Citation: Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125
Court: Court of Criminal Appeal, New South Wales
Date: 13 June 2012
Judge(s): Bathurst CJ; Basten JA; Whealy JA
Background
The second to fourth respondents were accused persons facing criminal proceedings in the District Court. On 26 March 2012, Bennett DCJ made a suppression order under the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Suppression Orders Act) purporting to prevent publication, throughout Australia including on the internet, of any material referring to other criminal proceedings in which those respondents were parties or witnesses.
The applicants were media organisations, including Fairfax Digital and associated entities. They sought to challenge the order. They initially commenced proceedings in the Court of Appeal, but a question arose immediately about whether that court had jurisdiction, prompting the Chief Justice to reconstitute the same bench as a Court of Criminal Appeal.
The suppression order had been made in broad terms and was directed, among others, at internet servers including Google and Bing. The media applicants had already undertaken to remove certain identified material from their own websites as a condition of a stay granted pending the appeal.
Legal Issues
- Whether an appeal against a suppression order made by the District Court in its criminal jurisdiction lies to the Court of Appeal or the Court of Criminal Appeal
- Whether the appeal proceeded as a hearing de novo (fresh hearing) or by rehearing on the existing record
- Whether the suppression order was a valid exercise of the powers conferred by the Suppression Orders Act, including whether it was "necessary" within the meaning of section 8
- Whether, to the extent the Suppression Orders Act permitted an order in the form made, it was inconsistent with the Broadcasting Services Act 1992 (Cth) Schedule 5, and therefore inoperative under section 109 of the Constitution
Decision
Appellate jurisdiction. The Court held unanimously that the appeal lay to the Court of Criminal Appeal, not the Court of Appeal. Because the suppression order was an interlocutory order made in the exercise of the District Court's criminal jurisdiction, the appropriate appellate court was the one that would hear appeals against final judgments from that same jurisdiction. The word "review" in section 14(6) of the Suppression Orders Act referred to a statutory alternative to a formal appeal, not to the Supreme Court's supervisory jurisdiction.
Nature of the appeal. Bathurst CJ (Whealy JA agreeing) held that the appeal was by way of hearing de novo, meaning the appellate court could receive fresh evidence and was not confined to the material before the trial judge. Basten JA expressed reservations about this conclusion in the context of urgent suppression appeals, noting the unattractive practical consequences of automatically requiring a full fresh hearing in time-sensitive matters, but agreed that leave could be granted conditionally to manage the court's own procedure.
Validity of the order. The Court held that the suppression order as made was beyond the power conferred by the Suppression Orders Act. The Act permits orders prohibiting or restricting publication of material "otherwise concerning" a party or witness, not merely material tending to identify them. However, an order must be "necessary" under section 8, meaning it must be reasonably appropriate and adapted to its purpose. An order that is futile cannot satisfy the necessity test. The order here was expressed in generic terms, identified no specific material or website, and was not directed at any identified person in control of specific content. The Court also questioned whether section 7 extended to requiring private individuals unconnected with the proceedings to remove material from their websites.
Constitutional inconsistency. The Court held that an order directed to an "internet content host" (which includes any party controlling a website to which material has been uploaded) in respect of specific identified material of which that host is aware would not contravene section 109 of the Constitution. However, the Suppression Orders Act could not validly support an order addressed to the world at large, potentially covering material on websites whose hosts were unaware of it at the time the order was made. Because the order before the Court was of that generic character, it was beyond power. No offence arises under section 16 of the Suppression Orders Act unless the order has been brought to the person's attention.
Orders Made
- Orders 3, 4, and 5 made by Bennett DCJ on 26 March 2012, together with further ancillary and consequential orders made on 28 March 2012, were set aside.
- The Court noted that any continued or further publication of material having a tendency to interfere with the administration of justice in the forthcoming trial of the second, third and fourth respondents may, notwithstanding the discharge of the orders, constitute a contempt of court.
- No order for costs was made, with costs treated as preliminary or incidental to an appeal and subject to the no-costs regime under section 17(1) of the Criminal Appeal Act 1912 (NSW).
Key Takeaways
- An appeal against a suppression order made by the District Court in the exercise of its criminal jurisdiction lies to the Court of Criminal Appeal, not the Court of Appeal. The appellate forum tracks the jurisdiction in which the original order was made.
- Under the Suppression Orders Act, "necessary" in section 8 is not to be construed narrowly, but an order that is futile cannot satisfy the test. An order that identifies no specific material, no specific website, and no specific person in control of content is likely to be both futile and beyond power.
- Suppression orders can validly reach material published on the internet, including on websites, provided the order is directed at identified material under the control of a specific, identifiable person or entity who is aware of the order.
- Section 109 of the Constitution limits the reach of the Suppression Orders Act where it would otherwise purport to cover internet content hosts unaware of the material in question, because such an order would be inconsistent with the regulatory scheme established by Schedule 5 of the Broadcasting Services Act 1992 (Cth).
- Even after a suppression order is discharged, the Court of Criminal Appeal confirmed that the common law of contempt remains operative: publication of material with a tendency to interfere with the administration of justice in pending proceedings may still constitute contempt of court.
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 6, 7, 8, 13, 14, 16
- Criminal Appeal Act 1912 (NSW), ss 3, 5, 17
- Broadcasting Services Act 1992 (Cth), Sch 5, Pt 1, cll 3, 8, 9; Pt 9, cll 90, 91
- Constitution (Cth), s 109
- Supreme Court Act 1970 (NSW), s 69
- Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 19
- Jury Act 1977 (NSW), ss 68C, 72A
Key Cases
- Hogan v Hinch [2011] HCA 4; 243 CLR 506
- Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651
- 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
- Batistatos v Roads & Traffic Authority of NSW [2006] HCA 27; 226 CLR 256
- John Fairfax Group Pty Ltd 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
- Digital News Media Pty Ltd v Mokbel [2010] VSCA 51
- Dow Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575
- .au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424; 207 ALR 521
- Electronic Frontiers Australia Inc v Australian Broadcasting Authority [2002] AATA 449
- Hinch v Attorney General (Vic) [1987] HCA 56; 164 CL