Report No. 200

Final Report of the New South Wales Law Commission (2003):

In the final Report, the NSW Law Commission considered the following aspects (i) statutory suppression orders including why they are needed, who is subject to a suppression order, knowledge of the existence of a suppression order, existing statutory regulation of publication, (ii) recommendations under the sub-titles, standing, interim suspension orders, a strict liability offence, material to which suppression orders apply and finally gave its Recommendations as follows:

"A new provision should be introduced into 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 this is necessary for the administration of justice, either generally or in relation to specific proceedings (including 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 and oral submissions, as well as the material that would lead to the identification of parties and witnesses involved in proceedings before the Court.

The new section should not replace the common law, and should operate alongside existing statutory provisions that restrict publication unless a successful application has been made rendering such a provision inapplicable in the circumstances. However, section 119 of the Criminal Procedure Act, 1986 (NSW), together with any other provisions contained in other statutes which give Courts discretion if grounds are affirmatively made out to impose suppression orders, should be repealed.

A section should be introduced into the Crimes Act, 1900 (NSW) making breach of an order a criminal offence. The offence created by this section should be one of strict liability. The Evidence Act, 1995 (NSW) should also expressly provide that a person with a sufficient interest in the matter should be eligible to apply to the Court for the making, variation or revocation of a suppression order.

The application for a suppression order, together with the media and anyone else regarded by the court as having a sufficient interest may be heard on the application. The same categories of persons should also be able to appeal in relation to a suppression order. Such a person, if heard previously on the original application, should be entitled to be heard on the appeal. Any other person with a sufficient interest may seek leave to be heard. An appeal against a decision should be heard by a single Judge of the Supreme Court, except where a suppression order was made in the Supreme Court, in which case, an appeal should be to the Court of Appeal.

The Court should also be empowered to make an interim suppression order, having a maximum duration of seven days, before proceeding to a final determination. The Court should have the power to grant subsequent interim suppression orders."

The Commission prepared a draft Bill to enable 'suppression orders' to be passed by Court. We shall refer to it in detail later on.