Court Suppression and Non-publication Orders Act 2010

The Act casts a wide net. “Court” is defined in s 3 to include the Supreme Court, Land and Environment Court, Industrial Court, District Court, Local Court, Children’s Court, and any other tribunal or person prescribed by regulation. Consequently, the statute binds every judicial officer and every quasi-judicial body within that definition.

Parties to proceedings are directly affected. The definition in s 3 is deliberately expansive: it includes complainants or alleged victims in criminal matters, any person named in evidence, and, for concluded proceedings, anyone who was a party before they ended. Witnesses, including expert witnesses, fall within the protective scope of orders made under s 7(a).

News media organisations receive explicit procedural rights. They are entitled to appear and be heard on any application for an order (s 9(2)(d)), on any review (s 13(2)(d)), and on any appeal (s 14(3)(d)). The term is defined in s 3 as a commercial enterprise that broadcasts or publishes news or a public broadcasting service. Individual journalists are not given separate standing but will ordinarily be covered either as persons with “sufficient interest” or through their employer.

Government agencies of the Commonwealth, a State or a Territory are likewise given express rights of appearance (ss 9(2)(c), 13(2)(c), 14(3)(c)). This reflects the national-security and law-enforcement grounds in s 8(1)(b) and (c).

The general public is affected in two opposing ways. On the one hand, the presumption in favour of open justice (s 6) protects the public’s right to know what occurs in court. On the other hand, any member of the public who publishes or discloses information in breach of an order commits an offence under s 16 if reckless as to the existence or terms of the order. The broad definition of “publish” in s 3 (which includes internet dissemination) means that ordinary social-media users can be caught.

Finally, legal practitioners advising clients on compliance, drafting applications, or appearing on reviews and appeals must master the statute’s procedural and substantive requirements. The Act therefore shapes the daily practice of criminal, civil, and media lawyers across New South Wales and, to the extent orders are made extraterritorially, in other Australian jurisdictions.

The statute creates a mixture of duties and rights that are largely procedural but rest on substantive thresholds.

Courts have a duty under s 6 to treat open justice as a primary objective and must take that into account in every suppression or non-publication decision. When an order is made, the court must specify the ground or grounds (s 8(2)) and describe the suppressed information with sufficient particularity (s 9(5)). The court is under a further duty to ensure that the duration of any order is no longer than reasonably necessary (s 12(2)).

Applicants for orders—whether parties, victims, or media—have the right to be heard. Any person the court considers to have a “sufficient interest” may apply (s 9(1)(b)) and may appear on review or appeal. News media organisations enjoy an express, non-discretionary right of appearance at every stage.

Persons potentially affected by an order enjoy the right to seek review (s 13) or, with leave, to appeal (s 14). The appeal is by way of rehearing and permits fresh evidence, a significant forensic right that can allow later developments (for example, the passage of time reducing the risk of prejudice) to be placed before the appellate court.

Public officials enjoy a statutory carve-out in s 15(1): a suppression order does not prevent disclosure made in the course of performing public functions connected with the proceedings or in accordance with a court protocol for notifying media of the existence of an order. The Bureau of Crime Statistics and Research receives a similar exemption (s 15(2)).

On the duty side, any person who becomes aware of an order must refrain from reckless contravention. The mental element is recklessness, not knowledge, so once a person is put on notice of the possible existence of an order they cannot safely ignore that possibility.

Courts themselves must act urgently on interim-order applications (s 10(2)) and, when making orders that extend beyond New South Wales, must be satisfied that extraterritorial operation is necessary (s 11(3)). These are mandatory considerations that, if overlooked, expose the order to successful review or appeal.

Section 16(1) creates a summary offence of reckless contravention of a suppression or non-publication order. The maximum penalty for an individual is 1,000 penalty units (currently $110,000) or 12 months’ imprisonment, or both. For a body corporate the maximum is 5,000 penalty units ($550,000). These are substantial figures intended to deter large media organisations.

The Act deliberately preserves the court’s contempt power. Conduct may be punished as contempt even though it could be prosecuted as an offence, and vice versa (s 16(2)–(3)). However, if the same conduct constitutes both, the offender is not to be punished twice (s 16(4)). This avoids the risk of double jeopardy while allowing the court to choose the more appropriate pathway. Contempt proceedings remain available for deliberate breaches where the higher sanctions of the inherent jurisdiction are thought warranted.

Enforcement proceedings for the statutory offence must be commenced within two years (s 17(3)). If brought in the Local Court the monetary penalty is capped at 100 penalty units for an individual or 500 for a corporation, regardless of the higher maxima stated in s 16(1) (s 17(2)). This reflects the summary nature of Local Court proceedings. The Supreme Court in its summary jurisdiction is not so limited.

Because an order may be expressed to operate throughout the Commonwealth, enforcement outside New South Wales is possible, although the practical mechanisms for interstate enforcement of penalties would rely on service and execution of process legislation or reciprocal arrangements. The Act does not itself create a registration regime; rather, it contemplates that the extraterritorial order will be respected and, if breached, may be dealt with under the law of the place of breach or by contempt proceedings brought back in the issuing court.

Sections 4 and 5 are the key interaction provisions. Section 4 states that the Act “does not limit or otherwise affect any inherent jurisdiction or any powers that a court has apart from this Act to regulate its proceedings or to deal with a contempt of the court.” Thus the common-law contempt power and the inherent jurisdiction to suppress material (for example, to protect the integrity of a jury trial) survive intact.

Section 5 preserves the operation of any other statutory provision that either itself prohibits or restricts publication or authorises a court to do so. Examples include the Children (Criminal Proceedings) Act 1987 (NSW) s 15A (suppression of identities of child offenders), the Crimes Act 1900 (NSW) provisions relating to sexual offence complainants, and Commonwealth legislation such as the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth). The Court Suppression and Non-publication Orders Act 2010 therefore operates as an additional, not exclusive, source of power.

The definition of “court” in s 3(b) allows regulations to prescribe additional tribunals. At present the definition captures the major NSW courts; any expansion would be effected by regulation rather than primary amendment.

The appeal pathway in s 14 dovetails with the ordinary appellate structure of each court. Where a court’s decisions are reviewed rather than appealed, s 14(6) converts the statutory appeal right into a right of review so that nomenclature does not defeat the statutory intention.

Section 15 carves out specific disclosures that remain lawful notwithstanding a suppression order. These carve-outs prevent the statute from inadvertently criminalising routine official communications or statistical reporting. The 2014 amendment that inserted the Bureau of Crime Statistics and Research exemption illustrates how the Act is adjusted to maintain compatibility with other arms of the justice system.

Finally, Schedule 1 cl 2 continues the operation of orders made under repealed legislation listed in Schedule 2. This ensures continuity and prevents a lacuna on commencement.

The text records several amendments. In 2016 and 2023 the definition of “court” was updated by the inclusion of the Industrial Court and later adjustments (s 3). These were machinery changes to keep the Act’s coverage current with changes in the court hierarchy.

The 2018 amendments (No 29 and No 33) are more substantive. They introduced the “exceptional circumstances” requirement in s 8(3) before a suppression or non-publication order can be made to protect a defendant in sexual offence proceedings. Previously the same test that applied to complainants could be used for accused persons; Parliament tightened the test to reflect concern that defendants were obtaining suppression too readily in high-profile sexual cases. The amendment also required the ground or grounds to be stated on the face of the order (s 8(2)), improving transparency and facilitating appellate scrutiny.

The 2020 amendment adjusted the limitation period and Local Court penalty caps in s 17. The two-year limitation period was introduced to give prosecutors a reasonable window in which to detect and charge breaches that may not come to light immediately, especially where online publication is involved.

These changes have been incremental and directed at refining the balance between open justice and necessary protection rather than expanding the Act’s reach. The 2018 reform in particular responded to media and public criticism that suppression orders were being granted too liberally in sexual offence matters involving prominent defendants.

The Act itself does not record decided cases, but its structure anticipates certain recurring controversies. The requirement in s 8(1)(e) that the public interest in suppression “significantly outweighs” the public interest in open justice sets a high bar that has been the subject of vigorous argument in many applications. Media organisations routinely rely on s 9(2)(d) and s 14(3)(d) to contest applications, arguing that the necessity test is not met and that less restrictive alternatives (such as delayed publication or pseudonym orders) are available.

The distinction between suppression and non-publication orders has generated practical difficulty. Because a suppression order catches any disclosure, it can inadvertently criminalise private conversations; courts have therefore preferred non-publication orders where the risk is limited to media dissemination. The requirement in s 9(5) that the order be drafted with “sufficient particularity” is designed to prevent overly broad drafting, yet litigants still contest whether an order’s wording is impermissibly vague.

Extraterritorial orders under s 11 have been controversial in the digital age. A suppression order expressed to operate throughout the Commonwealth may be impossible to police on the internet, raising questions of comity with other jurisdictions and the practicality of enforcement. Appellate courts are therefore cautious before authorising such orders, exactly as s 11(3) requires.

The “reckless” mental element in s 16(1) has been criticised by media outlets on the basis that journalists may be chilled from publishing material whose suppression status is unclear. The two-year limitation period and the availability of the statutory defence of honest and reasonable mistake (via the general criminal law) are intended to mitigate that concern, but the tension remains.

Controversy also surrounds the interaction with social media. Ordinary users who “like” or repost material may fall within the broad definition of “publish”. Prosecutorial discretion becomes critical; the Act relies on sensible enforcement rather than literal application to every retweet.

Most practitioners assume that once an order is made it binds the world and cannot be challenged later. That is incorrect. Section 13 permits review at any time by any person with sufficient interest, and s 14 allows an appeal by way of rehearing with fresh evidence. A change in circumstances—such as the conclusion of a trial or the passage of time—can therefore justify a successful application to vary or revoke an order years later. Many orders are expressed to operate “until further order”, which invites such applications.

Another common error is to treat all sexual-offence suppression applications under the same test. Section 8(3) now requires “exceptional circumstances” before an order can be made to protect a defendant. Failure to address that higher threshold will invalidate the order on appeal.

The geographic reach of orders is another trap. Lawyers frequently ask for Australia-wide suppression without leading evidence that extraterritorial operation is “necessary” within the meaning of s 11(3). Appellate courts have repeatedly emphasised that this is a mandatory precondition, not a mere formality.

Interim orders under s 10 are sometimes sought and granted on an ex-parte basis and then forgotten. The statute imposes a duty on the court to determine the substantive application “as a matter of urgency”. Failure to do so can render the interim order vulnerable to immediate review.

Finally, many assume that a non-publication order automatically prevents disclosure to insurers, regulators, or professional bodies. Section 15(1) only exempts public officials performing functions connected with the proceedings. Private disclosures to insurers or disciplinary bodies may still constitute a breach unless the order is carefully drafted to contain exceptions under s 9(4). Drafting the exceptions at the time the order is made is therefore critical; attempting to amend later can be slow and expensive.

Compliance begins with knowledge of the existence and exact terms of any order. Courts are required by s 9(4) to specify exceptions and conditions, and by s 9(5) to describe the suppressed information with particularity. Practitioners should obtain a copy of the order itself rather than relying on second-hand descriptions.

Organisations that routinely deal with court material—media outlets, legal publishers, social-media platforms—should maintain internal protocols for checking suppression orders. The Act contemplates that courts may adopt procedures for notifying news media organisations (s 15(1)(b)), and many superior courts maintain online suppression-order registers. Subscription to those registers or use of commercial alert services is a prudent compliance step.

When applying for an order, counsel should address each element of s 8(1) with evidence, not mere assertion. For ground (a) this usually requires affidavit material demonstrating the specific prejudice that would arise (for example, risk of jury contamination or identification of a protected witness). For ground (d) the applicant must show “undue” distress or embarrassment and, if the order would protect a defendant, the exceptional circumstances required by s 8(3).

Drafting is crucial. An order that is wider than necessary will be varied on review. Use of pseudonyms, redaction, or delayed publication should be considered before a total prohibition. Where extraterritorial operation is sought, evidence must be led that such operation is necessary; a bare assertion will not suffice.

Organisations that receive official notifications under court protocols should treat those notifications as triggering a due-diligence obligation. Recklessness can be established by wilful blindness. Systems should therefore ensure that notifications are promptly circulated to editorial or compliance staff with clear instructions on the scope of the order.

When advising clients who may have inadvertently breached an order, practitioners should consider whether the conduct can be defended on the basis that the person was not reckless. Prompt removal of material, an apology, and cooperation with the court will often be relevant to penalty or to the exercise of the court’s discretion not to punish as contempt.

Compliance is not merely negative (refraining from publication). It also requires active steps to ensure that suppressed material already in existence is not inadvertently disseminated through data-breach, cloud-storage misconfiguration, or internal email. For large organisations, a suppression-order compliance policy that identifies responsible officers, training requirements, and audit processes is now a standard risk-management tool.

In litigation, when acting for a party seeking to oppose an order, the statutory rights of appearance and the rehearing nature of any appeal should be used strategically. Fresh evidence of changed circumstances can be decisive. Conversely, when seeking an order, practitioners should anticipate media opposition and ensure that the necessity evidence is robust enough to withstand cross-examination and appellate scrutiny.

By following the statutory language—particularly the necessity test, the particularity requirement, the open-justice presumption, and the procedural rights of interested persons—practitioners can both obtain necessary protection and avoid the pitfalls that have led to many contested applications and successful appeals. The Act rewards careful drafting, timely applications, and continual vigilance in a digital environment where information, once released, is almost impossible to recall.