Suppression Orders (Vic)

Open justice is a fundamental principle of our legal system, in which court proceedings are generally conducted in public and people are free to enter courts and watch proceedings. Information relating to court decisions and litigation is generally available to the public. However, in some cases, the court may make a Suppression Order, prohibiting the disclosure of information relating to a proceeding. This can be done for a number of reasons, including the protection of witnesses, the protection of the defendant’s right to receive a fair trial and in the interests of national security. Suppression Orders are made under the Open Courts Act 2013.

What is a Suppression order?

A court can make a Suppression Order to prohibit the publication of information about a court proceeding. It can be very broad or very narrow, but it must be made for a specific purpose and must not be any broader or for any longer than is reasonably necessary to serve that purpose.

A Suppression Order can restrict the publication of material anywhere in Victoria or anywhere in the country. When one is made, the court must make sure all relevant news media are notified of the details of the order.

Section 18 of the Act provides that a Suppression Order can be made if:

• It is necessary to prevent prejudice to the administration of justice;
• It is necessary to avoid prejudicing the interests of national or international security;
• It is necessary to protect the safety of a person;
• It is necessary to avoid a witness or complainant in a sexual offence or family violence matter being caused undue distress or embarrassment;
• For any other reason in the interests of justice.

Offences

It is an offence under section 23 of the Act to contravene a Suppression Order knowing or being reckless as to whether there is one in force. The offence can attract a term of imprisonment for up to five years or a fine of up to 600 penalty units, or both, for an individual. For a body corporate, the maximum penalty is a fine of 3000 penalty units applies.

A breach of a Suppression Order can also amount to the offence of contempt of court.

Closed Court Orders

Under section 28 of the Open Courts Act, there is a presumption that court matters are conducted in open court. A court may order that the court be closed for all or part of a matter or that only certain persons or classes of persons may attend the proceeding. 

Why do Suppression Orders exist? 

Suppression Orders are commonly made when an accused is going to be facing trial by a jury. The jury is not allowed to know information that could prejudice the jurors against the accused, such as the accused’s prior criminal history or evidence that has been ruled inadmissible. If information like this is made public, this can prejudice the jury and lead to an unfair trial.

Who do Suppression Orders affect?

When a Suppression Order is in force, no one may publish the information that has been suppressed. ‘Publication’ may consist of anything written or said in a public forum. This includes social media posts and statements made in public as well as media coverage.

When a Suppression Order is made that includes ‘anything that can be accessed in Australia’ or ‘anything that can be accessed in Victoria’ the order applies to material published on the internet. This means that orders made in Australia also apply overseas. However, breaches by overseas news agencies are very difficult to police.

Should Suppression Orders be abolished?

Suppression Orders are sometimes criticised as curtailing open justice and free speech. Particular orders have been criticised for going too far, operating to hide corrupt behaviour or being outdated. A recent review of the use of Suppression Orders in Victoria found that the orders are easily breached online and through social media.

Suppression orders are sometimes described as obsolete or futile in the digital era as the quarantining of jurors from outside influences becomes less and less achievable due to the prevalence of social media and online news.

However, Suppression Orders can still play an important role in making sure that a defendant receives a fair trial, particularly in a high-profile case. They can also prevent harm being caused to witnesses and complainants.

If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Armstrong Legal.