Contempt of Court: Report (html)

6. Contempt powers of lower courts

Overview

• The proposed Act should set out the powers of all Victorian courts to deal with contempt.

• The County Court of Victoria should have the same powers as the Supreme Court to deal with contempt. The procedure and penalties in the proposed Act that apply to the Supreme Court should also apply to the County Court.

• There should be two exceptions. The County Court should not have the power to punish contempts committed in other courts. It should not have the power to punish contempt by publication of material undermining public confidence in the judiciary or courts.

• The Magistrates’ Court and the Coroners Court should have the power to punish as contempt witness misconduct and conduct that occurs in or near the courtroom and that interferes with a proceeding of that court. These types of contempt are defined in Chapter 7. There should be a lower maximum penalty in these courts.

• The Children’s Court should have the power to punish as contempt witness misconduct and conduct that occurs in or near the courtroom and that interferes with a proceeding of the court. The Children’s Court should have the power to deal, on referral, with contempts committed by children in other courts. Children accused of contempt should be dealt with under the Children, Youth and Families Act (2005) (Vic).

• The procedure for dealing with a contempt in the lower courts (other than the County Court) should be the modified procedure, discussed in Chapter 5, for dealing with a contempt in or near the courtroom that interferes with a proceeding. This procedure requires the presiding judicial officer to formulate a charge of contempt, supported by particulars, and order that the person be tried before a different judicial officer. The new procedure should be developed in consultation with the courts.

• Lower courts should have the power to refer a matter for the Supreme Court to consider whether it should commence contempt proceedings.

How should the proposed Act deal with lower courts?

6.1 Chapters 4 and 5 define and regulate the contempt powers of the Supreme Court of Victoria. This chapter deals with the contempt powers of other Victorian courts referred to here as ‘lower courts’:

• the County Court of Victoria

• the Magistrates’ Court of Victoria

• the Children’s Court of Victoria

• the Coroners Court of Victoria.

6.2 The legislation that establishes each of these courts also confers on those courts powers to punish for contempt. This chapter discusses the scope of these powers and what contempt power should be conferred on those courts by the proposed Act.

6.3 The proposed Act could confer on each lower court the power to deal directly with a person for any contempt arising in proceedings before that court. Another option would be for each lower court to refer possible contempts to be dealt with by the Supreme Court, which already has the inherent power to deal with contempts of lower courts.^[1]

6.4 The contempt jurisdiction of lower courts in other Australian jurisdictions varies greatly.^[2]

Responses

6.5 The consultation paper did not ask any questions about the contempt powers of lower courts in Victoria. Most stakeholders therefore did not address this issue. Further, this was largely unnecessary for those who supported recasting the law of contempt into ordinary criminal offences.

County Court

6.6 The County Court has the same power to deal with a contempt of the County Court as the Supreme Court has to deal with a contempt of the Supreme Court.^[3] This power was conferred on the County Court on the basis that:

the increasingly important role which the [County] court is expected to carry out in the administration of justice requires it to have a more extensive power to punish for contempt. It should be the same as that of the Supreme Court.^[4]

6.7 Order 75 of the County Court Civil Procedure Rules 2018 sets out the procedures for dealing with contempt. These procedures mirror those of the Supreme Court. There is no limit on the penalty that the County Court may impose on a person found guilty of contempt.

6.8 In its submission, the County Court stated that ‘As the major trial court in Victoria, the Court considers that contempt law plays a critical role in its ability to manage its proceedings and enforce its orders’.^[5]

6.9 Although the County Court has the same contempt powers as the Supreme Court, in practice contempts of the County Court are often dealt with directly by the Supreme Court. For example, the Supreme Court dealt with the contempt proceeding arising from the media reporting on the case of George Pell,^[6] and has also dealt with other high-profile contempt cases concerning the County Court.^[7]

Commission’s conclusions: retain the scope of the County Court’s powers

6.10 In the absence of submissions to the contrary, the County Court should have the same contempt powers as the Supreme Court under the proposed Act. The County Court is the forum for most jury trials in Victoria. Although it does not have the same overarching responsibilities as the Supreme Court to protect the proper administration of justice in Victoria, it should be empowered to deal with threats and disruptions to its own proceedings whether they occur inside or outside the courtroom.

6.11 There should be two exceptions. The County Court should not have power to punish a contempt of any other court. This is the responsibility of the Supreme Court. Further, as discussed in Chapter 11, the County Court should not have the power to deal with contempt by publication of material undermining public confidence in the judiciary or courts (scandalising contempt).

6.12 These powers should be set out in the proposed Act to ensure clarity and accessibility and should replace the contempt powers in the County Court Act 1958 (Vic). The proposed Act should provide that the County Court can only deal with a person for contempt under the proposed Act.

Recommendation

34 The contempt provisions in the County Court Act should be repealed and the proposed Act should confer on the County Court the same power to deal with a person for contempt as the Supreme Court except that the County Court should not have the power to punish:

• contempt of any other court

• contempt by publication of material undermining public confidence in the judiciary or courts (scandalising contempt).

Magistrates’ Court

6.13 Under its Act, the Magistrates’ Court has power only to deal with:

• contempts committed in the face of the court

• contempts by witnesses, such as not answering a summons, refusing to be sworn or affirmed, refusing to answer a lawful question and wilful prevarication.^[8]

6.14 For a contempt in the face of the court, the Magistrates’ Court can impose penalties of up to six months imprisonment or a fine of up to 25 penalty units.^[9] For contempts by witnesses, the maximum penalty is imprisonment of up to one month or a fine of up to five penalty units.^[10]

6.15 The Magistrates’ Court also has power under section 135 of its Act to enforce an order other than for the payment of money, by fining or imprisoning a person in default of a court order. This is not, however, referred to as a contempt power^[11] and is rarely used.^[12]

6.16 A member of the Magistrates’ Court told the Commission it would be better to have consistency across jurisdictions if a new Contempt of Court Act was introduced. The member acknowledged this would depend on the approach to reform and the extent to which it relied on the Supreme Court’s inherent contempt powers.^[13]

6.17 The Director of Public Prosecutions (DPP) submitted that, although the Supreme Court can deal with contempts of the Magistrates’ Court, often the matters are not suitable for Supreme Court litigation.^[14]

6.18 The DPP and Magistrates’ Court supported clarifying the procedure for dealing with contempts in the face of the court, so that the Magistrates’ Court can use its contempt powers more effectively.^[15]

Commission’s conclusions: retain the scope of the Magistrates’ Court’s powers

6.19 The Magistrates’ Court should have the power to deal itself with disruptions to its proceedings and recalcitrant witnesses. The Commission agrees with the DPP that some matters are better dealt with in the Magistrates’ Court.

6.20 Therefore, the Magistrates’ Court should have power to deal with contempts that occur in or near to the courtroom and interfere with a court proceeding and with witness misconduct.^[16] In Chapter 7, the Commission recommends making clear the conduct that constitutes these types of contempt. This will ensure greater consistency between jurisdictions.

6.21 As the Magistrates’ Court has more limited jurisdiction generally, it is appropriate to limit its jurisdiction to these types of contempt.

6.22 The penalty that the Magistrates’ Court may impose for contempt should continue to be more limited than the penalty available in the Supreme Court. This recognises that more serious contempts should be dealt with by the Supreme Court. The penalty that may be imposed by the Magistrates’ Court for contempt is discussed in Chapter 7. The Magistrates’ Court should retain the discretion to order early discharge from any term of imprisonment ordered.

6.23 The Magistrate Court’s contempt powers should be set out exhaustively in the proposed Act dealing with contempt. This should replace the current powers in sections 133 and 134 of the Magistrates’ Court Act 1989 (Vic).

6.24 The Commission makes no recommendations about the enforcement power under section 135 of the Magistrates’ Court Act. This is not currently expressed as a power to punish for contempt. No issues were raised in relation to that power in this inquiry. Chapter 8 discusses the need for a clearer, more consistent statutory regime for the enforcement of orders across Victorian courts and tribunals. In that chapter, the Commission recommends a broader review of enforcement mechanisms as this extends beyond the scope of this inquiry.

Recommendation

35 The contempt provisions in the Magistrates’ Court Act should be repealed and the proposed Act should confer on the Magistrates’ Court power to punish as a contempt witness misconduct and conduct that occurs in or near the courtroom and that interferes with a court proceeding. (This type of contempt is defined in Chapter 7.)

Children’s Court

6.25 The Children’s Court has the same powers to deal with contempt as the Magistrates’ Court.^[17] It is unclear whether it also has an enforcement power equivalent to section 135 of the Magistrates’ Court Act.^[18]

6.26 The Children’s Court does not have the power to commit a minor to prison for contempt. Instead, they can commit them to a youth justice or a youth residential centre.^[19] The Children’s Court can also deal with a person for contempt if the person is the author of a report to the Court and fails, without sufficient excuse, to attend and give evidence as required.^[20]

6.27 The Children’s Court submitted that it should have ‘the full suite of clear powers to deal with all forms of contempt’ but such powers should be used reluctantly and as a last resort. However, the Children’s Court also submitted that ‘where the contempt is egregious, or undermines the proper administration of justice, the full armoury of contempt powers should be available to the [Children’s Court] in legislation’.^[21]

6.28 In particular, the Children’s Court noted that, unlike other courts in Victoria, it does not have any clear statutory powers to enforce its own orders or issue remedies for non-compliance with its orders. The Children’s Court stated that it ‘requires a workable remedy for disobedience contempt by persons committing serious breaches of Court orders’.^[22] (See Chapter 8.)

Jurisdiction to deal with children accused of contempt before other courts

6.29 Although it rarely occurs, a child may be charged with committing a contempt of a court other than the Children’s Court.^[23] In this case, there is no legislation that provides for the matter to be transferred and dealt with by the Children’s Court.

6.30 This makes contempt different from other crimes committed by children, which are dealt with by the Children’s Court. The Criminal Division of the Children’s Court can hear and determine all charges against children for summary offences and for most indictable offences.^[24] The Supreme Court and County Court may order a proceeding for an

indictable offence to be transferred to the Children’s Court, if the accused consents and the court considers that the charge is appropriate to be determined summarily.^[25]

6.31 The Children’s Court has specialist staff, separate courtrooms, and a range of specialist services for children. Its governing legislation provides a complete framework for dealing with children accused of crime. This sets out the overriding consideration of the best interests of the child.^[26] It also includes special procedures with greater protections for children.^[27] This gives effect to the human right of a child ‘to a procedure that takes account of his or her age and the desirability of promoting the child’s rehabilitation’.^[28] Importantly, the Act also includes sentencing principles and options which are different from those that apply to adults.^[29]

Commission’s conclusions: give the Children’s Court the power to deal with contempt by children in other courts

6.32 The Children’s Court should continue to have the same contempt powers as the Magistrates’ Court. This means that it should only have power to deal with contempts that occur in or near to the courtroom and interfere with a court proceeding, and witness misconduct, as defined in Chapter 7.

6.33 As with the other courts, these powers should be exhaustively set out in the proposed Act, replacing the existing provisions. A further provision may be needed to replace the current power to deal with a report author who fails to attend the Children’s Court.

6.34 The Children’s Court should also have powers to deal with contempts committed by a child in other courts, or conduct which legislation allows the Supreme Court to deal with as a contempt of court. As discussed in Chapters 2 and 3, contempt is different from other offences and the jurisdiction that is exercised is not the ordinary criminal jurisdiction. However, the reasons children should be treated differently from adults in criminal proceedings also apply to contempt proceedings. The proposed Act should recognise this in two ways.

6.35 Any court should consider whether to transfer an application to punish a child for contempt to the Children’s Court for determination, provided that the child consents to the transfer.

6.36 This is consistent with existing powers of courts to transfer criminal matters to the Children’s Court. The proposed Act should confer jurisdiction on the Children’s Court to deal with any matter transferred in this way.

6.37 Further, in a contempt proceeding against a child, regardless of which court it is heard in, the procedural requirements of the Children, Youth and Families Act 2005 (Vic) should apply with any changes as needed.^[30]

6.38 As discussed in Chapter 5, the sentencing principles in the Children, Youth and Families Act should apply when a child is found guilty of contempt. Contempt is not such a unique crime that it needs different sentencing principles.

6.39 The concerns raised by the Children’s Court about its ability to enforce orders are discussed in Chapter 8. As noted in relation to the Magistrates’ Court, the Commission recommends in that chapter that there should be a further inquiry into the broader issue of enforcement of court orders.

Recommendations

36 The contempt provisions in the Children, Youth and Families Act should be repealed and the proposed Act should confer on the Children’s Court the power to punish as a contempt witness misconduct and conduct that occurs in or near the courtroom and that interferes with a court proceeding. (This type of contempt is defined in Chapter 7.)

37 The proposed Act should provide that any court should consider transferring an application to punish a child for contempt to the Children’s Court provided that:

• the child consents

• the court considers that it is appropriate for the charge to be determined by the Children’s Court.

38 The proposed Act should confer jurisdiction on the Children’s Court to deal with a matter transferred in this way.

39 The proposed Act should provide that in any contempt proceeding against a child the procedural requirements and sentencing principles of the Children, Youth and Families Act should apply.

Coroners Court

6.40 The Coroners Court has powers to deal with a person for contempt if the person does any of the following:

• wilfully fails to comply with a summons or order of a coroner or a judicial registrar

• insults an officer of the Coroners Court while that officer is performing functions as an officer of the Coroners Court

• insults, obstructs or hinders a person attending an inquest

• misbehaves at or interrupts an inquest

• obstructs or hinders a person from complying with an order of a coroner or a judicial registrar or a summons to attend the Coroners Court

• any other act that would, if the Coroners Court were the Supreme Court, constitute contempt of that court.^[31]

6.41 The maximum penalty is 12 months imprisonment or a fine of 120 penalty units, or in the case of a body corporate, a fine of 600 penalty units.^[32]

6.42 The Coroners Court has the same contempt powers as the County Court and the Supreme Court, including powers to deal with interferences with witnesses outside the courtroom and publications involving coronial proceedings. In other Australian jurisdictions, contempts in coronial proceedings have been dealt with by the Supreme Court.^[33]

6.43 The Coroners Court stated that the broad contempt powers of the Court were important for coroners in investigations and at inquests. The coronial jurisdiction is inquisitorial, and the coroner has responsibility for ‘investigating and advancing the case’. In that context, it submitted that a coroner’s contempt powers encourage people and organisations to comply with orders to provide documents for an investigation. The Coroners Court submitted that if non-compliance with an order could only be dealt with as a contempt by the Supreme Court or as a criminal charge this ‘would cause delay to the coronial investigation, increase costs and possibly impede the investigation itself’.^[34]

6.44 The Coroners Court also submitted that more guidance was needed on the procedure for dealing with a contempt.^[35]

Commission’s conclusions: give the Coroners Court the same powers as the Magistrates’ Court

6.45 The Commission considers that the Coroners Court, like the Magistrates’ Court, should have contempt powers to:

• allow the Court to control the orderly and safe conduct of proceedings before the Court

• enforce its powers to compel witnesses to attend and give evidence.

6.46 The Commission acknowledges the unique inquisitorial nature of the coronial jurisdiction. In support of this, the Coroners Act 2008 (Vic) includes provisions which:

• require certain people to give the coroner any information or other assistance that the coroner requests for the purposes of the coroner’s investigation^[36]

• confer coercive powers to gather evidence and compel the production of documents.^[37]

6.47 These provisions of the Coroners Act are supported by statutory penalties for non-compliance.^[38] The Commission considers that these provisions adequately support the inquisitorial function of the coroner, and it is therefore not necessary for the Coroners Court to have a broader contempt jurisdiction than the Magistrates’ Court.

6.48 The Commission also notes that the contempt powers of the Magistrates’ Court include powers to deal with witnesses who, when summoned, fail to attend or produce documents as lawfully required.

6.49 The Commission considers that, if conduct beyond that defined in Chapter 7 interferes with the proper administration of justice in the Coroners Court, then it is better dealt with in the Supreme Court or, in appropriate cases, as an ordinary criminal offence. Case law from other jurisdictions indicates that contempts of the Coroners Court can be dealt with in the Supreme Court.^[39]

6.50 Therefore, the Commission recommends that the contempt powers of the Coroners Court should be the same as those of the Magistrates’ Court.

6.51 The Commission recommends that, as with other courts, the powers of the Coroner to punish for contempt should be exhaustively set out in the proposed Act and replace the existing powers under section 103 of the Coroners Act.

6.52 The maximum penalty that the Coroners Court may impose for contempt is discussed in Chapter 7. In that chapter, the Commission recommends that the maximum penalty should be reduced to correspond with the penalty in the Magistrates’ Court. The Coroners’ Court should retain the discretion to order early discharge from any term of imprisonment ordered.

Recommendation

40 The contempt provisions in the Coroners Act should be repealed and the proposed Act should confer on the Coroners Court the power to punish as a contempt witness misconduct and conduct that occurs in or near the courtroom and that interferes with a court proceeding. (This type of contempt is defined in Chapter 7.)

Procedure in lower courts

6.53 One purpose of the proposed Act is to clarify the procedure for dealing with a contempt. This purpose is best served by procedures that are uniform across jurisdictions to the extent possible.

County Court

6.54 The proposed Act should provide that the County Court should use the same procedure for dealing with contempt as the Supreme Court. This procedure is discussed in Chapter 5. The same penalties should apply.

Other courts

6.55 The Magistrates’ Court, the Children’s Court and the Coroners Court all use the special summary procedure to deal with contempt in their jurisdictions. There is no other procedure, unlike in the County Court and Supreme Court. In Chapter 5, the Commission recommends abolishing the special summary procedure. This will mean a change of procedure in these courts.

6.56 In Chapter 5, the Commission has recommended a new procedure that may be used to deal with contempts that occur in or near the courtroom and interfere with a court proceeding and with witness misconduct. Under this procedure, the presiding judicial officer must issue and must particularise a charge of contempt, and direct that the charge be heard before a different judicial officer under the ordinary summary procedure, also discussed in Chapter 5.

6.57 This change may mean that the respective registrars of the Magistrates’, Children’s and Coroners Courts will need to assume responsibility for coordinating the prosecution of the contempt charge. Processes should be considered to support this change, especially in regional areas where it may be more difficult to arrange for another judicial officer to hear the matter or to brief external counsel. The process should be developed in close consultation with the courts to ensure that it is efficient and effective.

6.58 The Commission recommends that, as is now the case, parties other than the courts should not be able to commence a contempt proceeding in these courts. This does not prevent a party from bringing conduct that may be a contempt to a court’s attention or asking a court to exercise its powers to deal with the conduct.

6.59 In its submission, the Coroners Court stated that ‘it may be appropriate for either Victoria Police or the Court’s principal Registrar to be able to institute contempt proceedings in this jurisdiction’.^[40] The Commission considers this unnecessary in view of the recommendation to confine that Court’s contempt powers to witness misconduct and contempts occurring in or near the courtroom.

6.60 The proposed Act should provide for appeals from the lower courts if a conviction has been recorded or a penalty imposed. It should also clarify how the Criminal Procedure Act 2009 (Vic) applies for this purpose.

Referral to the Supreme Court

6.61 There is no legislation in Victoria that provides for a lower court to refer an alleged contempt to the Supreme Court. Lower courts generally depend on the DPP or Attorney-General to commence a contempt proceeding in the Supreme Court to punish a contempt of a lower court. This practice should be reflected in the proposed Act.

6.62 In New South Wales, lower courts can refer an alleged contempt to the Supreme Court to be determined.^[41] Where this occurs, the registrar of the Supreme Court ‘must commence proceedings for punishment of the contempt, and no direction from the Court is necessary to enable the registrar to do so’.^[42]

6.63 A court or other body may also refer a matter for the Supreme Court to consider whether a contempt proceeding should be commenced. In those cases, the Supreme Court Rules provide that the registrar must:

• take advice from the Crown Solicitor as to whether to commence proceedings

• unless the Court otherwise orders, act in accordance with the advice

• inform the Attorney-General of the matter.^[43]

6.64 This procedure helps the Supreme Court to fulfil its function of supervising the administration of justice in other courts. It means that the Supreme Court can deal with a contempt in a lower court, even if that court does not have power to punish a contempt (for example, if the contempt is by publication). It recognises that the contempt power is a judicial power and that lower courts should not have to depend on the executive to invoke the jurisdiction of the Supreme Court. It may also help lower courts if they are reluctant to deal with the matter because of uncertainty about the extent or exercise of their powers.

6.65 For these reasons, the proposed Act should enable the County Court, Magistrates’ Court, Coroners Court and Children’s Court to refer a matter for the Supreme Court to consider whether to commence a contempt proceeding. On receiving a referral, the Prothonotary should obtain and act on legal advice about whether to commence a contempt proceeding, subject to the direction of the Court.

Recommendations

41 The proposed Act should provide that the Supreme Court has jurisdiction to punish a contempt of a lower court.

42 The proposed Act should provide for the County Court to use the same procedure for dealing with contempt as the Supreme Court. The same penalties should apply.

43 The proposed Act should specify the procedure for contempt proceedings in the Magistrates’ Court, Children’s Court and Coroners Court. It should provide that the judicial officer before whom the alleged contempt occurred cannot adjudicate the alleged contempt and must:

• formulate the charge and particularise the conduct giving rise to the alleged contempt

• refer the alleged contempt to another judicial officer for hearing according to the ordinary summary procedure set out in Chapter 5.

44 The processes necessary to support this procedure, including in regional areas, should be developed in close consultation with the Magistrates’ Court, Children’s Court and Coroners Court.

45 The proposed Act should provide that where it is alleged, or appears to the County Court, Magistrates’ Court, Children’s Court or Coroners Court on its own view, that a person has committed contempt of court, the Court may refer the matter to the Supreme Court for consideration. On receiving a referral, the Prothonotary should obtain and act on legal advice about whether to commence a contempt proceeding, subject to the direction of the Court. The County Court, Magistrates’ Court, Children’s Court and Coroners Court may make such a referral regardless of whether the court has jurisdiction to deal with the contempt itself.

1. John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.05(1)(c).

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2. See Appendix H for a comparison of the contempt powers of courts in other Australian jurisdictions.

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3. County Court Act 1958 (Vic) s 54.

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4. Victoria, Parliamentary Debates, Legislative Assembly, 28 November 1985, 2607 (Mr Mathews, Minister for the Arts).

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5. Submission 31 (County Court of Victoria).

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6. Michael Pelly, ‘Thirty-six Media Outlets Cited for Pell Contempt’, The Australian Financial Review (online, 26 March 2019)
   
   <https://www.afr.com/companies/professional-services/thirtysix-media-outlets-cited-for-pell-contempt-20190326-h1ctf2>.

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7. See, eg, R v Sherwani [2017] VSC 147; R v Bonacci [2015] VSC 121; DPP (Vic) v Johnson [2002] VSC 583; R v Hoser & Kotabi Pty Ltd [2001] VSC 443.

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8. Magistrates’ Court Act 1989 (Vic) ss 133–4.

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9. Ibid s 133(4).

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10. Ibid s 134(3). The court may also order that, if the fine is not paid within a specified time, the person be imprisoned for up to one month.

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11. Magistrates’ Court Act 1989 (Vic) ss 135(3)–(4). A person who defaults on an order is liable to pay one penalty unit per day for every day during which the default continues (up to a maximum of 40 penalty units) or to be imprisoned for as long as the default continues (up to a maximum of two months imprisonment).

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12. Consultation 25 (Magistrates’ Court of Victoria).

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13. Ibid.

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14. Submission 28 (Director of Public Prosecutions).

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15. Ibid; Consultation 25 (Magistrates’ Court of Victoria).

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16. There are currently provisions peculiar to the Magistrates’ Court which provide that it is a contempt of court not to answer certain summonses issued under the Magistrates’ Court Rules or other various Acts: Magistrates’ Court Act 1989 (Vic) ss 134(5)–(6). Additional provisions may be required to accommodate these within the proposed Act.

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17. Children, Youth and Families Act 2005 (Vic) s 528(2).

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18. Submission 14 (Children’s Court of Victoria).

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19. Children, Youth and Families Act 2005 (Vic) s 528(3).

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20. Ibid s 550(4).

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21. Submission 14 (Children’s Court of Victoria).

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22. Ibid.

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23. In a recent case, a child was charged with contempt of the Chief Examiner and, as provided for by section 49 of the Major Crime (Investigative Powers) Act 2004, was dealt with (and punished) by the Supreme Court as though he had committed a contempt of an inferior court: R v Hopkins (a Pseudonym) [2018] VSC 756. The Court stated that the defendant was the first child contemnor to be sentenced by the Court: [21].

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24. Children, Youth and Families Act 2005 (Vic) s 516. Six offences, involving death, are currently excluded under section 416(1)(b). Section 356(6) also creates a presumption that certain other offences should be heard in a higher court, such as aggravated home invasion, carjacking or related terrorism offences. Section 356(8) also provides that, for some other offences, such as rape or home invasion, a court must consider whether there are exceptional circumstances which mean the charges should not be dealt with summarily and should be dealt with by a higher court. See generally Judicial College of Victoria, ‘23.2.3 Serious Youth Offences’, Children’s Court Bench Book (Online Manual, 5 April 2018) [23.2.3] <http://www.judicialcollege.vic.edu.au/eManuals/CHCBB/index.htm#66507.htm> .

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25. Criminal Procedure Act 2009 (Vic) s 168. For certain offences, there are other conditions that apply before the matter can be transferred to the Children’s Court: s 168A.

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26. Children, Youth and Families Act 2005 (Vic) s 10.

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27. For example, a duty to ensure legal representation and a prohibition on identifying children involved in proceedings: Children, Youth and Families Act 2005 (Vic) ss 524, 534.

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28. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(3).

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29. Children, Youth and Families Act 2005 (Vic) pt 5.3.

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30. For a discussion of how the Supreme Court should meet its responsibility to adopt procedures that take account of a child’s age and the desirability of promoting the child’s rehabilitation, see DPP v SL [2016] VSC 714, (2016) 263 A Crim R 193.

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31. Coroners Act 2008 (Vic) s 103(1).

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32. Ibid s 103(7).

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33. See, eg, A-G (NSW) v Mirror Newspapers Ltd [1980] NSWLR 374; Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540.

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34. Submission 34 (Coroners Court of Victoria—supplementary submission).

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35. Submission 21 (Coroners Court of Victoria).

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36. Coroners Act 2008 (Vic) pt 4 div 3.

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37. Ibid pt 4 div 4.

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38. Ibid ss 32–4, 37–8, 40, 42.

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39. A-G (NSW) v Mirror Newspapers Ltd [1980] NSWLR 374; Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540.

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40. Submission 21 (Coroners Court of Victoria).

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41. District Court Act 1973 (NSW) s 203; Local Court Act 2007 (NSW) s 24(4).

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42. Supreme Court Rules 1970 (NSW) r 55.11(3).

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43. Ibid r 55.11(6). See Prothonotary of Supreme Court of NSW v Chan (No 23) [2017] NSWSC 535 for discussion of how the Local and District Courts are currently not empowered to make a referral to the Supreme Court of this type, although other tribunals can do so.

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