Suppression Orders and Non-Publication Orders (Qld)

Open justice is the principle that court proceedings ought to be carried out transparently and subject to the scrutiny of the public. It is one of the most fundamental aspects of the justice system in Australia and is said to be necessary because it prevents abuses of power and maintains public confidence in the integrity, fairness and efficiency of the court. An exception to the principle of open justice exists where openness would interfere with the administration of justice and the ability of the court to ensure that justice is done. Where these circumstances exist, the court can make suppression orders or non-publication orders. Whether such an order is made is determined by weighing the principle of open justice against the harm that would be suffered should openness exist in relation to a particular matter.

What are Suppression Orders?

Suppression orders are orders made by a court to prohibit the publication of particular evidence or information where this is in the interests of justice. These orders can be made under commonwealth, state or territory legislation.

A suppression order is often sought for the furtherance of, or in the administration of justice and when special circumstances exist. These circumstances can be where the release of the information would:

• Endanger national or international security;
• Prejudice the administration of justice;
• Endanger the safety of any person;
• Cause hardship, distress of embarrassment to a child;
• Be offensive to public decency or morality.

Suppression orders and non-publication orders

Suppression orders prohibit the disclosure of information that would otherwise be available to the public during the course of an open court event. For example, where a suppression order is in place in relation to the identity of a person, the person’s name must not be spoken out loud in court during the proceeding.

In contrast, non-publication orders prohibit the publication of information that has been disclosed in open court to persons outside the court. This means that anyone who becomes aware of the information during the court event must not disseminate the information to the general public. For example, if a non-publication order is in place in respect of the identity of a person, the media must not publish their details and other persons who were present in court must not post these details on social media or elsewhere.

Either the defence or the prosecution can make an application for a suppression order or a non-publication order.

Statutory exceptions

All states and territories have laws that govern the use of suppression orders. In Queensland, some statutory provisions automatically prevent the publication of information in certain circumstances. For example, information relating to child witnesses and complainants and adult sexual assault complainants.

Children’s Court

Public reporting of proceedings in the Children’s Court is prohibited in Queensland. The Children’s Court is not open to the public to protect the privacy of children involved in court matters.

The Child Protection Act 1999 also contains provisions to protect the identity of a ‘notifier’, which is someone who has reported suspected harm to a child. When giving evidence to the court, leave to disclose a notifier’s identity may only be given in certain circumstances and only with leave of the court. The court must not grant leave unless satisfied, after considering the effects on the notifier and their family and the public interest in maintaining confidentiality, that the disclosure of the notifier’s identity is critical and in the public interest, or that the notifier has agreed to the evidence being given.

Criminal Law (Sexual Offences) Act 1987

Criminal proceedings relating to sexual offences usually occur in a closed court. Publication of information disclosed during these proceedings is also prohibited unless the court finds there are good and sufficient reasons for publication to occur. If the court makes an order for this to occur it will specify what particulars may be revealed and the extent to which publication is permitted.

Criminal Code 1899

If a person is committed for trial or sentence for an offence involving personal violence the court can prohibit the publication of the victim’s address. This order can only be made if the information is not relevant to the defendant’s guilt or innocence.

Penalties and Sentences Act

If an offender has cooperated with the authorities as an informer against another accused person, any oral submissions by the defence or prosecution that refer to the informant’s cooperation and the associated reduction in penalty will be made in a closed court. In a matter where this has occurred, the sentence will be given in open court but the reduction of the sentence will be stated in closed court.

The judge or magistrate can prohibit publication of all or part of the proceedings or the name and address of any witness either at their own discretion or upon an application being made by the prosecution or defence.

The Evidence Act 1977

There are special provisions in the Evidence Act for evidence given by children and people with mental intellectual or physical impairment. Where a witness in these categories is likely to be disadvantaged or suffer from severe emotional trauma, the court can close the court or hear the evidence by video link.

If you require legal advice or representation in relation to suppression orders or in any other legal matter, please contact Armstrong Legal.