Closed court, suppression and non-publication orders
[1-0400] The principle of open justice
The principle of open justice is one of the most fundamental aspects of the system of justice in Australia and the conduct of proceedings in public is an essential quality of an Australian court of justice. There is no inherent power of the court to exclude the public: John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 (CA) per Spigelman CJ at .
There are a number of statutory exceptions to this principle and the most significant of these are discussed at [1-0410], [1-0430] and [1-0440]. These exceptions can be divided into three broad groups: those conferring a power on a court to make suppression or non-publication orders in particular circumstances, those requiring or enabling the closing of a court and those that either require the making of an order for non-publication or prohibit publication of information.
The various statutory provisions protect the privacy interests of particular participants in the court system. Privacy interests are also the concern of the Supreme Court of New South Wales “Identity theft prevention and anonymisation policy” 2010 (accessed 2 August 2011), which provides guidance as to the publication of personal or private information in court judgments, and must be adhered to by a judge’s staff and the staff of the Reporting Services Branch.
It is generally desirable that consideration of whether orders should be made under any of the statutory provisions be dealt with at the outset of the proceedings, and, when a prohibition is to remain in force (as it often does) to advise everyone, including the entire jury panel, of the legal position.
[1-0410] Court Suppression and Non-publication Orders Act 2010
The Court Suppression and Non-publication Orders Act 2010 commenced on 1 July 2011 and confers broad powers on courts to make suppression or non-publication orders: s 7. Such orders may be made at any time during proceedings or after proceedings have concluded: s 9(3).
The two types of orders are defined in s 3. A “non-publication order” prohibits or restricts the publication of information (but does not otherwise prohibit or restrict the disclosure of information), and a “suppression order” prohibits or restricts the disclosure of information (by publication or otherwise).
“Party” is broadly defined in s 3 and includes the (alleged) complainant or victim in criminal proceedings, and any person named in evidence given in proceedings.
Effect is given to the open justice principle in s 6 of the Act which requires a court deciding whether to make a suppression or non-publication order, to take into account that “a primary objective of the administration of justice is to safeguard the public interest in open justice”.
Section 6 should not impede the court from making an order when it is of the opinion that one of the grounds in s 8 is made out. Its importance will vary depending on the extent that any such order will interfere with the principle of open justice: Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at . In DRJ v Commissioner of Victims Rights  NSWCA 136, the Court of Appeal rejected a submission that this meant that the principle of open justice under s 6 does not need to be considered if one of the grounds in s 8 is established. The court held that first, s 6 imposes an obligation upon the court in unambiguous language, reinforcing the common law position and there is nothing in the language of s 8 to entitle a court to disregard that obligation. Second, s 8(1)(e) proceeds on the basis that the public interest in open justice is not disregarded, but rather, needs to be substantially outweighed if that paragraph is to be satisfied; see Misrachi v The Public Guardian  NSWCA 67 at . Third, s 12(2) requires the duration of an order to be limited “for no longer than is reasonably necessary to achieve the purpose for which it is made”. That limitation reflects the ongoing importance of safeguarding the public interest in open justice: DRJ v Commissioner of Victims Rights at , , .
Power to make orders
While s 7 empowers a court to make suppression or non-publication orders, the section, and the Act, is silent on the question whether an order under s 7 can bind third parties. It was assumed in the Court Suppression and Non-publication Orders Bill 2010, NSW, Legislative Assembly, Debates, 29 October 2010, p 27195, that the power under s 7 can extend to “bind all members of the public”. At common law, there were conflicting views as to whether a court could make non-publication orders binding on anyone not present in the courtroom: see, for example, Hogan v Hinch (2011) 243 CLR 506 at ; Commissioner of Police NSW v Nationwide News Pty Ltd (2008) 70 NSWLR 643 at –; and John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 at . Section 7 resolved that conflict in favour of a wide power: Rinehart v Welker (2011) 93 NSWLR 311;  NSWCA 403 at .
A limitation on that power based upon Constitutional validity arises from Sch 5 of the Broadcasting Services Act 1992 (Cth): Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim, above, at –. This case should be considered in relation to any proposed order dealing with the internet.
A court can make a suppression or non-publication order on its own initiative or on application by a party to the proceedings: s 9. Those persons entitled to be heard on an application include, in s 9(2)(d), a “news media organisation”.
Suppression or non-publication order must be “necessary”
Section 8(1) of the Act sets out the grounds upon which an order can be made and each is prefaced in terms of “necessity”. At common law, necessity arose only in “wholly exceptional” circumstances: John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at  per Spigelman CJ. A “high level of strictness” applied in determining whether it was really necessary to exercise the power to suppress disclosure or publication: O’Shane v Burwood Local Court (NSW) (2007) 178 A Crim R 392 at ; John Fairfax Publications Pty Ltd v Ryde Local Court at -. In BUSB v R (2011) 209 A Crim R 390, Spigelman CJ addressed the test of necessity in the context of a screening order and said where the test impinged on a fundamental principle of the administration of criminal justice, in that case the right to confront accusers, “the test must be applied with a higher level of strictness”: at .
However, see the discussion as to the meaning of “necessary” in s 8 in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim at –. Bathurst CJ agreed at  that the meaning of “necessary” depends upon its context and upon the particular grounds relied upon and the factual circumstances giving rise to the order in question. The Chief Justice said: “Although it is not sufficient, in my opinion, that the orders are merely reasonable or sensible, I agree that the word ‘necessary’ should not be given a narrow meaning.” Undue weight should not be placed upon practices which preceded the commencement of the Act: State of NSW v Plaintiff A  NSWCA 248 at .
Under s 8(1), an order may be made when the court thinks it is necessary:
to prevent prejudice to the proper administration of justice,
to prevent prejudice to the interests … in relation to national or international security,
to protect the safety of any person,
to avoid causing undue distress or embarrassment to a party to, or witness in, criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Div 10 of Pt 3 of the Crimes Act 1900),
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.
The correct approach to the interpretation of s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 is the “calculus of risk” approach [not “probable harm”], which requires the nature, imminence and degree of likelihood of harm to the relevant person when determining whether an order is necessary to protect the safety of the person: AB (A pseudonym) v R (No 3) (2019) 97 NSWLR 1046 at -; Darren Brown (a pseudonym) v R (No 2)  NSWCCA 69 at  ]-, -. There is nothing in the statutory wording of the section to indicate that it is intended to be limited to physical safety. The wording is apt to include psychological safety, including aggravation of a pre-existing mental condition as well as the risk of physical harm, by suicide or other self-harm, consequent on the worsening of a psychiatric condition: AB (A pseudonym) v R (No 3) at .
In sexual assault proceedings, a court may make an order under s 8(1)(d) only if there are exceptional circumstances: s 8(3). See See Qiangdong Liu v Fairfax Media Publications Pty Ltd  NSWCCA 159, where it was said reluctance at being publicly associated with a criminal trial was not a basis for a non-publication order: at –.
Section 8(1)(e) permits an order when the court thinks 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.
For a detailed examination of s 8 see Reinhart v Welker  NSWCA 425. For issues on the construction of s 8(1)(c), see D1 v P1  NSWCA 314 at –. Some species of litigation are inimical to the notion that anything that occurs in a court should be publicly available. Examples includes injunctions to prevent publication of confidential information, or a trade secret, or disputes as to privilege. It is also clear the interests of justice to which the court may have regard when determining an application for a non-publication order include those beyond the immediate litigation. Examples include orders which, if not made, will deter future applicants from coming forward: DRJ v Commissioner of Victims Rights at –. Adoption applications are also ordinarily heard in the absence of the public.
The internet has created challenges in criminal and civil jurisdictions when a court is considering the kinds of non-publication and suppression orders that might be directed to the media or other publishers of online content. In the criminal justice system, the overriding need to protect the fairness of a trial may result in “take-down” orders of specified content from the internet. Jurisdictional questions and questions about the efficacy of such orders may arise. See further Criminal Trial Courts Bench Book at [1-354].
A take-down order will fail the necessity test under s 8(1) if it is futile. However, an order will not necessarily be futile merely because the court is unable to remove all offending material from the internet or elsewhere, or the material is available on overseas websites: AW v R  NSWCCA 227 at ; Nationwide News Pty Ltd v Quami (2016) 93 NSWLR 384 at ; Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at .
When information on the internet is involved, relevant internet service providers must be identified and given the opportunity to remove relevant material before an order is sought. The test of necessity will not usually be satisfied unless such a request has been made and the parties, after a reasonable opportunity, have failed, or have indicated they do not intend, to remove the relevant material: Fairfax Digital at .
A take down order may be made as a means of preventing the continuation of scandalising contempt. There is no reason to refuse to make the order because it may be an ineffective way to stop the scandalising behaviour, if it goes only part of the way to remedying the perceived problem; or if it is only of limited utility: Dowling v Prothonotary of the Supreme Court of NSW (2018) 99 NSWLR 229 at ; AB (A pseudonym) v R (No 3)  NSWCCA 46 at –. In Dowling, the court upheld a finding of contempt against the applicant for breach of non-disclosure and suppression orders when he published allegations on his website and uploaded to YouTube an audio visual recording of court proceedings and provided a hyperlink to the recording on his website.
Once a ground under s 8(1) is made out, the court has no discretion to refuse to make the order; it must be made: Hogan v Australian Crime Commission (2010) 240 CLR 651 at ; AB (A pseudonym) v R (No 3)  NSWCCA 46 at –.
Content of suppression and non-publication orders
See also Checklist for suppression orders in Criminal Trial Courts Bench Book at [1-359].
An order must specify:
the grounds on which it was made: s 8(2)
any exceptions or conditions it is subject to: s 9(4)
the information to which it applies: s 9(5)
the place to which it applies, which may be anywhere in the Commonwealth. An order can only apply outside New South Wales where the court is satisfied that it is necessary to achieve the purpose of the order: s 11
the period for which the order applies: s 12.
In certain circumstances, it may be necessary to take appropriate steps to ensure the media is notified of either a suppression or non-publication order. In the Supreme and District Court this is done by the associate notifying the Supreme Court’s Public Information Officer.
The appropriate treatment of judgments relating to suppression matters is discussed in D1 v P1 (No 2)  NSWCA 440 at –.
Review and appeals
Orders made under the Act are subject to review and, by leave, appeal: ss 13–14. The court that made the order can review it on its own initiative, or on the application of a person entitled to apply for review: s 13(1).
An appeal, by leave, may be heard against a decision concerning an order: s 14(1). The powers of an appellate court on review are set out in s 14(4). An appeal is by way of rehearing and fresh evidence may be given: s 14(5). The hearing on appeal is a hearing de novo: Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim at .
[1-0420] Common law in relation to suppression and non-publication orders
In BUSB v R (2011) 209 A Crim R 390, which concerned the District Court’s power to make screening orders, Spigelman CJ confirmed that the implied powers of a court are directed to preserving its ability to perform its functions in the administration of justice: at . The Court Suppression and Non-publication Orders Act 2010 does not limit or otherwise affect any inherent jurisdiction a court has to regulate its proceedings or deal with contempt of court: s 4.
Given the broad power conferred by the Act and given the myriad statutory provisions concerning the suppression or non-publication of material and the circumstances in which a court might be closed, it is difficult to determine what of the common law remains effective. The common law in relation to the open justice principle and the test of necessity will still inform the relevant parts of the Act.
[1-0430] Other statutory provisions empowering non-publication orders
The Court Suppression and Non-publication Orders Act 2010 does not limit the operation of a provision under any other Act permitting a court to make orders of this kind: s 5. The following provisions empower a court, in specified circumstances, to make suppression or non-publication orders. This list is not exhaustive.
Evidence (Audio and Audio Visual Links) Act 1998, s 15 empowers a “recognised court” to prohibit or restrict the publication of evidence given in the proceedings or the name of a party to or witness in the proceedings.
Surveillance Devices Act 2007, s 42(5)–(6) require a court to make an order prohibiting or restricting publication of information revealing details of surveillance device technology or methods of installation, use or retrieval of devices, unless the interests of justice otherwise require.
Evidence Act 1995, s 126E(b), in Pt 3.10 Div 1A entitled “Professional confidential relationship privilege” empowers a court to make suppression orders where the court forms the view such an order is necessary to protect the safety and welfare of a “protected confider” (defined in s 126A(1)). Given such an order constitutes a diminution of the operation of the principle that justice should be administered in open court, the justification for such an exception should be narrowly construed: Nagi v DPP  NSWCCA 197 at .
Lie Detectors Act 1983, s 6(3) provides that a court may forbid publication of unlawfully obtained evidence from lie detectors.
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: s 186(2) of the Adoption Act 2000.
The Supreme Court may order the non-publication of any report relating to the evidence or other proceedings or of any order made on an application for the appointment of a receiver under s 107(2) of the Conveyancers Licensing Act 2003. A similar power to make non-publication orders is conferred by s 140(2) of the Property and Stock Agents Act 2002 in relation to an application for the appointment of a receiver.
Other statutory provisions include:
family law provisions like s 121 Family Law Act 1975 (Cth)
child protection provisions like s 29(1)(f) and s 105 Children and Young Persons (Care and Protection) Act 1998, and s 25 Status of Children Act 1996
minors protection provisions like s 43(5) Minors (Property and Contracts) Act 1970
health law related provisions like Sch 2, cl 7 of the Mental Health Act 2007.
[1-0440] Self-executing provisions
A number of statutory provisions prohibit the publication of information in particular circumstances. Listed below are some examples of such provisions:
Evidence Act 1995, s 195 prohibits the publication of prohibited questions (either disallowed under s 41 or because an answer would contravene the credibility rule or it was a question to which the court refused to give leave under Pt 3.7 “Credibility”). The express permission of the court is required before such prohibited questions can be published.
Status of Children Act 1996, s 25 prohibits the publication of particulars identifying any person by, or in relation to whom, an application for a declaration of parentage or for an annulment order (in relation to parentage) under Pt 3 Div 2 or Div 3 of the Act, has been brought.
Court Security Act 2005, s 9A(1) provides that 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 the 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 in s 9A(2).
[1-0450] Closed court
Pursuant to s 71 CPA, civil proceedings may be conducted in the absence of the public in certain circumstances, including where the presence of the public would defeat the ends of justice (s 71(b)), if the business does not involve the appearance before the court of any person (s 71(e)), or if the court thinks fit (s 71(f)). Other designate circumstances are outlined in s 71.
An order to close the court is considered a serious departure from the principle of open justice and should not be made if some less drastic mechanism, such as the use of pseudonyms or sealed envelopes would achieve the necessary purpose. Orders to close the court may be made subject to certain conditions.
An order to close the court to protect trade secrets or confidential commercial information may be valid in certain exceptional circumstances: R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society  QB 227; David Syme & Co Ltd v General Motors-Holden’s Ltd  2 NSWLR 294 per Street CJ at 307. The validity of the order was not really determined in that case, as the parties did not dispute that aspect of the earlier proceedings. However, on appeal, the request to close the court to protect confidential commercial information was refused. It was decided that the confidentiality could be maintained by avoiding detailed reference to the information during the appeal and other such strategies without having to close the court: David Syme & Co Ltd v General Motors-Holden’s Ltd per Street CJ at 296–297.
Adoption Act 2000, s 186(2)
Children and Young Persons (Care and Protection) Act 1998, ss 29(1)(f), 105
CPA, s 71
Conveyancers Licensing Act 2003, s 107(2)
Court Security Act 2005, s 9A
Court Suppression and Non-publication Orders Act 2010, ss 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14
Evidence Act 1995, ss 41, 126A, 126E(b), 195
Evidence (Audio and Audio Visual Links) Act 1998, s 15
Family Law Act 1975 (Cth), s 121
Lie Detectors Act 1983, s 6(3)
Mental Health Act 2007, Sch 2, cl 7 (repealed)
Minors (Property and Contracts) Act 1970, s 43(5)
Property and Stock Agents Act 2002, s 140(2)
Status of Children Act 1996, s 25
Surveillance Devices Act 2007, s 42(5)-(6)
J Spigelman, “Seen to be done: the principle of open justice” (2000) 74 ALJ 290 (Pt 1) and 378 (Pt 2).
B Fitzgerald and C Foong, “Suppression orders after Fairfax v Ibrahim: Implications for internet communications” (2013) 37 Aust Bar Rev 175.