In New South Wales, courts follow the Court Suppression and Non-publication Orders Act 2010 (NSW). A suppression order or non-publication order must specify the ground or grounds based on which the order is made. 

Section 3 of the Act outlines the definitions of a suppression order and a non-publication order. A suppression order is an order that prohibits or restricts the disclosure of information by publication or otherwise. A 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.

The key test is necessity under section 8 of the Act, which also outlines the grounds the court considers for the order. 

The court must be satisfied that a suppression or non-publication order is necessary on one of the following grounds:

Ground 1 

To prevent prejudice to the proper administration of justice. For example, protecting a fair trial. 

Ground 2

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

Ground 3

To protect the safety of any person. 

Ground 4

For offences of a sexual nature, to avoid causing undue distress or embarrassment to a party or witness in criminal proceedings. But for the defendant, this usually requires exceptional circumstances. 

Ground 5

It is in the public interest, and that public interest significantly outweighs the public interest in open justice. 

Suppression is not granted based on embarrassment or reputational damage. 

In Commonwealth jurisdictions, like the Federal Court and High Court, the courts apply similar tests in considering suppression or non-publication under the relevant Acts, including the Judiciary Act 1903 (Cth) or the Federal Court of Australia Act 1976 (Cth). 

The court must consider the public interest in open justice as a primary objective. 

An order can be made if it is necessary to:

• Prevent prejudice to the administration of justice 
• Protect safety 
• National security 
• In sexually related cases, to avoid undue distress to a party or witness 

In New South Wales and the Federal Courts, name suppression is strictly applied. It requires strong evidence that the publication will cause serious harm and that the need for suppression outweighs open justice. 

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong, paralegal.

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