Court Suppression and Non-Publication Orders

Published by Geoff Harrison | 12 July 2025

A fundamental principle of the Australian justice system is open justice, with proceedings being conducted in public. Courts do not have inherent power to exclude the public: John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 per Spigelman CJ at [18].

In deciding whether to make a suppression order or a non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice as per s6 of the Act. The relevant legislation that governs non-publication and suppression orders is the Court Suppression and Non-Publication Orders Act 2010.

Other Sources:

• Court Suppression and Non-Publication Orders Act 2010

• Local Court Bench Book: Non-Publication and Suppression Orders

• Criminal Trial Courts Bench Book: Closed court, suppression and non-publication orders

• Criminal Trial Courts Bench Book: Non-Publication Paper

• ODPP Prosecution Guidelines Ch. 16: Media contact and non-publication orders

• Supreme Court Practice Note CL 9: Removal of judgments from the internet

• District Court Criminal Practice Note 8: Removal of judgments from the internet

• Request to remove Google Posts for Legal Reasons

• Take Down Orders

  
  

Cases:

• Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125

• R v AB (No 1) [2018] NSWCCA 113

• Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69

• R v Martinez; R v Tortell (No. 7) [2020] NSWSC 361 (No power to order costs)

• AW v R [2016] NSWCCA 227 (Take Down Orders)

• HT v The Queen [2019] HCA 40 (at [43])

Extracted Legislation:

COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 - SECT 3

Definitions

...

"publish" means disseminate or provide access to the public or a section of the public by any means, including by--

(a) publication in a book, newspaper, magazine or other written publication, or

(b) broadcast by radio or television, or

(c) public exhibition, or

(d) broadcast or publication by means of the Internet.

COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 - SECT 6

Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 - SECT 7

Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of--

(a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b) information that comprises evidence, or information about evidence, given in proceedings before the court.

COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 - SECT 8

Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds--

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900 ),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

(3) Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.

COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 - SECT 9

Procedure for making an order

(1) A court may make a suppression order or non-publication order on its own initiative or on the application of--

(a) a party to the proceedings concerned, or

(b) any other person considered by the court to have a sufficient interest in the making of the order.

(2) Each of the following persons is entitled to appear and be heard by the court on an application for a suppression order or non-publication order--

(a) the applicant for the order,

(b) a party to the proceedings concerned,

(c) the Government (or an agency of the Government) of the Commonwealth or of a State or Territory,

(d) a news media organisation,

(e) any other person who, in the court's opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should be made.

(3) A suppression order or non-publication order may be made at any time during proceedings or after proceedings have concluded.

(4) A suppression order or non-publication order may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order.

(5) A suppression order or non-publication order must specify the information to which the order applies with sufficient particularity to ensure that the order is limited to achieving the purpose for which the order is made.

COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 - SECT 10

Interim orders

(1) If an application is made to a court for a suppression order or non-publication order, the court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the court, until the application is determined.

(2) If an order is made as an interim order, the court must determine the application as a matter of urgency.

COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 - SECT 11

Where an order applies

(1) A suppression order or non-publication order applies only to the disclosure or publication of information in a place where the order applies, as specified in the order.

(2) A suppression order or non-publication order is not limited to applying in New South Wales and can be made to apply anywhere in the Commonwealth.

(3) However, an order is not to be made to apply outside New South Wales unless the court is satisfied that having the order apply outside New South Wales is necessary for achieving the purpose for which the order is made.

COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 - SECT 12

Duration of orders

(1) A suppression order or non-publication order operates for the period decided by the court and specified in the order.

(2) In deciding the period for which an order is to operate, the court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

(3) The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 - SECT 13

Review of orders

(1) The court that made a suppression order or non-publication order may review the order on the court's own initiative or on the application of a person who is entitled to apply for the review.

(2) Each of the following persons is entitled to apply for and to appear and be heard by the court on the review of an order under this section--

(a) the applicant for the order,

(b) a party to the proceedings in connection with which the order was made,

(c) the Government (or an agency of the Government) of the Commonwealth or of a State or Territory,

(d) a news media organisation,

(e) any other person who, in the court's opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should have been made or should continue to operate.

(3) On a review, the court may confirm, vary or revoke the order and may in addition make any other order that the court may make under this Act.

COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 - SECT 14

Appeals

(1) With leave of the appellate court, an appeal lies against--

(a) a decision of a court (the

"original court" ) to make or not to make a suppression order or non-publication order, or

(b) a decision by the original court on the review of, or a decision by the original court not to review, a suppression order or non-publication order made by the court.

(2) The "appellate court" for an appeal under this section is the court to which appeals lie against final judgments or orders of the original court or, if there is no such court, the Supreme Court.

(3) Each of the following persons is entitled to appear and be heard on an appeal under this section--

(a) the applicant for the suppression order or non-publication order,

(b) a party to the proceedings in which the order or decision subject to appeal was made,

(c) the Government (or an agency of the Government) of the Commonwealth or of a State or Territory,

(d) a news media organisation,

(e) any other person who, in the appellate court's opinion, has a sufficient interest in the decision that is the subject of appeal.

(4) On an appeal under this section, the appellate court may confirm, vary or revoke the order or decision subject to the appeal and may make any order or decision under this Act that could have been made in the first instance.

(5) An appeal under this section is to be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(6) If judgments or orders of the original court are subject to review by another court (rather than appeal to another court), this section provides for a review of the original court's decisions instead of an appeal and in such a case references in this section to an appeal are to be read as references to a review.

COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 - SECT 15

Disclosures that are not prevented by suppression orders

(1) A suppression order does not prevent a person from disclosing information if the disclosure is not by publication and is in the course of performing functions or duties or exercising powers in a public official capacity--

(a) in connection with the conduct of proceedings or the recovery or enforcement of any penalty imposed in proceedings, or

(b) in compliance with any procedure adopted by a court for informing a news media organisation of the existence and content of a suppression order or non-publication order made by the court.

(2) A suppression order does not prevent the disclosure of information to the Bureau of Crime Statistics and Research if the disclosure is not by publication and the disclosure is made for the purposes of the compilation of statistical data about crime and criminal justice.

COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 - SECT 16

Contravention of order

(1) A person commits an offence if the person engages in conduct that constitutes a contravention of a suppression order or non-publication order and is reckless as to whether the conduct constitutes a contravention of a suppression order or non-publication order.

Maximum penalty--1,000 penalty units or imprisonment for 12 months, or both, for an individual or 5,000 penalty units for a body corporate.

(2) Conduct that constitutes an offence under this section may be punished as a contempt of court even though it could be punished as an offence.

(3) Conduct that constitutes an offence under this section may be punished as an offence even though it could be punished as a contempt of court.

(4) If conduct constitutes both an offence under this section and a contempt of court, the offender is not liable to be punished twice.

COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 - SECT 17

Proceedings for offences

(1) Proceedings for an offence under this Act are to be dealt with--

(a) summarily before the Local Court, or

(b) summarily before the Supreme Court in its summary jurisdiction.

(2) If proceedings are brought in the Local Court, the maximum monetary penalty that the Local Court may impose for the offence, despite any higher maximum monetary penalty provided by this Act in respect of the offence, is--

(a) for an individual, 100 penalty units, or

(b) for a body corporate, 500 penalty units.

(3) Proceedings for an offence under this Act that are brought before the Local Court must be commenced within 2 years of the date of the alleged offence.