The correct approach to s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) is the 'calculus of risk' approach: if the prospective harm is very severe (such as death or serious injury), a non-publication order may be necessary even if the risk does not rise beyond a mere possibility. The 'probable harm' approach, which requires proof that harm is more probable than not, is incorrect. 'Safety' in s 8(1)(c) includes psychological safety, encompassing aggravation of pre-existing mental conditions and the risk of suicide or self-harm consequent on worsening psychiatric conditions. Once the court is satisfied that a non-publication order is necessary under s 8(1)(c), the order must be made — the power is not discretionary.
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