Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim

[2012] NSWCCA 125

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125

Hearing dates:

20 April 2012

Decision date:

13 June 2012

Before:

Bathurst CJ at 1;
Basten JA at 10;
Whealy JA at 106

Decision:

(1) Set aside orders 3, 4 and 5 made by Bennett DCJ in the District Court on 26 March 2012 and the further ancillary and consequential orders made on 28 March 2012.

(2) The Court notes that any continued or further publication of material having a tendency to interfere with the administration of justice in respect of the forthcoming trial of the second, third and fourth respondents may, despite the discharge of the orders referred to above, constitute a contempt of court.

Catchwords:

APPEAL - criminal - whether appeal from suppression order made by District Court in its criminal jurisdiction lies to the Court of Appeal or Court of Criminal Appeal - whether restriction on evidence that can be admitted - whether de novo appeal - Court Suppression and Non-publication Orders Act 2010 (NSW), s 14

CONSTITUTIONAL LAW - inconsistently of State and Commonwealth laws - validity of Court Suppression and Non-publication Orders Act 2010 (NSW) - interaction with Broadcasting Services Act 1992 (Cth) - whether laws are inconsistent

PROCEDURE - interlocutory issues - suppression orders - order made preventing publication of material throughout Australia, including on the internet - whether order is futile - whether order is "necessary" - Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7 and 8

PROCEDURE - power to make an order preventing public access to publicly available material - power to make orders requiring removal of material from web site - power of court to make orders preventing threatened interference with a trial - Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7 and 8

WORDS AND PHRASES - "necessary", Court Suppression and Non-publication Orders Act 2010 (NSW), s 8 - "review", Court Suppression and Non-publication Orders Act 2010 (NSW), s 14(6)

Legislation Cited:

Administrative Decisions Tribunal Act 1997 (NSW), Ch 5, Pt 3
Broadcasting Services Act 1992 (Cth), Sch 5, Pt 1, cll 3, 8, 9; Pt 9, cll 90, 91
Constitution, s 109
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 6, 7, 8, 13, 14, 16
Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 19
Criminal Appeal Act 1912 (NSW), ss 3, 5, 17
Supreme Court Act 1970 (NSW), s 69
Evidence Act 1995 (NSW, s 55
Federal Court of Australia Act 1976 (Cth), s 50
Jury Act 1977 (NSW), ss 68C, 72A
Racial Discrimination Act 1975 (Cth), ss 6A, 18C
Supreme Court Act 1986 (Vic), ss 18, 19
Trade Practices Act 1974 (Cth), s 75
Workplace Injury and Workers Compensation Act 1998 (NSW), ss 287A, 291, 328

Cases Cited:

Attorney General v Leveller Magazine Ltd [1979] AC 440
Attorney General v Random House Group Ltd [2009] EWHC 1727 (QB)
Attorney General (NSW) v Time Inc Magazine Company Pty Ltd [1994] NSWCA 134
.au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424; 207 ALR 521
Australian Broadcasting Commission v Parish (1980) 43 FLR 129
Batistatos v Roads & Traffic Authority of NSW [2006] HCA 27; 226 CLR 256
Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; 135 FCR 105
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194
Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187; 156 FCR 380
Digital News Media Pty Ltd v Mokbel [2010] VSCA 51
Dow Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575
Dwyer v Calco Timbers Pty Limited [2008] HCA 13; 234 CLR 124
General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49; 19 VR 68
Electronic Frontiers Australia Inc v Australian Broadcasting Authority [2002] AATA 449
Hinch v Attorney General (Vic) [1987] HCA 56; 164 CLR 15
Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651
Hogan v Hinch [2011] HCA 4; 243 CLR 506
John Fairfax Group Pty Ltd (Receivers and managers appointed) v Local Court of New South Wales (1991) 26 NSWLR 131
John Fairfax Publications Pty Ltd v District Court [2004] NSWCA 324; 61 NSWLR 344
John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465
McCulloch v Maryland 17 US 159 at 203 (1819)
Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW [2006] NSWCA 129; 153 IR 386
Owners of Ship 'Shin Kobe Maru' v Empire Shipping Co Inc [1994] HCA 54; 181 CLR 404
R v Credit Tribunal; Ex parte General Motors Acceptance Corporation [1977] HCA 34; 137 CLR 545
R v Debs [2011] NSWSC 1248
R v Kwok [2005] NSWCCA 245; 64 NSWLR 335
R v Perish [2011] NSWSC 1102
Rinehart v Welker [2011] NSWCA 403
Roadshow Films Pty Ltd v iiNet Ltd [2011] FCAFC 23; 194 FCR 285
Roadshow Films Pty Ltd v iiNetLtd [2012] HCA 16
Sunol v Collier (No 2) [2012] NSWCA 44
Thomas v Mowbray [2007] HCA 33; 233 CLR 307
Trumpet Software Pty Ltd v OzEmail Pty Ltd [1996] FCA 560; 34 IPR 481
University of Wollongong v Metwally [1984] HCA 74; 158 CLR 447
Wotton v State of Queensland [2012] HCA 2

Texts Cited:

Donna Buckingham, "Keeping Justice Blind Online: Suppression Regimes and Digital Publishing" (2011) 12 Otago L Rev 557 at 563

Forum: Internet Content Control (2000) 23 UNSWLJ; Niranjan Arasaratnam, "Brave New (Online) World" 205 at 210

New South Wales Law Reform Commission, Contempt by Publication - Report 100 (June 2003), [2.18], [2.63], [2.65], [2.78]

Category:

Principal judgment

Parties:

Fairfax Digital Australia and New Zealand Pty Ltd (First Applicant)
Fairfax Media Publications Pty Ltd (Second Applicant)
News Digital Media Pty Ltd (Third Applicant)
Nationwide News Pty Ltd (Fourth Applicant)
Australian Broadcasting Corporation (Fifth Applicant)
Yahoo7 Pty Ltd (Sixth Applicant)
Seven Network (Operations) Ltd (Seventh Applicant)
Ninemsn Pty Ltd (Eighth Applicant)
Fadi Ibrahim (First Respondent)
Michael Ibrahim (Second Respondent)
Rodney Atkinson (Third Respondent)
Regina (Fourth Respondent)
Attorney General of NSW (Intervenor)

Representation:

Counsel:

Mr T D Blackburn SC/D R Sibtain (Applicants)
Mr P Lange (First and Third Respondents)
Ms H Langley (Fourth Respondent)
M G Sexton SC SG/Ms A M Mitchelmore/ Ms J E Davidson (Intervenor)
Solicitors:

Johnson Winter & Slattery(Applicants)
Hanna Legal (First and Second Respondents)
Alexanders Lawyers (Third Respondent)
Director of Public Prosecutions (Fourth Respondent)
Crown Solicitor's Office (Intervenor)

File Number(s):

CCA 2012/123850

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-03-28 00:00:00

Before:

Bennett DCJ

File Number(s):

DC 2009/213105; DC 2009/213165; DC 2009/217972

HEADNOTE

[This headnote is not to be read as part of the judgment]

The second to fourth respondents are parties in criminal proceedings in the District Court. On 26 March 2012 Bennett DCJ made an order pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Suppression Orders Act) purporting to prevent the publication of material referring to any other criminal proceedings in which the respondents were parties or witnesses.

The applicants appealed to the Court of Appeal pursuant to s 14 of the Suppression Orders Act. An issue arose as to whether the Court of Appeal had jurisdiction to hear the appeal, and the Chief Justice constituted the same bench as a Court of Criminal Appeal under the Criminal Appeal Act 1912 (NSW), s 3.

The issues for determination on appeal were:

(i) whether an appeal pursuant to s 14 of the Suppression Orders Act lies to the Court of Appeal or the Court of Criminal Appeal,

(ii) what evidence could be admitted for the purposes of an appeal pursuant to s 14 of the Suppression Orders Act,

(iii) whether the order of Bennett DCJ was a valid exercise of the power provided by the Suppression Orders Act, and

(iv) whether, to the extent that the Suppression Orders Act permitted an order in the form made by Bennett DCJ, it was inconsistent with Broadcasting Services Act 1992 (Cth), Sch 5, and therefore inoperative, pursuant to s 109 of the Constitution (Cth).

A notice pursuant to the Judiciary Act 1903 (Cth), s 78B was filed and served. The Attorney General of New South Wales appeared.

The Court held, allowing the appeal:

In relation to (i)

(per Basten JA, Bathurst CJ and Whealy JA agreeing)

1. The impugned orders were interlocutory orders made in the District Court in the exercise of its criminal jurisdiction. Accordingly, an appeal pursuant to s 14(2) would lie to the Court of Criminal Appeal as the Court from which an appeal would lie against a final judgment of the District Court in its criminal jurisdiction: [17]

2. The word "review", appearing in the Suppression Orders Act, s 14(6), should be construed as referring to an alternative to a statutory appeal and not to the exercise by the Supreme Court of its supervisory jurisdiction: [20]

In relation to (ii)

(per Bathurst CJ, Whealy JA agreeing)

3. The nature of an appeal depends on the construction of the particular statutory provisions by which the right of appeal is conferred. The hearing on the appeal is a hearing de novo: [6]

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194; Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124 referred to.

(per Basten JA, Whealy JA agreeing)

4. The possibility that an appeal in relation to an interlocutory order involving suppression of publication of information, where the appeal may need to be dealt with as a matter of urgency, should automatically invoke a jurisdiction requiring this Court to deal with the matter de novo is unattractive. The situation may be different in other courts: [23]

(per Basten JA, Bathurst CJ and Whealy JA agreeing)

5. There is no suggestion that leave to appeal cannot be granted conditionally, or that the Court cannot, by conditioning the grant of leave, control its own procedure: [23]

In relation to (iii)

(per Basten JA, Bathurst CJ and Whealy JA agreeing)

6. The Suppression Orders Act permits an order prohibiting or restricting publication of information not merely tending to reveal the identity of a party or witness, but also information "otherwise concerning" any party or witness or person associated with a party or witness: [36]

7. It is desirable to distinguish between constraints on publication of material disclosed in court proceedings and publication of material having no connection with court proceedings except its capacity to affect current or future proceedings: [51]

John Fairfax Group Pty Ltd (Receivers and managers appointed) v Local Court of New South Wales (1991) 26 NSWLR 131; John Fairfax Publications Pty Ltd v District Court [2004] NSWCA 324; 61 NSWLR 344; R v Kwok [2005] NSWCCA 245; 64 NSWLR 335; Batistatos v Roads & Traffic Authority of NSW [2006] HCA 27; 226 CLR 256; Owners of Ship 'Shin Kobe Maru' v Empire Shipping Co Inc [1994] HCA 54; 181 CLR 404 referred to.

8. An order designed to protect the proper administration of justice, without impinging upon the principle of open justice, may well be considered necessary as long as it is reasonably appropriate and adapted to achieve its perceived purpose: [51]

Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651; Thomas v Mowbray [2007] HCA 33; 233 CLR 307 referred to.

(per Bathurst CJ, Whealy JA agreeing)

9. Although it is not sufficient that the orders are merely reasonable or sensible, the word "necessary" should not be given a narrow construction: [8]

R v Kwok [2005] NSWCCA 245; 64 NSWLR 335; John Fairfax Group Pty Ltd (Receivers and managers appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 applied.

(per Basten JA, Bathurst CJ and Whealy JA agreeing)

10. An order preventing public access to existing material, including a publication on a website, clearly falls within the scope of Suppression Orders Act, s 7: [61]

11. It would be a remarkable consequence of the language employed in Suppression Orders Act, s 7, if it conferred a power on a trial judge to make peremptory orders requiring private individuals or other entities unconnected with the administration of justice to take steps to remove material from potential access by a juror. It is not clear that s 7(a) expands the powers of a superior court under the general law to prevent sub judice contempt: [63]

12. A suppression order may be made in relation to material available on the internet. However, no offence is committed under Suppression Orders Act, s 16, unless the person has had the order brought to their attention: [66]-[70]

Digital News Media Pty Ltd v Mokbel [2010] VSCA 51 referred to; R v Perish [2011] NSWSC 1102; R v Debs [2011] NSWSC 1248 applied.

13. An order will fail the necessity test if it is futile. As a matter of construction, that which is ineffective cannot be described as "necessary": [76]-[78]

In relation to (iv)

(per Basten JA, Bathurst CJ and Whealy JA agreeing)

14. An "internet content host" may include any party in control of a web site to which material has been uploaded. Whether it is uploaded by an agent of the party controlling the web site, or even that party itself, the party remains a content host: [90]

Trumpet Software Pty Ltd v OzEmail Pty Ltd [1996] FCA 560; 34 IPR 481; .au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424; 207 ALR 521; Roadshow Films Pty Ltd v iiNet Ltd [2011] FCAFC 23; 194 FCR 285; Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16 referred to, Electronic Frontiers Australia Inc v Australian Broadcasting Authority [2002] AATA 449 applied.

15. Assuming that the court was satisfied that material did have the tendency to prejudice the fairness of a forthcoming trial, an order directed to an internet content host, relating to specified material of which it had been made aware, would not contravene the constitutional limits of the Suppression Orders Act. The statute could validly support such an order. The Suppression Orders Act could not, however, validly support an order addressed to the world at large, which might well cover material on internet sites of which the hosts were unaware: [94]-[95]

Judgment

1. BATHURST CJ: I agree with the orders proposed by Basten JA and subject to what I have written below, his Honour's reasons.

The nature of the appeal

1. In considering this issue it is necessary to have regard to each of s 13 and s 14 of the Court Suppression and Non-publication Orders Act 2010 (NSW) ("the Suppression Orders Act") and the definition of "court" contained in that Act.

1. Section 3 defines "court" as follows:

"(a) the Supreme Court, Land and Environment Court, Industrial Court, District Court, Local Court or Children's Court, or

(b) any other court or tribunal, or a person or body having power to act judicially, prescribed by the regulations as a court for the purposes of this Act."

While s 13 is in the following terms:

"13 Review of orders

(1) The court that made a suppression order or non-publication order may review the order on the court's own initiative or on the application of a person who is entitled to apply for the review.

(2) Each of the following persons is entitled to apply for and to appear and be heard by the court on the review of an order under this section:

(a) the applicant for the order,

(b) a party to the proceedings in connection with which the order was made,

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

(d) a news media organisation,

(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 have been made or should continue to operate.

(3) On a review, the court may confirm, vary or revoke the order and may in addition make any other order that the court may make under this Act."

1. Section 14 is set out in the judgment of Basten JA (at par [16]).

1. In my opinion, s 13 and s 14 operate harmoniously. Section 13 is confined to a review by the original court which granted the order. Section 14 deals with an appeal by leave, either in respect of the order of the original court or the order of that court on a review. Section 14(6) is not dealing with a review made by the original court under s 13, but rather with a situation where there is no appeal from the court in question (other than in the supervisory jurisdiction of this Court or the appeal to this Court provided for in s 14(2)), but there is a statutory right of review to another court or tribunal. The subsection makes clear that whatever procedure is adopted the evidentiary provision in relation to new or substituted evidence will apply.

1. The nature of an appeal depends on the construction of the particular statutory provisions by which the right of appeal is conferred: Coal andAllied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [11]; Dwyer v Calco Timbers Pty Limited [2008] HCA 13; (2008) 234 CLR 124 at [2]. In the present case the wide powers to admit not only additional evidence but also substituted evidence, coupled with the fact that, subject to leave, a review under s 13 and an appeal under s 14 appear to be alternatives, lead me to the conclusion that the hearing on the appeal is a hearing de-novo.

1. As Basten JA has pointed out, as a practical matter, problems which could arise as a result of this construction can be controlled by the imposition of conditions on leave to appeal. Although the question of leave will depend upon each particular case, it is likely that in cases involving a reconsideration of an order on fresh or different evidence leave will commonly be refused and the applicant left to exercise his or her right of review.

The meaning of "necessary"

1. In par [46] of his judgment, Basten JA has expressed the view that the meaning of "necessary" depends on the context in which it is used. I agree that what is necessary in any given case will depend on that context. It will depend on the particular grounds in s 8 of the Suppression Orders Act relied upon and the factual circumstances said to give rise to the order. I agree that the variables that Basten JA refers to in par [46] are all relevant to what will be necessary in a particular context. Although it is not sufficient, in my opinion, that the orders are merely reasonable or sensible, I agree that the word "necessary" should not be given a narrow construction. What was said by Hodgson JA in R v Kwok [2005] NSWCCA 245; (2005) 64 NSWLR 335 at [13] adopting the remarks of Mahoney JA in John Fairfax Group Pty Ltd (Receivers & Managers Appointed) v Local Court (NSW) (1991) 26 NSWLR 131 are equally applicable to the legislation in question.

"However, the requirement of necessity is not to be given an unduly narrow construction. I respectfully adopt what was said by Mahoney JA in John Fairfax Group Pty Ltd (Receivers & Managers Appointed v. Local Court (NSW) (at 161B):

This leads to the consideration of what is meant by 'necessary to secure the proper administration of justice' in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be - or at least will be assumed to be - that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or of an analogous kind on which the principle stated by McHugh JA is based."

1. It follows that I agree with what Basten JA has said in par [48] of his judgment. I also agree that the requirement imposed by s 6 of the Suppression Orders Act, namely that in making an order the Court is required to take into account that a primary objective of the administration of justice is safeguarding the public interests in open justice, should not impede the Court from making an order when it is of the opinion that one of the grounds in s 8 is made out and that its importance will vary depending on the extent that any such order would interfere with that principle.

1. BASTEN JA: The applicants are eight media companies operating in Australia, six of which operate web sites. The respondents, other than the District Court, are parties in criminal proceedings presently before that Court. On 12 August 2011, the Chief Judge of the District Court (Blanch J) made a non-publication order in respect of details of a related police investigation and the prosecution of the accused for conspiracy to murder and in relation to certain earlier proceedings. On 1 September 2011 Solomon DCJ made further orders, to similar effect.

Orders under appeal

1. On 26 March 2012, Bennett DCJ made the following five orders:

"1. The Orders made by his Honour Judge Solomon on 1 September 2011 are set aside.

2. The Orders made by his Honour Justice Blanch on 12 August 2011 are set aside.

3. Until further order, within the Commonwealth of Australia, there is to be no disclosure, dissemination, or provision of access, to the public or a section of the public, by any means, including by publication in a book, newspaper, magazine or other written publication, or broadcast by radio or television, or public exhibition, or broadcast or publication by means of the Internet of any:

(a) Material containing any reference to any other criminal proceedings in which the accused Rodney Atkinson, Fadi Ibrahim, or Michael Ibrahim are or were parties or witnesses; or

(b) Material containing any reference to any other alleged unlawful conduct in which the accused Rodney Atkinson, Fadi Ibrahim, or Michael Ibrahim are or were suspected to be complicit or of which they are or were suspected to have knowledge.

4. Orders are stayed until 4.00pm on Tuesday 27/3/2012.

5. Orders are to be sent to the Public Information Office at the Supreme Court of New South Wales for dissemination."

1. The purpose of the emphasis was unclear; it appears in the original copy of the orders signed by the judge. The intent of the first two orders is clear, although the language is inapt: the earlier orders were revoked or discharged.

1. On 28 March 2012 Bennett DCJ made further orders, relevantly in the following terms:

"1. I decline the application to set aside Order 3 of the orders made on 26/3/2012. They shall stand.

2. I order that Order 3 made on 26 March 2012 be stayed in its application to the news media organisations the subject of the two affidavits sworn by Phillip Beattie on 27 March 2012, namely, News Digital Media Pty Ltd, Nationwide News Pty Ltd, and Fairfax Media Publications Pty Ltd., and the news media organisations associated with those companies as represented in those affidavits, until 4pm on Tuesday 3/4/2012. I will entertain an application at that time for further extension of the stay, should it be required.

3. Transcript of the proceedings to date, my ex tempore judgment of 26/3/2012, and of these remarks to be made available to the legal representatives for the media interests. The material should not be further disseminated for any purpose.

4. The Public Information office to bring these orders and the orders made on 26/3/2012 to the notice of internet servers Google Incorporated by facsimile ..., Google Australia Pty Ltd ... and Bing."

1. On 2 April 2012 the stay in relation to the applicants was extended by Whealy JA, upon the first four applicants undertaking to remove certain identified material from web sites controlled by them. Since 28 March there has been no stay in place except, ironically, in relation to the applicants, who have complied with the orders.

Jurisdiction of Court

1. The applicants originally commenced proceedings in the Court of Appeal, purportedly invoking the appellate jurisdiction of that Court under s 14 of the Court Suppression and Non-publication Orders Act 2010 (NSW) ("the Suppression Orders Act"). Against the possibility that that Court had no jurisdiction to hear an appeal, the Chief Justice constituted the same bench as a Court of Criminal Appeal under s 3 of the Criminal Appeal Act 1912 (NSW). At the hearing, senior counsel for the applicants accepted that this was the appropriate Court to exercise appellate jurisdiction and undertook to file the relevant papers to formalise the commencement of the proceedings in this Court. The concession was correctly, if belatedly, made.

1. The availability of an appeal depends on the proper construction of s 14 of the Suppression Orders Act, the relevant parts of which read as follows:

"14 Appeals

(1) With leave of the appellate court, an appeal lies against:

(a) a decision of a court (the original court) to make or not to make a suppression order or non-publication order, or

(b) a decision by the original court on the review of, or a decision by the original court not to review, a suppression order or non-publication order made by the court.

(2) The appellate court for an appeal under this section is the court to which appeals lie against final judgments or orders of the original court or, if there is no such court, the Supreme Court.

...

(5) An appeal under this section is to be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(6) If judgments or orders of the original court are subject to review by another court (rather than appeal to another court), this section provides for a review of the original court's decisions instead of an appeal and in such a case references in this section to an appeal are to be read as references to a review."

1. The principal proceeding in the District Court involved prosecution of the second, third and fourth respondents on indictment. The impugned orders were interlocutory orders made in the District Court in the exercise of its criminal jurisdiction. Accordingly, if an appeal lies pursuant to s 14(2), it would lie to this Court as the Court from which an appeal would lie against a final judgment of the District Court in its criminal jurisdiction: Criminal Appeal Act, s 5.

1. The existence of a right to appeal (with leave) turns on the meaning and purpose of the words in parentheses in s 14(6). On one view, they are merely explanatory of the distinction between a jurisdiction to review and a jurisdiction to hear an appeal. However, as all courts other than the Supreme Court itself will be subject to the supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW), there is no need for the Suppression Orders Act to provide for a right of review and it seems unlikely that it so intended. An alternative reading is that the words in parentheses limit the circumstances in which sub-s (6) applies, namely to the case where there is no appeal, but only a right of review. However, as sub-s (2) expressly provides for an "appellate court" where there is no right of appeal, that reading is also implausible.

1. There is a third possibility, namely that s 14(6) envisages a situation where there is a statutory right of "review" rather than an "appeal". That does not appear to be the case in respect of the specific courts identified in the definition of "court" in s 3 of the Suppression Orders Act. However, in addition to the specified courts, the definition envisages prescription of other courts, tribunals or bodies as falling within the definition and hence the scope of the Act. The term "review" is commonly used with respect to a right to reconsider the merits of an administrative decision: see, eg, Administrative Decisions Tribunal Act 1997 (NSW), Chapter 5, Part 3. Similar language is to be found in the Workplace Injury and Workers Compensation Act 1998 (NSW) ("the Workplace Injury Act") at, for example, ss 287A and 291. As examples of a possible operation of s 14(6) these provisions are not entirely plausible, as it seems unlikely that the Suppression Orders Act was expected to apply to administrative decisions of the kind referred to, rather than decisions by tribunals which might be expected to conduct proceedings in public, pursuant to principles of open justice. One possible category which might fall into the latter class is an appeal against a medical assessment under the Workplace Injury Act. The procedure is described as an "appeal", but the appeal is described as being "by way of review" of the original medical assessment: s 328(2).

1. Although these examples appear remote, they could provide an explanation for s 14(6) which does not render it otiose or inconsistent with other provisions. Accordingly, it is appropriate to construe the word "review" as referring to an alternative to a statutory appeal and not to the exercise by the Supreme Court of its supervisory jurisdiction.

Nature of appeal

1. Accepting that there is a right of appeal, with leave, to this Court, the next question concerns the nature of the proceedings in this Court. Section 14(5) appears to envisage a rehearing involving not merely a right to call fresh evidence, but evidence which is not "fresh" in the conventional sense of not being available at the time of the original hearing, but also other evidence "in addition to, or in substitution for" the evidence given when the decision was made. Where an appeal is brought from a magistrate to the District Court, it is said to be "by way of rehearing on the basis of evidence given in the original Local Court proceedings": Crimes (Appeal and Review) Act 2001 (NSW), s 18(1). There is power for the District Court, not only to permit fresh evidence to be given by leave (s 18(2)), but also to rehear the original evidence in the circumstances identified in s 19. By contrast, s 14(5) imposes no such restrictions on the circumstances in which additional evidence or evidence in substitution for that given below is to be permitted.

1. There is a potential inconsistency between the description of an appeal as being "by way of rehearing" and provisions which permit evidence to be taken again. As explained by Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194:

"[13] If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.

[14] Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance."

1. These observations provide a helpful summary of functional distinctions between different kinds of appeal; the use of many qualifiers in the descriptions indicates that no strict categorisation of appellate procedure and powers was intended. It is also possible that a provision of a statute may operate differentially with respect to different courts or tribunals. The possibility that an appeal in relation to an interlocutory order involving suppression of publication of information, where the appeal may need to be dealt with as a matter of urgency, should automatically invoke a jurisdiction requiring this Court to deal with the matter de novo is unattractive. The situation may be different in other courts.

1. The answer to the very real practical issues is to be found in the control which the Court can in all cases exercise, the appeal being permitted only by leave of the appellate court: s 14(1). There is no suggestion that leave cannot be granted conditionally, or that the Court cannot, by conditioning the grant of leave, control its own procedure.

1. In the course of the hearing, the applicants sought to tender evidence which had not been called in the District Court, from an expert in a subject described as "computer forensics". The expert, Mr Nick Klein, prepared a report which included information as to how the internet operated, how material was uploaded on web servers, how material could be published and republished on the internet and how the major search engines operated. The purpose of the evidence was to suggest that a suppression order of the kind made by the trial judge would be ineffective to prevent individuals searching the internet obtaining ready access to the material sought to be suppressed.

1. There was some brief cross-examination of Mr Klein by counsel for the accused (third and fourth respondents), which was primarily designed to extract a concession that because particular web pages had been "cached" they would not necessarily remain available to a searcher when the original web page had been removed.

1. This evidence was tendered and accepted, subject to ultimate consideration of its relevance. In the circumstances explained below, the evidence has limited practical significance, but it was relevant in the sense envisaged by s 55 of the Evidence Act 1995 (NSW) as it provided some assistance to the Court in understanding the operation of the web. Although practical considerations might limit the extent to which such additional information can be admitted by this Court in the exercise of its statutory jurisdiction, it falls within the terms of s 14(5) and, the report having been tendered and cross-examination completed, it should be accepted.

Issues raised on appeal

1. To the extent that the applicants were entitled to review the merit of the decision made by the primary judge, they raised the following issues:

(a) there was an absence of "necessity" as that concept is used in s 8(1) of the Suppression Orders Act;

(b) the order was made on the assumption that juries will not adhere to their oaths, whereas the courts routinely operate on the contrary assumption;

(c) if a juror were to disobey a direction not to view material on the internet, the order would be ineffective to prevent access to information concerning the accused;

(d) the order was excessively wide and uncertain in its operation, and

(e) the order imposed an undue constraint on free speech.

1. There was some ambivalence on the part of the applicants as to the inter-relationship of the first and last grounds identified above. The reference to free speech was not based on the possible operation of the implied freedom of political discourse, as authoritatively restated by the High Court in Wotton v State of Queensland [2012] HCA 2 and recently discussed in Sunol v Collier (No 2) [2012] NSWCA 44. It appears, rather, to have invoked the common law freedom of speech and expression, which it was submitted was not to be treated as a residual liberty of the individual, but rather as a fundamental human right or freedom. So understood, it founded a principle of statutory interpretation that Parliament would not entrench upon the freedom except to the extent that such an intention was expressed or was clearly to be implied. Reliance was placed upon the statements of French J (in the Federal Court) to that effect in Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; 135 FCR 105 at [72]. Bropho, however, involved the proscription of racial vilification contained in s 18C of the Racial Discrimination Act 1975 (Cth). That provision clearly trenches upon freedom of speech; the issue in Bropho was as to the extent of the constraints imposed.

1. It will be convenient to return to arguments based on the assessment of what was "necessary" in the circumstances after addressing the scope of the relevant provisions of the Suppression Orders Act.

1. The second broad principle relied on by the applicants was that, to the extent that the Suppression Orders Act permitted an order in this form, it was inconsistent with Schedule 5 of the Broadcasting Services Act 1992 (Cth) and therefore inoperative, pursuant to s 109 of the Constitution. For the purpose of assessing this proposition, the terms of the order are irrelevant, except as an example (if they be such) of the kind of order which can be made under the Suppression Orders Act: Sunol (No 2) at [81]. Nevertheless, if the order is otherwise invalid, the Court might properly not reach the question of constitutional validity: Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW [2006] NSWCA 129; 153 IR 386 at [40]. However, because it might be relatively easy to recast the order into a different form, it is appropriate in this case to deal with the constitutional issue. The first step in this process is also to consider the proper construction of the State statute: Sunol (No 2) at [25] (Bathurst CJ), [56] (Allsop P) and [75]-[78] (in my judgment).

Scope of permitted orders

(a) the relevant provisions

1. The operative provision of the Suppression Orders Act is s 7, which provides:

"7 Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, 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 proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b) information that comprises evidence, or information about evidence, given in proceedings before the court."

1. Section 7 has the potential to deal with two quite separate categories of information. One is information the publication of which could give rise to a charge of contempt of court under the sub judice principle, that is publication of material that has a tendency to influence the conduct or outcome of particular legal proceedings. The second category is that which is revealed in the course of proceedings, non-publication of which may be necessary for one of a number of reasons, but the consequence of which will be a degree of interference with the principle that proceedings should be conducted in open court.

1. It is with respect to the second category of information that the statement in s 6 of the Suppression Orders Act is apposite:

"6 Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice."

1. It is the operation of that objective which has been foremost in the discussion of non-publication orders in respect of on-going litigation, a matter which will be discussed below. Taken by itself, s 6 might suggest that the powers conferred by s 7 were not intended to apply to potentially contemptuous publication in advance of a trial. However, that conclusion would be inconsistent with the expansive statement of grounds for making an order contained in s 8:

"8 Grounds for making an order

(1) A court 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 criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

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

1. The primary purpose of all the grounds set out in s 8(1) except the first is to permit a court to protect witnesses and parties in proceedings before it from disclosure of information about them to the general public. Only paragraph (a) appears to extend to the protection of the jury from inflammatory or irrelevant material while the proceedings are on foot (the 'sub judice principle'). The fact that an order may be sought on the ground identified in s 8(1)(a), namely that it is necessary to prevent prejudice to the proper administration of justice, taken with the breadth of the language of s 7(a), permits an order prohibiting or restricting publication of information not merely tending to reveal the identity of a party or witness, but also information "otherwise concerning" any party or witness or person associated with a party or witness.

1. Some support for that conclusion may be derived from the report of the New South Wales Law Reform Commission, Contempt by Publication - Report 100 (June 2003) which considered in some detail the law relating to sub judice contempt. A draft bill in Appendix A to the Report, entitled "Contempt of Court by Publication Bill 2003", contained cl 17, which proposed to confer, at least on the Supreme Court, power to make an order "to restrain a contempt of court by publication of matter (whether within or outside the State) that has a tendency to prejudice the fairness of another proceeding in a court of the State". (It will be necessary to return below to the test identified in s 8(1)(a) namely "necessary to prevent prejudice", as compared with the language of the draft bill which covered material having "a tendency to prejudice" a fair trial.) Reference to "another proceeding" arguably referred to non-disclosure of information revealed in the course of one trial which might interfere with a later trial: see, for an example, John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344, discussed below. However, it was not expressly or necessarily confined to that situation.

1. The terms "suppression order" and "non-publication order" are defined in s 3 of the Suppression Orders Act, but in terms which do little to clarify their operation. The definitions are:

"3 Definitions

In this Act:

...

non-publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).

...

suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise)."

(b) nature of 'publication'

1. The definitions imply that there is a distinction to be drawn between publication and other forms of disclosure of information. However, the term "publication" as a derivative of the verb "publish" is indirectly defined by reference to the verb:

"publish means disseminate or provide access to the public or a section of the public by any means, including by:

(a) publication in a book, newspaper, magazine or other written publication, or

(b) broadcast by radio or television, or

(c) public exhibition, or

(d) broadcast or publication by means of the Internet."

1. The identification of the scope of this legislative scheme is of some importance for the present case. On one view, the phrase "disclosure of information" was intended to have a wider meaning than "publication of information". However, the breadth of the definition of "publish" including by providing access to the public or a section thereof, and including within that reference "publication by means of the Internet", tends to diminish the significance of any attempt to distinguish between the respective concepts.

1. The High Court has discussed the concept of publication in the context of defamation: Dow Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575. Gleeson CJ, McHugh, Gummow and Hayne JJ stated at [26]:

"Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act - in which the publisher makes it available and a third party has it available for his or her comprehension."

1. In making that observation, their Honours were concerned with a publication which had been posted on the web site WSJ.com, controlled by the appellant. The judgment stated at [16]:

"The originator of a document wishing to make it available on the World Wide Web arranges for it to be placed in a storage area managed by a web server. This process is conventionally referred to as 'uploading'. A person wishing to have access to that document must issue a request to the relevant server nominating the location of the web page identified by its 'uniform resource locator (URL)'. When the server delivers the document in response to the request the process is conventionally referred to as 'downloading'."

1. A similar understanding of publication should be adopted in respect of the Suppression Orders Act. Information is published by uploading it in a particular form to a particular site or web page identified by a URL. By that means, the publisher provides access to the information to the public. It follows that publication is a continuing act in the case of a web site: access is provided to the public for so long as the material is available on the web.

1. There may be various means of prohibiting or restricting access to such material. A person controlling a server may be able to restrict access to those who have registered with the operator of the server, and possibly paid a fee for access. In other circumstances (such as Facebook) the person who uploads material may be able to control access to his or her material. However, it appears to have been assumed in the present case that the only practical means of preventing access to material on web sites controlled by the applicants was to remove the material. That was readily done and, in fulfilment of an undertaking given to the Court prior to the hearing of the appeal, had been done in respect of material understood to be caught by the terms of the order made by the judge.

(c) meaning of "necessary"

1. The word "necessary" can have shades of meaning; it is not of "a fixed character, peculiar to itself" but rather "admits of all degrees of comparison", in the language of the United States Supreme Court in McCulloch v Maryland 17 US (4 Wheat) 316 at 414 (1819) cited by Gummow and Crennan JJ in Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at [101]. The Court in McCulloch, in the same passage, noted at 413:

"If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another."

1. The meaning of "necessary" depends on the context in which it is used. In s 8(1), it is used in relation to an order of the court, or, in practical terms, a proposed order, because it identifies a standard as to which the court must be satisfied before making an order. In each paragraph of that provision, the word "necessary" is used to describe the connection between the proposed order and an identified purpose. It may not take the same place on the variable scale of meaning in each case. In paragraph (a), the purpose of the order will be "to prevent prejudice to the proper administration of justice". That language will, in its turn, have a colour which will depend upon the circumstances. The prejudice may be a possibility or a certainty; its effect, if it eventuates, may be minor or it may cause a trial to miscarry. Similarly, prevention will involve matters of degree: the proposed order may diminish a risk of prejudice or it may obviate the risk entirely. All of these variables may affect what is considered "necessary" in particular circumstances.

1. The language of s 8(1)(a) is also to be found in s 50 of the Federal Court of Australia Act 1976 (Cth). Although that legislation was not qualified by a provision expressly identifying the importance of the public interest in open justice (as found in s 6 of the Suppression Orders Act) a similar approach has been adopted in the Federal Court: Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 133-134 (Bowen CJ) and 155-156 (Deane J). Bowen CJ identified the public interest in the administration of justice as "the public interest that the court should endeavour to achieve effectively the object for which it was appointed: to do justice between the parties": at 133. That might be thought to be too limited a description of the concept. However, his Honour accepted a broader view at 134, in relation to the protection of confidential information:

"It is in the interests of the administration of justice that the very proceedings before the Court should not be permitted to destroy or seriously depreciate the value of such confidential information. If it were otherwise, not only might the parties and members of the public consider the Court was not paying proper regard to confidentiality but also it might open the way to abuse."

1. The broader concept of the administration of justice, including consequences not just for the present case but for future cases, including the supply of information from victims of unlawful conduct and the willingness of witnesses to give evidence, accords with the approach taken in this Court: see John Fairfax Group Pty Ltd (Receivers and managers appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 at 161 D-E (Mahoney JA, Hope AJA agreeing), approved in John Fairfax Publications Pty Ltd v District Court at [47] (Spigelman CJ, Handley JA and MW Campbell AJA agreeing) and in R v Kwok [2005] NSWCCA 245; 64 NSWLR 335 at [13] (Hodgson JA), [34] (Howie J) and [38]-[40] (Rothman J); see also Batistatos v Roads & Traffic Authority of NSW [2006] HCA 27; 226 CLR 256 at [12]. Each of these cases was dealing with the implied power of courts, operating prior to the commencement of the Suppression Orders Act, and each involved orders which impinged on the operation of the open justice principle. Accepting that broad view, at least in some circumstances, the factors referred to in paragraphs (c) and (d) of s 8(1) may overlap with (a), because orders falling within those paragraphs might also be necessary to prevent prejudice to the proper administration of justice.

1. This Court recently accepted that the "principle of legality" favours a construction of s 8 which has "the least adverse impact upon the open justice principle and common law freedom of speech": Rinehart v Welker [2011] NSWCA 403 at [26] (Bathurst CJ and McColl JA). However, that approach may have a more limited application in circumstances where the proposed order does not impact upon the open justice principle because it does not prevent or restrict publication of court proceedings. The "common law freedom of speech" is not to be disregarded, but it provides a lesser obstacle to an order designed to prevent prejudice to the proper administration of justice.

1. There is another relevant principle to be considered. Section 7 does not directly constrain free speech: rather, it confers upon a court a power to make orders which may have that effect. That characterisation engages the principle that a statutory conferral of power, at least with respect to a superior court, should not be read down by reference to implied limitations: Owners of Ship 'Shin Kobe Maru' v Empire Shipping Co Inc [1994] HCA 54; 181 CLR 404 at 420-421.

1. It is therefore desirable to distinguish between two kinds of constraint referred to above, namely constraints on publication of material disclosed in court proceedings and publication of material having no connection with court proceedings except its capacity to affect current or future proceedings. Because the orders in the present case do not fall within the first category they do not involve any constraint upon the principle of open justice; they do not impinge in any way on the rights of the applicants to publish what may happen at the trial. Rather they are limited to the pre-trial (and on-going) publication of material having a tendency to interfere with the fairness of the anticipated trial. An order designed to protect the proper administration of justice, without impinging upon the principle of open justice, may well be considered necessary so long as it is reasonably appropriate and adapted to achieve its perceived purpose: compare Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [31] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) and Thomas at [102] (Gummow and Crennan JJ). On this approach, the reasoning of McHugh JA in John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476-477, referred to by French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [21] and by this Court in Reinhart at [29], is not determinative in the present case.

(d) Scope of power to prevent interference

1. Accepting that s 7 extends to allow a court (not limited to the Supreme Court) to make orders preventing threatened interference with a trial, the next inquiry is whether it extends the scope of such powers as exist in superior courts under the general law. It is therefore necessary to consider the scope of the sub judice rule.

1. The general law is concerned with the effects of pre-trial publicity. That focuses not on the legality or otherwise of the conduct of the publisher, but on whether the accused will be able to obtain a fair trial. Its most frequent application is to be found in proceedings for contempt of court, brought after publication. However, there are a small number of cases in which pre-publication restraints have been sought under the general law, often as an adjunct to contempt proceedings in relation to material already published: see Attorney General (NSW) v Time Inc Magazine Company Pty Ltd [1994] NSWCA 134 (Kirby P, Handley and Sheller JJA). In Attorney General v Random House Group Ltd [2009] EWHC 1727 (QB), Tugendhat J considered an application for a prohibition on the further sale of a book already published. He considered the stakes involved in a pending terrorism retrial were so high that the injunction ought be granted.

1. Most pre-trial non-publication orders have related to the publication of evidence or other material disclosed in the course of a trial. Thus, in John Fairfax Publications Pty Ltd v District Court (at [37] above), the Court was concerned with a non-publication order made by Norrish DCJ in relation to verdicts of guilty in one trial, when there were further trials to be heard. The principal issue was whether the District Court judge, absent a statutory conferral, had power to make such an order. (This is no longer an issue since the commencement of the Suppression Orders Act.) Spigelman CJ (Handley JA and MW Campbell AJA agreeing) referred more generally to the undesirability of such orders:

"[59] It is conceivable that media publicity may create a situation in which an accused will not be able to have a fair trial within a reasonable period or at all. In that circumstance an anticipatory non-publication order may be needed to ensure fairness to the prosecution. However, that exceptional case is so unlikely that it cannot form the basis for an implication of a power on a test of necessity. Applications for a permanent stay have failed in the most sensational of cases ....

[60] If the truly exceptional case ever arises it can be handled by the exercise of the protective inherent jurisdiction of the Supreme Court. In any event, I find it quite inconceivable that such a case could emerge from the publication of a verdict after anything like normal publicity of the course of a trial.

...

[64] I have not overlooked the fact that the ability of a stay or adjournment to ensure a fair trial has been substantially attenuated by the immediate accessibility of information on the internet with an efficiency that overrides the practical obscurity of the past. This accessibility poses significant challenges for the administration of criminal justice. ...

[65] ... In Burrell [[2004] NSWCCA 185] at [39] I indicated that it may be desirable for the Crown to conduct searches in advance of a trial and, where necessary, request Australian-based websites to remove references to an accused for the period of a trial. In New South Wales the standard directions to a jury warn the jury not to access internet databases. In some cases it may be necessary to return to the past practice of sequestering the jury. In some cases a judge-alone trial may be appropriate."

1. Non-publication orders in relation to interlocutory appeals and appeals in respect of convictions where other trials are anticipated on further charges are by no means uncommon. (Whether they are always necessary is not a question which needs to be addressed: they are made in appeals because judgments and rulings in trials, other than in the Supreme Court, are not routinely published on a web site.) In any event, there is a distinction to be drawn between non-publication of material revealed in the course of one proceeding, but potentially capable of interfering with another, and non-publication of material not derived from a legal proceeding, but capable of interfering with one. As explained by Mason CJ in Hinch v Attorney General (Vic) [1987] HCA 56; 164 CLR 15 at 26:

"Reports of court proceedings are not a true example of the public interest in the administration of justice yielding to the public interest in freedom of discussion. Rather it is a case where on balance the wider interests of the administration of justice are thought, as the law currently stands, to be better served by allowing publicity."

1. In General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49; 19 VR 68, the Victorian Court of Appeal (Warren CJ, Vincent and Kellam JJA) considered an appeal against a direction that the appellant not publish certain episodes of a series entitled Underbelly, which was scheduled to run during the trial of one of the persons depicted in the series. The trial judge, King J, had made two orders in the following terms:

"1. The transmission, publication, broadcasting or exhibiting of the production referred to as 'Underbelly' be prohibited in the State of Victoria until after the completion of the trial and verdict in the matter of R v [A].

2. Direct that the television series referred to as "Underbelly" not be published on the internet in Victoria and the "Family Tree site - inside the Underbelly, which looks at the evolving relationships between the key characters" be prohibited until after the trial and verdict in the matter of [A]."

1. The Court focused on the breadth of the orders and the fact that they sought to bind every person in Victoria: at [65]. The Court concluded that it "was not necessary" for the first order to be in such wide terms and that an order against the applicant not to publish the program in Victoria until after the completion of the trial was all that was required: at [65] and [67]. Their Honours continued at [68]:

"However, the fact that the above order is directed against the applicant only should not be misunderstood. It should not be treated by persons other than the named applicant as giving them carte blanche to publish any part of Underbelly howsoever the same may have been obtained by them. Obviously, any person with knowledge of the order who saw fit to publish Underbelly in Victoria prior to the verdict in the matter of R v [A] would run a grave risk of being found to have committed a contempt of court."

1. The Court also restricted the operation of order 2 to the applicant and related corporate entities. The Court noted at [70]:

"We recognise that there is a considerable amount of material upon the internet which may be seen to relate whether accurately, or otherwise, to the matters which will be the subject of the trial. Indeed it was acknowledged by counsel for the applicant that Channel 9 appreciated that once the program was broadcast nationally on 13 February 2008 there is a high likelihood that it would be downloaded from the internet and available world wide to those who could access it. ... Obviously the immediate accessibility of such information will require clear directions from the trial judge to the jury. As has been observed in other cases, this accessibility poses substantial challenges for the administration of justice."

1. The power of a court to make orders binding the world at large was first discussed in cases concerned with the publication of information revealed in the course of a hearing. Those cases involved restraints on the operation of the open justice principle. In Attorney General v Leveller Magazine Ltd [1979] AC 440, Lord Diplock stated at 451-452:

"It may be that a 'ruling' by the court as to the conduct of proceedings can have binding effect as such within the courtroom only, so that breach of it is not ipso facto a contempt of court unless it is committed there. Nevertheless where (1) the reason for a ruling which involves departing in some measure from the general principle of open justice within the courtroom is that the departure is necessary in the interests of the due administration of justice and (2) it would be apparent to anyone who is aware of the ruling that the result which the ruling is designed to achieve would be frustrated by a particular kind of act done outside the courtroom, the doing of such an act with knowledge of the ruling and of its purpose may constitute a contempt of court, not because it is a breach of the ruling but because it interferes with the due administration of justice."

1. This approach was accepted by the Court of Appeal in John Fairfax & Sons Ltd v Police Tribunal of NSW at 477 and 479 (McHugh JA, Glass JA agreeing). McHugh JA stated at 477C:

"An order made in court is no doubt binding on the parties, the witnesses and other persons in the courtroom. But an order purporting to operate as a common rule and to bind people generally is an exercise of legislative - not judicial - power. Nevertheless, conduct outside the courtroom which deliberately frustrates the effect of an order made to enable a court to act effectively within its jurisdiction may constitute a contempt of court. But the conduct will be a contempt because the person involved has intentionally interfered with the proper administration of justice and not because he was bound by the order itself."

1. One question is whether the general law permits an order which prohibits public access to existing material. In principle there is no reason to think it does not. In the unlikely event that a library holding of a past issue of a newspaper, book or magazine (perhaps containing a prejudicial story about the accused) were thought to be a threat to a fair trial, a superior court would have jurisdiction to order that there be no public access to that material until the conclusion of a trial. An order preventing access to a publication on a web site is no different in kind and would clearly fall within the scope of s 7. The circumstances of engagement of the power, contained in s 8(1)(a), also reflect the language of the general law principle.

1. The obligation of a juror, encapsulated in the oath or affirmation, is to "give a true verdict according to the evidence": Jury Act 1977 (NSW), s 72A. It is an offence for a juror to "make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror": s 68C(1). The words "making an inquiry" include conducting any electronic search of a database for information: s 68C(5)(b). That language extends to "causing someone else to make an inquiry": s 68C(5)(e). The standard direction given to juries at the beginning of a trial covers that negative obligation.

1. These provisions demonstrate the impropriety of a juror obtaining information outside the course of the trial, which might potentially affect his or her view of matters in issue during the trial. However, it does not follow that the trial judge, in exercising powers with respect to the conduct of the trial, can make peremptory orders requiring private individuals or other entities unconnected with the administration of justice to take steps to remove material from potential access by a juror. If s 7 has conferred such a power, it would be a remarkable consequence of the language employed. There is no suggestion in the New South Wales Law Reform Commission Report, Contempt by Publication, that any such power previously existed, nor that it was intended to be conferred by statute. No case was drawn to the attention of the Court where such an order had been made by a trial judge before the commencement of the Act. The language of equivalent provisions, such as s 50 of the Federal Court of Australia Act, is limited to an order "forbidding or restricting the publication of particular evidence". It is clear that s 7(a) in combination with s 8(1)(a) is capable of extending further than that, but not that it expands the powers of a superior court under the general law to prevent sub judice contempt.

1. The remaining question is whether novel problems are created with respect to the fairness of criminal trials where there is significant prejudicial material available on the internet. In Digital News Media Pty Ltd v Mokbel [2010] VSCA 51; 30 VR 248 the Victorian Court of Appeal considered the propriety (rather than the validity) of orders directing specific persons to remove material from their web sites and prohibiting them from publishing such articles in the future: at [60]. The statutory power relied on in that case, found in ss 18 and 19 of the Supreme Court Act 1986 (Vic), did not extend to an order restricting or suppressing publication of material which might endanger the holding of a fair trial. Warren CJ and Byrne AJA stated at [48]:

"The general suppression order cannot be supported by s 18; it must depend upon the inherent jurisdiction of the Court. It would seem that in making these orders his Honour was exercising a power to grant a quia timet injunction to restrain the publication of material which he apprehended was likely to be published and would, if published, have jeopardised the forthcoming murder trial and Mr Mokbel's other pending trials. There is no doubt that this Court has such a power. In General Television Corporation Pty Ltd v DPP [at [21]] the Court of Appeal recently so held."

1. Their Honours held (Buchanan JA dissenting) that the orders were not necessary.

1. Two judges conducting criminal trials in the Supreme Court of New South Wales have thought it appropriate to make suppression orders in relation to material available on the internet. In R v Perish [2011] NSWSC 1102 Price J dismissed an application to vacate orders limited to identifying specific articles and the web sites from which they were to be removed. The challenge was based on the futility of the order. His Honour noted at [44]:

"The inability of a court to remove all offending material does not necessarily lead to a conclusion that the provision of the relief sought would be futile. In General Television ... the Victorian Court of Appeal (Warren CJ, Vincent and Kellam JJA) recast an internet order so that it was specifically directed at the applicant in that case and the website within its control notwithstanding that there was a deal of material which would otherwise be available on the internet."

1. Price J further stated at [55], after identifying the directions that he proposed to give to jurors at the trial:

"Although I accept that the jury will abide by my directions I consider that I should do all that I can to assist them in making their task easier. Notwithstanding the age of the articles, their immediate accessibility on the applicants' websites by keying in the names of the accused causes, in my opinion, a real risk of prejudice to the accuseds' right to a fair trial."

1. In R v Debs [2011] NSWSC 1248 RS Hulme J made an order in terms not dissimilar to those in the present case. The information which was not to be published was, arguably, more specific than that identified in the present orders, but the order was in general terms that "there be no publication" of the offending information: at [52]. His Honour explained at [40]:

"Thus, as I apprehend the operation of the Act, a non-publication order made in unqualified terms would immediately bind not only the media organisations listed above but also organisations such as the owners of Wikipedia, Google and the other search engines but they would commit no offence until notified of the order and guilty of conduct otherwise constituting contempt of court or a breach of s 16(1)."

1. It is convenient to refer in this context to the terms of s 16 of the Suppression Orders Act. That provision states:

"16 Contravention of order

(1) A person commits an offence if the person engages in conduct that constitutes a contravention of a suppression order or non-publication order and is reckless as to whether the conduct constitutes a contravention of a suppression order or non-publication order.

Maximum penalty: 1,000 penalty units or imprisonment for 12 months, or both, for an individual or 5,000 penalty units for a body corporate.

(2) Conduct 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) Conduct 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 conduct constitutes both an offence under this section and a contempt of court, the offender is not liable to be punished twice."

1. The assumption that there is no offence committed under s 16 unless the person has had the order brought to their attention is no doubt correct. However, it invites consideration as to how an internet content host or search engine operator in another country can properly be given notice of the order or be the subject of enforcement proceedings.

Application of State law

1. The applicants mounted a challenge to the order in the present case, based on -

(a) the absence of any demonstrable necessity, and

(b) the futility of making such an order.

1. For reasons discussed above in relation to the proper operation of the section, there are problems with the form of the order. First, it is not directed to any person or persons and, indeed, is little more than a general statement of principle in relation to specific material. So much is revealed by the opening words stating, after reference to geographical limits of the Commonwealth of Australia, that "there is to be" no disclosure of certain categories of material. Assuming, as the evidence reveals, that such material may be available on the internet despite its removal from sites controlled by the applicants, there are serious questions raised as to whether a whole range of businesses which provide access to the internet through public use of computers may fall within the terms of the order. Secondly, there is a question as to whether internet service providers, which make available search engines permitting access to material without knowledge of the relevant URLs, may also be caught by the terms of the order, if the access is had anywhere in Australia.

1. Thirdly, the proper administration of justice with respect to a trial to take place in the District Court at Sydney could not conceivably justify an order preventing residents of Perth, Kununurra or Darwin from having access to such material. Indeed, the scope of the order is inherently suspect to the extent that it seeks to prevent the whole population of Australia having access to the offending material, at least for a period, in order to prevent possible access by a juror or member of the jury panel for a particular case.

1. The rationale over such overreach is presumably that, unlike radio broadcasts or even the distribution of newspapers, there is no geographical limit to material available on the internet. However, as the applicants submitted, the fact that it is not possible to control material on servers outside Australia demonstrates the limited value of an order seeking to control availability on servers inside the country. No doubt it is arguable that most of the offending material, being of more topical than national let alone international interest, will be found on servers within the country, and even perhaps within New South Wales. However, that may underestimate the likelihood that such material is also available from other sources. Given the efficiency of modern search engines, limiting the number of sources, without removing them all, is likely to be ineffective.

1. No specific attention was given to the fact that the order purported to prevent access in other States. Whether a judge of the District Court had power to control the access of parties and citizens so broadly might itself raise a serious question for consideration. As it was not addressed, it should not be pursued.

1. An order will also fail the necessity test if it is futile. An order will not necessarily be futile because material is available otherwise in cached form, from which it may be removed once the source page has been removed, or is available on web sites overseas. The mere fact that a search has revealed many thousands of "hits" does not necessarily mean that offending material has been readily located. It is necessary to refer to items which have been given priority in response to the search.

1. Further, the test of necessity will not readily be satisfied without proper consideration as to whether a jury is likely to abide by the directions it will be given to decide a matter only by reference to the material called in evidence and without carrying out any investigations themselves. Circumstances may differ. A juror might be thought to be more likely to look for offending material, despite a direction, if such material is of recent origin and if he or she has some recollection of its existence, than in other circumstances. This is a matter for consideration by each judge asked to make such an order.

1. As a matter of construction, that which is ineffective cannot be described as "necessary". The orders made in the District Court were ineffective for two reasons. First, to be effective they had to bind numerous parties who were not before the Court. Indeed, it is not possible to know, on the evidence, who those parties are. They will either include those in control of the content of web sites throughout the world which may contain the offending material, or those who operate search engines, or both categories. Secondly, even if it were possible to identify all relevant parties, enforcement against any party not resident in or operating from New South Wales would be impracticable, if not impossible. Accepting the evidence that cached material might not provide a source of access once the original document were removed, it remains unclear as to how many web sites containing the relevant information have it in cached form. Accordingly, the evidence failed to demonstrate that the orders would be effective.

1. As a matter of principle, to make the orders effective, material must either be removed from any web site globally to which access can be had from New South Wales or there must be an ability to prevent access by people living in New South Wales. The evidence did not disclose that either of these was a realistic possibility. Certainly the orders made no attempt to identify any such possibility.

1. For these reasons, the orders were properly described as ineffective and therefore were not necessary. As they did not satisfy the ground identified in s 8(1)(a) of the Suppression Orders Act, they should not have been made. However, the last point of principle raises starkly the question as to their constitutional validity.

Constitutional validity

(a) construction of Commonwealth law

1. The basis for inconsistency with the State law was said to be Schedule 5 of the Broadcasting Services Act and, in particular, Part 9, containing cll 90 and 91. It is convenient to commence with cl 90:

"90 Concurrent operation of State and Territory laws

It is the intention of the Parliament that this Schedule is not to apply to the exclusion of a law of a State or Territory to the extent to which that law is capable of operating concurrently with this Schedule."

1. The words "is not to apply to the exclusion of" has the same meaning as "does not exclude the operation of". It is a form of language commonly adopted to avoid the implication that the Commonwealth law was intended to be an exclusive statement in respect of the subject matter or the "legislative field" in which it operates: see R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (Australia) [1977] HCA 34; 137 CLR 545 (in relation to s 75(1) of the Trade Practices Act 1974 (Cth)) and University of Wollongong v Metwally [1984] HCA 74; 158 CLR 447, considering the retrospective operation of a similar clause, s 6A of the Racial Discrimination Act.

1. Despite the language of cl 90, cl 91 is in categorical terms:

"91 Liability of internet content hosts and internet service providers under State and Territory laws etc

(1) A law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it:

(a) subjects, or would have the effect (whether direct or indirect) of subjecting, an internet content host to liability (whether criminal or civil) in respect of hosting particular internet content in a case where the host was not aware of the nature of the internet content; or

(b) requires, or would have the effect (whether direct or indirect) of requiring, an internet content host to monitor, make inquiries about, or keep records of, internet content hosted by the host; or

(c) subjects, or would have the effect (whether direct or indirect) of subjecting, an internet service provider to liability (whether criminal or civil) in respect of carrying particular internet content in a case where the service provider was not aware of the nature of the internet content; or

(d) requires, or would have the effect (whether direct or indirect) of requiring, an internet service provider to monitor, make inquiries about, or keep records of, internet content carried by the provider.

(2) The Minister may, by written instrument, exempt a specified law of a State or Territory, or a specified rule of common law or equity, from the operation of subclause (1)."

1. It was common ground that there was no exemption (or no relevant exemption) for the purposes of sub-cl (2). So far as sub-cl (1) is concerned, it conveniently divides into two parts, pars (a) and (b) relating to internet content hosts and pars (c) and (d) relating to internet service providers. Reading each pair of provisions together, the effect of sub-cl (1) is to exclude the operation of a State law which either subjects the relevant party to a liability in respect of content, of the nature of which it was not aware, or requires the party to monitor or make inquiries about that content. Accordingly, the combined effect of cll 90 and 91 is that a State law which imposes liability on, for example, a content host in respect of content of which it is aware continues to operate. However, the second limb of the prohibition in respect of a content host would prevent a State law imposing an obligation on the content host to monitor, and thereby make itself aware of, the content which it is hosting.

1. Relevantly for the purposes of these provisions, the following definitions apply, as found in Schedule 5 - Online services:

"3 Definitions

In this Schedule, unless the contrary intention appears:

...

data storage device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device.

...

internet carriage service means a listed carriage service that enables end-users to access the internet.

internet content means information that:

(a) is kept on a data storage device; and

(b) is accessed, or available for access, using an internet carriage service;

but does not include:

(c) ordinary electronic mail; or

(d) information that is transmitted in the form of a broadcasting service.

internet content host means a person who hosts internet content in Australia, or who proposes to host internet content in Australia.

internet service provider has the meaning given by clause 8.

listed carriage service has the same meaning as in the Telecommunications Act 1997.

...

8 Internet service providers

Basic definition

(1) For the purposes of this Schedule, if a person supplies, or proposes to supply, an internet carriage service to the public, the person is an internet service provider.

...

9 Supply to the public

(1) This clause sets out the circumstances in which an internet carriage service is taken, for the purposes of subclause 8(1), to be supplied to the public.

(2) If:

(a) an internet carriage service is used for the carriage of information between 2 end-users; and

(b) each end-user is outside the immediate circle of the supplier of the service;

the service is supplied to the public.

Note: If a company makes internet content available for access on the internet, and an individual obtains access to the content using an internet carriage service, the company and the individual are end-users in relation to the carriage of the content by the internet carriage service."

1. There was debate in the course of the appeal as to whether the applicants, or any of them, were properly identified as internet content hosts. (It was not submitted that they were internet service providers.) The point sought to be made was that the material they were required to remove from their web sites was material which they had produced. The submission was that a "host", not being a defined term, should be given its meaning in ordinary parlance, namely one who provides service or accommodation to another. One is not a host to oneself or one's own family. Accordingly, so the submission went, a party controlling a web site was not a "content host" to the extent that it produced the content. Whether the submission accepted that it was a host in respect of a site containing not only its content, but also messages uploaded by, for example, external bloggers, was unclear.

1. The Court received little assistance from the parties in respect of the language used in Schedule 5. It may be that such assistance is not readily available, the term "internet content host" not being usefully defined nor, perhaps, having any settled industry content. One commentator has remarked that the terms "internet service provider" and "internet content host" are "jargon without any settled meaning": Forum: Internet Content Control (2000) 23 UNSWLJ; Niranjan Arasaratnam, "Brave New (Online) World" 205 at 210. The author continued:

"The Act assumes that these terms are static and immutable when in reality they are evolving together with the medium in which they operate."

1. Judicial discussion is limited and has not always distinguished between hosts and service providers: see, eg, in a decision pre-dating Schedule 5, Trumpet Software Pty Ltd v OzEmail Pty Ltd [1996] FCA 560; 34 IPR 481 at 484 (Heerey J); and later, .au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424; 207 ALR 521 at [3] (Finkelstein J). More assistance may be obtained from a decision of the Administrative Appeals Tribunal in Electronic Frontiers Australia Inc v Australian Broadcasting Authority [2002] AATA 449 where Deputy President Forgie stated:

"11. Information on the Internet such as a page on the World Wide Web is known as Internet content. Just as a computer on the internet is uniquely identified, so too is each piece of Internet content. It is identified by its URL. The URL identifies the protocol used to access the content, or type of content, the computer on which it is located and the location of the computer. Although uniquely identified, the Internet content is not static and may be changed as the content of the Internet site is updated.

12. Content must be hosted on the Internet. Some creators of Internet content host their own Internet content. Most pay an Internet content host to host it on their behalf. In turn, the Internet content host agrees to place the content on a data storage device or server and to make the content available on the Internet. Creators of Internet content are largely free to select their Internet content host."

1. Questions of copyright infringement by downloading material from the internet were discussed by the Full Court of the Federal Court in Roadshow Films Pty Ltd v iiNet Ltd [2011] FCAFC 23; 194 FCR 285 and, on appeal, by the High Court in Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16, in each case without extensive discussion of "hosts". As explained by French CJ, Crennan and Kiefel JJ, the respondent was an Australian internet service provider which gives its customers access to the internet in return for a monthly fee: at [2]. The question was whether iiNet had infringed copyright in the appellants' films by permitting its customers to have access to the films using a peer-to-peer file sharing system. There was no need to discuss the concept of an internet content host. The Court was satisfied that iiNet was not involved with the file sharing system and further was "not a host of infringing material, or of web sites which make available .torrent files relating to infringing material": at [65]. A similar point was made by Gummow and Hayne JJ at [112], noting that the respondent itself "could not take down the infringing material because it was not acting as host", referring, by comparison, to Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187; 156 FCR 380.

1. It is sufficient for present purposes to accept, as explained by Forgie DP in the Administrative Appeals Tribunal, that an internet content host may include any party in control of a web site to which material has been uploaded. Whether it is uploaded by an agent of the party controlling the web site, or even that party itself, the party remains a content host.

1. In the end, this debate was somewhat sterile as its purpose appeared to be to ensure that the applicants could not be liable for breach of the order in relation to material of which they were not aware, the underlying assumption being that they would relevantly be "aware of" material which they or their officers or agents had uploaded. However, once it is accepted that a State law could not validly impose liability with respect to content of which they were not aware, or impose on them an obligation to monitor or make inquiries about content on their web sites, it became unnecessary to determine whether or not they were internet content hosts, for the purposes of paragraphs (a) and (b) of sub-cl 91(1). (It appears that similar issues are under review in New Zealand: see Donna Buckingham, "Keeping Justice Blind Online: Suppression Regimes and Digital Publishing" (2011) 12 Otago L Rev 557 at 563.)

(b) the question of inconsistency

1. The NSW Law Reform Commission accepted that "the sub judice rule acts as an important shield against jurors being exposed to material which the rules of evidence would otherwise keep from them": at [2.18]. It recommended that the rule be retained: at [2.76]. In reaching that conclusion, it referred to problems arising from information contained on web sites available through internet service providers and internet content hosts: at [2.63]. It noted the absence of case law considering whether those responsible for web sites could be found liable for contempt of court in respect of information available through web sites under their control. It recommended that an internet service provider or host which became aware of a contemptuous publication should have an obligation to take steps within its means to prevent the material from being "further published": at [2.65]. It recommended a defence based on lack of control over the content and that they "either did not know the content contained the material or, having become aware of this, took all reasonable steps to prevent it being published": at [2.65]. The recommendation is not entirely coherent: if limited to content of which they were aware, the defence seems unnecessarily broad. Whether such a statutory provision would be consistent with the Broadcasting Services Act was not addressed. The scope of the proposed defence made in the draft Bill attached to the Report (cl 15) related only to proceedings for contempt of court.

1. The critical question is whether the Suppression Orders Act permits an order which could, directly or indirectly, subject an internet content host to a form of liability, whether civil or criminal, or could require a host to make relevant inquiries. That in turn depends upon whether the State scheme was intended to do more than confer on a court, which might not otherwise have had such a power, the power to restrain a threatened contempt by a particular party by reference to the publication of specified matter. Prior to the commencement of the Suppression Orders Act, and legislation in like form in other jurisdictions, there appears to have been little history of quia timet injunctions in respect of threatened contempts. According to usual principles relating to such relief, a party must have some basis for its fear that a particular breach of a statutory or common law right may occur.

1. In relation to material on the internet, it would, no doubt, be a relatively simple task for the Director of Public Prosecutions, in respect of a particular forthcoming trial, to conduct an internet search and identify web sites containing material to which the public had access and which might tend to prejudice the fairness of the forthcoming trial. (Such a course was suggested nine years ago by Spigelman CJ in John Fairfax Publications Ltd at [65].) The particular internet content host could then be made aware by the Director of the material and asked to remove it. If it did not act within a reasonable time as requested, it would be open to the Director to seek an order from the court in respect of that material. Assuming that the court was satisfied that the material did have the feared tendency, an order directed to that internet content host, relating to specified material of which it had been made aware, would not contravene the constitutional limits of the State law. The statute could validly support such an order.

1. The statute could not, however, validly support an order addressed to the world at large, which might well cover material on internet sites of which the hosts were unaware. However, as discussed above, unless the statute provided a remarkable expansion of the common law principles with respect to sub judice contempt, such an order would be invalid in any event, because not supported by the State Act, according to its proper construction.

1. To the extent that Part 2 of the Suppression Orders Act permits the Court to make an order imposing an obligation on an internet content host to remove, or otherwise restrict access to, content, of the nature of which it was not aware, there would be inconsistency with Schedule 5 of the Commonwealth Act. Similarly, to the extent that an order could be made requiring it to inquire of, or monitor, the content hosted on its web sites, of the nature of which it was not otherwise aware, such a law would be inconsistent with Schedule 5 of the Commonwealth Act.

Conclusions

1. It is something of an irony that the applicants in the present case are, on one view, the only people against whom an order could properly have been made. Whether they were aware of the offending material at the time the order was made is not clearly revealed by the evidence. They are now aware of it and, in any event, it has apparently been removed to the satisfaction of the Director and the accused persons.

1. An order under the Suppression Orders Act should be in a form which would be appropriate in the inherent jurisdiction of the Supreme Court, to prevent an apprehended breach of the sub judice principle. Further, the test of necessity will not usually be satisfied unless a request has been made to the parties thought to be in breach to remove the offending material and who, after a reasonable opportunity, have failed, or have indicated they do not intend, to take that step.

1. The State law constrains the circumstances in which and the form of order which can be made: the order must be "necessary" to prevent prejudice to the proper administration of justice. For an order to be necessary, the general law principles of sub judice contempt must be thought, in particular circumstances, to be inadequate in themselves. That may be because there is a dispute between one or more of the parties to the criminal proceedings and the publisher as to whether the material has the offending tendency. Other forms of dispute could be envisaged: for example, a dispute as to whether a particular publisher has the legal authority to remove material identified on a particular web site.

1. Similarly, a view must be formed that potential jurors may obtain access to such material, if not removed, or that empanelled jurors may be disinclined to accept directions, backed by criminal sanctions, not to seek access to such material. Absent some basis for considering that a specific order is necessary in support of the general law principle, there would be no necessity for such an order.

1. It is not necessary for present purposes to consider the extent to which a pre-emptive order could be made in respect of a proposed publication or in respect of identified material which is available for public access and under the control of a specific individual. The present order is generic in effect, refers to no specific material, nor to any identified web site or controller. If invalid because beyond the power conferred by s 8, no party suggested it could be severed in part, so as to leave a valid order.

1. Section 109 of the Constitution prevents the Suppression Orders Act supporting an order directed to an internet content host which is not aware of the material to which the order refers at the time it is made. Nor can it support an order requiring such a host to monitor or make inquiry about the content of such material.

1. It follows that Order 3 made by the trial judge on 26 March 2012 was beyond the power conferred on the District Court by Part 2 of the Suppression Orders Act.

1. These being criminal proceedings, it would not be appropriate to make an order for costs against the parties to the proceedings. There is no indication in the Suppression Orders Act that this Court should exercise any power to award costs. There is no reason to treat the costs of these proceedings as otherwise than costs of proceedings "preliminary or incidental" to an appeal and thus subject to the no costs regime provided by s 17(1) of the Criminal Appeal Act.

1. The Court should make the following order and note:

(1) Set aside orders 3, 4 and 5 made by Bennett DCJ in the District Court on 26 March 2012 and the further ancillary and consequential orders made on 28 March 2012.

(2) The Court notes that any continued or further publication of material having a tendency to interfere with the administration of justice in respect of the forthcoming trial of the second, third and fourth respondents may, despite the discharge of the orders referred to above, constitute a contempt of court.

1. WHEALY JA: I agree with the orders proposed by Basten JA. I agree with his reasons and the comments made by the Chief Justice in his additional remarks.

**********

Amendments

25 July 2013 - Amending typographical errors and citation errors

Amended paragraphs: 18, 37, 45, 47, 48, 64, 66, 82, 88, 90, 92

11 April 2013 - Add the word "usefully" before "defined"

Amended paragraphs: 87

13 June 2012 - Amending case title and parties to the proceedings

Amended paragraphs: Coversheet

Decision last updated: 25 July 2013