INTRODUCTION
10.1 In its Discussion Paper 43 (“DP 43”) the Commission proposed1 a new legislative provision to replace s 119 of the Criminal Procedure Act 1986 (NSW).2 The proposed provision would empower any court to prohibit publication of reports of proceedings where publication would create a substantial risk of prejudice to the administration of justice. It was not envisaged that this would replace the common law. It was also stated in Proposal 21 that the new provision should not replace existing statutory powers to restrict publication.
10.2 The majority of submissions received either generally supported Proposal 21, or expressed approval of the direction taken by DP 43, without singling out this Proposal for specific comment. Criticism was expressed, however, in the submissions received from the Australian Press Council (“APC”) and collectively from Australian broadcasters.3 These expressed the fear that the proposal would result in an increase in the number of suppression orders being made and be likely to compromise the open justice principle.4 The Proposal was characterised by the APC as “a major incursion into current free speech rights”.5 The Australian Broadcasting Corporation and the New South Wales Bar Association also queried linking the power to make suppression orders to the administration of justice generally, instead of limiting it to concerns arising out of the specific proceedings.6 Concern was also expressed in both written submissions7 and in the course of consultations8 that the test for making suppression orders contained in Proposal 21 is too broad. We address this concern below.
STATUTORY SUPPRESSION ORDERS
Why they are needed
10.3 The uncertainty regarding various aspects of the court’s power to issue non-publication orders led the Commission to the view that legislative intervention was required to provide a clear and comprehensive regime.9 These include the questions of:
- who is subject to a suppression order;
- whether a person’s ignorance of the existence of a suppression order is relevant; and
- whether existing provisions allowing courts to restrict publication are satisfactory.
These are discussed below.
Who is subject to a suppression order?
10.4 An order made in court is binding on those present in the court, and is made pursuant to judicial authority. However, for a suppression order to bind all members of the public, even those not present at proceedings, legislative sanction is required.10 As Justice McHugh stated in Attorney General (NSW) v Mayas:
Courts have general authority to make orders binding on the parties, witnesses and other persons present in the court room. But they have no general authority to make orders binding on persons unconnected with the proceedings before them. For a court order to operate as a common rule and to bind people generally, it needs the express or implicit sanction of the legislature. If, pursuant to statutory authority, a court makes an order binding on persons outside the court room, breach of it will prima facie constitute a contempt whether or not the person is aware of the order.11 (emphasis added)
Knowledge of the existence of a suppression order
10.5 The words highlighted in the previous quotation raise the issue of requisite knowledge. In DP 43 we discussed this in relation to liability for breach of suppression orders made under common law powers.12 There is little direct authority on the question of whether mens rea, that is, knowledge of the wrongfulness of an act, is an essential element of an offence against a statutory provision conferring power to make a suppression order.
10.6 Nationwide News Pty Ltd v Bitter,13 a South Australian case, was an appeal by a company against its conviction pursuant to s 69(1)(e) and s 71(2) of the Evidence Act 1929 (SA). The former provision empowered the court to make a non-publication order. The latter was in the following terms:
71(2) A person who disobeys an order under section 69(1)(d) or (e) shall be guilty of an offence and liable to a penalty of not more than two thousand dollars, or imprisonment for a period not exceeding six months.
Counsel for the defendant had argued at trial that there was a presumption that any statute creating an offence required the prosecution to prove mens rea. He submitted that as no evidence had been adduced of the defendant’s knowledge of the order or its intention to breach it, there was no case to answer. The defendant was convicted, the magistrate holding in effect that the legislation created an absolute offence.14 On appeal, Justice Olsson of the Supreme Court of South Australia stated:
(W)hat must firmly be borne in mind in the case at bar is that I am here concerned with a statutory offence and not a charge of contempt. It follows that limited assistance is to be gleaned from authorities bearing upon the latter topic. In the final analysis the question of whether or not mens rea is an essential element of a statutory offence is nothing more nor less than a question of statutory interpretation.15
His Honour said that if s 71(2) were not read as creating an absolute offence then “its whole purpose may well be aborted”. He went on:
If, as in the case at bar, it was open to a member of the media to say that, because it did not take the trouble to check whether any prohibition existed, it should be exculpated then it is difficult to see how the statutory provision could possibly be effective. …[N]ot only will putting the defendant under strict liability assist in the enforcement of the scheme of the legislation, the fact is that such scheme is likely to be rendered substantially unworkable if that is not done.16
10.7 A judgment of the High Court, delivered almost contemporaneously with the previous case, examined in some detail the issue of mens rea in statutory offences and put forward a very different view. In He Kaw Teh v The Queen17 the Court applied the general principle, previously stated in a case called Sherras v De Rutzen as follows:
There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered.18
The High Court took this further, stating that there are three matters to be considered in deciding whether the presumption has been displaced and Parliament intended the offence created by legislation to have no mental ingredient. These are:
1. the words of the statute creating the offence;19
2. the subject matter of the statute;20 and
3. whether imposing absolute liability will assist in enforcing the statute.21
10.8 Statutory offences are in fact divided into three categories for the purposes of determining whether mens rea is required to establish liability. These were usefully set out in the judgment of Chief Justice Street in R v Wampfler:
(1) Those in which there is an original obligation on the prosecution to prove mens rea.
(2) Those in which mens rea will be presumed to be present unless and until material is advanced by the defence of the existence of honest and reasonable belief that the conduct in question is not criminal in which case the prosecution must undertake the burden of negativing such belief beyond reasonable doubt.
(3) Those in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence.22
Those belonging to the second category are called offences of strict liability, while those falling into the third group are offences of absolute liability. The phrase “belief that the conduct in question is not criminal”, which appears in the second category is “not [intended] to refer to ignorance or mistake of law”.23
10.9 The consequence of not knowing that a suppression order has been made depends on which of the above three liability categories applies to the proposed statutory provision. This question of knowledge brings us back to the third consideration articulated by the High Court in He Kaw Teh, namely, the effect on enforcement of the statute. If the provision is within the first category, so that the prosecution must prove mens rea on the part of the defendant, then a person wishing to avoid the operation of the provision might need only to leave the courtroom before an order is made. This is similar to the point made by Justice Olsson at paragraph 10.6 above. In Nationwide News Pty Ltd v Bitter Justice Olsson upheld the conviction for breach of legislation that the magistrate had “in effect” held created an absolute offence.24 Recently, however, the trend has been against construing statutes as creating absolute liability.25 This is due to the potential harshness26 and lack of benefit27 that can result. The Commission’s recommendation with regard to this issue is discussed at paragraph 10.28 below.
Existing statutory regulation of publication
10.10 In DP 4328 we discussed existing statutory provisions that impose or authorise restrictions on publication. We distinguished two major categories:
10.11 In its submission, the New South Wales Bar Association highlighted “the present unsatisfactory state of affairs in New South Wales” resulting from:
the number of statutory provisions which operate to empower a variety of courts, commissions, and disciplinary tribunals to make suppression orders. Importantly, as analysis of these provisions shows, the extent of the power given to a particular court or other body to make such an order varies considerably, likewise the nature and measure of any sanction for breach.29
10.12 Indeed, an examination of numerous such provisions indicates that legislation confers often quite broad powers to issue suppression orders and in a range of circumstances. For instance, several statutes permit certain courts, tribunals, commissions or authorities to restrict publication in cases where this is “necessary or desirable in the public interest”30 or where “necessary in the public interest or … there are other exceptional circumstances”.31 In some cases the “confidential nature” of evidence or other material is sufficient grounds for the issuing of a suppression order.32 Such orders can also be made in some cases where publication may lead to certain persons being identified.33 Infrequently, legislation will allow suppression orders to be made without specifying the grounds on which this can be done.34 These cases are examples of legislative provisions falling within the second category referred to above, namely those with a broad discretion to impose suppression orders.
10.13 Statutory provisions embodying a presumption against publication tend to have a strong public policy reason for so doing. Section 578A of the Crimes Act 1900 (NSW), for example, prohibits publication of matter which identifies victims in prescribed sexual offences. An objective common to several pieces of legislation is the desire to protect the identities of children involved in proceedings.35 Other circumstances in which the presumption against publication may arise include a finding by the Coroner of self-inflicted death,36 proceedings before the Guardianship Tribunal,37 proceedings involving a participant in a so-called “authorised operation”,38 inquiries under the Mental Health Act 1990 (NSW),39 and hearings in connection with applications for statutory compensation before the Victims Compensation Tribunal.40
10.14 The Commission makes no recommendation regarding legislation of the type referred to in the previous paragraph. So long as the underlying policies are manifest and clearly justifiable and the scope of any such law is narrow and well defined, Parliament should retain the power to enact in the future laws containing such a presumption. However, with respect to statutory provisions of the type illustrated in paragraph 10.12, conferring a broad discretion to impose suppression orders, the Commission believes these should be repealed, and in their place a provision based on Recommendation 22, below, apply.
RECOMMENDATIONS
The test for making suppression orders
10.15 In formulating its proposal with regard to restricting publication of proceedings, the Commission was mindful of concerns of the type alluded to above in paragraph 10.2, and attempted to address these in DP 43.41 There, for example, the Commission stated:
[T]he general rule should be that justice is administered in public view and that derogations from the principle of open justice should only be permissible under exceptional circumstances.42
Such derogations “should be based upon securing the needs of justice rather than the needs of particular individuals.”43
10.16 Furthermore, the Commission stated that while “the needs of witnesses and the accused must be accommodated to a certain extent” this should go no further than that which is “necessary for the administration of justice as a whole”.44 To secure this end, the Commission proposed that a suppression order would be justified only where publication “would create a substantial risk of prejudice to the administration of justice”.45 This proposal was modelled on s 4(2) of the Contempt of Court Act 1981 (UK) which empowers a court to issue a so-called “postponement order”.46
10.17 However, in light of the concern expressed in the Discussion Paper to minimise departures from the open justice principle, the Commission has reconsidered the “substantial risk” test appearing in Proposal 21, and now regards it as being too broad to meet adequately the concerns expressed above. For a court to order the suppression of material produced in an open court, more should be required than to indicate a risk of prejudice to the administration of justice. As stated at paragraph 10.92 of the Discussion Paper, it should be “necessary for the administration of justice as a whole” (emphasis added).
10.18 One of the difficulties with the “substantial risk of prejudice” formulation is that while the risk must be great, the prejudice need not be.47 Eady and Smith express the opinion that it seems strange that a court could impose an order restraining publication where the prejudice in contemplation is less than severe.48 Even the meaning of “substantial risk” is more elusive than might at first appear. In one English case, for example, the Master of the Rolls accepted counsel’s interpretation of “substantial” as not meaning “‘weighty’, but rather … ‘not insubstantial’ or ‘not minimal’.”49 Lord Diplock had earlier expressed the view that “substantial risk” was “intended to exclude a risk that is only remote”.50 Another problem encountered in England, where the formula “substantial risk of serious prejudice” is employed to determine liability under the sub judice principle, is that determining the degree of risk may require a judge to assess the susceptibility of a particular jury to influence from a publication,51 as opposed to making an objective assessment of the prejudice to justice likely to result from the publication.
10.19 Even where it may be considered that a substantial risk of prejudice to the administration of justice does exist, it does not necessarily follow that the appropriate course is to impose restrictions on the publication of proceedings. In Re Central Independent Television Plc52 the Court considered an appeal brought by television and radio broadcasters against the granting of a so-called postponement order under s 4(2) of the Contempt of Court Act 1981 (UK). The trial judge had made the order in circumstances where the members of a jury in a trial that had lasted three weeks retired to consider their verdicts and were spending the night at an hotel. The judge had expressed concern that the jury members should be allowed to relax and watch television, and so made an order that no report of the case be broadcast by either television or radio. In allowing the appeal, Lord Lane CJ stated53 that in the circumstance where the members of the jury were confined to the hotel it was possible to deprive them of television and radio, making it unnecessary to issue a postponement order. Where restrictions are necessary, alternatives to restricting publication should be used where reasonably available.
10.20 The Commission recommends that a new provision be enacted in substantially the same terms as contained in Proposal 21, but with the difference that the court be empowered to suppress publication where this is necessary for the administration of justice. Using the word “necessary” without a qualification such as “reasonably” is not intended to mean that suppression is absolutely necessary for the administration of justice. Rather, it is the Commission’s view that suppression may be ordered where required as a practical necessity to serve the ends of justice.54
Standing
10.21 In DP 43 we proposed55 that the media and others with a special interest be accorded standing to be heard by the court before the making of a suppression order, or to apply subsequently for the variation or revocation of such an order. Furthermore, we proposed56 that any person or organisation heard by the court with regard to a suppression order should have a right of appeal against the court’s decision, while those that did not appear should only be able to appeal by leave of the appellate court. Submissions and consultations generally endorsed the proposal, although the Joint Broadcasters’ Submission stated that the media should have a right of appeal without restriction.57
10.22 The Commission has given more detailed consideration to the question of standing, and makes the following recommendations. A court should be empowered, on its own motion, to order that no report of a proceeding be published. Additionally, a person who can satisfy the court that he or she has a sufficient interest in the matter should be able to apply to the court for a suppression order. The categories of persons eligible to be heard on an application for the making, variation or revocation of a suppression order should comprise:
- the person applying for the suppression order;
- the media; and
- anyone else the court regards as having a sufficient interest.
10.23 The Commission has changed from “special” to “sufficient” the level of interest a person is required to demonstrate in order to be heard. This is because the concept of “sufficient interest” is well established in the rules of administrative law that govern the issue of standing to sue.
10.24 The same categories of persons as are mentioned in the previous paragraph should be able to appeal against a decision relating to a suppression order. The initial applicant for the suppression order, together with anyone previously heard on a matter relating to that suppression order, should be entitled to be heard on the appeal. So long as leave is granted, it should also be permissible for any other person with a sufficient interest to be heard.
Interim suppression orders
10.25 Additionally, courts should have the power to make interim suppression orders of no more than seven days’ duration prior to a final determination of the matter, either on the court’s own motion or on application from a person with a sufficient interest in the matter. The court, in exercising this power, must find it to be necessary for the due administration of justice that (a) an interim suppression order should be made and (b) that it should be made without delay. This means, in essence, that the case for immediately suppressing reporting of the relevant material must be clear, but the hearing of an application for a “regular” suppression order would unduly delay the trial being conducted.
10.26 If possible, the issue of whether a “regular” suppression order is justified should be determined within the period of operation of the interim order. It should therefore be provided that, during the currency of an interim suppression order, a second or subsequent interim suppression order, or a “regular” suppression order, may be applied for and granted, with the court empowered to stipulate that it should take effect upon the expiry of the current interim order.
10.27 Persons wishing to be heard on an application for an interim order should be required to seek the court’s leave, with those categories mentioned in paragraph 10.22 above being eligible. Appeals relating to interim suppression orders should be open to those already heard on the matter or by others with a sufficient interest, providing they have obtained the appellate court’s leave.
A strict liability offence
10.28 At paragraph 10.5 and following we discussed the mental element necessary for establishing liability for the breach of a suppression order, and noted that in recent times the move has been away from the designation of statutory offences as creating an absolute liability. The Commission likewise believes it inappropriate to designate breach of a statutory prohibition against publication as an offence of absolute liability. On the other hand the onus should not fall on the prosecution to prove as part of its case that the defendant was aware of the prohibition.
10.29 In the Commission’s view the recommended legislative provision should be one of strict liability. A person publishing material the subject of a suppression order will prima facie be guilty of an offence. If, however, he or she can adduce evidence showing the existence of an honest and reasonable belief that the activity was not criminal, then the burden will fall on the prosecution to negate this. An example of such material might be incorrect advice from the court in response to an inquiry by the defendant as to whether a suppression order had been issued.58 In two cases the Commission is aware of, statutory provisions dealing with restrictions on publication state specifically that the offence created by the section is one of strict liability.59 To avoid any uncertainty, the Commission recommends the same course be adopted in this case.
Material to which suppression orders apply
10.30 In making a suppression order, a court should be able to restrict the reporting of all or any part of proceedings. This has traditionally included such elements as evidence tendered during proceedings, and material that would lead to the identification of a party or witness. However, the Commission recommends that restrictions as to publication should be able to extend to all parts of proceedings, including oral submissions by counsel and evidence tendered but not admitted. This power should also apply to cases where proceedings are held in private (in camera), as it is unclear at common law whether in these circumstances a restriction on publication would automatically apply.60
RECOMMENDATION 22
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 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 applicant 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 heard by 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.
FOOTNOTES
1. NSW Law Reform Commission, Contempt by Publication (Discussion Paper 43, 2000) (“NSWLRC DP 43”), Proposal 21.
2. This section replaced s 578 of the Crimes Act 1900 (NSW). Section 578 was repealed by the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW).
3. Collective submission from the Federation of Australian Commercial Television Stations, Federation of Australian Commercial Radio Broadcasters, Australian Broadcasting Corporation (Legal Services Department) and the Special Broadcasting Service.
4. Australian Broadcasters, Joint Submission at 7.
5. Australian Press Council, Submission at 7.
6. ABC, Submission at 3; NSW Bar Association, Submission at 12.
7. NSW Bar Association, Submission at 12.
8. Broadcast Media Representatives, Consultation; Government Lawyers, Consultation; NSW Bar Association Representatives, Consultation; Print Media Representatives, Consultation 2.
9. NSWLRC DP 43 at para 10.20 and following.
10. Attorney General (NSW) v Mayas (1988) 14 NSWLR 342 at 355 (McHugh JA, Hope JA concurring); John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 477 (McHugh JA, Glass JA concurring); D Butler and S Rodrick, Australian Media Law (LBC Information Services, Sydney, 1999) at136.
11. Attorney General (NSW) v Mayas (1988) 14 NSWLR 342 at 355.
12. NSWLRC DP 43 at para 10.27.
13. Nationwide News Pty Ltd v Bitter (1985) 38 SASR 390.
14. Nationwide News Pty Ltd v Bitter at 391.
15. Nationwide News Pty Ltd v Bitter at 393.
16. Nationwide News Pty Ltd v Bitter at 397.
17. He Kaw Teh v The Queen (1985) 157 CLR 523.
18. Sherras v De Rutzen [1895] 1 QB 918 at 921.
19. He Kaw Teh v The Queen (1985) 157 CLR 523 at 529.
20. He Kaw Teh v The Queen at 529.
21. He Kaw Teh v The Queen at 530.
22. R v Wampfler (1987) 11 NSWLR 541 at 546.
23. Strathfield Municipal Council v Elvy ( 1992) 25 NSWLR 745 at 749.
24. Nationwide News Pty Ltd v Bitter (1985) 38 SASR 390 at 391. In the quotation at para 10.6 above His Honour, nonetheless, refers to the desirability of putting the defendant under strict liability.
25. R v Wampfler at 547.
26. For example, “This would lead to an absurdly Draconian result if it meant that a person who unwittingly brought into Australia narcotics which had been planted in his baggage might be liable to life imprisonment notwithstanding that he was completely innocent of any connexion with the narcotics and that he was unaware that he was carrying anything illicit”: He Kaw Teh v The Queen at 529.
27. For example “[N]o good purpose would be served by punishing a person who had taken reasonable care and yet had unknowingly been an innocent agent to import narcotics.”: He Kaw Teh v The Queen at 530.
28. See para 10.28 to 10.42.
29. NSW Bar Association, Submission at 10.
30. For example, Independent Commission Against Corruption Act 1988 (NSW) s 112; Police Integrity Commission Act 1996 (NSW) s 52; Royal Commission (Police Service) Act 1994 (NSW) s 27.
31. For example, Casino Control Act 1992 (NSW) s 143B.
32. For example, Administrative Decisions Tribunal Act 1997 (NSW) s 75; Fair Trading Tribunal Act 1998 (NSW) s 30; Residential Tribunal Act 1998 (NSW) s 30.
33. For example, Community Protection Act 1994 (NSW) s 18; Crimes Act 1900 (NSW) s 562NC (proceedings relating to apprehended domestic violence orders); Law Enforcement (Controlled Operations) Act 1997 (NSW) s 28(2)(b); Law Enforcement and National Security (Assumed Identities) Act 1998 (NSW) s 14(2); Public Health Act 1991 (NSW) s 35(1), s 35 (2), s 35(5).
34. For example, Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 15; Special Commissions of Inquiry Act 1983 (NSW) s 8.
35. For example, Adoption of Children Act 1965 (NSW) s 53; Children and Young Persons (Care and Protection) Act 1998 (NSW) s 105; Children (Criminal Proceedings) Act 1987 (NSW) s 11; Crimes Act 1900 (NSW) s 562NB(1).
36. Coroners Act 1980 (NSW) s 44(3).
37. Guardianship Act 1987 (NSW) s 57.
38. Law Enforcement (Controlled Operations) Act 1997 (NSW) s 3, s 28.
39. Section 44.
40. Victims Support and Rehabilitation Act 1996 (NSW) Sch 2 cl 14.
41. See in particular NSWLRC DP 43 at para 10.81-10.93.
42. NSWLRC DP 43 at para 10.91.
43. NSWLRC DP 43 at para 10.92.
44. NSWLRC DP 43 at para 10.92.
45. Proposal 21.
46. Section 4(2) states: “In any proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.”
47. N Lowe and B Sufrin, The Law of Contempt (3rd ed, Butterworths, London, 1996) at 286.
48. A Arlidge and T Smith, Arlidge, Eady and Smith on Contempt (2nd edition, Sweet & Maxwell, London, 1999) at para 7-133.
49. Attorney General v News Group Newspapers Ltd [1987] QB 1 at 15 (CA).
50. Attorney General v English [1983] 1 AC 116 at 142 (HL).
51. C Walker, I Cram and D Brogarth, “The reporting of Crown Court proceedings and the Contempt of Court Act 1981” (1992) 55 Modern Law Review 647 at 648.
52. Re Central Independent Television Plc [1991] 1 WLR 4 (CA).
53. Re Central Independent Television Plc at 8-9.
54. By way of analogy, the High Court has held that a party applying for preliminary discovery under Pt 3 r 1(1) of the Supreme Court Rules 1970 (NSW) must show that “the order sought is necessary in the interests of justice; in other words, the making of the order is necessary to provide him with an effective remedy in respect of the actionable wrong of which he complains” (emphasis added): John Fairfax & Sons Pty Ltd v Cojuangco (1988) 165 CLR 346 at 357.
55. NSWLRC DP 43 at para 10.104.
56. NSWLRC DP 43 at para 10.105.
57. Australian Broadcasters, Submission at 8.
58. An issue raised in consultations was the lack of a central register through which the media might ascertain whether a suppression order has been made. See ch 15 regarding the practical implications of measures designed to improve such communication.
59. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 105(5) (s 105(1) creates a presumption against publication); Crimes Act 1900 (NSW) s 562NC(5) (s 562NC(1) gives the court discretion to issue a suppression order).
60. Attorney General (NSW) v Mayas (1988) 14 NSWLR 342 at 346.
