Open Courts and Other Acts Amendment Act 2019

Authorised by the Chief Parliamentary Counsel Authorised Version i Open Courts and Other Acts Amendment Act 2019 No. 11 of 2019 TABLE OF PROVISIONS Section 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 -- 1 of 17 -- Section Page ii Authorised by the Chief Parliamentary Counsel -- 2 of 17 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Open Courts and Other Acts Amendment Act 2019† No. 11 of 2019 [Assented to 7 May 2019] 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 Victoria -- 3 of 17 -- Part 1—Preliminary Open Courts and Other Acts Amendment Act 2019 No. 11 of 2019 2 Authorised by the Chief Parliamentary Counsel (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. -- 4 of 17 -- Part 2—Amendment of Principal Act Open Courts and Other Acts Amendment Act 2019 No. 11 of 2019 3 Authorised by the Chief Parliamentary Counsel 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,". -- 5 of 17 -- Part 2—Amendment of Principal Act Open Courts and Other Acts Amendment Act 2019 No. 11 of 2019 4 Authorised by the Chief Parliamentary Counsel (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.". -- 6 of 17 -- Part 2—Amendment of Principal Act Open Courts and Other Acts Amendment Act 2019 No. 11 of 2019 5 Authorised by the Chief Parliamentary Counsel 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. -- 7 of 17 -- Part 2—Amendment of Principal Act Open Courts and Other Acts Amendment Act 2019 No. 11 of 2019 6 Authorised by the Chief Parliamentary Counsel (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 -- 8 of 17 -- Part 2—Amendment of Principal Act Open Courts and Other Acts Amendment Act 2019 No. 11 of 2019 7 Authorised by the Chief Parliamentary Counsel (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 -- 9 of 17 -- Part 2—Amendment of Principal Act Open Courts and Other Acts Amendment Act 2019 No. 11 of 2019 8 Authorised by the Chief Parliamentary Counsel (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,". -- 10 of 17 -- Part 2—Amendment of Principal Act Open Courts and Other Acts Amendment Act 2019 No. 11 of 2019 9 Authorised by the Chief Parliamentary Counsel 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.". -- 11 of 17 -- Part 3—Amendment of other Acts Open Courts and Other Acts Amendment Act 2019 No. 11 of 2019 10 Authorised by the Chief Parliamentary Counsel 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).". -- 12 of 17 -- Part 3—Amendment of other Acts Open Courts and Other Acts Amendment Act 2019 No. 11 of 2019 11 Authorised by the Chief Parliamentary Counsel 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 -- 13 of 17 -- Part 3—Amendment of other Acts Open Courts and Other Acts Amendment Act 2019 No. 11 of 2019 12 Authorised by the Chief Parliamentary Counsel (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 -- 14 of 17 -- Part 3—Amendment of other Acts Open Courts and Other Acts Amendment Act 2019 No. 11 of 2019 13 Authorised by the Chief Parliamentary Counsel (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.". -- 15 of 17 -- Part 4—Repeal of amending Act Open Courts and Other Acts Amendment Act 2019 No. 11 of 2019 14 Authorised by the Chief Parliamentary Counsel 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). ═════════════ -- 16 of 17 -- Endnotes Open Courts and Other Acts Amendment Act 2019 No. 11 of 2019 15 Authorised by the Chief Parliamentary Counsel 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: 20 February 2019 Legislative Council: 21 March 2019 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." -- 17 of 17 --