Federal Court of Australia

Nicolson v Naizmand (duration of non-publication order) [2026] FCA 635

ORDERS

IN THE ORDERS SET OUT BELOW:

Publication has the same meaning as in Part VAA of the Federal Court of Australia Act 1976 (Cth) and includes disseminating or providing access to the public or a section of the public by means of the internet, in a book, by radio or television, and public exhibition.

THE COURT ORDERS THAT:

1.    Until midnight on 15 May 2036, there is to be no publication of any orders in these proceedings, or any information filed in these proceedings, that might identify the person listed in Control 9.1(f)(xii) of Annexure AN-01 to the affidavit of Alexander Nicolson affirmed on 29 June 2022, including:

(a)    that person’s name and date of birth;

(b)    the information included in paragraphs 157-162 (including the heading above paragraph 157 of the Exhibit AN-03) to the affidavit of Alexander Nicolson affirmed on 29 June 2022;

(c)    the information in Control 11.1(c)(xii) of Annexure D2 to Exhibit AN-03 to the affidavit of Alexander Nicolson affirmed on 29 June 2022;

(d)    the affidavit of Nicolette Strauss affirmed on 29 June 2022; and

(e)    the affidavit of Rodger Prince affirmed on 23 April 2026.

(the Sensitive Information)

2.    Order 1 is made on the ground set out in s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), namely that it is necessary to prevent prejudice to the proper administration of justice.

3.    Order 1 does not restrict disclosure of the Sensitive Information to or between:

(a)    the parties and their legal representatives;

(b)    Justices of the Court, their staff and the staff of the Registry of the Court;

(c)    officers and employees of agencies that are members of the Joint Counter Terrorism Team and legal representatives of those agencies; and

(d)    Commonwealth officers acting in the course of their duties.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

Background and the present interlocutory application

1    On 20 September 2022, following a contested hearing on 31 August 2022, I made an interim control order under s 104.4 of the Criminal Code (Cth) in the Schedule to the Criminal Code Act 1995 (Cth): Nicolson v Naizmand [2022] FCA 1108. At the same time as making the interim control order, I made further orders:

(a)    listing the proceeding for a confirmation hearing on 24 February 2023; and

(b)    prohibiting, until 30 April 2026, publication of the form of any orders in this proceeding, or any information filed in this proceeding, that might identify a person listed in a part of one of the interim control orders, with particular reference to that person’s name and date of birth, and particular information in the control orders and in certain paragraphs of an exhibit to an affidavit read at the hearing, and certain other specified information – that is, a non-publication order (NPO).

2    On 23 April 2026, the applicant filed the present interlocutory application, which essentially sought to extend the 20 September 2022 NPO until further order. On 27 April 2026 and 7 May 2026, I made interim suppression orders, effectively extending the operation of the 20 September 2022 NPO until the final NPO was made on 15 May 2026. This judgment records the reasons for those final orders.

3    The applicant’s interlocutory application only concerns the 20 September 2022 NPO, but for completeness, I note that two other NPOs concerning other individuals were made in the proceeding. On the date of the contested interim control order hearing on 31 August 2022, I made an NPO prohibiting the publication of the fact of the originating application, as well as the evidence and submissions heard in the proceeding, until the jury in the trial of Hamdi Alqudsi returned its verdict. That NPO is no longer operative. After the hearing, on 23 September 2022, I made an NPO in relation to two other persons listed in a part of one of the interim control orders to prohibit the publication of their names in connection with this proceeding. That NPO is also no longer operative as it lapsed with the conclusion of the two individuals’ respective criminal trials.

4    As these reasons concern an NPO, I will not separately refer to suppression orders except where necessary. However, the reasoning that follows would logically apply equally to suppression orders which are governed by the same legislative regime, especially as they are often more onerous in their effect and therefore call for even greater caution.

Interim control hearing and the 20 September 2022 NPO

5    The applicant is, as required to request a control order, a “senior AFP member”, as defined in s 100.1 of the Criminal Code, relevantly being a member of the Australian Federal Police (AFP) of or above the rank of Superintendent. The 20 September 2022 NPO was made under s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Act), upon the ground set out in s 37AG(1)(a) of the Act, namely that it was necessary to prevent prejudice to the proper administration of justice. As a result, a version of the judgment with parts of the interim control orders redacted was produced to reflect the effect of the 20 September 2022 NPO and only that version was published. An unredacted version remains on the Court’s electronic file, inaccessible to third parties by reason of the NPO so long as the NPO, or a replacement for it, remains in force.

6    The scope of both the 20 September 2022 NPO and the corresponding redaction to the control orders made (and not to any part of the reasons for judgment) only covered the identity of one person listed in one of the interim control orders. As such, the NPO was narrow and confined, and in all the circumstances uncontroversial. It was directed to preventing the revealing of the identity of a person associated with the respondent who had committed criminal offences while a minor, mirroring the effect of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). It was also directed to avoiding the frustration of equivalent orders made in other proceedings in this Court in relation to the same person.

7    The threshold of the NPO being necessary to prevent prejudice to the proper administration of justice contained in s 37AG(1)(a) of the Act was easily met to my satisfaction both as to the scope of the restriction, and as to duration for the period to which it originally applied. The NPO made on 20 September 2022 therefore had only a relatively minor and peripheral impact on a primary objective of the administration of justice, being to safeguard the public interest in open justice, as set out in s 37AE of the Act.

8    Every other aspect of the interim control order application process, and the reasons for making it, was dealt with in open court, and in the judgment published. The specific identity of the person whose identity was forbidden to be published by virtue of the 20 September 2022 NPO was of only limited importance to the overall evidence adduced in support of making the interim control order.

9    As it transpired, the applicant did not end up seeking confirmation of the interim control order. On 13 January 2023, the applicant notified the respondent that he (the applicant) had elected not to confirm the interim control order, pursuant to s 104.12A of the Criminal Code. The effect of the applicant’s election not to confirm the interim control order is that it immediately ceased to be in force by the operation of s 104.12A(4)(a). Accordingly, the interim control order ceased on 13 January 2023. However, the 20 September 2022 NPO continued until 5.00 pm on 30 April 2026.

10    I had earlier made an interim control order against the same respondent in a separate proceeding brought by another senior AFP officer, which was confirmed. The NPOs made in respect of that control order were confined to the identity of one person, being the same person who had committed criminal offences while a minor as in this case: Booth v Naizmand [2020] FCA 244. The most recent such NPO was also made until 30 April 2026.

The present interlocutory application

11    As mentioned above, on 23 April 2026, the applicant filed an interlocutory application in this proceeding, with a supporting affidavit, seeking, in substance, to extend the duration of the 20 September 2022 NPO to prohibit the publication of information that identifies the person who had committed criminal offences while a minor, “until further order”. The applicant also sought to extend the scope of the NPO to cover the supporting affidavit. Additionally, at the hearing, the applicant sought to extend the duration of the prior NPO made in Booth v Naizmand, which prohibits the publication of information that identifies the same person.

12    That additional request in the Booth v Naizmand proceeding was of no additional legal or practical moment, because the scope and purpose of the NPO sought in that proceeding mirrored the NPO sought in this proceeding. Both NPOs sought by the applicant concerned maintaining the prohibition on the publication of the identity of the same person, meaning that inexorably the same outcome had to be arrived at in both cases. The request in Booth v Naizmand was therefore able to be treated as part and parcel of the determination of the present interlocutory application, without the need for a separate interlocutory application to be lodged in that proceeding. This judgment will be added to the electronic court file for the Booth v Naizmand proceeding.

13    I was satisfied that the narrow breadth of the 20 September 2022 NPO was appropriately sought to be continued beyond its 30 April 2026 expiry, and that it was equally appropriate to extend the scope of the NPO to the affidavit in support of the interlocutory application. The breadth of what was sought easily met the mandatory test of being necessary to prevent prejudice to the proper administration of justice contained in s 37AG(1)(a) of the Act. However, the indefinite duration sought – “until further order” in circumstances in which there was no apparent reason why any such further order would ever be made – was of concern to me. Accordingly, my associate conveyed to the applicant that I had doubts about having the power to make such an indefinite order, in light of the terms of s 37AJ of the Act.

14    At the ex parte hearing of the interlocutory application (service on the respondent having been attempted to my satisfaction and being unsuccessful), the applicant relied upon written and oral submissions. The burden of those submissions was that this Court had power to make an NPO “until further order”, upon the basis that this satisfied the requirements of s 37AJ. However, after a short adjournment after hearing the oral submissions, I indicated that I was of the view that the terms of s 37AJ precluded the Court making an NPO which is not of a finite duration, by virtue of the meaning that I attributed to the phrase “specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event” in s 37AJ(3).

15    Having expressed that view to the applicant’s lawyers, they proposed in the alternative a replacement NPO order in this proceeding, and a parallel replacement order in Booth v Naizmand, both confined to a fixed period of 10 years. Despite this accommodation of the view that I expressed, the applicant did not resile from his position that I had power to make those orders “until further order”, as originally sought. On 15 May 2026, I made those orders as proposed in the alternative, for the fixed duration of 10 years, until 15 May 2036.

16    My reasons for finding that there was no power to make NPOs “until further order”, or which are otherwise indefinite, are as follows. In these reasons, I use the term “indefinite” to refer to a period of an NPO for which the end date is fixed by reference to the occurrence of an event which may not occur, such that the relevant period is potentially infinite. A period which runs until further order, where no such order is in contemplation, is one such example.

Power to make a final non-publication order “until further order”

17    Section 37AJ is as follows:

(1)    A suppression order or non‑publication order operates for the period decided by the Court and specified in the order.

(2)    In deciding the period for which an order is to operate, the Court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

(3)    The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

18    In raising my concern about the power of the Court to make a final non-publication order “until further order”, and in considering the interpretation of the requirements imposed by s 37AJ of the Act, I was cognisant of:

(a)    the conclusion reached by Perram J in Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [24], referring to s 37AJ of the Act, that:

This provision formalises what was probably good practice beforehand, namely, the placing on all suppression orders some form of sunset clause.

and the first sentence of [38] that:

The Act requires that the order should operate for a finite period.

(b)    the application of the views of Perram J in Air New Zealand at [24] by Markovic J in Oreb v Australian Securities and Investments Commission [2016] FCA 321; 112 ACSR 36 at [94] (set aside for other reasons by the Full Court in Oreb v Australian Securities and Investments Commission [2016] FCAFC 192; 247 FCR 316; and

(c)    the adoption of the views of Perram J by Besanko and Abraham JJ in Porter v Dyer [2022] FCAFC 116; 402 ALR 659 at [14]:

one matter … was raised by the Court and relates to whether there is a requirement that the order specify a fixed or ascertainable period or a period specified by reference to the occurrence of a specified future event during which the order operates. Section 37AJ of the Federal Court Act provides as follows:

[s 37AJ reproduced in full]

and at [28]:

… the duration of the order and s 37AJ of the Federal Court Act must be considered. Such authority as we have been able to find suggests that a concluding date or event for a suppression order must be identified (Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 at [24] per Perram J; Oreb v Australian Securities and Investments Commission (2016) 112 ACSR 36; 154 ALD 124; [2016] FCA 321 at [94] per Markovic J).

19    The applicant contended that the discussion in Porter v Dyer in relation to the duration of the suppression orders is obiter as the Court only expressed a provisional view about an order that was to be the subject of further argument. However, the decision of the Full Court, and therefore necessarily of Besanko and Abraham JJ (Lee J having dissented on a different aspect of the suppression orders), resulted in suppression orders being made on 15 August 2022 for different categories of information until 15 August 2032 and 2052. The transcript of the orders being made in open court by Besanko J on behalf of all three judges of the Full Court (in whose names they were formally entered) reveals that the orders were those proposed by the parties to give effect to the judgment in Porter v Dyer. Accordingly, if the decision in Porter v Dyer is to be regarded as obiter, it is only so in a strictly technical sense. The reasoning set out above led directly to suppression orders being made that were deliberately confined in their duration and not in, for example, an “until further order” or similar form. That technical characterisation may mean that Porter v Dyer is not strictly binding upon me, but the conclusion reached should nevertheless be seriously considered and not lightly departed from. As it transpires, I do not depart from the views expressed by Besanko and Abraham JJ.

20    The applicant directed my attention to a significant number of prior single judge decisions in which suppression orders or NPOs have been made “until further order”. However, upon closer examination, none of those cases support the applicant’s argument. The main case relied upon was the decision of Anastassiou J in Clime Capital Limited v UGL Pty Limited (No 2) [2020] FCA 257, a class action case. His Honour referred to authority relied upon by the applicant in that case as follows:

Duration of the order

[25]    Section 37AJ of the Act concerns the duration of an order made under Part VAA:

[Section 37AJ reproduced in full]

[26]    Section 37AJ(2) requires the order to be limited to a period that is ‘reasonably necessary’ to achieve the purpose of preventing prejudice to the proper administration of justice by disclosure of commercial in confidence, privileged and personal information.

[27]    The applicant referred to Steelforce Trading Pty Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science (No 2) [2018] FCAFC 47. In Steelforce a Full Court made orders prohibiting publication of certain sections of an earlier judgment in that proceeding, without fixing an expiry date for the orders. In that case, the non-publication order was made on the basis that it would undermine the integrity of the processes of the Court if the price to be paid for bringing the appeal was the disclosure of the appellant's sensitive trade information.

[28]    The applicant also referred to several judgments of single judges of this Court in the class action settlement context where the confidentiality orders have been made ‘until further order’: Simpson v Thorn Australia Pty Ltd Trading As Radio Rentals (No 5) [2019] FCA 2196 (Lee J); Rushleigh Services Pty Ltd v Forge Group Limited (in Liquidation)(Receivers and Managers Appointed) [2019] FCA 2113 (Murphy J); Perazzoli v Bank SA, a Division of Westpac Banking Corporation Limited [2019] FCA 1707 (Lee J); Kuterba v Sirtex Medical Limited (No 3) [2019] FCA 1374 (Beach J); Gibson v Malaysian Airline System Berhad [2019] FCA 1007 (Perram J); Bradgate (Trustee) v Ashley Services Group Limited (No 2) [2019] FCA 1210 (Middleton J); McKenzie v Cash Converters International Ltd (No 4) [2019] FCA 166; 134 ACSR 327 (Lee J); Hopkins v Macmahon Holdings Ltd [2018] FCA 2061 (Jagot J); Santa Trade Concerns [Pty Limited v Robinson (No 2) [2018] FCA 1491] (Lee J); Hodges v Sandhurst Trustees Limited [2018] FCA 1346 (Lee J); Caason Investments Pty Limited v Cao (No 2) [2018] FCA 527 (Murphy J); Clarke v Sandhurst Trustees Limited (No 2) [2018] FCA 511 (Lee J); Dillon v RBS Group (Australia) Pty Limited (No 2) [2018] FCA 395 (Lee J); Lifeplan Australia Friendly Society Limited v S&P Global Inc (Formerly McGraw-hill Financial, Inc) (A Company Incorporated in New York) [2018] FCA 379 (Lee J); Hardy v Reckitt Benckiser (Australia) Pty Limited (No 3) [2017] FCA 1165 (Nicholas J); Newstart 123 Pty Ltd v Billabong International Ltd [2016] FCA 1194; 343 ALR 662 (Beach J); Hopkins v [AECOM Australia Pty Ltd (No 8) [2016] FCA 1096] (Nicholas J); City of Swan v McGraw-Hill Companies, Inc [2016] FCA 343 (Wigney J); Collin v Aspen Pharmacare Australia Pty Ltd [2013] FCA 1336 (Davies J); and Collin v Aspen Pharmacare Australia Pty Ltd [2013] FCA 952 (Davies J).

[29]    In [Australian Competition and Consumer Commission v Origin Energy Electricity Limited [2015] FCA 278] Katzmann J stated (at [150]):

Section 37AJ states that the suppression or non-publication order operates for the period decided by the Court and specified in the order. As Perram J said in Air New Zealand at [38], this means that the order should operate for a finite period. [The applicant in that case] did not identify any period. But s 37AJ(3) provides that the period during which an order operates may be specified by reference either to a fixed or ascertainable period or by reference to the occurrence of a specified future event. In all the circumstances, I propose to order that the information in the annexure not be disclosed until further order.

[30]    I propose to follow the practice referred to above of limiting the duration of the suppression or non-publication order until further order. In my view, this practice in the class action context strikes the right balance between the protection of the legitimate interests that may be adversely affected by disclosure of the information, while not precluding any person who may be able to demonstrate a countervailing interest from applying to the Court for a variation to the orders.

21    With the assistance of my associate, I have examined all 22 cases referred to by Anastassiou J. None of them contain any discussion about the duration of the orders made or the Court’s power to make an NPO “until further order”. In Steelforce Trading Pty Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science (No 2) [2018] FCAFC 47 (referred to by Anastassiou J at [27] extracted above), in which I was a member of the Full Court along with Perram and Pagone JJ, reasons were provided for a suppression order made earlier on the papers, following the substantive judgment in Steelforce Trading Pty Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science [2018] FCAFC 20; 259 FCR 478, an anti-dumping case.

22    The NPO made by the Full Court in Steelforce was concerned with sensitive trade information, and the reference to that information in five paragraphs of the substantive judgment by Perram J. The orders were made in aid of producing a redacted version of those substantive reasons. The orders were made on the basis that it would undermine the integrity of the processes of this Court if the disclosure of sensitive trade information was the price to be paid for bringing the appeal. Plainly enough, sensitive trade information would have had a finite shelf life and an order could have been made of a lengthy but fixed duration. What matters for present purposes is that Steelforce did not contain any consideration of the Court’s power to make orders of indefinite duration.

23    Similarly, none of the 21 single judge decisions cited by Anastassiou J in Clime at [28] and [29] contain any consideration of the power to make an NPO of indefinite duration. Rather, busy judges have evidently been in situations in which the need for a suppression order or NPO in terms of breadth or coverage is clear, but the question of the power to make the order being confined to a finite duration has not been considered. It has been a question of practice and procedure, rather than power. It seems that this may be the first case in which the power to make an NPO “until further order” has been fully argued. The time to address this question of power has arrived.

24    The predecessor to ss 37AF and 37AG of the Act was s 50, repealed in 2012. It provided:

The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.

25    Section 50 was considered by the High Court in Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 (Hogan v ACC). That case concerned an aspect of litigation arising from an investigation into Mr Paul Hogan by the Australian Crime Commission’s task force on income tax fraud. During the proceeding, Mr Hogan applied for discovery from the Commission in relation to its assertion that legal professional privilege did not attach to certain documents obtained from his advisers because they had been made in furtherance of a crime or fraud. In support of the discovery application, an affidavit by Mr Hogan’s solicitor was filed and read, which included an exhibit containing a schedule produced by the Commission setting out inferences it contended could be drawn from the documents obtained from Mr Hogan’s accountants, as well as various file notes and advices concerning his financial affairs.

26    The primary judge in the Hogan v ACC proceeding, Emmett J, made a number of s 50 orders restricting the publication of various documents, along with other orders, some of which were made until further order: P v Australian Crime Commission [2008] FCA 1336; 250 ALR 66 at [7]. The Commission later abandoned its reliance on the crime or fraud exception to legal professional privilege, but Mr Hogan sought to have the s 50 orders remain in force, in relation to the material and documents identified in a schedule annexed to his solicitor’s affidavit. Two media companies subsequently applied for leave to inspect the documents held by the Sydney registry of this Court in relation to the proceeding and sought the vacation of all orders under s 50 of the Act. Emmett J refused Mr Hogan’s application, vacated the s 50 orders previously made upon the basis that there was no longer any justification for continuing them, and granted leave to the media companies to inspect the documents.

27    Emmett J’s decision was affirmed by a Full Court: Hogan v Australian Crime Commission [2009] FCAFC 71; 177 FCR 205 (Hogan v ACC (Full Court)). In the course of reasons for dismissing a further appeal to the High Court, French CJ, Gummow, Hayne, Heydon and Kiefel JJ described what had occurred before Emmett J by reference to the s 50 order made on 19 May 2008 in respect of the schedule and the advices annexed to Mr Hogan’s solicitor’s affidavit (citations omitted):

[17]    Counsel for Mr Hogan proposed the making of a s 50 order, limited until further order, so that the hearing of his client’s discovery application could proceed without delay. He suggested that, should the ACC bring on its application for vacation of s 50 orders then existing, the Court could “revisit the question of confidentiality in globo”.

[18]    Counsel for the ACC did not oppose the making of that s 50 order. On 19 May 2008 Emmett J made an order under s 50 restricting the publication of the whole of the parts C and E documents, the whole of the documents behind tab A of exhibit DPR-1 and eleven pages behind tab D to the parties and their legal advisers. The order was not expressed as made until further order, but from the transcript preceding the making of the order this appears to have been the intention of the parties. His Honour further ordered Mr Hogan to file any motion for orders under s 50 on or before 9 June 2008.

28    The High Court also considered the construction of s 50 and stated in the course of doing so, at [29]:

It has been assumed, no doubt correctly, that an order made under s 50 of the Federal Court Act may be made until further order and, in any event, may be vacated if the continuation of the order no longer appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth. As a general proposition, a court remains in control of its interlocutory orders and a further order will be appropriate, for example, where new facts and circumstances appear or are discovered, which render unjust the enforcement of the existing order.

29    The applicant before me relied upon the above passage at [29] in Hogan v ACC to suggest that there was a like power to make an NPO until further order under the new regime that replaced s 50, considered below. However, the NPO made in Hogan v ACC without a specific date for its expiry was plainly not an indefinite order in light of the context in which it was made. While the s 50 order made by Emmett J was described by the High Court as not being expressed as having been made until further order, and it was apparently not made for a fixed period of time either, in context it is clear that his Honour’s intent was that it would only apply for a finite period of time. That is because his Honour further ordered Mr Hogan to file any motion for orders under s 50 on or before 9 June 2008.

30    It is therefore clear that the making of the s 50 order in respect of the schedule and advices, while characterised by the High Court as being in effect until further order, was only to be in place from when it was made until the hearing and determination of an application for a s 50 order plainly foreshadowed, which was to be filed by no later than 9 June 2008. Although the order was not expressed to be interim in its operation, as s 37AI of the Act had not yet been introduced, it was very much interim in nature and certainly not for an unconfined period of time as its duration was readily ascertainable by reference to the event of the determination of the further application for those orders to be, in effect, maintained. All s 50 orders made in the proceeding were vacated by Emmett J on delivery of judgement on 29 August 2008 (albeit that that vacation order was also stayed, apparently pending the appeals that ensued).

31    The High Court in Hogan v ACC also said of the word “necessary” in s 50, a word that remains at the centre of the power to grant an NPO in the regime that replaced it in 2012 (citations omitted):

[30]    As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish, that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities”. Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) “the administration of justice” spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.

[31]    It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.

[32]    If it appears to the Federal Court, on the one hand, to be necessary to make a particular order forbidding or restricting the publication of particular evidence or the name of a party or witness, in order to prevent either species of prejudice identified in s 50, or, on the other hand, that that necessity no longer supports the continuation of such an order, then the power of the Federal Court under s 50 is enlivened. The appearance of the requisite necessity (or supervening cessation of it) having been demonstrated, the Court is to implement its conclusion by making or vacating the order. The expression in s 50 “may … make such order” is to be understood in this sense.

[33]    It may tend to distract attention from the particular terms of s 50 to describe the Federal Court as embarking upon the exercise of a “discretion” when entertaining an application under s 50. Once the Court has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the Court nevertheless to refuse to make the order, or to leave in operation the now impugned order. It would, for example, be an odd construction of s 50 which supported the refusal of an order under s 50 notwithstanding that it appeared to the Court to be necessary to make an order to prevent prejudice to the security of the Commonwealth.

32    As developed further below, the requirement that an NPO made under s 50 be necessary could be understood logically to attach not just to the information that the order covers, but also the duration for which it is expressed to apply. Even if that implication was not available under the s 50 regime, it is at least an interpretive consideration for the new regime that followed Hogan v ACC and remains in force.

33    The Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) repealed s 50 of the Act and replaced it with a new Pt VAA of the Act dealing with suppression orders and NPOs. Part VAA introduced an entirely new regime for the making of suppression orders and NPOs, including details and features not previously enacted. Section 50 provides some historical assistance in interpreting Pt VAA in general, but no real assistance in relation to s 37AJ because this was not a feature of s 50.

34    Division 2 of Pt VAA has the following key features:

(a)    a mandatory relevant consideration of a primary objective of the administration of justice (being the most common ground in s 37AG for making an NPO or suppression order) being to safeguard the public interest in open justice, building on the importance of proceedings ordinarily being conducted in open court as provided for by s 17(1): s 37AE;

(b)    an express statement of the power to make an NPO or suppression order: s 37AF;

(c)    a more expansive list of grounds for making an NPO or suppression order, all of which retain the requirement that such an order is “necessary” for the purpose of the ground relied upon: s 37AG;

(d)    express procedures to be followed in making an order: s 37AH;

(e)    a provision for making interim orders, with a requirement that the application be determined on a final basis as a matter of urgency: s 37AI; and

(f)    a provision expressly addressing the duration of orders: s 37AJ.

35    In Mensink v Registrar of the Federal Court of Australia [2022] FCAFC 102; 294 FCR 101, the Full Court (Bromwich, Lee and Thawley JJ) emphasised the limits imposed by Div 2 of Pt VAA of the Act on suppression and like orders, including the limit on their duration as imposed by s 37AJ:

[76]    The orders made by the Court on 5 August 2019, at a duty hearing, provide a stark example of the need to ensure that suppression orders, or orders having the practical effect of suppression orders, in relation to evidence adduced and other material furnished in Court by which orders are obtained, including in closed Court, and the reasons for such orders, be made under and in compliance with the requirements of Div 2 of Pt VAA of the Act, which sets out express limits on:

(a)    the power to make any suppression order: s 37AF;

(b)    the grounds for making such an order: s 37AG; and

(c)    their duration: s 37AJ.

(Emphasis added.)

36    In keeping with the ordinary principles of statutory construction, the scope and meaning of s 37AJ is not to be considered as text alone, but rather in the context of the rest of the regime, and with due regard to the purpose of that regime. These three considerations overlap.

37    As to text, the following points may be made about the terms of s 37AJ:

(a)    Section 37AJ is headed “Duration of orders”. That is the language of limitation by reference to the passage of time. In ordinary parlance, the word “duration” is used to indicate the length of time that something happens or continues.

(b)    Subsection (1) provides that an NPO only operates for the period decided by the Court and specified in the order that is made. Thus, an NPO must have a period specified by the Court in order to operate at all. A person bound by an NPO should know, or be able to ascertain, when they are, and just as importantly, when they are no longer, prohibited from communicating the information covered by the order. A person in some way protected by an NPO should also know or be able to work out when that protection will expire. Subsection (1), if read without regard to its immediate context, might be read as requiring that a fixed period be stated, to provide for this certainty and to limit its operation and protection. However, what matters is that the requirement to specify an operative period is inconsistent with the applicant’s contention that there can be an order which potentially has no such limitation, in the form of an operative period that is at least indefinite, if not practically speaking infinite. Further, it would seem to undermine the effectiveness of subsection (1) if compliance with the requirement to specify an operative period could simply be achieved by adding “until further order” to an NPO.

(c)    Subsection (2) provides that the Court, in deciding the period for which an NPO is to operate, must ensure that it operates no longer than is reasonably necessary to achieve the purpose for which it was made. This reinforces the safeguarding of the public interest in open justice as a mandated primary objective, and builds on the order being necessary in the first place. Duration may be understood to be an element of necessity, or at least a consideration relevant to necessity. Building on subsection (1), if read without regard to subsection (3), subsection (2) might also have suggested that a fixed time period must be stated.

(d)    Subsection (3) then provides that something other than a fixed period is permissible to meet the requirements of subsections (1) and (2), contrary to the requirements that they might otherwise convey if there was no such qualification. It allows the operation of the order to be “specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event”. The applicant contends that “further order” is plainly capable of being described as a “specified future event”. However, the phrase, read as a whole, refers to the occurrence of a specified future event. The online Macquarie Dictionary defines “occurrence” as meaning “the action or fact of occurring” or “something that occurs: an event or incident”. Having regard to these definitions, which reflect ordinary parlance, I conclude that the specified future event to which subsection (3) permits the duration of the order to be tied must be one that can reasonably be expected to actually occur. The concept of a specified future event could not refer to something that is unlikely to ever occur. To rely upon the occurrence of an event which is unlikely to occur does not fix any actual duration of the period for which the NPO will operate. If an NPO is made “until further order” at the conclusion of a proceeding, such as by court approval of a class action settlement, it is difficult, if not impossible, to envisage that ordinarily any further order would ever in fact be made.

(e)    I accept the applicant’s submission that the permissive language of subsection (3) provides non-exhaustive ways in which s 37AJ(1) and (2) may be complied with. Indeed, it allows for the obligations imposed by subsections (1) and (2) to be met by something less than a fixed duration. However, read as a whole, the combined effect of the heading and the three subsections is to ensure that orders have an operative time period that is fixed or ascertainable, or made by reference to the occurrence of a specified future event in the sense of something that can reasonably be expected to happen in the future.

38    A good example of making an order that does not entail stipulating a period that is fixed or presently ascertainable, but rather made by reference to the occurrence of a specified future event, is the approach taken by Kennett J in Australian Securities and Investments Commission v Ferratum Australia Pty Ltd (in liq) [2023] FCA 1043; 169 ACSR 553. In addition to his Honour’s careful consideration of the state of play of the authorities on the power to make suppression orders or NPOs of indefinite duration at [57]-[66], he said at [67]:

In the present case, the non-publication order will no longer be necessary only when the information being protected is no longer current or no longer sufficiently complete to present a risk of identity fraud. That may be not the case until each of the persons concerned dies. The possibility of identity fraud being practised on a deceased person is vanishingly small if not zero. Section 37AJ requires me to ensure a non-publication order “operates for no longer than is reasonably necessary to achieve the purpose for which it is made”. I will therefore define the duration of the order in relation to each consumer by reference to their death. That gives the order a defined end point, and allows me to leave for another day the question whether s 37AJ permits an order having effect “until further order”.

39    As to context, s 37AJ forms part of a regime which was introduced to deliberately and explicitly refine and develop the more limited regime under the former s 50. The core theme of necessity was retained, but additional elements were added, most materially for the present issue by the introduction of an express provision dealing with the need for a duration, s 37AJ. The context for s 37AJ, building on its terms, strongly suggests that ascertaining and specifying the duration of an NPO is an important requirement for such an order to take effect at all. This is reinforced by the purpose of s 37AJ, considered next.

40    As to purpose, the explanatory memorandum to the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 (Cth) (the Bill) said:

[93]    The purpose of section 37AJ is to ensure that the Court considers, and clearly specifies, how long it is appropriate for orders to stay in force, so that orders are not made for durations longer than necessary to achieve their purpose. This is intended to reinforce the principle that suppression and non-publication orders should only be as broad-reaching as is necessary to achieve their aim, consistent with the principles of open justice.

…

[96]    Subsection 37AJ(3) allows for the duration of the order to be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

[97]    In this respect, in Hogan v Australian Crime Commission [2010] HCA 21, the High Court noted at paragraph 29 of the judgment that the power to make a suppression order is interlocutory in nature, and that the power to make interlocutory orders includes the power to later vary or vacate that order if there is a change of facts or circumstances that warrants that course of action. While the Standing Committee of Attorneys-General model bill on suppression and non-publication orders includes provisions concerning the review and appeal of orders, these have not been included in this Bill. That is because the Federal Court’s usual powers and legislative provisions concerning the variation and vacation of, and appeal from, orders will apply, and there is no need to have a separate legislative regime regarding this for suppression and non-publication orders.

41    The history of the regime and thus its purpose can also be traced back to the work of the then Standing Committee of Attorneys-General, which developed model legislation on suppression orders following criticism about the volume and breadth of suppression orders granted by some state courts. This context was made clear in the second reading speech for the Bill, which reiterated the need for courts to make suppression orders “in as narrow terms as necessary to achieve their purpose” and only where “such orders are necessary, consistent with recent High Court jurisprudence”, plainly a reference to Hogan v ACC on the topic of an NPO needing to be necessary.

42    The applicant placed emphasis on the first sentence of [29] in Hogan v ACC, reproduced above at [28], which on its face appears to endorse the Court’s power to make a suppression order or NPO until further order. The applicant contends that, by referring to Hogan in the explanatory memorandum in relation to s 37AJ, Parliament can be taken to have been aware of that statement. In those circumstances, the applicant argues that the absence of any indication in the explanatory memorandum that s 37AJ was intended to limit the Court’s pre-existing power to fix the period for which an order operates should inform its interpretation.

43    I reject that argument. First, the replacement of s 50 with a more comprehensive and more demanding regime means that the only concept addressed by the High Court that has real continued currency is the meaning given to “necessary”, especially as that test remains a key feature of the regime in Pt VAA, Div 2 of the Act, retained in each of the four subparagraphs in s 37AG(1). Secondly, for the reasons given above, Hogan v ACC did not endorse making a s 50 order “until further order” in the sense of being indefinite. In light of the interim nature of the s 50 orders that were under consideration in Hogan v ACC, the High Court’s remarks in [29] could not be used to support the applicant’s argument in the way that he contends.

44    Finally, although some interlocutory judgments might “finally resolve a particular issue which irrevocably affects the interests of a party”, the applicant is correct to submit that NPOs are interlocutory in nature, and it is always open to a party or other interested person to apply for it to be vacated if circumstances change: Hogan v ACC (Full Court) at [2] (Moore J). However, it is not uncommon for an NPO to be made at or near the conclusion of a proceeding, after the substantive issues have been determined or resolved, even if some lesser issues still require resolution, such as the final terms of a settlement, or any amendment of them, or costs. That was what occurred in all of the cases referred to in Clime at [20] above; and it is what happened in Steelforce. In those circumstances, it is highly unlikely that such an NPO would ever be revisited by a party to the proceeding, let alone any further order made. The practical effect is that the NPO is permanent, which cannot be what s 37AJ permits.

45    For this proceeding, that is almost certainly what would have taken place if the NPO made on 15 May 2026 had been made “until further order”. Even if a third party later sought access to information covered by such an NPO, they would be prevented from publishing the information unless they incurred the time and expense of applying to have the otherwise indefinite order set aside. This places the burden of displacing the order on that person, rather than placing a burden on the person who sought and obtained the NPO to justify its continuation or decide to allow it to lapse. The effect of such an NPO is that it would be likely to operate forever. That outcome is the antithesis of the principle of open justice.

Conclusion

46    For the reasons above, I concluded that s 37AF of the Act does not bestow a power to make an indefinite final NPO, such as an NPO which applies “until further order”. A final NPO must apply for a finite duration, in the sense of having an express date upon which it expires, an express or otherwise ascertainable duration for which it applies, or a point in time referable to a particular specified event which can reasonably be expected to occur, such that it can be known, at the time it is made, that the NPO will expire. The language of “until further order” does not meet that description, because that does not entail any basis for concluding, at the time the NPO is made, that any such order will ever be made.

Associate:

Dated:    22 May 2026