Court Suppression and Non-publication Orders Act 2010
The Court Suppression and Non-publication Orders Act 2010 commenced on 1 July 2011. It confers a statutory power on courts to make suppression and non-publication orders.
The “Closed court and non-publication orders” section of the Bench Book will be amended. Those parts of the Bench Book which have been superseded or require amendment include paragraphs [1-349], [1-352], [1-354] and [10-680]–[10-850].
This Bulletin describes the principal provisions of the Act. A discussion of the Act also appears in the “Recent Legislation” item on JIRS and in the article by Johnson P, “The Court Suppression and Non-publication Orders Act 2010” (2011) 23(6) JOB 45.
The 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 Act does not limit or otherwise affect the operation of a provision under any other Act which permits a court to make orders of this kind: s 5.
Under the Act, a non-publication order means “an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information)”: s 3. A suppression order means “an order that prohibits or restricts the disclosure of information (by publication or otherwise)”: s 3.
Section 7 is headed “Power to make orders” and provides:
A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of:
information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or
information that comprises evidence, or information about evidence, given in proceedings before the court.
A court may make a suppression order or non-publication order on its own initiative or on the application of a party to the proceedings concerned, or on application of any other person considered by the court to have a sufficient interest in making the order: s 9(1).
“Party” is broadly defined in s 3 of the Act and includes the complainant or (alleged) victim in criminal proceedings, and any person named in evidence given in proceedings.
Section 9(2) lists the persons “entitled to appear and be heard by the court on an application for a suppression order or non-publication order”.
An order may be made at any time during proceedings or after proceedings have concluded: s 9(3).
A court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the court, until the application is determined: s 10(1). If an order is made as an interim order, the court must determine the application as a matter of urgency: s 10(2).
Section 6 is headed “Safeguarding public interest in open justice” and provides:
In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
Section 8 sets out the grounds upon which an order can be made. Each ground is prefaced in terms of there being a necessity for the order. Section 8 provides:
A court may make a suppression order or non-publication order on one or more of the following grounds:
the order is necessary to prevent prejudice to the proper administration of justice,
the order is necessary to prevent prejudice to the interests … in relation to national or international security,
the order is necessary to protect the safety of any person,
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),
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.
An order must specify the ground or grounds on which it is made (s 8(2)); stipulate whether the order is subject to any exceptions or conditions (s 9(4)); and record the information to which it applies with sufficient particularity to ensure that it is limited to achieving the purpose for which it is made (s 9(5)). The order must specify the place to which it applies (s 11) and its duration (s 12). The court is required to ensure that the order operates for no longer than is reasonably necessary (s 12(2)).
The court making the order can also later review it: s 13(1). An appeal lies against a decision of a court to make, or not to make, an order or a decision to review or not to review: s 14. Persons with standing under s 9(1) are entitled to be heard at a review (s 13(2)) or on an appeal (s 14(3)).