New law to strengthen open justice

The Victorian Coalition Government has today introduced legislation into Parliament to strengthen and promote open justice in Victoria’s courts, Attorney-General Robert Clark announced today.

The legislation consolidates and reforms the general statutory powers for the courts and VCAT to make suppression orders and closed court orders.

It establishes clear presumptions in favour of allowing free reporting of court proceedings and holding hearings in public.

“This legislation is another significant step in the Coalition Government’s reforms to strengthen Victoria’s justice system,” Mr Clark said.

“Open justice demonstrates publicly that laws are being applied and enforced fairly and effectively. Unless there is good reason to the contrary, the community is entitled to know what is being said in court where there are allegations that the conduct of an individual or organisation is in breach of the law.

“Restrictions on publishing information before the courts should only be imposed where there is a very good reason and should be limited to a clear and specific purpose.”

Key features of the Bill include:
• suppression orders under courts’ general statutory power can only be made in specified limited circumstances where there is a strong and valid reason for doing so;
• the court must be satisfied on the basis of sufficient credible information that the grounds for making a suppression order are established;
• the type of information to which an order relates must be specified in the order and must be no more than is necessary to achieve the purpose of the order; and
• orders must be restricted in their duration. A court may only make an order for a fixed or ascertainable period, or until the occurrence of a specified future event. If there is a possibility that the future event will not occur, the order also must contain an expiry period that cannot be longer than five years.

Generally, orders restricting the reporting of court proceedings under the Bill can only be made where it is necessary to:
• prevent prejudice to the proper administration of justice;
• prevent prejudice to national or international security;
• protect the safety of any person;
• avoid undue distress or embarrassment to a party or witness in criminal proceedings involving a sexual offence or family violence; or
• avoid undue distress or embarrassment to a child who is a witness in a criminal proceeding.

The Bill does not alter the principle that matters that might prejudice a fair trial should not be reported ahead of a court hearing.

However, the Bill sets clear rules and guidelines for the making of any orders to suppress publication of such matters, to ensure those orders are limited to what is necessary and are not in force for longer than is necessary.

The Bill is based on a model Bill endorsed in 2010 by the Standing Committee of Attorneys-General. However, the Coalition Government has deliberately excluded from the Bill the sweeping and unclear ‘public interest’ ground for suppression orders that was included in the model Bill.

Instead, the Bill preserves specific statutory regimes that provide for the making of suppression orders where considerations other than those in the Bill are relevant, for example orders about serious sex offenders, child protection proceedings and other Children’s Court matters.

The Bill also preserves the existing grounds for VCAT and the Coroners Court to make suppression orders, reflecting the unique nature of those jurisdictions.

The Bill makes clear that news media organisations may appear and be heard by a court or tribunal on an application for a suppression order under the Bill.

Media organisations and other relevant persons are also given express statutory rights to seek review of orders that are made to ensure that interested parties can have their say on whether an order should be varied, revoked or renewed.

Where an interim order is made, the court must proceed to determine the substantive application as a matter of urgency.