Contempt of Court: Report (html)
17. Legacy suppression orders
Overview
• Legacy suppression orders are suppression orders made before the commencement of the Open Courts Act that do not contain an end date. Legacy suppression orders are not addressed in the Open Courts Act.
• Some of these orders may no longer fulfil a legitimate purpose. Continuing such orders therefore infringes the principle of open justice and carries significant risks for publishers.
• Other orders may still be serving a purpose. It would be difficult to identify which orders are still needed without hearing from those affected.
• It is unknown how many legacy suppression orders exist. The Commission recommends an audit be conducted of such orders.
• The Open Courts Act should also be changed to allow parties with a sufficient interest to apply for a court to review a legacy suppression order, with notice given to other interested parties.
What are legacy suppression orders?
17.1 Legacy suppression orders are suppression orders made before the commencement of the Open Courts Act 2013 (Vic) that do not have an end date. These orders would have been made under the common law or under Acts now repealed and are not affected by the Open Courts Act. The Commission has been asked to review these orders in this inquiry.
17.2 Suppression orders under the Open Courts Act must fix or identify a time when the order expires.[1] In contrast, legacy suppression orders do not have an end date so can continue indefinitely. This can make it difficult for publishers, who may unknowingly breach an order years after a proceeding.
17.3 As discussed in the consultation paper, allowing orders to continue when no longer justified infringes the principle of open justice.[2]
17.4 The consultation paper identified two reform options to resolve this:
• an audit to identify and review the need for legacy suppression orders
• a mechanism to enable courts to revoke redundant legacy suppression orders.[3]
Should there be an audit of legacy suppression orders?
17.5 The consultation paper noted that the data about legacy suppression orders is incomplete and not readily available. Stakeholders were not able to precisely identify the number of legacy suppression orders in operation.[4]
17.6 The Supreme Court of Victoria and the County Court of Victoria submitted it would require substantial resources to identify and review existing legacy suppression orders.[5]
17.7 The Commercial Bar Association Media Law Section Working Group supported an audit. In its view, this would be the most efficient way to identify legacy suppression orders.[6]
17.8 As discussed in Chapter 15, the Supreme Court is creating a new database of suppression orders made across Victorian courts. The Court noted that, during the transfer of data from the previous database to the new database, there would be scope to review whether the orders had expired, been revoked or varied. However, this would require adequate resourcing.[7]
17.9 The Supreme Court submitted that a ‘substantive review’ of legacy orders would require ‘much more substantial resources’.[8] The Supreme Court noted that orders made prior to the Open Courts Act do not necessarily record the basis on which they were made, and it would be ‘a significant logistical exercise’ to retrieve this information from files and transcript where available. The Supreme Court stated it was unclear how those with an interest in the review of an order could make submissions.
17.10 As noted in Chapter 15, the County Court supported establishing an independent body to monitor breaches of orders restricting publication. The County Court told the Commission this body could also audit and review legacy suppression orders.[9]
Commission’s conclusions: conduct an audit of legacy suppression orders
17.11 Uncertainty about the number of legacy suppression orders in operation in Victoria and their content undermines the rule of law and freedom of expression. The current project of establishing a new suppression order database provides an ideal remedy. Such an audit will need to be resourced adequately.
17.12 The Commission therefore recommends the Victorian Government provide funding to the courts to undertake a comprehensive audit of legacy suppression orders. Such an audit would improve the outcomes of the current project to establish a new suppression order database. Ideally, the audit would allow legacy suppression orders to be searchable alongside the suppression orders under the Open Courts Act.
Recommendation
132 The courts should be resourced by the Victorian Government to conduct an audit of all existing legacy suppression orders.
Expiration of legacy suppression orders
17.13 The consultation paper asked whether there should be provisions in the Open Courts Act or another Act to specify the duration of legacy suppression orders. It identified two options:
• legislation deeming such orders to have been revoked from a specified date, subject to applications from interested parties to vary, continue or revoke the order earlier
• legislation specifying procedures for notifying those interested of legacy suppression orders and enabling them to apply to revoke or vary such orders.[10]
17.14 Stakeholders agreed there should be a way to ensure legacy suppression orders ended when they became unnecessary.[11] Stakeholders approached this reform option in different ways.
17.15 Some stakeholders supported the first option.[12] Forgetmenot Inc supported a time limitation on legacy suppression orders.[13] It submitted that such open-ended orders can have an intergenerational and traumatising effect. Australia’s Right to Know coalition (ARTK) submitted that the mechanism should deem legacy suppression orders to have expired six years from the commencement of the Open Courts Act, subject to applications to revoke, vary or continue an order.[14]
17.16 However, others expressed concern that any deeming provision might:
• risk the safety and wellbeing of persons protected by a legacy suppression order[15]
• be unconstitutional, as a potential breach of the separation of powers.[16]
17.17 The Supreme Court also noted it could be difficult to review legacy suppression orders if the orders did not include information about the grounds on which they were made. In the Court’s experience, ‘a significant number of orders remain in place and, upon review, remain justified’. [17]
17.18 Stakeholders generally supported the creation of a legislative procedure to notify interested parties of applications to vary or revoke legacy suppression orders.[18] ARTK submitted that the notice requirements should be the same as those in the Open Courts Act.[19]
Commission’s conclusions: establish a procedure for revoking or varying legacy suppression orders
17.19 Deeming provisions that automatically revoke legacy suppression orders could have significant practical impacts. They could result in people losing protections they were unaware would end. The focus for reform should instead be ensuring that there is a clear process for those affected by a legacy suppression order to apply to vary or revoke them.
17.20 There should therefore be a legislative procedure to allow an interested party to apply to a court to review whether a legacy suppression order that it made is still needed. This provides a way to ensure suppression orders can end without putting anyone at risk.
17.21 This will mean that there are still some orders that will continue even though they do not serve any purpose, because there is no party with an interest in applying to change or revoke the order.
17.22 The legislative procedure should require notice to be given to interested parties. In the interests of accessibility, this procedure should be provided for in the Open Courts Act.
17.23 The Commission notes that court processes will need to be developed to allow an applicant and the court to access materials explaining the rationale for a suppression order. Such material may need to be provided to any respondent to the application.
Recommendations
133 The Open Courts Act should be amended to enable an interested party to apply to the court for the revocation or variation of a legacy suppression order made by that court.
134 The courts should develop processes allowing an applicant and the court to have access to materials providing evidence of the grounds on which a legacy suppression order was made.
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Open Courts Act 2013 (Vic) ss 12(1)–(3).
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Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 181 [10.199].
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Ibid 184 [10.220]–[10.223].
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Submissions 18 (Commercial Bar Association Media Law Section Working Group), 20 (Criminal Bar Association), 27 (Australia’s Right to Know coalition), 31 (County Court of Victoria).
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Submissions 29 (Supreme Court of Victoria), 31 (County Court of Victoria).
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Submission18 (Commercial Bar Association Media Law Section Working Group).
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Submission 29 (Supreme Court of Victoria).
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Ibid.
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Consultation 24 (County Court of Victoria).
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Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 184, Question 59.
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Submissions 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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Submissions 18 (Commercial Bar Association Media Law Section Working Group), 19 (Forgetmenot Foundation Inc), 20 (Criminal Bar Association), 27 (Australia’s Right to Know coalition); Consultation 1 (Representatives of victims of crime support organisations).
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Submission 19 (Forgetmenot Foundation Inc).
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Submission 27 (Australia’s Right to Know coalition).
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Submissions 7 (The Victorian Civil and Administrative Tribunal), 29 (Supreme Court of Victoria), 31 (County Court of Victoria), 33 (Victims of Crime Commissioner, Victoria).
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Submissions 29 (Supreme Court of Victoria), 31 (County Court of Victoria).
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Submission 29 (Supreme Court of Victoria).
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Submissions 7 (The Victorian Civil and Administrative Tribunal), 27 (Australia’s Right to Know coalition), 33 (Victims of Crime Commissioner, Victoria).
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Submission 27 (Australia’s Right to Know coalition).