The Commonwealth Attorney- General has recently amended the Legal Services Directions 2005 (Cth), which apply generally to Commonwealth legal work, to clarify the circumstances in which an agency subject to the Financial Management and Accountability Act 1997 (Cth) (FMA agency) may apply for a suppression order.
The amendment inserts new paragraph 4.9 which provides, in subparagraph (a), that an FMA agency may only apply for a suppression order if it considers suppression of certain evidence or information is "reasonably necessary to protect the Commonwealth". Paragraph 4.9(b) clarifies that a suppression order cannot be sought only to avoid a disclosure or publication "that may be embarrassing to the Commonwealth or its agencies". As set out in Note 2 to paragraph 4.9, the amendment is not intended to prevent an application for a suppression order in respect of evidence that may be embarrassing, but only if there are legitimate Commonwealth interests to protect.
According to the Explanatory Statement, the effect of the amendment will be that any FMA agency seeking suppression orders to avoid embarrassment, in the absence of a legitimate purpose, will be in breach of the Legal Services Directions. Any breaches must be reported to the Office of Legal Services Coordination (OLSC) in the Attorney-General's Department.
According to OLSC, consultation on the amendment was conducted in 2008 and the balance of stakeholder opinion was that there was a public interest and benefit in holding the Commonwealth to a higher standard than other litigants, and that the amendment will assist to ensure that information is only suppressed where necessary and appropriate.
The amendment came into effect on 29 January 2010.
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