Every week in Victoria, someone walks into a courtroom and asks a judge to keep their name, their charges, or the details of their case out of the public record. What happens next — the test the court must apply, the rights of media to object, and the limits of what any order can actually achieve in the internet age — is a process most Victorians have never seen explained.
This is how it works.
The starting point: open justice is the default #
Victorian courts begin from a firm constitutional presumption: justice must be done in public. That principle is not merely a tradition. It is embedded in the Open Courts Act 2013 (Vic), which governs how suppression and non-publication orders are made across the Supreme Court, County Court, Magistrates’ Court and the Children’s Court (in its criminal division, where the Act applies alongside the Children, Youth and Families Act 2005).
Section 4 of the Open Courts Act makes the starting point explicit: a court must not make a suppression or non-publication order unless it is satisfied that doing so is necessary to achieve one of the Act’s listed grounds. Necessary — not merely desirable, convenient, or likely to reduce embarrassment. The threshold is deliberately high.
The grounds: what the law actually permits #
An applicant must satisfy the court that an order is necessary to achieve at least one of the following grounds set out in section 18 of the Open Courts Act:
- Administration of justice — for example, where publicity would prejudice a fair trial, such as by contaminating a jury pool before a high-profile prosecution.
- Safety of any person — where publication would put a witness, accused, victim, or third party at genuine physical risk.
- Protection of a child — though the Children’s Court and various other statutes impose automatic statutory protections that operate independently of this ground.
- Prevention of serious harm — a broader catch-all, but courts have read it narrowly to avoid swallowing the open-justice default.
- Effective investigation of an offence — used when naming a suspect or disclosing investigative details would alert other targets or compromise covert operations.
The applicant — usually the accused, a witness, the Director of Public Prosecutions, or occasionally a third party — must file an application, typically in writing, and the court will ordinarily hear it in open court unless the very act of hearing it would cause the harm the order is designed to prevent.
The public-interest test and the balancing act #
Even where a ground is technically made out, the Open Courts Act requires the court to consider whether the order is proportionate. Section 26 directs courts to give particular weight to the principle that a free press serves the public interest by scrutinising the justice system.
In practice, that means a judge weighing a suppression application must ask: is the public benefit of concealment — say, protecting a witness from retaliation — greater than the public benefit of disclosure — accountability, deterrence, and the community’s right to know that serious allegations are being prosecuted?
Courts have repeatedly held that reputation damage alone, or the embarrassment of a prominent person, is not sufficient. In AB v CD [2018] VSC 246, Justice John Dixon (as he then was) affirmed that the embarrassment or commercial damage that disclosure might cause a defendant is not, of itself, a ground for suppression. The test is necessity, not comfort.
The Pidgeon QC review and what changed #
In 2016, the then-Attorney-General commissioned barrister Kathleen Foley (now Foley QC) and later referenced work associated with the broader review chaired by the Honourable Frank Vincent AO QC, examining whether Victorian suppression-order practice had become too permissive in the preceding decade. The review found that orders were, in some jurisdictions, being made too readily — sometimes on oral applications with minimal scrutiny, without media interests being notified or heard.
Among the practical outcomes: Victorian courts moved toward greater procedural consistency, including a requirement that applications be listed so that media organisations — typically represented by their legal teams on short notice — have an opportunity to appear and contest. This matters enormously. An order made without a contradictor is far more likely to be broader than necessary.
The review also tightened attention to duration. Suppression orders in Victoria must now specify either an end date or a trigger event for their expiry. A perpetual suppression order is no longer acceptable as a default; the court must make a positive decision to renew.
The internet problem: jurisdiction at the water’s edge #
Perhaps the most vexing practical issue for Victorian courts is the internet. A suppression order made in the Supreme Court of Victoria binds persons and organisations within Australia — by operation of section 42 of the Open Courts Act, which extends orders to persons who publish in Victoria regardless of where they are physically located when they publish, and to entities who publish to Victorian audiences.
But it cannot bind a journalist in London, a forum user in Texas, or an automated archive that indexed a name before the order was made. Courts have grappled honestly with this limitation. In several high-profile Victorian matters — most notably where accused persons were suppressed in one jurisdiction but easily identifiable via overseas news reports and social-media posts — judges have acknowledged that suppression provides what might charitably be called a speed bump rather than a hermetic seal.
This has led some legal commentators, and the Victorian Law Reform Commission in its 2021 review of contempt laws, to question whether suppression orders continue to serve their stated purpose in a networked information environment — or whether, in some cases, they simply punish compliant domestic publishers while overseas and platform-based publishers ignore them with impunity.
VCN’s position, consistent with that of most mainstream Australian media, is that we will comply with any valid Victorian suppression order and will challenge, where appropriate, any order we believe is broader than the law permits.
How journalists challenge an order #
Any person who is or will be affected by a suppression or non-publication order — including a journalist or media organisation — may apply to the court to revoke or vary it under section 29 of the Open Courts Act.
The process is faster than it sounds. An affected media organisation’s lawyers can usually file a notice of appearance and seek a hearing within hours of learning of an order. In urgent matters — particularly where a verdict is imminent or where the order is about to block coverage of a significant public event — applications can be heard the same day.
On the application, the media organisation carries the burden of showing that the original necessity finding can no longer be sustained, or that the order is broader than necessary. Common arguments include: the passage of time has reduced the prejudice risk; the information is already in the public domain from overseas sources; or the order was made without adequate consideration of the open-justice principle because no media contradictor appeared at the original hearing.
In cases where the order was made by the Magistrates’ Court or County Court, a media organisation may also seek review in the Supreme Court’s Common Law Division. The Supreme Court has supervisory jurisdiction over all inferior courts and will not lightly permit an order that was made on flimsy grounds to stand unchallenged.
What this means for readers and the public record #
Suppression orders are not, as they are sometimes characterised, a tool for the powerful to hide wrongdoing. Used correctly, they protect genuine interests — the safety of witnesses, the integrity of jury trials, and the wellbeing of children caught up in proceedings they did not choose. Victoria’s Open Courts Act, and the active scrutiny of media organisations willing to appear and contest applications, is designed to ensure they are used correctly and no more broadly than the law allows.
When VCN reports that a suppression order is in place, we are telling readers that a judge has made a legally binding decision — not that we have chosen silence. And when we challenge an order, we do so not for commercial reasons but because the public’s right to know how courts exercise power over citizens is a right that belongs to all Victorians.
If you have information about a matter before the Victorian courts that you believe is being wrongly suppressed, contact VCN’s editorial team. We are unable to accept information that would itself breach a valid court order.
If this article has raised concerns for you, support is available 24 hours a day:
- Crime Stoppers: 1800 333 000
- Lifeline: 13 11 14
- Beyond Blue: 1300 22 4636
- 1800RESPECT: 1800 737 732
- Safe Steps (family violence): 1800 015 188
- 13YARN (First Nations crisis support): 13 92 76
