Suppression and non-publication orders in NSW and the ACT.

What is a suppression order, and what is a non-publication order?

The two orders are related but not the same, and the difference matters. In New South Wales both are defined in section 3 of the Court Suppression and Non-publication Orders Act 2010 (NSW).

A non-publication order prohibits or restricts the publication of information. Publication means making the information available to the public, or a section of the public, by any means, so it covers news reports, broadcasts, and posts online. A suppression order prohibits or restricts the disclosure of information by publication or otherwise. It is the wider order. It can stop the information being handed on privately as well as reported, and it can reach material in the court file. In everyday reporting the two get lumped together as a suppression order, but the Act keeps them apart.

An order can protect a range of things: the identity of an accused, a complainant or a witness, the evidence given in a case, or information that would reveal a person the order is designed to protect. A pseudonym order, which lets a party be referred to by a false name, is one common form.

Why suppression orders are back in the news

The current attention comes from a long-running set of cold-case homicide investigations interstate, where members of the public have petitioned for suppression orders to be lifted and the police have said the orders should stay. The police position, put simply, is that lifting the orders could prejudice open investigations and reduce the protection given to witnesses who have come forward.

That tension is the whole subject in miniature. On one side there is the strong public interest in open courts and in the free reporting of what happens in them. On the other there are cases where publishing a name, a piece of evidence, or the fact of a charge would do real harm, to a fair trial, to an investigation, or to a person. The law of suppression is the set of rules that decides when the second interest is strong enough to displace the first.

Is justice not supposed to be open?

Yes. Open justice is one of the oldest principles of the common law. Courts sit in public, the parties are named, and the press and the public can watch and report. The point is that justice done in the open can be seen to be done, and that public scrutiny keeps the system honest. In John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, McHugh JA set out the principle and warned that departures from it must be confined to what is truly needed.

The NSW Act builds that principle into its own text. Section 6 tells the court that, in deciding whether to make an order, it must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. A suppression order is the exception, and the party who wants one has to justify it. The High Court took the same starting point in Hogan v Hinch [2011] HCA 4, which upheld a statutory power to make suppression orders while treating open justice as the norm the power departs from.

When can a NSW court make a suppression order?

The power sits in section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW). The grounds are in section 8. A court may make an order only where it is satisfied the order is necessary on one of these grounds:

to prevent prejudice to the proper administration of justice; to prevent prejudice to national or international security; to protect the safety of any person; to avoid causing undue distress or embarrassment to a complainant or witness in criminal proceedings for a sexual offence; or because the order is otherwise necessary in the public interest and that public interest significantly outweighs the public interest in open justice.

The controlling word is necessary. An order that would be helpful, or that a party would prefer, is not enough. The court has to be satisfied the order is needed to achieve the protective purpose, and it must specify the ground it relies on. There is a tighter test again where the order is sought to spare an accused person distress or embarrassment in a sexual offence case: that can be done only in exceptional circumstances.

The court can make an order on its own motion or on the application of a party, the informant, or a person the court thinks has a sufficient interest. The news media have a recognised interest and a right to appear and be heard on whether an order should be made, varied, or revoked. The Act also preserves the courts' inherent and implied powers to control their own proceedings, so the statutory scheme sits alongside, rather than replaces, the older powers.

How long does a suppression order last?

There is no standard length. Section 12 requires the court to set the duration and to ensure the order runs for no longer than is reasonably necessary to achieve its purpose. The period can be a fixed time, or it can be tied to an event, such as the conclusion of a trial or the resolution of related proceedings. Some orders are expressed to run until further order, which allows a party or the media to come back to court and ask for the order to be lifted once the reason for it has passed. That is the mechanism behind the interstate petition now in the news: an order made years ago can be revisited if the ground that supported it no longer holds.

Can a sexual assault complainant be named? What about a child?

Some protections do not depend on any order at all. They apply automatically by statute. In New South Wales, section 578A of the Crimes Act 1900 (NSW) makes it an offence to publish any matter that identifies the complainant in a prescribed sexual offence. The prohibition runs from the outset, whether or not a court has made a specific order. An adult complainant can choose to be identified and can give consent, and a court can give leave to publish, but absent that the identity is protected. See our note on sexual assault offences in NSW for how these cases run.

Children have their own protection. The Children (Criminal Proceedings) Act 1987 (NSW) restricts publishing the name of a child involved in criminal proceedings, whether as an accused, a witness, or a victim. Again, this operates by force of the statute rather than through a discretionary suppression order.

What is the penalty for breaching a suppression order?

Breach is a criminal offence. Section 16 of the Court Suppression and Non-publication Orders Act 2010 (NSW) makes it an offence to engage in conduct that contravenes a suppression or non-publication order. For an individual the maximum is 1,000 penalty units, or 12 months imprisonment, or both. For a company the maximum is 5,000 penalty units. A NSW penalty unit is $110, so the individual fine reaches $110,000 and the corporate fine $550,000.

The same conduct can also be dealt with as a contempt of court, which the courts have long used against publishers who defy an order or who report in a way that could prejudice a pending trial. A person cannot be punished twice for the one act. The overlap between breach of an order and contempt is real, and it is why publishers take these orders seriously. Our note on the contempt proceedings against a broadcaster shows how a court approaches publication that crosses the line.

How do suppression orders work in the ACT?

The ACT does not have a single mirror of the NSW Act, but the courts have the power all the same. The main statutory source is section 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), which lets a court forbid the publication of evidence given in a proceeding, or the name of a party or witness, where that is in the interests of justice or is needed to prevent prejudice to the administration of justice. The ACT Supreme Court also has its inherent jurisdiction to control its proceedings, and the Magistrates Court has an implied power to the same end.

The protections for sexual offence complainants and for children apply in the ACT as they do in New South Wales, through the Territory's own legislation. The upshot is the same in both places. Open justice is the rule, a court can depart from it where a real and identified harm calls for protection, and the order is kept to what the purpose requires.

Federal courts run on a matching scheme. The Federal Court of Australia Act 1976 (Cth) sets open justice as a primary objective and gives the court a suppression and non-publication power on grounds that track the NSW list, so a matter in the Federal Court is subject to the same balance.

Suppression, sub judice, and the presumption of innocence

Suppression orders are one of several controls on what can be said about a case before it is decided. Separate from any order, the sub judice rule restrains publication that could prejudice a trial that is on foot, and a person charged is presumed innocent until a court finds otherwise. These rules pull in the same direction: they protect the fairness of the process and the reputation of people who have not been convicted of anything. For anyone caught up in a matter that is being reported, the practical questions are what can lawfully be published, whether an order should be sought, and what to do if something has already been published. Those are questions to take to a lawyer early. If you are unsure whether reporting breaches an order, or you need an order made or lifted, get advice before you act.

What we do for clients on suppression and reporting

We act for people who need an order made to protect their safety or their fair trial, for people who need to test or lift an order made against their interests, and for people who are worried about what has been, or is about to be, published about their case. The work is the same shape each time: identify the ground, put the material before the court in the right form, and address the open justice balance head on, because that is the test the court applies. If your matter is being reported, or you are facing charges and want to understand what can and cannot be published, we can help. See our guide to how a criminal charge begins and our note on the first thirty days of a case, and, if police want to speak with you, our guide to the recorded police interview.

Frequently asked.

What is the difference between a suppression order and a non-publication order?

A non-publication order stops information being published, that is, broadcast or reported to the public. A suppression order goes further and stops the information being disclosed at all, whether by publication or in some other way. Both are defined in section 3 of the Court Suppression and Non-publication Orders Act 2010 (NSW). A suppression order is the broader of the two.

When can a court make a suppression order in NSW?

Section 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW) sets out the grounds. A court may make an order where it is necessary to prevent prejudice to the proper administration of justice, to protect national or international security, to protect the safety of a person, to avoid causing undue distress or embarrassment to a complainant or witness in a sexual offence case, or where it is otherwise necessary in the public interest and that interest significantly outweighs open justice. The word is necessary, not merely convenient.

How long does a suppression order last?

There is no fixed period. Under section 12 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the court sets the duration and must ensure the order operates for no longer than is reasonably necessary. The period can be a fixed time or can run until a stated event, such as the end of a trial. Some orders are made until further order and can be reviewed later.

What is the penalty for breaching a suppression order in NSW?

Under section 16 of the Court Suppression and Non-publication Orders Act 2010 (NSW), contravening a suppression or non-publication order is an offence carrying up to 1,000 penalty units, or 12 months imprisonment, or both, for an individual, and up to 5,000 penalty units for a company. The conduct can also be dealt with as a contempt of court, but a person cannot be punished twice for the same act.

Can a sexual assault complainant be named in NSW?

No, not without the necessary authority. Section 578A of the Crimes Act 1900 (NSW) prohibits publishing any matter that identifies the complainant in a prescribed sexual offence. An adult complainant can consent to being identified, and the identity can be published where the court gives leave. The prohibition applies whether or not a specific suppression order has been made.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 3 September 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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