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Open Courts Bill 2013
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill.
Clause 2 provides that the Bill will come into operation on a day or
days to be proclaimed, and sets a default commencement date of
1 December 2013.
Clause 3 defines the terms used in the Bill. Two of the key terms are--
suppression order which is defined to mean a proceeding
suppression order, an interim order or an order made under
clause 23 or 24 of the Bill, and an order made in the exercise of
the inherent jurisdiction of the Supreme Court to prohibit or
restrict the publication or other disclosure of information in
connection with any proceeding.
proceeding suppression order which means an order made under
clause 15 of the Bill. A proceeding suppression order empowers
a court or tribunal to prohibit or restrict the publication or other
disclosure of a report of a proceeding or any information derived
from a proceeding.
Clause 4 provides that in determining whether to make an order to prohibit
or restrict the disclosure of information, a court or tribunal must
have regard to a presumption in favour of disclosure. This means
that in determining an application for a suppression order,
including an order under Part 3 or 4 of the Bill or an order made
by the Supreme Court in the exercise of its inherent jurisdiction,
a court or tribunal must have regard to this presumption.
Where the order being considered would prohibit or restrict the
disclosure of a report of part or all of a proceeding or of any
571222 1 BILL LA INTRODUCTION 26/6/2013
information derived from a proceeding, the presumption
strengthens and promotes the principle of open justice. If the
order being considered would prohibit or restrict the disclosure of
other information not derived from a proceeding, the presumption
strengthens and promotes the principle of free communication of
information. (This distinction was made clear in News Digital
Media Pty Ltd v Mokbel (2010) 30 VR 248.)
Clause 5 abrogates any existing common law power to make an order
prohibiting or restricting the publication of information in
connection with any proceeding and provides that there is no
implied jurisdiction for a court or tribunal to prohibit or restrict
the publication of information in connection with any proceeding.
This provision does not affect the inherent jurisdiction of the
Supreme Court.
Clause 6 preserves any jurisdiction or common law powers that a court or
tribunal has to deal with a contempt of the court or tribunal.
Clause 7 provides that the Bill does not affect any order or decision by a
court or tribunal regarding the admission of evidence or requiring
the disclosure of information to a court or tribunal or party to a
proceeding in the course of or in relation to a proceeding.
For example, orders and decisions relating to whether to compel
disclosure of information in the course of or in relation to a
proceeding, including by discovery of documents, interrogatories
or subpoena, are not affected by the Bill and are not subject to the
presumption in favour of disclosure in clause 4. In addition, rules
of law restricting the permitted use and further disclosure of such
compulsorily disclosed information (such as the rule considered
in British American Tobacco Australia Services Ltd v Cowell
(2003) 8 VR 571) are unaffected by the Bill, including the
presumption in clause 4. An order of a court or tribunal which
restricts the way a person, event or thing may be referred to in
open court (such as a requirement to use a pseudonym for a
person) or an order prohibiting or restricting access to the court
file will not be affected by the Bill.
Clause 8 preserves the operation of any provision made under any other
Act that prohibits or restricts, or authorises a court or tribunal to
prohibit or restrict, the publication or disclosure of information
for or in connection with any proceeding. Similarly, a provision
under any other Act that requires or authorises a court or tribunal
to close proceedings to the public will not be limited.
2
It is not intended to affect the specific non-disclosure, non-
publication and closed court powers provided by other Acts.
This means that statutory provisions that restrict the publication
of information, such as the prohibition on the reporting of any
particulars likely to lead to the identification of a person against
whom a sexual offence is alleged under section 4 of the Judicial
Proceedings Reports Act 1958, are not limited or otherwise
affected by the Bill. The discretionary powers of a court or
tribunal to order a restriction on the publication or disclosure of
information, such as the power provided in section 75 of the
Crimes (Mental Impairment and Unfitness to be Tried) Act
1997 in relation to a proceeding under that Act, are also not
affected by the Bill.
A statutory prohibition on proceedings being conducted in open
court, such as section 73 of the Criminal Organisations Control
Act 2012, is not affected by the Bill. The discretionary power for
a court or tribunal to conduct proceedings in closed court, such as
that in section 68 of the Family Violence Protection Act 2008,
will not be affected by the Bill.
Clause 8(2) lists some of the relevant discretionary suppression,
non-publication and closed court provisions that will not be
limited by the Bill, for the avoidance of doubt. This includes
some of the specific suppression provisions that apply under
particular Acts and is not an exhaustive list. Acts that provide for
the suppression of material or the hearing of proceedings in
closed court by operation of statute, rather than a court order, are
not included in this list as they are not affected by the Bill under
clause 8(1).
PART 2--GENERAL PROVISIONS FOR SUPPRESSION
ORDERS
Clause 9 provides that Part 2 of the Bill applies to any suppression order,
as defined in clause 3. This has the effect of applying the
requirements in Part 2 to the making of any suppression order
under the Bill or in the exercise of the inherent jurisdiction of the
Supreme Court.
Clause 10 imposes restrictions on the length for which an order may be
made to operate.
Subclause (1) requires a court or tribunal to determine the period
of a suppression order (other than an interim order) in accordance
with clause 10 and specify this in the order.
3
Subclause (2) provides that the period for which a suppression
order operates may be specified by reference to a fixed or
ascertainable period, or by reference to the occurrence of a
specified future event. For example, a specified future event may
include the conclusion of proceedings, the exhaustion of appeal
rights or the death of an individual involved in proceedings if
appropriate.
Subclause (3) provides that if the period for which a suppression
order operates is fixed by reference to the occurrence of a
specified future event under subclause (2) that may not occur, the
order must also specify an expiry period no longer than 5 years
after the date on which the order was made. This ensures that
such orders will not remain operative indefinitely if the specified
event does not occur. For example, an order that is expressed to
operate "until further order" uses a specified future event
(further order) that may not occur. Such an order must also
specify an expiry period of not more than 5 years from the date of
the order. The order would terminate on the earlier of (a) the
occurrence of the specified event (a further order) and (b) the end
of the stated expiration period.
Subclause (4) provides that a court or tribunal must ensure that a
non-disclosure order operates for no longer than is reasonably
necessary to achieve the purpose for which it is made.
This reinforces the interest in promoting open justice and free
communication of information.
Clause 11 provides that a suppression order must specify the information to
which the order applies. This information must be specified with
sufficient particularity to ensure that the order is limited to
achieving the purpose for which it is made and that the terms and
purpose of the order are apparent. In the case of a proceeding
suppression order made under clause 15 of the Bill or a broad
suppression order made under clause 24, the order must specify
the grounds on which it is made.
In Hogan v Hinch (2011) 243 CLR 506 the High Court noted that
it was an undesirable practice for courts to make suppression
orders that did no more than restate the terms of the statutory
provision empowering the court to make such orders.
4
Clause 12 provides that in making a suppression order, other than an interim
order, a court or tribunal must be satisfied on the basis of
evidence or sufficient credible information that is satisfactory to
the court or tribunal that the grounds for the making of the order
are established.
Clause 13 establishes a procedure for suppression orders to be reviewed
and confirmed, varied or revoked. A court or tribunal may
review an order on its own motion or the application of the
applicant for the order, a party to the proceedings concerned, the
Attorney-General, the Attorney-General of another State or
Territory or the Commonwealth, a news media organisation or
any other person who the court or tribunal considers to have a
sufficient interest in the review of the order. This reflects the
persons that may appear on an application for a proceedings
suppression order under Part 2 of the Bill.
Clause 14 provides that nothing in the Act affects any existing duty of a
court or tribunal to publish reasons, judgments or decisions,
subject to the court or tribunal editing such reasons to the extent
necessary to comply with any order of a court or tribunal or
statutory provision restricting the publication of information.
In Wainohu v New South Wales (2011) 243 CLR 181 the High
Court held that the giving of reasons for final decisions and
important interlocutory rulings is central to the judicial function.
In David Syme & Co Ltd v General Motors-Holden's Ltd [1984]
2 NSWLR 294 the New South Wales Court of Appeal held that
the fact that proceedings may be heard in camera does not justify
the judgment or orders being withheld from disclosure and that
courts should prepare an appropriately formulated statement of
reasons which conveys an adequate account of the litigation and
the reasons underlying the orders, while ensuring that the
confidentiality of information is maintained as necessary.
PART 3--PROCEEDING SUPPRESSION ORDERS
Clause 15 provides the power for a court or tribunal to make a proceeding
suppression order. A court or tribunal may make a proceeding
suppression order on the basis of any ground specified in
clause 16 to prohibit or restrict the publication or disclosure of
the whole or any part of a report of a proceeding, or any
information derived from a proceeding.
5
Clause 16 sets out the grounds on which a proceeding suppression order
may be made. Presently, the individual court and tribunal Acts
provide specific powers and grounds for the making of
suppression or non-publication orders. These provisions are
located in the Magistrates' Court Act 1989 (section 126), the
County Court Act 1958 (sections 80 and 80AA), the Supreme
Court Act 1986 (sections 18 and 19) and the Victorian Civil
and Administrative Tribunal Act 1998 (section 101).
These existing provisions are repealed by Part 8 of the Bill and
are consolidated, with some changes, in clause 16.
Clause 16(1) sets out the grounds on which such an order may be
made by a court or tribunal, other than the Coroners Court.
An order may be made under clauses 16(1)(a) to (e) if the court
or tribunal is satisfied that the order is necessary--
· to prevent prejudice to the proper administration of
justice;
· to prevent prejudice to national or international security;
· to protect the safety of any person;
· to avoid undue distress or embarrassment to a party to
or witness in criminal proceedings involving a sexual
offence or family violence;
· to avoid causing undue distress or embarrassment to a
child who is a witness in any criminal proceeding.
These grounds substantially reflect the existing grounds for
making suppression and non-publication orders in the individual
courts and tribunal Acts referred to above. However, additional
grounds are provided to make an order where necessary to avoid
undue distress or embarrassment to a party to or witness in
criminal proceedings involving family violence, or to avoid
causing undue distress or embarrassment to a child who is a
witness in a criminal proceeding.
Clause 16(1)(f) provides for additional grounds on which VCAT
can make a proceedings suppression order. These are where it is
necessary to do so to avoid the publication of confidential
information that is the subject of a certificate under section 53
or 54 of the Victorian Civil and Administrative Tribunals Act
1998, or for any other reason in the interests of justice.
6
Clause 16(2) enables the Coroners Court to make a proceeding
suppression order in an investigation or inquest into a death or
fire if the Coroner reasonably believes that an order is necessary
because disclosure would be contrary to the public interest or
would be likely to prejudice a fair trial.
This power reflects the existing power for making a non-
publication order under the Coroners Act 2008 (section 73(2)).
The existing power in section 73(2) is repealed by clause 37(2).
Clause 17 provides for the procedure for the making of a proceeding
suppression order.
Subclause (1) provides that a court or tribunal may make a
proceeding suppression order on its own motion or on the
application of a party to the proceedings or a person that the court
or tribunal considers has a sufficient interest in the making of the
order.
Subclause (2) specifies the persons who may appear and be heard
by the court or tribunal on an application for a proceeding
suppression order. This enables the applicant for the order, a
party to the proceedings concerned, the Attorney-General, the
Attorney-General of another State or Territory or the
Commonwealth, a news media organisation or any other person
who the court or tribunal considers to have a sufficient interest in
the making of the order to be heard on an application for an
order.
Subclause (3) provides that subject to any rules of the court, or
unless otherwise ordered, an applicant for a proceeding
suppression order is not required to give notice of the application
to a person referred to in subclause (2).
Subclause (4) provides that a proceeding suppression order may
be made at any time during a proceeding or after a proceeding
has concluded.
Subclause (5) provides that a proceeding suppression order may
be made subject any exceptions or conditions that the court or
tribunal thinks fit. These exceptions or conditions must be
specified in the order.
Clause 18 subclause (1) provides for the making of an interim proceeding
suppression order as an interlocutory order before the
determination of the substantive application.
7
Subclause (2) provides that the applicant for the order, a party to
the proceedings concerned, the Attorney-General, the Attorney-
General of another State or Territory or the Commonwealth, a
news media organisation or any other person who the court or
tribunal considers to have a sufficient interest in the making of
the order may appear and be heard by the court on the application
for the interim order. This reflects the persons who may appear
on an application for a substantive order under clause 17.
Subclause (3) provides that subject to any rules of the court, or
unless otherwise ordered, an applicant for an interim order is not
required to give notice of the application to a person referred to
in subclause (2).
Subclause (4) enables an interim order to be made without
determining the merits of the application under clause 16.
Subclause (5) provides that if an interim order is made, it will
have effect until the substantive application is determined, or
until the interim order is revoked by the court or tribunal.
Subclause (6) requires that if a court or tribunal makes an interim
order, the substantive application must be determined as a matter
of urgency.
Clause 19 provides that a proceeding suppression order or interim order
applies only to the disclosure or publication of information in a
place where the order applies as specified in the order.
It may be specified that an order has extra-territorial effect.
A proceeding suppression order or interim order may be made to
apply anywhere in Australia, but must not be made to apply
outside Victoria unless the court or tribunal is satisfied that
having the order apply outside Victoria is necessary for achieving
the purpose for which the order is made.
Clause 20 provides for exceptions to the application of proceeding
suppression orders or interim orders for conducting proceedings,
enforcement, or for informing persons of the existence of an
order.
This ensures that a person is not prevented from disclosing
information, despite the existence of a proceeding suppression
order or interim order, if that disclosure is in the course of
performing functions or duties or exercising powers in a public
official capacity.
8
Such a disclosure must be in connection with the conduct of
proceedings or the recovery or enforcement of any penalty
imposed in proceedings, or must comply with a procedure for
informing persons of the existence and content of a proceeding
suppression order or interim order made by the court or tribunal.
This includes the publication of information through electronic
transmission from the courts to inform a person of the existence
of an order.
Clause 21 provides that it is an offence to contravene a proceeding
suppression order or an interim order.
Subclause (1) provides that a person must not engage in conduct
that constitutes a contravention of a proceeding suppression order
or an interim order if that person knows that the order is in force,
or is reckless as to whether the order is in force.
A maximum penalty of level 6 imprisonment or a fine of
600 penalty units, or both, will apply in the case of a
contravention by an individual. In the case of a body corporate, a
maximum penalty of 3000 penalty units will apply.
Subclause (2) imposes an evidentiary presumption on persons
who have been electronically transmitted notice of an order.
In the absence of evidence to the contrary, a person is taken to be
aware that a proceeding suppression order or an interim order is
in force if a court or tribunal has electronically transmitted notice
of the order to the person. This means that if a person or
organisation is on the electronic distribution list of a court or
tribunal and is transmitted notice of an order, the person or
organisation will be taken to be aware of the existence of the
order unless they demonstrate that they were not aware of the
order. The onus would then shift to the prosecution to prove that
the person or organisation had knowledge of, or was reckless as
to, the existence of the order.
PART 4--BROAD SUPPRESSION ORDERS
Clause 22 provides that an order must not be made under Part 4 in respect
of any information which could be the subject of a proceeding
suppression order. This means that an order made under
clause 23 or 24 can only be made in respect of information that
the court does not have the power to prohibit or restrict from
disclosure under clause 15. For example an order under
9
clause 23 or 24 might relate to information that is not derived
from proceedings but could prejudice the fair conduct of a
criminal proceeding, such as information about the identity or
character or prior convictions of an accused person.
Clause 23 provides that the County Court may grant an injunction in a
criminal proceeding restraining a person from publishing any
material or doing any other thing to ensure the fair and proper
conduct of the proceeding. An injunction may be interlocutory or
final and may be made unconditionally or on specified terms and
conditions. This provision replaces the fair and proper conduct
power that presently exists in section 36A(3) and (4) of the
County Court Act 1958. Contravention of this provision would
be subject to the court's power to punish a contempt of court.
Clause 24 provides that the Magistrates' Court may make an order
prohibiting the publication of specified material, or any material
of a specified kind, relevant to a proceeding if it is necessary to
do so in order not to prejudice the administration of justice or
endanger the safety of any person. This provision replaces the
existing power of the Magistrates' Court in section 126(2)(d) of
the Magistrates' Court Act 1989. Unlike section 126(2)(d)
orders, an order under clause 24 can only be made on the
2 grounds specified and can only apply to information which is
not a report of proceedings and is not derived from proceedings.
An order can be made to apply anywhere in Australia if this is
necessary to achieve the purpose for which it is made. Clause 24
provides for exceptions for specified disclosures made in a public
official capacity.
Clause 25 provides that it is an offence to contravene an order made under
clause 24(1).
A person must not engage in conduct that constitutes a
contravention of such an order if that person knows that the order
is in force, or is reckless as to whether the order is in force.
A maximum penalty of level 6 imprisonment or a fine of
600 penalty units, or both, will apply in the case of a
contravention by an individual. In the case of a body corporate,
a maximum penalty of 3000 penalty units will apply.
Clause 25 imposes an evidentiary presumption on persons who
have been electronically transmitted notice of an order. In the
absence of evidence to the contrary, a person is taken to be aware
10
that an order is in force if any court or tribunal has electronically
transmitted notice of the order to the person. This means that if a
person or organisation is on the electronic distribution list of a
court or tribunal and is transmitted notice of an order, the person
or organisation is taken to be aware of the existence of the order
unless they demonstrate that they were not aware of the order.
The onus would then shift to the prosecution to prove that the
person or organisation had knowledge of, or was reckless as to,
the existence of the order.
PART 5--CLOSED COURT ORDERS
Clause 26 provides that to strengthen and promote the principle of open
justice, in determining whether to make any order that the whole
or part of a proceeding be heard in closed court or tribunal, or
that only specified persons or classes of persons may be present
during the whole or part of a proceeding, the court or tribunal
must have regard to a presumption in favour of hearing a
proceeding in open court. This means that in determining an
application for a closed court order under Part 5 of the Bill, a
court or tribunal must have regard to this presumption.
Clause 27 provides that, subject to clause 26, nothing in Part 5 limits any
power of a court or tribunal to regulate its proceedings.
Clause 28 empowers a court or tribunal to make a closed court order.
Presently, the individual court and tribunal Acts provide specific
powers and grounds for making an order to close proceedings to
the public. These provisions are located in the Magistrates'
Court Act 1989 (section 126), the County Court Act 1958
(sections 80 and 80AA), the Supreme Court Act 1986
(sections 18 and 19), and the Victorian Civil and
Administrative Tribunal Act 1998 (section 101).
These existing provisions will be repealed and consolidated,
with some minor changes, in clause 28.
Subclause (2) sets out the grounds on which a court or tribunal,
other than the Coroners Court, may make a closed court order.
These mirror the grounds for making a proceedings suppression
order under clause 16. An order may be made under clause
28(2)(a) to (e) if the court or tribunal is satisfied that the order is
necessary--
11
· to prevent prejudice to the proper administration of
justice;
· to prevent prejudice to national or international security;
· to protect the safety of any person;
· to avoid undue distress or embarrassment to a party to
or witness in criminal proceedings involving a sexual
offence or family violence;
· to avoid causing undue distress or embarrassment to a
child who is a witness in any criminal proceeding.
These grounds substantially reflect the existing grounds on which
closed court orders may be made by the courts and VCAT.
However, clause 28(2) adds additional grounds on which closed
court orders may be made, namely where such an order is
necessary to avoid undue distress or embarrassment to a party to
or witness in criminal proceedings involving family violence, or
to avoid causing undue distress or embarrassment to a child who
is a witness in a criminal proceeding.
Clause 28(2)(f) provides for additional grounds on which VCAT
can make a closed court order. These are where it is necessary to
do so to avoid the publication of confidential information that is
the subject of a certificate under section 53 or 54 of the
Victorian Civil and Administrative Tribunal Act 1998, or for
any other reason in the interests of justice.
Clause 28(3) provides that the Coroners Court may make a
closed court order if the coroner constituting the Coroners Court
reasonably believes that an order is necessary in the public
interest. The coroner must have regard to the matters specified in
Part 2 of the Coroners Act 2008 in considering whether to make
the order. This reflects the existing powers in the Coroners Act
2008, which provide that a coroner is empowered to make a
closed court order where they believe it is necessary for the
purposes of an inquest under section 55(1)(a) of that Act.
Clause 29 imposes a requirement to post notice of a closed court order on
the door of a court or tribunal or in another conspicuous place at
the court or tribunal. This is intended to provide clear notice to
persons that the hearing is closed to the public.
12
Clause 30 provides that it is an offence to contravene a closed court order if
a person knows that the order is in force, or is reckless as to
whether an order is in force.
A maximum penalty of level 6 imprisonment or a fine of
600 penalty units, or both, will apply in the case of a
contravention by an individual. In the case of a body corporate,
a maximum penalty of 3000 penalty units will apply.
PART 6--GENERAL
Clause 31 provides for a power to make regulations for any matter or thing
required or permitted by the Bill to be prescribed or necessary to
be prescribed to give effect to the Bill.
This includes the making of regulations that confer a duty on a
specified person or body, and regulations that provide for the
exemption of persons or things from any of the provisions of the
regulations.
PART 7--TRANSITIONAL PROVISIONS
Clause 32 provides for the transitional arrangements for the Bill.
The transitional arrangements are complemented by savings
provisions inserted by Part 8.
The Bill applies in relation to a proceeding that has commenced
or been transferred to a court or tribunal after the commencement
of clause 15, which provides for the making of an application for
a proceeding suppression order, or to a proceeding that has
commenced but not been heard and determined by the court or
tribunal.
Clause 33 provides that a court may make any order it considers appropriate
to remedy a transitional difficulty in a proceeding. Such an order
may be made on application of a party to a proceeding or on the
court's or tribunal's own motion and will have effect despite any
contrary provision under any other Act, other than the Charter of
Human Rights and Responsibilities Act 2006.
Clause 34 provides that the Governor in Council may make regulations
containing provisions of a transitional nature. These include
matters of an application or savings nature, that arise as a result
of the enactment of this Bill, including the repeals and
amendments which are made by this Bill.
13
Regulations made pursuant to this clause would have effect
despite anything to the contrary in any Act, other than the Bill or
the Charter of Human Rights and Responsibilities Act 2006 or
in any subordinate instrument.
This power will sunset two years after this clause comes into
operation.
PART 8--CONSEQUENTIAL AMENDMENTS
Part 8 provides for a number of consequential amendments, including
consequential repeals of the powers for the making of suppression,
non-publication and closed court orders in the existing court and tribunal
Acts. Savings provisions are also provided.
Division 1--Charter of Human Rights and Responsibilities Act
2006
Clause 35 substitutes a note at the foot of section 24(2) of the Charter of
Human Rights and Responsibilities Act 2006 to substitute a
reference to the closed court order provisions of the Bill in place
of the existing note that refers to existing closed court order
provisions of the relevant court Acts.
Division 2--Coroners Act 2008
Clause 36 repeals section 55(2)(d) of the Coroners Act 2008 that presently
empowers a coroner to exclude a person or a class of persons
from an inquest and inserts a note referring readers to the closed
court order provisions of the Bill.
Section 55(2)(d) is being repealed as a consequence of
clause 28(3), which replaces the existing power and grounds on
which the Coroners Court can make a closed court order.
Clause 37 inserts a note at the foot of section 73(1) and repeals
section 73(2) and (3) of the Coroners Act 2008, which
presently provide for the making of non-publication orders and
impose a penalty for breach of a non-publication order, and
inserts a note referring the user to the proceeding suppression
order power of the Coroners Court in the Bill.
These subsections are being repealed as a consequence of
clauses 15 and 16(2), which replace the existing power and
grounds on which the Coroners Court can make a suppression
order.
14
Clause 38 amends section 105(1) of the Coroners Act 2008, which
provides for the making of rules of the Coroners Court, by
inserting a power to make rules made with respect to the
collection, use, disclosure and transfer of information as required
or permitted by the Bill. Clause 38 also omits a reference to
section 73(2) of the Coroners Act 2008, which is repealed by
clause 37, from section 105(1)(jb).
Clause 39 repeals section 116(1)(e) of the Coroners Act 2008, which
requires a register of non-publication orders made under that Act
to be kept. This provision is made redundant by the Bill.
Clause 40 inserts new clause 22 into Schedule 1 to the Coroners Act 2008
to provide for savings provisions due to the repeal of existing
powers to make orders under that Act. An order to exclude a
person or a class of persons from an inquest made under
section 55(2)(d) of the Coroners Act 2008 and in force at the
date that section is repealed will continue to apply. The non-
publication order provisions in section 73(2) and (3) of the
Coroners Act 2008 will continue to apply to a proceeding
commenced to be heard, but not determined, by the Coroners
Court prior to the repeal of those provisions.
Division 3--County Court Act 1958
Clause 41 repeals section 36A(3), (4) and (5) of the County Court Act
1958 as a consequence of clause 23 of the Bill.
Clause 42 inserts new section 78(1)(da) of the County Court Act 1958 to
enable the court to make court rules relating to the Bill.
Clause 43 repeals sections 80 and 80AA of the County Court Act 1958,
which provide for the power and grounds for closing proceedings
to the public and restricting the publication of information.
These sections are being repealed as a consequence of clauses 15,
16 and 28, which replace the existing power and grounds on
which the County Court can made a suppression, non-publication
or closed court order.
Clause 44 inserts a note at the foot of section 80A of the County Court Act
1958 referring the reader to the Bill for provisions relating to
suppression and closed court orders.
15
Clause 45 inserts new section 98 in the County Court Act 1958 to provide
for savings provisions due to the repeal by the Bill of existing
powers in that Act. The power and grounds for closing
proceedings to the public or restricting the publication of
information in sections 80 and 80AA of the County Court Act
1958 will continue to apply to a proceeding commenced to be
heard, but not determined, by the County Court prior to the repeal
of those provisions. Existing orders made under section 36A(3)
or section 80 of the County Court Act 1958 and in force at the
date those sections are repealed will continue to apply.
Division 4--Magistrates' Court Act 1989
Clause 46 inserts new section 16(1)(ca) of the Magistrates' Court Act
1989 to enable the court to make court rules relating to the Bill.
Clause 47 consequentially amends section 18(3) of the Magistrates' Court
Act 1989 to refer to the power to restrict or prohibit the
disclosure of information under the Bill.
Clause 48 inserts a note referring readers to the Bill at the foot of
section 125(1) of the Magistrates' Court Act 1989.
Clause 49 repeals the power and grounds to close proceedings to the public
and restrict the publication of information in section 126 of the
Magistrates' Court Act 1989. This section is being repealed as
a consequence of clauses 15, 16, 24 and 28, which replace the
existing powers for the Magistrates' Court to make suppression,
non-publication and closed court orders.
Clause 50 inserts new clause 52 in Schedule 8 to the Magistrates' Court
Act 1989 to provide for savings provisions. The power and
grounds for closing proceedings to the public or restricting the
publication of information in section 126 of the Magistrates'
Court Act 1989 will continue to apply to a proceeding
commenced to be heard, but not determined, by the Magistrates'
Court prior to the repeal of those provisions. An order to close
proceedings to the public or prohibit the publication of
information made under section 126 of the Magistrates' Court
Act 1958 and in force at the date that section is repealed, will
continue to apply subject to that order being set aside or varied.
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Division 5--Private Security Act 2004
Clause 51 consequentially amends section 150E(3) of the Private Security
Act 2004 to omit a reference to the closed tribunal powers under
section 101 of the Victorian Civil and Administrative
Tribunal Act 1998 and to insert reference to the Bill.
Division 6--Supreme Court Act 1986
Clause 52 repeals the power and grounds on which a closed court order or a
non-publication order can be made under sections 18 and 19 of
the Supreme Court Act 1986. These sections are being repealed
as a consequence of clauses 15, 16 and 28, which replace the
existing power and grounds on which the Supreme Court can
make a suppression, non-publication or closed court order with
powers to make a suppression order or a closed court order.
Clause 53 inserts a note at the foot of section 20 of the Supreme Court Act
1986 referring the reader to the Bill for provisions governing
suppression and closed court orders generally in relation to the
Court.
Clause 54 inserts the power to make rules of the court with relation to the
Bill as section 25(1)(af) of the Supreme Court Act 1986.
Clause 55 inserts new section 152 of the Supreme Court Act 1986 to
provide for savings provisions. The power and grounds for
closing proceedings to the public or restricting the publication of
information in sections 18 and 19 of the Supreme Court Act
1986 will continue to apply to a proceeding commenced to be
heard, but not determined, by the Supreme Court prior to the
repeal of those provisions. An order to close proceedings to the
public or restrict the publication of information made under
section 18 of the Supreme Court Act 1986 and in force at the
date that section is repealed, will continue to apply.
Division 7--Victorian Civil and Administrative Tribunal Act 1998
Clause 56 inserts a reference to closed court orders under the Bill in relation
to the secrecy obligations of section 34 of the Victorian Civil
and Administrative Tribunal Act 1998.
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Clause 57 inserts a note at the foot of section 100 of the Victorian Civil
and Administrative Tribunal Act 1998 referring readers to the
Bill for provisions governing suppression and closed tribunal
orders in relation to VCAT.
Clause 58 repeals section 101 of the Victorian Civil and Administrative
Tribunal Act 1998, which provides for hearings to be public
unless otherwise ordered. This section is being repealed as a
consequence of clauses 15, 16 and 28, which replace the existing
powers for VCAT to make suppression, non-publication or
closed court orders with powers to make proceeding suppression
orders and closed court orders.
Clause 59 consequentially amends sections 144(5)(b), 145(2) and 146(4)(c)
of the Victorian Civil and Administrative Tribunal Act 1998
to substitute references to the closed tribunal powers of the Bill in
place of the references to the closed tribunal powers under that
Act.
Clause 60 inserts new section 166 in the Victorian Civil and
Administrative Tribunal Act 1998 to provide for savings
provisions due to the repeal of existing powers under that Act.
The power for closing proceedings to the public or restricting the
publication of information in section 101 of the Victorian Civil
and Administrative Tribunal Act 1998 will continue to apply
to a proceeding commenced to be heard, but not determined, by
VCAT prior to the repeal of that provision. An order to close
proceedings to the public or restrict the publication of
information made under section 101 of the Victorian Civil and
Administrative Tribunal Act 1998 and in force at the date that
section is repealed will continue to apply.
Clause 61 repeals clause 11AH of Schedule 1 to the Victorian Civil and
Administrative Tribunal Act 1998, which provides that VCAT
may allow certain persons to remain in a hearing under the
Disability Act 2006 despite a direction that the hearing be
conducted in private. VCAT will be able to order that only
specified persons may be present during a proceeding under
clause 28(1)(b) of the Bill.
Clause 62 inserts a clause into Schedule 2 to the Victorian Civil and
Administrative Tribunal Act 1998 to provide that rules of
VCAT may be made in respect of procedure under the Bill.
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Division 8--Wrongs Act 1958
Clause 63 amends the heading to Part I of the Wrongs Act 1958 to clarify
that Part I of the Wrongs Act 1958 applies to the reporting of
court proceedings in addition to criminal defamation.
Clause 64 inserts a new section 4(2) into the Wrongs Act 1958 to clarify
that the defence of criminal defamation and the reporting of court
proceedings in section 4(1) does not limit or otherwise affect the
operation of a provision made by or under any other Act that
prohibits or restricts the publication or disclosure of information.
This makes clear that section 4 of the Wrongs Act 1958 does not
impact the operation of suppression or non-publication provisions
in the Bill or in any other Act. Section 4(1) of the Wrongs Act
1958 does not limit or otherwise affect the Supreme Court's
inherent jurisdiction to restrict the publication or disclosure of
information.
Division 9--Repeal of amending provisions
Clause 65 provides for the repeal of the amending provisions in Part 8 on
1 December 2014. The repeal of Part 8 will not affect the
continuing operation of the amendments made once they are in
force.
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