Last week blogger Shane Dowling was jailed for contempt of court after breaching a non-publication order in the legal proceedings between Network 7 chief executive Tim Worner and his former lover Amber Harrison. Dowling published the names of a further two women accused of having affairs with Worner, despite their names being suppressed by the court. Justice Harrison sentenced Dowling to four months, short of the maximum penalty for contravening a suppression order which can be 12 months imprisonment.
What are suppression or non-publication orders?
Suppression and non-publication orders are means by which the court can withhold certain facts and details of a case from being made available to the public. These orders are contained in the Court and Non Publications Act 2010. There are specific instances in which a court will intervene and grant a suppression or non-publication order, such as preventing prejudice in the administration of justice, protecting any persons safety, or any time the public interest significantly outweighs the principle of open justice. However, it is important to note the order must be significantly in the public interest, and not merely to prevent embarrassment or inconvenience to the individual in question.
Who can apply for suppression or non-publication orders?
Typically the application for either order will be brought by a government organisation, or a party involved in the proceeding. The court can also instate a suppression order on their own initiative. Such orders will often be challenged by news organisations, who contend that the suppressing of information encroaches on their freedom of reporting and the principle of open justice if they are made without strong justification. The Act also requires the courts to take into account that “a primary objective of the administration of justice is to safeguard the public interest in open justice,” and recent decisions such as Rinehart v Welker  NSWCA 403 have confirmed the continued importance of the open justice principle. This indicates a heavy onus on the applicant who seeks to have some facet of their proceedings suppressed.
What must the order contain?
An order must specify:
- the grounds on which it was made: s 8(2)
- any exceptions or conditions to which it is subject: s 9(4)
- the information to which it applies: s 9(5)
- the place to which it applies, which may be anywhere in the Commonwealth. An order can only apply outside NSW where the court is satisfied that is necessary to achieve the order’s purpose: s 11
- the period for which the order applies: s 12
Consequences of breaching a suppression or non-publication order
Once an order has been made it is a criminal offence to contravene it. While in the case of Shane Dowling it was four months, it can result in up to twelve months imprisonment.
What are your thoughts on suppression orders and the open justice principle? Let us know by tagging #lawpath or @lawpath.