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Part 7—Suppression and non-publication orders

Part 7 Suppression and non-publication orders

Division 1 Introduction

192   Powers of Federal Circuit and Family Court of Australia (Division 2) not affected

                   This Part does not limit or otherwise affect any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this Part to regulate its proceedings or to deal with a contempt of the Court.

193   Other laws not affected

                   This Part does not limit or otherwise affect the operation of a provision made by or under any Act (other than this Act) that prohibits or restricts, or authorises a court to prohibit or restrict, the publication or other disclosure of information in connection with proceedings.

194   This Part does not apply to proceedings under the Family Law Act 1975

                   This Part applies to proceedings in the Federal Circuit Court and Family Court of Australia (Division 2) other than proceedings under the Family Law Act 1975 .

Note:          Part XIA of the Family Law Act 1975 deals with suppression and non-publication orders in proceedings under that Act.

Division 2 Suppression and non-publication orders

195   Safeguarding public interest in open justice

                   In deciding whether to make a suppression order or non-publication order, the Federal Circuit and Family Court of Australia (Division 2) must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

196   Power to make orders

             (1)  The Federal Circuit and Family Court of Australia (Division 2) may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

                     (a)  information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

                     (b)  information that relates to a proceeding before the Court and is:

                              (i)  information that comprises evidence or information about evidence; or

                             (ii)  information obtained by the process of discovery; or

                            (iii)  information produced under a subpoena; or

                            (iv)  information lodged with or filed in the Court.

             (2)  The Federal Circuit and Family Court of Australia (Division 2) may make such orders as it thinks appropriate to give effect to an order under subsection (1).

197   Grounds for making an order

             (1)  The Federal Circuit and Family Court of Australia (Division 2) may make a suppression order or non-publication order on one or more of the following grounds:

                     (a)  the order is necessary to prevent prejudice to the proper administration of justice;

                     (b)  the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

                     (c)  the order is necessary to protect the safety of any person;

                     (d)  the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

             (2)  A suppression order or non-publication order must specify the ground or grounds on which the order is made.

198   Procedure for making an order

             (1)  The Federal Circuit and Family Court of Australia (Division 2) may make a suppression order or non-publication order on its own initiative or on the application of:

                     (a)  a party to the proceeding concerned; or

                     (b)  any other person considered by the Court to have a sufficient interest in the making of the order.

             (2)  Each of the following persons is entitled to appear and be heard by the Federal Circuit and Family Court of Australia (Division 2) on an application for a suppression order or non-publication order:

                     (a)  the applicant for the order;

                     (b)  a party to the proceeding concerned;

                     (c)  the Government (or an agency of the Government) of the Commonwealth or a State or Territory;

                     (d)  a news publisher;

                     (e)  any other person who, in the Court’s opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should be made.

             (3)  A suppression order or non-publication order may be made at any time during a proceeding or after a proceeding has concluded.

             (4)  A suppression order or non-publication order may be made subject to such exceptions and conditions as the Federal Circuit and Family Court of Australia (Division 2) thinks fit and specifies in the order.

             (5)  A suppression order or non-publication order must specify the information to which the order applies with sufficient particularity to ensure that the court order is limited to achieving the purpose for which it is made.

199   Interim orders

             (1)  If an application is made to the Federal Circuit and Family Court of Australia (Division 2) for a suppression order or non-publication order, the Court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the Court, until the application is determined.

             (2)  If an order is made as an interim order, the Federal Circuit and Family Court of Australia (Division 2) must determine the application as a matter of urgency.

200   Duration of orders

             (1)  A suppression order or non-publication order operates for the period decided by the Federal Circuit and Family Court of Australia (Division 2) and specified in the order.

             (2)  In deciding the period for which an order is to operate, the Federal Circuit and Family Court of Australia (Division 2) is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

             (3)  The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

201   Exception for court officials

                   A suppression order does not prevent a person from disclosing information if the disclosure is not by publication and is in the course of performing functions or duties or exercising powers in a public official capacity:

                     (a)  in connection with the conduct of a proceeding or the recovery or enforcement of any penalty imposed in a proceeding; or

                     (b)  in compliance with any procedure adopted by the Federal Circuit and Family Court of Australia (Division 2) for informing a news publisher of the existence and content of a suppression order or non-publication order made by the Court.

202   Contravention of order

             (1)  A person commits an offence if:

                     (a)  the person does an act or omits to do an act; and

                     (b)  the act or omission contravenes an order made by the Federal Circuit and Family Court of Australia (Division 2) under section 196.

Penalty:  Imprisonment for 12 months, 60 penalty units or both.

             (2)  An act or omission that constitutes an offence under this section may be punished as a contempt of court even though it could be punished as an offence.

             (3)  An act or omission that constitutes an offence under this section may be punished as an offence even though it could be punished as a contempt of court.

             (4)  If an act or omission constitutes both an offence under this section and a contempt of court, the offender is not liable to be punished twice.