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Open Courts and Other Acts Amendment Act 2019
No. of 2019
TABLE OF PROVISIONS
Clause Page
Part 1--Preliminary 1
1 Purposes 1
2 Commencement 2
3 Principal Act 2
Part 2--Amendment of Principal Act 3
4 Purposes--Principal Act 3
5 Section 4 substituted 3
6 Other laws restricting or prohibiting publication not affected 3
7 Duration of orders 5
8 Scope of information covered by order and purpose of
suppression order 5
9 New section 14A inserted 5
10 Review of orders 6
11 Duty to publish reasons, judgments or decisions 8
12 Section 28 substituted 9
Part 3--Amendment of other Acts 10
Division 1--Children, Youth and Families Act 2005 10
13 Restriction on publication of proceedings 10
14 New section 534B inserted 11
Division 2--Judicial Proceedings Reports Act 1958 12
15 Prohibition of reporting of names 12
Part 4--Repeal of amending Act 14
16 Repeal of amending Act 14
═════════════
Endnotes 15
1 General information 15
i
Open Courts and Other Acts
Amendment Act 2019
No. of 2019
[Assented to ]
The Parliament of Victoria enacts:
Part 1--Preliminary
1 Purposes
The main purposes of this Act are--
(a) to amend the Open Courts Act 2013 in
relation to the prohibition and restriction of
the publication of information in court and
tribunal proceedings; and
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Open Courts and Other Acts Amendment Act 2019
No. of 2019
Part 1--Preliminary
(b) to make related amendments to the
Children, Youth and Families Act 2005
and the Judicial Proceedings Reports
Act 1958.
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 7 February 2020, it comes into
operation on that day.
3 Principal Act
In this Act, the Open Courts Act 2013 is called
the Principal Act.
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Open Courts and Other Acts Amendment Act 2019
No. of 2019
Part 2--Amendment of Principal Act
Part 2--Amendment of Principal Act
4 Purposes--Principal Act
Before section 1(a) of the Principal Act insert--
"(aa) recognise and promote the principle that
open justice is a fundamental aspect of the
Victorian legal system which--
(i) maintains the integrity and impartiality
of courts and tribunals; and
(ii) strengthens public confidence in the
system of justice;".
5 Section 4 substituted
For section 4 of the Principal Act substitute--
"4 Principle of open justice prevails unless
circumstances require displacement
(1) A court or tribunal is to have regard to
the primacy of the principle of open justice
and the free communication and disclosure
of information in determining whether to
make a suppression order.
(2) A court or tribunal is only to make a
suppression order if satisfied that the
specific circumstances of a case make
it necessary to override or displace the
principle of open justice and the free
communication and disclosure of
information.".
6 Other laws restricting or prohibiting publication
not affected
(1) In section 8(1) of the Principal Act, after
"other Act" insert ", including an Act of the
Commonwealth,".
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Open Courts and Other Acts Amendment Act 2019
No. of 2019
Part 2--Amendment of Principal Act
(2) After section 8(1) of the Principal Act insert--
"(1A) If a provision of an Act referred to in
subsection (2) prohibits or restricts, or
authorises a court or tribunal to prohibit or
restrict, the publication or other disclosure
of information for or in connection with
any proceeding, a court or tribunal must not
make a suppression order that prohibits or
restricts the publication or other disclosure
of information which is already prohibited
or restricted by that other provision.".
(3) In section 8(2) of the Principal Act--
(a) in paragraph (m) for "1998." substitute
"1998;";
(b) after paragraph (m) insert--
"(n) sections 3 and 4 of the Judicial
Proceedings Reports Act 1958;
(o) sections 7 and 48 of the Major Crime
(Investigative Powers) Act 2004;
(p) sections 10A and 13 of the Witness
Protection Act 1991.".
(4) In the note at the foot of section 8(2) of the
Principal Act omit "sections 3 and 4 of the
Judicial Proceedings Reports Act 1958 and".
(5) After section 8(2) of the Principal Act insert--
"(3) A suppression order that prohibits or
restricts the publication or other disclosure
of information which is already prohibited
or restricted by the operation of a provision
made by or under any Act, including an Act
of the Commonwealth, is not invalid merely
because it covers the same prohibition,
restriction or disclosure as the provision
of an Act.".
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Open Courts and Other Acts Amendment Act 2019
No. of 2019
Part 2--Amendment of Principal Act
7 Duration of orders
(1) In the note at the foot of section 12(1) of the
Principal Act, for "(5)" substitute "(3)".
(2) After section 12(3) of the Principal Act insert--
"(3A) Unless a court or tribunal otherwise orders or
the suppression order otherwise specifies, a
suppression order (unless it is sooner varied
or revoked) continues to operate until--
(a) the expiry of any appeal period in
relation to the proceeding to which
the order relates; or
(b) if an appeal is made, the determination
of the appeal.".
8 Scope of information covered by order and purpose
of suppression order
(1) In the heading to section 13 of the Principal Act
omit "and purpose of suppression order".
(2) Section 13(2)(a) of the Principal Act is repealed.
9 New section 14A inserted
After section 14 of the Principal Act insert--
"14A Statement of reasons for making a
suppression order
(1) Subject to subsection (2), a court or tribunal
which makes a suppression order must give
a statement of reasons that sets out--
(a) the reasons for the terms of the order;
and
(b) the reasons for the duration, grounds
and scope of the information covered
by the order.
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Open Courts and Other Acts Amendment Act 2019
No. of 2019
Part 2--Amendment of Principal Act
(2) A court or tribunal is not required to give a
statement of reasons--
(a) for an interim order; or
(b) for an order varying a suppression
order, if the order specifies the purpose
of the variation; or
(c) for an order revoking a suppression
order; or
(d) if giving a statement of reasons
would render the suppression order
ineffective.
(3) A failure to comply with this section does
not affect the validity of a suppression
order.".
10 Review of orders
(1) In section 15(1)(b)(ii) of the Principal Act,
after "made" insert ", including in any criminal
proceeding involving a sexual offence or a family
violence offence, a victim or an alleged victim of
that offence".
(2) In section 15(1)(b)(iv) of the Principal Act, after
"State or" insert "a".
(3) After section 15(1) of the Principal Act insert--
"(1A) A court or tribunal hearing an appeal from a
proceeding in which a suppression order has
been made which has continued to operate
pursuant to section 12(3A) may review the
order--
(a) on the court's or tribunal's own motion;
or
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Open Courts and Other Acts Amendment Act 2019
No. of 2019
Part 2--Amendment of Principal Act
(b) on the application of--
(i) the person who was the applicant
for the order in the proceeding
which is the subject of the appeal;
(ii) any other party to the proceeding
which is the subject of the appeal
in connection with which the
order was made;
(iii) in any criminal proceeding
involving a sexual offence or a
family violence offence, a victim
or an alleged victim of that
offence;
(iv) the Attorney-General;
(v) the Attorney-General of another
State or a Territory or of the
Commonwealth;
(vi) a news media organisation;
(vii) any other person who, in the
opinion of the court or tribunal,
has a sufficient interest in the
question of whether the order
should be confirmed, varied or
revoked.
(1B) Subject to subsection (1C), in reviewing an
order under subsection (1) or (1A), the court
or tribunal must make an order revoking the
suppression order which is the subject of the
review if--
(a) unless the review is on the court's or
tribunal's own motion, the application
for review is made by a party who
is a victim or an alleged victim of
an offence involving a sexual offence
or a family violence offence; and
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Open Courts and Other Acts Amendment Act 2019
No. of 2019
Part 2--Amendment of Principal Act
(b) the court or tribunal is satisfied that
the party--
(i) gives permission to that
disclosure; and
(ii) is 18 years of age or over; and
(c) it is otherwise appropriate in all the
circumstances for the order to be
revoked.
(1C) A court must not revoke a suppression order
under subsection (1B) if the revocation of
the order would result in the disclosure of
the identity of any person against whom a
sexual offence or family violence offence
was allegedly committed and that was dealt
with in the same proceeding--
(a) who does not give permission to that
disclosure; or
(b) who is under 18 years of age; or
(c) if it is not appropriate in all the
circumstances for the identity to
be disclosed.".
(4) In section 15(2) of the Principal Act, after
"subsection (1)(b)" insert "or (1A)(b)".
(5) In section 15(3) of the Principal Act, after
"subsection (1)" insert "or (1A)".
(6) In section 15(3)(b) of the Principal Act, after
"this Act" insert "including, in the case of a
review under subsection (1A), any order that the
court or tribunal which made the suppression
order could have made".
11 Duty to publish reasons, judgments or decisions
In section 16 of the Principal Act, after "this Act"
insert ", other than section 14A,".
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Open Courts and Other Acts Amendment Act 2019
No. of 2019
Part 2--Amendment of Principal Act
12 Section 28 substituted
For section 28 of the Principal Act substitute--
"28 Principle of open justice and hearings in
open court
(1) In determining whether to make any order,
including a closed court order, a court or
tribunal must have regard to the primacy
of the principle of open justice and the
free communication and disclosure of
information which require the hearing of
a proceeding in open court.
(2) A court or tribunal should only make a
closed court order--
(a) that the whole or any part of a
proceeding be heard in closed
court or closed tribunal; or
(b) that only specified persons or classes
of persons may be present during the
whole or any part of a proceeding--
if the specific circumstances of a case
make it necessary to override or displace
the principle of open justice and the
free communication and disclosure of
information which require the hearing
of a proceeding in open court.".
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Open Courts and Other Acts Amendment Act 2019
No. of 2019
Part 3--Amendment of other Acts
Part 3--Amendment of other Acts
Division 1--Children, Youth and
Families Act 2005
13 Restriction on publication of proceedings
(1) In section 534(4) of the Children, Youth and
Families Act 2005, for paragraphs (a) to (h)
substitute--
"(a) the name of the person;
(b) the names of--
(i) any relative of the person; or
(ii) any other person having the care
of the person; or
(iii) in addition to subparagraphs (i) and (ii),
in the case of an Aboriginal person, a
member of the Aboriginal community
of the person;
(c) the name or address of any place of
residence of the person, or the locality
in which the residence is situated;
(d) the name or address of any place of
education, training or employment
attended by the person, or the locality
in which the place is situated.".
(2) For the note at the foot of section 534 of the
Children, Youth and Families Act 2005
substitute--
"Note
See sections 534A and 534B for further exceptions to
section 534(1).".
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Open Courts and Other Acts Amendment Act 2019
No. of 2019
Part 3--Amendment of other Acts
14 New section 534B inserted
After section 534A of the Children, Youth
and Families Act 2005 insert--
"534B Certain publications exempted if
publication is in relation to sentencing
of an adult
(1) For the avoidance of doubt, subject to
subsection (2), section 534(1) does not
apply to the publication of a report of a
proceeding in the Criminal Division of
the Court if--
(a) the publication is made by the
County Court constituted by a judge
or the Supreme Court constituted by
a Judge of the Court for the purpose
of sentencing an adult in the County
Court or Supreme Court for an offence
committed as an adult; and
(b) the adult, as a child, was found guilty
or convicted in that proceeding in the
Criminal Division of the Court.
(2) The County Court constituted by a judge or
the Supreme Court constituted by a Judge
of the Court may publish the information
referred to in subsection (1) if--
(a) the offence for which the adult was
found guilty or convicted as a child is
the same or of sufficient similarity to
the offence for which the adult is being
sentenced; and
(b) the offence for which the adult is being
sentenced is serious; and
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Open Courts and Other Acts Amendment Act 2019
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Part 3--Amendment of other Acts
(c) the Court considers that publication
is appropriate given--
(i) the adult's prospect of
rehabilitation; and
(ii) the number, seriousness, date,
relevance and nature of any
previous findings of guilt or
convictions.
(3) Section 534(1) does not apply to the further
publication by any person of information
that has been published by the County
Court constituted by a judge or the Supreme
Court constituted by a Judge of the Court in
accordance with this section.
(4) Nothing in this section affects the operation
of section 584.".
Division 2--Judicial Proceedings
Reports Act 1958
15 Prohibition of reporting of names
After section 4(1C) of the Judicial Proceedings
Reports Act 1958 insert--
"(1CA) If a proceeding for a sexual offence has
concluded and resulted in the conviction of
the accused for that offence, it is a defence
to a charge under subsection (1A) for the
accused in relation to the alleged offence
under subsection (1A) to prove that the
matter was published or caused to be
published in accordance with the permission
of--
(a) the Supreme Court, the County Court
or the Magistrates' Court granted on an
application by a person or on the court's
own motion; and
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Open Courts and Other Acts Amendment Act 2019
No. of 2019
Part 3--Amendment of other Acts
(b) if the person against whom the sexual
offence was committed is 18 years of
age or over, that person.
(1CB) A court must not make an order giving
permission under subsection (1CA) if the
disclosure would result in the disclosure of
the identity of any person against whom
a sexual offence was committed and that
was dealt with in the same proceeding--
(a) who does not give permission to that
disclosure; or
(b) who is under 18 years of age; or
(c) if it is not appropriate in all the
circumstances for the identity to
be disclosed.".
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Open Courts and Other Acts Amendment Act 2019
No. of 2019
Part 4--Repeal of amending Act
Part 4--Repeal of amending Act
16 Repeal of amending Act
This Act is repealed on 7 February 2021.
Note
The repeal of this Act does not affect the continuing
operation of the amendments made by it (see section 15(1)
of the Interpretation of Legislation Act 1984).
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Open Courts and Other Acts Amendment Act 2019
No. of 2019
Endnotes
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech--
Legislative Assembly:
Legislative Council:
The long title for the Bill for this Act was "A Bill for an Act to amend the
Open Courts Act 2013 in relation to the prohibition and restriction of the
publication of information in court and tribunal proceedings, to make
related amendments to the Children, Youth and Families Act 2005 and
the Judicial Proceedings Reports Act 1958 and for other purposes."
By Authority. Government Printer for the State of Victoria.
15
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