Contempt of Court: Report (html)

12. The Judicial Proceedings Reports Act

Overview

• The Judicial Proceedings Reports Act restricts what people can publish about court proceedings in four ways.

• Two of these restrictions no longer serve a purpose and should be abolished. These prohibit the publication of indecent matters and the details of divorce and related proceedings.

• There is still value in the restriction on directions hearings and sentence indications. This should be moved to the Open Courts Act with minor changes, but its scope should not be extended.

• It is still important to prohibit people from identifying victims of sexual offences. This restriction should also be moved to the Open Courts Act.

• The law should make clear that an adult victim can agree in writing to this material being published. If the victim is a child who agrees to publish, the court will need to decide if the matter can be published.

• Victims should be given early advice, guidance and support to apply for suppression orders. Judicial officers should be under a duty to inquire, in cases involving family violence and sexual offences, whether there is a need for any suppression order. There should be no further temporary restriction for victims of family violence and sexual offences.

• The Judicial Proceedings Reports Act should be repealed.

Why reform is needed

12.1 The Judicial Proceedings Reports Act 1958 (Vic) makes it a summary offence^[1] to publish four kinds of material about court proceedings.^[2] It prohibits publishing:

• indecent matters calculated to injure public morals^[3]

• details about divorce or related proceedings^[4]

• details about criminal directions hearings and sentence indication hearings in the County Court and Supreme Court^[5]

• material identifying a person against whom a sexual offence is alleged to have been committed.^[6]

12.2 A person can only be prosecuted under the Act if the Director of Public Prosecutions (DPP) consents.^[7] Prosecutions are rare.^[8]

12.3 The consultation paper asked if any of these restrictions should be retained.^[9]

Indecent matters and public morals

12.4 Section 3(1)(a) of the Act makes it unlawful to publish or cause to be published from court proceedings:

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.

12.5 This applies whether those court proceedings took place in Victoria or elsewhere.^[10] Attitudes have changed since this restriction was enacted in 1929.^[11] At that time, other laws gave Victorian courts powers to close proceedings to the public and restrict reporting of proceedings on the grounds of public decency and morality.^[12] These provisions have since been repealed.^[13]

12.6 As discussed in the consultation paper,^[14] this restriction does not appear to have been prosecuted and may be ‘effectively a dead letter’.^[15]

Responses

12.7 Most submissions, including that of the DPP, agreed that this provision no longer served any public interest.^[16] Dr Denis Muller called the provision ‘absurdly out of touch with contemporary community standards’.^[17] The Criminal Bar Association stated that the same restrictions should apply to the publication of material regardless of whether this material had been tendered or referred to in court.^[18]

12.8 The County Court, however, said this offence should remain.^[19] While the Court could and did decide not to release ‘indecent material or surgical evidence’ to the media, there was still a need to prevent publication of material that was accidentally released. However, the Court said the offence should be modernised and consolidated.^[20]

Commission’s conclusions: abolish the offence of publishing indecent material

12.9 This provision no longer serves a purpose. Any ban on indecent publications should not depend on whether the material has been tendered or referred to in court. Rather, whether such material should be published should depend on the nature of the material and whether other circumstances mean such information should not be published.

12.10 The County Court can already decide not to release such material if requested. While there may be a risk of accidental release, it does not justify retaining this restriction.

Recommendation

93 The prohibition in section 3(1)(a) of the Judicial Proceedings Reports Act on the publication of indecent matter and indecent medical, surgical or physiological details in relation to any judicial proceedings should be repealed.

Divorce and related proceedings

12.11 Section 3(1)(b) of the Act prevents the publication of certain details about divorce or related proceedings.^[21]

12.12 Two of these types of proceedings have since been abolished.^[22] Restrictions on publication in relation to the other types are now regulated by the Family Law Act 1975 (Cth),^[23] which overrides section 3(1)(b).^[24]

12.13 As with the earlier restriction, this section does not appear to have been prosecuted.^[25]

Responses

12.14 Most who addressed this issue agreed that this offence was no longer useful and should be repealed.^[26]

12.15 The Supreme Court of Victoria submitted that the Commission should consider the effect of any repeal on historical matters decided before the enactment of section 121 of the Family Law Act. The Court still receives requests to access historical divorce files.

12.16 The files are not made automatically available, on the basis that they should generally remain confidential between the parties. In deciding whether to release the files, the Court considers the privacy of those with an interest in the matter, even if the parties are no longer alive.^[27]

Commission’s conclusions: repeal the offence of publishing divorce files

12.17 This offence should be repealed as it is no longer useful.

12.18 In repealing this restriction, transitional rules should apply to protect the interests of parties who may be affected. Existing rights should be preserved.

12.19 The Supreme Court should regulate access to these files. This addresses its concern about the privacy interests of others affected by the repeal, and better balances all interests than a blanket ban.

Recommendations

94 Section 3(1)(b) of the Judicial Proceedings Reports Act, prohibiting the publication of details of divorce and related proceedings, should be repealed, and transitional provisions should be enacted to continue protections for proceedings which predate the Family Law Act.

95 The Supreme Court should make rules to address requests for access to historical court files relating to divorce and other proceedings.

Directions hearings and sentence indications

12.20 Section 3(1)(c) of the Act limits what can be published about a directions hearing or a sentence indication hearing.^[28] Directions hearings are held to narrow the matters in issue at a trial and decide how and what evidence will be presented to a jury. Sentence indication hearings occur if an accused is considering pleading guilty and involve the making of potential admissions of a type not necessarily made at a bail, committal or other pre-trial hearings. The risk of actual prejudice is therefore greater at a sentence indication hearing than other pre-trial hearings.

12.21 Section 3(1)(c) sets out what information can be lawfully published about these proceedings.^[29] The restriction is limited in two important ways:

• It only applies until the end of the trial of the person charged, or of the last of the persons charged.^[30]

• A court can lift the restriction if the accused person applies.^[31]

12.22 This restriction allows those at a directions hearing or sentence indication hearing to speak freely without worrying that what they say will be published. This means the proceedings can be open to the public, but few details can be reported.

12.23 As the consultation paper discussed, these restrictions do not appear to be well known. Similar restrictions do not apply to other kinds of preliminary hearings, such as bail or committal hearings.^[32]

Responses

12.24 Many stakeholders including the County Court supported keeping this offence.^[33] Victoria Legal Aid (VLA) said that it was an ‘important tool in early resolution case management practices’, and removing it could discourage offenders from seeking a sentence indication.^[34]

12.25 Similarly, the County Court said that this offence played a ‘central role in supporting its case management functions’. The offence was also ‘clear and unambiguous’.^[35]

12.26 The Commercial Bar Association Media Law Section Working Group (CommBar—Media Law Section) submitted that this provision was too restrictive. Instead, the offence should only restrict publication if needed to avoid prejudice to the administration of justice. The offence should include examples of the kind of information that could not be published.^[36]

12.27 Australia’s Right to Know coalition (ARTK) argued the offence was not needed. While some of this information may be prejudicial, the public could distinguish between allegations and statements of fact, and between the relevance of pre-trial matters and those heard at trial.^[37]

12.28 The Supreme Court noted few problems with reporting on these kinds of proceedings. Although it is difficult to be certain, the Court suggested that this was probably because people knew the law of sub judice contempt rather than because they knew of this offence. However, the Court was aware of cases where the restrictions had been breached, although this caused concern only where reporting might affect the trial.^[38]

12.29 Stakeholders had mixed views on whether the offence should be extended to other pre-trial proceedings. The Criminal Bar Association favoured extending the offence to other pre-trail proceedings.^[39] The CommBar—Media Law Section supported extending the narrower offence which it proposed.^[40]

12.30 On the other hand, Dr Denis Muller considered that, in other pre-trial proceedings, there were strong public interest arguments for public scrutiny.^[41] Similarly, ARTK strongly opposed extending the offence. The need for public scrutiny was essential in bail hearings, where the court exercised the important power of depriving a person of liberty.^[42]

12.31 Most also favoured moving the offence to other legislation to improve awareness. Some favoured moving the restrictions near the relevant provisions in the Criminal Procedure Act 2009 (Vic).^[43] The Criminal Bar Association and the DPP preferred to move it to the Open Courts Act 2013 (Vic),^[44] and the County Court to any proposed Act dealing with contempt.^[45]

12.32 ARTK suggested that notices should be placed on courtroom doors so people attending these hearings would know what could be published.^[46]

12.33 Some suggested changes to the scope of the prohibition. The Criminal Bar Association submitted that the list should be changed to prevent publication of the addresses of witnesses and allow publication of the reasons for an adjournment.^[47]

12.34 The DPP submitted that the offence should extend to prohibit publication of certain information about voir dire hearings, submissions and rulings on evidence, or any other information that would not be put before a jury, and that occurs close to trial.^[48] The Commission makes a recommendation addressing this issue in Chapter 10.

Commission’s conclusions: retain the restriction for directions hearings and sentence indications

12.35 Directions hearings and sentence indications play an important role in case management in the criminal law. Those taking part in these hearings must feel free to put forward material without fear that this may be published.

12.36 There is some attraction in narrowing the reporting restriction set out in section 3(1)(c) of the Act to be consistent with sub judice contempt. However, the case management purpose of these hearings means the balance between competing interests is different from a bail hearing or trial. The principle of open justice is of greater weight when reporting on a bail hearing or trial because decisions are made then about the liberty of the accused and their guilt or innocence.

12.37 This reporting restriction should remain. However, it should not be extended to other pre-trial hearings, because there is a greater public interest in reporting on those hearings.

12.38 The reporting restriction should also be amended to allow the publication of the reasons for adjournment. Such reasons promote open justice by helping the community to understand delays in the system and their publication would not undermine the purpose of the provision.^[49]

12.39 In addition, the reporting restriction should be amended to remove witnesses’ addresses from the list of matters that may be published. This is needed to protect the privacy of witnesses.

12.40 The reporting restriction should also be amended to require notices of hearings to which the reporting prohibition applies to be placed on court doors. This would promote compliance and is consistent with similar legislation.^[50]As this prohibition applies automatically, it is fair to place those attending the proceedings on notice of the restrictions.

12.41 To improve awareness of the reporting restriction, the Commission recommends that the provision be re-enacted in the Open Courts Act, together with its attendant provisions,^[51] amended as recommended in this report. This will allow for better consolidation of legislative provisions relating to publication restrictions and their enforcement. A legislative note could be inserted in the Criminal Procedure Act to ensure readers are aware of the offence.

Recommendations

96 The restriction on the publication of details of directions hearings and sentence indication hearings set out in section 3(1)(c) of the Judicial Proceedings Reports Act should be retained and re-enacted in the Open Courts Act, together with its attendant provisions, subject to the amendments recommended below.

97 The proposed provision should be amended to:

• remove witnesses’ addresses from the list of matters that may be published

• allow reasons for an adjournment to be published

• require notice to be placed on the courtroom doors to indicate it is a hearing to which the provision applies.

98 The proposed provision should not extend to other preliminary hearings (such as bail hearings or committal proceedings).

Identifying victims of sexual offences

Need for and scope of the offence

12.42 Section 4(1A) of the Act bans publishing details likely to identify a person against whom a sexual offence is alleged to have been committed.^[52] This aims to protect the privacy of victims and to encourage the reporting and prosecution of sexual offences.

12.43 Section 4(1A) reflects the fact that sexual offences involve a personal violation of an intimate nature and sexual assault victims can often experience shame and social stigma. It also reflects the concern, expressed in the Victims’ Charter Act 2006 (Vic), that the criminal justice system should not cause victims further trauma.^[53] Other states and territories have similar laws.^[54]

12.44 Section 4(1A) does not list the types of information that cannot be published. This makes it hard to know what it covers. This is a strict liability offence,^[55] so it is not necessary to prove that the publisher intended or was reckless as to whether they might identify the victim.

12.45 Unlike the other restrictions in the Act, section 4(1A) applies before proceedings commence and continues after they have concluded.^[56] However, different defences apply depending on whether proceedings are pending or not. There is no definition or guidance as to when a proceeding is ‘pending’ in the Act.^[57]

12.46 If no proceedings are pending when the material is published, it is a defence if any of the following apply:

• No complaint about the alleged offence has been made to a police officer.

• The matter was published with the permission of a court.

• The matter was published with the permission of the person likely to be identified.^[58]

12.47 If proceedings were pending, it is a defence if it was published with the permission of the court holding the proceedings.^[59]

12.48 It is unclear if the offence applies when a victim has died. In practice, as recent high-profile cases show, the media often names deceased victims.^[60] Although, in the DPP’s view, the prohibition in section 4(1A) continues beyond death,^[61] no prosecutions have arisen from the reporting in those cases.

12.49 In New South Wales and the United Kingdom, the equivalent law applies only while an alleged victim is alive.^[62] However, the Tasmania Law Reform Institute recommended applying its equivalent prohibition after death, although a person could apply to lift the ban.^[63]

12.50 The consultation paper asked:

• whether this prohibition on the identification of sexual offence victims should apply automatically and indefinitely from the time of complaint

• whether its scope should be made clearer

• whether it should be moved to another Act^[64]

• whether there was a need to make clear the fault element.^[65]

Responses

The need for protections

12.51 Most stakeholders strongly supported the purpose of this restriction on publication.^[66] Victim survivors told the Commission the restriction was important in reassuring victims and encouraging reporting of sexual offences. They also said it was important for the ban to apply automatically, because for many victims it would be ‘one hurdle too many’ to apply for an order.^[67]

12.52 Some stakeholders said the law was largely effective.^[68] Several, however, were concerned the ban could indirectly protect offenders.^[69] Government agencies told the Commission of cases where the law was breached.^[70]

Scope of the law

12.53 The Victims of Crime Commissioner noted difficulties with the scope of the law, which covers any particulars ‘likely to lead to the identification’ of the victim. The Commissioner was concerned victims could be identified through the surrounding circumstances, especially in rural areas,^[71] and, particularly in early stages, the parties and the judicial officer may not know what details could identify the victim. Further, the law did not prevent publication of the details of the offending, which could cause distress and trauma to victims and their families.^[72]

12.54 Some stakeholders addressed whether the offence should require some level of fault, such as whether the person intended to identify the victim. On basic principles of fairness, most argued that a person must be aware the published material was likely to identify the victim.^[73]

12.55 The Criminal Bar Association stated that intention and recklessness should apply to these offences.^[74] The DPP saw no reason to change the fault element of the offence.^[75]

12.56 The DPP did support clarifying aspects of the offence,^[76] including:

• whether the law continues to apply if the victim has died^[77]

• when a proceeding was pending and when it had concluded.^[78]

12.57 ARTK also supported making clear when a proceeding was pending. It gave an example of a high-profile case where proceedings were underway to extradite an alleged offender from overseas to Australia. There was no certainty whether proceedings in that case were pending for the purposes of the section.

12.58 ARTK opposed any change that would extend the offence to victims who had died, highlighting recent reporting of cases which were of significant public interest.^[79]

12.59 The County Court supported modernising the language of the provision to remove the implication of moral judgment.^[80]

Types of information

12.60 To provide guidance on the scope of the prohibition, the CommBar—Media Law Section favoured adding an inclusive list of the types of information that might identify a victim, like that provided in section 168 of the Family Violence Protection Act 2008 (Vic).^[81] The County Court and the Criminal Bar Association also supported the addition of an inclusive list.^[82]

12.61 The DPP opposed this because what information might make someone identifiable always depends on the context.^[83] The Supreme Court considered the provision was ‘readily interpreted and applied with a common-sense approach’.^[84] This was also the view of some victim survivors.^[85]

12.62 Several stakeholders raised the issue of consistency. VLA supported consistency with other relevant Acts, although it did not suggest a specific form of the provisions.^[86]

12.63 Media academics suggested that harmonising laws across Australia would improve clarity and certainty, especially since online publishing makes state borders irrelevant.^[87] The value of national consistency in publication restrictions is discussed in Chapter 13.

Improving awareness

12.64 Most who addressed the issue agreed that the offence should be moved to another Act to improve awareness.^[88] However, they divided on which Act that should be, suggesting the Criminal Procedure Act,^[89] the Open Courts Act,^[90] or any Contempt of Court Act.^[91]

12.65 The Victims of Crime Commissioner proposed including in the legislation a guiding principle to explain the purpose of the offence. The Commissioner suggested this could be that ‘the public reporting of such cases can cause some complainants further trauma, shame or embarrassment’.^[92] Forgetmenot Foundation named different agencies that would benefit from greater awareness of the offence.^[93]

Commission’s conclusions: retain the offence of identifying victims of sex offences

12.66 The Commission recommends that this publication restriction should remain, because it still serves an important purpose. The sense of personal violation and the intimacy of sexual offences means that there is a stronger privacy interest in protecting the anonymity of the victim than in other criminal offences. Further, the privacy protection afforded by the publication restrictions encourages victims to report these offences without fear that their identity will be published.

Deceased victims

12.67 The purpose of this prohibition is to protect a victim’s right to privacy. The balance between competing rights and interests changes once a victim has died, when the victim’s right to privacy and the need to protect victims from re-traumatisation is no longer compelling.

12.68 Some rights or interests in favour of suppressing publication may continue after a victim’s death. For example, family members of victims have their own rights to privacy, which may be affected by publication of the victim’s identity. A recent Northern Ireland review recommended that the anonymity for complaints should apply even after death because of the distress that might otherwise be caused to families.^[94] A Tasmanian review made the same recommendation, accepting submissions that ‘there may be cogent reasons why a family would wish to preserve the victim’s anonymity’.^[95] The nature and weight of these considerations will vary from case to case. The assumption that anonymity should automatically continue beyond death may perpetuate a harmful myth that there is abiding shame attached to being the victim of sexual assault.

12.69 It is difficult to justify a prohibition that continues indefinitely. At some point, the balance of public interest must shift in favour of freedom of expression.

12.70 Further, these privacy and related concerns can be dealt with by means other than a blanket prohibition enforced by criminal sanction. For example, they are addressed in the ethical codes of journalists. The Australian Press Council’s binding Statement of Principles provides that publishers must take reasonable steps to:

• avoid intruding on a person’s reasonable expectations of privacy, unless doing so is sufficiently in the public interest

• avoid causing or contributing materially to substantial offence, distress or prejudice, or a substantial risk to health or safety, unless doing so is sufficiently in the public interest.^[96]

12.71 It could be argued that if victims believed they could be identified after death, they might be discouraged from reporting the offence. This was a further reason given for recommending extending anonymity in Northern Ireland. It was suggested that the prospect of being identified after death might ‘deter some victims coming forward if, for example, they have a terminal illness’.^[97] However, in New South Wales and the United Kingdom similar restrictions on publication are limited to the life of the victim. The Commission found no evidence these limitations have discouraged victims from reporting.

12.72 This argument would not apply to victims who died without reporting the offence. The prohibition cannot encourage reporting by victims who die as a result of crimes that included sexual offences.

12.73 In those cases, there is a much stronger public interest in reporting the identity of the victim. The coverage of several recent high-profile cases of this kind in Victoria has raised public awareness about gender-based violence.

12.74 Although the details of the offending could have been published without it, the identity of the victim is an important part of the story. Understanding that the victim was a real person with unique attributes makes the story more compelling, helps the public relate to the victim, and gives victims the dignity they were denied in death.

12.75 If the death is unrelated to the offending, for example, where the victim dies of natural causes some years after the offence and the resolution of any related court proceedings, there may be less public interest in identifying the victim after death. This may mean there is no media reporting identifying the deceased as a victim in these cases.

12.76 While the media should respect the privacy of the victim’s family and the wishes of the victim, this should be dealt with as a matter of ethics rather than criminal law.

12.77 There is no compelling reason why a victim should not be able to be identified after death. The balance of protection should be reversed so that the default is that a victim can be identified.

12.78 This balance may need adjustment to reflect the facts of each case. For example, it may be appropriate to continue to protect the anonymity of a victim after death where there is a need to protect the privacy of any affected children of the deceased. The Commission therefore recommends that either the Criminal Procedure Act or the Open Courts Act be amended to allow for a person to apply for a suppression order to prohibit identification of a deceased victim who, had they been alive, would have been protected under the Judicial Proceedings Reports Act. The court should be able to make an order of this type where the public interest in disclosure is outweighed by the ongoing privacy interests of the deceased or other persons.^[98]

The scope of the offence

12.79 The Commission considers the scope of the legislation is otherwise clear. The phrase ‘particulars likely to lead to the identification’ of a person is a common formula in other legislation and is broad enough to capture the purpose of the provision.

12.80 The Commission considers that, similar to its conclusion in relation to sub judice contempt, adding an inclusive list of types of information would not be helpful. The scope of the material likely to identify a victim will always depend on the context. If the provision includes a list of types of information likely to identify a victim, some publishers may be too quick to conclude, without considering the circumstances, that anything not listed can be published, while anything that is listed is automatically prohibited. However, as with sub judice contempt, a legislative note with examples could be useful.^[99]

12.81 It is unnecessary to resolve the confusion about whether a proceeding is pending for the purposes of the section. This is relevant only to the availability of the victim’s consent defence. The Commission has recommended changes to that defence that would make the status of the proceedings irrelevant.

12.82 It is not necessary to change the fault element of the offence. The offence does not require proof the publisher knew or was reckless as to whether the published material would be likely to identify the victim. However, the defendant can rely on the defence of honest and reasonable mistake of fact.^[100] In addition, strict liability is more common and acceptable for summary offences—such as this—than for indictable offences.

12.83 It is reasonable to impose on anyone publishing information about sexual offences a positive duty to take due care not to inadvertently identify the victim. That is consistent with the protective purpose of the section. The public identification of a victim is irreversible and can cause long-term distress. To require an intent to identify or recklessness would undermine the effect of the ban. Unlike a suppression order, the prohibition operates automatically in all cases. Therefore, publishers are on notice that a restriction is in place.

12.84 Finally, the Commission recommends that this offence be moved to the Open Courts Act for the same reasons as the other remaining offence. A legislative note can be placed in the relevant section of the Criminal Procedure Act to ensure awareness of the prohibition.

12.85 As the Commission is recommending moving two offences to the Open Courts Act and repealing the others, the Judicial Proceedings Reports Act is no longer needed. It should therefore be repealed.

Recommendations

99 The prohibition in section 4(1A) of the Judicial Proceedings Reports Act on publishing any particulars likely to lead to the identification of a person against whom a sexual offence is alleged to have been committed should be retained and re-enacted in the Open Courts Act, together with its attendant provisions, subject to the later recommendations in this report relating to consent to publication, penalties and the definition of ‘publish’.

100 The provision should be amended to clarify that the provision ceases to apply where a victim has died, with interested parties able to apply to continue the prohibition where the public interest in disclosure is outweighed by the ongoing privacy interests of the deceased or other persons.

101 Prosecution for the offence under the provision should continue to require the consent of the Director of Public Prosecutions.

102 As a consequence of the above recommendations relating to the substantive provisions of the Judicial Proceedings Reports Act, the Act is no longer required and should be repealed.

The ability of victims to speak

12.86 Section 4(1A) is designed to protect victims but it can also prevent victims from talking about their experiences and restrict public discussion about the nature and prevalence of sexual offending.^[101] For example:

• In some cases, the ban also protects the offender, if identifying the offender is likely to identify the victim (for example, in cases of incest).

• Automatic application may remove a victim’s agency and preserve the shame and stigma sometimes attached to victims of sexual offences.

• While proceedings are pending, a victim must apply to the court for permission to be identified, as their consent alone is not a defence.^[102]

• Child victims can only consent to publication if they have the capacity to understand the effects of identifying as a victim.^[103]

Changes to the law

12.87 In May 2019, Parliament passed the Open Courts and Other Acts Amendment Act 2019 (Vic) in response to a review of the Victorian Open Courts Act conducted by the Hon. Frank Vincent.^[104] The Act adds two new provisions to section 4 of the Judicial Proceedings Reports Act,^[105] which are not yet in force.^[106]

12.88 The first of these makes it a defence to publish identifying material if proceedings have concluded, the offender has been convicted and both the adult victim and the court have given permission for the publication.^[107] The second prevents a court from giving permission if:

• disclosing the identity of the victim would identify another victim who does not consent or is a child, or

• disclosure is not appropriate in all the circumstances.^[108]

12.89 Although these changes are intended to help victims who want to tell their stories,^[109] it is unclear how these provisions work alongside the existing defences in the Judicial Proceedings Reports Act. Although the Open Courts Act Review did not consider the operation of section 4 of the Act, it discussed whether victims should be able to consent to the disclosure of their identity. The review recommended that adult victims of sexual assault or family violence, or child victims who are now adults, should be able to choose to disclose their identity once an offender had been convicted. However, if there was more than one victim, the court should have to refuse an application or impose conditions on publication, so that any victim that did not consent to being identified remained anonymous.^[110]

12.90 The defences in the Judicial Proceedings Reports Act, as noted earlier, already allow a victim to consent to publication if there are no pending proceedings, including once the proceedings have ended. No application to or involvement of the court is required. However, the changes seem to mean that, if the proceedings have ended in a conviction, victims will now need to get permission from a court to tell their story.

12.91 The consultation paper asked how the law should enable a victim to speak, and when a victim should be able to consent to publication.^[111]

Responses

Balancing publicity and privacy

12.92 The Victims of Crime Commissioner submitted that reporting of cases, especially sexual assault cases, encouraged other victims to report and helped challenge myths. However, each victim was different and may want different levels of privacy protection. This could change during the case or even over their lifetime.^[112] It was ‘therefore essential that the legislation governing this area of the law [should] be flexible enough to protect each victim’.^[113] Other submissions echoed this view.^[114]

12.93 The Victims of Crime Commissioner said the law should continue to protect victims but make it simple for others to opt out of the process.^[115] This was supported by some victims and their representatives.^[116]

12.94 All those who addressed the issue recognised the importance of allowing people to tell their story. Shine Lawyers, for example, said their clients found that the experience of coming forward to describe abuse could ‘be as impactful on the future direction of their life as the experience of abuse itself’.^[117]

12.95 Shine Lawyers also noted that the offence could apply to victims and survivors who identify themselves in online forums, even if the group is closed.^[118] Others told the Commission that people did not consider these laws when deciding what to share online.^[119]

12.96 Others emphasised that victims telling their stories ‘significantly influenc[e] the public narrative and … dismantl[e] the stereotype of the passive victim’.^[120] For example, a victim telling her story on the television program Four Corners led to a review of consent laws for sexual assault cases in New South Wales.^[121]

12.97 However, the Victim Survivors’ Advisory Council said that a common ‘risk and pitfall’ was the exploitation by the media of the ‘trauma and tragedy of lived experience’.^[122] Some people supplied vivid examples of trauma caused by publications.^[123]

12.98 Many stakeholders agreed that the media needed to be more sensitive and ethical in its treatment of victims and there should be better support for victims in dealing with the media.^[124] The Victims of Crime Commissioner identified this as a priority area for its work.^[125] The Victim Survivors’ Advisory Council argued that publishers should have to take reasonable steps to obtain the consent of those affected.^[126]

Consent and court supervision

12.99 Stakeholders differed on whether the courts should have a role in supervising consent to publication. Many said that for adult victims the court should not be involved.^[127] However, some of these considered the position different where there were other victims who would be identified without their consent or where the victims were children.^[128]

12.100 Many victims emphasised that the criminal process stripped victims of control and involving the courts in the consent process would further undermine the autonomy and agency of victims.^[129] Also, the media would only be interested while the matter was current, and identifying the victim was important to humanise the victim in the media.^[130] The delay in seeking court approval may mean that stories are not reported.

12.101 Some stated that requiring court involvement in the consent process signalled that victims should be ashamed and required supervision to understand the gravity of being identified.^[131] Some considered advice, information and counselling to be a better way of assisting victims with the consent process.^[132] Others noted that the suggestion that victims required counselling before they could be deemed to know what was in their own best interest was another form of disempowerment.^[133]

12.102 ARTK said that a court should not be required to give approval before a victim could consent to being identified and this extra layer of protection is impractical and unnecessary. ARTK submitted that consent to identification should be enough to allow publication, whether proceedings were pending or not.^[134]

12.103 Others supported the court having some role. The Victims of Crime Commissioner supported a straightforward process to ensure informed consent and protect the interests of others. A victim should not have to pay to apply for consent and should be able to ask a prosecutor to make the application. There should be a written or signed authority by the victim. If there was more than one victim, there should be legal advice, preferably by a state-funded legal service for victims but otherwise by VLA or the Office of Public Prosecutions (OPP).^[135] VLA took a similar position.^[136]

12.104 The Victim Support Agency and Child Witness Service acknowledged the difficulty of the balance. In its view, it was better to start by protecting victim survivors, because the victim could not reverse the decision and the criminal process could overwhelm some survivors.^[137]

12.105 Some victims agreed that a court process might work as a check, but emphasised that it needed to be as ‘non-legal’ and as simple as possible.^[138] It could also be useful to include criteria to guide courts about when permission should be granted and to make sure the law did not imply it was shameful to be a victim.^[139]

12.106 The Victorian Equal Opportunity and Human Rights Commission suggested drawing upon the principles of free and informed consent in privacy law as well as the balancing test in the Charter of Human Rights. It observed that ‘privacy is not only about protection of information but also about control of information, and a victim’s choice to publish was an exercise of privacy rights’.^[140]

12.107 The DPP supported the court supervising consent both during and after the proceedings. This would ensure the victim received and understood advice about the effect of disclosure. Courts could resolve disputes between victims and between victims and the prosecution or defence. They could provide oversight for children and victims with cognitive impairment. Orders would also be recorded so potential publishers could know whether publication was allowed.^[141]

12.108 The Supreme Court took a similar view to the DPP. It added that this would help the Court to know what the victim wanted and reflect these wishes in its internal processes.^[142] The Magistrates’ Court told the Commission it was essential to ensure informed consent. They were open to this being achieved in another way, such as counselling.^[143]

Multiple victims and children

12.109 Other stakeholders favoured court supervision only when multiple victims and children were involved. All who addressed the issue agreed that courts were needed to resolve differences of view between multiple victims.^[144] Some also thought a court should supervise consent in relation to some classes of adults,^[145] such as those living with a disability.^[146]

12.110 Most stakeholders said that children should be able to consent but needed more protection than adults.^[147] The Victims of Crime Commissioner considered that this should be made clear in the legislation.^[148]

12.111 The CommBar—Media Law Section thought the current law was ‘unworkable’ with respect to children and their capacity to consent.^[149] ARTK said editorial policies or judgment already dealt with this issue.^[150]

12.112 Most agreed that court supervision would be appropriate for child victims to ensure they understood the consequences of their decision to be identified.^[151] However, one young victim stated that it was important not to underestimate the ability of young people to make decisions for themselves.^[152] Some supported free legal advice.^[153] Others favoured qualified court-appointed advocates for child victims.^[154]

12.113 Several stakeholders said that parents should not be allowed to consent on behalf of the child,^[155] although others disagreed.^[156] Some also said it was important to ensure that those living with disability were not denied a voice and their guardians should not be able to consent on their behalf.^[157]

The role of support and advice

12.114 The Victims of Crime Commissioner emphasised the need for practical support and advice about the media for victims. It was ‘imperative’ for victims to be told that they could seek a suppression order. The Commissioner suggested that the courts should be obliged to ask victims whether they had been given support and advice about this.^[158] The DPP noted that its office could not provide such advice or act on behalf of victims, because its role and interests may differ from those of victims’.^[159]

12.115 Victim survivors and others suggested instead that an independent advocate was needed to represent victims in the criminal process.^[160]

12.116 Some noted that, although the law was generally effective, victims would not know what to do if there was a breach.^[161] Others said there was a gap if there was no witness (for example, if there is no trial) and no primary victim (because they have died).^[162]

Commission’s conclusions: adult consent should be enough

12.117 Consent of an adult victim should be all that is needed for lawful publication. The offence exists to protect victims, so victims should be able to waive this protection. This applies whether proceedings have begun or ended.

12.118 The offence should balance the rights of victims by automatically banning publication, yet make it easy for victims to lift the ban. This means those who want to speak out can do so, while recognising the rights of others not to. In both cases, the victims choose how to exercise their privacy rights. The law should respect their choice.

12.119 Deciding whether to consent to publication and engage with the media can be a complex decision for victims, with attendant risks. Victims should be supported in this process and have access to advice to make informed choices.

12.120 However, requiring courts to supervise the consent process places a burden on victims and assumes they require supervision and protection rather than information and assistance.

12.121 The Commission does not consider that the need for court involvement in the consent process should change because proceedings are pending. The purpose of the provision is to protect the privacy of the victim and not the trial process. If publication restrictions are required for some other reason, then an order can be applied for. Victims in other criminal cases do not require court approval to identify themselves because proceedings are pending.

12.122 The Commission recognises the concerns about cases where there are multiple victims, some of whom do not consent to publication. However, the Act now has the effect that, if a victim consents to a publication, it would still breach the restriction if another victim who does not consent is identified in the process. The Commission therefore considers the law already effectively manages this risk and sees no reason to create another hurdle for consent.

12.123 Where children are the victims, the Commission considers there is a need to respect their autonomy while recognising that they may be unaware of the long-term effects of identifying as victims of sexual offences.^[163] The law should also protect them against parental or other pressure. Each case will differ, so in these cases a court should determine whether publication should be authorised.

Recommendations

103 The prohibition in what is currently section 4 of the Judicial Proceedings Reports Act should be amended to provide that it is a defence to a charge under section 4(1A), including when proceedings are pending, to prove that:

• the matter was published with the consent of the victim, if the victim consents in writing and is an adult, and is not otherwise incapable of giving informed consent, or

• the court authorised the publication, on its own motion or on application.

104 This defence should not apply where the publication of the identifying particulars of a consenting victim is likely to lead to identification of a non-consenting victim.

105 The prohibition in what is currently section 4 of the Judicial Proceedings Reports Act should be amended to provide that where the victim is a child, the court has the power to authorise publication of identifying particulars on application or on its own motion.

Reporting on ‘sensitive information’ about sex offences and family violence offences

The proposed restriction

12.124 The Commission has been asked to consider a proposal for another restriction on publication. This would restrict briefly the publication of sensitive information about alleged sexual and family violence criminal matters. This restriction would apply once charges are filed. Its purpose would be to give a person time to consider applying for a suppression order before sensitive information about them or the offence had already been published.

12.125 This proposal was recommended by the Open Courts Act Review. The review recommended that, in these cases, an interim suppression order should be issued at initial bail hearings automatically.^[164]

12.126 Under this proposal, the order would expire after five working days. While it was in force, a person could only publish lawfully the fact that the charge had been filed and the fact and date of the hearing. Alternatively, the Review recommended that the Judicial Proceedings Reports Act should be changed to achieve the same effect.^[165]

12.127 The proposal responded to the concern that victims did not know that they could apply for a suppression order or were not in a position to apply at this early stage.^[166]

12.128 The consultation paper discussed whether there were other ways of addressing this concern.^[167] Further, if the proposal was adopted, the consultation paper discussed the need to define a ‘family violence criminal offence’ and ‘sensitive information’ in any proposed offence.^[168]

Responses

12.129 Stakeholders did not agree on whether this restriction should be introduced.

12.130 Domestic Violence Victoria opposed its introduction. The Commission was told that there was not enough evidence that the restriction was needed. Domestic Violence Victoria told the Commission it was concerned about possible unintended effects of the restriction, in particular that such a restriction could compound trauma and silence victims. In addition, the Commission was told the restriction was inconsistent with the trend of recent law reform, which sought to reinforce open justice.^[169]

12.131 The CommBar—Media Law Section and ARTK opposed the proposal because the issue was already dealt with under the Judicial Proceedings Reports Act which operates to protect a victim’s identity.^[170] ARTK also pointed to other grounds available for suppression orders to protect victims.^[171]

12.132 The CommBar—Media Law Section proposed that, for family violence offences, an amendment could be made to extend an existing protection on identifying participants in protection order proceedings to apply to bail applications involving an allegation of family violence.^[172] It also supported more education and guidance for victims.^[173]

12.133 Dr Denis Muller proposed instead that courts ask victims if they wanted to restrict publication and could tailor the protection.^[174]

12.134 Victoria Police expressed concern that the proposal could distort the coverage of the response of law enforcement to these cases. An incident might receive media coverage, but at the point an arrest was made, and charges filed, reporting would become restricted. Such reporting should not be restricted, as it reassured the public that the law was being enforced.^[175]

12.135 Others, including VLA and the Criminal Bar Association, supported the proposal.^[176] VLA supported temporary restrictions on publication to protect the privacy of complainants and encourage disclosure and suggested any provisions should be consistent with the Family Violence Protection Act.^[177] The Criminal Bar Association suggested it could be a presumption and that it should be in the Open Courts Act.^[178]

12.136 The Victims of Crime Commissioner supported the proposal for sexual assault victims. The Commissioner suggested that the reporting restriction should only allow the name of the accused, the date and place of the offence and the charges to be published. The order should be posted on the door of the court as well as provided to the media. When the order expired, the victim should be consulted about continuing the order. For other offences, victims should receive prompt advice to seek a suppression order.^[179]

12.137 In consultations, victims supported the proposal.^[180] However, they also supported measures to ensure victims could find out how to seek a suppression order, especially those in regional areas and from Aboriginal and Torres Strait Islander families.^[181]

12.138 Some suggested the Victims Charter could be updated to include more information about suppression orders.^[182] Others considered that the police, or qualified support workers outside the police and the legal profession, should inform victims about suppression orders.^[183] Victoria Police told the Commission that it provided information on suppression orders when a complainant requested it, and that otherwise the practice varied.^[184]

12.139 Some also told the Commission that any temporary restriction should be drafted to allow victims to waive its operation if they wished to permit the publication of sensitive information.^[185] Others stated that, for the proposal to work, it would need to continue for a longer time, and suggested a period of 30 days.^[186] The Magistrates’ Court also considered this period to be appropriate.^[187]

12.140 The DPP was open to this proposal and noted examples where excessive and potentially identifying details about sexual offending had been published. The DPP suggested that the proposed offence should list what could be published. It could include a discretion to allow further reporting or to order that the temporary restriction did not apply. The courts could be obliged to state in open court when the restriction applied.^[188]

12.141 The DPP did not believe five days was enough time for the restriction to fulfil its purpose. The OPP would not be able to provide advice to victims, because of the timing and a possible conflict of interest.^[189]

12.142 Others, while supporting the ban in principle, thought there was also a need to protect the public interest in reporting. The scope of the restriction would therefore be critical in striking the right balance.^[190]

Commission’s conclusions: more support and advice for victims; repeal the JPRA

12.143 The Judicial Proceedings Reports Act protects the anonymity of sexual offence victims. The Family Violence Protection Act also provides some automatic privacy protection to victims of family violence. These protections are supplemented by the Open Courts Act, which allows a suppression order to be made where it is necessary to:

• avoid causing undue distress or embarrassment to a complainant or witness in any criminal proceeding involving a sexual offence or a family violence offence

• avoid causing undue distress or embarrassment to a child witness in any criminal proceeding.

• protect the safety of any person.^[191]

12.144 However, there can be a practical gap if a victim is unaware of the option to apply for a suppression order and does not seek the restriction of information in a timely way. There is evidence suggesting a lack of awareness by victims about their options. There is also a lack of support to assist victims to consider and exercise their options. Although such cases are rare, as illustrated by a recent Victorian case, they have traumatic consequences for those involved.^[192]

12.145 There are different ways to address this gap between the right to apply for an order, and the practical ability to exercise this right. One model is a temporary restriction on publishing sensitive information that operates automatically in relevant cases, but there are several difficulties with this model.

12.146 As the proposed ban would be automatic and create criminal liability on publishers, it is a greater infringement of the principles of open justice and freedom of expression than one that balances the facts in individual cases and specifies the information that should be prohibited.

12.147 It is difficult to define the scope of such an offence appropriately for all cases, especially the scope of ‘sensitive information’ that should be automatically suppressed.

12.148 Such a model appears contrary to the trend of law reform, which recognises the value of raising awareness about the nature and prevalence of sexual offending and family violence, and in countering the stigma attached to victims.

12.149 Victims of sexual and family violence should have agency in exercising their privacy rights. However, starting from the assumption that such information should be suppressed risks reinforcing harmful myths that certain types of offending are shameful for victims and should not be openly discussed.

12.150 There is also a question of defining the length of any automatic restriction. Submissions suggest that five working days would be well short of what is needed to allow a victim, at a time of great stress, to receive and consider advice and make an application. However, the longer the period, the greater the restriction on freedom of expression.

12.151 Finally, there remains the practical problem that, while a temporary restriction gives the victim more time, the victim still needs to be made aware of the right to apply for a suppression order and be supported in exercising that right effectively. It is not clear who should have responsibility to inform and assist victims in this way.

12.152 The DPP submitted that the OPP may not be involved in the case at this early stage or have had contact with the victim, and may also have a conflict of interest with the victim with respect to the suppression of information about the case. The Office of the Victims of Crime Commissioner is not a front-line agency and, as with the OPP, is also unlikely to be in contact with the victim at this early stage.

12.153 For these reasons, the Commission does not consider that a temporary publication restriction is the best way to address the concerns about a gap in victim privacy and protection. Rather, a better model would be to support victims to exercise their existing rights and ensure the right to apply for a suppression order is always considered by a court at the appropriate time.

12.154 The first point when information of a sensitive nature is likely to become public knowledge is when the case is discussed during early bail, mention or filing hearings in the Magistrates’ Court. The Commission considers there should be a requirement for the presiding judicial officer to inquire then whether the victim has been advised of the grounds on which a suppression order may be granted and whether an order is sought.

12.155 A similar duty is imposed in the Bail Act 1977 (Vic) on decision makers. They must inquire of the prosecutor about family violence risks, including whether certain family violence orders are in place.^[193] While this is relevant to the assessment of risk for a bail application, it is an example of how a positive duty to inquire may be used to give better effect to the rights and interests of the victim in the court process.

12.156 The advantage of such a model is that the magistrate presiding at the bail, mention or filing hearing will be aware of the details of the case. If present, the victim can be guided in making a decision. If the victim is absent and their views unknown, the magistrate can require that the victim’s views be ascertained. At this early stage of proceeding, the

Commission considers that Victoria Police is in the best position to provide information and referrals to victims, as it will be in contact with the victim as the likely complainant.

12.157 However, victims must not only be aware of their rights in relation to publication restrictions, they must be able to assert them. For this reason, victims should be able to seek independent legal advice and, if appropriate, ongoing legal assistance from a visible service.^[194]

12.158 In August 2016, the Commission recommended that VLA should be funded to establish a service for victims of violent indictable crime to provide legal advice and assistance in relation to:

• substantive legal entitlements connected with the criminal trial process

• asserting a human right, or protecting vulnerable individuals, in exceptional circumstances.^[195]

12.159 This recommendation has not been implemented.^[196] The funding of such a service would help to fill the practical gap in protecting the privacy of victims.

12.160 The requirement for the court to inquire about whether the victim is seeking a suppression order could be inserted in the Bail Act or in the Criminal Procedure Act. However, a potential issue with placing the requirement in the Bail Act is that criminal proceedings for sexual and family violence offences can be commenced in different ways and may not always involve a bail hearing.

12.161 If an application for a suppression order is made by or on behalf of the victim, the magistrate can make suppression orders subject to certain procedural requirements under both the Bail Act^[197] and the Open Courts Act.^[198] Whether the order is made will depend on meeting the requirements of necessity as set out in the Act. This will ensure a more proportionate restriction on freedom of expression and open justice than an automatic, albeit temporary, reporting ban in every case.

Recommendations

106 There should not be a new temporary, automatic reporting restriction where an accused has been charged with a sexual or family violence offence. However, where charges have been filed in relation to sexual or family violence offences there should be a requirement, reflected in appropriate legislation, that at the first court mention of the matter the court inquire into the victim’s position on suppression orders.

107 Victoria Police should be responsible for providing victims and child witnesses with initial information about the operation of automatic publication restrictions and referral to advice and support services to assist with suppression orders and engagement with the media.

108 As recommended by the Commission in the report on the Role of Victims of Crime in the Criminal Trial Process, a service for victims should be funded to provide legal advice and assistance in relation to:

• substantive legal entitlements connected with the criminal trial process

• asserting a human right, or protecting vulnerable individuals, in exceptional circumstances.

1. Judicial Proceedings Reports Act 1958 (Vic) ss 3(3), 4(2). For a person, the maximum penalty is a fine of 20 penalty units and/or four months imprisonment; for a body corporate, the maximum penalty is a fine of 50 penalty units.

   ↑

2. 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 information likely to lead to the identification of a victim, whether the identifying information arises from, or is related to, a judicial proceeding.

   ↑

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

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4. Ibid s 3(1)(b).

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5. Ibid s 3(1)(c).

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6. Ibid s 4(1A).

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7. Ibid ss 3(4), 4(4).

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8. According to Annual Reports, the Director has only given consent to prosecute an offence under the Judicial Proceedings Reports Act four times since June 2000: 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.

   ↑

9. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 135–41, Questions 36–9.

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

    ↑

11. Judicial Proceedings (Regulation of Reports) Act 1929 (Vic).

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12. 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 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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13. Jason Bosland, ‘Two Years of Suppression Under the Open Courts Act 2013 (Vic)’ (2017) 39(1) Sydney Law Review 25, 30–1.

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14. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) [9.11]–[9.19].

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15. Stephen Cretney, ‘Disgusted, Buckingham Palace—The Judicial Proceedings (Regulation of Reports) Act 1926’ (1997) 9(1) Child and Family Law Quarterly 43, 59.

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16. Submissions 17 (Dr Denis Muller), 18 (Commercial Bar Association Media Law Section Working Group), 27 (Australia’s Right to Know coalition), 28 (Director of Public Prosecutions).

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17. Submission 17 (Dr Denis Muller).

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18. Submission 20 (Criminal Bar Association).

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19. Submission 31 (County Court of Victoria). Another submission supported retaining the provision but did not give reasons: Submission 19 (Forgetmenot Foundation Inc).

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20. Submission 31 (County Court of Victoria).

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21. The proceedings covered by this restriction include: the dissolution of marriage, for nullity of marriage, for judicial separation, or for restitution of conjugal rights. The section prohibits the publication of all except the following details: 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.

    ↑

22. Family Law Act 1975 (Cth) s 8(2).

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23. Ibid s 121.

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24. Australian Constitution s 109.

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25. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 135 [9.25].

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26. Submissions 17 (Dr Denis Muller), 18 (Commercial Bar Association Media Law Section Working Group), 20 (Criminal Bar Association), 27 (Australia’s Right to Know coalition). One stakeholder supported consistency with section 121 of the Family Law Act 1975 (Cth), but did not make any specific suggestions: Submission 11 (Victoria Legal Aid). One stakeholder supported retaining this, but did not state why: Submission 19 (Forgetmenot Foundation Inc).

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27. Submission 29 (Supreme Court of Victoria).

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28. Criminal Procedure Act 2009 (Vic) pts 5.5 (directions hearings), 5.6 (sentence indications).

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29. These are: the names of the court, judge and legal practitioners; the names, addresses, ages and occupations of the accused and witnesses; certain business information relating to the accused; the offence(s) charged or a summary of it or them; the date and place to which the proceedings are adjourned; and any bail arrangements that have been made.

    ↑

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

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31. Ibid s 3(1B).

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32. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 136–7 [9.29], [9.36], [9.40].

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33. Submissions 11 (Victoria Legal Aid), 17 (Dr Denis Muller), 20 (Criminal Bar Association), 31 (County Court of Victoria).

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34. Submission 11 (Victoria Legal Aid).

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35. Submission 31 (County Court of Victoria).

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36. Submission 18 (Commercial Bar Association Media Law Section Working Group).

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37. Submission 27 (Australia’s Right to Know coalition).

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38. Submission 29 (Supreme Court of Victoria).

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39. Submission 20 (Criminal Bar Association).

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40. Submission 18 (Commercial Bar Association Media Law Section Working Group).

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41. Submission 17 (Dr Denis Muller).

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42. Submission 27 (Australia’s Right to Know coalition).

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43. Submissions 11 (Victoria Legal Aid), 18 (Commercial Bar Association Media Law Section Working Group).

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44. Submissions 20 (Criminal Bar Association), 28 (Director of Public Prosecutions).

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45. The County Court also favoured consolidation but did not specify where: Submission 31 (County Court of Victoria).

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46. Submission 27 (Australia’s Right to Know coalition).

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47. Submission 20 (Criminal Bar Association).

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48. Submission 28 (Director of Public Prosecutions).

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49. The publication of reasons for adjournment would still be subject to the sub judice rule, as defined in Chapter 10.

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50. Open Courts Act 2013 (Vic) s 31.

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51. Open Courts Act 2013 (Vic) ss 3(1B), (1C), (1D), (1E), (2), (3), (4), (5) and (6).

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52. ‘Sexual offences’ is defined by reference to subdivisions in the Crimes Act 1958 (Vic) corresponding to sections 38 to 54C or under any corresponding previous enactment, and is defined to include an attempt to commit any such offence or an assault with intent to commit any such offence: Judicial Proceedings Reports Act 1958 (Vic) s 4(1) (definition of sexual offence).

    ↑

53. Victims’ Charter Act 2006 (Vic) s 4(1)(c).

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54. Frank Vincent, Open Courts Act Review (Report, September 2017) 140 (Appendix 2) <https://engage.vic.gov.au/open-courts-act-review>; see also Appendix L.

    ↑

55. Bailey v Hinch [1989] VR 78, 91; Hinch v DPP (Vic) [1996] 1 VR 683, 69; Doe v Fairfax Media Publications Pty Limited [2018] NSWSC 1996.

    ↑

56. Hinch v DPP (Vic) [1996] 1 VR 683, 689. However, in Nixon v Random House Australia Pty Ltd [2000] VSC 405, Hedigan J indicated that the prohibition may not apply indefinitely and that whether anonymity should be kept must be judged on a case-by-case basis: [16].

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57. See Hinch v DPP (Vic) [1996] 1 VR 683, 686. In that case, information 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.

    ↑

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

    ↑

59. Ibid s 4(1C).

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60. There has, for example, been extensive media coverage of the deaths of Aiia Maasarwe, Eurydice Dixon and Jill Meagher.

    ↑

61. Submission 28 (Director of Public Prosecutions).

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62. Crimes Act 1900 (NSW) s 578A(4)(f). Similarly, the UK equivalent provides that the prohibition exists only during a person’s lifetime: Sexual Offences (Amendment Act) 1992 (UK) s 1. Other equivalent provisions in Australia are silent on the issue.

    ↑

63. Tasmania Law Reform Institute, Protecting the Anonymity of Victims of Sexual Crimes (Final Report No 19, November 2013) 43 [4.3.24].

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64. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 141, Question 39.

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65. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 172, Question 52.

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66. Submissions 11 (Victoria Legal Aid), 19 (Forgetmenot Foundation Inc), 28 (Director of Public Prosecutions), 31 (County Court of Victoria), 33 (Victims of Crime Commissioner, Victoria); Consultations 7 (DJCS Community Operations and Victims Support Agency), 16 (Victims of Crime Consultative Committee victims’ representatives).

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67. Consultations 3 (Representatives of victim survivors of family and sexual violence), 16 (Victims of Crime Consultative Committee victims’ representatives), 23 (Survivors of sexual abuse advocacy groups).

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68. Consultation 3 (Representatives of victim survivors of family and sexual violence).

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69. Consultation 16 (Victims of Crime Consultative Committee victims’ representatives).

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70. Consultations 7 (DJCS Community Operations and Victims Support Agency), 18 (Victims of Crime Commissioner, Victoria).

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71. This was raised by others: Consultation 7 (DJCS Community Operations and Victims Support Agency).

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72. Submission 33 (Victims of Crime Commissioner, Victoria).

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73. Submissions 18 (Commercial Bar Association Media Law Section Working Group), 19 (Forgetmenot Foundation Inc), 27 (Australia’s Right to Know coalition).

    ↑

74. Submission 20 (Criminal Bar Association).

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75. Submission 28 (Director of Public Prosecutions).

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76. Ibid.

    ↑

77. In the DPP’s view, it did, but there had been several high-profile examples where victims had been identified in such circumstances: ibid.

    ↑

78. The term ‘concluded’ is introduced in the new section 4(1CA) as a result of the Open Courts and Other Acts Amendment Act 2019 (Vic).

    ↑

79. Submission 27 (Australia’s Right to Know coalition).

    ↑

80. Consultation 24 (County Court of Victoria).

    ↑

81. Submission 18 (Commercial Bar Association Media Law Section Working Group).

    ↑

82. Submissions 20 (Criminal Bar Association), 31 (County Court of Victoria).

    ↑

83. Submission 28 (Director of Public Prosecutions).

    ↑

84. Submission 29 (Supreme Court of Victoria).

    ↑

85. Consultation 3 (Representatives of victim survivors of family and sexual violence).

    ↑

86. Submission 11 (Victoria Legal Aid). This submission identified the following Acts as relevant: Children, Youth and Families Act 2005 (Vic); Family Law Act 1975 (Cth); Family Violence Protection Act 2008 (Vic).

    ↑

87. Submission 6 (Professors Mark Pearson, Patrick Keyzer, Anne Wallace and Associate Professor Jane Johnston).

    ↑

88. An exception was Dr Denis Muller, who thought these did not need to be moved: Submission 17 (Dr Denis Muller).

    ↑

89. Submissions 11 (Victoria Legal Aid), 33 (Victims of Crime Commissioner, Victoria). The Commissioner suggested that the section should sit after section 11, which deals with the place of hearing the first listing of matters, or in Chapter 8 directly after the guiding principles.

    ↑

90. Submissions 20 (Criminal Bar Association), 28 (Director of Public Prosecutions), 29 (Supreme Court of Victoria). The Supreme Court noted this provision also had a significant effect on civil proceedings.

    ↑

91. Submissions 27 (Australia’s Right to Know coalition), 31 (County Court of Victoria).

    ↑

92. Submission 33 (Victims of Crime Commissioner, Victoria). It was suggested this should be included as the last of the guiding principles in section 338 of the Criminal Procedure Act 2009 (Vic).

    ↑

93. Submission 19 (Forgetmenot Foundation Inc). These included other victim survivors and victim support agencies, mental health practitioners and other mental health agencies, the medical profession, migrant communities, the Australian Bureau of Statistics and the Office of Public Prosecutions.

    ↑

94. Sir John Gillen, Review of Law and Procedures in Serious Sexual Offences in Northern Ireland (Report, May 2019) 129 [3.65] <https://www.justice-ni.gov.uk/publications/gillen-review-report-law-and-procedures-serious-sexual-offences-ni>

    ↑

95. Tasmania Law Reform Institute, Protecting the Anonymity of Victims of Sexual Crimes (Final Report No 19, November 2013) 43 [4.3.24].

    ↑

96. Australian Press Council, Statement of General Principles (Standards, July 2014) <https://www.presscouncil.org.au/statements-of-principles/>.

    ↑

97. Sir John Gillen, Review of Law and Procedures in Serious Sexual Offences in Northern Ireland (Report, May 2019) 129 [3.65] <https://www.justice-ni.gov.uk/publications/gillen-review-report-law-and-procedures-serious-sexual-offences-ni>.

    ↑

98. The Coroners Court can make a proceeding suppression order where disclosure would be contrary to the public interest: Open Courts Act 2013 (Vic) s 18(2)(b).

    ↑

99. The list of identifying particulars included in section 534(4) of the Children, Youth and Families Act 2005 was amended in 2019 so that it does not unduly limit reporting: Open Courts and Other Acts Amendment Act 2019 (Vic) s 13; Victoria, Parliamentary Debates, Legislative Assembly, 20 February 2019, 423 (Jill Hennessy, Attorney-General).

    ↑

100. Bailey v Hinch [1989] VR 78, 86, 91.

     ↑

101. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 139–144 [9.49]–[9.79].

     ↑

102. Judicial Proceedings Reports Act 1958 (Vic) ss 4(1B)(b)(ii), (1C).

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103. Further, parents cannot consent on their behalf: Hinch v DPP (Vic) [1996] 1 VR 683, 691–6.

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

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105. Open Courts and Other Acts Amendment Act 2019 (Vic) s 15, inserting ss 4(1CA) and 4(1CB).

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106. Open Courts and Other Acts Amendment Act 2019 (Vic) s 2. The Act commences on a day to be proclaimed or, otherwise, on 7 February 2020. As of 11 December 2019, the Act had yet to be proclaimed.

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107. Open Courts and Other Acts Amendment Act 2019 (Vic) s 15, inserting s 4(1CA).

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108. Ibid inserting 4(1CB).

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

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110. Frank Vincent, Open Courts Act Review (Report, September 2017) 133, Recommendation 15 <https://engage.vic.gov.au/open-courts-act-review>.

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111. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 144, Questions 40, 41.

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112. Submission 33 (Victims of Crime Commissioner, Victoria).

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113. Ibid.

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114. Submission 13 (Shine Lawyers); Consultations 1 (Representatives of victims of crime support organisations), 24 (County Court of Victoria).

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115. Submission 33 (Victims of Crime Commissioner, Victoria).

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116. Consultations 3 (Representatives of victim survivors of family and sexual violence), 7 (DJCS Community Operations and Victims Support Agency).

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117. Submission 13 (Shine Lawyers). See also, eg, Consultation 23 (Survivors of sexual abuse advocacy groups).

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118. Submission 13 (Shine Lawyers).

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119. Consultations 14 (Victim Survivors’ Advisory Council youth representative), 16 (Victims of Crime Consultative Committee victims’ representatives).

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120. Submission 24 (Victim Survivors’ Advisory Council). This view was echoed by others: Consultations 1 (Representatives of victims of crime support organisations), 3 (Representatives of victim survivors of family and sexual violence).

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121. Submission 27 (Australia’s Right to Know coalition). The program was ‘I Am That Girl’, a Four Corners program which aired in May 2018.

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122. Submission 24 (Victim Survivors’ Advisory Council).

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123. Ibid; Consultation 23 (Survivors of sexual abuse advocacy groups).

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124. Submissions 24 (Victim Survivors’ Advisory Council), 1 (Representatives of victims of crime support organisations).

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125. Consultation 18 (Victims of Crime Commissioner, Victoria).

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126. Submission 24 (Victim Survivors’ Advisory Council).

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127. Submissions 13 (Shine Lawyers), 18 (Commercial Bar Association Media Law Section Working Group), 19 (Forgetmenot Foundation Inc), 20 (Criminal Bar Association); Consultation 1 (Representatives of victims of crime support organisations).

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128. Submissions 13 (Shine Lawyers), 20 (Criminal Bar Association).

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129. Submission 24 (Victim Survivors’ Advisory Council); Consultations 1 (Representatives of victims of crime support organisations), 3 (Representatives of victim survivors of family and sexual violence), 23 (Survivors of sexual abuse advocacy groups).

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130. Consultation 3 (Representatives of victim survivors of family and sexual violence). Similar concerns were expressed in Consultation 16 (Victims of Crime Consultative Committee victims’ representatives).

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131. Consultation 23 (Survivors of sexual abuse advocacy groups).

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132. Consultations 16 (Victims of Crime Consultative Committee victims’ representatives), 23 (Survivors of sexual abuse advocacy groups), 25 (Magistrates’ Court of Victoria).

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133. Consultation 23 (Survivors of sexual abuse advocacy groups).

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134. Submission 27 (Australia’s Right to Know coalition).

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135. Submission 33 (Victims of Crime Commissioner, Victoria).

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136. Submission 11 (Victoria Legal Aid). It noted that the Victorian Law Reform Commission and the Sentencing Advisory Council had already recommended a state-funded legal service for victims.

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137. Consultation 7 (DJCS Community Operations and Victims Support Agency).

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138. Consultations 16 (Victims of Crime Consultative Committee victims’ representatives), 18 (Victims of Crime Commissioner, Victoria).

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139. Consultation 18 (Victims of Crime Commissioner, Victoria).

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140. Consultation 20 (Victorian Equal Opportunity and Human Rights Commission).

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141. Submission 28 (Director of Public Prosecutions).

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142. Submission 29 (Supreme Court of Victoria).

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

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144. Submission 13 (Shine Lawyers); Consultations 7 (DJCS Community Operations and Victims Support Agency), 14 (Victim Survivors’ Advisory Council youth representative), 16 (Victims of Crime Consultative Committee victims’ representatives), 23 (Survivors of sexual abuse advocacy groups).

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145. Submission 20 (Criminal Bar Association).

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146. Consultation 23 (Survivors of sexual abuse advocacy groups).

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147. Submissions 13 (Shine Lawyers), 20 (Criminal Bar Association); Consultations 3 (Representatives of victim survivors of family and sexual violence), 14 (Victim Survivors’ Advisory Council youth representative), 16 (Victims of Crime Consultative Committee victims’ representatives), 23 (Survivors of sexual abuse advocacy groups).

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148. Submission 33 (Victims of Crime Commissioner, Victoria).

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149. Submission 18 (Commercial Bar Association Media Law Section Working Group).

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150. Submission 27 (Australia’s Right to Know coalition).

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151. Submissions 20 (Criminal Bar Association), 28 (Director of Public Prosecutions), 33 (Victims of Crime Commissioner, Victoria); Consultations 3 (Representatives of victim survivors of family and sexual violence), 7 (DJCS Community Operations and Victims Support Agency), 14 (Victim Survivors’ Advisory Council youth representative); 23 (Survivors of sexual abuse advocacy groups).

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152. Consultation 14 (Victim Survivors’ Advisory Council youth representative).

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153. Submission 13 (Shine Lawyers).

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154. Submission 19 (Forgetmenot Foundation Inc).

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155. Submission 13 (Shine Lawyers); Consultations 3 (Representatives of victim survivors of family and sexual violence), 18 (Victims of Crime Commissioner, Victoria).

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156. Submission 27 (Australia’s Right to Know coalition); Consultation 23 (Survivors of sexual abuse advocacy groups).

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157. Consultation 16 (Victims of Crime Consultative Committee victims’ representatives).

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158. Submission 33 (Victims of Crime Commissioner, Victoria).

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159. Submission 28 (Director of Public Prosecutions).

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160. Submission 19 (Forgetmenot Foundation Inc); Consultation 1 (Representatives of victims of crime support organisations).

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161. Consultation 3 (Representatives of victim survivors of family and sexual violence).

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162. Consultation 1 (Representatives of victims of crime support organisations).

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163. A ‘child’ is defined under s 3 of the Open Courts Act 2013 (Vic) as a person under 18 years of age. This definition should also apply to the proposed defence of consent.

     ↑

164. Frank Vincent, Open Courts Act Review (Report, September 2017) Recommendation 17 <https://engage.vic.gov.au/open-courts-act-review>.

     ↑

165. Ibid.

     ↑

166. Ibid 70–2 [273]–[274], 133 [529].

     ↑

167. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 146–7 [9.94]–[9.97].

     ↑

168. Ibid 145–6 [9.86]–[9.92].

     ↑

169. Submission 16 (Domestic Violence Victoria).

     ↑

170. Submissions 18 (Commercial Bar Association Media Law Section Working Group), 27 (Australia’s Right to Know coalition).

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171. Submission 27 (Australia’s Right to Know coalition).

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172. Section 166 of the Family Violence Protection Act makes it an offence to publish a report about proceedings or orders under the Act that includes any particulars likely to lead to the identification of any person involved in the proceeding or the subject of the order, unless the court orders that the particulars may be published.

     ↑

173. Submission 18 (Commercial Bar Association Media Law Section Working Group).

     ↑

174. Submission 17 (Dr Denis Muller).

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175. Consultation 19 (Victoria Police).

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176. Submissions 11 (Victoria Legal Aid), 20 (Criminal Bar Association), Consultation 6 (Victoria Legal Aid).

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177. Submission 11 (Victoria Legal Aid).

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178. Submission 20 (Criminal Bar Association).

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179. Consultation 18 (Victims of Crime Commissioner, Victoria).

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180. Consultations 1 (Representatives of victims of crime support organisations), 3 (Representatives of victim survivors of family and sexual violence), 23 (Survivors of sexual abuse advocacy groups).

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181. Submission 33 (Victims of Crime Commissioner, Victoria); Consultations 3 (Representatives of victim survivors of family and sexual violence), 14 (Victim Survivors’ Advisory Council youth representative).

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182. Consultation 3 (Representatives of victim survivors of family and sexual violence).

     ↑

183. Submission 33 (Victims of Crime Commissioner, Victoria); Consultations 3 (Representatives of victim survivors of family and sexual violence), 14 (Victim Survivors’ Advisory Council youth representative).

     ↑

184. Consultation 19 (Victoria Police)

     ↑

185. Consultation 18 (Victims of Crime Commissioner, Victoria).

     ↑

186. Consultation 23 (Survivors of sexual abuse advocacy groups).

     ↑

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

     ↑

188. Submission 28 (Director of Public Prosecutions).

     ↑

189. Ibid.

     ↑

190. Consultations 7 (DJCS Community Operations and Victims Support Agency), 14 (Victim Survivors’ Advisory Council youth representative).

     ↑

191. Open Courts Act 2013 (Vic) ss 18(1)(c)–(e).

     ↑

192. ‘A Debate No Mother Should Have to Hear’, SBS Insight (Web Page, 31 May 2019) <https://www.sbs.com.au/news/insight/a-debate-no-mother-should-have-to-hear>.

     ↑

193. Bail Act 1977 (Vic) s 5AAAA.

     ↑

194. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report, August 2016), 122-126.

     ↑

195. Ibid Recommendation 23.

     ↑

196. Submission 11 (Victoria Legal Aid)

     ↑

197. Bail Act 1977 (Vic) s 7.

     ↑

198. Open Courts Act 2013 (Vic) ss 17–18.

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