Open Courts Act 2013

Authorised by the Chief Parliamentary Counsel Authorised Version i Open Courts Act 2013 No. 58 of 2013 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 2 3 Definitions 2 4 Presumption in favour of disclosure of information 6 5 Abrogation of common law and no implied jurisdiction 6 6 Jurisdiction and powers of courts and tribunals to deal with contempt 6 7 Admission of evidence and disclosure of information to a court or tribunal or party to a proceeding 7 8 Other laws restricting or prohibiting publication not affected 7 PART 2—GENERAL PROVISIONS FOR SUPPRESSION ORDERS 10 9 Application of Part 10 10 Notice of applications for suppression orders 10 11 Notifications to relevant news media organisations 10 12 Duration of orders 11 13 Scope of information covered by order and purpose of suppression order 12 14 Order must be made on basis of evidence or sufficient credible information 12 15 Review of orders 13 16 Duty to publish reasons, judgments or decisions 14 PART 3—PROCEEDING SUPPRESSION ORDERS 15 17 Court or tribunal may make proceeding suppression order 15 18 Grounds for proceeding suppression order 15 19 Procedure for making a proceeding suppression order 16 20 Interim orders 17 21 Where a proceeding suppression order applies 18 22 Exceptions for conduct of proceeding, enforcement or informing persons of existence of proceeding suppression orders or interim orders 18 -- 1 of 44 -- Section Page ii Authorised by the Chief Parliamentary Counsel 23 Offence to contravene proceeding suppression order or interim order 19 PART 4—BROAD SUPPRESSION ORDERS 20 24 Application of this Part 20 25 County Court may grant injunction restraining publication in relation to criminal proceeding 20 26 Magistrates' Court may make order prohibiting publication of specified material 20 27 Offence to contravene order under section 26(1) 21 PART 5—CLOSED COURT ORDERS 23 28 Presumption in favour of open court 23 29 Jurisdiction and powers of courts and tribunals to regulate proceedings 23 30 Power to close proceeding to the public 23 31 Requirement to post notice of closed court order on door of court or tribunal 25 32 Offence to contravene closed court order 25 PART 6—GENERAL 26 33 Regulations 26 PART 7—TRANSITIONAL PROVISIONS 27 34 Transitional 27 35 Power to resolve transitional difficulties in proceeding 27 36 Regulations dealing with transitional matters 27 PART 8—CONSEQUENTIAL AMENDMENTS 29 Division 1—Charter of Human Rights and Responsibilities Act 2006 29 37 Fair hearing 29 Division 2—Coroners Act 2008 29 38 Coroners' powers at inquests 29 39 Publication of findings and reports 29 40 Rules of the Coroners Court 30 41 Registers to be kept by principal registrar 30 42 New clause 22 inserted into Schedule 1 30 22 Savings—Open Courts Act 2013 30 -- 2 of 44 -- Section Page iii Authorised by the Chief Parliamentary Counsel Division 3—County Court Act 1958 31 43 Criminal jurisdiction of the County Court 31 44 Rules of Court 31 45 Power to close proceedings to the public and circumstances in which order may be made under section 80 31 46 Publishing particulars of issued summonses an offence 31 47 New section 98 inserted 32 98 Savings—Open Courts Act 2013 32 Division 4—Magistrates' Court Act 1989 33 48 Rules of Court 33 49 Register 33 50 Business to be conducted in open court 33 51 Power to close proceedings to the public 33 52 New clause 52 inserted in Schedule 8 33 52 Savings—Open Courts Act 2013 33 Division 5—Private Security Act 2004 34 53 General provisions for hearing matters involving protected information 34 Division 6—Supreme Court Act 1986 35 54 Power to close proceedings to the public and circumstances in which order may be made under section 18 35 55 Offence to publish certain information concerning proceedings 35 56 Rules of Court 35 57 New section 152 inserted 36 152 Savings—Open Courts Act 2013 36 Division 7—Victorian Civil and Administrative Tribunal Act 1998 36 58 Secrecy 36 59 Method of conducting hearings 37 60 Hearings to be public unless otherwise ordered 37 61 Consequential amendments to sections 144, 145 and 146 37 62 New section 166 inserted 37 166 Savings—Open Courts Act 2013 37 63 Variations from Parts 3 and 4 for various proceedings 38 64 Subject matter for rules 38 Division 8—Wrongs Act 1958 38 65 Heading to Part I amended 38 66 No action maintainable against a person for faithfully reporting 38 -- 3 of 44 -- Section Page iv Authorised by the Chief Parliamentary Counsel Division 9—Repeal of amending provisions 39 67 Repeal of Part 8 39 ═══════════════ ENDNOTES 40 -- 4 of 44 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Open Courts Act 2013 † No. 58 of 2013 [Assented to 22 October 2013] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purposes The main purposes of this Act are to— (a) reform and consolidate provisions for suppression orders relating to information derived from proceedings applicable to the Supreme Court, the County Court, the Magistrates' Court, the Coroners Court, the Victorian Civil and Administrative Tribunal and other prescribed courts and tribunals; Victoria -- 5 of 44 -- Part 1—Preliminary Open Courts Act 2013 No. 58 of 2013 2 Authorised by the Chief Parliamentary Counsel (b) reform and consolidate provisions for suppression orders relating to other information relevant to, but not derived from, certain proceedings in the County Court and the Magistrates' Court; (c) make general provisions applicable to all suppression orders made pursuant to the exercise of the inherent jurisdiction of the Supreme Court and by courts or tribunals under this Act; (d) reform and consolidate provisions for closed court orders applicable to the Supreme Court, the County Court, the Magistrates' Court, the Coroners Court, the Victorian Civil and Administrative Tribunal and other prescribed courts and tribunals. 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 1 December 2013, it comes into operation on that day. 3 Definitions In this Act— business day means a day other than a Saturday, a Sunday or a public holiday within the meaning of the Public Holidays Act 1993; child means a person under 18 years of age; closed court order means an order made under Part 5; corresponding interstate order has the same meaning as it has in the Family Violence Protection Act 2008; s. 2 -- 6 of 44 -- Part 1—Preliminary Open Courts Act 2013 No. 58 of 2013 3 Authorised by the Chief Parliamentary Counsel corresponding New Zealand order has the same meaning as it has in the Family Violence Protection Act 2008; court or tribunal means— (a) the Supreme Court; (b) the County Court; (c) the Magistrates' Court; (d) the Coroners Court; (e) VCAT; (f) any other prescribed court or tribunal; (g) a prescribed person or body; family violence intervention order has the same meaning as it has in the Family Violence Protection Act 2008; family violence offence means— (a) an offence where— (i) the accused is a person who, at the time of the alleged offence, is subject to a family violence intervention order, a family violence safety notice, a corresponding interstate order or a corresponding New Zealand order; and (ii) the complainant or alleged victim is a person who is protected by the order or notice referred to in subparagraph (i); and (iii) the conduct comprising the alleged offence, if established, includes conduct by the accused which is a contravention of the s. 3 -- 7 of 44 -- Part 1—Preliminary Open Courts Act 2013 No. 58 of 2013 4 Authorised by the Chief Parliamentary Counsel order or notice referred to in subparagraph (i); or (b) an offence where the conduct comprising the alleged offence, if established, constitutes family violence within the meaning of the Family Violence Protection Act 2008 by the accused against the complainant or alleged victim and the conduct could reasonably have justified the making of a family violence intervention order or a family violence safety notice applying to the accused and protecting the complainant or alleged victim; family violence safety notice has the same meaning as it has in the Family Violence Protection Act 2008; information includes any document; inquest has the same meaning as it has in the Coroners Act 2008; interim order means an order made under section 20; news media organisation means— (a) a commercial enterprise that engages in the business of broadcasting or publishing news; (b) a public broadcasting service that engages in the dissemination of news through a public news medium; party to a proceeding includes— (a) in the case of a criminal proceeding, the complainant or victim or alleged victim; s. 3 -- 8 of 44 -- Part 1—Preliminary Open Courts Act 2013 No. 58 of 2013 5 Authorised by the Chief Parliamentary Counsel (b) any person named in evidence given in a proceeding; (c) in relation to a proceeding that has concluded, a person who was a party to the proceeding before the proceeding concluded; proceeding means a civil proceeding or a criminal proceeding; proceeding suppression order means an order made under section 17; publish means disseminate or provide access to the public or a section of the public by any means, including by— (a) publication in a book, newspaper, magazine or other written publication; or (b) broadcast by radio or television; or (c) public exhibition; or (d) broadcast or electronic communication— and publication must be construed accordingly; sexual offence has the same meaning as it has in the Criminal Procedure Act 2009; suppression order means— (a) a proceeding suppression order; (b) an interim order; (c) an order made under section 25 or 26; (d) an order made by the Supreme Court in the exercise of its inherent jurisdiction that prohibits or restricts the publication or other disclosure of information in s. 3 -- 9 of 44 -- Part 1—Preliminary Open Courts Act 2013 No. 58 of 2013 6 Authorised by the Chief Parliamentary Counsel connection with any proceeding, whether or not the information was derived from the proceeding. 4 Presumption in favour of disclosure of information To strengthen and promote the principles of open justice and free communication of information, there is a presumption in favour of disclosure of information to which a court or tribunal must have regard in determining whether to make a suppression order. 5 Abrogation of common law and no implied jurisdiction (1) Nothing in this section limits or otherwise affects the inherent jurisdiction of the Supreme Court. (2) Any common law power to make an order prohibiting or restricting the publication of information in connection with any proceeding is abrogated. (3) A court or tribunal has no implied jurisdiction to make an order prohibiting or restricting the publication of information in connection with any proceeding. 6 Jurisdiction and powers of courts and tribunals to deal with contempt (1) This Act does not limit or otherwise affect any jurisdiction or any power that a court or tribunal has apart from this Act to deal with a contempt of the court or tribunal. (2) In this section— jurisdiction includes any implied jurisdiction and, in the case of the Supreme Court, its inherent jurisdiction; power includes any power at common law. s. 4 -- 10 of 44 -- Part 1—Preliminary Open Courts Act 2013 No. 58 of 2013 7 Authorised by the Chief Parliamentary Counsel 7 Admission of evidence and disclosure of information to a court or tribunal or party to a proceeding This Act does not limit or otherwise affect— (a) the making of an order or decision by a court or tribunal that requires the disclosure of information in the course of, or in relation to, a proceeding; (b) any rule of law restricting the permitted use and disclosure of information referred to in paragraph (a); (c) the making of an order or decision by a court or tribunal regarding the admission into evidence of information; (d) the making of an order or decision by a court or tribunal that— (i) conceals the identity of a person by restricting the way the person is referred to in open court; (ii) restricts the way an event or thing may be referred to in open court; (iii) prohibits or restricts access to a court or tribunal file. 8 Other laws restricting or prohibiting publication not affected (1) This Act does not limit or otherwise affect the operation of a provision made by or under any other Act that— (a) 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; or (b) requires or authorises a court or tribunal to close any proceeding to the public. s. 7 -- 11 of 44 -- Part 1—Preliminary Open Courts Act 2013 No. 58 of 2013 8 Authorised by the Chief Parliamentary Counsel (2) Without limiting the generality of subsection (1), this Act does not limit the operation of the following provisions— (a) section 121 of the Adoption Act 1984; (b) section 534 of the Children, Youth and Families Act 2005; (c) sections 17(3), (4) and (5), 36L(6), (7) and (8) and 37(9), (10) and (11) of the Confiscation Act 1997; (d) section 75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; (e) Part 4 of the Criminal Organisations Control Act 2012; (f) sections 32F or 42BQ of the Evidence (Miscellaneous Provisions) Act 1958; (g) sections 166 or 167 of the Family Violence Protection Act 2008; (h) section 43 of the Major Crime (Investigative Powers) Act 2004; (i) section 133 of the Public Health and Wellbeing Act 2008; (j) Division 1 of Part 13 of the Serious Sex Offenders (Detention and Supervision) Act 2009; (k) section 12 of the Terrorism (Community Protection) Act 2003; (l) section 43 of the Victims of Crime Assistance Act 1996; s. 8 -- 12 of 44 -- Part 1—Preliminary Open Courts Act 2013 No. 58 of 2013 9 Authorised by the Chief Parliamentary Counsel (m) clause 37 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998. Note Other Acts have specific suppression regimes that place statutory restrictions or prohibitions on the disclosure of information. For example, see sections 3 and 4 of the Judicial Proceedings Reports Act 1958 and sections 77 and 78 of the Juries Act 2000. __________________ s. 8 -- 13 of 44 -- Part 2—General Provisions for Suppression Orders Open Courts Act 2013 No. 58 of 2013 10 Authorised by the Chief Parliamentary Counsel PART 2—GENERAL PROVISIONS FOR SUPPRESSION ORDERS 9 Application of Part This Part applies to any suppression order. 10 Notice of applications for suppression orders (1) Subject to subsection (3), an applicant for a suppression order must give 3 business days' notice of the making of the application to— (a) the court or tribunal in which the application is to be made; and (b) the parties to the proceeding to which the application relates. (2) Notice under subsection (1) must be in accordance with rules of court (if any) applying in the court or tribunal in which the application is made. (3) The court or tribunal may hear an application for a suppression order despite the failure of the applicant to give notice in accordance with subsection (1) if the court or tribunal is satisfied that— (a) there was a good reason for the notice not being given or not being given within the required time period; or (b) it is in the interests of justice that the court or tribunal hear the application without notice being given. (4) This section does not apply to the making of a proceeding suppression order by a court or tribunal on its own motion. 11 Notifications to relevant news media organisations (1) On receiving a notice under section 10(1), the court or tribunal must take reasonable steps to ensure that any relevant news media organisation s. 9 -- 14 of 44 -- Part 2—General Provisions for Suppression Orders Open Courts Act 2013 No. 58 of 2013 11 Authorised by the Chief Parliamentary Counsel is notified of the application for a suppression order. (2) Notification under this section may be by electronic communication or any other means that the court or tribunal considers appropriate. (3) In this section, relevant news media organisation means a news media organisation which the court or tribunal would ordinarily ensure was sent notice of the making of a suppression order. 12 Duration of orders (1) The period for which a suppression order other than an interim order operates must be— (a) determined by the court or tribunal in accordance with this section; and (b) specified in the order. Note For interim orders, see section 20(5). (2) The period for which a suppression order operates may be specified by reference to— (a) a fixed or ascertainable period; or (b) subject to subsection (3), the occurrence of a specified future event. (3) If the period for which a suppression order operates is specified by reference to a future event that may not occur, the order must also specify a period from the date of the order (not exceeding 5 years) at the end of which the order expires unless sooner revoked. Example An order that is expressed to be in effect until further order of the court or tribunal would also need to specify a period not exceeding 5 years at the end of which the order expires unless sooner revoked. s. 12 -- 15 of 44 -- Part 2—General Provisions for Suppression Orders Open Courts Act 2013 No. 58 of 2013 12 Authorised by the Chief Parliamentary Counsel (4) The court or tribunal must ensure that a suppression order operates for no longer than is reasonably necessary to achieve the purpose for which it is made. 13 Scope of information covered by order and purpose of suppression order (1) A suppression order must specify the information to which the order applies with sufficient particularity to ensure that— (a) the order is limited to achieving the purpose for which the order is made; and (b) the order does not apply to any more information than is necessary to achieve the purpose for which the order is made; and (c) it is readily apparent from the terms of the order what information is subject to the order. (2) A suppression order— (a) must specify the purpose of the order; and (b) in the case of a proceeding suppression order or an order under section 26(1), must specify the applicable ground or grounds on which it is made. 14 Order must be made on basis of evidence or sufficient credible information (1) In making a suppression 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 making the order are established. (2) Subsection (1) does not apply to an interim order. s. 13 -- 16 of 44 -- Part 2—General Provisions for Suppression Orders Open Courts Act 2013 No. 58 of 2013 13 Authorised by the Chief Parliamentary Counsel 15 Review of orders (1) The court or tribunal that made a suppression order may review the order— (a) on the court's or tribunal's own motion; or (b) on the application of— (i) the applicant for the order; (ii) a party to the proceeding in connection with which the order was made; (iii) the Attorney-General; (iv) the Attorney-General of another State or Territory or of the Commonwealth; (v) a news media organisation; (vi) 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. (2) Each of the persons specified in subsection (1)(b) is entitled to appear and be heard by the court or tribunal on the review of a suppression order. (3) On a review under subsection (1), the court or tribunal— (a) may confirm, vary or revoke the suppression order; and (b) in addition, may make any other order that the court or tribunal may make under this Act. s. 15 -- 17 of 44 -- Part 2—General Provisions for Suppression Orders Open Courts Act 2013 No. 58 of 2013 14 Authorised by the Chief Parliamentary Counsel 16 Duty to publish reasons, judgments or decisions Nothing in this Act limits or otherwise affects any duty of a court or tribunal to publish reasons for judgment or decisions, subject to the court or tribunal editing those reasons to the extent necessary to comply with any order of a court or tribunal or statutory provision restricting the publication of information. Note See also section 24(3) of the Charter of Human Rights and Responsibilities Act 2006. __________________ s. 16 -- 18 of 44 -- Part 3—Proceeding Suppression Orders Open Courts Act 2013 No. 58 of 2013 15 Authorised by the Chief Parliamentary Counsel PART 3—PROCEEDING SUPPRESSION ORDERS 17 Court or tribunal may make proceeding suppression order A court or tribunal on one or more of the grounds specified in section 18 may make a proceeding suppression order to prohibit or restrict the disclosure by publication or otherwise of— (a) a report of the whole or any part of a proceeding; (b) any information derived from a proceeding. 18 Grounds for proceeding suppression order (1) A court or tribunal other than the Coroners Court may make a proceeding suppression order if satisfied as to one or more of the following grounds— (a) the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means; Example Another reasonably available means may be directions to the jury. (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security; (c) the order is necessary to protect the safety of any person; (d) the order is necessary to avoid causing undue distress or embarrassment to a complainant or witness in any criminal proceeding involving a sexual offence or a family violence offence; s. 17 -- 19 of 44 -- Part 3—Proceeding Suppression Orders Open Courts Act 2013 No. 58 of 2013 16 Authorised by the Chief Parliamentary Counsel (e) the order is necessary to avoid causing undue distress or embarrassment to a child who is a witness in any criminal proceeding; (f) in the case of VCAT, the order is necessary— (i) to avoid the publication of confidential information or information the subject of a certificate under section 53 or 54 of the Victorian Civil and Administrative Tribunal Act 1998; (ii) for any other reason in the interests of justice. (2) The Coroners Court may make a proceeding suppression order in the case of an investigation or inquest into a death or fire if the coroner constituting the Coroners Court reasonably believes that an order is necessary because disclosure would— (a) be likely to prejudice the fair trial of a person; or (b) be contrary to the public interest. 19 Procedure for making a proceeding suppression order (1) A court or tribunal may make a proceeding suppression order— (a) on its own motion; or (b) on the application of— (i) a party to the proceeding concerned; or (ii) any other person considered by the court or tribunal to have a sufficient interest in the making of the order. s. 19 -- 20 of 44 -- Part 3—Proceeding Suppression Orders Open Courts Act 2013 No. 58 of 2013 17 Authorised by the Chief Parliamentary Counsel (2) Each of the following persons may appear and be heard by the court or tribunal on an application for a proceeding suppression order— (a) the applicant for the order; (b) a party to the proceeding concerned; (c) the Attorney-General; (d) the Attorney-General of another State or Territory or of the Commonwealth; (e) a news media organisation; (f) 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 made. (3) Subject to rules of court (if any) or unless the court or tribunal otherwise orders, an applicant for a proceeding suppression order is not required to give notice of the application to a person referred to in subsection (2)(a), (c), (d), (e) or (f). (4) A proceeding suppression order may be made— (a) at any time during a proceeding; (b) after a proceeding has concluded. (5) A proceeding suppression order may be made subject to any exceptions and conditions that the court or tribunal thinks fit and specifies in the order. 20 Interim orders (1) If an application is made to a court or tribunal for a proceeding suppression order, the court or tribunal may make an interim order in respect of that application. (2) An interim order may be made without determining the merits of the application under section 18. s. 20 -- 21 of 44 -- Part 3—Proceeding Suppression Orders Open Courts Act 2013 No. 58 of 2013 18 Authorised by the Chief Parliamentary Counsel (3) An interim order has effect until— (a) the substantive application is determined; or (b) the interim order is revoked by a court or tribunal. (4) If a court or tribunal makes an interim order, the court or tribunal must determine the substantive application for the proceeding suppression order as a matter of urgency. 21 Where a proceeding suppression order applies (1) A proceeding suppression order or an interim order applies only to the publication or disclosure of information in a place where the order applies, as specified in the order. (2) Subject to subsection (3), a proceeding suppression order or an interim order is not limited to applying in Victoria and may be made to apply anywhere in Australia. (3) A proceeding suppression order or an interim order 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. 22 Exceptions for conduct of proceeding, enforcement or informing persons of existence of proceeding suppression orders or interim orders A proceeding suppression order or an interim order does not prevent a person from disclosing information if the disclosure is in the course of performing functions or duties or exercising powers in a public official capacity— (a) in connection with the conduct of any proceeding or the recovery or enforcement of any penalty imposed in a proceeding; or s. 21 -- 22 of 44 -- Part 3—Proceeding Suppression Orders Open Courts Act 2013 No. 58 of 2013 19 Authorised by the Chief Parliamentary Counsel (b) in compliance with any procedure adopted by a court or tribunal for informing a person of the existence and content of a proceeding suppression order or an interim order made by the court or tribunal. 23 Offence to contravene proceeding suppression order or interim order (1) A person must not engage in conduct that constitutes a contravention of a proceeding suppression order or an interim order that is in force if that person— (a) knows that the proceeding suppression order or interim order, as the case requires, is in force; or (b) is reckless as to whether a proceeding suppression order or an interim order, as the case requires, is in force. Penalty: in the case of an individual, level 6 imprisonment (5 years maximum) or 600 penalty units, or both; in the case of a body corporate, 3000 penalty units. (2) For the purposes of subsection (1), 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. __________________ s. 23 -- 23 of 44 -- Part 4—Broad Suppression Orders Open Courts Act 2013 No. 58 of 2013 20 Authorised by the Chief Parliamentary Counsel PART 4—BROAD SUPPRESSION ORDERS 24 Application of this Part An order under this Part must not be made in respect of any information which could be the subject of a proceeding suppression order. 25 County Court may grant injunction restraining publication in relation to criminal proceeding (1) The County Court has the same jurisdiction, and may exercise the same powers and authority, to 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 as the Supreme Court has and may exercise in respect of a criminal proceeding in the Supreme Court. (2) The power of the County Court referred to in subsection (1) is exercisable by making an order, whether interlocutory or final, either unconditionally or on such terms and conditions as the Court thinks just. 26 Magistrates' Court may make order prohibiting publication of specified material (1) The Magistrates' Court may make an order prohibiting the publication of any specified material, or any material of a specified kind, relevant to a proceeding that is pending in the Court if in its opinion it is necessary to do so in order not to— (a) prejudice the administration of justice; or (b) endanger the safety of any person. (2) An order under subsection (1) applies only to the publication of material in a place where the order applies, as specified in the order. s. 24 -- 24 of 44 -- Part 4—Broad Suppression Orders Open Courts Act 2013 No. 58 of 2013 21 Authorised by the Chief Parliamentary Counsel (3) Subject to subsection (4), an order under subsection (1) is not limited to applying in Victoria and may be made to apply anywhere in Australia. (4) An order under subsection (1) must not be made to apply outside Victoria unless the Magistrates' Court is satisfied that having the order apply outside Victoria is necessary for achieving the purpose for which the order is made. (5) An order under subsection (1) does not prevent a person from disclosing information if the disclosure is in the course of performing functions or duties or exercising powers in a public official capacity— (a) in connection with the conduct of any proceeding or the recovery or enforcement of any penalty imposed in a proceeding; or (b) in compliance with any procedure adopted by the Magistrates' Court for informing a person of the existence and content of an order made under subsection (1) by the Court. 27 Offence to contravene order under section 26(1) (1) A person must not engage in conduct that constitutes a contravention of an order under section 26(1) that is in force if that person— (a) knows that the order is in force; or (b) is reckless as to whether an order under that section is in force. Penalty: in the case of an individual, level 6 imprisonment (5 years maximum) or 600 penalty units, or both; in the case of a body corporate, 3000 penalty units. s. 27 -- 25 of 44 -- Part 4—Broad Suppression Orders Open Courts Act 2013 No. 58 of 2013 22 Authorised by the Chief Parliamentary Counsel (2) For the purposes of subsection (1), in the absence of evidence to the contrary, a person is taken to be aware that an order is in force if a court or tribunal has electronically transmitted notice of the order to the person. __________________ s. 27 -- 26 of 44 -- Part 5—Closed Court Orders Open Courts Act 2013 No. 58 of 2013 23 Authorised by the Chief Parliamentary Counsel PART 5—CLOSED COURT ORDERS 28 Presumption in favour of open court To strengthen and promote the principle of open justice, there is a presumption in favour of hearing a proceeding in open court to which a court or tribunal must have regard in determining whether to make any order, including an order under this Part— (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. 29 Jurisdiction and powers of courts and tribunals to regulate proceedings (1) Subject to section 28, nothing in this Part limits or affects any jurisdiction or any power that a court or tribunal has apart from this Act to regulate its proceedings. (2) In this section— jurisdiction includes any implied jurisdiction and, in the case of the Supreme Court, its inherent jurisdiction; power includes any power at common law. 30 Power to close proceeding to the public (1) Subject to subsections (2) and (3), a court or tribunal— (a) may order that the whole or any part of a proceeding be heard in closed court or closed tribunal; or (b) may order that only persons or classes of persons specified by it may be present during the whole or any part of a proceeding. s. 28 -- 27 of 44 -- Part 5—Closed Court Orders Open Courts Act 2013 No. 58 of 2013 24 Authorised by the Chief Parliamentary Counsel (2) A court or tribunal other than the Coroners Court may make a closed court order if satisfied as to one or more of the following grounds— (a) the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means; Example Other reasonably available means may include directions to the jury, making a proceeding suppression order, or orders excluding only certain persons or a more limited class of persons from the court or tribunal. (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security; (c) the order is necessary to protect the safety of any person; (d) the order is necessary to avoid causing undue distress or embarrassment to a complainant or witness in any criminal proceeding involving a sexual offence or a family violence offence; (e) the order is necessary to avoid causing undue distress or embarrassment to a child who is a witness in any criminal proceeding; (f) in the case of VCAT, the order is necessary— (i) to avoid the disclosure of confidential information or information the subject of a certificate under section 53 or 54 of the Victorian Civil and Administrative Tribunal Act 1998; s. 30 -- 28 of 44 -- Part 5—Closed Court Orders Open Courts Act 2013 No. 58 of 2013 25 Authorised by the Chief Parliamentary Counsel (ii) for any other reason in the interests of justice. (3) 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, having regard to the matters specified in Part 2 of the Coroners Act 2008. 31 Requirement to post notice of closed court order on door of court or tribunal If a closed court order has been made, the court or tribunal must cause a copy of the order to be posted— (a) on a door of the court or tribunal; or (b) in another conspicuous place where notices are usually posted at the place where the court or tribunal is being held. 32 Offence to contravene closed court order A person must not engage in conduct that constitutes a contravention of a closed court order that is in force if that person— (a) knows that the closed court order is in force; or (b) is reckless as to whether a closed court order is in force. Penalty: in the case of an individual, level 6 imprisonment (5 years maximum) or 600 penalty units, or both; in the case of a body corporate, 3000 penalty units. __________________ s. 31 -- 29 of 44 -- Part 6—General Open Courts Act 2013 No. 58 of 2013 26 Authorised by the Chief Parliamentary Counsel PART 6—GENERAL 33 Regulations (1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act. (2) The regulations may— (a) be of general or limited application; (b) differ according to differences in time, place or circumstances; (c) confer a discretionary authority or impose a duty on a specified person or body or class of persons or bodies; (d) provide in a specified case or class of cases for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations— (i) whether unconditionally or on specified conditions; and (ii) either wholly or to any extent that is specified. __________________ s. 33 -- 30 of 44 -- Part 7—Transitional Provisions Open Courts Act 2013 No. 58 of 2013 27 Authorised by the Chief Parliamentary Counsel PART 7—TRANSITIONAL PROVISIONS 34 Transitional This Act applies in relation to a proceeding (including any interlocutory proceeding)— (a) that is commenced in, or transferred to, a court or tribunal on or after the commencement of section 17; or (b) that has commenced in a court or tribunal but has not been heard and determined by the court or tribunal immediately before the commencement of section 17. 35 Power to resolve transitional difficulties in proceeding (1) If any difficulty arises because of the operation of this Act in relation to a proceeding referred to in section 34, a court or tribunal may make any order it considers appropriate to resolve the difficulty. (2) An order made under subsection (1)— (a) may be made on application of a party to the proceeding or on the court's or tribunal's own motion, as the case requires; and (b) has effect despite any provision to the contrary made by or under any Act (other than the Charter of Human Rights and Responsibilities Act 2006). 36 Regulations dealing with transitional matters (1) The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of this Act, including the repeals and amendments made by this Act. s. 34 -- 31 of 44 -- Part 7—Transitional Provisions Open Courts Act 2013 No. 58 of 2013 28 Authorised by the Chief Parliamentary Counsel (2) Regulations made under this section may— (a) have a retrospective effect to a day on or from the date that this Act receives the Royal Assent; (b) be of limited or general application; (c) differ according to differences in time, place or circumstances; (d) leave any matter or thing to be decided by a specified person or specified class of persons; (e) provide for the exemption of persons or proceedings or a class of persons or proceedings from any of the regulations made under this section. (3) Regulations made under this section have effect despite anything to the contrary— (a) in any Act (other than this Act or the Charter of Human Rights and Responsibilities Act 2006); or (b) in any subordinate instrument. (4) This section is repealed on the second anniversary of the day on which it comes into operation. __________________ s. 36 -- 32 of 44 -- Part 8—Consequential Amendments Open Courts Act 2013 No. 58 of 2013 29 Authorised by the Chief Parliamentary Counsel PART 8—CONSEQUENTIAL AMENDMENTS Division 1—Charter of Human Rights and Responsibilities Act 2006 37 Fair hearing For the note at the foot of section 24(2) of the Charter of Human Rights and Responsibilities Act 2006 substitute— "Note See Part 5 of the Open Courts Act 2013.". Division 2—Coroners Act 2008 38 Coroners' powers at inquests (1) Section 55(2)(d) of the Coroners Act 2008 is repealed. (2) At the foot of section 55(2) of the Coroners Act 2008 insert— "Note See Part 5 of the Open Courts Act 2013.". 39 Publication of findings and reports (1) At the foot of section 73(1) of the Coroners Act 2008 insert— "Note See Part 3 of the Open Courts Act 2013.". (2) Section 73(2) and (3) of the Coroners Act 2008 are repealed. s. 37 See: Act No. 43/2006. Reprint No. 1 as at 1 August 2011. LawToday: www. legislation. vic.gov.au See: Act No. 77/2008. Reprint No. 1 as at 21 July 2011 and amending Act Nos 52/2012, 83/2012 and 5/2013. LawToday: www. legislation. vic.gov.au -- 33 of 44 -- Part 8—Consequential Amendments Open Courts Act 2013 No. 58 of 2013 30 Authorised by the Chief Parliamentary Counsel 40 Rules of the Coroners Court (1) After section 105(1)(f) of the Coroners Act 2008 insert— "(fa) any other matter or thing required or permitted by or under the Open Courts Act 2013 to be dealt with by rules of the Coroners Court or otherwise necessary or required for the purposes of that Act;". (2) In section 105(1)(jb) of the Coroners Act 2008 omit "73(2),". 41 Registers to be kept by principal registrar Section 116(1)(e) of the Coroners Act 2008 is repealed. 42 New clause 22 inserted into Schedule 1 After clause 21 of Schedule 1 to the Coroners Act 2008 insert— "22 Savings—Open Courts Act 2013 (1) Despite the repeal of section 55(2)(d) by the Open Courts Act 2013, an order made under section 55(2)(d) (as in force immediately before its repeal) and in force at the date of that repeal continues to apply on and after that repeal. (2) Despite the repeal of section 73(2) and (3) by the Open Courts Act 2013, section 73(2) and (3) (as in force immediately before their repeal) continue to apply on and after that repeal in relation to a proceeding commenced to be heard (but not determined) by the Coroners Court before that repeal.". s. 40 -- 34 of 44 -- Part 8—Consequential Amendments Open Courts Act 2013 No. 58 of 2013 31 Authorised by the Chief Parliamentary Counsel Division 3—County Court Act 1958 43 Criminal jurisdiction of the County Court Section 36A(3), (4) and (5) of the County Court Act 1958 are repealed. 44 Rules of Court After section 78(1)(d) of the County Court Act 1958 insert— "(da) any other matter or thing required or permitted by or under the Open Courts Act 2013 to be dealt with by rules of court or otherwise necessary or required for the purposes of that Act;". 45 Power to close proceedings to the public and circumstances in which order may be made under section 80 Sections 80 and 80AA of the County Court Act 1958 are repealed. 46 Publishing particulars of issued summonses an offence At the foot of section 80A of the County Court Act 1958 insert— "Note The Open Courts Act 2013 governs suppression orders and closed court orders generally in relation to the court.". s. 43 See: Act No. 6230. Reprint No. 15 as at 1 May 2013 and amending Act No. 6230. LawToday: www. legislation. vic.gov.au -- 35 of 44 -- Part 8—Consequential Amendments Open Courts Act 2013 No. 58 of 2013 32 Authorised by the Chief Parliamentary Counsel 47 New section 98 inserted After section 97 of the County Court Act 1958 insert— "98 Savings—Open Courts Act 2013 (1) Despite the repeal of section 36A(3), (4) and (5) by the Open Courts Act 2013, section 36A(3), (4) and (5) (as in force immediately before their repeal) continue to apply on and after that repeal in relation to a proceeding commenced to be heard (but not determined) by the court before that repeal. (2) Despite the repeal of section 36A(3) by the Open Courts Act 2013, an order made under section 36A(3) (as in force immediately before its repeal) and in force at the date of that repeal continues to apply on and after that repeal. (3) Despite the repeal of sections 80 and 80AA by the Open Courts Act 2013, sections 80 and 80AA (as in force immediately before their repeal) continue to apply on and after that repeal in relation to a proceeding commenced to be heard (but not determined) by the court before that repeal. (4) Despite the repeal of section 80 by the Open Courts Act 2013, an order made under section 80 (as in force immediately before its repeal) and in force at the date of that repeal continues to apply on and after that repeal.". s. 47 -- 36 of 44 -- Part 8—Consequential Amendments Open Courts Act 2013 No. 58 of 2013 33 Authorised by the Chief Parliamentary Counsel Division 4—Magistrates' Court Act 1989 48 Rules of Court After section 16(1)(c) of the Magistrates' Court Act 1989 insert— "(ca) any other matter or thing required or permitted by or under the Open Courts Act 2013 to be dealt with by rules of court or otherwise necessary or required for the purposes of that Act;". 49 Register In section 18(3) of the Magistrates' Court Act 1989 for "section 126" substitute "Part 3 of the Open Courts Act 2013". 50 Business to be conducted in open court At the foot of section 125(1) of the Magistrates' Court Act 1989 insert— "Note The Open Courts Act 2013 governs suppression orders and closed court orders generally in relation to the Court.". 51 Power to close proceedings to the public Section 126 of the Magistrates' Court Act 1989 is repealed. 52 New clause 52 inserted in Schedule 8 After clause 51 of Schedule 8 to the Magistrates' Court Act 1989 insert— "52 Savings—Open Courts Act 2013 (1) Despite the repeal of section 126 by the Open Courts Act 2013, section 126 (as in force immediately before its repeal) s. 48 See: Act No. 51/1989. Reprint No. 17 as at 1 May 2013 and amending Act Nos 51/1989, 51/2006, 12/2010 and 31/2013. LawToday: www. legislation. vic.gov.au -- 37 of 44 -- Part 8—Consequential Amendments Open Courts Act 2013 No. 58 of 2013 34 Authorised by the Chief Parliamentary Counsel continues to apply on and after its repeal in relation to a proceeding commenced to be heard (but not determined) by the Court before that repeal. (2) Despite the repeal of section 126 by the Open Courts Act 2013, an order made under section 126 (as in force immediately before its repeal) and in force at the date of that repeal— (a) subject to paragraph (b), continues to apply on and after that repeal; (b) may be set aside or varied in accordance with section 126 as if that section had not been repealed.". Division 5—Private Security Act 2004 53 General provisions for hearing matters involving protected information In section 150E(3) of the Private Security Act 2004— (a) in paragraph (a), for "sections 49 and 101" substitute "section 49"; (b) after paragraph (a) insert— "(ab) Part 5 of the Open Courts Act 2013;". s. 53 See: Act No. 33/2004. Reprint No. 1 as at 26 September 2007 and amending Act Nos 4/2008, 13/2008, 1/2010, 6/2010, 61/2010 and 79/2011. LawToday: www. legislation. vic.gov.au -- 38 of 44 -- Part 8—Consequential Amendments Open Courts Act 2013 No. 58 of 2013 35 Authorised by the Chief Parliamentary Counsel Division 6—Supreme Court Act 1986 54 Power to close proceedings to the public and circumstances in which order may be made under section 18 Sections 18 and 19 of the Supreme Court Act 1986 are repealed. 55 Offence to publish certain information concerning proceedings At the foot of section 20 of the Supreme Court Act 1986 insert— "Note The Open Courts Act 2013 governs suppression orders and closed court orders generally in relation to the Court.". 56 Rules of Court After section 25(1)(ae) of the Supreme Court Act 1986 insert— "(af) any other matter or thing required or permitted by or under the Open Courts Act 2013 to be dealt with by rules of court or otherwise necessary or required for the purposes of that Act;". s. 54 See: Act No. 110/1986. Reprint No. 7 as at 1 January 2011 and amending Act Nos 50/2011, 26/2012, 68/2012, 80/2012 and 5/2013. LawToday: www. legislation. vic.gov.au -- 39 of 44 -- Part 8—Consequential Amendments Open Courts Act 2013 No. 58 of 2013 36 Authorised by the Chief Parliamentary Counsel 57 New section 152 inserted After section 151 of the Supreme Court Act 1986 insert— "152 Savings—Open Courts Act 2013 (1) Despite the repeal of sections 18 and 19 by the Open Courts Act 2013, sections 18 and 19 (as in force immediately before their repeal) continue to apply on and after that repeal in relation to a proceeding commenced to be heard (but not determined) by the Court before that repeal. (2) Despite the repeal of section 18 by the Open Courts Act 2013, an order made under section 18 (as in force immediately before its repeal) and in force at the date of that repeal continues to apply on and after that repeal.". Division 7—Victorian Civil and Administrative Tribunal Act 1998 58 Secrecy In section 34(6) of the Victorian Civil and Administrative Tribunal Act 1998, after "private" insert "or that is the subject of a closed court order under Part 5 of the Open Courts Act 2013". s. 57 See: Act No. 53/1998. Reprint No. 8 as at 24 January 2013 and amending Act Nos 11/2010, 83/2012, 5/2013 and 19/2013. LawToday: www. legislation. vic.gov.au -- 40 of 44 -- Part 8—Consequential Amendments Open Courts Act 2013 No. 58 of 2013 37 Authorised by the Chief Parliamentary Counsel 59 Method of conducting hearings At the foot of section 100 of the Victorian Civil and Administrative Tribunal Act 1998 insert— "Note The Open Courts Act 2013 governs suppression orders and closed tribunal orders generally in relation to the Tribunal.". 60 Hearings to be public unless otherwise ordered Section 101 of the Victorian Civil and Administrative Tribunal Act 1998 is repealed. 61 Consequential amendments to sections 144, 145 and 146 In sections 144(5)(b), 145(2) and 146(4)(c) of the Victorian Civil and Administrative Tribunal Act 1998, for "section 101" substitute "Part 5 of the Open Courts Act 2013". 62 New section 166 inserted After section 165 of the Victorian Civil and Administrative Tribunal Act 1998 insert— "166 Savings—Open Courts Act 2013 (1) Despite the repeal of section 101 by the Open Courts Act 2013, section 101 (as in force immediately before its repeal) continues to apply on and after that repeal in relation to a proceeding commenced to be heard (but not determined) by the Tribunal before that repeal. (2) Despite the repeal of section 101 by the Open Courts Act 2013, an order made under section 101 (as in force immediately before its repeal) and in force at the date of that repeal continues to apply on and after that repeal.". s. 59 -- 41 of 44 -- Part 8—Consequential Amendments Open Courts Act 2013 No. 58 of 2013 38 Authorised by the Chief Parliamentary Counsel 63 Variations from Parts 3 and 4 for various proceedings Clause 11AH of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 is repealed. 64 Subject matter for rules At the end of Schedule 2 to the Victorian Civil and Administrative Tribunal Act 1998 insert— "Procedure under the Open Courts Act 2013.". Division 8—Wrongs Act 1958 65 Heading to Part I amended In the heading to Part I of the Wrongs Act 1958, after "CRIMINAL DEFAMATION" insert "AND THE REPORTING OF COURT PROCEEDINGS". 66 No action maintainable against a person for faithfully reporting At the end of section 4 of the Wrongs Act 1958 insert— "(2) Subsection (1) does not limit or otherwise affect— (a) the operation of a provision made by or under any other Act that prohibits or restricts the publication or disclosure of information; or s. 63 See: Act No. 6420. Reprint No.11 as at 7 November 2012 and amending Act No. 20/2012. LawToday: www. legislation. vic.gov.au -- 42 of 44 -- Part 8—Consequential Amendments Open Courts Act 2013 No. 58 of 2013 39 Authorised by the Chief Parliamentary Counsel (b) the Supreme Court's inherent jurisdiction to restrict the publication or disclosure of information.". Division 9—Repeal of amending provisions 67 Repeal of Part 8 This Part is repealed on 1 December 2014. Note The repeal of this Part does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ s. 67 -- 43 of 44 -- Open Courts Act 2013 No. 58 of 2013 40 Authorised by the Chief Parliamentary Counsel ENDNOTES † Minister's second reading speech— Legislative Assembly: 27 June 2013 Legislative Council: 5 September 2013 The long title for the Bill for this Act was "A Bill for an Act to reform and consolidate provisions for and powers relating to suppression orders and closed court orders, to make consequential amendments to various Acts and for other purposes." Endnotes -- 44 of 44 --