Suppression orders for child protection clients - advice

This advice provides additional information regarding seeking a suppression order for a child subject to a Children’s Court order.

Document ID number 2235, version 1,15 June 2018.

Introduction

See procedure Applying for a suppression order for a child protection client for tasks that must be undertaken when seeking and applying for a suppression order.

Suppression orders prohibit the publication of information relating to a matter before a court. Child protection may apply for a suppression order in relation to a child subject to a Children’s Court order where necessary to protect the child or to promote their rights or development.

Considering if a suppression order is required

It may be appropriate to apply for a suppression order in another court where a child protection client is either involved or related to a person involved in a criminal or civil proceeding before that court.  There are also suppression provisions under the Children Youth and Families Act 2005 (CYFA) that may negate the need for a suppression order.

Suppression provisions under the Children, Youth and Families Act

Suppression orders are not needed in connection with Children’s Court proceedings or hearings, or, where a child is involved, with family violence proceedings. 

Section 534 of the CYFA sets out restrictions on the publication of proceedings. This includes particulars likely to lead to the identification of a child or other party to, or witness in any proceeding in the Children’s Court or in any other court arising out of a proceeding in the Children’s Court, except in specified circumstances with permission of the Court. Identification of a child as being the subject of an order is also restricted. For further information see Publication of identifying details – advice.

Suppression provisions under the Family Violence Protection Act

Section 166 of the Family Violence Protection Act 2008 prohibits the publication of a report of the proceeding in the Magistrates’ Court or about the order, that contains, if a party to or a witness in the proceeding, or a person subject of the order is a child:

  • the locality or any particulars likely to lead to the identification of the particular venue of the court, or
  • any particulars likely to lead to the identification of the child or any other person involved in the proceeding, either as a party to the proceeding or as a witness in the proceeding, or the subject of the order.

Legislative basis for suppression orders

There are two main types of suppression orders: ‘proceeding’ and ‘broad’ suppression orders. The Open Courts Act 2013 consolidates statutory powers for making suppression orders, including the Supreme, County, Magistrates’ and Coroner’s Courts, and the Victorian Civil and Administrative Tribunal (VCAT).

The Open Courts Act establishes a presumption in favour of disclosure of information, to promote the principles of open justice and free communication of information. Orders made under the Open Courts Act can only be made in specified limited circumstances where there is strong and valid reason for doing so. Sections 13 and 14 of the Open Courts Act set out a number of requirements that apply to suppression orders and provide that suppression orders must clearly state their purpose, be clear in their terms and be cast no wider than necessary to achieve their purpose.

Proceeding suppression orders

A proceeding suppression order prohibits or restricts the disclosure by publication or otherwise of a report of the whole or any part of a proceeding and any information derived from a proceeding.

Grounds for an application for a proceeding suppression order

Supreme, County, Magistrates’ Courts, and VCAT

The grounds for an application for a proceeding suppression order (other than in the Coroner’s Court), are set out in section 18 of the Open Courts Act. At least one of the grounds must be satisfied to make an order. Grounds most likely to be relevant for child protection clients include where:

  • the order is necessary to protect the safety of any person (this can include protection from  ‘psychological harm’)
  • the order is necessary to avoid causing undue distress or embarrassment to a complainant or witness in any criminal proceeding involving a sexual offence or a family violence offence
  • the order is necessary to avoid causing undue distress or embarrassment to a child witness in any criminal proceeding
  • in the case of VCAT, the order is necessary to avoid the publication of confidential information.

Coroner’s Court

The Coroner’s Court may make a proceeding suppression order if the coroner reasonably believes that an order is necessary because disclosure would be likely to prejudice the fair trial of a person, or be contrary to the public interest.

Each ground requires that the order be ‘necessary’ to achieve the particular purpose. Orders will not be necessary where, for example, publication is restricted under another Act.

Where the order applies

Proceeding suppression orders apply only to the publication or disclosure of information in a place where the order applies, as specified in the order. The order should therefore specify where publication is prohibited, such as within Victoria.

Orders may be made to apply anywhere in Australia, however, the court or tribunal needs to be satisfied this is necessary for achieving the purpose for which the order is made.

Interim proceeding suppression orders

Where a party has applied for a proceeding suppression order, the court or tribunal hearing the application may make an interim order without determining the merits of the application.

The court or tribunal must then hear the substantive application as a matter of urgency and the interim order only has effect until the substantive application is determined or the court or tribunal revokes the interim order.

Broad suppression orders

Broad suppression orders allow the court to prohibit the publication of information relevant to a court proceeding that is not of itself derived from the proceeding. This may include prior convictions, images or personal details of an accused or witness.

Broad suppression orders are generally to be understood as ‘wide suppression orders’ or ‘general suppression orders’, or more specifically, orders:

  1. ‘restraining a person from publishing any material or doing any other thing’ (section 25 of the Open Courts Act, applicable to the County Court); or
  2. ‘prohibiting the publication of any specified material of a specified kind (section 26 of the Open Courts Act, applicable to the Magistrates’ Court).

The broad suppression order power also enables the court to order that matters already publicised be removed from circulation, or in the case of internet sites, taken down.

Broad suppression orders cannot be made by VCAT or the Coroner’s Court.

County Court

In the County Court, a broad suppression gives the Court the same injunctive powers as the Supreme Court to restrain a person from publishing any material or doing any other thing to ensure the fair and proper conduct of the proceedings.

Magistrates’ Court

The Magistrates’ Court may make broad suppression orders pursuant to two grounds, namely, where in the opinion of the Court it is necessary to do so in order not to: 

  1. prejudice the administration of justice; or
  2. endanger the safety of any person (section 26 of the Open Courts Act).

The Magistrates’ Court may make orders prohibiting the publication of any specified material and requires that the material suppressed is relevant to the proceeding that is pending in the Court.

Orders made under section 26 of the Open Courts Act may apply outside Victoria but only insofar as is necessary for achieving the order’s purpose.

Applying for a proceeding or broad suppression order

Role and responsibilities of CPLO or divisional legal officer and Legal Services Branch

The Child Protection Litigation Office (CPLO) or divisional legal officer are to be consulted when considering the need to apply for a suppression order. Involvement of the CPLO principal solicitor or Legal Services Branch (Assistant Director, Families and Children) is also required prior to seeking approval for a suppression order.

Once approved by the Chief Practitioner, Office of Professional Practice, the CPLO or divisional legal officer will proceed with the application process and provide instructions to Legal Services Branch (Assistant Director, Families and Children) regarding the application, including instructions to brief counsel.

Who can apply

A notice of application may be made by a party to the proceeding or any other person considered by the Court or Tribunal to have a sufficient interest in making of the order. A court or tribunal may also make an order on its own motion.

Notice requirements

Applicants must give three business days’ notice to the court or tribunal in which the application is to be made and the parties on record in the proceedings to which the application relates. The court or tribunal may hear an application despite the failure to give notice if the court or tribunal is satisfied that-

  1. there was a good reason for the notice not being given or not being given within the required time period, or
  2. it is in the interests of justice that the court or tribunal hear the application without notice being given.

On receiving a notice of application, the court or tribunal must take reasonable steps to ensure that any relevant news media organisation is notified of the application.

Evidentiary obligations

The courts and tribunals must be satisfied on the basis of sufficient credible information that the grounds for making the order are established. There is a preference for direct and specific evidence such as the likely impact that disclosure will have upon the child’s safety and their circumstances. The applicant may also present similar evidence from an appropriate expert (usually a medical practitioner). A principal practitioner or other expert, such as a clinical psychologist, may inform the court of the likely impact on the child’s emotional and psychological wellbeing as a result of seeing and hearing information of a disturbing event that they may have been witness or connected to.

Duration of orders

Orders must operate for a specified duration and operate for no longer than is reasonably necessary to achieve the purpose for which the order is made. Under section 12 of the Open Courts Act this may be specified in one of three ways:

  1. the order operates for a specified period;
  2. the order operates until a future event which will occur; or
  3. the order operates until a future event which may not occur in which case it must also operate for a period not exceeding five years after which the order expires if not ceasing to operate sooner.

Offences and breaches

The Open Courts Act makes it an offence to breach a proceeding suppression order. As broad suppression orders in both the County and Supreme Courts are injunctive, the appropriate remedy for any breach is the institution of contempt proceedings.

The breaching of a broad suppression made in the Magistrates’ Court is a statutory offence.

For the purposes of assessing potential breaches, it is important to note that the Act defines ‘publish’ to mean disseminate or provide access to the public or a section of the public by any means, including by –

  1. publication in a book, newspaper, magazine or other written publication; or
  2. broadcast by radio or television; or
  3. public exhibition; or
  4. broadcast or electronic communication.

Requests for information

Any material or information which is subject to a suppression order must not be released to any unauthorised person until the order is lifted or specific permission to release is obtained from the court.

However, there are specific circumstances where disclosure of information to an authorised person may be permitted.  Advice should be sought from Legal Services Branch prior to release of any information subject to a suppression order.

Review of suppression orders

Suppression orders can be reviewed by the court on its own motion or upon the application of one of the parties, which includes a party to the original application.

Upon review, the court can confirm, vary or revoke the suppression order or make any other order available under the Open Courts Act.

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