Closed court, suppression and non-publication orders

[1-349] Introduction

The powers of a court to make closed court, suppression and non-publication orders are primarily contained in the Court Suppression and Non-publication Orders Act 2010 (“the Suppression Act”) which commenced on 1 July 2011. Provisions commonly relevant in criminal proceedings are also in the Criminal Procedure Act 1986 and the Children (Criminal Proceedings) Act 1987.

Consideration of whether orders should be made under any of the relevant statutory provisions should, where practicable, be dealt with at the outset of proceedings.

When a prohibition is to remain in force (as it often does) advise everyone, including the entire jury panel, of the legal position.

See the Supreme Court of NSW, “Identity theft prevention and anonymisation policy” for guidance as to the publication of personal or private information in court judgments.

See also Supreme Court Practice Note CL 9 and District Court Criminal Practice Note 8, both titled “Removal of judgments from the internet”.

Common law and suppression and non-publication orders

The Suppression Act does not limit or otherwise affect any inherent jurisdiction a court has to regulate its proceedings or deal with contempt of court: s 4.

The implied powers of a court are directed to preserving its ability to perform its functions in the administration of justice: BUSB v R (2011) 80 NSWLR 170 per Spigelman CJ at [28].

[1-350] The principle of open justice

The principle of open justice is a fundamental aspect 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 per Spigelman CJ at [18].

Section 6 of the Suppression Act 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”. Decisions since the commencement of the Act confirm the continuing importance of the open justice principle: Rinehart v Welker [2011] NSWCA 403 at [26], [32]; Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 293 ALR 384 at [9]. Section 6 also reflects the legislative intention that orders under the Act should only be made in exceptional circumstances: Rinehart v Welker at [27].

The principle of open justice may require publication of a judgment confirming the making of non-publication or suppression orders with appropriate redactions to maintain the anonymity of parties or particular aspects of proceedings as have been determined to be necessary. Although the parties may reach agreement as to appropriate redactions, the court must determine for itself whether the proposed redactions should be the subject of a suppression order, having regard to, in particular, the emphasis in s 6 on the need to safeguard the public interest in open justice: D1 v P1 (No 2) [2012] NSWCA 440 at [6]. The redacted judgment must remain intelligible, particularly as to the matters of principle justifying the decision to suppress the particular information: D1 v P1 (No 2) at [7].

[1-352] Court Suppression and Non-publication Orders Act 2010

The Suppression Act 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).

A “non-publication order” and a “suppression order” are defined in s 3. A “party” is broadly defined in s 3.

A court can make a suppression or non-publication order on its own initiative or on application by a party to the proceedings or by any other person considered by the court to have sufficient interest in the making of the order: s 9. Those persons entitled to be heard on an application are set out in s 9(2)(d) and include news media organisations.

While at common law there were conflicting views as to whether a court could make non-publication orders which were binding on third parties (see Hogan v Hinch (2011) 243 CLR 506 at [23]), a concern to resolve that issue underlies the enactment of s 7: Rinehart v Welker [2011] NSWCA 403 at [25]; see also the Agreement in Principle Speech for the Court Suppression and Non-publication Orders Bill 2010, NSW, Legislative Assembly, Debates, 29 October 2010, p 27195. This seems to be put beyond doubt by the decision in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 293 ALR 384 where Basten JA (with whom Bathurst CJ and Whealy JA agreed) concluded that, provided they do not purport to bind the “world at large” and that certain conditions are met, orders can be made which are binding on third parties: [92]–[102].

[1-354] Grounds for and content of suppression or non-publication orders

Section 8(1) of the Act sets out the grounds upon which an order can be made and each is prefaced in terms of whether the order is “necessary”. That term should not be given a narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 293 ALR 384 at [8], [45]. What is necessary depends on the particular grounds relied upon in s 8 and the factual circumstances giving rise to the order: Fairfax Digital at [8]. The word “necessary” describes the connection between the proposed order and the identified purpose; its meaning will depend on the context in which it is used: Fairfax Digital at [46]. To establish that an order is necessary, it is not enough that it appears to the Court that the proposed order is convenient, reasonable or sensible. Whether necessity has been established depends on the nature of the orders sought and the circumstances in which they are sought: D1 v P1 [2012] NSWCA 314 at [48]; Hogan v Australian Crime Commission (2010) 240 CLR 651 at [31].

It may be necessary to make separate (and different) orders in respect of different types of information in the same proceedings. See for example, Bissett v Deputy State Coroner [2011] NSWSC 1182 where RS Hulme J concluded that the nature of the medium, publication of which was sought to be suppressed, was a relevant matter to be taken into account. In that case, his Honour concluded that a DVD of relevant events was likely to have a greater impact than the transcript of evidence and that publication of the DVD should therefore be suppressed: at [25]–[27].

As to necessity at common law see: John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 per Spigelman CJ at [40]–[45]; O’Shane v Burwood Local Court (NSW) (2007) 178 A Crim R 392 at [34]. See also BUSB v R [2011] NSWCCA 39 per Spigelman CJ at [33] which addressed the test of necessity in the context of a screening order.

Content of the order

An order must specify:

  • the grounds on which it was made: s 8(2)

  • any exceptions or conditions to which it is subject: 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 NSW where the court is satisfied that is necessary to achieve the order’s purpose: s 11

  • the period for which the order applies: s 12.

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. This could be done by the Director of Public Prosecutions. If the requested action was not taken within a reasonable time, the Director could seek an order in respect of that material: Fairfax Digital at [94]. 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 [98].

See R v Perish [2011] NSWSC 1102; R v Perish [2011] NSWSC 1101; R v DEBS [2011] NSWSC 1248; X v Sydney Children’s Hospitals Specialty Network [2011] NSWSC 1272 for examples of types and forms of orders made under the Act and those parts of s 8(1) relied upon by the court making the relevant order.

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 Courts this is done by the associate notifying the Supreme Court’s Public Information Officer.

Review and appeals

Orders made under the Act are subject to review and appeal: ss 13–14. Section 13 is confined to a review by the original court which granted the relevant order while s 14 deals with an appeal by leave, either in respect of the original order or the order of that court on a review: D1 v P1 [2012] NSWCA 314 at [42]. Given the powers under s 14(5) to admit additional or substituted evidence, together with the fact that, subject to leave, a review under s 13 and an appeal under s 14 appear to be alternatives, the hearing on the appeal is a hearing de novo: D1 v P1 at [43]; Fairfax Digital at [6].

[1-356] Other statutory provisions empowering non-publication or suppression

The Suppression Act does not limit the operation of a provision under any other Act permitting a court to make orders of this kind: s 5. Other provisions fall 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 Court Information Act 2010, which is yet to commence, will also make provision for access to information held by the courts.

See also Non-publication and suppression orders at [87-300]ff of the Local Court Bench Book for lists of provisions where there is automatic non-publication or suppression orders and of those requiring a court order.

Following is a non-exhaustive list of specific provisions enabling a court to make suppression or non-publication orders. Many will not require consideration in the context of a criminal trial.

  • Crimes (Domestic and Personal Violence) Act 2007, s 45(2). Note s 45(1) which positively prohibits publication or broadcast in respect of children

  • Evidence (Audio and Audio Visual Links) Act 1998, s 15

  • Surveillance Devices Act 2007, s 42(5)–(6)

  • Evidence Act 1995, s 126E(b), relating to “Professional confidential relationship privilege”. Such an order constitutes a diminution of the operation of the open justice principle, the justification for such an exception should be narrowly construed: Nagi v DPP [2009] NSWCCA 197 at [30]

  • Lie Detectors Act 1983, s 6(3).

Commonwealth provisions

The following Commonwealth provisions include:

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

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

[1-358] Closed courts

Protection of complainants from publicity in proceedings for a “prescribed sexual offence”

Where proceedings are in respect of a prescribed sexual offence, as defined in s 3 Criminal Procedure Act 1986, ss 291, 291A and 291B of that Act require that certain proceedings, or parts of proceedings, for a prescribed sexual offence be held in camera.

When a complainant’s evidence is being given or heard before the court (whether this is in person or via an audio visual or audio recording) proceedings are to be held in camera unless otherwise ordered: s 291(1). Where a record of the original evidence of the complainant is tendered in proceedings by the prosecutor under Ch 3, Pt 5, Div 3 Criminal Procedure Act, the record does not need to be tendered in camera: s 291(6).

Media access to such proceedings is governed by s 291C of the Act. The court may make arrangements for media representatives to view or hear evidence or a record of it, in circumstances where the media is not entitled to be present in the courtroom: s 291C(2). For details of such procedures: see District Court Criminal Practice Note 4, “Media access to sexual assault proceedings heard in camera”, in Miscellaneous at [10-500].

Section 302(1) of the Act may also be relevant. That section empowers the court to order that all or part of evidence related to a protected confidence be given in camera.

Children in criminal proceedings

The court may exclude from proceedings involving children anyone not directly interested in the proceedings: s 10 Children (Criminal Proceedings) Act 1987. Any family victim is entitled to remain: s 10(1)(c). Media representatives may remain unless the court otherwise directs: s 10(1)(b). Section 15A of the Act prohibits the publication or broadcasting of the names of children involved as offenders, witnesses, or brothers and sisters of victims in criminal proceedings.

Sections 15B–F provide exceptions to the prohibition on publication or broadcast in certain circumstances including where:

(a) 

an order has been made by a court authorising the publication or broadcast of the name of a person convicted of a serious children’s indictable offence: s 15C(1). The matters to be considered by the court are set out in s 15C(3)

(b) 

a person who is 16 years or above at the time of publication or broadcasting has consented: s 15D(1)(b). As to whether a child of 16 or 17 years of age can consent see s 15D(3)

(c) 

the name of a deceased child is published or broadcast with the consent of the child’s senior available next of kin: s 15E(1).

As to Children’s Court proceedings: see ss 104 and 105 Children and Young Persons (Care and Protection) Act 1998.

Terrorism

Terrorism (Police Powers) Act 2002, s 26P requires that proceedings heard in the Supreme Court concerning applications making or revoking a preventative detention order or a prohibited contact order must be heard in the absence of the public. See also ss 27Y and s 27ZA.

Witness protection

Witness Protection Act 1995, s 26 provides that where the identity of a participant in the witness protection program is in issue or may be disclosed, the court must, unless of the view that the interests of justice require otherwise, hold that part of the proceedings in private and make an order suppressing the publication of the evidence given to ensure the participant’s identity is not disclosed. See also s 31E which concerns questioning, with leave, a witness that may disclose a protected person’s protected identity.

Commonwealth provisions

The Crimes Act 1914 (Cth) and Criminal Code (Cth) contain provisions enabling a court to exclude all or some members of the public and make orders concerning the non-publication of evidence in particular proceedings. See, for example, s 85B in Pt VII titled “Official secrets and unlawful soundings”, which requires the court to be satisfied “such a course is expedient in the interest of the defence of the Commonwealth”. Section 93.2 of the Code, in Pt 5.2 titled “Offences relating to espionage and similar activities”, is in similar terms except that the test to be applied is whether the court is satisfied the order is “in the interest of the security or defence of the Commonwealth”. Both sections enable orders to be made limiting access to evidence used in the particular proceedings. The contravention of an order is an offence. See also the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) which establishes a regime for dealing with national security information in federal criminal proceedings.

[1-359] Self-executing prohibition of publication provisions

A number of statutory provisions prohibit the publication of information in particular circumstances. See the following:

  • Crimes Act 1900, s 578A prohibits the publication of matters identifying a complainant in proceedings in respect of a prescribed sexual offence. As to publication, once proceedings are finalised see: ss 578A(4)(a)–(f) and 578A(3).

  • Evidence Act 1995, s 195 prohibits the publication of prohibited questions, the nature of which are set out in that section.

  • Crimes (Domestic and Personal Violence) Act 2007, s 45(1) prohibits the publication of names or identifying information concerning children in AVO proceedings.

  • Crimes (Sentencing Procedure) Act 1999, ss 51B and 100H concerning the publication or broadcast of names specified in parole orders and non-association orders (other than the offender). Section 36C Bail Act 1978 is in similar terms.

  • Law Enforcement (Controlled Operations) Act 1997, s 28.

  • Law Enforcement and National Security (Assumed Identities) Act 2010, s 34.

  • Crimes (Appeal and Review) Act 2001, s 111.

  • Child Protection (Offenders Prohibition Orders) Act 2004, s 18.

  • Status of Children Act 1996, s 25.

Commonwealth provisions

Section 15MK(4) Crimes Act 1914 (Cth) makes provision for orders necessary to protect the identity of an “operative” for whom a witness identity protection certificate has been filed.

Section 15YR(1) Crimes Act 1914 provides for an offence of publishing a matter which identifies a child witness in a child proceeding or a vulnerable adult complainant in a vulnerable adult proceeding. Each proceeding is defined in ss 15Y, 15YA and 15YAA.

Section 15YR(1) Crimes Act 1914 provides for an offence of publishing a matter which identifies a child witness or vulnerable adult complainant. A person commits an offence if:

(a) 

the person publishes any matter; and

(b) 

the person does not have the leave of the court to publish the matter; and

(c) 

the matter:

(i) identifies another person, who is a person to whom subsection (1A) applies (the vulnerable person) in relation to a proceeding, as being a child witness or vulnerable adult complainant; or

(ii) is likely to lead to the vulnerable person being identified as such a person; and

(d) 

the vulnerable person is not a defendant in the proceeding.

Penalty: imprisonment for 12 months, or 60 penalty units, or both.

Pursuant to s 15YR(1A), s 15YR(1) applies to a child witness for a child proceeding and a vulnerable adult complainant for a vulnerable adult proceeding.

Section 28(2) Witness Protection Act 1994 (Cth) provides, inter alia, the court must make such orders relating to the suppression of publication of evidence given before it as, in its opinion, will ensure that the identity of participant is not made public.