What are suppression orders?

Suppression orders are directives of a court intended to prohibit and restrict the publication or other disclosure of any information in connection with any proceeding. These orders are commonly made to:

• prevent prejudice to the proper administration of justice that cannot be prevented by other means
• avoid prejudicing the interests of national or international security
• provide protection to the safety of any person
• avoid causing undue stress or embarrassment to any complainant or witness, particularly in the context of proceedings relating to sexual or family violence offences.

Contravention of a suppression order attracts strict penalties which may include a term of imprisonment depending on the severity of the contravention.

Where are the courts powers to make suppression orders contained?

Open Courts Act 2013

The circumstances in which suppression orders can be made are contained in s 18 the Open Courts Act 2013 (OC Act). In this regard, the OC Act is intended to consolidate other suppression order provisions relevant to proceedings before Victorian Courts and Tribunals including:

• The Supreme Court
• The County Court
• The Magistrates' Court
• The Coroners Court
• The Victorian Civil and Administrative Appeals Tribunal (VCAT).

What other legislative examples exist for suppression orders to be made?

Whilst the OC Act contains the main power for suppression orders in Victoria, there are provisions contained in other legislation which operate to provide similar protections.

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

Section 75(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA) operates in a similar fashion to the OC Act. It permits a Court to order the suppression of information, evidence or document content that may enable an accused or any witness to the proceeding to be identified.

Independent Broad-Based Anti-Corruption Commission Act 2011

Section 129A of the Independent Broad-Based Anti-Corruption Commission Act 2011 grants IBAC the power to issue a suppression order to prohibit or restrict the publication of any information or evidence given during a public examination. Whilst this power similarly seeks to prevent prejudice or hardship to any person, it provides IBAC with the power to make a suppression order "for any reason having regard to the circumstances." As such, this appears to create a broader power in the context of anti-corruption investigations than that contained in the OC Act.

Evidence (Miscellaneous Provisions) Act 1958

Section 32F of the Evidence (Miscellaneous Provisions) Act 1958 empowers a Court to make ancillary orders to suppress the publication of all or part of any evidence necessary to protect the safety or welfare of a protected confider, medical practitioner or counsellor. This power further enables the Court to make such orders relating to the disclosure of protected identity information as necessary.

What are pseudonym orders?

Pseudonym orders operate to conceal the identity of a person by restricting the way the person is referred to in court documents or open court. For example, a proceeding may substitute a person's name for a letter sequence such as XYZ.

When the use of a pseudonym may be impractical, a silent listing may be ordered to provide the same protections. This use of this alternative has been adopted by the Magistrates' Court of Victoria.

Where are the powers to make pseudonym orders contained?

The power to make pseudonym orders is contained in a range of legislative provisions, such as some examples outlined below:

The OC Act does not purport to limit or otherwise affect the operation of these provisions, nor any other provision under an Act that authorises a court to prohibit or restrict the publication or other disclosure of information in connection with any proceeding. The OC Act instead preserves the power of a court or tribunal to make such an order.

What factors do courts consider when making suppression and pseudonym orders?

The courts have been minded to emphasise the primacy of open justice as a principle when considering applications for suppression and pseudonym orders.

Recent case law has demonstrated that the courts are reluctant to make any order unless it can be established that:

• the order is sufficiently necessary in the circumstances to justify the overriding or displacement of the principle of open justice, free communication and disclosure of information; and/or
• failure to make an order will render a similar order in another proceeding redundant.¹

Those making applications for these types of orders are required to meet a high threshold and must produce sufficient credible information to establish that the disclosure of the name or information concerned would pose a real and substantial risk of prejudice. The courts must then take into account that the scope and duration of any order made must not exceed what is necessary to achieve its purpose.²

Are suppression, pseudonym orders readily granted?

Applications for suppression and pseudonym orders are not readily granted. The underlying principle of the OC Act is that proceedings are to be conducted in an open and unrestricted manner.

How are suppression, pseudonym orders obtained?

An application for suppression order is governed by the provisions of Part 3 of the OC Act. A party seeking a suppression order should be aware that section 11 of the OC Act requires news media organisations to be notified of any such application. No such requirement exists in relation to an application for a pseudonym order.

What types of suppression orders can be obtained?

Proceeding suppression orders

Proceeding suppression orders are statutory orders that prohibit or restrict the disclosure by publication or otherwise of:

• a report of the whole or any part of a proceeding
• any information derived from a proceeding (OC Act s 17).

Courts and tribunals can make proceeding suppression orders on certain grounds (s 18 OC Act). Section 19 of the OC Act sets out procedural matters for proceeding suppression orders.

Broad-based suppression orders

Broad suppression orders are orders restricting, prohibiting or restraining the disclosure of specified material by publication or otherwise. The term ‘broad’ is used because such orders can apply to any specified material or any material of a specified kind. By contrast, proceeding suppression orders are limited and apply only to reports of proceedings and pseudonym orders apply only to identities.

The OC Act empowers the Magistrates’ Court to make broad suppression orders (s 26). The OC Act does not empower the Supreme Court to make broad suppression orders. Rather, it preserves the Supreme Court’s inherent jurisdiction to make such orders under s 5(1). The County Court, in criminal proceedings, has the powers and authority of the Supreme Court in criminal proceedings (s 25(1)). Neither the Victorian Civil and Administrative Tribunal nor the Coroners Court can make broad suppression orders.

Are 'closed court orders' suppression orders?

Closed court orders

Closed court orders are not suppression orders. Closed court orders do not directly suppress material, or fall within the definition of ‘suppression order’ in the OC Act (s 3). This means that closed court orders are not subject to the general provisions applicable to suppression orders in Part 2 of the OC Act.

Closed court orders require:

• the whole or any part of a proceeding to be heard in closed court or closed tribunal; or
• only persons or classes of persons specified by to be present during the whole or any part of a proceeding of the OC Act (s 30(1)).

Common law powers to make closed court orders remain unaffected by the OC Act (s 29).

Closed court orders are not suppression orders. Closed court orders do not directly suppress material, or fall within the definition of ‘suppression order’ in the OC Act (s 3). This means that closed court orders are not subject to the general provisions applicable to suppression orders in Part 2 of the OC Act.

Footnotes

¹ IJW v Swinburne University of Technology [2021] VSC 846

² Victorian Institute of Teaching v QDP [2021] VSC 844, [19]; WEQ v Medical Board [2021] VSCA 343, [64]-[68]

Publication written by Ruby Hajek and Katie Baxter and Antonio Mazzone