Suppression orders in the spotlight: What employers need to know

Co-authored by Persephone Stuckey-Clarke, Partner, Justin Le Blond, Partner and Sarah Rickard, Senior Associate

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Suppression orders in the spotlight: What employers need to know

Suppression orders in the spotlight: What employers need to know

Co-authored by Persephone Stuckey-Clarke, Partner, Justin Le Blond, Partner and Sarah Rickard, Senior Associate

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February 25, 2025

In short

There has been a recent increase in the use of suppression orders in employment law cases, most recently in Antoinette Lattouf v Australian Broadcasting Corporation.
Late last year, Chief Justice Mortimer defended the use of suppression orders, stressing that the principles of open justice must be balanced with the need to protect litigants with “skin in the game”.
Employers facing litigation should seek early advice on whether to seek suppression orders, especially when aiming to protect sensitive information, ensure employee safety, prevent the public disclosure of damaging allegations, or secure settlements that maintain the confidentiality of the dispute.

What are suppression orders?

The principle of open justice is that court proceedings should be open to the public. However in certain circumstances, courts will issue “suppression orders” to protect sensitive information in a proceeding. A suppression order may encompass a pseudonym order, non-publication order, and/or a closed court order.

Growing use of suppression orders

There has been a rise in the seeking and making of suppression orders in employment law litigation, particularly in superior courts. Suppression orders in this context are typically used to protect commercially sensitive business information, personal reputations, or the integrity of ongoing workplace investigations. In recent cases, however, suppression orders have been granted in a broader range of scenarios.

To protect employee safety

In April 2024, an employer sought confidentiality orders in an unfair dismissal case after firing a worker accused of sexually harassing an apprentice. The company argued that the apprentice's identity should be anonymised for her safety, given the fired worker’s past association with a notorious motorcycle gang. The Fair Work Commission made the requested orders on appeal, emphasising that the correct test in the Commission is whether the suppression orders are "desirable" and do not require “exceptional circumstances”, as required in the Federal Courts.

Similarly, in February 2025, in Antoinette Lattouf v Australian Broadcasting Corporation, the Federal Court of Australia imposed a ten-year non-publication order on court documents to protect the identity (and therefore safety) of people who had complained about the employment of Ms Lattouf to the ABC.

To preserve ASIC’s regulatory functions

In Talib v Australian Securities and Investments Commission, ASIC sought suppression orders over material filed in a general protections claim, on the grounds that its disclosure would reveal its investigative methods and enable companies to evade detection, release market-sensitive information that could mislead the public and affect stock values, and undermine its ability to perform its regulatory functions. Mr Talib opposed the orders, arguing that the information was publicly available and that the concerns were speculative. However, the court ruled in favour of ASIC and issued suppression orders for five years to protect ASIC's functions.

To promote settlement discussions

In June 2024, the Federal Court granted a suppression order over court documents which revealed an employee’s complaints about senior executives at her former employer, on the basis that such disclosure could hinder settlement discussions and prejudice individual respondents who had not yet filed defences.

To prevent disclosure of “colourful” allegations

In January 2025, an employee filed a general protections claim involving what have been described as “colourful” allegations against her former employer. The Federal Court granted a five-year suppression order to maintain the confidentiality of the “colourful” allegations, citing confidentiality as a key motivator for reaching settlement.

The Fair Work Commission has taken a less sympathetic stance towards suppressing colourful allegations. In February 2025, VP Mark Gibson rejected an application by the Australian Nursing & Midwifery Federation to suppress “untrue and scandalous” allegations against it by the United Nurses' Association, commenting that “the Commission will generally require a high threshold to be met before it would prohibit the publication of a document filed in proceedings before it because it contained allegations about an organisation”.

Rethinking open justice

The increased use of suppression orders has sparked criticism from some media outlets who argue that their growing use undermines the public’s right to know (particularly about high-profile disputes involving prominent businesses and senior executives). Yet each of Chief Justices Allsop, Ferguson and Mortimer have defended appropriate use of suppression orders in certain circumstances.

In a 2019 speech, Chief Justice Ferguson reflected on the complexities of open justice. Her Honour cautioned against practices that create “secret justice” but warned that unrestricted openness can lead to unfair consequences: “Justice must be seen to be done”, Her Honour said, “but not at the expense of the individuals involved”.

In 2023, Justice Allsop released a Federal Court Practice Note which requires non-parties, such as media representatives, to seek permission to access certain case files prior to the first court hearing. In the Practice Note, his Honour states that, “[I]t is contrary to the administration of justice for respondents to learn of the case against them through the media”.

In October 2024, in a lecture at Melbourne University, Chief Justice Mortimer emphasised that “open justice is not open slather”. Her Honour said that suppression orders are issued only when “necessary to prevent prejudice to the proper administration of justice”, adding that the threshold for “necessary” was a very high bar, requiring a sense of “unavoidability”, “urgency or acuteness”.

In a pointed reminder to the media, Her Honour cautioned: “Before the courts are criticised for suppressing evidence or documents, let us remember that the law operates on the lives of human beings. In every sensational case…there is a human being who may be personally affected by the suppression decisions that courts make”.

There can also be pragmatic reasons for granting suppression orders. In a January 2025 judgment, Justice Nye Perram observed that, “If suppression and non-publication orders are not made, it would mean that in future cases of this kind, a settlement could not be achieved because the respondent would have no incentive to settle where it was going to be exposed to a blizzard of bad press even if it did”.

Thus the uses and justifications for suppression orders may be broader than previously assumed.

Practical takeaways

Employers facing litigation should seek early advice on whether a suppression order may be appropriate, especially where there is value in protecting sensitive information and employee safety, preventing scandalous allegations from public disclosure, or achieving a settlement agreement that preserves the confidentiality of contested facts.