An Appetite for Suppression: Non-Publication Orders, Open Justice and the Protection of Privacy

Abstract

The principle of open justice is a fundamental doctrine of the common law. It is only departed from where it is strictly necessary to do so. Historically, then, merely because a court proceeding involved the public ventilation of private matters was not a sufficient basis for derogating from open justice. Recently, courts, legislatures and law reform bodies have been increasingly concerned about directly protecting privacy. The greater legal protections afforded to privacy have seen some challenges to the primacy of open justice. This chapter examines a number of recent cases in which high-profile litigants have attempted to obtain suppression or non-publication orders, in part to protect the privacy of their affairs from media scrutiny. It considers how the emerging tension between open justice and privacy might develop in the future and how it might be resolved.