Contempt of Court: Report (html)

16. Promoting compliance with restrictions on publication

Overview

• To enforce restrictions on publication effectively, the community must be aware that the restrictions exist, and publications must be monitored for breaches.

• Improvements should be made to the current process of email notifications, and to widen access to an online searchable database of suppression orders that is being developed.

• More community education is needed about the role and purpose of restrictions on publication.

• Victim survivors should be given support to notify authorities of potential breaches.

• There is no need to establish a role to monitor publications formally, or to clarify who is responsible for prosecuting breaches of restrictions on publication.

• The consent of the Director of Public Prosecutions should be required to prosecute breaches of suppression orders under the Open Courts Act.

Awareness of restrictions on publication

16.1 People can only comply with a restriction on publication^[1] if they are aware that this restriction exists. This chapter looks at ways to improve awareness of restrictions to promote compliance.

16.2 This chapter focuses on:

• improving awareness of suppression orders made by courts

• improving education and guidance about these restrictions

• whether there is a need for systemic monitoring of breaches of restrictions

• the responsibility for commencing proceedings in relation to such breaches.

16.3 Some restrictions on publication are set out in legislation and apply automatically. In Chapters 10, 11 and 12, the Commission recommends making some of the restrictions in legislation clearer and more accessible by defining them in legislation or moving offences into other legislation.

16.4 Other restrictions depend on a court making an order. It is therefore more difficult for people to become aware of these orders so as to comply with them.

Notification of suppression orders

16.5 In Victoria, the courts notify media organisations of suppression orders through an email list.^[2] For example, a media organisation can nominate a single address to receive notifications by the Supreme Court, although this is not open to other parties.^[3] Members of the general public or journalists not affiliated with a media organisation cannot join this email list.

16.6 Under the Open Courts Act 2013 (Vic), an offence of breaching a suppression order is only committed if a person is either aware that a suppression order is in force, or is reckless as to whether an order is in force. A person is presumed to be aware of an order if a court or tribunal has ‘electronically transmitted notice’ of the order to them.^[4]

16.7 It is therefore crucial that people are made aware of suppression orders or at least can find out if one exists. While members of media organisations may be at greatest risk of breaching restrictions, the rise of online publishing and social media means it is increasingly important for others to be aware of suppression orders too.

16.8 As discussed in Chapter 13, a national approach should be taken to enforce restrictions on publication effectively. Similarly, a national approach to providing access to information about suppression orders would be useful.^[5]

16.9 As part of the Victorian Government’s response to the Open Courts Review, the courts are currently creating a database of suppression orders.^[6] This will consolidate the existing databases of individual courts and tribunals across Victoria.

16.10 The consultation paper asked what processes should be in place for notifying or reminding the media and the wider community of restrictions on publication.^[7]

16.11 There are three ways of improving awareness:

• improving the current process for notifying people of suppression orders

• improving access to an online database of suppression orders

• developing educational resources about restrictions on publication.

Improving the notification process

16.12 The Open Courts Act Review identified several issues with the current notification process:

• the text of suppression orders was not easily searchable

• the content of the email attaching a suppression order may misspell key details

• no record was kept of the notifications themselves, so tracking notifications would require searching the email inbox.^[8]

16.13 Stakeholders also identified ways in which the notifications process could be improved.

16.14 Australia’s Right to Know coalition (ARTK) submitted that, when suppression orders are made, they should be sent by email to media representatives and their advisers. They should include the full terms of the order, the names to be suppressed and the grounds on which the order had been made. This should be complemented by a searchable online database.^[9]

16.15 The Director of Public Prosecutions (DPP) was of the view that the existing email system was the most effective method of notification. The DPP also submitted that each email address on the distribution list should be paired with an individual or body corporate to help identify the recipient. If an individual or media organisation was not subscribed to the email list, it could be difficult to establish knowledge or recklessness for the purposes of the Open Courts Act.^[10]

Commission’s conclusion: improve email notifications

16.16 The process of email notifications should be improved. For example, it should be possible to pair email addresses in the email list with specific individuals or organisations and make it easier for more people within an organisation to subscribe. There is also scope to widen access to the email list.

16.17 Any improvements by the courts should be made in consultation with the media and the DPP. As discussed below, the current development of a new database by the courts provides an opportunity to consider how to improve the notifications process.

Recommendation

125 The courts should, in consultation with the DPP and representatives of the media, improve the current system of email notifications of suppression orders so that there is broader access to such notifications.

Online database of suppression orders

16.18 The Open Courts Act Review recommended the creation of a central, publicly accessible register of suppression orders made by all Victorian courts and tribunals.^[11] This would replace the existing internal database used by the courts.^[12]

16.19 The Victorian Government supported this recommendation in principle.^[13] The courts are currently developing this database.^[14]

16.20 The development of this database should make it easier for people to comply with orders, and to prove knowledge of, or recklessness as to the existence of, suppression orders.

Approach in other jurisdictions

16.21 Other jurisdictions maintain a public register of suppression orders. These vary in how they restrict who can access the register and what information can be accessed.

16.22 The Supreme Court of Tasmania maintains a list of all suppression orders on its website, and this list includes the terms of the order.^[15] Scottish courts also publish a list of suppression orders on their website, but not the terms of their orders.^[16]

16.23 In South Australia, the public can inspect the terms of a suppression order at kiosks located at the Courts Administration Authority’s Transcripts Office.^[17]

16.24 The Supreme Court of Western Australia provides access to suppression orders made in that state through the eCourts portal.^[18] Accredited media representatives, verified by the courts, can register to use this portal.

16.25 Users can search for orders by the name of the accused, which is linked so that it can be found even if the case title bears only the accused’s initials or a pseudonym. This feature is useful because orders that make the parties anonymous apply to many of the most sensitive cases.

16.26 In response to the question in the consultation paper on how to promote awareness of restrictions on publication,^[19] stakeholders discussed the issue of the appropriate level of access to the database.

Responses

16.27 There was some support for greater access to the database beyond the media. The Victims of Crime Commissioner submitted that the database should be ‘publicly available’.^[20] Victoria Legal Aid (VLA) submitted that defence lawyers found it difficult to determine whether a suppression order exists, had existed, or had been changed.^[21]

16.28 The DPP opposed the online database being publicly accessible. In its view, this could create more issues than it addressed, and the database should be restricted to large media outlets as their publications would be most likely to come to the attention of jurors.^[22]

16.29 Both the Commercial Bar Association Media Law Section Working Group (CommBar—Media Law Section) and ARTK supported more restricted access. The CommBar—Media Law Section suggested that rules could permit different levels of access.^[23] ARTK said that the database could be restricted to accredited media organisations and their legal representatives.^[24]

16.30 Some stakeholders favoured a publicly accessible database with limitations instead placed on access to the terms of the order.^[25] Records of suppression orders would alert users of restrictions, and they would need to contact the courts for further details.^[26]

16.31 The County Court submitted that the court ‘must retain control over how suppression orders are disseminated and the information that is redacted or de-identified’.^[27]

16.32 ARTK raised the difficulty of searching for orders where the parties are identified only by pseudonyms or letters. ARTK also submitted that orders on the database should be drafted in terms that specify the information that is suppressed.^[28]

Commission’s conclusions: provide greater public access to suppression orders

16.33 The Commission endorses the recommendation of the Open Courts Act Review for a central, publicly accessible database of suppression orders. Such a database would improve the enforcement of suppression orders by enabling users to check whether an order is in place, and by helping to prove a person was reckless if a person did not check the database.

16.34 If the database requires users to register, it could also log the activity of those on the site. This can prove whether a user took reasonable care to find out if an order was in place. The database should also log any applications made to register, including any refusals to register users, for evidentiary purposes.

16.35 The database needs to balance informing the public about what can and cannot be published with the risk of undermining the purpose of the order. This can be done through:

• requiring users to register

• enabling different levels of access for different kinds of users

• limiting the extent of information available on the database.

16.36 While the courts should have the power to regulate access to such information, they should provide access to the database beyond accredited media organisations and their lawyers. With the hollowing out of traditional media, the courts will also need to consider how to extend access to other types of publishers. Defence lawyers and victims also have an interest in verifying the existence and terms of orders.

16.37 Where possible, the database should allow users to search anonymised cases. Further, the full terms of the order should be included so that people know their legal obligations. If the terms of the order cannot be published, those accessing the database should be put on notice to make further inquiries to the court.

Recommendations

126 The courts should ensure, in developing their central database of suppression orders, that the database can facilitate public access to information about existing suppression orders.

127 The database should permit the media, legal practitioners and the wider community to determine whether a suppression order exists in respect of a proceeding. However, the court may limit the extent of information available through the database, as well as provide access through a registration process.

128 To address evidentiary issues in proving knowledge or recklessness in relation to the existence of a suppression order under the Open Courts Act, the database should have the technical capacity to log activity by registered users and any applications to register as a user.

Education about restrictions on publication

16.38 Stakeholders also identified room for more education about the reasons for restrictions on publication.

16.39 The DPP submitted there was an apparent decline in standards of media reporting on court proceedings driven by the changing media landscape. It suggested that media organisations could take steps to educate staff about reporting on criminal matters, including restrictions on publication.^[29]

16.40 Professor Mark Pearson et al supported developing a public manual outlining the types of information that are commonly suppressed.^[30]

16.41 In consultations, Victoria Police told the Commission there was no standard policy or procedure to ensure complainants in sexual offences were aware of the restrictions on publication.^[31]

16.42 The Victim Survivors’ Advisory Council also said there was a need to train professionals dealing with victims to improve how people dealt with and responded to breaches of these restrictions.^[32]

Commission’s conclusion: develop further education programs

16.43 The Commission considers there is a need to develop programs and resources to improve community awareness and understanding of restrictions on publication. This is an important measure to prevent breaches from occurring.

16.44 Some resources already exist, including on the courts’ websites.^[33] The Supreme Court of Victoria has covered reporting restrictions in depth in its podcast.^[34]

16.45 Practical examples of information should be included in such materials. The courts already include training for journalists in court reporting as part of their media liaison work,^[35] which could be extended or promoted more effectively. The media departments in courts could extend their community education to journalism schools and other forms of community education.

16.46 However, such resources should not focus solely on courts and the media. It would be useful to provide a simple guide for victims to understand their rights, and for restrictions on reporting to be included in media training involving victims. This should also extend to further education of professionals dealing with victims.

16.47 Such community education requires adequate resourcing. Some organisations already provide community education or media training. Victims’ advocacy groups already conduct media training in relation to victims. Such funding could supplement such existing programs and resources.

Recommendation

129 To help raise awareness of the existence and reasons for restrictions on publication, further education and training should be developed and provided to members of the media and the general public, and should be appropriately funded by the Victorian Government. Such education and training could be provided by court media teams as well as by victims’ advocacy groups.

Monitoring compliance with restrictions on publication

16.48 Monitoring compliance with restrictions on publication can be challenging because:

• It is unclear who is responsible for monitoring publications to ensure they do not breach the restrictions.

• The public are not aware of these restrictions.

• The processes for monitoring compliance are unclear.

How are publications monitored?

16.49 No single body monitors whether people are complying with restrictions on publication, and no agency has a statutory duty to monitor or report in this way. Instead, the courts and defence monitor the media, and the DPP responds to breaches of which they become aware.^[36]

16.50 A victim survivor who becomes aware of a potential breach would usually bring it to the attention of Victoria Police.^[37] The DPP stated that it also referred matters.^[38]

16.51 The media team in the County Court of Victoria monitors the media, including social media, daily. If there is a possible breach, the media team contacts the publisher to resolve the matter informally. According to the Court, this is often quick and effective and promotes a positive relationship with the media. ^[39]

16.52 However, the Court only monitors the media in relation to matters before that Court, so there is a potential gap when proceedings are moved between courts.^[40]

16.53 While the DPP does not actively monitor the media, it usually becomes aware of media affecting its cases, either informally or on referral.^[41]

16.54 VLA said that defence lawyers often personally maintained a watching brief on potential media about their clients. In its experience, this was a significant administrative burden.^[42]

Who should be responsible for monitoring publications?

16.55 The consultation paper asked if there should be a system for monitoring compliance with restrictions on publication. If so, it asked who should be responsible for monitoring such compliance, and how.^[43]

16.56 Stakeholders divided on whether a formal monitoring system was needed. Many stakeholders, including the DPP, thought there was no need to change the current process of monitoring,^[44] since those with an interest already monitored the media.

A victim representative thought the resources would be better spent elsewhere in the justice system.^[45]

16.57 VLA and the Criminal Bar Association supported a more formal mechanism.^[46] VLA submitted that the current system contributed to an ‘accountability gap’^[47] which imposed a burden on defence lawyers.^[48] The Criminal Bar Association also indicated that new barristers may be unaware of previous publications, and there was inadequate monitoring to protect the interests of victims.^[49]

16.58 The potential gap for victim survivors was reflected in consultations. A youth representative confirmed that the absence of a formal monitor placed a burden on victim survivors.^[50] Victim survivors were also reluctant to notify authorities of potential breaches because the process was complicated, and they could be perceived as ‘difficult’.^[51]

16.59 Stakeholders who supported a monitoring system identified different bodies that should be responsible for it.

16.60 VLA submitted it would be appropriate for the courts (individually or through a central body) to monitor compliance with their own orders, if they were funded to do so. Courts had the most complete knowledge of any suppression orders and the cases involved, and this would prevent the need to disclose sensitive information to another body.^[52]

16.61 Other stakeholders said it was unreasonable to expect the courts to monitor all publications for potential breaches.^[53] The County Court of Victoria expressed some support for the establishment of an independent body responsible for monitoring.^[54]

16.62 Other suggestions included the Office of the Victorian Information Commissioner^[55] or a body established by the media itself which would also perform an educative role.^[56] The Victims of Crime Commissioner noted it would be difficult for any person or organisation to take on such a role, and that ‘the policy implications of establishing a media monitoring role would require further consideration’. ^[57]

Commission’s conclusions: victims should be given more support

16.63 The Commission did not find evidence of a significant gap in monitoring breaches of restrictions, other than in the protection of victims and, possibly, while proceedings are in between courts. The monitoring by the courts and the more informal monitoring by the prosecution and defence appear to be effective in identifying risks to trials.

16.64 A formal independent monitoring body would in many ways be less efficient and effective. It would require courts to send sensitive information about court proceedings constantly. The monitoring body would also not be in as good a position to assess the risk of any particular publication as those involved in proceedings.

16.65 There is not enough evidence to justify setting up a formal mechanism for monitoring the media. This does, however, place a burden on defence lawyers.

16.66 There is a practical gap in the protection of victim survivors. They should have access to a simple and supportive process for notifying authorities about a potential breach. As discussed earlier, they should be given information about the protections available to them at an early stage. At the same time, they should also be advised about what to do if they suspect that there has been a breach.

16.67 The Victims of Crime Commissioner plays an important role in representing and advocating for victims’ interests in the criminal justice system. The Commission therefore recommends that the Victims of Crime should have responsibility for helping victim survivors to notify the authorities of potential breaches. As this would be a new role for the Commissioner, the office must be adequately resourced to undertake such a role.

Recommendation

130 The Victims of Crime Commissioner should be given dedicated responsibility and adequate resourcing to act on behalf of victims in liaising with the media, DPP and police and in notifying authorities of potential breaches of suppression orders or other restrictions on publication.

Instituting proceedings for breaches of restrictions

16.68 As discussed in the consultation paper, different bodies are responsible for commencing proceedings for different restrictions on publication.^[58] This could cause uncertainty about who is responsible for bringing such proceedings and may lead to a reported reluctance to prosecute breaches even when referred by courts.^[59]

16.69 Another issue is whether the consent of the DPP should continue to be required before charges can be filed under the Judicial Proceedings Reports Act.^[60] This is not required for breaches under the Open Courts Act.

Responses

16.70 Stakeholders told the Commission that the low number of prosecutions was not caused by any uncertainty about who should commence proceedings. Rather, Victoria Police told the Commission this was because breaches were rarely reported, probably because people were unaware of the restrictions.^[61]

16.71 Representatives of victim survivors indicated that another cause might be that victims did not know the process for notifying breaches or felt uncomfortable reporting breaches.^[62] The DPP explained that sometimes the framing of suppression orders can make it difficult to prosecute potential breaches.^[63]

16.72 Stakeholders divided on whether to retain the requirement that the DPP must consent to prosecution under the Judicial Proceedings Report Act. The Criminal Bar Association supported removing it because it created ‘an added barrier to prosecution’.^[64] However, the CommBar—Media Law Section and the DPP favoured retaining it.^[65]

16.73 The DPP also supported extending this to the Open Courts Act.^[66] Victoria Police told the Commission that, as the Office of Public Prosecutions (OPP) would usually be involved in any proceedings affected by a breach of a restriction on publication, it may be best placed to prosecute such breaches.^[67]

Commission’s conclusions: the DPP should consent to prosecution under Open Courts Act

16.74 The low rate of prosecutions does not appear to stem from uncertainty about who is responsible for proceedings. Rather, the rate is likely to reflect a low level of understanding of the restrictions, and the need for greater support for victims to report breaches.

16.75 There is also no evidence to suggest that there are any practical problems in requiring the consent of the DPP before prosecuting offences under the Judicial Proceedings Reports Act 1958 (Vic). This consent provision seems to be useful in practice.

16.76 Given the OPP’s greater familiarity with the proceedings that are the subject of suppression orders, this requirement should also be extended to the Open Courts Act.

Recommendation

131 A ‘DPP consent’ provision should be introduced to the Open Courts Act for prosecutions for breach of suppression orders made under that Act.

1. In this part of the report, a ‘restriction on publication’ is defined to include those restrictions on publication in the Open Courts Act 2013 (Vic), the proposed Act, and the restrictions in the Judicial Proceedings Reports Act 1958 (Vic) that the Commission recommends should be retained and relocated.

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2. The Supreme Court’s Public Affairs team distributes notices of orders made through an email list of media outlets and media lawyers, while the County Court distributes suppression orders via its Communications Team: Submissions 29 (Supreme Court of Victoria), 31 (County Court of Victoria).

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3. Supreme Court of Victoria, Practice Note SC Gen 9: Notifications under the Open Courts Act 2013, 30 January 2017, [6.4].

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

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

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6. Submissions 29 (Supreme Court of Victoria), 31 (County Court of Victoria).

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7. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 167, Question 48.

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8. Frank Vincent, Open Courts Act Review (2017) 77 [291]–[294] <https://engage.vic.gov.au/open-courts-act-review>.

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

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10. Submission 28 (Director of Public Prosecutions).

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11. Frank Vincent, Open Courts Act Review (2017) Recommendation 7 <https://engage.vic.gov.au/open-courts-act-review>.

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12. Submission 29 (Supreme Court of Victoria).

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13. Department of Justice and Community Safety (Vic), Open Courts Act Review Table of Recommendations (March 2018) 1 <https://engage.vic.gov.au/open-courts-act-review>.

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14. Submissions 29 (Supreme Court of Victoria), 31 (County Court of Victoria).

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15. ‘For The Media’, The Supreme Court of Tasmania (Web Page, December 2019) <https://www.supremecourt.tas.gov.au/the-court/media/>.

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16. ‘Contempt of Court Orders’, Scottish Courts and Tribunals (Web Page) <http://www.scotcourts.gov.uk/current-business/court-notices/contempt-of-court-orders>.

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17. Media and Communications Office, Courts Administration Authority (SA), A Guide for Media Reporting in South Australian Courts
    
    (15 August 2019) 4 <http://www.courts.sa.gov.au/ForMedia/Documents/A%20guide%20for%20media%20reporting%20in%20South%20Australian%20Courts.pdf>.

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18. Courts Technology Group, eCourts Portal of Western Australia (Web Page) <https://ecourts.justice.wa.gov.au/eCourtsPortal>; Supreme Court of Western Australia, Guidelines for the Media—Reporting in Western Australian Courts (Guidelines, July 2019) <https://www.supremecourt.wa.gov.au/_files/Guidelines%20for%20the%20Media.pdf>.

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19. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 167, Question 48.

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

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21. Submission 11 (Victoria Legal Aid).

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22. Submission 28 (Director of Public Prosecutions).

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

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

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25. Submission 33 (Victims of Crime Commissioner, Victoria); Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

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26. Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

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27. Submission 31 (County Court of Victoria).

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

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29. Submission 28 (Director of Public Prosecutions).

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

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31. Consultation 19 (Victoria Police).

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

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

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34. ‘Reporting the Court—Part 1’, Gertie’s Law (Supreme Court of Victoria, 26 August 2019) <https://www.supremecourt.vic.gov.au/podcast>; ‘Reporting the Court—Part 2’, Gertie’s Law (Supreme Court of Victoria, 30 August 2019) <https://www.supremecourt.vic.gov.au/podcast>.

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35. See eg, County Court of Victoria, ‘Media Guide’, County Court Victoria (Web Page, 5 December 2019) <https://www.countycourt.vic.gov.au/news-and-media/media-guide>.

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36. Submissions 11 (Victoria Legal Aid), 20 (Criminal Bar Association), 28 (Director of Public Prosecutions); Consultation 24 (County Court of Victoria).

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

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38. Submission 7 (The Victorian Civil and Administrative Tribunal).

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39. Consultation 24 (County Court of Victoria).

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40. Ibid.

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41. Submission 28 (Director of Public Prosecutions).

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42. Submission 11 (Victoria Legal Aid).

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43. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 169, Question 49.

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44. Submissions 18 (Commercial Bar Association Media Law Section Working Group), 28 (Director of Public Prosecutions); Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

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

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46. Submissions 11 (Victoria Legal Aid), 20 (Criminal Bar Association).

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47. Submission 11 (Victoria Legal Aid).

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48. Ibid; Submission 20 (Criminal Bar Association).

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49. Submission 20 (Criminal Bar Association).

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

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

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52. Submission 11 (Victoria Legal Aid).

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53. Consultations 7 (DJCS Community Operations and Victims Support Agency), 16 (Victims of Crime Consultative Committee victims’ representatives).

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54. Consultation 24 (County Court of Victoria).

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55. Submission 20 (Criminal Bar Association).

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56. Consultations 7 (DJCS Community Operations and Victims Support Agency), 16 (Victims of Crime Consultative Committee victims’ representatives).

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

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58. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 169–70 [10.119]–[10.130].

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59. This reluctance was reported by the former Chief Justice of Victoria, Marilyn Warren, in the Open Courts Act Review: Frank Vincent, Open Courts Act Review (Report, September 2017) 70 [266] <https://engage.vic.gov.au/open-courts-act-review>.

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

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61. Consultation 19 (Victoria Police).

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62. Consultations 1 (Representatives of victims of crime support organisations), 7 (DJCS Community Operations and Victims Support Agency), 16 (Victims of Crime Consultative Committee victims’ representatives), 24 (County Court of Victoria).

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63. For example, the drafting of the order may make it unclear whether the order applied to the publication: Submission 28 (Director of Public Prosecutions) .

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64. Submission 20 (Criminal Bar Association).

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65. Submission 18 (Commercial Bar Association Media Law Section Working Group). Forgetmenot Foundation Inc. also favoured retaining the provision: Submission 19 (Forgetmenot Foundation Inc).

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66. Submission 28 (Director of Public Prosecutions).

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67. Consultation 19 (Victoria Police).

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