10.1 This chapter deals with an important exception to the principle of open justice, namely, the power of courts or other similar bodies to make so-called “suppression” or “non-publication” orders. This type of order will be examined within the context of various other restraints the courts may impose in order to limit the availability of information concerning judicial proceedings from the public at large. Attention will be given to the common law and statutory principles governing suppression orders in New South Wales. These will be contrasted and compared with the position in other jurisdictions with a view to recommending reform of the law in this State.

10.2 This chapter and Chapter 9 are linked in the following way. The principle discussed in Chapter 9, namely that a publication cannot attract sub judice liability on the ground of prejudice to a current or forthcoming trial if it constitutes a fair and accurate report of proceedings in open court, does not apply if the matter reported was the subject of a suppression order. It follows that its availability as a defence in contempt proceedings is reduced to the extent that courts are empowered to make suppression orders. One of the recognised grounds for such orders is in fact that reporting of the relevant material would create a risk of prejudice to some other trial.

THE CONCEPT OF OPEN JUSTICE

Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity.¹

10.4 In the leading case of Scott v Scott, the public trial was said by Lord Atkinson to provide “the best security for the pure, impartial, and efficient administration of justice, the best means of winning for it public confidence and respect.”³ The principle of open justice has also achieved international recognition in article 14(1) of the International Covenant on Civil and Political Rights which provides that “everyone shall be entitled to a fair and public hearing by a competent and impartial tribunal established by law.”

10.5 One aspect to the principle of open justice is that the public, including the media, should be able to attend court hearings, in addition to the parties. In this way, court proceedings are exposed to public and professional scrutiny and criticism. This tends to reduce the chance of abuse, maintain confidence in the integrity and independence of the courts, and distinguish judicial from administrative processes.⁴ Other arguments that have been used to support the public administration of justice include: that openness may improve the quality of evidence; that it may induce unknown witnesses to come forward and cause trial participants to perform their duties more conscientiously; that it has a “therapeutic” value to the community in that it provides an outlet for concern, hostility and emotion engendered by serious crime; that it provides a form of community legal education; and that the knowledge gained by members of the public may have a deterrent effect on those who may otherwise break the law.⁵

QUALIFICATIONS TO THE PRINCIPLE OF OPEN JUSTICE

10.6 Under a system of open justice, courts are obliged to do all that they can to encourage openness of proceedings. As a society, we increasingly demand high levels of openness and accountability from our major public institutions and it is generally considered that unless there are compelling reasons to the contrary, such institutions should operate as openly and transparently as possible.⁶ Nevertheless the principle of open justice is not absolute. Exceptions have been developed both by the courts and the legislature in which the requirements of justice have been deemed to override the necessity of open proceedings.

10.7 First, there is a need to control court proceedings so that disorder or over crowding will not make a proper trial difficult or impossible. The courts have long reserved a right to exclude people from court on this basis.⁷ A second exception is based on the need to be aware of the sensitivity of trial participants, some of whom may find it difficult or impossible to testify in an open court subject to free reporting. This is especially problematic in cases involving people such as child witnesses or survivors of sexual assault. Some people may also be deterred from instituting civil or criminal proceedings because they are to be held in public and will be subject to free reporting. The common law has recognised that these sensitivities may constitute valid grounds for making exceptions to the general rule of open justice.⁸ Another example is litigation involving secret processes, trade secrets or other confidential information, where the effect of publicity would be to destroy the subject matter of the action.⁹ Special protection from the harmful effects of publicity will sometimes also be provided to certain classes of people such as wards of the court, and the mentally ill, criminal defendants who are minors and sexual offence complainants.¹⁰ A further exception has been developed on the basis of national security where, for example, names or operations of members of the secret service may need to be withheld from public knowledge.¹¹ It has also been recognised that certain forms of publicity may be seen as likely to prejudice the fairness of a trial. Restrictions have been developed in some jurisdictions, for example, on access and reporting of committal proceedings, coroner’s inquests and investigative commissions.¹²

10.8 The law has developed a number of mechanisms to respond to these perceived dangers to the administration of justice which might arise from an entirely open judicial system. These mechanisms include hearing proceedings in closed court, concealing information from those present at an open court hearing, and ordering that reports of materials heard in open court be suppressed from publication.

10.9 Where there is no statutory authority to derogate from the openness principle, the common law power to do so has generally been narrowly interpreted. Restrictions to the open justice principle have been held to be unjustified, for example, on the grounds that the evidence may be unsavoury;¹³ for considerations of public decency or morality;¹⁴ the fact that publication may cause the victim, one of the parties or witnesses embarrassment, distress, ridicule or invasion of privacy;¹⁵ or a desire to prevent damage to the reputation or business affairs of a professional person.¹⁶ The rationale for derogations from the general openness principle was articulated by Viscount Haldane LC in Scott v Scott¹⁷ as follows:

While the broad principle is that the Courts of this country must as between the parties, administer justice in public, this principle is subject to apparent exceptions … But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of the Courts of justice must be to secure that justice is done.

10.10 A number of recognised exceptions to the openness principle allow a court to close the court from public access, or to sit in camera.

10.11 In certain cases where the administration of justice would be rendered impracticable by the presence of the public, the common law has recognised the court’s power to sit in private. Such a power has been held to exist when the court exercises its parental jurisdiction over wards of the court or the mentally ill.¹⁸ It was also recognised in Scott v Scott that cases may arise in which justice could not be done if it had to be done in public, for example because publicity would deter a party from seeking redress or interfere with the effective trial of the case.¹⁹ Thus, where the effect of publicity would be to destroy the subject matter of the litigation, as in cases involving trade secrets, secret documents, communications or processes, the court has been held able to restrict public access.²⁰

10.12 The exception based on the deterrent effect of publicity has been extended by analogy to cover certain circumstances of national security. If it appears that national safety will endanger the due administration of justice, for example by deterring the Crown from prosecuting in cases where it should do so, a court may sit in private. ²¹ Nevertheless, in most cases where it is claimed that witnesses may be deterred from giving evidence, or parties from instituting or defending proceedings, or where a completely open hearing would destroy the subject matter of the litigation such as a trade secrets case, the courts have preferred, where possible, not to close the court. Instead courts have generally favoured using the lesser device of holding proceedings in open court but concealing specific information from public knowledge, by, for example, using pseudonyms or not referring openly to confidential or secret information.²²

10.13 The power of the courts under the common law to restrict access to legal proceedings has been augmented by statutory provisions in all Australian jurisdictions. Examples include where the courts are empowered to exclude the public in the overall interests of justice.²³ Some legislation also empowers courts to restrict access in proceedings involving children²⁴ and sexual offences.²⁵ Like the common law exceptions, statutory provisions empowering courts to close proceedings to the public have been narrowly interpreted. In the words of Justice Kirby in Raybos Australia Pty Ltd v Jones, statutes providing exceptions “will usually be strictly and narrowly construed. Unless the derogation is specifically provided for, courts are loath to expand the field of secret justice.” ²⁶

10.14 An order closing proceedings and restricting media access implicitly imposes a prohibition on the reporting of the proceedings themselves.²⁷ Any restriction resulting from an order for closure will only last as long as is necessary to protect the interests of those for whose benefit it was made.²⁸ However, it does not follow that the judgment and orders can also be withheld.²⁹ As Justice Street pointed out, “a judgment can be structured to reveal as much of what occurred as possible without destroying the secret.”³⁰

Concealment of information from those present at court

10.15 An important corollary of the principle of open justice is that evidence communicated to the court should be communicated publicly, and consequently be able to be reported to the public at large. In certain circumstances however, the court may restrict information by concealing it from those present in the courtroom (and hence also from the general public). For example, a court may order that the names of witnesses be withheld and pseudonyms used, or that evidence be taken in written form so that it is not heard by the general public.³¹ Often such devices will be used in order to avoid the need for the court to sit in closed session.³² In any case, where the court has power to order a hearing in camera, whether at common law or by statute, it may make a lesser order designed to achieve the same results.³³

10.16 Certain specific categories of exceptions have been developed by the common law. These are based on the principle that the order must be necessary to protect the administration of justice.³⁴ In the words of Justice Kirby:

If the very openness of court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourage its attainment in cases generally (as by frightening off blackmail victims or informers) or would derogate from even more urgent considerations of public interest (as by endangering national security) the rule of openness must be modified to meet the exigencies of the particular case.³⁵

10.18 A court may also order that details of confidential information other than identities not be referred to in open court where this is necessary to secure justice. For example, if the subject matter of the case was to protect information regarding trade secrets, secret documents, communications or processes, justice would be undermined if these details were to be heard in open court.⁴¹

Power to forbid publication of proceedings heard in open court

10.19 Once information is heard by those present in court, the general rule is that the wider public also has a right to be informed. The open justice principle means that it will not normally be appropriate for the court to restrain publication of such information by the media to the general public.⁴² Under certain circumstances however it has been acknowledged that the interests of justice demand that such information not be made available or disseminated to the general public. Self-regulation has not proved effective in the area of court reporting, thus necessitating the intervention of the courts and Parliament.⁴³ Restrictions in the form of non-publication or suppression orders may therefore be imposed on the media’s right to publish fair and accurate reports of what has been openly heard during court proceedings.

10.20 As shall be seen below, the common law regarding suppression orders is relatively unclear and unsettled. Legislative measures introduced in New South Wales to clarify or augment the ability of courts to make such orders are limited in scope, thereby leaving many areas to the uncertainty of the common law. The Commission is of the view that this lack of clarity and the absence of comprehensive regulation justify legislative intervention. The nature and extent of court powers to suppress publication of reports of proceedings heard in open court needs to be clarified and defined.

10.21 In contrast to the law relating to suppression orders, the law applying to other ways for courts to derogate from the principle of open justice, such as by hearing proceedings in camera, or by using pseudonyms or other concealment orders, are reasonably well settled. The Commission considers that the need to clarify the law in relation to other such orders is less pressing than in the case of suppression orders. Consequently, it will not make any proposals with respect such other orders.

EXISTING POWERS TO SUPPRESS PUBLICATION OF PROCEEDINGS IN NEW SOUTH WALES

Common law powers

10.22 In R v Clement it was recognised that a judge could, in certain circumstances, order reports of proceedings to be postponed where such an order would be in furtherance of justice in proceedings then pending before the court.⁴⁴ This decision was approved by Viscount Haldane LC and Lord Atkinson in Scott v Scott,⁴⁵ but in the light of statements made in later cases it has been held that R v Clement does not stand as an authority for holding that an order made to protect the administration of justice is ipso jure binding on members of the public.⁴⁶

10.23 The general position as to whether and to what extent such a non-publication order may bind or otherwise affect non-parties to the proceedings remains unclear in New South Wales.⁴⁷ There are dicta to the effect that courts do have the power to make orders, binding on those not present at court, which prohibit or postpone the reporting of what has been heard in open court.⁴⁸ This power is said to stem from the inherent jurisdiction of superior courts to regulate their proceedings for the purpose of administering justice. The issue of whether inferior courts also hold such a power has been the subject of judicial debate in numerous cases.

10.24 Justice Mahoney in Attorney General (NSW) v Mayas Pty Ltd⁴⁹ was of the opinion that there was an inherent power in a magistrate to issue a non-publication order. Nevertheless, the majority stated that no such inherent power existed in the Local Court in the absence of statutory authority.⁵⁰ This latter view was followed by Justice Kirby in John Fairfax Group Pty Ltd v Local Court of NSW,⁵¹ whereas the majority in that case was of the opinion that the Local Court had implied powers to make pseudonym orders when engaged in committal proceedings.⁵²

10.25 The existence of a common law power to make non-publication orders binding on persons outside the court has not yet been authoritatively decided by the courts of this State, though such a power has been doubted or denied in a number of judgments.⁵³ The main argument against the existence of such a power is based on the division of powers between the judiciary and the legislature. In the words of Justice McHugh:

Courts have no general authority, however, to make orders binding people in their conduct outside the courtroom. Judicial power is concerned with the determination of disputes and the making of orders concerning existing rights, duties and liabilities of persons involved in proceedings before the courts. An order made in court is no doubt binding on the parties, witnesses and other persons in the courtroom. But an order purporting to operate as a common rule and to bind people generally is an exercise of legislative – not judicial – power.⁵⁴

For that [contempt of court by way of publication] to arise something more than disobedience of the court’s direction needs to be established. That something more is that the publication must be of such a nature as to threaten the administration of justice …⁵⁵

Statutory powers to issue suppression orders

10.28 Statutory provisions have been enacted by the various States and Territories to make up for the lack of clear common law powers to restrict reporting of judicial proceedings. These provisions make suppression orders binding on all members of the public, the media included, even if they are not present at the proceedings. While they supplement rather than replace the existing common law with respect to suppression orders, they tend to be broader in scope.

10.29 In New South Wales, there are two types of provision dealing with suppression orders: those that create a presumption in favour of non-publication, or an outright ban of publication, and those that create a presumption in favour of openness but grant the decision-maker a broad discretion to impose such an order under certain circumstances.

Legislative provisions with a presumption of non-publication

10.30 Section 578A of the Crimes Act 1900 (NSW) prohibits publication of any matter which would identify the complainant in prescribed sexual offence proceedings. Under certain conditions such publication will be permitted, for example, when published with the consent of a complainant over the age of 14 years or when authorised by a judge or justice who has consulted with the complainant and is satisfied that publication is in the public interest.

10.31 Under the Evidence Act 1995 (NSW) it is unlawful to publish, without permission of the court, a question which has been disallowed because it is misleading or unduly annoying, harassing, intimidating, offensive, oppressive or repetitive, or disallowed because of the credibility rule.⁵⁹

10.32 In adoption hearings, unless authorised by the court or other specified body, it is an offence to publish the name, or details which may lead to identification of, a prospective adoptive parent, a child available for adoption or a natural parent or guardian.⁶⁰

10.33 Publication of any account of proceedings under the Family Law Act 1975 (Cth), or any list of such proceedings⁶¹ that identifies a party or witness, or a person who is related to or associated with a party to the proceedings, or otherwise concerned with the matter to which the proceedings relate, is an offence under s 121 of the Family Law Act 1975 (Cth). The prohibition is subject to certain exceptions which include, for example, publication in pursuance of a direction of the court communication to persons for use in other proceedings,⁶² in legal disciplinary proceedings, or in deciding on the availability of legal aid, and technical publications for use by a profession for example, in law reports.

10.34 Restrictions are also imposed on publication of reports of proceedings involving children. Without the consent of the Children’s Court (where the child is under 16), or of the child (where over 16), publishing or broadcasting particulars which may identify a child who appears as a witness, is mentioned or otherwise involved in proceedings under the Children (Care and Protection) Act 1987 (NSW) is prohibited.⁶³ In criminal proceedings involving children, provisions similar to these apply, except that a court cannot consent to the publication of the child’s name unless the child concurs. If the child is incapable of concurring, then the court may only consent to publication if it is of the opinion that disclosure is required by the public interest.⁶⁴

Legislative provisions with a broad discretion to impose suppression orders

10.35 Another set of statutory provisions provide some courts and tribunals with a discretion to place limits on open and free reporting of proceedings before them.

10.36 For example, Acts establishing tribunals or commissions generally contain provisions which regulate the extent to which proceedings may deviate from the general principle of openness and what kind of restrictions, if any, may be imposed on the publication of information relating to a hearing. For example under the Administrative Decisions Tribunal Act 1997 (NSW), the Tribunal is to conduct proceedings in public but is empowered to make orders to prohibit or restrict publication of the names and addresses of witnesses, or evidence given before the tribunal.⁶⁵ The discretion in this particular Act is broadly formulated, in that such orders may be made, either of the Tribunal’s own motion or on the application of a party, by reason of the confidential nature of the evidence, or “for any other reason.”

10.37 Royal Commissioners and others holding official inquiries of a similar nature are also empowered to restrict the publication of evidence.⁶⁶ The Independent Commission Against Corruption, due to its investigative rather than justice-dispensing function, is given a much greater power than courts to deviate from the principle of open justice.⁶⁷ The Commission may decide, with regard to the public interest, whether a hearing is to be held wholly or partly in public or private, may give directions as to who may be present, and whether closing matters are to be heard in private. Where the Commission is satisfied that it is necessary or desirable in the public interest to do so, it may also direct that certain material not be published at all, or be published in such manner and to such persons as directed.⁶⁸

10.38 The coroner has been granted a fairly broad power under s 44 of the Coroners Act 1980 (NSW) to prohibit publication of evidence given at an inquest or inquiry. This power may be exercised where the coroner is of the opinion that it would be in the public interest to do so, having regard to the administration of justice, national security or personal security.⁶⁹ The breadth of the provisions enable a coroner to order that evidence given at the inquest or inquiry not be published where the public interest might be adversely affected, whether or not the course of the actual inquest or inquiry might itself be compromised.⁷⁰

10.39 Despite the broad provisions, courts have narrowly interpreted the scope of an order made in the interests of the “administration of justice”. In Mirror Newspapers Ltd v Waller, Justice Hunt held that the common law principles applicable to the exercise of the power of a court to make suppression orders should be adapted and applied to the exercise of the coroner’s discretion under the Act.⁷¹ This is in accordance with the general acceptance that coroners’ courts are considered inferior courts of record for the purpose of contempt law.⁷² It was held in Attorney General (NSW) v Mirror Newspapers Ltd⁷³ that orders suppressing the publication of evidence in coronial proceedings should only be made where such publication would frustrate or render impracticable the administration of justice. Such an order must be necessary to secure justice, not merely because it would be more convenient or desirable for it to be made.⁷⁴

10.40 In criminal proceedings the source of power to issue suppression orders is s 578 of the Crimes Act 1900 (NSW). This section confers a power on any judge to make an order forbidding publication of the evidence, or any report or account of the evidence, in proceedings before them. It expressly applies to a Justice presiding at committal proceedings.⁷⁵ However, the situation remains unclear with respect to the reporting of names or identifying particulars in committal proceedings, since such details are outside the scope of the power in s 578.⁷⁶

10.41 On its face, s 578 appears to be limited to proceedings for specific sexual offences. Indeed there has been some confusion as to the scope of the section. In some earlier cases it has been read as applying only to the specified sexual offences listed in the section.⁷⁷ Nevertheless, the section needs to be read in conjunction with s 3 and schedule 2 to the Crimes Act 1900. Such a reading makes it clear that s 578 applies in relation to proceedings for all offences, whether at common law or by statute, and applies to all New South Wales courts.⁷⁸

10.42 Section 578 therefore represents a fairly broad statutory power to prohibit the publication of evidence in criminal proceedings. This power is limited to the extent that if either the accused or counsel for the Crown indicates that they want any particular matter given in evidence to be available for publication, no order prohibiting its publication is to be made.⁷⁹ Moreover, the general power to suppress publication is confined to the suppression of the evidence, or reports of the evidence. It does not extend to prohibiting, for example, the publication of names,⁸⁰ or to suppression of all mention of a case.⁸¹ The only names that can be suppressed are those of sexual assault complainants under s 578A of the Act. Breach of an order made under s 578 may result in a conviction and a maximum fine of $2,200.⁸²

SUPPRESSION ORDERS IN NEW SOUTH WALES: ISSUES AND OPTIONS

Should the courts have a general power to make non-publication orders where it is considered necessary for the administration of justice?

10.43 A non-publication or suppression order is directed at what may be published about legal proceedings outside the courtroom. It is a preventative strategy employed by the courts, sometimes under statutory authority, designed to enhance the administration of justice. There are several fundamental premises which underlie the use of non-publication orders.⁸³ Essentially their function is to restrict publicity which may prejudice a fair trial or which may deter people from seeking justice or participating in its administration.

10.44 Various jurisdictions have granted courts a general power to suppress publicity where it is deemed necessary to secure the proper administration of justice.⁸⁴ The formulation of such provisions varies from jurisdiction to jurisdiction. In all states and territories other than New South Wales, they apply to both civil and criminal proceedings. Some jurisdictions have specifically listed additional, more specific grounds upon which such an order may be made or set out in the legislation matters which must be considered by the court in determining whether an order would be in the interests of justice.

10.45 In contrast, there is no statutory power in New South Wales to make non-publication orders in civil proceedings. In such cases in New South Wales only evidence, not the names of parties, may be the subject of a suppression order. The power under the Crimes Act 1900 applies only to a judge at trial or to a magistrate at a committal hearing and does not cover other steps in the criminal process, for example bail applications. The authority of a court to issue a suppression order in civil proceedings, or in criminal proceedings which are outside the scope of s 578 of the Crimes Act 1900 or where a name is sought to be suppressed, is governed by the common law. The Commission believes that legislative intervention is necessary to eliminate the uncertainty as to whether, at common law, courts can make non-publication orders binding on persons not present in the courtroom. Section 578 also provides no guidance as to how the courts should exercise this very broad discretion to suppress the publication of evidence. There is no statutory requirement that the discretion afforded to the courts should be exercised in the furtherance of any particular interest, let alone in the interests of the administration of justice.⁸⁵ The Commission believes that legislative guidance should be provided to assist the courts in the exercise of this discretion.

10.46 It has been suggested in submissions to the Commission that greater restrictions should be imposed on the media’s right to publish fair and accurate reports of court proceedings, particularly in respect of committal and bail proceedings, in order to avoid prejudice to the fair trial of accused persons.⁸⁶ The following discussion will consider whether such tighter restrictions should be imposed by the legislature, and if so, the form in which such provisions might be enacted. Attention will be given to whether the focus of the power should be to avoid prejudice to a fair trial, or whether the provision should be incorporated into a broader ground for making suppression orders where publicity would hamper the due administration of justice generally. The discussion will also draw upon some of the existing provisions in other jurisdictions, in particular those that provide more specific statutory grounds for the making of suppression orders.

Background: prejudice to a fair trial

10.47 One of the major concerns with the open justice principle is that publicity may prejudice a fair trial. In the criminal context, there is particular concern that certain material may be raised in preliminary proceedings which is later inadmissible in the substantive proceedings. If the media are permitted to report on the preliminary proceedings, there is a risk that potential jurors in the substantive proceedings will be made aware of, and be influenced by, material that is not subsequently admitted as evidence in the substantive proceedings. Arguably, this defeats the fundamental purpose of the sub judice rule, which is to prevent the court, particularly jurors, from being influenced by information other than the evidence presented to them in court.

10.48 For example, in proceedings for an application for bail, previous convictions of the accused may be referred to. If the accused proceeds to stand trial, any reference in the trial to his or her previous convictions will generally be prohibited until sentencing. If there have been media reports of the bail proceedings, including reference to the previous convictions, there is arguably a risk that jurors in the trial will have been made aware of those previous convictions and be influenced by them, even though reference to them has been purposely excluded from the trial in order to avoid unfair prejudice to the accused.⁸⁷ Unless a suppression order has been made or some other reporting restriction applies, the media can defend any contempt charges for having published this prejudicial material by showing that they have merely reported open court proceedings fairly and accurately.

10.49 Sometimes evidence may also be given which is damaging to persons not party to the proceedings and who do not have an opportunity of rebuttal. Where such persons are themselves the subject of separate proceedings, this evidence may prejudice the fairness of their future trial and publication may therefore need to be suppressed.⁸⁸

10.50 It must be noted however that suppression orders are one of a number of ways in which the judiciary attempts to deal with the effects of potential or actual prejudicial publication of trial proceedings.⁸⁹

Specific statutory provisions: publication restrictions on committal and other preliminary proceedings

10.51 Legislative provisions in Australia generally impose tighter restrictions on the reporting of committal proceedings and other preliminary hearings than they do on criminal trials. This is because the risk of prejudice to a fair trial is seen as outweighing the public’s need to know what goes on at committal hearings which is merely an administrative step in the criminal process. It has been argued that publicity attaching to committals tends to over-emphasise the case of the prosecution, thereby being highly prejudicial to the accused.⁹⁰

10.52 For example, under the Queensland Justices Act 1886, the place where a justice of the peace or magistrate sits for committal for trial of a person charged with an indictable offence is not deemed to be an open court. The justice or magistrate may order that only those with permission may be present if such an order is required to secure justice.⁹¹

10.53 Under the Western Australian provisions, strict restrictions on publication are imposed during preliminary proceedings. A defendant charged with an indictable offence may choose whether or not to have a preliminary (committal) hearing. If the defendant elects not to have such a hearing, s 101C of the Justices Act 1902 (WA) makes it an offence to make public the contents of any depositions or written statements before they are admitted into evidence or stated aloud at the trial or sentencing of the defendant. When the defendant elects to have a committal hearing, the Justices can order that in the interests of justice it is undesirable that any report of the evidence given or tendered at the proceedings be published. In that event, subsequent publication will constitute contempt.⁹²

10.54 Publishing an account of a bail application, other than merely giving an account of the fact of the application and that an order has been made, will constitute an offence in Tasmania.⁹³ In Victoria, publication of information about directions hearings held pursuant to s 5 of the Crimes (Criminal Trials) Act 1993 is restricted until after conclusion of the trial. This information includes: only the names of the court, judge and legal practitioners; the names, addresses, ages and occupations of the accused and witnesses; certain business information relating to the accused; the offence(s) charged; if relevant the date and place to which the proceedings are adjourned; and any bail arrangements that have been made.

10.55 A similar position is adopted in the United Kingdom where, in the absence of consent of the accused, media reports of committal proceedings are limited to publication of identifying particulars of the parties and witnesses, the offences with which the accused is charged, the court’s decision regarding the committal, bail arrangements and whether legal aid was granted.⁹⁴

Fair trial as an element of the proper administration of justice: the existence of broad statutory powers to make suppression orders

10.56 In addition to these specific powers, a number of jurisdictions have enacted broader provisions formulated in general terms whereby courts (and in some cases other bodies exercising judicial power) are authorised to restrict publication of reports of civil and criminal proceedings, where it would be in the interests of, or in order to prevent prejudice to, the administration of justice.⁹⁵ In some jurisdictions, the legislation goes further to provide specific grounds (beyond the administration of justice) upon which non-publication orders may be made. These greatly expand judicial power to restrict court publicity.

10.57 The administration of justice is a very broad term, which covers the detection, prosecution and punishment of offenders.⁹⁶ Its proper administration requires not only that trials be fair, but that persons who can assist in its administration be encouraged to participate. Damaging personal publicity may have a negative effect on necessary requirements of the proper administration of justice such as the reporting of crimes, the institution of proceedings or the giving of testimony in court.⁹⁷ Publication of court proceedings may also deter law enforcement or national security agencies from giving accurate testimony, where, for example, public knowledge of the details of secret operations or agents would undermine the efficacy of the work of the agency.

10.58 The power of courts to issue suppression orders in terms of the “administration of justice” therefore incorporates both the need to prevent prejudice to a fair trial and the need to restrict publicity where this would be prejudicial to the judicial system generally because it would deter popular participation.

10.59 The level of risk of prejudice required before a court may make such an order depends upon the formulation of the particular provision. In the Australian Capital Territory for example, the power can be exercised to suppress publication of evidence where publication would be likely to “prejudice the administration of justice”.⁹⁸ This power extends to any proceedings before the Supreme Court, the Magistrates’ Court or at a coronial inquest or inquiry.⁹⁹ Names can be prohibited from publication on the even broader ground that such suppression is “in the interests of the administration of justice”.¹⁰⁰

10.60 That non-publication be merely “in the interests of justice” is also sufficient ground for any court to make an order prohibiting the publication of identifying particulars in the Northern Territory.¹⁰¹ By contrast, evidence can only be the subject of an order where it is likely to offend against public decency. Evidence cannot be the subject of a non-publication order made in the interests of justice.¹⁰² “Court” is broadly defined to include courts conducting preliminary proceedings as well as trials.¹⁰³

10.61 A suppression order can be made in Tasmania on the ground that publication is likely to be prejudicial.¹⁰⁴ However, unlike provisions in the other states and territories, the only prejudice considered is prejudice to a fair trial and not to the administration of justice generally.¹⁰⁵ “Court” is broadly defined in s 3 as including every court of the State of whatsoever jurisdiction and thus encompasses preliminary proceedings.

10.62 A narrower approach to the issue of prejudice has been adopted in Victoria. There, a suppression order on the ground of risk of prejudice may only be made by the courts where it is deemed necessary in order not to “prejudice the administration of justice”.¹⁰⁶ This provision imposes a higher threshold of risk of prejudice than those discussed above, such that likely prejudice or the fact that such an order would be merely in the interests of justice generally will not be sufficient cause for an order to be made. Any order must be based on the necessity that without a publication prohibition, prejudice would result. The courts will consider prejudice not just to the particular proceedings in which the order was made, but whether allowing publication would prejudice the administration of justice in later cases. ¹⁰⁷

10.63 The Victorian legislation also gives courts greater scope to restrict publication of proceedings by the news media. An order can be made on the basis that that it is necessary so as not to: endanger the national or international security of Australia; endanger the physical safety of a person; offend public decency or morality; or cause undue distress or embarrassment to complainants or witnesses in certain sexual offence proceedings.¹⁰⁸ This power is not restricted to trials but may be exercised in any proceedings before the Supreme Court, the County Court and the Magistrates’ Court.

10.64 The position adopted in the United Kingdom is similarly narrow in the sense that the court is empowered to suppress publication of reports of proceedings only where it appears necessary for avoiding a substantial risk of prejudice to the administration of justice. Not only must the risk of prejudice be substantial, but the court may only consider the risk in relation to the particular proceedings before the court making the order, or in any other proceedings pending or imminent.¹⁰⁹ The Contempt of Court Act 1981 (UK) does not authorise the making of a suppression order in consideration of the risk to the administration of justice in unrelated or future proceedings, for example, where there is a substantial risk that publication may deter people from becoming witnesses or complainants in future, separate proceedings. If, for example, the court wished to suppress the names of blackmail victims in order not to discourage future victims from coming forward, resort lies only with the common law powers preserved under s 11 of the Contempt of Court Act 1981 (UK). The broad definition of “court” authorises suppression orders to be made under the Act by any tribunal or body exercising judicial power of the State.¹¹⁰

10.65 In terms of the prejudice which may be caused by publication to the administration of justice, the South Australian power to issue suppression orders is rather different from the other general provisions discussed above. A risk of prejudice, no matter how substantial, will not be sufficient grounds for making a suppression order in its own right. The “court”, broadly defined to include a Justice conducting preliminary proceedings, a coroner and any person acting judicially,¹¹¹ can only make an order if satisfied that the prejudice that would occur by publication should be accorded greater weight than the public interest in the publication of court proceedings and the “consequential right” of the news media to publish it.¹¹²

10.66 This obligation to balance the public interest in open justice with prejudice to the administration of justice, including fair trial, was one of the amendments introduced in 1989 which were intended to make it more difficult to obtain a suppression order.¹¹³ Other amending provisions removed the right of parties to proceedings, including criminal defendants, to apply for suppression orders on grounds of “hardship”. The wording of the other ground for orders was also tightened so that courts were no longer empowered to suppress names and evidence where it appeared desirable “in the interests of justice” but could only do so where it would be “to prevent prejudice to the proper administration of justice.” In drafting these amendments, the Government (according to the Attorney General) had “erred on the side of freedom of speech and publication”.¹¹⁴ The 1989 amendments were designed to bring an end to the period in which the openness of judicial proceedings in South Australia had been greatly eroded by an uncommon concern for the interests and rights of the accused.¹¹⁵ Prior to these amendments Adelaide had been labelled the “suppression capital of Australia” because of the reputation of South Australian courts for issuing suppression orders in numbers far and above those issued by the courts of other states and territories.¹¹⁶ Criticism had been directed at the number of orders being made, and also at alleged anomalies in when and how such orders were applied. Criticism had also been directed at the use of suppression orders when a defendant pleaded guilty, such that restrictions to publication were being imposed on the basis of risk of prejudice to reputation not just prejudice of fair trial.¹¹⁷

10.67 Despite the narrower power given to South Australian courts since 1989 to issue non-publication orders to prevent prejudice to the administration of justice, the introduction of the ground of “undue hardship” has ensured that South Australian courts still have the broadest general power to issue non-publication orders in Australia. South Australian courts can make orders not only to prevent prejudice to the administration of justice, but also “to prevent undue hardship”. Whilst undue hardship to a criminal defendant or civil litigant can no longer form the basis of an order since the 1989 amendments, such a basis may still be considered for an alleged victim of a crime, a witness, or potential witness in civil or criminal proceedings, or for a child.¹¹⁸ It must be noted however, that even though the South Australian legislature has provided that suppression orders can be made on the basis of individual hardship rather than in the interests of justice as a whole, the court is still obliged to balance this hardship with the principle of open justice. The court must give substantial weight to the public interest in publication and the consequential right of the news media to publish and may only make an order where the undue hardship which would result should be afforded greater weight than those considerations.¹¹⁹

10.68 In spite of the greater weight meant to have been afforded to the interests of the public and rights of the media to publish, it would seem that the breadth of the provisions and the balancing act required have allowed the courts to tip the scales towards publication restrictions. It would also appear that the reputation of Adelaide as the “suppression capital of Australia” has not changed as a result of the 1989 amendments.

10.69 In the 1998/99 year alone, a total of 181 such orders were issued under s 69A of the Evidence Act 1929 (SA).¹²⁰ Ninety six of these orders were made on the very general ground that they were deemed “in the interests of the administration of justice”, even though s 69A(1)(a) requires such orders to be made on the more rigorous ground “to prevent prejudice to the proper administration of justice.” Another ten orders, which would come within the scope of this ground, were reported as having been made in order “to prevent possible prejudicial effect on the defendant’s trial and/or to prevent disclosure of defendant’s prior convictions.”

10.70 Orders made to prevent undue hardship were also numerous. Twenty were made in favour of victims and ten to protect witnesses, plaintiffs and others named in court proceedings. Interestingly, one order was made “to prevent undue hardship to the defendant”, even though the legislation does not allow for orders to be made on such a ground. Indeed, the whole purpose of the amendments to the Evidence Act 1929 (SA), which introduced s 69A, was to put an end to applications for suppression orders by defendants relying on allegations of hardship.¹²¹

10.71 Forty-four orders came under the general category “to prevent publication”. Since all such orders are made to prevent publication, this latter category, which accounts for a third of all suppression orders issued in the State during this period, fails to provide an adequate explanation as required by the legislation.

10.72 An attempt was made by the Commission to find comparable figures from the other State and Territory Attorney General’s departments. Since no other legislation has such detailed reporting requirements, such information was not generally kept. Nevertheless representatives with whom the Commission spoke considered that the number of orders being issued annually would not compare with the South Australian figures. To give an example of the difference, the Office of the Director of Public Prosecutions of the Northern Territory provided approximate figures to illustrate that orders are not made on a frequent basis. In 1997 it was estimated that no more than six orders were made under s 57(3) of the Evidence Act 1939 (NT), and in 1998 only two such orders were made.¹²²

Law reform options

10.73 In New South Wales there is no general statutory power authorising the courts to restrict publication of proceedings where publication may be prejudicial to a trial or to the administration of justice generally. The power contained in s 578 of the Crimes Act 1900 (NSW) is relatively limited. First, it applies only to criminal, not civil proceedings. The section empowering a judge (or a magistrate presiding at committal proceedings) to issue a suppression order is subject to the veto power of either party. It may also only be used to suppress publication of ‘evidence’, and does not extend to other material which could be prejudicial to the administration of justice such as names or counsel’s submissions. In addition, it cannot be invoked in other preliminary proceedings such as bail applications, where matters prejudicial to trial or to the administration of justice may also arise. Names can only be suppressed under the limited power available under s 578A which applies to complainants in relation to certain sexual offences, but not to victims of other crimes or witnesses generally.

10.74 Given that the statutory regime governing suppression orders is not comprehensive, and that the common law authority is somewhat unclear and inconclusive, there are a number of gaps and uncertainties that affect any review of the power to suppress publication of court proceedings in New South Wales. Should the rationale for any such statutory power be limited to the issue of fairness to a particular trial, or should it also relate to the broader issue of the administration of justice generally? If the latter, such a power may counter the deterrent effect that publicity may have on parties from instituting or defending proceedings, or on witnesses from giving evidence. What level of risk of prejudice must be required before a court has the authority to make an order? Or should there be an absolute prohibition on publication in certain types of proceedings, such as committals and bail applications? Should courts have a statutory power to make suppression orders in civil proceedings? Should the statute contain provisions setting out who has standing to apply for the making, alteration or revocation of non-publication orders? If so, to whom should standing be afforded and what should be the avenues of appeal? A number of these issues have been considered by other law reform bodies.¹²³

10.75 The Australian Law Reform Commission (“ALRC”) in its Contempt report addressed the issue of prejudice in the context of the jury trial.¹²⁴ It acknowledged the risk that reports of legal proceedings may contain material that could prejudice a jury trial, and recommended that a court should have power to postpone publication of a report of any part of proceedings if it is satisfied that publication would give rise to a substantial risk that the fair trial of an accused for an indictable offence might be prejudiced because of the influence the publication might exert on jurors.¹²⁵ This recommendation is similar to the common law position in Canada, where bans on publication may also only be ordered to prevent a real and substantial risk, rather than a speculative possibility, to fairness of a trial.¹²⁶ The ALRC’s recommendation that a substantial risk be the threshold was subsequently endorsed by the Victorian Law Reform Commission.¹²⁷ The Commonwealth government also recommended its implementation in a 1992 position paper¹²⁸ and prepared provisions on this basis for the Standing Committee of Attorneys-General in the Crimes (Protection of the Administration of Justice) Amendment Bill 1993 (Cth). However, to date, the model Bill has progressed no further.

10.76 As an alternative to recommending a general suppression power, the ALRC considered that media reports of committal proceedings should be banned outright. ¹²⁹ It noted several advantages in adopting this alternative approach, including that it would save magistrates from guessing in advance the evidence that would or would not be admissible at trial, and from identifying evidence that would cause a substantial risk of prejudice. This is because the issue at committal proceedings is strictly whether or not there is a case to answer. The defendant therefore often chooses to reserve his or her defence, as he or she is entitled to do, until trial. It was also noted that the reporting of committal proceedings is usually very selective, tending to give the public, including potential jurors, a one sided view of the evidence in the case. This is because the prosecution case usually receives more coverage than the defence case, which in certain circumstances will even be reserved. In the end, however, the ALRC rejected the proposal for an outright ban. Given the importance of the public interest in ensuring that the processes of the courts remained open to scrutiny, the ALRC concluded that so long as the law provided adequate powers for magistrates at committals to make suppression orders, where appropriate, the more drastic measure of imposing an outright ban was not desirable.

10.77 On the other hand, the Irish Law Reform Commission recommended¹³⁰ maintaining an outright ban on reporting of preliminary proceedings for indictable offences, such as committal proceedings. At the time of its review, legislation already precluded such reporting.¹³¹ The Irish Law Reform Commission considered that there had been no serious criticism of the operation of this legislation since its introduction, and that it was the only means of ensuring with absolute certainty that the media did not report on material subsequently ruled inadmissible and which proved to be prejudicial to a trial. In addition, it recommended that the courts be given a general power to suppress or postpone the reporting of matters taking place in open court. It did so on the basis, first, that the outright ban on reporting under the existing legislation did not apply to bail proceedings, and, secondly, that it may also be desirable to ban reporting of certain information revealed in substantive proceedings such as, for example, where it may impinge on separate proceedings still to be conducted.

10.78 The Criminal Law and Penal Methods Reform Committee of South Australia (the “Mitchell Committee”) also recommended that unless the accused consented to publication, an outright ban should be placed on the publication of evidence or names of persons charged with either summary or indictable offences. This ban was to endure until after conviction, (or in the latter case) until after committal or conviction. The Committee also recommended that where an accused is named in a media report of a trial and that person is subsequently acquitted, there should be as prominent a publication of the acquittal.¹³²

10.79 The Phillimore Committee in the United Kingdom acknowledged the risk of prejudice to the administration of justice if the media were permitted to publish fair and accurate reports of proceedings, both criminal and civil.¹³³ However, it emphasised the importance of the principle of open justice in determining that the media should be permitted to publish such reports. It did not make any recommendation for a legislative power to suppress reports of legal proceedings if the court considered them to be potentially prejudicial.

10.80 Although the Phillimore Committee made no recommendation to this effect, s 4(2) of the Contempt of Court Act 1981 (UK) introduced a general legislative power to suppress reports of proceedings where it appears necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings to which the report relates, or in any other proceedings pending or imminent.¹³⁴ This provision mirrors the approach recommended by the ALRC, to the extent that it provides courts with a general power to postpone reporting of proceedings where there is a “substantial risk of prejudice”. However, it is much broader in scope than the formulation recommended by the ALRC, in the sense that s 4(2) aims to protect against prejudice to the administration of justice generally. The section thereby allows for suppression of damaging publicity where this would deter victims and/ or witnesses from aiding in the administration of justice, in both the civil and criminal contexts. The power proposed by the ALRC was concerned only to protect influence on the jury in criminal trials. The breadth of the UK provision has meant that the section has proved controversial, attracting criticism that it is applied inconsistently, routinely, and unnecessarily.¹³⁵

The Commission’s tentative view

10.81 An outright ban rejected. At this stage, the Commission does not consider it desirable to propose a complete ban on reporting of bail and committal proceedings. It may be more straightforward to impose a complete ban, in the sense that the media would then know that they can never publish reports of such proceedings, and judges and magistrates would not be required to determine in each individual case what information may be particularly prejudicial so as to warrant prohibiting its publication. However, a complete ban on reports of such proceedings seems an unjustifiable intrusion on the right to freedom of discussion as well as an unnecessary infringement of the principle of open justice. In the majority of cases, the risk of prejudice to the future trial is not likely to be substantial, given that there is usually a long delay between the time of committal and bail proceedings, and the time of the trial.

10.82 There is an important public interest that preliminary hearings be heard in open court and be subject to free reporting. Even where a person is not committed for trial, issues raised at committal may provide stimulus for the matter being pursued in other ways, such as investigation by relevant professional disciplinary bodies. Suppression will obscure the question of whether some further investigation is appropriate in respect of purposes other than the imposition of criminal punishment.¹³⁶

10.83 Even where there is no subsequent conviction, a preliminary hearing may be made for further inquiry, for example, by disciplinary committees and boards. As guilt “beyond reasonable doubt” is the burden of proof required for conviction in criminal proceedings, acquittal or discharge following a preliminary hearing may not actually constitute a finding of innocence. Further investigation may be appropriate in respect of purposes other than the imposition of criminal punishment.¹³⁷

10.84 A broad power to suppress publication where there is a substantial risk of prejudice to the administration of justice. The Commission does acknowledge, however, that there may be cases, especially those involving particularly sensational facts or notorious personalities, in which the publication of information revealed in proceedings in open court may create a substantial risk of prejudice to subsequent proceedings. In cases such as these, it may be desirable to prohibit or postpone the publication of this information as an exception to the general principle of open justice.

10.85 Similarly, there may be cases in which disclosure of evidence or identities may deter people from giving evidence such as in the case of blackmail victims, police informers or security agents. This in turn will impede the proper functioning of the administration of justice. While the common law has developed exceptions to the open justice principle based on the need not to deter such witnesses, it is desirable that this be reflected in legislation to clarify that such orders are binding on the media.

10.86 However, the fact that publication of evidence or identifying particulars may be harmful to such witnesses should not be sufficient basis for an order, except in cases where such harm would itself cause prejudice to the administration of justice. The basis of any legislative power to issue suppression orders must be to secure justice rather than to address the needs of individuals involved in proceedings.¹³⁸

10.87 It has been argued by Justice Mahoney that the law should give greater power to the courts to restrict publication which is harmful to individuals.¹³⁹ In Nationwide News v District Court of New South Wales he criticised the fact that the benefit of open justice was obtained at the expense of those who are injured, hurt, embarrassed and distressed by unrestricted publication. He suggested that the law should be based on an analysis of the harm to the individual by the publicity (the price paid) and whether that outweighed the public interest in the information (the benefit).¹⁴⁰ Even if the law was not to adopt this cost/benefit approach, Justice Mahoney suggested that the law should provide an exception to the open justice principle based on “the harm, hurt and distress that may be caused.”¹⁴¹

10.88 As discussed above, “undue hardship” has been adopted by the South Australian legislature as a criterion for the making of a suppression order. Such orders may be made to prevent undue hardship to a victim of a crime, to a witness or potential witness in civil or criminal proceedings, or to a child, but cannot be made in respect of a criminal defendant or civil litigant.¹⁴² The distinction drawn between victims, witnesses and children on one side, and parties to proceedings on the other, is based on several factors. Unlike the parties, non-parties to the proceedings have little opportunity to defend themselves in legal proceedings against any negative imputations which may arise and therefore have greater need for protection from adverse publicity. Secondly, in the interests of law enforcement, the law recognises that victims and witnesses may be unwilling to testify unless they are protected from publicity.¹⁴³ This distinction does not mean however, that the names of parties to proceedings will never be suppressed. There is no statutory impediment for the court to suppress the identity of a criminal defendant or civil litigant if this is necessary to avoid undue hardship to a victim, witness or child.

10.89 It should be noted however that although undue hardship to a criminal defendant will not be sufficient grounds for restricting media reports, the South Australian legislature has imposed certain reporting obligations on the media in order to prevent stigma to persons who have been acquitted. If the media publishes a report of proceedings against a person for an offence which identifies that person, and that person is subsequently not convicted, s 71B of the Evidence Act 1929 (SA) requires the media to publish a fair and accurate report of the proceedings which reflects this result. Where an application has been made for the reservation of a question of law arising at the trial of a person who has been acquitted, the media cannot publish a report or statement in relation to the application or consequent proceedings which reveals the identity of the acquitted person without that person’s consent.¹⁴⁴

10.90 As mentioned above, 31 orders of the 181 issued in the year ending June 1999 were recorded as having been made on the ground of undue hardship. This figure is probably much higher in reality because of the large number of orders recorded as being made on the general basis that they were “to prevent publication”. Examples of undue hardship which have formed the basis of such orders in South Australia include that publication would prejudice the business, employment or employability of a victim or witness,¹⁴⁵ and that publicity is likely to cause a lasting social impact, especially in cases where the victim was involved or alleged to have been involved in conduct considered repellent or morally disgusting.¹⁴⁶ Likely psychiatric or psychological consequences which may flow to victims or witnesses from publicity has also been held to constitute undue hardship.¹⁴⁷

10.91 The Commission does not consider that hardship or embarrassment caused to an individual should of itself be sufficient cause for a suppression order to be issued. In particular situations, such as the hardship caused to sexual assault victims or in cases involving children, this consideration may be compelling. Whilst these situations should continue to be covered by specific legislation, the general rule should be that justice is administered in public view and that derogations from the principle of open justice should only be permissible under exceptional circumstances.

10.92 The Commission believes that such derogations should be based upon securing the needs of justice rather than the needs of particular individuals. The needs of witnesses and the accused may be accommodated to a certain extent, but only to the extent that restrictions of publicity are necessary for the administration of justice as a whole.

10.93 The Commission therefore favours a broad legislative power to restrict publicity where publication would create a substantial risk to the administration of justice. The fact that an order would be in the interests of justice generally, or that publication would be likely to prejudice the administration of justice, are not considered sufficient grounds for the making of an order. The risk of prejudice must be substantial, in that an order must be necessary to prevent prejudice to fair trial or to the administration of justice generally. A breach of the order should constitute a criminal offence, as is presently the case under s 578 of the Crimes Act 1900 (NSW).

10.94 Power to suppress names as well as evidence. Under the current NSW law there is a presumption in favour of non-publication of names in a limited number of cases such as those involving children, participants in adoption and family law proceedings, or sexual offence complainants.¹⁴⁸ The Coroner can also suppress names as well as evidence where media reporting of such information would render impracticable the administration of justice.¹⁴⁹ An order made under s 578 of the Crimes Act 1900 (NSW) operates only to suppress evidence, not names.¹⁵⁰ Most other jurisdictions provide a general power for suppression of publication of identifying particulars as well as evidence.¹⁵¹ Even in the context of sexual offences, the New South Wales power is comparatively narrow in that only the name of the complainant may be suppressed.¹⁵² Identifying particulars of other witnesses or the defendant can only be the subject of a non-publication order where such publication would lead to identification of the complainant.¹⁵³ Some other jurisdictions specifically provide that the publication of identifying particulars of witnesses and of defendants may also be prohibited, irrespective of whether such publication would lead to identification of the complainant.¹⁵⁴

10.95 It seems incongruous that, as under the present position, a court should have the power to order suppression of publication of evidence in relation to all criminal offences, but cannot exercise the same power where it may wish to suppress publication of names. The Commission is of the opinion that the power to make suppression orders should be extended to cover material which would lead to the identification of parties and witnesses involved in proceedings, where suppression is necessary to prevent a substantial risk of prejudice to the administration of justice, either generally or in relation to specific proceedings (including the proceedings in which the order is made). Nevertheless as discussed above, other prejudice such as economic, social or professional prejudice should not be a factor for consideration. This power should not alter the special protection given by existing legislation to specified groups such as children.¹⁵⁵

10.96 Power to apply to both civil and criminal proceedings. The general power to suppress evidence and names should apply to both civil and criminal proceedings, as it does in the Australian Capital Territory, the Northern Territory, South Australia, Tasmania, Victoria and the United Kingdom. If, as the Commission proposes, the basis of the power to issue suppression orders is that they must be necessary to avoid a substantial risk to the administration of justice, there would appear to be no good reason why the law should treat civil and criminal proceedings differently.

10.97 In the absence of statutory authority, the power to suppress publication of civil proceedings in New South Wales is governed by the common law. The lack of certainty about the nature and extent of this power in the common law justifies legislative clarification in this area.

10.98 Traditionally a distinction has been drawn between civil and criminal proceedings and the extent to which restrictions upon their openness should be imposed. This was based on the assumption that derogations from open justice in the criminal context should be more strictly controlled because the public has a greater interest and role to play in criminal proceedings. If members of the public were deterred by publicity and did not notify the commission of a crime or give testimony in court, a broader public interest was seen to be affected than if a person decided not to bring a civil action or aid in its adjudication.¹⁵⁶ A greater public interest was also said to arise where there is some moral component in the wrongdoer being brought to justice.¹⁵⁷

10.99 Nevertheless the validity of this distinction between civil and criminal proceedings in relation to open justice has been questioned.¹⁵⁸ There are many civil issues such as discrimination, defamation and civil actions for assault, including sexual assault, which contain matters of great public interest and importance. The Commission is of the view that the power of courts to restrict publication in matters such as these should be based on the same grounds as in criminal matters. The public interest in the proper administration of justice is equally important in such cases, and the courts should only be able to restrict reporting of court proceedings where publication would create a substantial risk of prejudice to the administration of justice.

10.100 Legislative provisions for standing and appeals. A further matter for consideration concerns who may apply for, or appeal from, or seek to revoke or vary a suppression order. The general test for standing under the common law is whether the party has a “special interest” over and above that of any member of the public generally.¹⁵⁹ It has been held that the media have sufficient standing to seek relief upon appeal by way of certiorari, and in appropriate cases, to seek a declaration, where invalid orders have been made which affect publication by it of proceedings.¹⁶⁰ The question of whether the media actually has standing under the common law to be heard on an application, and by extension, on variation or revocation of an order, is less settled.¹⁶¹ It has been suggested that the media have sufficient standing, and a consequential right to be heard, where such a suppression order is valid and directly binding upon them.¹⁶² Under the common law however, an order will only directly bind the media if it is present in court when the order is made.¹⁶³ The issue of the standing of the media to be heard on matters pertaining to suppression orders requires legislative clarification.

10.101 A detailed model standing provision is to be found in the South Australian legislation. Under s 69A(5) standing is expressly given to the media to make submissions in respect of an application for a suppression order to be made, revoked or varied.¹⁶⁴ This provision reflects the view that the law should be clear on whether it affords the media a right to be heard in such matters. It also recognises the gravity of a suppression order, and its power to interfere with the liberty of the media to report upon the administration of justice.¹⁶⁵ The legislation entitles the media, the applicant, a party to the proceedings in which the order is sought, and any person who has a “proper interest” to make submissions to the court. A similar standing provision was recommended by the ALRC in its Contempt Report. The Commission recommended that journalists and publishers, as well as others who are not merely meddling in the proceedings, should be expressly given the right to intervene in applications for suppression orders or to make applications for the lifting of such orders.¹⁶⁶

10.102 The South Australian provisions give the parties with standing a right to make submissions but not a right to give evidence. Evidence may only be presented with leave of the court.¹⁶⁷ This provision reflects the Branson recommendations that substantial delay, inconvenience and expense could result from an intervener being given such a right to call evidence, but that the court should be able to permit the party to call evidence where it would be of assistance in reaching a proper decision.¹⁶⁸

10.103 Under the South Australian Act, express provisions are also made regarding appeals against a suppression order, a decision not to make a suppression order, or the variation or revocation, or decision not to vary or revoke such an order.¹⁶⁹ The media is given an express right either to institute or be heard on an appeal, in addition to the original applicant, a party to the proceedings in which the order or decision subject to appeal was made, a person who was deemed by the primary court to have a proper interest, and a person who did not appear before the primary court in the application, but who is deemed to have a proper interest by the appeal court.¹⁷⁰ The ALRC has similarly recommended that a right of appeal against suppression orders and decisions not to make such orders be established for those who had been afforded standing.¹⁷¹ The South Australian Act provides that an appellate court may confirm, vary or revoke the order or decision under appeal, or may substitute its own order or its decision not to make an order.¹⁷² This power to substitute its own order for the one appealed against was also recommended by the ALRC.¹⁷³

10.104 The Commission’s tentative view is that similar provisions to those in South Australia relating to standing and appeals should be introduced in New South Wales. Express provision should be made for the media, as well as others with a special interest in the matter, to be heard by the court hearing the application before an order is made, or to apply subsequently to the court to vary or revoke the order.

10.105 The Commission is of the opinion that any party having a sufficient interest in the proceedings to accord them standing in suppression order hearings should also have a right to appeal the primary court’s decision. Leave of the court should not be required for such an appeal to be heard. A person or organisation undertaking an appeal should take on the status of an intervener and as such should be in the same position in relation to costs as any other party. The potential liability for costs orders should stop litigants from instituting vexatious or frivolous appeals. Appeals of this kind should be heard by the court which ordinarily hears appeals against the final decision of the court which made (or failed to make) the order under review.

PROPOSAL 21

Section 578 of the Crimes Act 1900 (NSW) should be repealed. A new provision should be introduced in the Evidence Act 1995 (NSW) which provides that any court, in any proceedings, has the power to suppress the publication of reports of any part of the proceedings (including documentary material), where such publication would create a substantial risk of prejudice to the administration of justice, either generally, or in relation to specific proceedings (including the proceedings in which the order is made). The power should apply in both civil and criminal proceedings and should extend to suppression of publication of evidence as well as material which would lead to the identification of parties and witnesses involved in proceedings before the court. As is presently the case under s 578 of the Crimes Act 1900 (NSW), breach of an order should constitute a criminal offence. The new section should not replace the common law or existing statutory powers to restrict publication of court proceedings (other than s 578).

The legislation should also expressly provide that the media, together with others with a special interest in the matter, have standing to be heard by the court before the making of a suppression order, or to apply to the court for the variation or revocation of such an order. Any person or organisation heard by the court in relation to an order made, or not made, under the section should have a right of appeal against the court’s decision. Persons or organisations that did not appear before the court in relation to the making of an order should only be able to appeal by leave of the appellate court. An appeal against a decision made under the section should be heard by the court which hears appeals against the final judgment of the court deciding the suppression order matter.

1. J Bentham quoted in Bowring, Works of Jeremy Bentham (1843) Volume 4 at 305.

2. Scott v Scott [1913] AC 417; McPherson v McPherson [1936] AC 177. The English authority has been reflected in Australia in cases such as Russell v Russell (1976) 134 CLR 495; Tradestock Pty Ltd v TNT (Management) Pty Ltd (1983) 50 ALR 461; David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294; Re Robbins SM; Ex parte West Australian Neswpapers Ltd (1999) 20 WAR 511. For a brief history of the principle of open justice see Kirby J in Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50-53.

3. [1913] AC 417 at 463. This case concerned the power of the Probate, Divorce and Admiralty Division to hear a marriage nullity action in camera.

4. Russell v Russell (1976) 134 CLR 495 at 520 (Gibbs J). This case concerned the constitutional validity of certain laws relating to married persons, including s 97 of the Family Law Act 1975 (Cth). This section provided that all proceedings in the Family Court, or in another court exercising jurisdiction under the Act (which included certain State courts) were to be held in closed court.

5. C M Branson, Background Paper, Section 69 of the Evidence Act 1929-1982 (South Australia, Attorney General’s Department, 1982) at 24. See also discussion in M McDowell, “The Principle of Open Justice in a Civil Context” (1995) 2 New Zealand Law Review 214 at 219-223.

6. C Lane, “On Camera Proceedings: A Critical Evaluation of the Inter-Relationship Between the Principle of Open Justice and the Televisation of Court Proceedings in Australia” (1999) 25 Monash Law Review 54 at 82.

7. Scott v Scott [1913] AC 417 at 445-446. Earl Loreburn recognised that “Tumult or disorder, or the just apprehension of it, would certainly justify the exclusion of all from whom such interruption is expected, and, if discrimination is impracticable, the exclusion of the public in general.”

8. See for example Scott v Scott [1913] AC 417 at 446 (Earl Loreburn).

9. See for example Scott v Scott [1913] AC 417 at 437-438 (Viscount Haldane), at 445 (Earl Loreburn), at 482-483 (Lord Shaw of Dumfermline).

10. See for example Scott v Scott [1913] AC 417 at 437 (Viscount Haldane); at 445 (Earl Loreburn); Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 54; Children (Criminal Proceedings) Act 1987 (NSW) s 10; Crimes Act 1900 (NSW) s 77A, 78F, 578A.

11. Attorney General v Leveller Magazine Ltd [1979] AC 440 at 471; Taylor v Attorney General [1975] 2 NZLR 675; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 54 (Kirby J); Supreme Court Act 1986 (Vic), s 18, 19(a); County Court Act 1958 (Vic), s 80, 80AA(a); Magistrates’ Court Act 1989 (Vic) s 126(1)(a).

12. See paras 10.36-10.42. See also discussion in G Nettheim, “Open Justice Versus Justice” (1985) 9 The Adelaide Law Review 487.

13. Scott v Scott [1913] AC 417 at 438 (Lord Haldane); R v Hamilton (1930) 30 SR (NSW) 277.

14. Scott v Scott [1913] AC 417 at 447 (Earl Loreburn).

15. J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 45; R v Tait (1979) 24 ALR 473 at 490.

16. Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 58 (Kirby J); at 61-62 (Samuels J); at 63-64 (Priestly J).

17. [1913] AC 417 at 437-438. See also discussion in Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 54 (Kirby J).

18. Scott v Scott [1913] AC 417 at 483 (Lord Shaw of Dumferline), at 437 (Viscount Haldane), at 441 (Earl of Halsbury), at 445 (Earl Loreburn).

19. Scott v Scott [1913] AC 417 at 446 (Earl Loreburn).

20. Scott v Scott [1913] AC 417 at 441 (Earl of Halsbury), at 437 (Viscount Haldane), at 445 (Earl Loreburn), at 482-483 (Lord Shaw of Dumfermline); Badische Anilin & Soda Fabrik v Levinstein (1883) 24 Ch D 156; David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 at 299-300 (Street J).

21. Attorney General v Leveller Magazine Ltd [1979] AC 440 at 471 (Lord Scarman). In this case however, instead of sitting in private the lesser device of concealing information from those in court was used. See also Taylor v Attorney General [1975] 2 NZLR 675.

22. See discussion at para 10.15-10.18.

23. See Federal Court of Australia Act 1976 (Cth) s 17(4); Evidence Act 1971 (ACT) s 82, 83(2); Magistrates’ Court (Civil Jurisdiction) Act 1982 (ACT) s 178(2); Supreme Court Act 1970 (NSW) s 80; Supreme Court Act 1979 (NT) s 17; Evidence Act 1939 (NT) s 57(1); Evidence Act 1929 (SA) s 69(1); Supreme Court Act 1986 (Vic) s 18-19.

24. Courts dealing with children in the ACT, NSW and SA are closed to the public but the media may attend: Children’s Services Act 1986 (ACT) s 169(1), 171; Children (Criminal Proceedings) Act 1987 (NSW) s 10; Children’s Protection and Young Offenders Act 1979 (SA) s 92(2). In the NT and Victoria however children’s courts are now prima facie open to the public: Juvenile Justice Act 1983 (NT) s 22(1); Children and Young Persons Act 1989 (Vic) s 19. In Tasmania the public may be excluded from a children’s court: Child Welfare Act 1960 (Tas) s 17. In WA the court has the power to exclude the public from any hearing or trial relating to a child or which may prejudice the interests of a child: Criminal Code Act 1913 (WA) s 635A.

25. Crimes Act 1900 (NSW) s 77A, 78F; Evidence Act 1971 (ACT) s 76D; Evidence Act 1979 (NT) s 21A; Criminal Law (Sexual Offences) Act 1978 (Qld) s 5; Justices Act 1886 (Qld) s 70; Magistrates’ Court Act 1989 (Vic) s 126(1)(d); Criminal Code Act 1913 (WA) s 635A.

26. (1985) 2 NSWLR 47 at 55. Justice Kirby referred to the cases of Australian Broadcasting Corp v Parish (1980) 43 FLR 129 at 133; Re Armstrong and State of Wisconsin (1972) 7 CCC (2d) 331; CB v The Queen (1982) 62 CCC (2d) 107.

27. Re F [1977] 1 All ER 114 at 93-94 (Scarman LJ).

28. Re F [1977] 1 All ER 114 at 137 (Lane LJ); Scott v Scott [1913] AC 417 at 447-449 (Earl Loreburn), at 483 (Lord Shaw of Dumferline).

29. David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294.

30. David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 at 300.

31. Attorney General v Leveller Magazine Ltd [1979] AC 440 at 472 (Lord Scarman); John Fairfax Group Pty Ltd v Local Court of New South Wales (1992) 26 NSWLR 131; R v Socialist Worker Printers & Publishers Ltd; Ex parte Attorney General [1975] 1 QB 637; Re Savvas (1989) 43 A Crim R 331. See generally discussion in D Butler and S Rodrick, Australian Media Law (LBC Information Services, Sydney, 1999) at 132-135.

32. Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 54-55 (Kirby J).

33. Attorney General v Leveller Magazine Ltd [1979] AC 440.

34. Attorney General v Leveller Magazine Ltd [1979] AC 440 at 465 (Lord Edmund-Davies); Ex parte Queensland Law Society Incorporated [1984] 1 Qd R 166 at 170 (McPherson J); Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476-477 (McHugh J) (Glass J concurring).

35. John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 141 (Kirby J).

36. John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 471-472; R v Savvas (1989) 43 A Crim R 331 at 335-336. See also Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246. This case involved whether the identity of an informant was protected by public interest immunity rather than use of a pseudonym order per se.

37. R v Socialist Worker Printers & Publishers Ltd; Ex parte Attorney General [1975] 1 QB 637.

38. John Fairfax Group Ltd v Local Court of New South Wales (1991) 26 NSWLR 131. The use of pseudonyms for victims of extortion was accepted by the majority in John Fairfax Group Ltd v Local Court of New South Wales (1991) 26 NSWLR 131. Nevertheless with a strong and convincing dissent delivered by Justice Kirby, acceptance of this category as a justification for pseudonym order is not entirely settled. In that case, Justice Kirby held that the common law exception developed for blackmail cases could not be extended to extortion cases since the situations were not analogous. In the case of extortion the victim has no guilty secret which he or she is trying to conceal. As such Justice Kirby believed that it was far less likely than in blackmail cases that the prospect of publicity would deter victims from reporting the crime.

39. Attorney General v Leveller Magazine Ltd [1979] AC 440 at 471 (Lord Scarman); Taylor v Attorney General [1975] 2 NZLR 675.

40. Re “Mr C” (1993) 67 A Crim R 562 at 564; Reed v Dangar (1992) 59 SASR 487.

41. For example, see David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294.

42. R v Arundel Justices; Ex parte Westminster Press Ltd [1985] 1 WLR 708.

43. C M Branson, Background Paper, Section 69 of the Evidence Act 1929-1982 (South Australia, Attorney General’s Department, 1982) at 32.

44. R v Clement (1821) 4 B & Ald 218 at 233; 106 ER 918 at 923 (Holroyd J).

45. [1913] AC 417 at 438 and 453-454.

46. Justice McHugh in John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 477 interpreted the decision in R v Clement as relating to an order directed to prevent publication of evidence to any potential witnesses or jurors, but doubted whether a similar finding would have been open in a case where publication would have taken place far from the actual trial and would have been unlikely to come to the attention of jurors or participants in the trial.

47. Attorney General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 348 (Mahoney J).

48. Ex parte Queensland Law Society Incorporated [1984] 1 Qd R 166 at 170 (McPherson J); Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 63 (Priestly J) which suggested that it was probable that the court had an inherent power to make such orders in rare situations; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 471-472 (Mahoney J); Attorney General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 345-347 (Mahoney J); Re Bromfield; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 at 167 (Malcolm J); at 180-181 (Rowland J).

49. (1988) 14 NSWLR 342 at 346-347.

50. (1988) 14 NSWLR 342 at 358 (McHugh J) (Hope J concurring).

51. (1991) 26 NSWLR 131 at 142.

52. At 161 (Mahoney J); at 169 (Hope J). Justice Hope argued that there was a distinction between the Mayas case, where he had found there was no power of an inferior court to prohibit publication of evidence given in open court, and this case, in which an inferior court could order a pseudonym order to protect disclosure of identity in the proceedings themselves. For an explanation of the distinction between inherent and implied powers in the context of a magistrate’s court, see Grassby v The Queen (1989) 168 CLR 1 at 16-17 (Dawson J). A good summary is given of the competing positions in the judgment of Warren J in the Victorian Supreme Court case of Herald and Weekly Times Ltd v Psychologists’ Registration Board of Victoria [1999] VSC 141.

53. Attorney General v Leveller Magazine Ltd [1979] AC 440; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 477 (McHugh J) (Glass J concurring). The judgment acknowledged that the court had such inherent powers to prohibit publication of evidence where necessary to secure the proper administration of justice, however it was clear to state that courts did not have the authority make such orders binding on persons outside the courtroom when the order was made. Nevertheless it was acknowledged that conduct outside the courtroom which deliberately frustrated such an order could constitute contempt, not because the person was actually bound by the order itself, but rather because the conduct intentionally interfered with the proper administration of justice; see also Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55 (Kirby J); Attorney General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 355, 358 (McHugh J) (Hope J concurring); United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 333-334 (Samuels J) (Meagher and Clarke JJ concurring); Re Savvas (1989) 43 A Crim R 331 at 334; Re “Mr C” (1993) 67 A Crim R 562 at 563 (Hunt J) (Smart and James JJ concurring).

54. John Fairfax & Sons Ltd v Poilce Tribunal (NSW) (1986) 5 NSWLR 465 at 477 (Mc Hugh J) (Glass J concurring).

55. Attorney General v Leveller Magazine Ltd [1979] AC 440 at 465; See also Attorney General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 348 (Mahoney J).

56. Attorney General v Leveller Magazine Ltd [1979] AC 440 at 453 (Lord Diplock), quoted with approval by McHugh J in Attorney General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 355.

57. Attorney General v Leveller Magazine Ltd [1979] AC 440 at 473-474 (Lord Scarman); Re F [1977] 1 All ER 114; Attorney General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 350-351 (Mahoney J); at 354-355 (McHugh J).

58. Attorney General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 350-351 (Mahoney J), at 356-357 (McHugh J).

59. Evidence Act 1995 (NSW) s 41, 195.

60. Adoption Act 1993 (ACT) s 97; Adoption of Children Act 1965 (NSW) s 53; Adoption of Children Act 1994 (NT) s 71; Adoption of Children Act 1964 (Qld) s 45; Adoption Act 1988 (SA) s 31; Adoption Act 1988 (Tas) s 109; Adoption Act 1984 (Vic) s 121; Adoption Act 1994 (WA) s 124.

61. Except as permitted by the Rules of Court enacted permanent to the Act.

62. An example may be where publishing details of a kidnapped child may be necessary for the purposes of securing that child’s recovery.

63. Section 68.

64. Children (Criminal Proceedings) Act 1987 (NSW) s 11. See also similar provisions contained in the Youth Offenders Act 1997 (NSW) s 65.

65 Administrative Decisions Tribunal Act 1997 (NSW) s 75(2).

66. See Special Commissioners of Inquiry Act 1983 (NSW) s 7 and 8; Independent Commission Against Corruption Act 1988 (NSW) s 31.

67. Independent Commission Against Corruption Act 1988 (NSW) s 31.

68. Independent Commission Against Corruption Act 1988 (NSW) s 112.

69. Coroners Act 1980 (NSW) s 44(5), 44(6). Another power lies under s 44(2) for the coroner to order that no report of the proceedings be published in circumstances where a death or suspected death appears to be self-inflicted. Under s 44(2A) the coroner may also order that that identifying particulars of the person concerned or relative of that person not be published.

70. Fairfax Publications Pty Ltd v Abernethy [1999] NSWSC 820.

71. (1985) 1 NSWLR 1 at 20.

72. Attorney General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374; R v West Yorkshire Coroner; Ex parte Smith (No 2) [1985] 1 All ER 100.

73. [1980] 1 NSWLR 374.

74. Attorney General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374 at 394.

75. Crimes Act 1900 (NSW) s 578(4).

76. John Fairfax & Sons Ltd v District Court of New South Wales (NSW, Court of Appeal, No 436/88, 18 August 1988, unreported). Followed in United Telecasters Sydney v Hardy (1991) 23 NSWLR 323 at 335 (Samuels J).

77. See for example Re “Mr C” (1993) 67 A Crim R 562 at 563 (Hunt J); John Fairfax Group Pty Ltd v Local Court of New South Wales (1992) 26 NSWLR 131 at 144 (Kirby J).

78. See United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 334-335 (Samuels J).

79. Crimes Act 1900 (NSW) s 578(1).

80. John Fairfax & Sons Ltd v District Court of New South Wales (NSW, Court of Appeal, No 436/88, 18 August 1988, unreported). Followed in United Telecasters Sydney v Hardy (1991) 23 NSWLR 323 at 335 (Samuels J).

81. Nationwide News v District Court of New South Wales (1996) 40 NSWLR 486.

82. See Crimes Act 1900 (NSW) s 578(2); Interpretation Act 1987 (NSW) s 56.

83. See discussion in C M Branson, Background Paper, Section 69 of the Evidence Act 1929-1982 (South Australia, Attorney General’s Department, 1982) at 30-32.

84. See for example Evidence Act 1971 (ACT) s 83; Evidence Act 1939 (NT) s 57; Evidence Act 1929 (SA) s 69A; Evidence Act 1910 (Tas) s 103A, 103AB; Magistrate’s Court Act 1989 (Vic) s 126; Supreme Court Act 1986 (Vic) s 18, 19; Contempt of Court Act 1981 (UK) s 4.

85. Crimes Act 1900 (NSW) s 578.

86. D Norris, Submission at 1; B Walker, Submission at 1.

87. The Australian Law Reform Commission, in its report on contempt, identified three basic premises which underlie the law restricting publicity bearing on a jury trial. Firstly, that jurors should not be subject to preconceptions or prejudices which may cause them to reach their verdict other than according to the law and evidence presented to them in the courtroom. Secondly, that media publicity may have the effect of implanting such preconceptions or prejudices in the minds of jurors or potential jurors so as to impact on their decision. And thirdly that these prejudices and preconceptions may survive throughout the jury’s deliberations, despite the effect of the evidence presented to them or any warning given by the judge to ignore what had been heard outside the courtroom. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 280.

88. C M Branson, Background Paper, Section 69 of the Evidence Act 1929-1982 (South Australia, Attorney General’s Department, 1982) at 30-32.

89. See para 2.69-2.84.

90. David Syme & Co Ltd v Hill (Supreme Court of Victoria, Practice Court, No 4726/95, Beach J, 10 March 1995, unreported). See also discussion in D Butler and S Rodrick, Australian Media Law (LBC Information Services, Sydney, 1999) at 145-146.

91. Justices Act 1886 (Qld) s 70, 71.

92. Justices Act 1902 (WA) s 101D; See Re Robbins SM; Ex parte West Australian Newspapers Ltd (1999) 20 WAR 511.

93. Justices Act 1959 (Tas) s 37A.

94. Magistrates’ Courts Act 1980 (UK) s 8. Where there is more than one accused, or where at least one consents, publication will be permitted if the court determines that it is in the interests of justice to do so: see s 8(2), s (2A).

95. See para 10.59-10.63, 10.65-10.67.

96. Kalick v The King (1920) 55 DLR 104 at 112 (Brodeur J); David Syme & Co Ltd v X (Vic, Supreme Court, No 4723/96, Beach J, 23 April 1996, unreported).

97. See discussion in G Nettheim, “Open Justice Versus Justice” (1985) 9 Adelaide Law Review 488; David Syme & Co Ltd v X (Vic, Supreme Court, No 4723/96, Beach J, 23 April 1996, unreported).

98. Evidence Act 1971 (ACT) s 83.

99. Evidence Act 1971 (ACT) s 82.

100. Evidence Act 1971 (ACT) s 83. The provision allows for orders that suppress the publication of identifying particulars of a witness or a party, presumably including a defendant.

101. Evidence Act 1939 (NT) s 57. The protection extends to any party or witness, or intending party or witness to the proceedings. This does not exclude the defendant: s 57(1)(b).

102. Evidence Act 1939 (NT) s 57(1)(a).

103. Evidence Act 1939 (NT) s 4 defines “court” as including “any Court, Judge, Magistrate or Justice, and any arbitrator or person having authority by law or by consent of the parties to hear, receive or examine evidence”.

104. Under s 103A of the Evidence Act 1910 (Tas) an order can be made if publication will “prejudice or be likely to prejudice, the fair trial of the case”.

105. Evidence Act 1910 (Tas) s 103A. The legislation does incorporate the notion of a deterrence factor in a limited class of sexual offence proceedings. There is a presumption, which may only be set aside if in the public interest, that names of complainants and witnesses involved in such proceedings will be withheld from publication. The power also extends to allow for protection from publication of the name of the accused in incest proceedings, presumably this would be because it would lead to identification of the complainant, rather than because the accused should be protected: s 103AB(2), (3). See discussion by Kirby J in John Fairfax & Sons Ltd v District Court of New South Wales, (NSW, Court of Appeal, No 436/88, 18 August 1988, unreported) in relation to non-publication orders of the name of the accused in incest cases.

106. Supreme Court Act 1986 (Vic) s 18-19; County Court Act 1958 (Vic) s 80-80AA; Magistrates’ Court Act 1989 (Vic) s126.

107. For example in the case of blackmail, in making an order in a particular case, persons who later become victims of blackmail will be encouraged to report the incident to authorities: Herald and Weekly Times Ltd v The Magistrates’ Court of Victoria [1999] VSC 232.

108. Supreme Court Act 1986 (Vic) s 18-19; County Court Act 1958 (Vic) s 80-80AA; Magistrates’ Court Act 1989 (Vic) s 126.

109. Contempt of Court Act 1981 (UK) s 4.

110. Contempt of Court Act 1981 (UK) s 19.

111. Evidence Act 1929 (SA) s 68.

112. Evidence Act 1929 (SA) s 69A(2)(a), (b). An interim suppression order can be made without inquiring into the merits of the application. However a final determination is to be made wherever practicable within 72 hours: s 69A(3).

113. The amendments were introduced by the Evidence Act Amendment Act 1989 (SA).

114. South Australia, Parliamentary Debates (Hansard) Legislative Council, 15 March 1989, at 2416. For a discussion on the changes brought about by the 1989 amendments to the Act see I D Leader-Elliott, “Legislation Comment: Suppression Orders in South Australia: The Legislature Steps In” (1990) 14 Criminal Law Journal 86.

115. See remarks in South Australia, Parliamentary Debates (Hansard) Legislative Council, 15 March 1989, the Hon C J Sumner, Attorney General, Second Reading Speech at 2415 in regard to Governmental concern over the use of suppression orders based on undue hardship at the expense of open justice. See also discussion in I D Leader-Elliott, “Legislation Comment: Suppression Orders in South Australia: The Legislature Steps In” (1990) 14 Criminal Law Journal 86.

116. A Joyce, “South Australia: The Suppression State” [1988] Australian Society (May) 18 at 19.

117. A Joyce, “South Australia: The Suppression State” [1988] Australian Society (May) 18.

118. Evidence Act 1929 (SA) s 69A(1). A criminal defendant or civil litigant cannot seek a suppression order on this ground, but his or her identity may be the subject of an order if its publication may cause undue hardship to a victim, witness or child. The rationale and desirability of “undue hardship” as the basis for a suppression order will be discussed in greater depth below at para 10.88-10.90.

119. Evidence Act 1929 (SA) s 69A(1)(b), (2).

120. South Australia, Report of the Attorney General Made Pursuant to Section 71 of the Evidence Act 1929 Relating to Suppression Orders for the Year Ended 30th June 1999. This total combines orders made by the Supreme Court, District Court, Magistrates Court, and other courts and tribunals. In the reported year, the Coroners Court, Youth Court and Medical Practitioners Board contributed to the number of suppression orders made under the Act.

121. See discussion in I D Leader-Elliott, “Legislation Comment: Suppression Orders in South Australia: The Legislature Steps In” (1990) 14 Criminal Law Journal 86 at 87.

122. Information provided by Jenny Blokland, General Counsel to DPP, Office of the Director of Public Prosecutions, Northern Territory (16 November 1999).

123. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 321-328; Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) at para 6.37-6.42, (Consultation Paper, 1991) at 343-350; United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 134-141.

124. Australian Law Reform Commission, Contempt (Report 35, 1987) Chapter 6.

125. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 324.

126. Dagenais v Canadian Broadcasting Corp (1994) 120 DLR (4th) 12.

127. Law Reform Commission of Victoria, Comments on the Australian Law Reform Commission Report on Contempt No 35 (unpublished, 1987).

128. Australia, Attorney General’s Department, The Law of Contempt: Commonwealth Position Paper (1992).

129. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 327.

130. Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) at para 6.37-6.42; (Consultation Paper, 1991) at 343-350.

131. Criminal Procedure Act 1967 (Ireland) s 17.

132. Criminal Law and Penal Methods Reform Committee of South Australia, Third Report, July 1975, reproduced in C M Branson, Background Paper, Section 69 of the Evidence Act 1929-1982 (Attorney General’s Department, South Australia, 1982) at 33-34.

133. United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 134-141.

134. Contempt of Court Act 1981 (UK) s 4(2).

135. See C J Miller, Contempt of Court (Clarendon Press, Oxford, 1989) at 332-338. For problems with the section and a general discussion, see A Arlidge, Arlidge, Eady & Smith on Contempt (2nd edition, Sweet & Maxwell, London, 1999) at 413-459.

136. An example may be where a magistrate finds that there was no case to answer for a medical practitioner charged with assault, but where the activity in question may still be relevant to the Medical Tribunal or Professional Standards Committee.

137. See I D Leader-Elliott, “Legislation Comment: Suppression Orders in South Australia: The Legislature Steps In” (1990) 14 Criminal Law Journal 86 at 103-104.

138. See discussion in Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 61 (Samuels J).

139. Nationwide News v District Court of New South Wales (1996) 40 NSWLR 486.

140. Nationwide News v District Court of New South Wales (1996) 40 NSWLR 486 at 494-495.

141. Nationwide News v District Court of New South Wales (1996) 40 NSWLR 486 at 495.

142. Evidence Act 1929 (SA) s 69A.

143. See discussion in I D Leader-Elliott, “Legislation Comment: Suppression Orders in South Australia: The Legislature Steps In” (1990) 14 Criminal Law Journal 86 at 92-94.

144. Evidence Act 1929 (SA) s 71C.

145. G v The Queen (1984) 35 SASR 349 at 352. Whilst this case dealt with economic hardship of the accused amounting to undue hardship, the principle has been held to still apply to undue hardship as it appears in the amended s 69A of the Evidence Act 1929 (SA), that is, applying only to witnesses and victims: H v Director of Public Prosecutions (SA, Supreme Court, No 6600/98, Bleby J, 11 March 1998, unreported).

146. R v Williams (SA, Supreme Court, No 4118/93, Debelle J, 13 August 1993, unreported).

147. See Berezowski v Malone (SA Supreme Court, No 2108/91, Cox J, 13 September 1991, unreported); R v Kevin Peter Krauth (SA, District Court, Kitchen J, 23 December 1997, unreported).

148. Children (Care and Protection) Act 1987 (NSW) s 68; Children (Criminal Proceedings) Act 1987 (NSW) s 11; Adoption of Children Act 1965 (NSW) s 53; Crimes Act 1900 (NSW) s 578A. These provisions give the courts a power to dispense with the non-publication restriction under certain circumstances.

149. Coroners Act 1980 (NSW) s 44. See Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 26 (Hunt J).

150. John Fairfax & Sons Ltd v District Court of New South Wales (NSW, Court of Appeal, No 436/88, 18 August 1988, unreported) (Kirby J) (Hope and Rogers JJ concurring). Followed by Samuels J in United Telecasters Sydney v Hardy (1991) 23 NSWLR 323 at 335.

151. Evidence Act 1971 (ACT) s 83 (evidence and names); Evidence Act 1939 (NT) s 57 (evidence and names); Evidence Act 1929 (SA) s 68, 69 (evidence and names); Magistrate’s Court Act 1989 (Vic) s 126; County Court Act 1958 (Vic) s 80, 80AA; Supreme Court Act 1986 (Vic) s 18, 19 (report or information derived from proceedings, which includes names). The following jurisdictions are similar to New South Wales in that there is a power to suppress publication of evidence, but names can only be the subject of orders in prescribed sexual offence proceedings: Evidence Act 1910 (Tas) s 103A (evidence and argument) s 103AB (names only for specified sexual offences); Evidence Act 1906 (WA) s 11A (evidence only, and only in the limited circumstances of where such evidence is incriminating for the witness and may prejudice any prosecution brought against that person), Evidence Act 1906 (WA) s 36C (name of complainant in sexual offence proceedings).

152. Crimes Act 1900 (NSW) s 578A.

153. John Fairfax & Sons Ltd v District Court of New South Wales (NSW, Court of Appeal, No 436/88, 18 August 1988, unreported) (Kirby J) (Hope and Rogers JJ concurring).

154. The provisions of the following Acts all relate to the prohibition of publication of identifying particulars in specific sexual offence cases: Criminal Law (Sexual Offences) Act 1978 (Qld) s 6, 7 (complainant, defendant); Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 6, 7 (complainant, witness, defendant); Evidence Act 1910 (Tas) s 103AB (complainant, witness); Evidence Act 1929 (SA) s 71A (defendant or prospective defendant, complainant); Protection of the complainant only is afforded in the following jurisdictions: Evidence Act 1971 (ACT) s 76E; the Judicial Proceedings Reports Act 1958 (Vic) s 4; Evidence Act 1906 (WA) s 36C.

155. Children (Care and Protection) Act 1987 (NSW) s 68; Children (Criminal Proceedings) Act 1987 (NSW) s 11; Adoption of Children Act 1965 (NSW) s 53.

156. See discussion in G Nettheim, “Open Justice Versus Justice” (1985) 9 Adelaide Law Review 488 at 492-493.

157. See discussion in M McDowell, “The Principle of Open Justice in a Civil Context” (1995) 2 New Zealand Law Review 214 at 223-224.

158. M McDowell, “The Principle of Open Justice in a Civil Context” (1995) 2 New Zealand Law Review 214.

159. Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 530.

160. Nationwide News v District Court of New South Wales (1996) 40 NSWLR 486 at 490 (Mahoney J); Cf Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 9; Re Bromfield; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153; John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465; Attorney General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 356; John Fairfax Group Pty Ltd v Local Court of New South Wales (1992) 26 NSWLR 131.

161. Nationwide News Pty Ltd v District Court of New South Wales (1996) 40 NSWLR 486 at 490 (Mahoney J).

162. Nationwide News Pty Ltd v District Court of New South Wales (1996) 40 NSWLR 486 at 492 (Mahoney J).

163. See discussion in Re Bromfield; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 at 168-170 (Malcolm J).

164. For a representative of a newspaper or a radio or television station: s 69A(5)(a)(iii), s 69A(6).

165. C M Branson, Report, Section 69 of the Evidence Act, 1929-1982 (South Australia, Attorney General’s Department, 1982) at 13-14.

166. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 488.

167. Evidence Act 1929 (SA) s 69A(5), (6).

168. C M Branson, Report, Section 69 of the Evidence Act, 1929-1982 (South Australia, Attorney General’s Department, 1982) at 14.

169. Evidence Act 1929 (SA) s 69A(8).

170. Evidence Act 1929 (SA) s 69A(9). A person who did not appear before the primary court may only bring an appeal, or be heard on appeal, by leave of the appellate court. Leave will be granted if the appellate court is satisfied that the person’s failure to appear before the primary court is not attributable to a lack of proper diligence: s 69A(9)(e).

171. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 488.

172. Evidence Act 1929 (SA) s 69B.