Contempt of Court: Consultation Paper (html)

9. Prohibitions on publication under the Judicial Proceedings Reports Act

Introduction

9.1 This chapter considers the Judicial Proceedings Reports Act 1958 (Vic) which restricts the publication of material in relation to judicial proceedings.^[1] It contains four statutory prohibitions, which apply automatically without the need for a court order:

• a prohibition on publishing indecent matter calculated to injure public morals^[2]

• a prohibition restricting the details that can be published about divorce or related proceedings^[3]

• a prohibition restricting the details that can be published about criminal directions hearings and sentence indication hearings in the County Court and Supreme Court^[4]

• a prohibition on identifying a person against whom a sexual offence is alleged to have been committed.^[5]

9.2 Contravention of any of the prohibitions is a summary criminal offence.^[6] A prosecution for breach can only be commenced with the consent of the Director of Public Prosecutions (DPP).^[7] Prosecutions are rare, with annual reports indicating that the Director has only given consent to prosecute an offence under the Judicial Proceedings Reports Act four times since June 2000.^[8]

9.3 The Annual Reports do not disclose which particular provision the consents relate to, nor whether the Director received, but refused, additional requests to consent to prosecutions of other alleged contraventions of the Act.

9.4 In reviewing the publication prohibitions, this chapter:

• outlines the scope of each prohibition

• outlines how the prohibitions operate today, including how frequently public reference is made to the prohibitions by the courts or by those reporting on the courts

• poses a number of questions about whether any or all of the prohibitions should be reformed, repealed, or relocated to other legislation.

9.5 As specifically required by the terms of reference, this chapter also considers and poses questions about whether a further statutory prohibition is required to temporarily restrict the publication of sensitive information upon the laying of charges in relation to sexual and family violence criminal matters.

9.6 Finally, this chapter also considers and poses questions about how statutory prohibitions which are designed to protect the anonymity of victims can afford appropriate agency and choice to those victims who wish to speak about their experiences.

A principles-based approach

9.7 Each of the prohibitions in the Judicial Proceedings Reports Act operates as an automatic departure from the principle of open justice and as a limitation on the right to freedom of expression recognised in section 15(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

9.8 Therefore, in reviewing whether and how these statutory prohibitions should be reformed, the following matters need to be considered:

• What is the public interest that the statutory prohibition is designed to protect?

• Does that public interest continue to justify a departure from the principle of open justice and a limitation on freedom of expression?

• Is a mandatory, automatic statutory prohibition required to protect the identified public interest or would a discretionary power vested in the courts allow for a better balancing of competing principles and interests?

• Should the court have an overriding discretion to permit publication where the interests of justice otherwise require it?

• Should the person for whose benefit the prohibition operates have the power to waive the protection the statutory provision confers?

9.9 This chapter considers each of the provisions of the Judicial Proceedings Reports Act within that framework. Given the nature of some of the prohibitions, particularly the prohibition in section 4(1A) which protects of the privacy of victims of sexual assault, the chapter focuses on the rights and interests of victims in the criminal trial process.

9.10 As discussed in the Commission’s report The Role of Victims of Crime in the Criminal Trial Process, victims have a right to be protected from unnecessary trauma, intimidation and distress, and unjustified interference with their privacy.^[9] Recognising and respecting the rights and interests of victims in the criminal trial process is a critical element of the requirement to uphold the principles of a fair trial.^[10] The Victims Charters Act 2006 (Vic) provides that a victim’s personal information is not to be disclosed by any person except in accordance with the Privacy and Data Protection Act 2014 (Vic).^[11] Further, the Charter of Human Rights and Responsibilities Act 2006 (Vic) provides generally that a person has the right not to have their privacy unlawfully or arbitrarily interfered with or their reputation unlawfully attacked.^[12] Child victims or witnesses in particular have the right to such protection as is in their best interests and is needed by them by reason of being a child.^[13] In that context, this chapter considers whether and how the interests and rights of victims might give rise to exceptional circumstances requiring a departure from the principles of open justice.

Indecent matters and public morals

9.11 Section 3(1)(a) of the Judicial Proceedings Reports Act provides that in relation to any judicial proceedings it is not lawful to print or publish, or to cause or procure to be printed or published:

any indecent matter or indecent medical surgical or physiological details being matter or details the publication of which would be calculated to injure public morals.

9.12 This prohibition applies to reporting on any judicial proceedings, whether those proceedings have taken place in Victoria or elsewhere.^[14] The terms ‘indecent matter’, ‘indecent medical, surgical or physiological details’ and ‘public morals’ are not defined.

9.13 The prohibition in section 3(1)(a) is in the same terms as when it was originally enacted in 1929.^[15] It is modelled on an identical provision in English legislation—which today also remains in force without substantive amendment.^[16]

9.14 In reviewing the operation of the prohibition, the Commission was unable to find any record of a prosecution for contravention of section 3(1)(a), nor any reference to, or consideration of, the provision in reported judgments more broadly.

9.15 The prohibition was reviewed in 1958 by the Statute Law Revision Committee. Without making any specific comment on its operation, the Committee did ‘not recommend any change’ to the section.^[17]

9.16 Dr Stephen Cretney, writing in 1997 in relation to the identical English provision, concluded ‘it is clear that the prohibition on publication of indecent matter added little to the law and has, in the context of press reporting, been effectively a dead letter’.^[18]

The option of repeal

9.17 When section 3(1)(a) was enacted, there were statutory provisions in force which specifically empowered Victorian courts to close proceedings to the public or to restrict reporting of proceedings on public decency and morality grounds.^[19] These provisions have since been repealed and do not have contemporary counterparts.^[20]

9.18 In this changed statutory context, it is suggested that the prohibition on reporting indecent matters in section 3(1)(a) may be an outdated anomaly.

9.19 Some ninety years have now passed since the prohibition in section 3(1)(a) was first enacted. Community attitudes and regulatory approaches to restricting publication have altered significantly over that time. The section is directed towards safeguarding public morals rather than any purpose associated with the administration of justice or the protection of the rights and interests of parties, victims or witnesses.^[21] It is a mandatory prohibition which applies without consideration for whether any restriction is necessitated by the circumstances of the particular proceedings. In this context it is suggested that section 3(1)(a) sits uneasily with the principle, adopted in the Open Courts Act 2013 (Vic), that our system of justice must be open to public scrutiny and assessment to the maximum extent possible.

9.20 Accordingly, the question arises whether section 3(1)(a) should be repealed, with the filtering of reporting on court proceedings, to the extent that it might involve indecent, obscene or distressing material, left to be regulated by laws and standards of general application to all publications and broadcasts.

Question

36 Should the prohibition in section 3(1)(a) of the Judicial Proceedings Reports Act 1958 (Vic) on the publication of indecent matter and indecent medical, surgical or physiological details in relation to any judicial proceedings be repealed?

Divorce and related proceedings

9.21 Section 3(1)(b) of the Judicial Proceedings Reports Act provides that, in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, for judicial separation, or for restitution of conjugal rights, it is unlawful to print or publish or cause or procure to be printed or published any particulars other than limited, specified details.^[22]

9.22 The laws regulating separation and divorce in Australia have significantly changed since this prohibition on publishing the details of divorce and related proceedings was first enacted in 1929.^[23] Jurisdiction over family law matters in Victoria, including divorce, is now exercised by courts applying Commonwealth law, primarily the Family Law Act 1975 (Cth).

9.23 Under the Family Law Act, two of the types of proceedings referred to in section 3(1)(b),

proceedings for judicial separation and for restitution of conjugal rights, have been abolished.^[24]

9.24 In relation to other family law proceedings, section 121 of the Family Law Act provides that it is an offence to publish or disseminate an account of the proceeding that could identify a party, witness or other person associated with the proceeding. However, section 121 of the Family Law Act does not otherwise restrict the publication of detailed accounts of family law proceedings. This reflects a statutory intention that the family law courts should be as open to scrutiny and media comment as any other court, except to the extent that protecting the privacy of parties requires otherwise. ^[25]

The option of repeal

9.25 Section 3(1)(b) of the Judicial Proceedings Reports Act restricts reporting on four types of family law proceeding, two of which have since been abolished by Commonwealth statute. Publication of reports on the two remaining types of family law proceeding is regulated by section 121 of the Family Law Act. Section 3(1)(b) is inconsistent with that Commonwealth provision. Therefore, to a large extent section 3(1)(b) of the Judicial Proceedings Reports Act has no operative effect^[26]and is effectively a dead letter.^[27]

Question

37 Should the prohibition in section 3(1)(b) of the Judicial Proceedings Reports Act 1958 (Vic) on the publication of the details of divorce and related proceedings be repealed?

Directions hearings and sentence indications

9.26 Section 3(1)(c) of the Judicial Proceedings Reports Act restricts the matters that may be printed or published about a directions hearing held under Part 5.5 of the Criminal Procedure Act 2009 (Vic) or a sentence indication hearing held under Part 5.6 of that Act.

9.27 The information which may be lawfully published about proceedings under Part 5.5 and Part 5.6 of the Criminal Procedure Act 2009 is limited to:

• the names of the court, judge and legal practitioners^[28]

• the names, addresses, ages and occupations of the accused and witnesses^[29]

• certain business information relating to the accused^[30]

• the offence(s) charged or a summary of it or them^[31]

• the date and place to which the proceedings are adjourned^[32]

• any bail arrangements that have been made.^[33]

9.28 The statutory prohibition imposed by section 3(1)(c) is qualified in two important ways:

• The prohibition on publication is temporary and only remains in place until the conclusion of the trial of the person charged, or of the last of the persons charged.^[34]

• On application by an accused person, the court may order that the prohibition does not apply.^[35]

9.29 The Commission has been unable to find any reference to section 3(1)(c) of the Judicial Proceedings Reports Act in Victorian case law.

9.30 An introductory guide for journalists published by the County Court to assist journalists covering the courts urges general caution in reporting on pre-trial hearings but does not refer specifically to the restriction in section 3(1)(c) and the narrow list of matters which may be lawfully reported on.^[36]

9.31 An empirical analysis of all suppression orders made in the Victorian courts from 2008 to 2012 records that one order was made under section 3(1)(c) in that time.^[37]

9.32 One purpose of directions hearings under Part 5.5 of the Criminal Procedure Act is to narrow the matters in issue at trial and to resolve, by court order or through agreement, what evidence will be presented to the jury and the manner in which it will be presented. If potential jurors were to become aware, through media reporting, of the matters identified and discussed at directions hearings but not later admitted into evidence at the trial, this purpose may be frustrated. There is a risk that an accused’s fair trial rights may be compromised by potential jurors reaching their verdict other than according to the law and evidence presented to them in the courtroom.

9.33 The purpose of sentence indication hearings under Part 5.6 of the Criminal Procedure Act is to allow offenders to obtain a broad indication of the sentence that they would likely face if they pleaded guilty to the offence(s) charged. If hearings held under Part 5.6 are publicly and contemporaneously reported on, potential jurors may be exposed to information that an accused was contemplating a guilty plea, requested a sentence indication and/or was informed that they would face imprisonment if convicted.

9.34 Given that proceedings under Part 5.5 and 5.6 occur close to trial, the memory and impact on potential jurors of reporting on those proceedings will have limited time to fade.^[38]

9.35 By restricting what can be published about directions hearings and sentence indications, the prohibitions in section 3(1)(c) are intended to protect the fair trial rights of the accused. The restrictions are only temporary and cease to operate at the end of the trial.^[39]

9.36 However, the prohibition in section 3(1)(c) of the Judicial Proceedings Reports Act is somewhat of an anomaly, as there are no automatic statutory restrictions which specifically prohibit or limit reporting on other pre-trial proceedings in Victoria such as committals, bail hearings or sentence indications in the Magistrate’s Court.^[40]

Possible reforms to prohibitions on reporting directions hearings and sentence indications

9.37 Through section 3(1)(c), the legislature has struck a balance in relation to criminal directions hearings and sentence indications held in the County Court and Supreme Court. The legislature has determined, for all hearings of this type, the degree to which the principle of open justice must be departed from in order to ensure a fair trial. The statutory approach adopted allows directions hearings and sentence indications to be held in open court and attended by the public^[41] without requiring:

• the parties to be diligent in identifying and anticipating what potentially prejudicial information might be reported from the proceedings and to seek a suppression order accordingly

• the presiding judicial officer to evaluate the potentially prejudicial effect of matters discussed and the necessity of suppression orders.

9.38 The result of the restrictions, however, is that only the most rudimentary contemporaneous reporting on directions hearings or sentence indications is allowed. The restrictions potentially go beyond the restrictions that sub judice contempt would impose.

9.39 Important matters of public interest may be raised and discussed at directions hearings. These include issues that relate more broadly to the administration of the criminal justice system in Victoria and in particular to the resourcing and efficacy of the courts, the DPP and Victoria Legal Aid. For example, if there are delays in a matter proceeding to trial after committal, the causes of such delay are likely to be discussed at a directions hearings. The restrictions in section 3(1)(c) potentially prohibit the timely publication of information which might better allow the public to understand and scrutinise how resourcing and other practical matters might affect whether, when and how a matter is brought to trial.

9.40 The restrictions in section 3(1)(c) are also unusual in that there are no equivalent default statutory prohibitions in Victoria in relation to other preliminary hearings, such as bail or committal proceedings. Regulation of what can or cannot be published about those proceedings is left to the law of sub judice contempt or the discretion of the presiding judicial officer exercising powers conferred under legislation like section 7 of the Bail Act 1977 (Vic) or section 17 of the Open Courts Act.

9.41 In consultations for the Open Courts Act Review, criminal lawyers consulted through the Law Institute of Victoria and the DPP ‘supported broader use of statutory restrictions on publication of certain categories of information rather than primary reliance on a regime of suppression orders made by courts and tribunals’.^[42] This suggests that there is likely support for restrictions of the type contained in section 3(1)(c).

9.42 Importantly, in the Open Courts Act Review consultations, the DPP also ‘warned that the efficacy of a statutory scheme depended upon the media and members of the public being made aware of the subject of the statutory prohibitions’.^[43] The Commission’s preliminary research suggests that awareness of section 3(1)(c) of the Judicial Proceedings Reports Act is limited. For that reason, if the section is retained, consideration should be given to whether relocating it to another statute may increase awareness of the section.

Questions

38 Are the statutory prohibitions in section 3(1)(c) of the Judicial Proceedings Reports Act 1958 (Vic) on the reporting of criminal directions hearings and sentence indication hearings necessary? If so:

(a) What should be the scope of such prohibitions?

(b) Where should such prohibitions be located to optimise awareness of their existence and operation?

(c) Should other pre-trial hearings, such as bail hearings or committal proceedings also be subject to statutory reporting restrictions?

Victims of sexual offences

9.43 Section 4(1A) of the Judicial Proceedings Reports Act prohibits the publication of any matter that contains any particulars likely to lead to the identification of a person against whom a sexual offence is alleged to have been committed. For the purposes of the provision, a ‘sexual offence’ is defined as one of a list of specified offences in the Crimes Act 1958 (Vic), and includes an attempt to commit any such offence or an assault with an attempt to commit a listed offence.^[44]

9.44 The prohibition in section 4(1A) is not restricted to reporting on judicial proceedings. It applies before proceedings commence and continues after proceedings have concluded.^[45] However, it is a defence to a charge under section 4(1A) to prove that at the time the material was published, no proceedings were pending in a court in respect of the alleged offence and one of the following applied:

• no complaint had yet been made about the alleged offence to a police officer^[46]

• the matter was published with the permission of the Supreme Court, the County Court or the Magistrates’ Court, granted on an application by a person^[47]

• the matter was published with the permission of the person against whom the offence is alleged to have been committed.^[48]

9.45 If proceedings were pending in relation to the alleged offence at the time of publication, it is a defence to a charge under section 4(1A) to prove that permission to publish the relevant matter was obtained from the court before which the proceedings were pending.^[49]

9.46 Although there are variations in their scope and operation, every state and territory in Australia has a statutory provision to protect the anonymity of the complainant in sexual offence cases.^[50]

9.47 Unlike the other provisions in the Judicial Proceedings Reports Act discussed above, there appears to be wider awareness of the prohibition in section 4(1A).^[51]

9.48 Reported cases indicate that people have been successfully prosecuted for breach of the prohibition,^[52] although such prosecutions are rare. As noted above, Annual Reports published by the Office of Public Prosecutions indicate that the DPP has given only four consents to prosecute breaches of the Judicial Proceedings Reports Act in the last 17 years.^[53]

9.49 Case law also reveals that the courts are mindful of the implications of the section in relation to:

• the release of or access to documents on the court file^[54]

• the identification of parties and witnesses in civil proceedings^[55]

• the publication of court judgments, which are routinely redacted or employ pseudonyms in order to be consistent with the public policy of the provision.^[56]

Is the prohibition necessary to protect victims?

9.50 Section 4(1A) of the Judicial Proceedings Reports Act is a departure from the principle of open justice. It restricts what can be published about proceedings in cases where the accused is charged with a sexual offence. More broadly, section 4(1A) is also a limitation on freedom of expression in that it restricts the publication of identifying information irrespective of whether it is it derived from or relates to judicial proceedings. However, the provision is only a partial departure from the principle of open justice and only a partial limitation on freedom of expression. Except to the extent that the reporting would likely lead to the identification of the victim, section 4(1A) does not prevent the public and media from attending proceedings, or from reporting on proceedings and sexual assault allegations and investigations more generally.^[57]

9.51 This incursion into the principle of open justice has been justified on the grounds that the proper and effective administration of justice requires restrictions on publication:

• to ensure a fair trial for the victim, where a fair trial requires that the victim is not subjected to undue distress or humiliation or invasion of privacy

• to encourage reporting and prosecution of sexual offences.^[58]

9.52 The basis for this differential treatment of victims of sexual assault stems from acknowledgment that significant distress, shame, embarrassment and social stigma are still experienced by many sexual assault victims.^[59] Further, the nature of the evidence in such cases can cover sensitive and acutely personal matters. Where an accused is charged with sexual offences, ensuring a fair trial for all participants requires particular vigilance to safeguard the privacy rights of the victim and to ensure that the justice ultimately delivered by the courts is not undermined by the trauma endured to achieve it.

9.53 However, it does not necessarily follow that any prohibition on identifying sexual assault victims should operate automatically by way of statutory prohibition. The imposition of mandatory anonymity on sexual assault victims could potentially remove a victim’s agency and affirm and perpetuate the stigma it is designed to address.

9.54 On the other hand, any alternative which relies on victims being sufficiently informed and empowered to proactively seek a suppression order from the court, might equally be characterised as unfairly placing the burden on the victim to secure what should be a guaranteed protection. A departure from the current default anonymity position could also undermine awareness of and compliance with the prohibition on identifying sexual assault victims.

The scope of the prohibition

9.55 The prohibition in section 4(1A) is not limited to listed particulars about a victim and includes any particulars ‘likely to lead to the identification’ of the person against whom the offence is alleged to have been committed. This means that the precise scope of the material captured by the prohibition cannot be easily defined. The Judicial Proceedings Reports Act does not contain, by way of guidance, a non-exhaustive list of potentially identifying particulars similar to the list contained in the Family Violence Protection Act 2008 (Vic),^[60] the Children, Youth and Families Act 2005 (Vic)^[61] and the Family Law Act 1975 (Cth).^[62] Whether or not any published particular is likely to lead to the identification of the victim is a question of fact which is dependent on context, such as the size of the victim’s community or the notoriety of other facts surrounding the circumstances of the case.^[63]

Possible reforms to prohibitions against identifying victims

9.56 The prohibition on identifying victims in section 4(1A) of the Judicial Proceedings Reports Act operates as a mandatory, default statutory prohibition. The prohibition applies to any particulars likely to lead to the identification of a person against whom a sexual offence is alleged to have been committed. Whether a publication breaches the provision is a question of fact which is very dependent on context.

9.57 The Commission seeks the views of the community, including victims, media, and those responsible for monitoring and enforcing compliance with the provision, on whether greater clarity on the scope of the prohibition is necessary. If so, the Commission seeks the views of those affected on how this should be achieved.

9.58 As the effectiveness of the prohibition in protecting the privacy of victims depends on public and media awareness of the section, the Commission also seeks comment on whether the prohibition should remain in the Judicial Proceedings Reports Act or whether the prohibition is more appropriately located in other legislation.

Question

39 Should the statutory prohibition on identifying victims of sexual offences under section 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic) continue to apply automatically from the time of complaint, throughout proceedings and after proceedings have concluded? If so:

(a) What further legislative guidance should be provided about the scope of the prohibition?

(b) Should the prohibition continue to be located in the Judicial Proceedings Reports Act 1958 (Vic) or is the provision more appropriately located in other legislation?

A victim’s ability to speak

Consent to publication

9.59 Under section 4(1B)(b)(ii) of the Judicial Proceedings Reports Act, it is a defence to a charge of publishing identifying information about a victim to prove that at the time of the publication:

• no proceeding in respect of the alleged offence was pending, and

• the matter was published in accordance with the permission of the person against whom the offence is alleged to have been committed.^[64]

Child victims

9.60 The Judicial Proceedings Reports Act does not differentiate between adult and child victims. The Victorian Supreme Court has held that, where the victim is still a child, they can give permission for publication only if they have the capacity to comprehend what it means to identify themselves as a victim of a sexual offence and to comprehend the consequence of losing the anonymity otherwise afforded by section 4(1A).^[65] Parents cannot give consent on behalf of their child.^[66]

Proceedings pending

9.61 There is no specific guidance in the Judicial Proceedings Reports Act about when a proceeding in respect of the alleged offence will or will not be considered pending.^[67]

9.62 It is not clear why the defence of consent to publication is only available if there are no proceedings pending at the time of publication. Where proceedings in respect of the alleged offence are pending, permission to publish the identifying information must be obtained from the court before which the proceedings are pending.^[68] This indicates that the court’s supervision is required to ensure that the publication does not interfere with or prejudice the ongoing proceedings. However, the purpose of section 4(1A) is to protect the victim’s privacy, rather than to safeguard the accused’s fair trial rights. Therefore the rationale for requiring the court’s involvement and approval for the removal of the protection is not certain.

Transference of protection to the accused

9.63 The anonymity of a person accused of committing a sexual offence is not protected by the Judicial Proceedings Reports Act. However, sometimes the relationship between the accused and the victim is such that publishing the identity of the accused would likely lead to the identification of the victim.

9.64 In these circumstances, the accused also benefits from the protection of section 4(1A) and does not have to endure the publicity of criminal proceedings and, where relevant, conviction, in the ordinary way. The Open Court Act Review observed:

The injustice of this transference of protection is increasingly appreciated by victims and the wider society. They object to the ability of the perpetrator of life-changing offences against their victims to hide from public accountability and become the principal beneficiary of measures designed for victim protection.^[69]

9.65 This transference of protection is often an unavoidable consequence of the operation of section 4(1A). However, it has underlined the importance of ensuring that victims who do not seek the protection of anonymity, particularly at the cost of the perpetrator avoiding public scrutiny, must be given clear avenues to consent to the publication of information which may potentially identify them.

Victim’s voices and public awareness

9.66 Given that the purpose of the prohibition in section 4(1A) of the Judicial Proceedings Reports Act is to protect the victim, it follows that a victim who does not seek or perceive the need for this protection should be empowered to authorise publication of their identity.^[70]

9.67 If the prohibition applies contrary to a victim’s wishes, then the justification for the departure from the principle of open justice and the limitation on freedom of expression is harder to sustain. In those circumstances, the prohibition may serve the purpose of protecting the victim from embarrassment or humiliation that they are assumed to be feeling, notwithstanding that they do not feel burdened in that way or do not seek that protection.

9.68 Increased public awareness and discussion around sexual offences is also likely to encourage reporting of offences and to slowly erode the stigma and prejudice that might otherwise lead to under-reporting. However, if victims are prevented from speaking openly about their experiences, with respect to both the offence and the subsequent institutional responses, public debate and discussion about these issues is muted and robbed of the personal element which so often resonates with the community. For this reason, regardless of its intended purpose, a prohibition on identifying victims which does not sufficiently allow them to waive anonymity and publicly tell their stories, may in practice undermine the proper and effective administration of justice.

9.69 This view was reflected in the judgment of a New South Wales District Court Judge who received an application to revoke, with the victim’s consent, a suppression order identifying the victim of a sexual offence. Judge Berman stated:

There is a public interest in overcoming what remains of community attitudes which suggest that people in Ms Loiterton’s [the victim’s] position should be ashamed. I am satisfied that far from this being a case where publication is not in the public interest, I make a positive finding that it is in the public interest for a victim of sexual assault who consents to her name being published having her name being published. Ms Loiterton should not, by implication, be forced to hide away, embarrassed about what has happened to her. She is entitled to hold her head up high and identify herself as a blameless victim of sexual assault. [Emphasis added.]^[71]

Recent amendments

9.70 The Open Courts Act Review considered the issue of victims consenting to the disclosure of their identity. The Review observed that:

An increasing number of victims reject the absurd notion that they have been in any way diminished by the commission of criminal acts committed against them by another and are prepared to have their identities disclosed. There seems to be no good reason why a person who adopts this view, or an adult who has previously suffered abuse as a child, and makes an informed decision to do so should not be entitled to opt for disclosure and to have that publicly recorded upon the conviction of the perpetrator.^[72]

9.71 The Open Courts Act Review did not specifically consider the operation or effectiveness of section 4(1B)(b)(ii) of the Judicial Proceedings Reports Act. However, Recommendation 15 of the Open Courts Act Review stated that adult victims of sexual assault or family violence, or child victims who are now adults, should be able to opt for disclosure of their identity on the conviction of the offender.^[73] The Review further recommended that, in situations where there is more than one victim, the court should be required to refuse an application or impose conditions on publication, to secure the anonymity of any non-consenting victim.^[74]

9.72 This recommendation contemplates that only victims who are now adults may give consent to disclosure and that this may only occur if the offender is convicted. In contrast, section 4(1B)(b)(ii) appears to allow a victim to give permission to the disclosure of their identity regardless of whether a criminal prosecution was commenced or how it was resolved, as long as there are no proceedings currently pending in respect of the alleged offence.

9.73 In response to the Open Courts Act Review, the Open Courts and Other Acts Amendment Act 2019 (Vic) was passed by the Parliament of Victoria on 2 May 2019. The amendments made by the new Act are not yet in operation.^[75] The Act does not amend existing section 4(1B)(b). Instead, it inserts new sections 4(1CA) and 4(1CB) into the Judicial Proceedings Reports Act. The new section 4(1CA) creates a defence to a charge under section 4(1A) where:

• the accused has been convicted of the relevant offence, and

• the Magistrates Court, County Court or Supreme Court has given permission for the publication on application or on its own motion, and

• if the person against whom the sexual offence was committed is 18 years of age or over, they have also given permission.^[76]

9.74 The new section 4(1CB) requires the court to withhold its permission where:

• there were sexual offences against multiple victims dealt with in the same proceeding and disclosure of the identity of the consenting victim would identify a non-consenting victim or a child victim, or

• disclosure is not appropriate in all the circumstances.^[77]

9.75 The intended purpose of the amendments is to aid victims who want to tell their stories,^[78] but the interaction of the proposed new sections with existing section 4(1B)(b)(ii) of the Judicial Proceedings Reports Act is ambiguous.

9.76 Relevant to the issue of victims’ agency and consent, the Open Courts and Other Acts Amendment Act also amends section 15 of the Open Courts Act.^[79] The amendments allow for victims who do not seek anonymity to apply for a variation to or revocation of a suppression order which was made to protect their identity.^[80]

Possible reforms—greater autonomy for victims

9.77 The Open Courts Act Review has highlighted the need to ensure that statutory provisions which are designed to protect victims of sexual offences do not also deny them the ability to talk about their experiences. In that context, the Commission is seeking the views of the community on whether and how the Judicial Proceedings Reports Act should be amended to allow victims greater autonomy and agency in electing to waive the anonymity currently afforded them by section 4(1A).

9.78 In particular, the Commission is seeking the views of the community on what if any role the court should play in authorising the giving of consent to identification. For example, is it necessary for the court to supervise whether:

• any consent to identification by the victim is informed and freely given

• any consent to identification by one victim will not lead to the identification of other non-consenting victims or child victims

Questions

40 How should the law accommodate a victim’s ability to speak?

41 When should a victim be able to consent to publication of identifying material?

(a) Should the court’s supervision and permission also be required?

(b) What, if any, special provision should be made for child victims?

• any publication of information identifying the victim will not interfere with ongoing proceedings?

9.79 The Commission also seeks the views of the community on whether a victim’s permission to publish their identity should be sufficient, without the need for a court order and irrespective of whether proceedings are pending.

Temporary restrictions—sex offences and family violence

9.80 As part of its review of the Judicial Proceedings Reports Act, the Commission has been asked to consider whether a further statutory prohibition on publication should be introduced which would temporarily restrict the publication of sensitive information in relation to alleged sexual and family violence criminal matters upon the laying of charges.

9.81 This aspect of the reference has its genesis in Recommendation 17 of the Open Courts Act Review which provided as follows:

That it becomes mandatory at initial bail hearings consequent upon the laying of charges in relation to alleged sexual or family violence criminal offences for an interim suppression order to be issued, confining publication of reports to the laying of the charges and the fact and date of the hearing. This order would remain in effect for five working days. Alternatively, the Judicial Proceedings Reports Act should be amended to the same effect.^[81]

9.82 The recommendation was made after consultation with affected stakeholders revealed that if adequate attention was not given to protecting the privacy of victims in the earliest stages of the criminal process, personal information may be exposed resulting in repeated trauma and humiliation.^[82] Concern was expressed in the Review that this might act as a deterrent to reporting crimes and seeking justice.^[83]

9.83 There are a number of statutory provisions which may be relied upon to protect the identity, safety and wellbeing of alleged victims of sexual or family violence at the early stages of criminal proceedings.^[84] However, the Open Courts Act Review indicates that the combined protection for victims provided by these statutory provisions may be inadequate. The Review noted that:

A problem of the absence of consideration of the possible necessity for a suppression order to protect victims has emerged in relation to initial bail hearings.^[85]

9.84 The Open Courts Act Review found that, according to anecdotal evidence, victims have little knowledge of the statutory prohibitions on publication or grounds for suppression orders under the Open Courts Act.^[86] The Review further found that, at the stressful point at which a matter first comes before the court, victims of sexual and family violence offences will not necessarily be in a position to properly consider the need for a suppression order, nor to make an application or ask for one of their behalf.^[87] The Review observed that by the time a proper assessment is made of whether an order is necessary and an appropriate application made it may be too late, with the damaging information already reported in the public domain.^[88]

9.85 Accordingly, to address these concerns Recommendation 17 of the Open Courts Act Review proposed that a temporary publication restriction should commence ‘at an initial bail hearing consequent upon the laying of charges’.

Defining relevant cases

9.86 Where an automatic statutory publication prohibition applies, the circumstances in which it applies must be clearly defined. This is because criminal sanction will potential result from breach of the prohibition. The Commission has been asked to consider a temporary publication restriction which would apply in cases of ‘alleged sexual or family violence criminal offences’.

9.87 The Judicial Proceedings Reports Act defines the application of the prohibition in section 4(1A) by reference to cases where a ‘sexual offence’ is alleged to have been committed. The captured offences are defined by reference to a list of offence provisions in the Crimes Act 1958 (Vic).^[89] However, a ‘family violence criminal offence’ is more difficult to define.

9.88 For example, the definition used in the Open Courts Act extends beyond conduct which is in breach of an existing intervention order to include conduct which ‘if established, constitutes family violence within the meaning of the Family Violence Protection Act 2008 by the accused against the complainant or alleged victim and the conduct could reasonably have justified the making of a family violence intervention order …’.^[90] The definition of family violence in the Family Violence Protection Act is very broad^[91] and turns on establishing a ‘family member’^[92] relationship between victim and perpetrator.

9.89 Therefore a family violence offence is not defined by offence type but instead is contingent on the context of the offending and the relationship between victim and perpetrator. The context-dependent nature of the definition means that it may not always be clear or agreed at the early stages of proceedings whether an offence is a family violence criminal offence.

Defining sensitive information

9.90 The prohibition on temporary publication which the Commission has been asked to consider would restrict the publication of ‘sensitive information’ in relation to alleged sexual or family violence offences.

9.91 ‘Sensitive information’ is a subjective term and if it is to be used as the touchstone for a statutory prohibition and offence provision, it is suggested that further definition will be required. Definitions of this term are provided in other statutory contexts. For example, ‘sensitive information’ is defined in Schedule 1 of the Privacy and Data Protection Act 2014 (Vic). However, that definition is not directly transferable to the present context and purpose.

9.92 If a definition is not included, a list of permissible publishable details may assist in providing certainty to those reporting on relevant proceedings. Recommendation 17 of the Open Courts Act Review proposed that the temporary restriction should confine publication of reports to the laying of the charges and the fact and date of the hearing.^[93]

Public awareness

9.93 There is a significant public interest in raising awareness about the frequency, nature and circumstances of both sexual and family violence in the community. This must be balanced against the level of caution employed to ensure that existing protections for victims’ privacy and dignity operate effectively. If the media cannot report on sexual and family violence criminal offences in a timely way or if the restrictions around reporting are regarded as too legally complex, the amount of coverage these types of cases receive may be reduced.

Possible reforms to restrictions in cases of sexual and family violence

9.94 The Open Courts Act Review has identified a potential gap in the privacy protection afforded victims of family violence and sexual offences at the earliest stages of proceedings. There are a number of ways that this could be addressed.

9.95 More information could be provided to victims about the orders the court is empowered to make and more support could be provided to assist them to make a timely application for a suppression order or to request that one be made on their behalf. Measures of this type were also canvassed in the Open Courts Act Review.^[94]

9.96 Statutory amendments could be made to reverse the default position in section 7 of the Bail Act so that, unless an order was made permitting publication of a report of the bail proceedings, publication of the details of those proceedings would be restricted.^[95] This would ensure that specific consideration was given to the need for a suppression order at this early stage of the process or that, in the absence of such consideration, the opportunity to apply for a suppression order later was not lost. This could apply to all initial bail proceedings or specifically to cases where an accused has been charged with a sexual and family violence criminal offence.

9.97 A temporary statutory prohibition could be imposed on publishing sensitive material in cases where an accused was charged with a sexual or family violence criminal offence for a specified period. The term ‘sensitive material’ could be defined. Alternatively, the provision could include an exhaustive list of matters that may permissibly be reported. The court could have discretion to order that the temporary prohibition does not apply, on application by the victim or on the court’s own motion. This statutory prohibition could be included in the Judicial Proceedings Reports Act or other subject-specific legislation.

Questions

42 Is a statutory prohibition required to temporarily restrict reporting in cases where an accused has been charged with a sexual or family violence criminal offence? If so:

(a) What information should be permitted to be published—should the court have discretion to order that additional or less information be published?

(b) When should the temporary prohibition apply?

(c) Should the temporary prohibition only apply to cases where the accused has been charged with a sexual or family violence criminal offence?

1. The prohibition in section 4(1A) on identifying a person against whom a sexual offence is alleged to have been committed operates more broadly than the other provisions. It restricts the publication of material likely to lead to the identification of a victim, whether or not the identifying material arises from, or is related to, a judicial proceeding.

   ↑

2. Judicial Proceedings Reports Act 1958 (Vic) s 3(1)(a).

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3. Ibid s 3(1)(b).

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4. Ibid s 3(1)(c).

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5. Ibid s 4(1A).

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6. Ibid ss 3(3), 4(2). For a person, 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.

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

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8. Office of Public Prosecutions, Annual Report 2002–2003 (2003) 12; Office of Public Prosecutions, Annual Report 2009–2010 (2010) 70. All other Annual Reports for the period 2000 to 2018 record that there were no consents to prosecute offences under the Judicial Proceedings Reports Act.

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9. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 32.

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10. Ibid 25–9.

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11. Victims’ Charter Act 2006 (Vic) s 14.

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12. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 13.

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13. Ibid s 17(2)

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14. Judicial Proceedings Reports Act 1958 (Vic) s 3(6).

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15. See Judicial Proceedings (Regulation of Reports) Act 1929 (Vic) s 2(1)(a).

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16. Judicial Proceedings (Regulation of Reports) Act 1926 16 & 17 Geo 5, c 61, s 1(1)(a).

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17. Statute Law Revision Committee, Parliament of Victoria, Regulation of Reports of Judicial Proceedings, Parliamentary Report (30 October 1958), 5 [9].

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18. Stephen Cretney, ‘Disgusted, Buckingham Palace—The Judicial Proceedings (Regulation of Reports) Act 1926’ (1997) 9 Child and Family Law Quarterly 43, 59.

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19. See, eg, Supreme Court Act 1928 (Vic) s 29; County Court Act 1928 (Vic) ss 89, 90; Justices Act 1958 (Vic) ss 213, 214; Supreme Court Act 1958 (Vic) s 29; Magistrates’ Court Act 1971 (Vic) s 48 (all Acts repealed); Supreme Court Act 1986 (Vic) ss 18–19; County Court Act 1958 (Vic) s 81 (all sections repealed).

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20. Jason Bosland, ‘Two Years of Suppression Under the Open Courts Act 2013 (Vic)’ (2017) 39 Sydney Law Review 25, 30–31.

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21. See, eg, Victoria, Parliamentary Debates, Legislative Assembly, 14 August 1929, vol 179, 827–8, 830 (Ian Macfarlan, Attorney-General); Rapisarda v Colladon [2014] EWFC 1406 (8 December 2014) [16]–[17].

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22. Those permissible details are: the names, addresses and occupations of the parties and witnesses; a concise statement of the charges, defences and counter-charges in support of which evidence has been given; submissions on any point of law arising in the course of the proceedings and the decision of the court or judge on them; and the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment.

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23. Judicial Proceedings (Regulation of Reports) Act 1929 (Vic) s 2(1)(b).

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24. Family Law Act 1975 (Cth) s 8(2).

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25. See discussion of the history of section 121 in Sharon Rodrick and Adiva Sifris, ‘100 Years of Open Justice in Family Law Proceedings in Australia’ (2016) 16(2) Legal History 13, 39. See also Australian Law Reform Commission, Review of the Family Law System (Discussion Paper No 86, 2018) 304–9.

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26. Australian Constitution s 109.

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27. Justice Barry expressed the view that section 3(1)(b) had been superseded by a provision of the Commonwealth predecessor to the Family Law Act, the Matrimonial Causes Act 1959 (Cth), as far back as 1961: Skitch v Skitch [1961] VR 304, 305. However, in a recent Victorian Supreme Court matter, Justice Richards indicated that section 3(1)(b) may have some operation by restricting the publication of material obtained from historical divorce proceeding files held by the Victorian Supreme Court: Re Proceeding No. 449 of 1962 [2019] VSC 286 [8].

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28. Judicial Proceedings Reports Act 1958 (Vic) ss 3(c)(i), s 3(c)(v).

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29. Ibid s 3(c)(ii).

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30. Ibid s 3(c)(iii). The relevant buisness information is set out in s 3(1A).

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31. Ibid s 3(c)(iv).

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32. Ibid s 3(c)(vi).

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33. Ibid s 3(c)(vi).

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34. Ibid s 3(1E).

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35. Ibid s 3(1B).

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36. County Court of Victoria, Covering the Courts—A Q&A Guide for Journalists (Information Sheet, 2016) <www.countycourt.vic.gov.au/files/documents/2018-09/covering-courts.pdf>.

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37. Jason Bosland and Ashleigh Bagnall, ‘An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008–12’ (2013) 35 Sydney Law Review 671, 680 n 70. As section 3(1)(c) contains an automatic statutory prohibition, it is possible that the order referred to was an order made on the application of an accused under section 3(1B). An order can be made under that section that the restrictions in section 3(1)(c) do not apply.

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38. See, eg, New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 258 [11.50]–[11.51] for discussion of the impact that the passage of time may have on risk of prejudice.

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39. Judicial Proceedings Reports Act 1958 (Vic) s 3(1E).

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40. Section 3(1)(c) of the Judicial Proceedings Reports Act and the supporting provisions in 3(1A)–(1E) are based on, and closely mirror, section 11 of the Criminal Justice Act 1987 (UK). In the United Kingdom, there are a number of automatic statutory restrictions on reporting on preliminary, pre-trial proceedings. See, eg, Crown Prosecution Service (UK), Contempt of Court, Reporting Restrictions and Restrictions of Public Access to Hearings—Legal Guidance (Web Page, 11 May 2018) The Code for Crown Prosecutors <www.cps.gov.uk/legal-guidance/contempt-court-reporting-restrictions-and-restrictions-public-access-hearings>.

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41. The importance of sentence indication hearings being held in open court for the transparency of the process is discussed in Sentence Advisory Council, Sentencing Advisory Council Sentence Indication and Specified Sentence Discounts: Final Report (2007) 74–5.

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42. Frank Vincent, Open Courts Act Review (2017) 65 [250] <https://engage.vic.gov.au/open-courts-act-review>.

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43. Ibid.

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44. Judicial Proceedings Reports Act 1958 (Vic) s 4(1).The offences listed are those in subdivisions (8A), (8B), (8C), (8D), (8E), (8F) or (8FA) of Division 1 of Part I of the Crimes Act 1958 (Vic).

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45. Hinch v DPP (Vic); Television and Telecasters (Melbourne) Pty Ltd v DPP [1996] 1 VR 683, 689. However, in Nixon v Random House Australia Pty Ltd (2000) 2 VR 523, Justice Hedigan indicated that the prohibition may not apply indefinitely and that whether anonymity should be kept must be judged on a case-by-case basis.

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46. Judicial Proceedings Reports Act 1958 (Vic) s 4(1B)(a).

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47. Ibid s 4(1B)(b)(i).

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48. Ibid s 4(1B)(b)(ii).

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49. Ibid s 4(1C). On 2 May 2019, the Parliament of Victoria passed the Open Courts and Other Acts Amendment Act 2019 (Vic), which introduced a new defence to a charge under section 4(1A) of the Judicial Proceedings Reports Act 1958. This amendment is discussed below at paragraph [9.70] to [9.76].

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50. Frank Vincent, Open Courts Act Review (2017) Appendix 2, 140 <https://engage.vic.gov.au/open-courts-act-review>.

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51. For example, a County Court guide for journalists refers specifically to section 4(1A): County Court of Victoria, Covering the Courts—A Q&A Guide for Journalists (Information Sheet, 2016) <www.countycourt.vic.gov.au/files/documents/2018-09/covering-courts.pdf>; likewise, the Open Courts Bench Book, prepared by the Judicial College of Victoria for the guidance of judicial officers, includes a sub-chapter on the scope and operation of section 4: Judicial College of Victoria, Open Courts Bench Book (Web Page, 6 February 2019) [3.9] <www.judicialcollege.vic.edu.au>.

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52. Hinch v DPP (Vic); Television and Telecasters (Melbourne) Pty Ltd v DPP [1996] 1 VR 683; Doe v Australian Broadcasting Corporation [2007] VCC 281 (3 April 2007); Bailey v Hinch [1989] VR 78.

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

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54. See, eg, DPP v Theophanous (2009) 27 VR 295; Stephensen v Salesian Society Inc; Easton v Salesian Society Inc (No 2) [2018] VSC 630.

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55. See, eg, TTT & JJJ v State of Victoria [2013] VSC 162 (11 April 2013) [26].

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56. See, eg, DPP (Vic) v Goillon [2017] VCC 1220; DPP (Vic) v Latimer [2017] VCC 87; DPP (Vic) v Ivanov (a pseudonym) [2018] VCC 834 (6 June 2018); Supreme Court of Victoria, Court of Appeal—Anonymisation Protocol for Criminal Applications and Appeals (2017).

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57. Doe v Australian Broadcasting Corporation [2007] VCC 281 (3 April 2007) [48].

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58. See, eg, Law Reform Commission of Victoria, Rape and Allied Offences: Procedure and Evidence, Report No 13 (1988) 30 –1.

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59. Frank Vincent, Open Courts Act Review (2017) 131 [520] <https://engage.vic.gov.au/open-courts-act-review>; Law Reform Commission of Victoria, Rape and Allied Offences: Procedure and Evidence, Report No 13 (1988) 31–2; Tasmania Law Reform Institute, Protecting the Anonymity of Victims of Sexual Crimes (Final Report No 19, 2013) 1,7.

    ↑

60. Family Violence Protection Act 2008 (Vic) s 168.

    ↑

61. Children, Youth and Families Act 2005 (Vic) s 534(4). Note that section 13 of the Open Courts and Other Acts Amendment Act 2019 (Vic) amends section 534(4) to clarify and reduce the number of identifying particulars listed.

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62. Family Law Act 1975 (Cth) s 121(3).

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63. Bailey v Hinch [1989] VR 78, 93–4; see also Howe v Harvey (2008) 20 VR 638.

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64. Judicial Proceedings Reports Act 1958 (Vic) s 4(1B)(b)(ii).

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65. Hinch v DPP (Vic); Television and Telecasters (Melbourne) Pty Ltd v DPP [1996] 1 VR 683, 695.

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66. Ibid 691–3.

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67. See Ibid 686. In that case, material identifying the victim was published after the offender was convicted and sentenced but before relevant appeal periods had expired. There was no appeal on foot at time of publication. The Supreme Court stated, in those circumstances, that no proceedings were pending in any court at the time of publication.

    ↑

68. Judicial Proceedings Reports Act 1958 (Vic) s 4(1C).

    ↑

69. Frank Vincent, Open Courts Act Review (2017) 131 [521] <https://engage.vic.gov.au/open-courts-act-review>.

    ↑

70. Ibid 131–3 <https://engage.vic.gov.au/open-courts-act-review>.

    ↑

71. R v Md Kowser ALI [2008] NSWDC 318, [7].

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72. Frank Vincent, Open Courts Act Review (2017) 131 [522] <https://engage.vic.gov.au/open-courts-act-review>.

    ↑

73. Ibid 133.

    ↑

74. Ibid 133, Recommendation 15.

    ↑

75. Section 2 of the Open Courts and Other Acts Amendment Act 2019 (Vic) provides that the Act will come into operation on a day or days to be proclaimed, or if a provision of the Act does not come into operation before 7 February 2020, it comes into operation on that day. As at 7 May 2019, the Act had received assent but a commencement date had not been proclaimed.

    ↑

76. Open Courts and Other Acts Amendment Act 2019 (Vic) s 15.

    ↑

77. Ibid.

    ↑

78. Victoria, Parliamentary Debates, Legislative Assembly, 20 February 2019, 425 (Jill Hennessy, Attorney-General).

    ↑

79. Open Courts and Other Acts Amendment Act 2019 (Vic) s 10.

    ↑

80. Victoria, Parliamentary Debates, Legislative Assembly, 20 February 2019, 425 (Jill Hennessy, Attorney-General).

    ↑

81. Frank Vincent, Open Courts Act Review (2017) 134 <https://engage.vic.gov.au/open-courts-act-review>.

    ↑

82. Ibid 8, 71, 133–4.

    ↑

83. Ibid 8.

    ↑

84. See, eg, Judicial Proceedings Reports Act 1958 (Vic) s 4(1A); Family Violence Protection Act 2008 (Vic) s 166; Bail Act 1977 (Vic) s 7; Open Courts Act 2013 (Vic) s 18(1)(c)–(e), s 30(2)(c)–(e).

    ↑

85. Frank Vincent, Open Courts Act Review (2017) 133 [528] <https://engage.vic.gov.au/open-courts-act-review>.

    ↑

86. Ibid 70 [268], 72 [274], 133 [529].

    ↑

87. Ibid 71 [273], 134 [529].

    ↑

88. Ibid 71 [273], 133 [528].

    ↑

89. Judicial Proceedings Reports Act 1958 (Vic) s 4(1).

    ↑

90. Open Courts Act 2013 (Vic) s 3.

    ↑

91. Family Violence Protection Act 2008 (Vic) s 5.

    ↑

92. Ibid s 8.

    ↑

93. Frank Vincent, Open Courts Act Review (2017) 134 <https://engage.vic.gov.au/open-courts-act-review>.

    ↑

94. Ibid 72 [274], 134 [529].

    ↑

95. See, eg, Justices Act 1959 (Tas) s 37A which prohibits publication of an account of bail proceedings, except an account giving the fact of the application and stating that an order has been made in respect of it.

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