Introduction
All notifications need to occur within the framework of the legislation. Legal considerations include:
- which exceptions noted in the Privacy Act 1993 apply
- whether the notification is warranted in light of the legislative authority and if the risk to the community is offset by the notification
- whether there is a name suppression order in place.
Reference: S139(1) of the Criminal Justice Act 1985 refers to automatic name suppression for offenders convicted under s128-142a and 144a of the Crimes Act 1961, unless the court specifically permits publication.
Privacy principles
The Department largely relies on the exceptions outlined in Information Privacy Principles Privacy (IPP) Act 1993 for notification.
The two most likely exceptions to apply for notifications are:
- IPP 11 exception (e)(i) - this section states that personal information may be disclosed if an agency believes on reasonable grounds that disclosure ‘is necessary… to avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution, and punishment of offences’
- IPP 11 exception (d) – this section applies only when the offender consents and details ‘that the disclosure is authorised by the individual concerned’.
Note: Under principle 11 (e)(i), notification must only be made to those who need to know and can do something about the prevention or detection of further offences.
Name suppression orders
Name suppression can either be related to the offender or the victim but is usually in place to protect the victim/s. Certain offences automatically carry suppression orders.
The existence of a suppression order can prevent notification, even if notification would otherwise be permitted under the privacy principles outlined above.
Note: Where a name suppression order is in place and notification appears warranted, the decision to notify must be approved by the general manager. Contact the CPPS operations helpdesk for more information.
What is suppressed
The name and further information (i.e. occupation and age) that is 'likely to lead' to the identification of the offender may be suppressed in cases involving sexual offending.
Determining name suppression orders
Aside from instances where name suppression is automatically granted, whether an order exists can be found by:
- checking with the court of sentence, where it is detailed on the back of court information and in CMS.
- checking in the Judge’s sentencing notes
- checking the criminal history reports.
Legislation involving suppression orders
The legislative references to the types of name suppression are set out in the Criminal Justice Act 1985:
S139(1) - automatic suppression for offender convicted of offences under s128-142A and 144A Crimes Act 1961 (sexual crimes) unless the court specifically permits publication upon application by the offender (only available if the offender is 16 years old or more).
S139(2) - automatic suppression for offenders convicted of offences under ss130-131 Crimes Act (incest), unless the court specifically permits publication upon application by the victim.
S139(2)(a) - states that the suppression of the offender’s details may be lifted if:
(a) the victim (or, if there were 2 or more victims of the offence, each victim) of the offence -
(i) is aged 16 years or older (whether or not he or she was aged 16 years or older when the offence was, or is alleged to have been, committed); and
(ii) applies to the court for such an order; and
(b) the court is satisfied that the victim (or, as the case requires, each victim) of the offence understands the nature and effect of his or her decision to apply to the court for such an order; and
(c) no order or further order has been made under s140 prohibiting the publication of the name, address, or occupation, of the person convicted of the offence, or of any particulars likely to lead to that person's identification.
S140 - court ordered suppression of the name, address, occupation of the offender or any identifying particulars.
