Suppression orders are one of the most misunderstood features of the Victorian justice system. Readers regularly ask our newsroom why a particular case has gone quiet, why a name has disappeared from coverage, or why a story they expected to read has not been published. Our chief courts reporter, Eliza Hartman, has put together this explainer to set out the framework that governs court-imposed silence.
This piece is about the principles. We do not name suppressed parties; we do not republish material that has been the subject of an order; and we exercise our own caution where matters are pending.
The Open Courts Act 2013
The principal Victorian statute is the Open Courts Act 2013. Its starting position is simple: open justice is the rule. Courts in Victoria are public institutions and their proceedings are presumptively open to public observation and reporting.
The Act then sets out the limited circumstances in which a court may make an order restricting publication. Section 18 contains the main grounds. An order may be made if it is necessary:
- To prevent a real and substantial risk of prejudice to the proper administration of justice.
- To prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security.
- To protect the safety of any person.
- To avoid causing undue distress or embarrassment to a victim of a sexual offence or family-violence matter.
- To avoid causing undue distress or embarrassment to a witness in a criminal proceeding.
The Act was substantially amended after the 2017 Open Courts Review by Frank Vincent QC, which found that the previous regime was being used too readily. The amendments tightened the test, required reasons to be given, and introduced sunset and review provisions.
What an order actually does
A suppression order operates as a legal restriction on publication. It can prohibit the publication of a person’s name, of identifying information, or of evidence given in court. It can apply to a defendant, to a complainant, to a witness, or to all parties.
The order is binding on every person within the relevant jurisdiction once they have notice of it. That includes media organisations, but it also includes social-media users, podcasters, bloggers and ordinary members of the public. A person who breaches an order commits an offence and may be liable to a fine, to a term of imprisonment, or to both. Repeat or contumelious breach can be dealt with as contempt of court.
The legal point that surprises people is that the order does not depend on whether the publisher knew the suppressed information was suppressed. It depends on whether the publisher had notice of the order. Once notice exists, ignorance of the underlying suppressed material is not a defence.
Super-injunctions and the spectrum of orders
The phrase “super-injunction” is sometimes used in media discussions to describe an order that not only suppresses the underlying information but also suppresses the existence of the order itself. Victorian courts can make orders that approach this — for example, orders that suppress the name of a party and also suppress the fact that a particular case is in the list — although the practice has tightened materially since the Open Courts Review.
More common in Victorian practice are orders that suppress identifying information about a complainant, particularly in sexual-offence and family-violence matters; orders that suppress the identity of a child involved in a proceeding; and orders that suppress particular pieces of evidence whose publication might prejudice a related trial. The Children’s Court operates under its own publication restrictions, which apply by default to most matters involving children.
The public-interest test
Section 18 requires the court to consider whether the order is “necessary” — not merely desirable — and to consider whether the protection sought can be achieved by a less restrictive means. The Court of Appeal has, on several occasions, set aside suppression orders made at first instance on the basis that the trial judge had not adequately addressed those statutory requirements.
The public interest in open justice is treated as a serious counterweight. The Act requires the court to give weight to the principle that the proceeding should be open to the public, and to the role of media reporting in informing public understanding of the courts. That balancing exercise is the core of any suppression decision.
Internet publishing and the long tail
The Act predates social media in its modern form, and one of the practical issues that has emerged in the years since 2013 is the long tail of online publication. An article published on a news website ten years ago may still be discoverable through search, even if a suppression order has since been made over a related fact. Major Victorian publishers maintain take-down processes to deal with these situations; smaller publishers and individual social-media users often do not.
The legal exposure for an online publisher of historic material is real. Where a court has made an order with prospective effect, continuing to host material that breaches the order can constitute a fresh act of publication on each access, depending on the legal analysis. Defamation reform in Victoria and across Australia has touched some of these issues but has not displaced the underlying suppression-order regime.
Contempt for breach
Breach of a suppression order can be prosecuted as a statutory offence under the Open Courts Act, or as common-law contempt of court. The two routes have different procedural features. Common-law contempt is heard in the Supreme Court and can attract more substantial penalties, particularly where the breach is contumacious — that is, where the publisher knew of the order and chose to publish anyway.
Recent Victorian prosecutions for breach have included matters involving social-media commentary and podcast publication. Penalties have included suspended sentences, fines, and in one prominent matter, custodial penalties for legal practitioners and journalists. The Court of Appeal has taken the position that contempt for deliberate breach of a suppression order is a serious matter that goes to the integrity of the criminal-justice system.
Who can apply, and who can challenge
Either party to a proceeding can apply for a suppression order. The Director of Public Prosecutions and Victoria Legal Aid both apply for orders in appropriate cases. Third parties — including media organisations — can be heard on a suppression-order application, and can apply to set an order aside. Major Australian media organisations regularly intervene in suppression-order applications and appeals, both individually and collectively.
The court must publish the existence of an order on a public list, unless the order itself prohibits that publication. The Victorian Government Gazette publishes suppression-order notifications in many matters.
What we do at this newsroom
Our practice is straightforward. We monitor the suppression-order list. We do not publish suppressed material. Where we are uncertain about whether an order applies, we take legal advice. Where an order is varied or lifted, we report it.
We also try to explain, where we can, why an order was made. The Open Courts Act is not a tool for hiding embarrassing information. It is a tool for protecting the integrity of trials, the safety of witnesses, and the dignity of complainants. When it is used for those purposes, public confidence in the courts is strengthened, not weakened.
If you are a witness, complainant or party to a Victorian proceeding and have concerns about media coverage of the case, the Office of Public Prosecutions and Victoria Legal Aid can both provide guidance. For court-companion support, the Court Network operates across most Victorian courts.
