Contempt of Court: Consultation Paper (html)

10. Enforcing laws that restrict publication

Introduction

10.1 This chapter considers the underlying principles for enforcement of prohibitions and restrictions on the publication of information, with reference to the law relating to contempt, the Judicial Proceedings Reports Act 1958 (Vic) and the Open Courts Act 2013 (Vic). This chapter discusses whether procedural, administrative and legislative changes are required, and can be implemented, to ensure these laws are effectively, consistently and fairly enforced.

10.2 This chapter focuses on the enforcement of laws that prohibit and restrict publication, including:

• definitions of ‘publication’ and features of online publication

• enforcement of Victorian laws outside of Victoria

• awareness of the laws and notification of court orders

• monitoring compliance

• responsibility for proceedings for breach

• fault elements that must be proven to establish breach

• existing penalties

• defences to alleged breaches

• enforcement of suppression orders with no end date that were made before the Open Courts Act 2013 (Vic) commenced.

10.3 In 2017, the Hon. Frank Vincent AO QC reviewed the scope, operation and underlying principles of the Open Courts Act 2013 (Vic).^[1] The Commission has been asked to consider these recommendations of the Open Courts Act Review, which are discussed below.

10.4 Open justice is a common law principle that requires the administration of justice to occur in public.^[2] Broadly speaking, it requires that courts are open to members of the public who wish to attend and that those who attend may report what they see and hear there, including the names of parties and witnesses and details about the evidence.^[3] The media has an important role in keeping the public informed about the courts by fairly and accurately reporting on cases.^[4]

10.5 Open justice can be limited by statutory and common law prohibitions and restrictions on publishing information about cases that are necessary to secure the proper administration of justice.^[5]

10.6 The law of contempt, the Judicial Proceedings Reports Act and the Open Courts Act prohibit and restrict the publication of information about cases in Victoria. As these laws sanction departures from the open justice principle, this principle must be considered when assessing their application and enforcement.

10.7 Courts apply and enforce prohibitions and restrictions on publication for a range of reasons, including protecting the identities of people involved in cases, such as child witnesses, or shielding jurors from prejudicial material about an accused person who is on trial. Effective enforcement is critical to securing fair trials for parties, witnesses, victims and the community.

10.8 The internet and other modern technologies challenge the courts’ ability to enforce prohibitions and restrictions on publication. If prohibitions and restrictions are rendered futile, there may be significant implications for the maintenance of fair trials and public confidence in the court system.

10.9 The key prohibitions and restrictions examined in this reference are:

• statutory prohibitions and restrictions that apply automatically, without the need for a court order, such as provisions under the Judicial Proceedings Reports Act^[6]

• proceeding suppression orders, interim orders and broad suppression orders made by courts using their statutory powers under the Open Courts Act 2013 (Vic)^[7]

• common law suppression orders made by the Supreme Court of Victoria in its inherent jurisdiction and the County Court of Victoria exercising aspects of the Supreme Court’s inherent jurisdiction^[8]

• pseudonym orders made by courts under the common law^[9]

• the common law of sub judice contempt.

Open Courts Act Review—recommendations

10.10 The purpose of the Open Courts Act Review, which recommended the Commission’s current review, was to consider whether the Open Courts Act was:

striking the right balance between the need for open and transparent justice, and the need to protect the legitimate interests of victims, witnesses and accused persons, and to preserve the proper administration of justice.^[10]

10.11 The Open Courts Act Review made several recommendations that are particularly relevant to the enforcement of prohibitions and restrictions on publication, including:

• Recommendation 4: that the Victorian Law Reform Commission report on possible reform of the Judicial Proceedings Reports Act 1958 (Vic) and codification of the law of contempt of court, including the legal framework and processes for enforcement, to ensure a consistent approach to principle and practice for suppression orders and related areas

• Recommendation 5: that harmonisation of the law and practice among the states and territories relating to suppression orders be referred to the Council of Attorneys-General for further consideration. Whether or not this referral occurs, the Open Courts Act Review recommended that the Council of Attorneys-General be asked to consider the desirability of developing a system for interstate and territory recognition and enforcement of suppression orders.

• Recommendation 7: that there be established a central, publicly accessible register of suppression orders made by all Victorian courts and tribunals containing details of their terms and duration and, to the extent reasonably possible in the circumstances, the reasons for them

• Recommendation 18(4): that the Public Interest Monitor report annually to the Attorney-General for Victoria on the operation of the Open Courts Act 2013 (Vic) provided it receives additional funding and resources to do so, among other additional powers.^[11]

Implementation of recommendations

10.12 Legislative amendments to the Open Courts Act, Judicial Proceedings Reports Act and Children, Youth and Families Act 2005 (Vic) that fully or partially implement Recommendations 1, 2, 3, 6, 9, 13, and 15 of the Open Courts Act Review were recently passed by the Parliament of Victoria.^[12]

10.13 The Victorian Government supported Recommendations 4, 5 and 7 in its response to the Open Courts Act Review, but Recommendation 18 was ‘subject to further consideration’.^[13]

10.14 The Open Courts Act Review considered that broad adoption of its recommendations would improve monitoring and enforcement of suppression orders and help to identify systemic issues.^[14] The recommendations are discussed at various points in this chapter.

Data about enforcement

Orders under the Open Courts Act

10.15 The enforcement of legal prohibitions and restrictions on publication is a contentious topic in Victoria among government officials, courts, legal practitioners and the media.^[15]

10.16 The Commission’s further examination of enforcement processes would be enhanced by an understanding of the volume of prohibitions and restrictions made by courts, current enforcement processes and the extent to which prohibitions and restrictions are monitored and enforced.

10.17 Reviews and studies provide publicly available statistics about the enforcement of prohibitions and restrictions on publication, particularly orders made under the Open Courts Act 2013 (Vic). Some studies have acknowledged gaps in their data.

10.18 The data analysis in the Open Courts Act Review focuses on suppression orders issued between 1 January 2014 and 31 December 2016. During that period, under the Open Courts Act:

• The Supreme Court, including the Court of Appeal, made 173 suppression orders.

• The County Court made 377 suppression orders.

• The Magistrates’ Court made 430 suppression orders.^[16]

10.19 The Open Courts Act Review also recorded that the Supreme Court made 13 orders and the County Court made one order in their inherent jurisdiction between 1 January 2014 and 31 December 2016.^[17]

10.20 Jason Bosland, Deputy Director of the Centre for Media and Communications Law at Melbourne Law School, published a study on suppression orders made under the Open Courts Act in the first two years of its operation and the Supreme Court’s common law powers. The study found that between 1 December 2013 and 30 November 2015:

• The Supreme Court made 66 suppression orders.

• The County Court made 230 suppression orders.

• The Magistrates’ Court made 190 suppression orders.^[18]

10.21 At this stage, the Commission is unable to access data about the number of prosecutions for breaches of orders under the Open Courts Act and the outcomes of any such prosecutions.

Consent to prosecute under the Judicial Proceedings Reports Act 1958 (Vic)

10.22 A prosecution for breach of the prohibitions and restrictions under the Judicial Proceedings Reports Act can be commenced only with the consent of the Director of Public Prosecutions (DPP).^[19]

10.23 Since June 2000, the DPP has consented to four prosecutions for breach of the Judicial Proceedings Reports Act.^[20] Annual reports of the Office of Public Prosecutions do not record whether there were requests for consent to prosecute that the DPP refused.

Data about initiation of proceedings for contempt by the Director of Public Prosecutions

10.24 The two most recent annual reports of the Office of Public Prosecutions do not provide statistics about contempt prosecutions. Annual reports from 2000 and 2018 reported the following statistics regarding the number of contempt proceedings commenced by the DPP:

Access to data

10.25 There are gaps in the publicly available data about:

• the number of proceedings for contempt of court for alleged breaches of common law suppression orders made in Victorian courts

• the number of prosecutions for alleged breaches of orders made under the Open Courts Act in Victorian courts

• the number of requests to the DPP for consent to prosecute alleged breaches of the Judicial Proceedings Reports Act

• the number of proceedings for sub judice contempt in Victorian courts

• the parties against whom proceedings for breaches of prohibitions and restrictions on publication are brought

• the processes which courts and other agencies use to monitor and address potential breaches of the law of contempt, the Judicial Proceedings Reports Act and the Open Courts Act

• the outcomes of proceedings for contempt of court for breaches of common law suppression orders, breaches of orders under the Open Courts Act, breaches of the Judicial Proceedings Reports Act and proceedings for sub judice contempt.

Definitions of ‘publication’

10.26 Prohibited and restricted information about court cases must have been ‘published’ for liability to arise under the law of sub judice contempt, the Judicial Proceedings Reports Act and the Open Courts Act. The nature of ‘publication’ and its current definition under these laws must therefore be examined in order to properly consider reforms to enforcement processes.

10.27 Definitions of ‘publication’ can include or refer to:

• how information is made available, such as the distribution of a book or provision of access to archived material

• the media through which information is published, such as a book, newspaper, radio or television broadcast or website

• where information is published, such as a publication by a newspaper based in Victoria or on the website of a media organisation based outside Australia

• the identities of individuals and entities publishing information, such as media organisations, journalists and members of the public

• the identities of individuals and entities receiving information, such as the public in general, or a section of the public, such as jurors.

10.28 This chapter discusses these issues as they arise in the enforcement of prohibitions and restrictions on online publications.

Online publication

10.29 The law has always needed to adapt to developments in society, technology and communication. In 1974, the Committee on Contempt of Court in England described television as a new form of communication with a ‘powerful impact on the public’.^[22]

10.30 In 2002, a majority of the High Court of Australia stated in the defamation case Dow Jones & Co Inc v Gutnick:

In the course of argument much emphasis was given to the fact that the advent of the World Wide Web is a considerable technological advance. So it is. But the problem of widely disseminated communications is much older than the internet and the World Wide Web. The law has had to grapple with such cases ever since newspapers and magazines came to be distributed to large numbers of people over wide geographic areas. Radio and television presented the same kind of problem as was presented by widespread dissemination of printed material, although international transmission of material was made easier by the advent of electronic means of communication.^[23]

10.31 Though technological developments are not new, each development creates new challenges for existing laws and the courts enforcing them.

10.32 Chief Justice Warren and Acting Justice of Appeal Byrne of the Victorian Court of Appeal have described online information as having four unique characteristics:

• it is permanent,

• it lacks a specific location,

• it is easily accessible,

• it can be copied and published on other websites outside Victoria.^[24]

10.33 Prohibited and restricted information can be published online by different individuals and entities in a range of ways. In Commonwealth Director of Public Prosecutions v Brady, the suppressed material was published through the original publication of the suppression order by Wikileaks, republications of the order and various ‘articles, tweets and blogs which refer in some way’ to the order, including by reposting the order, naming people mentioned in the order or linking to the order on Wikileaks.^[25]

10.34 Online publication of information raises legal and practical issues for courts seeking to enforce prohibitions and restrictions on publication under the law of contempt, the Judicial Proceedings Reports Act and the Open Courts Act. These issues include:

• how to define ‘publication’

• the courts’ power to enforce Victorian laws in other Australian states and territories and in foreign countries

• identifying the original publisher of information posted online when the information has been republished multiple times or was originally published anonymously

• how courts determine the liability of online intermediaries, such as internet service providers and social media companies

• how courts approach enforcement when prohibitions or restrictions on publication are rendered futile by subsequent events, such as the posting, sharing and discussion of suppressed information on social media networks like Facebook, Twitterand Instagram.

Definitions of ‘publication’

10.35 There are different definitions of, and references to, ‘publication’ in the law of contempt, the Judicial Proceedings Reports Act and the Open Courts Act. There are also definitions of ‘publication’ in other areas of the law which are not the subject of this review, such as defamation and copyright.

10.36 Under the Open Courts Act, ‘publish’ means disseminate or provide access to the public, or a section of the public, by any means, including:

• publication in a book, newspaper, magazine or other written publication

• broadcast by radio or television

• public exhibition or broadcast

• electronic communication.^[26]

10.37 The word publication must be construed according to this definition.^[27]

10.38 Section 4 of the Judicial Proceedings Reports Act has the same definition of publish as the Open Courts Act, but it does not expressly require that publication be construed according to the definition of publish. ^[28]

10.39 Publication under section 4 of the Judicial Proceedings Reports Act is permitted ‘for a purpose connected with a judicial proceeding’.^[29] In Hinch v Director of Public Prosecutions, the Victorian Court of Appeal considered when a matter would be considered to be published ‘for a purpose connected with a judicial proceeding’. The Court of Appeal held that the words may ‘have to be narrowly construed in order to preserve the operation of the prohibition in section 4(1A)’, and that the phrase ‘will save only a publishing that is for a purpose having a real and direct link with the furtherance or conduct of a judicial proceeding’. The phrase would not encompass public criticism of a judicial proceeding,

whether legitimate or not, nor any campaign designed to gather support for judicial proceedings to be commenced.^[30]

10.40 Section 3 of the Judicial Proceedings Reports Act has no definition of ‘publish’ or ‘publication’ but makes several references to publication.^[31]

10.41 Under the Open Courts Act and Judicial Proceedings Reports Act the definition of ‘publish’ is broad and inclusive. Most online communications would likely be an ‘electronic communication’ or another ‘means’ of dissemination or provision of access.

10.42 Under the law of sub judice contempt, publications can include newspapers,^[32] online news,^[33] radio broadcasts,^[34] television,^[35] and statements to the media.^[36] To be published, material must be made available to the public, or to a section of the public likely to include those connected with a case.^[37] The definition of publication under the law of sub judice contempt is discussed in detail in Chapter 7.

10.43 A key issue in this reference is whether the law of sub judice contempt requires restatment in statute, including the definition of publication to clarify the scope and application of the law.

Definitions of ‘public’ and ‘a section of the public’

10.44 It is unclear when people and organisations, including online intermediaries, are considered to have disseminated, or provided access, ‘to the public’ or ‘a section of the public’. If a person posts suppressed information about a case on their Facebook page:

• Has the person disseminated it or provided access to it to the public or to a section of the public?

• To what section of the public must a person have disseminated the information or provided access to it for it to be a publication?

10.45 For example, does sending a private message to a group of friends on social media or a private email satisfy the requirement that the material is made available to a section of the public?^[38]

Duration of publication

10.46 Existing definitions of publication may impact harshly on certain online publishers. In a sub judice contempt case, a majority of the Court of Appeal found that the publication of online material occurs for as long as the material is available online.^[39]

10.47 This definition is particularly problematic for publishers or managers of archived online material. For instance, a publisher who posts an article online about a person convicted of criminal offences may become liable for sub judice contempt if the convicted person is later put on trial for further criminal offences while the article remains accessible.

Liability of online intermediaries

10.48 The Australian Law Reform Commission has defined an intermediary as:

An entity that provides services that enable online content to be provided to the public and includes content platforms, application service providers, host providers and internet access providers.^[40]

10.49 Different types of intermediary can enable and restrict access to information online, including:

• telecommunications providers, such as Telstra

• internet service providers

• content hosts

• search engines, such as Google

• social media platforms, such as Facebook and Twitter

• e-commerce and payment providers, such as PayPal.^[41]

10.50 The liability of online intermediaries for the actions of third parties, such as the liability of Facebook for a person’s Facebook post, is ‘confusing’, ‘largely incoherent’ and has developed separately in different areas of Australian law, according to Kylie Pappalardo and Nicolas Suzor.^[42] The issue has not yet been considered by Australian courts in a case of sub judice contempt.^[43] The liability of intermediaries for automated search results, emails and notifications that give rise to publications is also a critical question in this area of the law.^[44]

10.51 There are two main issues with assessing the liability of intermediaries:

• Many internet intermediaries do not have control over the content of the information that goes through their systems, though they may be able to include or exclude certain information.^[45] Given the volume of material published online, liability for the content of such publications may be an unfair burden on an intermediary that had no knowledge of, or control over, a publication.

• There may not always be a local distributor to hold liable when content is published from foreign jurisdictions.^[46] An online distributor may be anonymous^[47] or outside the jurisdiction.^[48] Enforcement of prohibitions and restrictions on publication outside of Victoria is discussed later in this chapter.

10.52 Under Commonwealth law, statutory provisions regulate the liability of certain online intermediaries for ‘internet content’.^[49] Clause 91 of Schedule 5 of the Broadcasting Services Act 1992 (Cth) provides that a state or territory law, or a rule of common law or equity, has no effect to the extent to which it:

• subjects, or would have the effect (whether direct or indirect) of subjecting, an internet content host to liability (whether criminal or civil) in respect of hosting

particular internet content in a case where the host was not aware of the nature of the internet content; or

• requires, or would have the effect (whether direct or indirect) of requiring, an internet content host to monitor, make inquiries about, or keep records of, internet content hosted by the host; or

• subjects, or would have the effect (whether direct or indirect) of subjecting, an internet service provider to liability (whether criminal or civil) in respect of carrying particular internet content in a case where the service provider was not aware of the nature of the internet content; or

• requires, or would have the effect (whether direct or indirect) of requiring, an internet service provider to monitor, make inquiries about, or keep records of, internet content carried by the provider.^[50]

10.53 Under the Broadcasting Services Act:

• Clause 90 declares that the schedule is not intended to exclude a state or territory law, including a Victorian law, to the extent to which that law can operate concurrently with Schedule 5.

• A state or territory law, or rule of common law or equity, can be exempted from the operation of clause 91.^[51]

10.54 An aim of the Broadcasting Services Amendment (Online Services) Act 1999 (Cth), which introduced clause 91, was to prevent intermediaries being unfairly burdened with monitoring or enquiring about content and to encourage the development of internet technologies.^[52]

10.55 These provisions are important to consider when assessing proposed reforms that seek to address the liability of online intermediaries.

Possible reforms—laws concerning publication

Clarifying and harmonising definitions

10.56 One reform option is a revised and harmonised definition of ‘publication’ in the Open Courts Act and the Judicial Proceedings Reports Act, which would specify when a person or organisation has disseminated or provided access to the public or a section of the public.

10.57 Such amendments may also more precisely define what material, particularly online material, is a publication under these laws, through expanded definitions or the inclusion of examples in the statute.

10.58 Alternatively, a revised and harmonised definition of publication could include an exemption for private communications,^[53] such as a personal email between two individuals.

10.59 If the law of sub judice contempt were wholly or partially restated in statute, this reform may include harmonising the definition in the law of sub judice contempt with other definitions of publication in statutes such as the Judicial Proceedings Reports Act and Open Courts Act. This is discussed in Chapter 7.

10.60 Given the volume and reach of online communications, it is important to consider whether alterations to definitions of publication would create practical impediments to enforcement, such as placing an unrealistic burden on particular agencies to monitor online content.

Clarifying the liability of online intermediaries

10.61 Another reform option is the enactment of new statutory provisions, or the amendment of existing provisions, to clarify aspects of the liability of online intermediaries and their responsibility for monitoring, making enquiries and removing prohibited and restricted information published on their platforms. This is also a relevant consideration for any legislative restatement of the law of sub judice contempt.

10.62 Reform options in this area need to take account of:

• the existing regulation of internet content hosts and internet service providers under Commonwealth law, particularly the Broadcasting Services Act

• provisions in the Broadcasting Services Act that limit the application of Victorian statutes and the common law to the regulation of internet content hosts and internet service providers.

10.63 The New South Wales Law Reform Commission supported the aims of the Broadcasting Services Amendment (Online Services) Act, which introduced clause 91 of the Broadcasting Services Act.^[54] The NSW Commission recommended, however, that internet content hosts and service providers that become aware they are carrying or hosting a contemptuous publication should be obliged to take steps within their means to prevent it from continuing to be published, in line with their obligation to remove content after formal notification by the Australian Broadcasting Authority.^[55]

10.64 One reform option is that any such statutory provisions may specify which online intermediaries are liable for the publication of prohibited or restricted information, such as by amending definitions or providing examples in the legislation that refer to particular intermediaries.

Questions

43 Should the terms ‘publish’ and ‘publication’ be defined consistently? If so, how should these terms be defined?

44 Are there any other issues arising out of the definitions of ‘publish’ and ‘publication’ that should also be addressed?

45 To what extent are potential reforms to the definition of the terms ‘publish’ and ‘publication’ affected or limited by Commonwealth law?

46 What reforms, if any, should be made to address the liability of online intermediaries for the publication of prohibited and restricted information?

Jurisdiction

Enforcement in Victoria

10.65 Victorian courts can enforce prohibitions and restrictions on information that is published within Victoria, whether the information is published in print, by broadcast, online or through any other medium.

10.66 Information posted online is available to anyone who can access the internet, without geographic limitations.^[56] Courts can struggle to enforce prohibitions and restrictions on publication when the relevant information is published by individuals and entities who are not bound by Victorian laws and court orders.

Enforcement in Australia

10.67 Prohibitions and restrictions on publication of information vary in their applicability to jurisdictions outside Victoria.

10.68 Under the Open Courts Act 2013 (Vic), proceeding suppression orders and interim orders apply to the publication or disclosure of information in a place specified in the order.^[57] Broad suppression orders made in the Magistrates’ Court only apply to the publication of material in a place specified in the order.^[58] These orders can apply anywhere in Australia, but an order cannot apply outside Victoria unless the court is satisfied it is necessary for an order to apply outside Victoria in order to achieve the purpose for which the order was made.^[59]

10.69 Section 3(2) of the Judicial Proceedings Reports Act states that it is not lawful to:

sell distribute or give away or cause or procure to be sold distributed or given away or to have in possession for sale distribution or giving away any newspaper or document (whether printed or published in Victoria or elsewhere) containing or purporting to contain any matter or details or particulars the printing or publication of which would if the newspaper or document were printed or published in Victoria be a contravention of the provisions of this section.^[60]

10.70 Section 3(2) of the Judicial Proceedings Reports Act does not, however, empower Victorian courts to exercise their jurisdiction outside of Victoria. Rather, it prohibits the sale and distribution of publications which are prohibited or restricted in Victoria, but published ‘elsewhere’ and brought into Victoria. Section 3 was originally enacted in 1929, when newspapers were the primary focus of publication provisions.^[61]

Enforcement in foreign jurisdictions

10.71 The online publication of prohibited or restricted information about a court case may render the prohibition or restriction futile.

10.72 In June 2014, Justice Hollingworth of the Supreme Court issued a suppression order sought by the Commonwealth Department of Foreign Affairs and Trade (DFAT) in a high-profile case alleging corruption involving foreign public officials. Some of the terms of the order could not published without disclosing the suppressed information. WikiLeaks published the order online in July 2014 and many Australian and foreign media organisations and bloggers republished it.^[62] Most republications of the suppression order after the initial publication by

Wikileaks were in Asia, but they were available for download in Australia.^[63] At that time,

Wikileaks’ server was hosted in Sweden and there were reportedly other servers located in other jurisdictions, but none in Australia.^[64]

10.73 In revoking the order, Justice Hollingworth found:

The widespread on-line dissemination that has already occurred cannot now be undone. Whilst the court has power to make orders which have effect within Australia (including orders requiring the removal of material already published in this country), it cannot make orders controlling publication of the DFAT order outside Australia. And, unlike the case with most suppression orders, it is the publication overseas that has the capacity to cause the greatest harm. … There is no rule that automatically prevents suppression orders from being made or continued, in respect of information that has already been published. However, the court’s ability to enforce its order, and protect against the threatened harm, are likely to be highly relevant.^[65]

10.74 In his analysis of Commonwealth Director of Public Prosecutions v Brady, Jason Bosland commented that it would be a ‘perverse result’ if courts attempted to garner respect for their authority and promote compliance with orders by insisting that orders continue when they are no longer useful.^[66] In agreeing with Justice Hollingworth’s decision to revoke the order, Bosland argued that courts cannot allow futile orders to continue because the making and continuation of orders is subject to a strict test of necessity and a futile order cannot be considered necessary.^[67]

10.75 Enforcing prohibitions and restrictions on publication against the local distributor of a publication, or local office of a company, is one approach to enforcement where the publication is online. For instance, in 1957, the United Kingdom distributors of an American magazine were found liable for the prejudicial content it contained.^[68] The Queen’s Bench stated:

We shall impose a fine (albeit of a nominal amount) and we do so to emphasise the risk which is run by dealing in foreign publications imported here but which have no responsible editor or manager in this country. The distributors are the only persons who can in these circumstances be made amenable in the courts of this country.^[69]

10.76 There are difficulties with this approach when material is published online. An online distributor may be outside the jurisdiction,^[70] and there may not be a local distributor to hold liable.^[71] An online distributor may also be anonymous,^[72] making it difficult for courts to identify the original source of the publication so as to determine liability.

10.77 Recently, the DPP initiated proceedings for contempt in the Supreme Court of Victoria against 36 organisations and individuals in the media for allegedly breaching a suppression order restricting publication of information about the conviction of Cardinal George Pell for child sex offences. International media organisations had published stories reporting on Pell’s conviction. In court documents, the DPP alleges, in part, that the organisations and individuals ‘aided and abetted overseas media’s contempt’.^[73] A directions hearing in this case took place in the Supreme Court on 15 April 2019 and the matter has been set down for a further directions hearing on 26 June 2019. The matter is yet to be fixed for hearing.

Possible reforms—enforcement outside Victoria

Statutory provisions with extraterritorial application in Australia

10.78 The Victorian Parliament can enact provisions in Victorian legislation which purport to have extraterritorial application if a sufficient connection with Victoria can be demonstrated. There are a number of these provisions in the Crimes Act 1958 (Vic).^[74]

10.79 A reform option is the enactment of criminal offence provisions in the Crimes Act, the Open Courts Act or another statute, that permit Victorian authorities to prosecute breaches of prohibitions and restrictions on publication that occur outside Victoria, but which may affect legal proceedings within Victoria.

Interstate and territory recognition and enforcement of orders

10.80 One reform option is the further development of a system for the mutual recognition and enforcement of Victorian orders in other states and territories in Australia.

10.81 This option is reflected in the Open Courts Act Review, which recommended that the Council of Attorneys-General be asked to consider the desirability of developing a system for interstate and territory recognition and enforcement of suppression orders.^[75]

10.82 In its response to the Open Courts Act Review, the Victorian Government supported this recommendation and stated that at the Council of Attorneys-General meeting on 1 December 2017, jurisdictions had agreed that the Commonwealth Government would undertake a stocktake of the suppression order regimes operating across Australia.^[76] This was noted in the Council of Attorneys-General communiqué from December 2017.^[77] The Council of Attorneys-General communiqué from November 2018 provided an update:

Participants noted that the Australian Attorney-General’s Department has undertaken a review of the suppression order regimes operating at the federal and state and territory levels. Participants also noted that the review has highlighted that the implementation of the former Standing Committee of Attorneys-General’s (SCAG) model legislation in respect of suppression orders varies across jurisdictions.^[78]

10.83 The current status of this stocktake and any resulting developments is unclear. Reform options would need to take account of the work of the Council of Attorneys-General in this area, and other developments at the federal, state and territory level to advance interstate and territory recognition and enforcement of orders.

International recognition of prohibitions and restrictions

10.84 A key concern for the enforcement of prohibitions and restrictions is the effect of breaches and the courts’ inability to properly enforce orders on the proper administration of justice and public confidence in the courts.

10.85 Current and proposed approaches to identifying, preventing and addressing breaches of prohibitions and restrictions by publications outside Victoria are an important consideration in this review.

10.86 A further reform option is the creation of a recognition and enforcement regime for Victorian or Australian orders in foreign jurisdictions. There would be significant legal and practical impediments to establishing such a system, including:

• costs of establishing and maintaining the system

• logistical complexities of working with other jurisdictions

• responsibility for establishing and maintaining the system

• the potential for the law and the courts to be brought into disrepute by the creation and operation of an ineffective regime.

Question

47 Should the law seek to enforce prohibitions and restrictions on publication:

(a) in other Australian states and territories?

(b) in foreign jurisdictions?

If so, how should this be achieved?

Awareness of prohibitions and restrictions

10.87 For the purposes of the offences under the Open Courts Act, a person will be considered aware that a proceeding suppression order, interim order or broad suppression order is in force if a court or tribunal has ‘electronically transmitted notice’ of it to them, in the absence of evidence to the contrary.^[79] There is no equivalent provision in the Open Courts Act for common law orders made under the courts’ inherent jurisdiction.

10.88 The prohibitions and restrictions on publication under the Judicial Proceedings Reports Act apply automatically, without the need for a court order, so there are no procedures for notifying people of their application.

10.89 The common law of sub judice contempt applies automatically. There is no issuing of a court order or formal notification process that alerts a person that proceedings are pending for the purposes of sub judice contempt. The question of when proceedings are considered pending for the purposes of sub judice contempt is uncertain. This issue is discussed in Chapter 7.

Court notification process

10.90 There is a central, internal database of suppression orders, which collates suppression orders made by Victorian courts. The Supreme Court provides some information about its notification process in a practice note.^[80] The Open Courts Act Review described the process of notification generally across the courts:

Briefly, each court either directly notified media organisations that had already expressed an interest in the proceeding in question or communicated the terms of orders through an email system to the email addresses of news media organisations that had registered with the court that they would like to receive such notices.^[81]

10.91 Currently, there are no statistical records of notifications of orders.^[82]

10.92 There are numerous issues with this process, including:

• People cannot independently check whether a suppression order exists in a particular case.

• There are time delays between the making of an order in court and the uploading of the order to the database.

• Court staff may not have the time or resources to promptly upload orders to the database for distribution.

• Court staff who are tasked with uploading or distributing orders may be absent.

• It is unclear how courts determine who is permitted to access suppression orders.

• It is difficult to track who has been notified of orders and other data.

10.93 A lack of clarity in notification processes can also challenge authorities seeking to prosecute people for alleged breaches of orders. The DPP has commented on the difficulty of establishing that a person had the knowledge or recklessness required to prove an offence under sections 23 and 27 of the Open Courts Act, when a person is not on the courts’ email distribution list by which media representatives are notified of suppression orders.^[83] The Open Courts Act Review noted that while this approach appeared to have worked reasonably well for major media organisations, an ‘increasing number’ of individuals and organisations are not covered by this system.^[84]

10.94 Media organisations have described the timeliness of notifications as poor.^[85] Michael Bachelard, Investigations Editor of The Age and foreign editor for The Age and Sydney Morning Herald, noted that the courts’ email distribution process was ‘problematic because the text of suppression orders were not easily searchable, particularly where the content of the email attaching a suppression order misspelt critical details’.^[86] Mr Bachelard also said it was difficult to keep track of limits on publication in individual cases because a number of suppression orders were received each day from the courts, with multiple communications issued where orders were varied.^[87]

Possible reforms—notifying the public

Database for orders

10.95 One reform option is the establishment of a searchable and/or public database of Victorian suppression orders. The Open Courts Act Review recommended the creation of a:

central, publicly accessible register of suppression orders made by all Victorian courts and tribunals containing details of their terms and duration and, to the extent reasonably possible in the circumstances the reasons for them …^[88]

10.96 Public access to a register of suppression orders is currently available in South Australia.^[89] The Supreme Court of Tasmania has a public database of suppression orders on its website.^[90] It is unclear if this database includes all suppression orders issued in Tasmania.

10.97 At the time of writing, some suppression orders on the Supreme Court of Tasmania’s database cannot be downloaded, either because there is no link to the order or a note saying ‘refer to Registrar’. The website includes the date when orders were rescinded.^[91]

10.98 In submissions and consultations for the Open Courts Act Review, Mr Bachelard, the Media, Entertainment and Arts Alliance, barrister Haroon Hassan and academic Jason Bosland called for a searchable notification system.^[92] Mr Hassan commented that if transparency was an important value, courts need to transition to a more public notification system instead of emailing orders to undisclosed media groups.^[93] Australia’s

Right to Know Coalition recommended a searchable database in its 2008 report on suppression orders and media access to court documents and information.^[94]

10.99 The Media, Entertainment and Arts Alliance also asked that consideration be given to making notifications quicker once orders are made.^[95]

10.100 Key questions that would need to be addressed in the design and operation of any database include:

• Who should be responsible for designing, developing and maintaining the database?

• Should the database be public?

• Should the database be searchable?

• Should the database be digital?

• Should the database be online?

• If the database is searchable, how should it secure sensitive information in orders, such as the identity of police informers?

• If the database is searchable and sensitive information database is anonymised, how could people searching the database seek proper notification of orders?

• If the database is not public, what processes should be in place to determine who is granted access, and why?

10.101 The Open Courts Act Review suggested that a potential body to operate a central, publicly accessible register of suppression orders was Court Services Victoria.^[96]

10.102 A further issue is how to define ‘the media’ for the purposes of providing access to orders. The Open Courts Act defines ‘news media organisation’, but that definition does not determine who would be permitted to access a database of orders that is not publicly available. A news media organisation is defined under the Open Courts Act as:

• a commercial enterprise that engages in the business of broadcasting or publishing news

• a public broadcasting service that engages in the dissemination of news through a public news medium.^[97]

10.103 This definition does not sufficiently cover all interested parties who may seek access to suppression orders. Examples of other parties who may be interested in accessing suppression orders include:

• an author writing a book

• an academic researcher

• a film or television production company.

Public versions of orders

10.104 Australia’s Right to Know Coalition recommended in 2008 that courts could consider drafting a brief, public version of the order to prevent the publication of sensitive information, such as the identity of a police informer. There would then be two orders:

• ‘a neutral order for public display to the effect that a suppression order has been made and details are available from the judge’s associate or the court registry or other appropriate officer’

• ‘a detailed order stating what is prohibited, which should be prepared for the media’.^[98]

10.105 A limitation of this approach is the burden it places on judicial officers and court staff of drafting and uploading two orders for each prohibition and restriction on publication.

Reminders of automatic prohibitions

10.106 A possible reform may be for courts to issue reminders to the media of what information can and cannot generally be published about cases, such as the automatic prohibitions under section 4 of the Judicial Proceedings Reports Act.

10.107 In a 2008 report, Australia’s Right to Know Coalition noted that it relied on emails of the details from suppression orders distributed to the media by the New South Wales Supreme Court’s media office, which often included judges’ reminders about not publishing certain matters. These emails ensured the media were aware of statutory prohibitions or that matters raised in the absence of the jury could not be reported, without requiring formal orders.^[99] Australia’s Right to Know Coalition felt that judges reminding the media of legal prohibitions without making orders was helpful, and appeared to be used in New South Wales and Queensland.^[100]

Question

48 What processes should be in place for notifying or reminding the media and the wider community of the existence of prohibitions and restrictions on publication, including court orders and the operation of automatic statutory provisions?

Monitoring compliance with prohibitions and restrictions

10.108 Law enforcement agencies often become aware of alleged offences through reports to police or other agencies by the victims of alleged offending, prompting investigations and potential criminal charges which are then pursued through the courts. By contrast, an alleged breach of a suppression order may have no direct victim whose complaint will trigger an investigation.

10.109 The Commission has limited information about how compliance with prohibitions and restrictions on publication is currently monitored by courts and other agencies. There appear to be no clear procedures for monitoring compliance.

10.110 Monitoring compliance with court-ordered prohibitions and restrictions on publication is challenging because there is a lack of:

• clarity around who is responsible for monitoring publications to ensure they are compliant

• public awareness of prohibitions and restrictions

• clear processes for monitoring compliance.

10.111 These issues contribute to an accountability gap and may result in the burden for monitoring compliance unduly falling on the people who are mostly directly affected by their breach, such as victims of crime.

10.112 In the Open Courts Act Review, the parents of a child complainant in a sexual assault case reported that:

no information on legislation or processes relevant to the desirability of a suppression order was provided to them to protect their child at the initial stages, including the bail hearing of the persons charged. The consequent publication of unnecessary and extremely distressing detail not only resulted in the identification of the child in the area but added substantially to the extreme trauma already being experienced by the young person. It was not until they made their own inquiries as to what could be done that any action was taken by the Office of Public Prosecutions. By then, it was too late to be of any real assistance to the child. … They said that they had been expected to assume the burden of monitoring breaches of suppression orders, as the DPP [Director of Public Prosecutions] did not take a proactive role in ensuring that suppression orders were obeyed. This added to their suffering.^[101]

10.113 The DPP acknowledged that most victims lacked prior knowledge about statutory prohibitions on publication and suppression orders, and the Office of Public Prosecutions provided information to victims on a ‘case by case basis’.^[102]

Possible reforms—monitoring compliance

10.114 One reform option is to specify a process for monitoring compliance with prohibitions and restrictions on publication and to identify those responsible for monitoring compliance, which may be an existing or new body.

10.115 This could include, for example, the DPP undertaking internet searches to identify any prejudicial publications that could affect a trial, and then requesting the information be taken down until the trial is complete.^[103] However, as recognised by the Victorian Court of Appeal, such strategies would depend on requests being complied with and the removal of the material being useful.^[104]

10.116 In addition, such monitoring processes may impose a significant administrative burden, and there are also questions around whose responsibility it should be. Academic Jacqueline Horan has suggested that lawyers should be proactively screening the internet for prejudicial pre-trial publicity about their clients, noting that the costs of a potential aborted trial should motivate this proactive approach.^[105] In this context, Horan has suggested that a more cost-effective approach would be for the creation of an independent monitoring role in Australian jurisdictions to conduct routine screening of online material, which could then be dealt with appropriately by the courts.^[106]

10.117 However, tThe DPP may not have the resources to conduct such monitoring, or be the appropriate agency, as its core functions relate to prosecution rather than investigation or monitoring.

10.118 In developing reforms in this area, the roles and resources of existing courts and agencies are critical to assessing whether a monitoring role would be appropriate and feasible. It is also important to consider how a responsible agency would monitor publications about cases online, given the nature and volume of online publication.

Questions

49 Should there be a system for monitoring compliance with prohibitions and restrictions on publication? If so:

(a) How should such compliance be monitored?

(b) Who should be responsible for monitoring such compliance?

Responsibility for instituting proceedings

10.119 The responsibility for instituting proceedings for breaches of prohibitions and restrictions on publication varies across the law of contempt, the Judicial Proceedings Reports Act and the Open Courts Act.

10.120 Prosecutions for breach of orders made under the Open Courts Act are indictable offences that are triable summarily,^[107] and charges are filed by Victoria Police.

10.121 A prosecution for breach of the statutory prohibitions under the Judicial Proceedings Reports Act can only be commenced with the consent of the DPP.^[108] Contravention of a prohibition under the Judicial Proceedings Reports Act is a summary criminal offence,^[109] with charges filed by Victoria Police.

10.122 Proceedings for common law contempt are instituted by way of summons or originating motion in either the Supreme Court^[110] or the County Court,^[111] including for sub judice contempt. Depending on the type of contempt, the summons or originating motion may be filed by:

• the Attorney-General^[112]

• the DPP^[113]

• the Court, which may direct the Prothonotary in the Supreme Court or the Registrar in the County Court to initiate proceedings.^[114]

The ‘prosecutorial gap’

10.123 In the Open Courts Act Review, former Chief Justice of Victoria Marilyn Warren expressed concern about a ‘seeming reluctance to prosecute breaches’ of statutory prohibitions or suppression orders, even where the courts have referred them.^[115] Criminal defence lawyers consulted through the Law Institute of Victoria agreed there was a ‘prosecutorial gap’.^[116]

10.124 The DPP noted complexities with proving breaches of prohibitions and restrictions, particularly where it was unclear whether an accused knew of the existence or scope of a prohibition. The DPP also commented on the difficulty of meeting the required standard of proof for contempt and the complexity of contempt proceedings.^[117]

10.125 This ‘prosecutorial gap’ may be related to a lack of clarity around who is responsible for monitoring compliance with prohibitions and restrictions on publication and the processes for doing so, as discussed earlier in this paper.

Possible reforms—instituting proceedings

10.126 A reform option is the specification of a process for monitoring compliance with prohibitions and restrictions on publication, and the identification of those responsible for monitoring compliance. This issue and relevant reform options are discussed earlier in this paper.

10.127 Another reform option is the removal of the requirement to seek the consent of the DPP to prosecute breaches of the statutory prohibitions and restrictions under the Judicial Proceedings Reports Act.

10.128 This option may simplify proceedings for a breach of statutory prohibitions in the Judicial Proceedings Reports Act, which could then be directly instituted by Victoria Police filing a criminal charge in the Magistrates’ Court.

10.129 There are currently different authorities that can institute proceedings for contempt, including the Attorney-General, the DPP and the Supreme and County courts. It is not always clear when individuals can institute proceedings for contempt.

10.130 One reform option is the potential restatement of the law of contempt in statute. Provisions in a contempt statute may specify who can institute proceedings for different manifestations of contempt.

Questions

50 Who should be responsible for instituting proceedings for breach of prohibitions and restrictions on publication?

51 Should the ‘DPP consent’ requirements under the Judicial Proceedings Reports Act 1958 (Vic) be retained?

Fault elements to prove breach of prohibitions

10.131 The terms of reference ask the Commission to consider the appropriateness of fault elements that must be proved to establish breaches of prohibitions and restrictions on publication under the law of contempt, the Judicial Proceedings Reports Act and the Open Courts Act. These elements vary across the different laws considered in this chapter.

10.132 The extent to which members of the public and the media are informed, or should be informed, about prohibitions and restrictions on publication is relevant to establishing fault for breaches of these laws. Awareness of prohibitions and restrictions on publication is discussed earlier in this chapter.

10.133 Under the Open Courts Act, a person must not contravene a proceeding suppression order, interim order or broad suppression order if they know the order is in force, or are reckless as to whether the order is in force.^[118]

10.134 The statutory prohibitions and restrictions under the Judicial Proceedings Reports Act do not specify a required fault element, such as knowledge or recklessness, requiring only that the prohibited information be published.

10.135 The fault elements in the law of sub judice contempt, including whether sub judice contempt is a strict liability offence, are discussed in detail in Chapter 7.

10.136 Contempt proceedings may be initiated where a person has breached an order issued by the Supreme Court in its inherent jurisdiction or a common law pseudonym order. The fault elements for disobedience contempt are discussed in Chapter 6 of this paper.

Proving fault elements

10.137 The DPP has described the complexities with proving the fault elements of the various prohibitions and restrictions on publication, including:

• where it was unclear whether a person accused of breaching a prohibition or restriction had knowledge about its existence or scope

• difficulties with establishing knowledge and recklessness under sections 23 and 27 of the Open Courts Act where a person was not on the email distribution list by which suppression orders are circulated to the media, as noted by the DPP in the Open Courts Act Review^[119]

• difficulties with meeting the standard of proof in contempt proceedings

• the complexity of contempt proceedings, particularly civil proceedings.^[120]

Notification processes

10.138 Under the Open Courts Act, a person is taken to be aware that a proceeding suppression order or broad suppression order is in force if a court or tribunal has electronically transmitted notice of the order to them, in the absence of evidence to the contrary.^[121]

10.139 The courts’ existing notification procedures for certain orders, such as orders under the Open Courts Act, may make it more likely that a journalist or media organisation would be aware of prohibitions and restrictions on publication. A member of the public is unlikely to have notice of these orders unless they are on the courts’ email list for notification, or happen to be in court when orders are issued.

10.140 There are no notification procedures for the application of automatic statutory prohibitions and restrictions like those under the Judicial Proceedings Reports Act.

10.141 An important consideration is whether members of the public who publish information about a case but have no knowledge of, or access to, information about prohibitions and restrictions on publication, should be liable for breach of those orders or provisions. Additionally, there are questions about whether notification procedures can be improved to ensure better awareness of prohibitions and restrictions, and to monitor when a person or organisation has been notified.

Possible reforms—fault elements

Clarification of fault elements in statute

10.142 One reform option is the specification of required fault elements for each offence in statute. The Open Courts Act currently specifies knowledge or recklessness as fault elements required to establish an offence under that statute.^[122]

10.143 Alternatively, statutory provisions could be created that expressly state whether offences are absolute or strict liability offences.

10.144 A strict liability offence is a criminal offence which does not require any proof of mens rea (a guilty mind), but to which the common law defence of honest and reasonable mistake of fact applies.^[123] An absolute liability offence is a criminal offence that does not require proof of any mental element or intention on the part of the accused.^[124]

10.145 Neither the Judicial Proceedings Reports Act nor the Open Courts Act expressly state that the offences under those statutes are strict or absolute liability offences.

10.146 One reform option is the restatement in statute of whether certain offences are strict or absolute liability. Such a reform would help to clarify:

• what intent a person must have had in publishing information, to have committed an offence

• whether a person who committed an offence may argue as a defence that they made an honest and reasonable mistake of fact, which is discussed later in this chapter.

10.147 Another reform option is the restatement in statute of the law of sub judice contempt. A key consideration is whether any such statute should include a provision expressly stating whether sub judice contempt is a strict or absolute liability offence.

Harmonisation

10.148 A further reform option is whether fault elements for prohibitions and restrictions on publication can or should be defined in the Open Courts Act, the Judicial Proceedings Reports Act, or a general statute to clarify and unify fault elements across the different areas of the law of contempt.

Amendments to notification processes

10.149 There are a number of issues with current notification processes and potential options for reform that are discussed earlier in this chapter.

Question

52 Should liability arise where there is a lack of awareness of the relevant prohibition or restriction on publication?

Defences and exceptions

10.150 The Commission is asked to consider defences which may be available to a person who has allegedly breached prohibitions or restrictions on publication under the law of sub judice contempt, a common law order, the Judicial Proceedings Reports Act and the Open Courts Act.

Statutory defences and exceptions

10.151 Under the Open Courts Act, there are no specified defences to breach of a suppression order. The defences currently available under the law of sub judice contempt and the Judicial Proceedings Reports Act are described in Chapters 7 and 9, respectively.

10.152 The Judicial Proceedings Reports Act and the Open Courts Act contain provisions that exempt certain agencies and individuals from liability for offences under those statutes.

10.153 Under the Open Courts Act, a proceeding suppression order, interim order or broad suppression 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:

• in connection with the conduct of any proceeding or the recovery or enforcement of any penalty imposed in a proceeding, or

• 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, interim order or broad suppression order.^[125]

10.154 The prohibitions in section 3(1) of the Judicial Proceedings Reports Act do not apply to the:

• printing or distribution of documents for use in connection with any judicial proceedings or to persons concerned in the proceedings

• printing or publishing of any notice or report pursuant to a direction of the court

• publication of material in a bona fide series of law reports or any publication of a technical character intended for circulation among members of the legal or medical professions.^[126]

10.155 Section 4(1D) of the Judicial Proceedings Reports Act provides that the prohibition in section 4(1A) does not operate to prohibit a disclosure of information to a prescribed person or body for the purpose of enabling the person or body to perform a prescribed statutory function.^[127]

10.156 Appropriate information sharing is a critical issue, given the sensitive nature of some information connected with court cases. There is a need to ensure that the privacy of members of the community engaged in court proceedings is respected and people are not subjected to undue trauma or embarrassment by poor information-sharing processes.

Defence of honest and reasonable mistake of fact

10.157 If an offence is a strict liability offence, an accused person may be able to argue the common law defence of honest and reasonable mistake of fact.

10.158 The defence of honest and reasonable mistake of fact provides that an accused will not be guilty of the offence if they ‘acted under an honest and reasonable mistake as to the existence of facts which, if true, would have made [the] act innocent’.^[128]

Possible reforms—defences and exceptions

Publication by a victim, or with a victim’s consent

10.159 A reform option is the creation of defences and exceptions to publication where a victim has published, or has consented to the publication of, information that would otherwise constitute a breach of a prohibition or restriction on publication. There have been recent amendments to other Victorian laws, which have provided some scope for adult victims to consent to publications which would otherwise have been unlawful.^[129] This issue is discussed in Chapter 9.

Online intermediaries

10.160 A further reform option is the creation of statutory defences for online intermediaries to be available where they had no control over prohibited or restricted information published on their platforms.

10.161 In its report on the law of contempt by publication, the New South Wales Law Reform Commission recommended establishing a defence for internet service providers and content hosts charged with sub judice contempt to escape liability:

… if they can establish that they had no control over the content placed on the Internet which contained the prejudicial material and that they either did not know the content contained the material or, having become aware of this, took all reasonable steps to prevent it being published.^[130]

10.162 As noted earlier in this chapter, reform options regarding online intermediaries need to consider the existing regulation of internet content hosts and internet service providers under Commonwealth law, particularly the Broadcasting Services Act.

Exception for information-sharing agencies

10.163 Another reform option is the creation of exceptions for certain agencies and individuals that are required to share information in a manner which might otherwise constitute a breach of a prohibition or restriction on publication.

10.164 Such exceptions already exist under the Judicial Proceedings Reports Act and Open Courts Act. The Open Courts Act provides that a proceeding suppression order or 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.^[131]

10.165 If certain types of common law contempt are restated in statute, a key consideration is whether a provision like those in the Judicial Proceedings Reports Act and Open Courts Act should be included in the new provisions to facilitate necessary information sharing between relevant agencies.

10.166 Reforms in this area require careful consideration of which agencies and individuals should be permitted to share information and how such information should be shared.

Clarification of absolute or strict liability offences

10.167 Neither the Judicial Proceedings Reports Act nor the Open Courts Act expressly state that the offences under those statutes are strict or absolute liability offences.

10.168 A reform option is the restatement in statute of whether certain offences for breach of a prohibition or restriction on publication are strict or absolute liability offences. This would help to clarify whether a person alleged to have committed an offence may argue as a defence that they made an honest and reasonable mistake of fact.

10.169 A key consideration is whether any restatement of the law of contempt should include the creation of a provision that expressly states whether contempt is a strict or absolute liability offence. Strict and absolute liability offences and the defence of honest and reasonable mistake of fact are described earlier in this chapter.

Questions

53 Are the existing exceptions for information-sharing agencies appropriate? Alternatively, do they inhibit information-sharing? If so, how should these barriers be addressed?

54 What defences, if any, should be available to people who have published information which is prohibited or restricted?

Penalties and remedies

10.170 The Commission is asked to consider the adequacy of existing penalties for breaches of orders prohibiting or restricting the publication of information about cases, including:

• fines and imprisonment for breaches of orders made under the Open Courts Act

• fines and imprisonment for breaches of statutory prohibitions in the Judicial Proceedings Reports Act

• penalties and remedies for contempt for breach of common law orders made by the Supreme Court exercising its inherent jurisdiction^[132]

• penalties and remedies for contempt for breach of an injunction made by the County Court exercising the Supreme Court’s inherent jurisdiction to grant an injunction in a criminal proceeding restraining a person from publishing any material, or doing any other thing, in order to ensure the fair and proper conduct of the proceeding^[133]

• penalties and remedies for contempt for breach of common law pseudonym orders^[134]

• apologies to the court for alleged contempts of court.

Appendix E provides a comparative table illustrating the fragmented nature of contempt-related offences, penalties and prosecution procedures by reference to some of the more frequently used and major related statutory offences. Many other statutes also contain contempt-related offences. However for the purposes of this consultation paper the Appendix is limited to the most major and frequently used.

10.171 An individual who knowingly or recklessly breaches a proceeding suppression order, interim order, or an order prohibiting publication of specified material made under the Open Courts Act, is liable for 600 penalty units or up to five years’ imprisonment, or both, while a corporation is liable for 3000 penalty units.^[135]

10.172 A contravention of the prohibitions under the Judicial Proceedings Reports Act is a summary criminal offence.^[136] For an individual, the maximum penalty is a fine of not more than 20 penalty units, and/or not more than four months imprisonment. For a corporation the maximum penalty is a fine of not more than 50 penalty units.^[137]

10.173 Those who breach a suppression order made by the Supreme Court, or the County Court exercising the Supreme Court’s inherent jurisdiction, are not prosecuted for an offence under sections 23 or 27 of the Open Courts Act.^[138] Similarly, breach of a pseudonym order is dealt with under the common law. Courts retain their common law powers to deal with such a breach as a contempt of court,^[139] including contempt by disobedience of a court order.

10.174 In prescribing available penalties for contempt, the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and County Court Civil Procedure Rules 2018 (Vic) do not distinguish between types of contempt. The Rules afford the court considerable discretion to determine whether a punishment should be imposed for contempt and what form it should take.^[140] For example:

• Where the court finds a person guilty of contempt of court, the court may punish the contempt by committal to prison or fine or both.^[141]

• Where the contemnor is a corporation, the court may punish for contempt by sequestration or fine or both.^[142]

• Where the court imposes a fine, it may commit, or further commit, the contemnor to prison until the fine is paid.^[143]

• The court may make an order for punishment on terms, including a suspension of punishment.^[144]

• Where a person has been sentenced to a term of imprisonment for contempt, the court retains the discretion to order their discharge before the end of the term.^[145]

10.175 The role of apologies in contempt and the application of the Sentencing Act 1991 (Vic) to findings of contempt are important issues relating to penalties and remedies, which are discussed in Chapter 3 of this paper.

Injunctions

10.176 The court has an inherent power to grant a quia timet injunction, an equitable remedy which restrains threatened or imminent wrongful acts.^[146] This injunction is an available remedy to prevent prejudicial publication or provide for the retrieval of already published material.^[147]

10.177 The threatened publication must, as a matter of practical reality, have a tendency to prejudice or embarrass particular legal proceedings.^[148] Chief Justice Warren and Acting Justice of Appeal Byrne noted that such injunctions are rarely issued, citing the United Kingdom case

P v Liverpool Daily Post and Echo Newspapers plc:

it is the wise and settled practice of the courts not to grant injunctions restraining the commission of a criminal act (and contempt of court is a criminal or quasi-criminal act) unless the penalties available under the criminal law have proved to be inadequate to deter commission of the offences.^[149]

10.178 The Victorian Court of Appeal has likened a suppression order made in the court’s inherent jurisdiction to a quia timet injunction in that they both prevent a threatened contempt.^[150] However, a suppression order is not subject to the same procedural restraints and instead is made when the court is satisfied, on the balance of probabilities, that an order is necessary to protect the court’s own process from risk.^[151]

10.179 Jason Bosland reported that in Victoria, there are no publicly available cases where injunctions have been granted in equity in these circumstances.^[152] Bosland noted that since 2004 the Supreme Court has instead relied on its inherent jurisdiction, and the County and Magistrates’ Courts rely on their statutory powers, to grant broad suppression orders to achieve the same purpose as an injunction to restrain a threatened contempt.^[153]

Take-down orders

10.180 Victorian courts can order the removal of prohibited or restricted material that is published within Australia,^[154] including material published online before a trial. These orders are commonly called ‘internet orders’ or ‘take-down orders’. The Commission uses the term ‘take-down orders’.

10.181 Take-down orders have been considered an effective option to ensure the courts are doing all that they can to ensure a fair trial.^[155] On the other hand, they are criticised as being futile, incapable of holding back the ‘tide of publications’,^[156] and that the court should not slip into the role of ‘King Canute.’^[157]

10.182 Take-down orders are usually directed to a particular website and offending content.^[158]

The power to make take-down orders was expressed by Justice Kaye in R v Mokbel (Ruling No 3):

In the course of argument, I postulated to Mr Houghton an example of a case where a person erects a sign on the person’s private property which would have the potential to prejudice the fair trial of an accused person. Mr Houghton submitted that this court would not have the power to prevent the continued publication of that sign by making an order that it be removed. In my view, he was unable to advance, when challenged, any adequate reason why the court’s power would not extend in a necessary case thus far. Indeed, in my view, it would make a mockery of the inherent jurisdiction of this court, to protect the right of an accused person to a fair trial, if this court did not have the power, not only to prevent anticipatory breaches of the right of a fair trial, but indeed continuing and ongoing such breaches.^[159]

10.183 Take-down orders are relatively new, as traditional media publications were fleeting and accessing archived print material, such as at a library, was more difficult than searching for an article published online.^[160]

10.184 The law surrounding the making of take-down orders is developing, but has been considered in Victoria and New South Wales. The courts’ considerations when determining whether to make a take-down order include:

• when the original publication was published and the currency of the material

• whether the article is forced upon a visitor to the website

• the permanency of the publication and whether a cached version would remain available even if taken down

• if the material is taken down from a more reliable website subject to the take-down order, whether more obscure publications may be given greater prominence in a search result

• the likelihood that jurors, subject to criminal sanction, will not undertake research about the trial and comply with jury directions

• the impossibility of identifying all websites which might have published the material, some of which would be unidentifiable or controlled from overseas.^[161]

10.185 A majority of the Victorian Court of Appeal overturned a take-down order because:

• The articles in question were not current

• The articles were not forced upon a visitor

• The articles were unlikely to be accessed inadvertently

• Jurors were unlikely to ignore jury directions

• The articles would remain cached even if taken down.^[162]

10.186 In R v Rich (Ruling No 7), Justice Lasry refused an application for a take-down order because the article in question was not current and there was no surrounding publicity at the time, potential jurors would be unlikely to come across the articles and potential jurors would be unlikely to ignore directions not to make their own enquiries about cases.^[163]

Possible reforms—penalties and remedies

Restatement in statute and harmonisation of penalties

10.187 The Open Courts Act Review noted that if the enforcement of prohibitions and restrictions on publication is to possess credibility, attention must be directed to developing a consistent approach to sanctions for non-compliance across related areas of the law.^[164]

10.188 A key question for this reference is whether penalties for breach of orders prohibiting and restricting publication can and should be defined in the Open Courts Act, or a general statute, to clarify and unify them.

Power to make take-down orders

10.189 The Victorian Court of Appeal and New South Wales Court of Appeal have acknowledged the futility of attempting to control internet publications and have emphasised the ongoing role of sub judice contempt.^[165]

10.190 The Law Commission of England and Wales, in its consideration of whether courts should have a temporary removal power, noted arguments raised in consultation, including that the power:

• would create an impractical burden for online publishers to find and take down archived material related to a case and then reinstate it, as well as issues with cached pages

• would be ineffective because of the global reach of the media

• could be costly for the media, who would have to be represented in court when applications for an order are made

• could extend the length of proceedings and delay the trial

• ignores the important social, historical and research value of historic online material and prevents members of the public from accessing the information

• is incompatible with the right to freedom of expression under Article 10 of the European Convention on Human Rights.^[166]

10.191 The argument that take-down orders are futile rests on the judicial view that jurors should be trusted to carry out their duties and decide a case based only on the evidence before them.^[167] If the opposite view were taken, a successful criminal trial in a high-profile case would be near impossible.^[168]

10.192 An aspect of making take-down orders is the monitoring and identification of prejudicial publications. The Honourable Justice Virginia Bell, writing extra-curially, suggested steps that could be taken before a trial, including:^[169]

• The DPP might carry out internet searches to identify any prejudicial publications that could affect a trial, and then request that they be taken down from local websites until the trial is complete.

• The Court Information Officer could make a request to the local website.^[170]

10.193 The above strategies depend on the requests being complied with and there being utility in taking down the material.^[171] The issues with identifying and monitoring compliance with prohibitions and restrictions on publication are discussed earlier in this chapter.

10.194 Other jurisdictions have considered the role of suppression orders and take-down orders in preventing and taking down online publications.

• The New Zealand Law Commission (NZ Commission) recommended new statutory provisions for the court to make both temporary suppression orders prohibiting publication of information leading up to and during the trial, and take-down orders to apply to information already publicly available which breaches those suppression orders.^[172]

• The NZ Commission suggested the burden should lie on Crown prosecutors to make enquiries about what material is in the public domain.^[173]

• The NZ Commission also noted that take-down orders alone are not a complete solution but go some way towards ‘minimising the impact of an offending publication’ by deterring users and preventing the material from being lawfully disseminated within the jurisdiction.^[174]

• Conversely, in Ireland, the High Court held that there is no duty on the Director of Public Prosecutions to monitor the internet for prejudicial publications, and that juries should be trusted to exclude prejudicial publications from their minds.^[175]

• In considering a temporary power to order that material published before legal proceedings were pending be taken down, the Law Commission of England and Wales recommended that:

1) the Attorney-General must put the publication on notice of the offending content

2) the procedure to do so be formalised in legislation

Questions

55 Are the existing penalties and remedies for breaches of prohibitions and restrictions on publication appropriate? If not, what penalties and remedies should be provided?

56 Should penalties for breaches of common law suppression orders and pseudonym orders be set out in statutory provisions?

57 Should a court be able to issue an order for internet materials to be taken down (‘take-down order’)? If so:

(a) Should the process for seeking and making such orders be embodied in legislation?

(b) Who should be responsible for monitoring the internet (and social media) for potential ‘take-down’ material?

(c) Who should be responsible for making applications for take-down orders?

(d) Should such applications be conducted on an adversarial or ex parte basis?

3) an option for appealing such an order be available.^[176]

Legacy suppression orders

10.195 The terms of reference include a request for the Commission to review and make recommendations about existing suppression orders made before the commencement of the Open Courts Act which do not contain an end date. In this reference, these orders are called ‘legacy suppression orders’.

10.196 The Open Courts Act came into effect on 1 December 2013.^[177] Orders made under the new statute are required to be of limited or specified duration. This reference considers legacy suppression orders made prior to the Open Courts Act under:

• provisions in the courts’ statutes that have since been repealed^[178]

• the common law.^[179]

10.197 Suppression orders made under the repealed provisions continue to apply if the orders were in force when those sections were repealed.^[180]

10.198 The Open Courts Act Review was required to review various aspects of the Act and it therefore did not make recommendations regarding legacy suppression orders.

10.199 A process for reviewing and rescinding legacy suppression orders is necessary to address the legal and practical difficulties these orders can cause to courts, the media and other interested parties. To permit the ongoing existence of suppression orders which no longer fulfil a legitimate purpose tends to breach the principle of open justice.

10.200 Suppression orders which are valid ‘until further order’ can remain in force indefinitely and long after the need for suppression has passed, causing difficulties for journalists who unwittingly breach an order by mentioning a case years after the order was made.^[181] Media organisations, publishers and members of the public may also unknowingly breach orders because they are unaware of their existence.

10.201 Additionally, it is unclear if and when people are considered to have been notified of legacy suppression orders, how people find out whether such orders exist and how to seek their revocation.

10.202 For example, the publisher of a book on a high-profile court case that occurred 12 years earlier may seek to ensure that publication does not breach an order. It appears that currently a publisher would need to separately contact each court to ask if such orders were still in force or, if such an order had been made previously, whether another order was subsequently made to revoke it. It may be difficult for courts to locate such orders, for instance, if an order predates the digitisation of orders and is only available in hard copy. There may also be no clear process for assessing whether the order is still necessary or should be revoked.

Access to data

10.203 Studies have examined legacy suppression orders, but the data available is incomplete, methodologies for collecting and analysing the data are unclear or vary across studies, and some studies provide data only on the number of orders, but not their duration. The data therefore does not provide a clear picture of how many legacy suppression orders are in force today.

10.204 Australia’s Right to Know Coalition found that between 2006 and June 2008:

• The Victorian Court of Appeal made 13 suppression orders. Of the four suppression orders made in 2006, three remained active and one had been revoked. The number of active and revoked orders between 2007 and June 2008 were unavailable.

• The Supreme Court of Victoria made 177 suppression orders, of which 126 remained active and 51 had been revoked.

• The County Court of Victoria made 240 suppression orders, of which 199 remained active and 41 had been revoked.

• The Magistrates’ Court of Victoria made 219 suppression orders.^[182]

10.205 Australia’s Right to Know Coalition analysed 141 suppression orders and revocations of suppression orders, identifying one of the main problems as orders with ‘no clear duration, or the use of the term “until further order”, without review or revocation’.^[183] Australia’s Right to Know Coalition felt there was a large number of Victorian orders mainly because of suppression orders drafted to remain in force ‘until further order’, which could be years old and were rarely lifted.^[184] It is unclear how many of the suppression orders examined had no end date.^[185]

10.206 In 2010, the Hon. Philip Cummins stated in a speech that from 2005 to August 2010:

• The Supreme Court of Victoria (Trial Division) made 344 suppression orders.

• The County Court of Victoria made 604 suppression orders.

• The Magistrates’ Court of Victoria made 501 suppression orders.^[186]

10.207 The Media, Entertainment and Arts Alliance reported in 2012 that 1077 suppression orders were granted in Australia in 2011, 644 of them in Victoria, citing research by Australia’s Right to Know Coalition.^[187]

10.208 Jason Bosland and Ashleigh Bagnall analysed all suppression orders made by the Supreme, County and Magistrates’ Courts that were distributed to the media via email between 25 February 2008 and the end of 2012.^[188] Bosland and Bagnall reported that during this period:

• The Supreme Court of Victoria made 247 suppression orders under the common law and Supreme Court Act 1986 (Vic), of which 174 had no time limit or were made to continue ‘until further order’.

• The County Court of Victoria made 432 suppression orders under the common law and County Court Act 1958 (Vic), of which 275 had no time limit or were made to continue ‘until further order’.

• The Magistrates’ Court of Victoria made 547 suppression orders under the common law and Magistrates’ Court Act 1989 (Vic), of which 398 had no time limit or were made to continue ‘until further order’.^[189]

10.209 Bosland and Bagnall did not ascertain how many orders without a time limit or made to continue ‘until further order’ had been revoked, but their study obtained figures on revocation orders sent to the media and the number of orders revoked by those revocation orders.^[190] Bosland and Bagnall observed that ‘very few revocation orders appear to have been made by the courts’ and ‘many orders appear to remain active when they are no longer necessary’.^[191]

10.210 The identification of legacy suppression orders made by Victorian courts is key to assessing reform options for dealing with these orders.

Need for clarity in notification and compliance

10.211 From 1993 up to the passage of the Open Courts Act, the media was routinely notified of all suppression orders.^[192] Suppression orders and orders revoking suppression orders were logged on a central database, scanned and sent to journalists and legal representatives of media organisations via email.^[193] In 2005, the Supreme Court of Victoria established an electronic database of suppression orders from all Victorian courts and the Victorian Civil and Administrative Tribunal.^[194]

10.212 Despite this database, notification and distribution processes appear to have varied across courts. To take the Supreme Court as an example, judges’ associates sent some orders to the media via email and fax and orders were generally posted on courtroom doors, with trial judges giving the media notice of an application for a suppression order in ‘some long-running trials’. Media organisations and journalists could also ring the Communications Office during the day to check the status of an order or whether any order had been made relating to a particular individual. The court registry did not keep suppression orders on file, but the media could search civil files.^[195]

10.213 The only reported problem with the distribution of suppression orders via email was delays in the relevant court officer transmitting notice of the order to the central database.^[196]

10.214 In a 2008 study by Australia’s Right to Know Coalition, a Melbourne-based television reporter commented:

Most orders aren’t revoked or don’t have sunset clauses, so by the time a case gets to a plea hearing or trial, often it’s us (journalists) alerting the court about suppressions. We often find the judge or magistrates didn’t realise there was suppression still in place. This leads to more difficulties because often the judge or magistrate will have no idea why the previous judge or magistrate made the order in the first place. Once I was in a magistrate’s case where the media informed the court there was a suppression on a defendant’s identity, and we applied for the order to be lifted. The fact there was a suppression was news to the magistrate and the defence, and the prosecution couldn’t recall why it had been made. The court was stood down while the magistrate tried to find the magistrate who made the original order. He wanted to find out the reason the order was made before he changed it. It’s not a sophisticated system!^[197]

10.215 It is unclear whether people are considered to remain on notice of these orders indefinitely if they have no end date.

Lack of provision for legacy suppression orders

10.216 The Open Courts Act introduced provisions aimed at ensuring that orders made under that Act did not operate indefinitely.

10.217 Under the Open Courts Act, courts must ensure a suppression order operates for no longer than reasonably necessary to achieve the purpose for which it is made.^[198] Courts must specify the duration of suppression orders, except interim orders, by reference to:

• a fixed or ascertainable period

• the occurrence of a specified future event, such as the conclusion of proceedings, exhaustion of appeal rights or death of a person involved in proceedings.^[199]

10.218 If there is a possibility that the ‘specified future event’ in a suppression order may not occur, the order must also specify a period of up to five years from the date of the order, at the end of which the order expires unless it is sooner revoked.^[200]

10.219 As legacy suppression orders were not addressed in the Open Courts Act, a critical question for this reference is how best to address the application and enforcement of legacy suppression orders to ensure they only exist if they are necessary and do not operate indefinitely.

Possible reforms—legacy suppression orders

Audit and revocation

10.220 The data about legacy suppression orders is incomplete, and orders are not available either publicly or on a searchable database.

10.221 A reform option may be for Victorian courts to audit suppression orders issued prior to the Open Courts Act to identify the number of legacy suppression orders and the bases on which they were made. Such a reform would need to address who would be responsible for an audit and how an audit would be conducted.

Revocation of unnecessary orders

10.222 One reform option is that legacy suppression orders which have no limits on their duration could be revoked by court order when they are no longer necessary, with orders only operating in perpetuity in exceptional cases.^[201]

Statutory reforms

10.223 An alternative reform option is the insertion of statutory provisions in the Open Courts Act to outline a process for:

• deeming legacy orders to expire by default on a specified future date, subject to applications for such orders either to continue or to be revoked earlier

• specifying the duration of orders to ensure orders that are no longer necessary do not apply indefinitely

• notification of legacy suppression orders to the media, lawyers and other interested parties

• allowing the media, lawyers and other interested parties to apply for continuation or revocation of the order.

Questions

58 How many legacy suppression orders with no end date issued by the Supreme, County and Magistrates’ Courts are currently in force?

59 Should there be provisions in the Open Courts Act 2013 (Vic), or another statute, which specify the duration of legacy suppression orders? If so:

(a) Should there be be a deeming provision in the Open Courts Act 2013 (Vic), or another statute, which provides that legacy suppression orders are deemed to have been revoked from a particular date, subject only to applications from interested parties to:

i. vary the order?

ii. continue the order for a further specified time?

iii. revoke the order at an earlier date?

(b) Should there be provisions in the Open Courts Act 2013 (Vic), or another statute, which specify procedures for notification of legacy suppression orders and applications for continuation or revocation of such orders?

1. Frank Vincent, Open Courts Act Review (2017) <https://engage.vic.gov.au/open-courts-act-review>.

   ↑

2. Scott v Scott [1913] AC 417, 435 (Viscount Haldane LC); Dickason v Dickason (1913) 17 CLR 51, 51 (Barton ACJ; Isaacs, Gavan Duffy, Powers and Rich JJ agreeing); see also Russell v Russell (1976) 134 CLR 495, 505 (Barwick CJ), 520 (Gibbs J), 532–3 (Stephen J); Hogan v Hinch (2011) 243 CLR 506, 530 [20] (French CJ); see also Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24.

   ↑

3. Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, 55 (Kirby P); Hogan v Hinch (2011) 243 CLR 506, 532 [22] (French CJ).

   ↑

4. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 258–9 (Warren CJ and Byrne AJA).

   ↑

5. See Scott v Scott [1913] AC 417, 437 (Viscount Haldane LC), 445–6 (Earl Loreburn), 482–3 (Lord Shaw of Dunfermline); Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J); Hogan v Hinch (2011) 243 CLR 506, 531–2 [21] (French CJ); Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, 54 (Kirby P).

   ↑

6. There are other statutory prohibitions and restrictions that apply automatically in Victoria, but they are not a focus of this review: see, eg, Children, Youth and Families Act 2005 (Vic) s 534; Family Violence Protection Act 2008 (Vic) s 166.

   ↑

7. Open Courts Act 2013 (Vic) ss 3 (definitions of ‘court or tribunal’, ‘suppression order’), 17–8, 20, 24–6.

   ↑

8. The inherent jurisdiction of the Supreme Court of Victoria is not limited or otherwise affected by the Open Courts Act 2013 (Vic): s 5(1).

   ↑

9. The Open Courts Act preserves the courts’ common law powers to conceal a person’s identity by restricting how they are referred to in open court and/or court documents, often by giving them a pseudonym. These are often called ‘pseudonym orders’: Open Courts Act 2013 (Vic) s 7(d)(i).

   ↑

10. Frank Vincent, Open Courts Act Review (2017) <https://engage.vic.gov.au/open-courts-act-review> 12 [18].

    ↑

11. Ibid 9–11.

    ↑

12. Open Courts and Other Acts Amendment Act 2019 (Vic); Explanatory Memorandum, Open Courts and Other Acts Amendment Bill 2019 (Vic) 1. See generally Victoria, Parliamentary Debates, Legislative Assembly, 20 February 2019, 423–6 (Jill Hennessy, Attorney-General).

    ↑

13. Victorian Government, Open Courts Act Review—table of Recommendations (2018).

    ↑

14. Frank Vincent, Open Courts Act Review (2017) 6–7 [14]–[15].

    ↑

15. See, eg, Michael Douglas and Jason Bosland, ‘We Knew George Pell Was Guilty of Child Sex Abuse. Why Couldn’t We Say it Until Now?’ (26 February 2019) The Conversation <https://theconversation.com/we-knew-george-pell-was-guilty-of-child-sex-abuse-why-couldnt-we-say-it-until-now-112521>; Richard Ackland, ‘The Media and Contempt of Court’, The Saturday Paper (Web Page, 6–12 April 2019) <www.thesaturdaypaper.com.au/opinion/topic/2019/04/06/the-media-and-contempt-court/15544692007951>; Sumeyya Ilanbey, ‘Andrews Vows to Implement Suppression Order Overhaul this Term’, The Age (Web Page, 13 December 2018) <www.theage.com.au/national/victoria/andrews-vows-to-implement-suppression-order-overhaul-this-term-20181213-p50lz7.html>.

    ↑

16. Frank Vincent, Open Courts Act Review (2017) 86–100, 149–53, app 3.

    ↑

17. Ibid item 11.

    ↑

18. Jason Bosland, ‘Two Years of Suppression under the Open Courts Act 2013 (Vic)’ (2017) 39 Sydney Law Review 25, 38–39.

    ↑

19. Judicial Proceedings Reports Act 1958 (Vic) ss 3(4), 4(4).

    ↑

20. Office of Public Prosecutions, Annual Report (Annual Reports, 2000–18).

    ↑

21. Office of Public Prosecutions, Annual Report (Annual Reports, 2000–18).

    ↑

22. Committee on Contempt of Court (UK), Report of the Committee on Contempt of Court (December 1974) 5.

    ↑

23. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, 605 [38] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

    ↑

24. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 268–70 [75]–[84] (Warren CJ and Byrne AJA).

    ↑

25. Commonwealth Director of Public Prosecutions v Brady [2015] VSC 246 [41]–[45].

    ↑

26. Open Courts Act 2013 (Vic) s 3 (definition of ‘publish’).

    ↑

27. Ibid.

    ↑

28. Judicial Proceedings Reports Act 1958 (Vic) s 4 (definition of ‘publish’).

    ↑

29. Ibid.

    ↑

30. Hinch v DPP (Vic); Television and Telecasters (Melbourne) Pty Ltd v DPP [1996] 1 VR 683, 690.

    ↑

31. Judicial Proceedings Reports Act 1958 (Vic) s 3.

    ↑

32. Bell v Stewart (1920) 28 CLR 419; DPP (NSW) v Wran (1987) 7 NSWLR 616; Monis v the Queen; Droudis v the Queen (2013) 249 CLR 92.

    ↑

33. DPP v Johnson & Yahoo!7 [2016] VSC 699; DPP v Johnson & Yahoo!7 (No 2) [2017] VSC 45.

    ↑

34. Hinch v A-G (Vic) (1987) 164 CLR 15.

    ↑

35. A-G (NSW) v Willesee [1980] 2 NSWLR 143; A-G (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368; General Television Corporation Pty Ltd v DPP (Vic) (2008) 19 VR 68.

    ↑

36. DPP (NSW) v Wran (1987) 7 NSWLR 616.

    ↑

37. Viner v Australian Building Construction Employees’ and Builders Labourers Federation (1963) 56 FLR 5, 22–3; Des Butler and Sharon Rodrick, Australian Media Law (Thomson Reuters, 5th ed, 2015) 373 [6.150], citing N Lowe and B Sufrin, The Law of Contempt (Butterworths, 3rd ed, 1996) 85.

    ↑

38. Law Commission (England and Wales), Contempt of Court (1): Juror Misconduct and Internet Publications (Report No 340, 2013) 15 [2.33].

    ↑

39. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 264–5 [63]–[65] (Warren CJ and Byrne AJA). The majority of the Court of Appeal also considered the High Court’s approach in Dow Jones v Gutnick (2002) 210 CLR 575, a defamation case in which publication was taken to be at the place and time it was downloaded. See also R v Hinch (No 1) [2013] VSC 520 [54], citing Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52, 64–5 [43] (Basten JA, Bathurst CJ and Whealy JA agreeing).

    ↑

40. Australian Law Reform Commission, Classification—Content Regulation and Convergent Media (Report No 118, March 2012) 398.

    ↑

41. Kylie Pappalardo and Nicolas Suzor, ‘The Liability of Australian Online Intermediaries’ (2018) 40 (4) Sydney Law Review 469, 469.

    ↑

42. Ibid.

    ↑

43. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 38 [2.63].

    ↑

44. See Trkulja v Google (2018) 356 ALR 178; Google v ACCC (2013) 249 CLR 435; Sam Hurley, ‘Grace Millane case: Suppression Flouted by Google and Others, Prosecutions to Follow?’, New Zealand Herald (Web Page, 14 December 2018) <www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12176432>; Toby Manhire, ‘New Zealand Courts Banned Naming Grace Millane’s Accused Killer. Google just Emailed it Out.’, The Guardian (Web Page, 13 December 2018) <www.theguardian.com/world/2018/dec/13/new-zealand-courts-banned-naming-grace-millanes-accused-killer-google-just-emailed-it-out>. The liability of platforms such as Google, Facebook and Twitter has been questioned in New Zealand where despite a suppression order on the name of an accused, Google published the details in an email sent to subscribers.

    ↑

45. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 33 [2.63].

    ↑

46. New South Wales Law Reform Commission, Contempt by Publication, (Discussion Paper, 2000) 74 [2.97]; Jane Johnston et al, Juries and Social Media: A Report Prepared for the Victorian Department of Justice (2013) 5–6 [2.4].

    ↑

47. Jane Johnston et al, Juries and Social Media: A Report Prepared for the Victorian Department of Justice (Report, 2013) 5–6 [2.4]..

    ↑

48. New South Wales Law Reform Commission, Contempt by Publication, (Discussion Paper, 2000) 74 [2.97].

    ↑

49. Broadcasting Services Act 1992 (Cth) sch 5 pt 1 cl 3 (definition of ‘internet content’; definition of ‘information’; definition of ‘ordinary email’).

    ↑

50. Broadcasting Services Act 1992 (Cth) sch 5 pt 9 cl 91. ‘Internet content host’ and ‘internet carriage service’ are defined under cl 3 of the schedule. ‘Internet service provider’ is defined under cl 8 of the schedule.

    ↑

51. Broadcasting Services Act 1992 (Cth) sch 5 pt 1 cl 91(2).

    ↑

52. Broadcasting Services Amendment (Online Services) Act 1999 (Cth) sch 1 cl 4. The Broadcasting Services Amendment (Online Services) Act 1999 (Cth) was introduced to regulate offensive content on the internet.

    ↑

53. The Australian Law Reform Commission made this recommendation in its review of section 121 of the Family Law Act 1975 (Cth), which contains provisions restricting the publication of family law proceedings to the public: Australian Law Reform Commission, Review of the Family Law System (Discussion Paper No 86, 2018) 307–8 [12.73]–[12.78].

    ↑

54. Broadcasting Services Amendment (Online Services) Act 1999 (Cth) sch 1 cl 10.

    ↑

55. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 34 [2.65], citing Broadcasting Services Act 1992 (Cth) sch 5 pt 4.

    ↑

56. See Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, 605 [39] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

    ↑

57. Open Courts Act 2013 (Vic) s 21(1).

    ↑

58. Ibid s 26(2).

    ↑

59. Ibid ss 21(2)–(3), 26(3)–(4).

    ↑

60. Judicial Proceedings Reports Act 1958 (Vic) s 3(2).

    ↑

61. Judicial Proceedings (Regulation of Reports) Act 1929 (Vic) s 2(2).

    ↑

62. Commonwealth Director of Public Prosecutions v Brady [2015] VSC 246 [1]–[4], [31]–[32].

    ↑

63. Ibid [42].

    ↑

64. Jason Bosland, ‘Wikileaks and the Not-so-super Injunction: The Suppression Order in DPP (Cth) v Brady’ (2016) 21(1) Media and Arts Law Review 34, 35 n 6.

    ↑

65. A suppression order may still be maintained after a breach, but each case needs to be assessed on its facts: Commonwealth Director of Public Prosecutions v Brady [2015] VSC 246 [75]–[76], [80].

    ↑

66. Jason Bosland, ‘Wikileaks and the Not-so-super Injunction: The Suppression Order in DPP (Cth) v Brady’ (2016) 21(1) Media and Arts Law Review 34, 62.

    ↑

67. Ibid; Hogan v Australian Crime Commission (2010) 240 CLR 651, 664 [32].

    ↑

68. R v Griffiths, Ex parte A-G (UK) [1957] 2 All Er 379.

    ↑

69. Ibid 383.

    ↑

70. New South Wales Law Reform Commission, Contempt by Publication (Discussion Paper, 2000) 74 [2.97].

    ↑

71. Ibid; Jane Johnston et al, Juries and Social Media: A Report Prepared for the Victorian Department of Justice (Report, 2013) 5–6 [2.4].

    ↑

72. Jane Johnston et al, Juries and Social Media: A Report Prepared for the Victorian Department of Justice (Report, 2013) 5–6 [2.4].

    ↑

73. Adam Cooper, ‘DPP Moves to Jail Dozens of Editors, Journalists Over Reports after Pell Verdict’, The Age (Web Page, 26 March 2019) <www.theage.com.au/national/victoria/dpp-moves-to-jail-dozens-of-editors-journalists-over-reports-after-pell-verdict-20190326-p517qf.html>.

    ↑

74. See, eg, Crimes Act 1958 (Vic) ss 80A–87, 321A.

    ↑

75. Frank Vincent, Open Courts Act Review (2017) 9.

    ↑

76. Victorian Government, Open Courts Act Review—Recommendations (2018) <https://engage.vic.gov.au/download_file/8086/822>.

    ↑

77. Council of Attorneys-General, ‘Communiqué—Council of Attorneys-General’ (1 December 2017) 2.

    ↑

78. Council of Attorneys-General, ‘Communiqué—Council of Attorneys-General’ (23 November 2018) 4.

    ↑

79. Open Courts Act 2013 (Vic) ss 23(2), 27(2).

    ↑

80. Supreme Court of Victoria, Practice Note No 9 of 2017: Notifications under the Open Courts Act 2013, 30 January 2017.

    ↑

81. Frank Vincent, Open Courts Act Review (2017) 77 [291]–[292] <https://engage.vic.gov.au/open-courts-act-review>.

    ↑

82. Ibid.

    ↑

83. Ibid 70 [267].

    ↑

84. Ibid 117 [470].

    ↑

85. Ibid 76 [288].

    ↑

86. Ibid 77 [291].

    ↑

87. Ibid 77 [291].

    ↑

88. Ibid 10.

    ↑

89. Evidence Act 1929 (SA) s 69A(10)–(11).

    ↑

90. Supreme Court of Tasmania, ‘Suppression Orders’ (Web Page, 20 March 2019) <www.supremecourt.tas.gov.au/for_the_media/suppression_orders>.

    ↑

91. Ibid.

    ↑

92. Frank Vincent, Open Courts Act Review (2017) 77 [291]–[292] <https://engage.vic.gov.au/open-courts-act-review>.

    ↑

93. Ibid 77 [292].

    ↑

94. Prue Innes, Australia’s Right to Know Coalition, Review of Suppression Orders and the Media’s Access to Court Documents and Information (13 November 2008) 91.

    ↑

95. Frank Vincent, Open Courts Act Review (2017) 77 [292] <https://engage.vic.gov.au/open-courts-act-review>.

    ↑

96. Ibid 117 [469] n 419.

    ↑

97. Open Courts Act 2013 (Vic) s 3 (definition of ‘news media organisation’).

    ↑

98. Prue Innes, Australia’s Right to Know Coalition, Review of Suppression Orders and the Media’s Access to Court Documents and Information (13 November 2008) 90.

    ↑

99. Ibid 87.

    ↑

100. Ibid 91–2.

     ↑

101. Frank Vincent, Open Courts Act Review (2017) 71–2 [273] <https://engage.vic.gov.au/open-courts-act-review>.

     ↑

102. Ibid 72 [274].

     ↑

103. Virginia Bell, ‘How to Preserve the Integrity of Jury Trials in a Mass Media Age’ (2005) 7 Judicial Review 311.

     ↑

104. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 272 [91].

     ↑

105. Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012) 192.

     ↑

106. Ibid 193–4.

     ↑

107. See Criminal Procedure Act 2009 (Vic) s 28.

     ↑

108. Judicial Proceedings Reports Act 1958 (Vic) ss 3(4), 4(4).

     ↑

109. Ibid ss 3(3), 4(2).

     ↑

110. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.06.

     ↑

111. County Court Civil Procedure Rules 2018 (Vic) r 75.06.

     ↑

112. R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (Australian Section) (1951) 82 CLR 208.

     ↑

113. Public Prosecutions Act 1994 (Vic) s 22(1)(ba)(iii).

     ↑

114. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.07; County Court Civil Procedure Rules 2018 (Vic) r 75.07.

     ↑

115. Frank Vincent, Open Courts Act Review (2017) 70 [266] <https://engage.vic.gov.au/open-courts-act-review>.

     ↑

116. Ibid.

     ↑

117. Ibid 70 [267].

     ↑

118. Open Courts Act 2013 (Vic) ss 23(1), 27(1).

     ↑

119. Frank Vincent, Open Courts Act Review (2017) 70 [267] <https://engage.vic.gov.au/open-courts-act-review>.

     ↑

120. Ibid.

     ↑

121. Open Courts Act 2013 (Vic) ss 23(2), 27(2).

     ↑

122. Ibid ss 23(1), 27(1).

     ↑

123. LexisNexis, Encyclopaedic Australian Legal Dictionary (definition of ‘strict liability offence’).

     ↑

124. Ibid (definition of ‘absolute liability offence’).

     ↑

125. Open Courts Act 2013 (Vic) ss 22, 26(5).

     ↑

126. Judicial Proceedings Reports Act 1958 (Vic) s 3(5).

     ↑

127. Ibid s 4(1D).

     ↑

128. See He Kaw Teh v R (1985) 157 CLR 523, 532–3 (Gibbs CJ).

     ↑

129. See Family Violence Protection Act 2008 (Vic) s 169B.

     ↑

130. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 34 [2.65].

     ↑

131. Open Courts Act 2013 (Vic) s 22.

     ↑

132. Ibid s 5(1).

     ↑

133. Ibid s 25.

     ↑

134. Ibid s 7(d)(i). These are referred to in the Open Courts Act as an order or decision that ‘conceals the identity of a person by restricting the way the person is referred to in open court’.

     ↑

135. Ibid ss 23(1), 27(1).

     ↑

136. Judicial Proceedings Reports Act 1958 (Vic) ss 3(3), 4(2).

     ↑

137. Ibid ss 3(3), 4(2).

     ↑

138. See Open Courts Act 2013 (Vic) ss 5(1), 25.

     ↑

139. Ibid s 6.

     ↑

140. See section 320 of the Crimes Act 1958 (Vic), which does not specify a maximum term of imprisonment for the common law offence of contempt.

     ↑

141. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.11(1); County Court Civil Procedure Rules 2018 (Vic) r 75.11(1).

     ↑

142. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.11(2); County Court Civil Procedure Rules 2018 (Vic) r 75.11(2).

     ↑

143. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.11(3); County Court Civil Procedure Rules 2018 (Vic) r 75.11(3).

     ↑

144. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.11(4); County Court Civil Procedure Rules 2018 (Vic) r 75.11(4).

     ↑

145. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.12; County Court Civil Procedure Rules 2018 (Vic) r 75.12; see also Magistrates’ Court Act 1989 (Vic) s 133(5).

     ↑

146. Judicial College of Victoria, ‘Broad Suppression Orders’, Open Courts Bench Book (Web Page, 1 December 2013) 6.3 <www.judicialcollege.vic.edu.au>.

     ↑

147. Victoria v Australian Building Construction Employees’ and Builders’ Labourers’ Federation (1982) 152 CLR 25, 42 (Gibbs CJ); General Television Corporation Pty Ltd v DPP (Vic) (2008) 19 VR 68, 75 [21].

     ↑

148. General Television Corporation Pty Ltd v DPP (Vic) (2008) 19 VR 68, 79 [36]. For a discussion of Victoria’s use of general and proceedings suppression orders and general precautionary orders, see Jason Bosland, ‘Restraining “Extraneous” Prejudicial Publicity: Victoria and New South Wales Compared’ (2018) 41(4) University of New South Wales Law Journal 1263, 1279–1290. See the Court of Appeal’s discussion of quia timet injunctions: News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 261–3 [48]–[56] (Warren CJ and Byrne AJA).

     ↑

149. P v Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370, 381–2, cited in Attorney-General v Random House Group Ltd [2010] EMLR 233 [28].

     ↑

150. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 263 [55] (Warren CJ and Byrne AJA), citing General Television Corporation Pty Ltd v DPP (Vic) (2008) 19 VR 68, 76 [28].

     ↑

151. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 263 [55] (Warren CJ and Byrne AJA); General Television Corporation Pty Ltd v DPP (Vic) (2008) 19 VR 68, 76 [28]; DPP (Vic) v Williams (2004) 10 VR 348, 352 [18]–[20].

     ↑

152. Jason Bosland, ‘Restraining “Extraneous” Prejudicial Publicity: Victoria and New South Wales Compared’ (2018) 41(4) University of New South Wales Law Journal 1263, 1279.

     ↑

153. Ibid.

     ↑

154. Commonwealth Director of Public Prosecutions v Brady [2015] VSC 246 [75].

     ↑

155. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 271 [90].

     ↑

156. Sophie Dawson and Paul Karp, ‘Holding Back the Tide: King Canute Orders and Internet Publications’ (2012) 30(4) Communications Law Bulletin 10.

     ↑

157. East Sussex County Council v Stedman [2010] 1 FCR(UK) 567, [92]; cited in News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 (Warren CJ and Byrne AJA), 270–1 [87].

     ↑

158. R v Rich (Ruling No 7) [2008] VSC 437; News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248.

     ↑

159. R v Mokbel (Ruling No 3) [2009] VSC 653 [9]; News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 [66].

     ↑

160. Sophie Dawson and Paul Karp, ‘Holding Back the Tide: King Canute Orders and Internet Publications’ (2012) 30(4) Communications Law Bulletin 10, 11.

     ↑

161. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248; Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52;

     R v Rich (Ruling No 7) [2008] VSC 437.

     ↑

162. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 272 [93–4]. The take-down order was made in the context of intense media publicity around the accused, Tony Mokbel. A Google search of the accused’s name generated 522,000 results: 268 [79]. The take-down order was also drafted so as to prevent the media outlets from publishing any future material about the accused.

     ↑

163. R v Rich (Ruling No 7) [2008] VSC 437 [20].

     ↑

164. Frank Vincent, Open Courts Act Review (2017) 111 [450] <https://engage.vic.gov.au/open-courts-act-review>.

     ↑

165. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248; Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52, 78.

     ↑

166. For full list of arguments against the power, see Law Commission (England and Wales), Contempt of Court (1): Juror Misconduct and Internet Publications (Report, 2013) 32–4 [2.107].

     ↑

167. This was the approach of the Court in News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 266 [68].

     ↑

168. R v Dupas (No 3) (2009) 198 A Crim R 454; Gilbert v R (2000) 201 CLR 414.

     ↑

169. Virginia Bell, ‘How to Preserve the Integrity of Jury Trials in a Mass Media Age’ (2005) 7 Judicial Review 311, 319.

     ↑

170. This was done in John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344.

     ↑

171. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 272 [91].

     ↑

172. Law Commission (New Zealand), Contempt in Modern New Zealand, Issues Paper No 36 (May 2014) 34–6.

     ↑

173. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 54 [2.90].

     ↑

174. Ibid.

     ↑

175. Law Reform Commission of Ireland, Contempt of Court and Other Offences and Torts Involving the Administration of Justice (Issues Paper No 10, 2016) 64, citing Byrne v DPP [2010] 2 IR 461 [37].

     ↑

176. Law Commission (England and Wales), Contempt of Court (1): Juror Misconduct and Internet Publications (Report No 340, 2013) [2.152], [2.166], [2.189].

     ↑

177. Open Courts Act 2013 (Vic) s 2(2).

     ↑

178. See Supreme Court Act 1986 (Vic) ss 18, 19; County Court Act 1958 (Vic) ss 80–80AA; Magistrates’ Court Act 1989 (Vic) s 126. The Magistrates’ Court Act 1989 s 126 was repealed by the Open Courts Act 2013 (Vic) s 51. While the amending provisions in Part 8 of the Open Courts Act were repealed by section 67 of the same Act one year after the Act’s commencement, they remain operative.

     ↑

179. For a summary of common law orders, see Frank Vincent, Open Courts Act Review (2017) 30–36. <https://engage.vic.gov.au/open-courts-act-review>.

     ↑

180. Supreme Court Act 1986 (Vic) s 152(2); County Court Act 1958 (Vic) s 98(4); Magistrates’ Court Act 1989 (Vic) sch 8 cl 52(2). Suppression orders made under section 126 of the Magistrates’ Court Act can be set aside or varied in accordance with that section as if it had not been repealed.

     ↑

181. Media, Entertainment and Arts Alliance, Kicking at the Cornerstone of Democracy: The State of Press Freedom in Australia (2012) 61.

     ↑

182. Prue Innes, Australia’s Right to Know Coalition, Review of Suppression Orders and the Media’s Access to Court Documents and Information (13 November 2008) 35–9.

     ↑

183. Ibid 35.

     ↑

184. Ibid 86.

     ↑

185. The report said ‘hundreds of old orders worded “until further order” would be counted in those figures [of suppression orders made in Victoria] as they remained current’, but did not provide more precise numbers: ibid 88.

     ↑

186. P D Cummins, ‘Justice and the Media’ (Speech, Melbourne Press Club, 17 August 2010) 3.

     ↑

187. Media, Entertainment and Arts Alliance, Kicking at the Cornerstone of Democracy: The State of Press Freedom in Australia (2012) 58, 62.

     ↑

188. Jason Bosland and Ashleigh Bagnall, ‘An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008–12’ (2013) 35 Sydney Law Review 671, 672; The Open Courts Act Review focused on orders issued under the Open Courts Act 2013 (Vic), but compared those orders and orders discussed in the Bosland and Bagnall study: Frank Vincent, Open Courts Act Review (2017) 100–5.

     ↑

189. Jason Bosland and Ashleigh Bagnall, ‘An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008–12’ (2013) 35 Sydney Law Review 671, 681, 691.

     ↑

190. Ibid 692.

     ↑

191. Ibid.

     ↑

192. Prue Innes, Australia’s Right to Know Coalition, Review of Suppression Orders and the Media’s Access to Court Documents and Information (13 November 2008) 34.

     ↑

193. Ibid. The report states that ‘statistics on the number of suppression orders from each court were provided to the review by the strategic communications adviser at the Supreme Court in Victoria’: 35.

     ↑

194. Ibid 35.

     ↑

195. Ibid.

     ↑

196. Ibid 34–5.

     ↑

197. Ibid 39.

     ↑

198. Open Courts Act 2013 (Vic) s 12(4).

     ↑

199. Ibid ss 12(1)–(2); Explanatory Memorandum, Open Courts Bill 2013 (Vic) 4.

     ↑

200. Open Courts Act 2013 (Vic) s 12(3).

     ↑

201. Jason Bosland and Ashleigh Bagnall, ‘An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008–12’ (2013) 35 Sydney Law Review 671, 691.

     ↑