Published by Geoff Harrison | 28 September 2023
The Harman undertaking as set out in Hearne v Street  HCA 36 per Hayne, Heydon and Crennan JJ at  applies:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.
FAMILY LAW ACT 1975 - SECT 121
Restriction on publication of court proceedings
(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(2) A person who, except as permitted by the applicable Rules of Court, publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means (otherwise than by the display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(3) Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:
(a) it contains any particulars of:
(i) the name, title, pseudonym or alias of the person;
(ii) the address of any premises at which the person resides or works, or the locality in which any such premises are situated;
(iii) the physical description or the style of dress of the person;
(iv) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(v) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(vii) any real or personal property in which the person has an interest or with which the person is otherwise associated;
being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;
(b) in the case of a written or televised account or an account by other electronic means--it is accompanied by a picture of the person; or
(c) in the case of a broadcast or televised account or an account by other electronic means--it is spoken in whole or in part by the person and the person's voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.
(4) A reference in subsection (1) or (2) to proceedings shall be construed as including a reference to proceedings commenced before the commencement of section 72 of the Family Law Amendment Act 1983 .
(5) An offence against this section is an indictable offence.
(8) Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions.
(9) The preceding provisions of this section do not apply to or in relation to:
(a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or
(aa) the communication of any pleading, transcript of evidence or other document to authorities of States and Territories that have responsibilities relating to the welfare of children and are prescribed by the regulations for the purposes of this paragraph; or
(b) the communication of any pleading, transcript of evidence or other document to:
(i) a body that is responsible for disciplining members of the legal profession in a State or Territory; or
(ii) persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or
(c) the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or
(d) the publishing of a notice or report in pursuance of the direction of a court; or
(da) the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or
(e) the publishing of any publication bona fide intended primarily for use by the members of any profession, being:
(i) a separate volume or part of a series of law reports; or
(ii) any other publication of a technical character; or
(f) the publication or other dissemination of an account of proceedings or of any part of proceedings:
(i) to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or
(ia) to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or
(ii) to a person who is a student, in connection with the studies of that person; or
(g) publication of accounts of proceedings, where those accounts have been approved by the court.
(10) Applicable Rules of Court made for the purposes of subsection (2) may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.
Note: Powers to make Rules of Court are also contained in sections 109A and 123.
(11) In this section:
(a) an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the Rules of Court; and
(b) a tribunal established by or under a law of the Commonwealth, of a State or of a Territory.
"electronic means" includes:
(a) in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or
(b) in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.