-publication or suppression provision applies. These provisions are set out at Table A. There is no need to make a non-publication or suppression order where an automatic provision applies.

[62-020] Court-made non-publication and suppression orders

2.

A form to assist in the making and recording of non-publication and suppression orders is set out in the Annexure.

(a)

Court Suppression and Non-Publication Orders Act 2010

The Court Suppression and Non-Publication Orders Act 2010 (the Act) commenced on 1 July 2011. The Act adopts model provisions developed for the Standing Committee of Attorneys General with the intention of harmonising laws on suppression and non-publication orders.

Application

The Act applies to civil and criminal proceedings.

Section 3 distinguishes between:

Non-publication orders, which prohibit or restrict the publication of information (but do not otherwise prohibit or restrict the disclosure of information), and
Suppression orders, which more broadly prohibit or restrict the disclosure of information, whether by publication or otherwise.

To “publish” means to disseminate or provide access to the public or a section of the public by any means.

Section 4 specifies that the Act does not limit any other powers of the court to regulate its proceedings or deal with a contempt of court.

Most other specific legislative provisions for automatic or court-ordered non-publication or non-disclosure continue to apply (see Table B). Section 5 provides that the Act does not limit or affect the operation of any other provision of an Act that prohibits or restricts, or authorises a court to prohibit or restrict, the publication or other disclosure of information in connection with proceedings.

However, the Act has repealed and replaces the following provisions:

Section 292 Criminal Procedure Act which enabled the court to make suppression and non-disclosure orders as it considered necessary to protect of the safety and welfare of protected confiders.
Section 302 Criminal Procedure Act which enabled the court to suppress publication of evidence in proceedings for prescribed sexual assault offences.
Section 72 Civil Procedure Act which enabled the court to prohibit the publication or disclosure of information tending to reveal the identity or any party to or witness in proceedings.

Power to make an order

Section 7 enables the court to make a suppression or non-publication order on one or more of the grounds set out in s 8 that would prohibit or restrict the publication or other disclosure of:

(i): information that would identify or is otherwise concerned or associated with a party to or witness in proceedings before the court, or
(ii): information that comprises evidence, or information about evidence, given in proceedings before the court.

Section 8(2) requires the court to specify the ground/s on which an order is made, which are set out in s 8(1) as follows:

(i): the order is necessary to prevent prejudice to the proper administration of justice,
(ii): the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,
(iii): the order is necessary to protect the safety of any person,
(iv): the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),
(v): it is otherwise necessary in the public interest for the order to be made and the public interest significantly outweighs the public interest in open justice.

When considering whether to make an order, the court must also take into account “a primary objective of the administration of justice” set out in s 6, namely, “to safeguard the public interest in open justice”.

Procedure for making an order

An order can be made at any stage of proceedings or after the conclusion of proceedings, upon the application of a party or on the court’s own initiative: s 9(1), (3).

Section 9(2) provides a number of persons with an entitlement to be heard by the court on an application:

the applicant for the order
a party to the proceedings
a Commonwealth or State or Territory Government or Government agency representative
a news media organisation
any other person who, in the court’s opinion, has a sufficient interest.

Content of order

An order:

Must specify the information to which it applies: s 9(5)
Must be sufficiently particular to ensure that it is limited to achieving the purpose for which it is made: s 9(5)
May be subject to conditions or exceptions as the court thinks fit: s 9(4).

I make a [suppression/non-publication] order on the basis that in this case [set out ground from s 8, eg the order is necessary to prevent prejudice to the proper administration of justice], notwithstanding that a primary objective of the administration of justice is to safeguard the public interest in open justice.

The [publication/disclosure] of information that [set out brief description, eg will reveal or is likely to reveal the identity of witness in proceedings before the court] is [prohibited/restricted].

[If publication/disclosure is restricted, set out details of restriction, eg the witness may only be referred to by the pseudonym Miss X.]

This order remains in force until [insert date/event, eg the court orders otherwise].

This order applies to the [disclosure/publication] of information in [insert location, eg New South Wales].

[If order is to apply outside New South Wales] I am satisfied that it is necessary for the order to apply outside of New South Wales to achieve the purpose of [insert ground upon which order is made].

Interim order

Section 10 enables the court to make an interim order without determining the merits of an application. If the court makes an interim order, it must then determine the application as a matter of urgency.

Where an order applies

Pursuant to s 11, an order may be made to apply in New South Wales or to anywhere in the Commonwealth outside New South Wales. Subsection (3) requires that if making an order that applies outside New South Wales, the court must be satisfied that having the order apply outside New South Wales is necessary for achieving the purpose for which the order is made.

Duration of order

Section 12 provides that an order should operate for no longer than reasonably necessary to achieve the purpose for which it is made. Its duration is to be limited by reference to a fixed or ascertainable period or future event as specified in the order.

Reviews and appeals

Section 13 sets out enables the court that made an order to review the order, either on the application of a person entitled to apply for the review or on its own initiative. Persons entitled to apply for a review are set out in subs (2) and are the same as those entitled to be heard in relation to an application for an order. Upon review, the court may confirm, vary or revoke and order, and may also make an additional order under the Act.

Section 14 provides for appeals against an original court’s decision:

whether or not to make an order
on a review of an order
not to conduct a review

to be made with leave of the appellate court, that is, the Supreme Court or any other court to which an appeal would lie from a final judgment of the original court. Appeals are to be heard by way of rehearing, in which fresh or additional evidence may be adduced.

Contraventions of orders

Contravention of an order may be dealt with as an offence under s 16(1) of the Act, or as a contempt of court. Section 16(1) provides that a person commits an offence if he or she engages in conduct that constitutes a contravention of an order, and is reckless as to whether that conduct constitutes a contravention.

(b)

Other legislation

In addition to the Court Suppression and Non-Publication Orders Act, a number of legislative provisions continue to specify certain circumstances in which the court may or must make a non-publication or suppression order.

These provisions are set out at Table B.

Provisions relevant to proceedings under various Commonwealth Acts are set out at Table C.

(c)

Common law

Section 4 Court Suppression and Non-Publication Orders Act preserves the common law in respect of suppression and non-publication orders.

See Criminal Trial Courts Bench Book, Closed court, suppression and non-publication orders at [1-349].

[62-040] Table A — Automatic non-publication/suppression provisions

Category	Legislation	Details
All proceedings	s 195 Evidence Act 1995	A person must not, without the express permission of a court, print or publish: (a) any question that the court has disallowed under s 41 (Improper questions), or (b) any question that the court has disallowed because any answer that is likely to be given to the question would contravene the credibility rule, or (c) any question in respect of which the court has refused to give leave under Pt 3.7 (Credibility).
AVO proceedings – where child involved	s 45(1) Crimes (Domestic and Personal Violence) Act 2007	The name of a child under the age of 16 yrs who is involved in AVO proceedings (whether as a person in need of protection, a witness or who is otherwise likely to be involved) must not be published or broadcast before the proceedings are commenced or after the proceedings have been commenced and before they are disposed of.
Bail	s 89 Bail Act 2013	A person must not publish the fact that a named person is a prohibited associate of an accused person (including information calculated to identify a person as such). This does not apply to the publication of an official report of the court proceedings: s 89(4).
Child protection – registrable persons	s 18 Child Protection (Offenders Prohibition Orders) Act 2004	In proceedings for an order under this Act, a person must not publish information that identifies or is likely to identify a registrable person, victim or person identified as a person at risk.
Children at risk of significant harm	s 29(1)(f) Children and Young Persons (Care and Protection) Act 1998	Where a person makes a report to the Director General in respect of a child at risk of significant harm, which is then used in care proceedings in the Children’s Court, coronial proceedings or other proceedings authorised by subs (1)(d), the identity of the person who made the report must not be disclosed unless consent is given or leave of the court is obtained.
Children’s Court proceedings (except crime) – where child involved	s 105 Children and Young Persons (Care and Protection) Act 1998	At any time before, during or after proceedings, the name of a child or young person: (a) who appears, or is reasonably likely to appear, as a witness before the Children’s Court in any proceedings, or (a1) who is involved, or is reasonably likely to be involved, in any capacity in any non-court proceedings, or (b) with respect to whom proceedings before the Children’s Court are brought or who is reasonably likely to be the subject of proceedings before the Children’s Court, or (c) who is, or is reasonably likely to be, mentioned or otherwise involved in any proceedings before the Children’s Court or in any non-court proceedings, or (d) who is the subject of a report under ss 24, 25, 27, 120, 121 or 122 must not be published or broadcast in any form that may be accessible by a person in NSW.
Coronial matters	s 75 Coroners Act 2009	A person must not publish any of the following matters without the express permission of the coroner in the coronial proceedings concerned: (a) any question asked of a witness that the coroner has forbidden or disallowed, (b) any warning that a coroner has given to a witness that he or she is not compelled to answer a question, (c) any objection made by a witness to giving evidence on the ground that the evidence may tend to prove that the witness has committed an offence.
Criminal proceedings – prescribed sexual offences	s 578A Crimes Act 1900	Nothing may be published that identifies a complainant in relation to a prescribed sexual offence, except where authorised by the court or with the consent of the complainant. The court is not to authorise a publication without seeking and considering the views of the complainant, and being satisfied that the publication is in the public interest.
Criminal proceedings – where child involved	s 15A(1) Children (Criminal Proceedings) Act 1987	The name of a person must not be published or broadcast in a way that connects the person with criminal proceedings if: (a) the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed, or (b) the person appears as a witness in the proceedings and was a child when the offence to which the proceedings relate was committed (whether or not the person was a child when appearing as a witness), or (c) the person is mentioned in the proceedings in relation to something that occurred when the person was a child, or (d) the person is otherwise involved in the proceedings and was a child when so involved, or (e) the person is a brother or sister of a victim of the offence to which the proceedings relate, and that person and the victim were both children when the offence was committed. Note: the exceptions prescribed in ss 15B–F (ie, official report of proceedings, person convicted of a serious children’s indictable offence, with consent, child deceased, and traffic offences not dealt with by Children’s Court).
Family law proceedings	s 121 Family Law Act 1975 (Cth)	It is an offence to publish any account of any proceedings, or of any part of any proceedings, under this Act that identifies: (a) a party to the proceedings (b) a person who is related or associated with a party to the proceedings or allegedly concerned in the matter to which the proceedings relate, or (c) a witness to the proceedings.
Forensic procedures	s 43 Crimes (Forensic Procedures) Act 2000	Where a magistrate authorises the carrying out of a forensic procedure on a suspect under s 24, a person must not publish information that would identify the suspect unless the suspect has been charged with the offence or the magistrate authorises the publication.
Involuntary drug and alcohol treatment	s 41 Drug and Alcohol Treatment Act 2007	A person must not, whether before or after the proceedings are completed and without the consent of the magistrate, publish or broadcast the name of any person: (a) to whom the proceedings relate, or (b) who appears as a witness in the proceedings, or (c) who is mentioned or otherwise involved in the proceedings.
Parentage matters	s 25 Status of Children Act 1996	A person must not publish the name, or the particulars relating to the identity, of any person by, or in relation to whom, an application for a declaration of parentage or for an annulment order under Div 2 or 3 is brought.
Sentencing	s 100H Crimes (Sentencing Procedure) Act 1999	A person must not publish information identifying a named person (other than the offender) in a non-association order.
Transmission of sounds or images in court	s 9A(1) Court Security Act 2005	A person must not use any device to transmit sounds or images from a room or other place where a court is sitting to any person or place outside; by posting entries containing sounds, images or information on social media sites or any other website or broadcasting or publishing by means of the internet; or by making the sounds, images or information accessible to any person outside that room or other place. Note: the exceptions prescribed in ss 9A(2)(a)–(e) (ie, device used for another purpose, transmission via audio link/AVL/CCL etc, approved transmission by judicial officer, transmission for the purpose of transcription, transmission by prosecutors to other (non-witness) prosecutors).

[62-060] Table B — Non-publication/suppression provisions requiring a court order

Category	Legislation	Details
Adoption information matters	s 186(2) Adoption Act 2000	In adoption information proceedings, the court or tribunal may make an order forbidding publication of all or any of the information mentioned in the proceedings relating to an adopted person, birth parent, adoptive parent, relative or other person.
Any proceedings before a recognised court (including criminal proceedings) (cf, use of interstate audio/audio visual links)	s 15 Evidence (Audio and Audio Visual Links) Act 1998	A recognised court may prohibit or restrict the publication of evidence given in the proceeding, or of the name of a party to, or a witness in, the proceeding.
Apprehension under warrant (Cth)	s 96 Service and Execution of Process Act 1992 (Cth)	Where a person is taken before a magistrate after apprehension under a warrant pursuant to s 83, the magistrate may order that a report of any part of the proceeding or review held in public or any publicly made finding of fact made by the magistrate is not to be published. An order must not be made without being satisfied of one of the matters set out in subs (3).
Assumed identities	s 28 Law Enforcement (Controlled Operations) Act 1997 s 34 Law Enforcement and National Security (Assumed Identities) Act 2010	Unless it considers that the interests of justice otherwise require, the court must make an order for suppression of evidence given before it as, in its opinion, will ensure that the identity of a participant in an authorised operation is not disclosed. It may also make orders prohibiting the publication of any information that may identify such a person. Unless it considers that the interests of justice otherwise require, the court must make an order for suppression of evidence given before it as, in its opinion, will ensure that the identity of a person in respect of whom an authority is or was in force is not disclosed. It may also make orders prohibiting the publication of any information that may identify such a person.
		See also: s 26 Witness Protection Act 1995 witnesses who are participants in the NSW Witness Protection Program s 28 Witness Protection Act 1994 (Cth) witnesses who are participants in the National Witness Protection Program.
AVO proceedings – persons other than children	s 45(2) Crimes (Domestic and Personal Violence) Act 2007	The court may direct that the name of a person who is involved in AVO proceedings (whether as a person in need of protection, a witness or person who is otherwise likely to be involved) must not be published or broadcast before the proceedings are commenced or after the proceedings have been commenced and before they are disposed of.
Coronial matters	s 74 Coroners Act 2009 s 75	A coroner may order that any evidence in coronial proceedings not be published if of the opinion that it would be in the public interest to do so. A coroner may make a non-publication order prohibiting or restricting the publication of a report of the proceeding or any matter identifying the dead person or a relative of the dead person if it appears that a death or suspected death was self-inflicted.
DPP-initiated proceedings (Cth)	s 16A Director of Public Prosecutions Act 1983 (Cth)	In proceedings taken or carried on by the Commonwealth DPP in relation to civil remedies or pecuniary penalties or in application proceedings for a restraining order under the Proceeds of Crime Act, the court may make orders prohibiting or restricting the publication of particular evidence or information as appear necessary in order to prevent prejudice to the administration of justice.
Involuntary drug and alcohol treatment	s 37 Drug and Alcohol Treatment Act 2007	In proceedings relating to the review or extension of a dependency certificate, if the magistrate is satisfied that it is desirable to do so for the welfare of the dependent person or for any other reason, the magistrate may (of their own motion or on the application of the person or another person appearing at the proceedings) make various orders, including an order prohibiting or restricting: the publication or broadcasting of any report of the proceedings the publication of evidence given in the proceedings, whether in public or in private, or of matters contained in documents lodged with or received in evidence by the magistrate the disclosure to some or all of the parties to the proceedings of evidence given before the magistrate, or of the contents of a document lodged with or received in evidence by the magistrate, in relation to the proceedings.
Lie detectors	s 6 Lie Detectors Act 1983	Where output from an instrument or apparatus that has been used in the commission of an offence against this Act, or an analysis or opinion in relation to such output, is admitted into evidence for the purpose of proving the commission of the offence, the court may make an order forbidding publication of the evidence or a report of the evidence.
Professional confidential relationship privilege	s 126E Evidence Act 1995	The court may make such orders relating to the suppression of publication of all or part of the evidence given before the court as, in its opinion, are necessary to protect the safety and welfare of a protected confider.
Referee reports regarding questions of benefit to minors	s 43(5) Minors (Property and Contracts) Act 1970	The court may make such orders as it thinks fit for the purpose of preventing or limiting publication of a referee report filed under s 43.
Surveillance devices	s 42 Surveillance Devices Act 2007	The court must make an order prohibiting or restricting publication of information disclosed in the proceeding that could reasonably be expected to reveal details of surveillance device technology or methods of installation, use or retrieval of surveillance devices, unless the interests of justice require otherwise. The order is to contain such prohibitions or restrictions as the court considers necessary to ensure that those details are not revealed.

[62-080] Table C — Commonwealth suppression and non-publication provisions

Category	Legislation	Details
Criminal proceedings	s 93.2 Criminal Code	At any time before or during the hearing of an application or other proceedings, the judge or magistrate, may, if satisfied that such a course is expedient in the interest of the security* or defence of the Commonwealth, order that no report of the whole or a specified part of or relating to the application or proceedings shall be published. * Criminal Code provision only. Note: Both sections are apply to proceedings before a court exercising federal jurisdiction, whether under or in pursuance of the Act in question or otherwise. Both sections also contain provisions for: excluding some or all members of the public from all or part of the proceedings, and making orders (including after the proceedings have concluded) preventing access to evidence or other information in the proceedings without the approval of the court.
Family law proceedings	s 121 Family Law Act 1975	[Automatic] A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies: (a) a party to the proceedings (b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate, or (c) a witness in the proceedings, is guilty of an offence punishable upon conviction by imprisonment for a period not exceeding one year. Note: subs (3) contains a list of identifying particulars and other circumstances, the publication of which will be taken to have identified a person.
Interstate extradition	s 96 Service and Execution of Process Act 1992	[Court ordered] The magistrate or court may, on application, order that a report of: (a) a part of the proceeding or review held in public, or (b) a finding publicly made by the magistrate or court, is not to be published. Note: Subs (3) provides an order may only be made where satisfied that publication would give rise to a substantial risk of: prejudice to the fair trial by jury of a person charged with a Commonwealth or State offence death or personal injury being suffered by a witness or member of the witness’ family damage to the property of a witness or a member of the witness’ family prejudice to the prosecution of a Commonwealth or State offence or a proceeding to recover a pecuniary penalty prejudice to an investigation preparatory to such a prosecution or proceeding prejudice to national security if the proceeding concerns a sexual offence — identification of a victim of the alleged offence, or if the proceeding involves the welfare or a child, or an offence where a child is the victim or alleged perpetrator – identification of the child. See further ss 97–103 for provisions regarding interim orders, duration of orders, variation and revocation of orders, etc.

[62-100] Annexure — Non-publication/suppression order form

Non-publication/suppression order

Category	Legislation	Details
Order made:	❏ On application (specify applicant name): ❏ On the initiative of the court.
Nature of order:	❏ Interim¹	❏ Determined on merits
¹The Court Suppression and Non-publication Orders Act allows for the making of interim non-publication and suppression orders. An interim order may be made without determining the merits of an application and continues until the application is determined or the order is revoked by the court: s 10(1).
Type of order:	❏ Non-publication²	❏ Suppression³
²A non-publication order is an order that prohibits or restricts the publication of information (but does not otherwise prohibit or restrict the disclosure of information). To “publish” means to disseminate or provide access to the public or a section of the public by any means. ³ A suppression order is an order that prohibits or restricts the disclosure of information, whether by publication or otherwise. It is broader than a non-publication order.
Information to which the order applies (the “relevant information”):
.......................................... .......................................... .......................................... ..........................................
Manner of restraint:	Publication/disclosure (select applicable) of the relevant information is: ❏ Prohibited ❏ Restricted in the following manner: .......................................... .......................................... ..........................................
Duration of order:	Until (select applicable): ❏ Date .......................................... ❏ Event ..........................................
Where order applies:⁴	❏ New South Wales ❏ Other (specify): .......................................... ❏ The court is satisfied that having the order apply outside New South Wales is necessary for achieving the purpose for which the order is made.
⁴The Court Suppression and Non-publication Orders Act allows for the making of orders that apply in New South Wales or anywhere in the Commonwealth: s 11(1). If making an order that applies outside New South Wales, the Court must be satisfied that having the order apply outside New South Wales is necessary for achieving the purpose for which the order is made: s 11(2).

Order made pursuant to:

❏

Section 7 Court Suppression and Non-publication Orders Act

❏

The court has taken into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.⁵

⁵This is a required consideration pursuant to s 6 Court Suppression and Non-publication Orders Act.

Ground/s for order (select one or more):⁶

⁶These grounds are specified in s 8. An order made under the Court Suppression and Non-publication Orders Act must specify the ground/s on which it is made: s 8(2).

❏

Order is necessary to prevent prejudice to the proper administration of justice.

❏

Order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security.

❏

Order is necessary to protect the safety of any person.

❏

Order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency).

❏

It is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

❏

Coroners Act 2009

❏ s 74

❏ s 75

❏

s 45(2) Crimes (Domestic and Personal Violence) Act 2007

❏

s 16A Director of Public Prosecutions Act 1983 (Cth)

❏

s 126E Evidence Act 1995

❏

s 28 Law Enforcement (Controlled Operations) Act 1997

❏

s 6 Lie Detectors Act 1983

❏

s 96 Service and Execution of Process Act 1992 (Cth)

❏

s 42 Surveillance Devices Act 2007

❏

s 28 Witness Protection Act 1994 (Cth)

❏

Other (specify):

The order is made for the following reason/s (specify if applicable): ..........................................

..........................................

Magistrate ..........................................

Court location ..........................................

Date ..........................................

[62-120] Review of order

The order is:

❏

Confirmed

❏

Revoked

❏

Varied as follows:

..........................................

The court makes the following other order/s (specify if applicable):

Magistrate ..........................................

Court location ..........................................

Date ..........................................