Non-publication orders and suppression orders are routinely made in ACT Magistrates Court and Supreme Court proceedings. These orders prohibit the publication or disclosure of certain information relevant to the subject proceedings, including the names of the parties to the proceedings, such as the name of the Defendant in a matter and / or the name of a complainant, victim, or witness in a particular matter.
Rules about the suppression or non-publication of the identity of parties and / or witnesses to proceedings often automatically apply by the operation of legislation in certain types of proceedings and do not require an application for an order of the relevant court to be applied to the matter. A general power also exists under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMPA) for the Court to make an order forbidding the publication of the evidence or some of the evidence in a matter, a report of the evidence in a matter, or the name of the party to the litigation.
An order under s 111 of the EMPA may only be made if the Court considers that the publication of evidence given, or intended to be given, in a proceeding is likely to prejudice the administration of justice; or it is in the interests of the administration of justice that the names of a party to the proceeding and / or a witness (or intended witness) should not be published. Section 111 is applicable to proceedings in the Magistrates Court, ACT Supreme Court or an inquest or inquiry under the Coroners Act 1997 (ACT) (s 110).
An application under s 111 requires the party making the application to satisfy the court that it is in the interests of justice that there be an order suppressing the name of one or more parties to the proceedings, or that the suppression order is necessary to prevent any relevant prejudice to the administration of justice in a general sense. This will almost always require the tender of sufficient evidence to establish this matter on the balance of probabilities.
The scope and meaning of the phrase ‘administration of justice’ was considered by the Court of Appeal in the matter of Monday (a pseudonym) v The Queen [2022] ACTCA 25. Monday (a pseudonym) was a matter concerning whether a suppression order should continue to apply to a defendant after the criminal proceedings had been finalised in circumstances where the order had been made to protect a person who was not a party to the proceedings.
Justices Elkaim and McWilliam acknowledged that it was a phrase which may have many meanings, but adopted the approach taken by the New South Wales Court of Appeal in Rinehart v Welker [2011] NSWCA 403; 93 NSWLR 311. The Court observed that what emerged from the case of Rinehart was that the administration of justice is concerned with “justice between the parties”, and frequently involve orders protecting the names of both the parties and of associated persons. The Court also referred to the earlier decision of Murrell CJ in the proceedings below in which Her Honour stated that:
It is apparent from the terms of s 111 that the provision is designed to promote the administration of justice by protecting parties and witnesses who might otherwise be unwilling to freely participate in the justice process (either in the particular case or more generally) and by enabling full evidence to be put before the court, despite its sensitivity or confidential nature.
Practically speaking, it may be difficult to meet the ‘administration of justice test’ in criminal or civil matters which do not attract an automatic legislative non-publication or suppression order. The powerful countervailing factor that the court will take into consider is the public interest in open justice and the operation of the courts being subject to scrutiny by the media and the public at large.
A non-exhaustive list of more common matters in which there are automatic suppression or non-publication orders in ACT matters are set out in the table below:
| Proceedings | Details | Applicable Legislation |
| Proceedings Involving Someone the Subject of a Childrens Proceeding | You cannot publish information that identifies (name, address, suburb, or family member’s name) someone as, or would allow their identity to be worked out as, a person:
a) who is or was a child or young person who was the subject of a childrens proceeding. However, this does not apply if: a) the person is an adult and consents to the publication; or b) the person has died and the person’s legal personal representative consents to publication or the information is published more than 100 years after their death.
|
Criminal Code 2002 (ACT)
712A Publishing identifying information about childrens proceedings
|
| Appeals to the Supreme Court | If the first instance matter had a non-publication order for:
a) a party’s name, which was not discharged, then the non-publication order stands as if it were an order made in the appeal matter, subject to any further orders of the Supreme Court. |
Court Procedures Rules 2006 (ACT)
5053 Appeals to Supreme Court—non-publication order
|
| Family Violence Proceedings (including proceedings for intervention orders and restraining orders) | In a family violence proceeding, you cannot publish an account or report of a proceeding for a family violence order if it:
a) identifies a party; b) identifies a person who is related to, or associated with, a party to the proceeding, or is in any other way concerned in the matter to which the proceeding relates; c) identifies a witness; or d) allows for the identity of a person mentioned above to be worked out. However, this does not apply to: a) information circulated under an order of the Magistrates Court or with the written permission of a magistrate; or b) matters published in law reports or other technical or professional publications. But note exception b) means it is unlikely to apply to the Court’s publications See Schedule 1, section 1.2 of the Act for a more exhaustive list of permitted publications. |
Family Violence Act 2016 (ACT)
149 Publication of reports about proceedings—offence
|
| Sexual Offence Proceedings (including proceedings for contravention of a family violence order and contravention of a protection order (if contravention was sexual)) | In a sexual offence proceeding, you cannot publish:
a) the complainant’s name; b) protected identity information of the complainant (private, business or official address, email address or phone number); or c) references or allusions that disclose the complainant’s identity or from which the complainant’s identity can reasonably be worked out. However, this does not apply if the complainant gives prior consent to publish any of the above.
|
Evidence (Miscellaneous Provisions) Act 1991 (ACT)
74 Prohibition of publication of complainant’s identity
|
| Adoption proceedings | Suppression on the names, and information that may reasonably likely lead to the identification, of the:
a) applicant; b) child or young person; and c) parent or guardian of the child or young person. However, the Court can allow for publication if it is satisfied that this will not prejudice any person and that it is otherwise in the interests of justice.
|
Adoption Act 1993 (ACT)
97 Restriction on publication of identity of parties
|
| Proceeding from ACAT (including removal of an application to Supreme Court, question of law referrals and appeals) | The Court must do everything reasonably necessary to ensure that the non-disclosable matter is not disclosed (other than to a member of the court as constituted for the proceeding).
However, this does not apply to disclosures between court staff. A non-disclosable matter is a matter to which a non-disclosure certificate relates. Non-disclosure certificates can be issued by: a) the Minister; b) the Commonwealth Attorney-General; or c) the Attorney-General of a State or another Territory, under s 22I of the ACT Civil and Administrative Tribunal Act. |
ACT Civil and Administrative Tribunal Act 2008 (ACT)
22N Dealing with non-disclosable matters—Supreme Court
|
| Proceedings Involving Protected Confidences | If protected confidences are found to be admissible, the Court may make ancillary orders to protect the person who made protected confidence relates to.
The Court may: a) close the court; b) edit a document recording a protected confidence; c) make suppression or non-publication orders relating to the protected confidence or the person who made the protected confidence; or d) make orders about the production or inspection of a document recording a protected confidence. Protected confidence means: a) counselling communication made by, to or about a victim of a sexual offence (s 79A of the Evidence (Miscellaneous Provisions) Act); and communication made by a person in confidence to someone else in the course of a professional relationship and when the confidant was under an express or implied obligation (whether from law or inferred from the relationship) not to disclose its contents (s 126A of the Evidence Act). |
Evidence (Miscellaneous Provisions) Act 1991 (ACT)
79I Ancillary orders for protection of person who made protected confidence
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