The 'necessity' test under s 18(1) of the Open Courts Act 2013 (Vic) is not satisfied where the information sought to be suppressed is already widely known and further publication would not materially increase the risk to safety. A non-publication order that would need to carve out exceptions for a Royal Commission to function effectively will be both ineffective and unenforceable, and should not be made. Section 18(1) imports a discretion, at least in relation to s 18(1)(c), permitting the court to refuse an order even if necessity is established, having regard to countervailing considerations including the proper administration of justice. Applications for non-publication orders raise different questions from the substantive proceedings and are not barred by res judicata or Anshun estoppel where circumstances have changed.
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