A suppression order is a court order that restricts the publication or disclosure of information connected to legal proceedings. Courts in Australia issue suppression orders to protect individuals, preserve a fair trial, or prevent serious harm. They are not routine. A judge must be satisfied that an order is justified on specific statutory grounds before one is made.
What a suppression order actually does
A suppression order prohibits named parties, media organisations, or the public from publishing, broadcasting, or otherwise disclosing specified information. That information might be the identity of a witness, a defendant, a complainant, or details of evidence tendered in the proceedings. The order can be temporary, lasting only until a verdict is delivered, or it can be permanent.
In New South Wales, suppression orders are governed by the Court Suppression and Non-Publication Orders Act 2010 (NSW). That Act sets out the grounds on which a court may make an order and requires the court to have regard to the principle of open justice when doing so. Open justice is the default. Suppression is the exception.
Grounds for making an order
A court can make a suppression order only if it is satisfied of at least one of the following grounds:
- The order is necessary to prevent prejudice to the proper administration of justice.
- The order is necessary to prevent undue hardship or distress to a victim, witness, or defendant.
- The order is necessary to protect the safety of any person.
- The order is necessary to avoid a serious risk to national or international security.
- The court is satisfied it is otherwise necessary in the public interest.
The "proper administration of justice" ground is the one courts most often rely on. This covers situations where publication would prejudice a concurrent or forthcoming trial. If a defendant faces multiple sets of proceedings, for example, reporting on the first verdict before the second trial begins can taint a jury pool.
Who can apply for a suppression order?
Any party to the proceedings can apply, including the prosecution, the defence, or a witness. A court can also make an order on its own motion. In some cases, a media organisation that wishes to report on proceedings may appear before the court to oppose an application or to seek the lifting of an existing order.
The person applying must satisfy the court that the order is necessary, not merely desirable. Courts in New South Wales have stressed that convenience or embarrassment alone does not meet the threshold. Understanding the strength of your position before making or opposing an application is critical. A criminal law specialist can assess whether the threshold is likely to be met on the facts of a particular matter.
How suppression orders interact with criminal trials
Suppression orders come up most often in matters involving ongoing criminal proceedings, co-accused defendants being tried separately, or cases where a complainant's identity must be protected by law. Sexual assault proceedings are a clear example: the identity of a complainant in a sexual assault matter is protected by statute in most Australian jurisdictions, and a suppression order may extend that protection further.
Orders also appear in cases involving vulnerable witnesses. Courts can restrict publication of a witness's name or image to encourage the witness to give evidence without fear of public exposure. This intersects closely with the rules about cognitive impairment directions, which govern how a jury approaches evidence given by witnesses who may be vulnerable.
Where a suppression order covers evidence rather than identities, the order typically prevents publication of that evidence until it has been formally tendered and the proceedings are concluded. That prevents a situation where jury members, or potential jurors in linked matters, read disputed evidence before a court has tested it.
Duration and variation of orders
A court must specify the period for which an order operates. If no period is specified, the order remains in force until the court varies or revokes it. Either party can apply to vary or revoke an order at any time if circumstances change. A verdict being delivered, for example, often removes the risk that justified the original order, and the media or another interested party may then apply for the order to be lifted.
Courts have discretion to renew orders, but that discretion narrows as the rationale for the original order becomes weaker. Suppression orders granted to protect the integrity of a trial don't automatically extend after that trial ends.
What happens if a suppression order is breached?
Breaching a suppression order is a serious matter. In New South Wales, a breach can be dealt with as a contempt of court, which carries the potential for fines and imprisonment. The consequences can fall on the individual who published the information, the editor of a publication, or the media organisation itself. This connects directly to de facto contempt of court, where conduct that undermines judicial proceedings attracts significant penalties even where no direct order is explicitly contravened.
In practice, courts take breaches seriously because they go to the integrity of the trial process itself. A publication that names a suppressed witness doesn't just break a procedural rule. It may compromise the whole proceeding.
Non-publication orders versus suppression orders
Australian courts use both terms, and they are often conflated. A non-publication order generally prohibits reporting of specified information but does not prevent the information from being disclosed in open court or to parties in the proceedings. A suppression order goes further: it can prevent the information from being disclosed at all, including in court. The distinction matters because the threshold for a suppression order is higher, and its effect is broader.
Getting advice on suppression orders
Whether you are a party seeking an order, a witness concerned about your identity being published, or a defendant dealing with an order that affects how your matter is reported, specialist advice is important. Ann Valos Criminal Law advises clients on suppression orders throughout criminal proceedings, from the Local Court through to the Court of Criminal Appeal. Ann Valos is an accredited criminal law specialist with over 15 years of experience in these matters and understands how to frame an application on the right statutory grounds.
Courts move quickly when suppression order applications are made, often during a hearing. Being prepared, and having a specialist who understands both the legislative framework and the court's approach, puts you in a far stronger position to protect your interests or to challenge an order that is overly broad.