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Open Courts and Other Acts
Amendment Bill 2019
Introduction Print
EXPLANATORY MEMORANDUM
General
In 2016, the government asked the Hon Frank Vincent AO QC, a former
judge of the Supreme Court, to conduct the Open Courts Act Review
(the Review) to review Victoria's suppression laws. Mr Vincent delivered
the final report of the Review to the Attorney-General in September 2017.
The Review made 18 recommendations to improve openness and
transparency in Victoria's legal system.
The Open Courts and Other Acts Amendment Bill 2019 (the Bill) is the
first step in implementing the legislative recommendations of the Review.
The Bill implements in full or in part recommendations 1, 2, 3, 6, 9, 13
and 15 of the Review.
The Bill amends the Open Courts Act 2013, in relation to the prohibition
and restriction of the publication of information in court and tribunal
proceedings, and the Children, Youth and Families Act 2005 and the
Judicial Proceedings Act 1958 to make related amendments and for
purposes other than the implementation of the Review's recommendations.
Clause Notes
Part 1--Preliminary
Clause 1 provides that the purposes of the Bill are 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 to make related amendments to the Children, Youth and
Families Act 2005 and the Judicial Proceedings Act 1958.
591017 1 BILL LA INTRODUCTION 19/2/2019
Clause 2 is the commencement provision, which provides for the Bill to
come into operation on a day or days to be proclaimed, or on
7 February 2020 if not proclaimed before that time.
Clause 3 provides that, in the Bill, the Open Courts Act 2013 is called
the Principal Act.
Part 2--Amendment of Principal Act
Clause 4 inserts a new paragraph (aa) in section 1 of the Principal Act
to reflect that the principle of open justice is of fundamental
importance to the Victorian legal system.
Clause 5 substitutes section 4 of the Principal Act with a new section to
emphasise the importance of the principle of open justice and the
free communication and disclosure of information in the making
of suppression orders.
The effect of new section 4(1) is to require a court or tribunal
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. The purpose
of new section 4(2) is to reinforce that open justice and freedom
of communication are the default position and can only be
displaced in specific circumstances where it is necessary to do so.
Clause 6 amends section 8 of the Principal Act in a number of respects.
Subclause (1) clarifies that a reference to any other Act includes
an Act of the Commonwealth for the purpose of a provision
establishing that the Principal Act does not limit or otherwise
affect the operation of relevant provisions in any other Act.
Section 38 of the Interpretation of Legislation Act 1984
defines an Act as an Act passed by the Parliament of Victoria.
Subclause (2) inserts new section 8(1A) which precludes a court
or tribunal from making a suppression order under the Principal
Act in respect of certain information for, or in connection with,
the proceeding if the publication of that information can be or is
prohibited or limited by the operation of a provision referred to in
section 8(2) of the Principal Act.
Subclause (3) adds certain provisions in the Judicial
Proceedings Reports Act 1958, the Major Crime
(Investigative Powers) Act 2004 and the Witness Protection
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Act 1991 to the list of provisions provided in section 8(2) of the
Principal Act.
Subclause (4) omits in the note at the foot of section 8(2) of the
Principal Act the reference to sections 3 and 4 of the Judicial
Proceedings Reports Act 1958 because of the inclusion of these
provisions in section 8(2) by subclause (3).
Subclause (5) inserts a new section 8(3) for the purpose of
ensuring that a suppression order made under the Principal Act
which prohibits or restricts the publication of information
contrary to the statutory requirement in section 8(1A) is not
invalid as a result of covering the same prohibition, restriction
or disclosure.
Clause 7 amends section 12 of the Principal Act.
Subclause (1) corrects a cross-referencing error in the note at the
foot of section 12(1).
Subclause (2) inserts a new subsection (3A) after section 12(3)
of the Principal Act to extend the operation of a suppression
order until the expiry of any appeal period, or, if an appeal is
made, until the determination of the appeal, unless a court or
tribunal otherwise orders or the suppression order otherwise
specifies. The effect of this provision is that the publication of
information derived from a proceeding in respect of which a
suppression order applies is prohibited or restricted in the same
terms in the appeal period or on appeal as it is in the primary
proceeding.
Clause 8 removes the requirement in section 13 of the Principal Act to
state the purpose for making a suppression order in light of the
explicit duty to provide reasons for making the order inserted by
clause 9.
Clause 9 inserts new section 14A in the Principal Act to impose a
requirement on courts and tribunals to give reasons for the
necessity for, and for the terms of, a suppression order made
under the Principal Act. There is no statutory requirement that
the reasons given for making a suppression order need be of
any particular length, provided the reasons are sufficient to
explain and justify the decision. A court or tribunal is not
required to give reasons in the circumstances provided in new
section 14A(2), such as where a court or tribunal makes an
interim order or if giving reasons would render the suppression
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order ineffective. The failure of a court or tribunal to comply
with the requirement in new section 14A(1) to give reasons does
not invalidate the suppression order made.
Clause 10 amends section 15 of the Principal Act.
Subclause (1) amends section 15(1)(b)(ii) to make it clear that a
victim of a sexual or family violence offence in a proceeding in
which a suppression order was made is a person who may apply
to the court or tribunal to review the suppression order, being a
party to the proceeding (section 3 of the Principal Act defines a
party to the proceeding as including the victim).
Subclause (2) amends section 15(1)(b)(iv) to insert "a" after
"State or" so that section 15(1)(b)(iv) relevantly refers to
"the Attorney-General of another State or a Territory".
Subclause (3) inserts new subsections (1A), (1B) and (1C) after
section 15(1). New section 15(1A) enables a court or tribunal
hearing an appeal from a proceeding in which a suppression
order has been made to review a suppression order which has
continued to operate pursuant to new section 12(3A) (see clause
7(2) above). New paragraph (a) of section 15(1A) provides that
an order reviewed pursuant to section 15(1A) may be reviewed
on the court or tribunal's own motion. New paragraph (b) of
section 15(1A) sets out a list of persons who may make an
application for review under section 15(1A). Subparagraphs
(i)-(vii) are substantially similar to subparagraphs (i)-(vi) under
section 15(1)(b) of the Principal Act.
New section 15(1B) sets out, subject to new section 15(1C),
the conditions pursuant to which the court or tribunal must
revoke a suppression order that is the subject of review under
subsection (1) or (1A). A court or tribunal must revoke a
suppression order where, when an application for review is made,
the application is made by a party who is a victim or an alleged
victim of a sexual offence or a family violence offence and the
court or tribunal is satisfied that the victim or alleged victim
gives permission to the disclosure and is an adult. The court or
tribunal is also to be satisfied that it is otherwise appropriate in
all the circumstances for the order to be revoked. The purpose
of this requirement is to ensure that a suppression order is not
revoked where another ground for prohibiting or restricting the
publication of the relevant information exists.
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New section 15(1C) provides that a court must not revoke a
suppression order pursuant to section 15(1B) if to do so would
result in the disclosure of the identity of another victim or alleged
victim in the same proceeding who does not consent to the
disclosure, is under the age of 18 years, or if it is not appropriate
in all the circumstances for that person's identity to be disclosed.
Subclauses (4) and (5) make changes to sections 15(2) and (3)
respectively as a consequence of the insertion of new
section 15(1A).
Subclause (4) makes clear that each of the persons who may
apply to review a suppression order under section 15(1A)(b) is
entitled to appear and be heard by the court or tribunal on the
review of the order.
Subclause (5) clarifies that a court or tribunal, on a review under
section 15(1A), has certain powers, for example the power to
confirm, vary or revoke the suppression order.
Subclause (6) amends section 15(3)(b) to enable a court or
tribunal reviewing a suppression order under subsection (1A) to
make any order under the Principal Act that could be made by the
court or tribunal which made the original suppression order.
Clause 11 amends section 16 of the Principal Act to make clear that the
Principal Act does not limit or otherwise affect the common law
duty of a court or tribunal to publish reasons for judgment or
decisions apart from the requirement to provide a statement of
reasons set out in new section 14A.
Clause 12 substitutes section 28 of the Principal Act with a new section to
emphasise the importance of the principle of open justice and the
free communication and disclosure of information in the making
of closed court orders.
The effect of new section 28(1) is to require a court or tribunal
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. The purpose
of new section 28(2) is to reinforce that open justice and freedom
of communication are the default position and can only be
displaced in specific circumstances where it is necessary to do so.
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Part 3--Amendment of other Acts
Division 1--Children, Youth and Families Act 2005
Clause 13 amends section 534 of the Children, Youth and Families
Act 2005.
Subclause (1) substitutes paragraphs (a) to (h) of section 534(4)
of the Children, Youth and Families Act 2005 with a new list
of particulars. New paragraphs (a) to (d) of section 534(4) set
out, for the purpose of prohibitions in section 534 on publishing
certain information identifying a relevant person in a proceeding
in the Children's Court, a shortened list of particulars deemed
likely to lead to the identification of a person.
Subclause (2) substitutes, for the note at the foot of section 534
of the Children, Youth and Families Act 2005, a note referring
the reader to sections 534A and 534B for further exceptions to
section 534(1).
Clause 14 inserts new section 534B after section 534A of the Children,
Youth and Families Act 2005 to set out certain publications
exempted from the prohibition against publication of a report of
a proceeding in the Children's Court in section 534(1).
New section 534B(1) clarifies that the publication of a report
of a proceeding in the Criminal Division of the Children's Court
recording a child's guilt or conviction is an exception to the
prohibition in section 534(1) where the publication is by the
Supreme Court or the County Court for the purpose of sentencing
that person for an offence committed as an adult.
The purpose of new section 534B(2) is to set out matters of
which a Court should be satisfied before the Court may publish
the information referred to in subsection (1). A Court may
publish information as an exception to section 534(1) if the
offences committed as a child and as an adult are the same or
of sufficient similarity, the offence for which the adult is being
sentenced is serious and publication is appropriate given the
adult's prospect of rehabilitation and the number, seriousness,
date, relevance and nature of any previous findings of guilt or
convictions.
New section 534B(3) allows for the further publication of
information published in the sentencing remarks of the Supreme
or County Court in accordance with section 534B.
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New section 534B(4) makes it clear that nothing in this section
affects the operation of section 584 of the Children, Youth and
Families Act 2005.
Division 2--Judicial Proceedings Reports Act 1958
Clause 15 inserts a new subsection (1CA) in section 4 of the Judicial
Proceedings Reports Act 1958 to create a defence to the
prohibition against the publication of a matter identifying a
person against whom a sexual offence was committed in
section 4(1A).
New section (1CA) makes it a defence for a person to publish
or cause to be published a matter identifying a person against
whom a sexual offence was committed, in accordance with the
permission of the Supreme Court, County Court or Magistrates'
Court granted on a person making a successful application or on
the court's own motion, and the permission of the victim of the
sexual offence provided they are over the age of 18 years.
New section (1CB) prevents a court from granting permission
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 who does not give
permission to that disclosure or who is a child, or if the disclosure
is not appropriate in all the circumstances.
Part 4--Repeal of amending Act
Clause 16 provides that the Bill is repealed on 7 February 2021.
The repeal of the Bill 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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