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:
| Context | Relevant provision |
| Coronial | Section 55(2)(e) of the Coroners Act 2008 permits coroners to give any direction or do anything else they believe is necessary, including the power to make pseudonym orders and other such orders to preserve the confidentiality of any information in the public interest. |
|
Sexual offences |
Section 4(1A) of the Judicial Proceedings Reports Act 1958 prohibits the publication of any particulars that may lead to the identification of a person against whom a sexual offence is alleged to have been committed. |
|
Witnesses |
Section 10(5) of the Witness Protection Act 1991 operates to broadly prohibit the publishing of information about identity, location or that which might compromise the security of any one who is or has been a participant in a proceeding under the Act. |
| Children | Section 49 of the Stalking Intervention Act 2008 provides that if a party or witness in a proceeding is a child, there can be no publication of material that may lead to the identification of the particular venue of the court, the identification of a child or their locality. It also prohibits the use of any picture of, or including the child in the proceeding. |
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
Updated