Contempt of Court: Report (html)
Recommendations
Chapter 2: Contempt of court and the need for reform
1 For the purpose of ensuring clarity, certainty and accessibility, the common law of contempt of court should be restated in legislation in a new Act, the Contempt of Court Act.
Chapter 3: How to reform the law of contempt of court
2 The proposed Act should provide an exhaustive statutory framework for the exercise of the inherent power to deal with all persons for contempt of court.
3 The proposed Act should provide that an application to deal with a person for contempt of court may only be made under the Act and that a person may only be dealt with for contempt of court in accordance with the proposed Act.
4 The overarching purpose of the proposed Act should be to promote and protect the proper administration of justice in a way that is compatible with the Charter of Human Rights and Responsibilities Act and other statutory, constitutional and common law rights or principles.
5 The proposed Act should provide that in exercising any of its powers under the proposed Act, a court must seek to give effect to the overarching purpose and, in doing so, must have regard to the following principles:
• that the independence, integrity and impartiality of the judiciary should be protected
• that all persons should have unhindered access to the court system to determine their legal rights and liabilities
• that all cases should be determined in accordance with the rule of law and that the right to a fair hearing should be upheld
• that the public and media should be able to access and report on both court proceedings and court documents unless otherwise provided by law
• that all cases should be heard in an orderly and efficient manner, free from disruption and outside influence, and should be decided based only on the evidence properly admitted and proved
• that for decisions to be made on the best evidence, witnesses should be able to be compelled to attend and give evidence
• that jury verdicts should be based only on evidence properly admitted and proved after free, frank and confidential jury discussions, and that the finality of verdicts should be protected
• that those with duties to perform in the court, including judges, witnesses, jurors and legal practitioners, should do so fairly and honestly, in accordance with the directions of the court and any undertakings given to the court, and in a safe environment, free from interference and harassment
• that orders made by the courts should be complied with and enforced.
Chapter 4: Defining contempt of court in legislation
6 The proposed Act should define the conduct liable to punishment as a contempt of court by listing the more common categories of contempt and defining in clear and accessible language the elements of each category.
7 The categories of contempt defined as conduct liable to punishment as contempt under the proposed Act should include the following, as set out in subsequent recommendations:
• conduct that occurs in or near to the courtroom and that interferes with a court proceeding
• witness misconduct
• non-compliance with court orders or undertakings
• publication of material that prejudices a person’s right to a fair trial
• publication of material undermining public confidence in the judiciary or courts.
8 The proposed Act should also recognise as a distinct category of conduct liable to punishment as contempt interferences with and reprisals against those involved with a court proceeding, including judges, witnesses, jurors, legal practitioners, officers of the court, parties and potential parties to a proceeding.
9 The definition of conduct liable to punishment as a contempt under the proposed Act should include a general category of contempt which:
• is defined as conduct that has a substantial risk of interfering with the proper administration of justice where the person who engages in the conduct intends to create or is reckless as to the risk of that interference
• excludes conduct covered by the more common categories of contempt which are separately listed and defined.
10 The proposed Act should include provisions which:
• define liability for an attempt, incitement, conspiracy and involvement in the commission of a contempt
• provide for the defence of duress.
The effect of these provisions should be subject to Recommendation 53 that requires that before a person is liable for a contempt by conduct that interferes with a court proceeding actual interference with, or undermining of, the conduct of the proceeding must be proved.
11 The definition of conduct liable to punishment as contempt under the proposed Act should include any conduct that:
• is deemed by legislation to be a contempt of court
• the court is empowered by legislation to deal with as though it were a contempt of court.
Chapter 5: Procedure and penalties for contempt of court
12 The proposed Act should provide for contempt of court to be tried by summary procedure.
13 The proposed Act should provide that proceedings to deal with a contempt of court must be commenced by application to the court and that the application must:
• include a statement of charge that clearly specifies the alleged contempt, so the accused knows the case to be met
• be accompanied by the affidavits on which the person making the charge intends to rely.
14 In recognition of the criminal nature of contempt proceedings and to ensure procedural fairness, the summary procedure should include the following safeguards:
• the person charged must be served personally with the application unless an order for substituted service has been made
• the person must be given adequate opportunity to consider the charge, seek legal advice and prepare a defence
• subject to the Evidence Act, the person charged must have the opportunity to cross-examine witnesses, file affidavits in answer to the charge, give oral evidence and call witnesses to give oral evidence
• in accordance with section 141 of the Evidence Act, the applicable standard of proof is beyond reasonable doubt
• the privileges against self-incrimination and against self-exposure to penalty apply.
15 The proposed Act should specify the circumstances in which a person against whom contempt proceedings have been commenced can be arrested and remanded either on bail or in custody pending the hearing of a charge.
16 The proposed Act should clarify how procedural laws apply to contempt proceedings as if contempt of court were an ordinary criminal offence, and contempt proceedings were criminal proceedings for the prosecution of an offence. This includes the following legislation:
• Criminal Procedure Act
• Civil Procedure Rules
• Evidence Act
• Crimes (Mental Impairment and Unfitness to be Tried) Act
• Bail Act
• Evidence (Miscellaneous Provisions) Act
• Prisoners (Interstate Transfer) Act
• Service and Execution of Process Act
• Confiscation Act.
17 The proposed Act should provide that the procedure for commencing and conducting proceedings for a contempt that interferes with the conduct of a court proceeding (as defined in Chapter 7) should be the same summary procedure as for all other types of contempt of court, except as modified by Recommendations 18 and 19.
18 The proposed Act should provide that the judicial officer before whom the alleged contempt occurred cannot adjudicate the alleged contempt they witnessed.
19 The proposed Act should provide that where there is an alleged contempt that interferes with a court proceeding the presiding judicial officer may adopt the following procedure:
• formulate the charge and particularise the conduct giving rise to the alleged contempt
• refer the alleged contempt to another judicial officer for hearing.
20 The proposed Act should provide that:
• a party to a proceeding may apply to the Supreme Court to deal with a contempt arising from that proceeding
• a person in whose favour an order or undertaking has been made can apply to the Supreme Court to deal with a contempt arising from non-compliance with the order or undertaking
• any person with sufficient interest can apply to the Supreme Court for an order directing the Prothonotary to commence a contempt proceeding.
21 The proposed Act and the Public Prosecutions Act should provide that the Director of Public Prosecutions may take over and conduct any contempt proceedings including for the purpose of discontinuing the proceeding. This should not apply to a contempt proceeding commenced by the Attorney-General or the Court.
22 The proposed Act should provide that an application to the Supreme Court to deal with a contempt of court can be made by the Attorney-General.
23 The proposed Act should provide that the Director of Public Prosecutions may apply to the Supreme Court to deal with a contempt of court where the contempt arises in relation to:
• a criminal proceeding (whether pending or otherwise)
• any matter being conducted by the DPP in accordance with the functions conferred by the Public Prosecutions Act.
24 The proposed Act should provide that the Supreme Court can order the Prothonotary to make an application to deal with a contempt of court. The Prothonotary may seek further directions from the Court before proceeding with the application. The Prothonotary must proceed as directed.
25 The proposed Act should not regulate the use of contempt warnings. This should remain a matter for judicial discretion. Guidance should be given to judicial officers through the Judicial College on the appropriate use of warnings.
26 The proposed Act should set out the role of apologies in contempt proceedings, and should provide that the court may, at its discretion, accept an apology and:
• determine that no proceeding should be commenced to deal with the alleged contempt
• determine that a proceeding already commenced should be discontinued
• determine that, although the contempt has been proved, no conviction should be recorded and/or penalty imposed, or
• take the apology into account in determining what penalty should be imposed.
27 The proposed Act should provide that in determining whether to commence a contempt proceeding or to continue a contempt proceeding commenced by another party, the Supreme Court should consider the extent to which other procedures to deal with the conduct are available.
28 The proposed Act should provide that if an act or omission constitutes both a contempt of court under the proposed Act and a criminal offence under another Act or the general common law, the person may be either charged with the offence or dealt with for contempt, or both, but may not be punished more than once for the same act or omission.
29 The proposed Act should specify that a court may award costs at its discretion.
30 The proposed Act should fix a maximum penalty for contempt of court. Different maximum penalties should apply for different categories of contempt as set out in subsequent recommendations. The maximum penalty for the general category of contempt should be for an individual 10 years imprisonment or 1200 penalty units.
31 The proposed Act should provide for maximum penalties for bodies corporate that are five times those that can be imposed on a natural person.
32 To ensure the availability of the full range of sentencing orders and to provide a consistent framework for the making of sentencing orders, the proposed Act should provide that:
• the Sentencing Act applies to the sentencing of an adult for contempt of court
• the Children, Youth and Families Act applies to the sentencing of a child for contempt of court.
33 To retain flexibility, the proposed Act should provide that the Supreme Court retains the discretion to order early discharge from a sentence of imprisonment or other sentencing order, an accruing fine up to a set maximum, and/or sequestration.
Chapter 6: Contempt powers of lower courts
34 The contempt provisions in the County Court Act should be repealed and the proposed Act should confer on the County Court the same power to deal with a person for contempt as the Supreme Court except that the County Court should not have the power to punish:
• contempt of any other court
• contempt by publication of material undermining public confidence in the judiciary or courts (scandalising contempt).
35 The contempt provisions in the Magistrates’ Court Act should be repealed and the proposed Act should confer on the Magistrates’ Court power to punish as a contempt witness misconduct and conduct that occurs in or near the courtroom and that interferes with a court proceeding. (This type of contempt is defined in Chapter 7.)
36 The contempt provisions in the Children, Youth and Families Act should be repealed and the proposed Act should confer on the Children’s Court the power to punish as a contempt witness misconduct and conduct that occurs in or near the courtroom and that interferes with a court proceeding. (This type of contempt is defined in Chapter 7.)
37 The proposed Act should provide that any court should consider transferring an application to punish a child for contempt to the Children’s Court provided that:
• the child consents
• the court considers that it is appropriate for the charge to be determined by the Children’s Court.
38 The proposed Act should confer jurisdiction on the Children’s Court to deal with a matter transferred in this way.
39 The proposed Act should provide that in any contempt proceeding against a child the procedural requirements and sentencing principles of the Children, Youth and Families Act should apply.
40 The contempt provisions in the Coroners Act should be repealed and the proposed Act should confer on the Coroners Court the power to punish as a contempt witness misconduct and conduct that occurs in or near the courtroom and that interferes with a court proceeding. (This type of contempt is defined in Chapter 7.)
41 The proposed Act should provide that the Supreme Court has jurisdiction to punish a contempt of a lower court.
42 The proposed Act should provide for the County Court to use the same procedure for dealing with contempt as the Supreme Court. The same penalties should apply.
43 The proposed Act should specify the procedure for contempt proceedings in the Magistrates’ Court, Children’s Court and Coroners Court. It should provide that the judicial officer before whom the alleged contempt occurred cannot adjudicate the alleged contempt and must:
• formulate the charge and particularise the conduct giving rise to the alleged contempt
• refer the alleged contempt to another judicial officer for hearing according to the ordinary summary procedure set out in Chapter 5.
44 The processes necessary to support this procedure, including in regional areas, should be developed in close consultation with the Magistrates’ Court, Children’s Court and Coroners Court.
45 The proposed Act should provide that where it is alleged, or appears to the County Court, Magistrates’ Court, Children’s Court or Coroners Court on its own view, that a person has committed contempt of court, the Court may refer the matter to the Supreme Court for consideration. On receiving a referral, the Prothonotary should obtain and act on legal advice about whether to commence a contempt proceeding, subject to the direction of the Court. The County Court, Magistrates’ Court, Children’s Court and Coroners Court may make such a referral regardless of whether the court has jurisdiction to deal with the contempt itself.
Chapter 7: Dealing with disruptive behaviour: contempt ‘in the face of the court’
46 The proposed Act should recognise ‘contempt in the face of the court’ as a distinct category of contempt and redefine it as ‘contempt by conduct that interferes with a court proceeding’.
47 The proposed Act should provide that ‘contempt by conduct that interferes with a court proceeding’ is limited to conduct that occurs in or near the courtroom.
48 The proposed Act should provide that a person may be dealt with by a court for ‘contempt by conduct that interferes with a court proceeding’ where a person:
• disrupts or interrupts a proceeding
• obstructs, threatens, abuses or assaults any person in or near a court
• seeks to improperly influence any person in or near a court
• disobeys an order or direction made by a judicial officer at and in relation to the hearing of a proceeding
• makes an unauthorised recording of a proceeding, including by taking photographs, filming or other recording
• engages in any other insulting behaviour, and
• the conduct undermines or interferes with the conduct of the proceeding.
49 The proposed Act should provide that for a person to be liable for ‘contempt by conduct that interferes with a court proceeding’ the court must be satisfied that the person’s conduct was intentional.
50 The proposed Act should not include a defence of reasonable excuse for contempt by conduct that interferes with a court proceeding.
51 The proposed Act should provide that in determining whether to exercise its discretion to deal with a person for contempt by conduct that interferes with a court proceeding, or in determining what penalty should be imposed, the court must consider:
• the personal circumstances of the person that may affect their culpability and degree of responsibility for the conduct, including (but not limited to) age and/or any mental or cognitive impairment or other condition or disability
• whether the conduct is calculated or planned to interfere with the proceeding, is repeated or sustained, or is threatening.
52 Further education should be made available to judicial officers on how to identify and assist particular groups of people who may need assistance during court proceedings.
53 The proposed Act should provide that actual interference with, or undermining of, the conduct of a proceeding is required to constitute contempt by conduct that interferes with a court proceeding. A risk of interference is not sufficient.
54 The proposed Act should provide that any person can commit a contempt that interferes with a court proceeding including, but not limited to, a party to the proceeding, an accused, a legal practitioner, a witness, a juror or a member of the public.
55 The proposed Act should provide that witness misconduct constituting a contempt is limited to a person:
• failing to comply, without lawful excuse, with a summons or subpoena to produce documents or things, or to attend to give evidence or to attend to give evidence and produce documents or things
• when summoned or subpoenaed, refusing to be sworn or affirmed, or refusing to answer any lawful question
• when being examined as a witness or being present in court and required to give evidence, refusing to be sworn or affirmed, or refusing to answer any lawful question, or, without sufficient excuse, refusing to produce any documents or things that the person is required to produce
• when attending court to give evidence, refusing to leave the court and remain outside and beyond the hearing of the court until required to give evidence contrary to an order to that effect
• who, in the opinion of the judicial officer, is guilty of wilful prevarication, that is, evading answering questions.
56 The proposed Act should include maximum penalties for contempt by conduct that interferes with a court proceeding and witness misconduct, as follows:
• for the Magistrates’ Court, Children’s Court and Coroners Court: six months imprisonment and/or a fine of 25 penalty units
• for the Supreme and County Courts for the making of an unauthorised recording of a proceeding, including by taking photographs, filming or other recording; insulting behaviour; disrupting or interrupting a proceeding; or for defying an order or
direction made by a judicial officer at and in relation to the hearing of the proceeding: 12 months imprisonment and/or a fine of 120 penalty units
• for the Supreme and County Courts for obstructing, threatening, abusing, assaulting or seeking to improperly influence any person in or near the court, or for witness misconduct: five years imprisonment and/or a fine of 600 penalty units.
57 The Commission’s recommendations for contempt by conduct that interferes with a court proceeding should apply to all Victorian courts.
Chapter 8: Disobedience contempt: non-compliance with court orders and undertakings
58 The proposed Act should recognise ‘disobedience contempt’ as a distinct category of contempt and redefine it as ‘contempt by non-compliance with a court order or undertaking’.
59 The distinction between civil and criminal contempt should not be retained.
60 The proposed Act should provide that a person may be dealt with by a court for contempt by non-compliance with a court order or undertaking where:
• an order was made by a court, or an undertaking was given to a court
• the terms of the order or undertaking were clear, unambiguous and capable of being complied with
• in the case of an order made by the court, the order was properly served on the person in accordance with the rules and/or that service was excused in the circumstances, or dispensed with pursuant to the rules of the court
• the person had knowledge of the terms of the order or undertaking, and
• the person breached the order or undertaking.
61 The proposed Act should provide that in determining whether to exercise its discretion to deal with a person for contempt by non-compliance with a court order or undertaking, and in fixing the appropriate penalty, the court must consider:
• the extent to which other mechanisms to enforce the law are available
• the impact of the failure to comply with the order or undertaking on specific persons or the community more generally
• the attitude of the person, and whether they were deliberately defiant.
62 The proposed Act should provide that a person who is to be dealt with for contempt by non-compliance with a court order or undertaking has the right to have the matter heard by a judicial officer who did not make the original order.
63 The proposed Act should provide that the maximum penalty for contempt by non-compliance with a court order or undertaking for an individual is five years imprisonment and/or a fine of 600 penalty units.
64 The proposed Act should provide that the maximum penalty for contempt by non-compliance with a court order or undertaking for a body corporate is:
• 3000 penalty units, or
• if the court can determine the value of the benefit obtained because of the non-compliance by the body corporate (and any related bodies corporate), three times the value of the benefit, or
• if the court cannot determine the value of the benefit because of the non-compliance by the body corporate (and any related bodies corporate), 10 per cent of the annual turnover of the body corporate in the year the offending occurred.
65 The Victorian Government should conduct a review of the adequacy and effectiveness of the enforcement of orders in civil proceedings, including proceedings in the Children’s Court and the Victorian Civil and Administrative Tribunal.
Chapter 9: Juror contempt
66 The Supreme Court of Victoria and the County Court of Victoria should continue to be able to deal with jurors for contempt where a juror’s conduct satisfies any category of contempt specified in the proposed Act.
67 Sections 67, 71(1) and 71(3) of the Juries Act should be restated as offences punishable by fine imposed by infringement notice.
68 The penalty for breach of section 78A of the Juries Act should be amended to align with the penalties for breach of sections 77 and 78 of the Act, with the effect that the maximum penalty for breach of section 78A should be increased to 600 penalty units or five years imprisonment.
69 The Juries Act should be amended to expressly state who can investigate and bring a prosecution for juror offences under the Act, and to require that, where an investigation by Victoria Police is requested, Victoria Police must report to the requesting agency the outcome of their investigation.
70 Section 77 of the Juries Act should be amended to expressly prohibit jurors (including persons called for jury service but not empanelled and released, and persons who have previously attended for jury service or served as a juror) from self-publishing information about or images of themselves that can identify them as a person attending for jury service.
71 The wording of the juror oath and affirmation in the Juries Act should be amended to specify that jurors should not independently conduct trial-related research or disclose information about deliberations.
72 The Juries Act should be amended to expressly enable the jury foreperson to ask questions in writing of the presiding judge on behalf of a juror or jurors.
73 The Judicial College of Victoria should develop further guidance materials and, in consultation with the courts, provide specific training for judicial officers on:
• how and when to prompt a jury to ask questions of the presiding judge during a trial
• how to encourage jurors to ask questions more often, including examples of the types of question on which juries may seek answers.
74 The Judicial College of Victoria and the Juries Commissioner should develop further training and guidance for judges and jurors on the use and potentially negative impacts of social media on the administration of justice.
Chapter 10: Sub judice contempt: restricting the publication of prejudicial information
75 The courts should develop procedures to identify and manage the risks of jurors being exposed to prejudicial material before or during a trial, including through:
• the use of juror questionnaires
• questions to be put in the excuse process
• jurors answering written questions about their potential exposure.
76 The proposed Act should recognise ‘sub judice contempt’ as a distinct category of contempt and redefine it as ‘contempt by publishing material prejudicial to legal proceedings’.
77 The proposed Act should provide that a person may be dealt with by a court for contempt by publishing material prejudicial to legal proceedings when a person publishes material, while proceedings are pending, that creates a substantial risk that jurors or witnesses (or potential jurors or witnesses) will:
• become aware of the material, and
• recall the material at the time of the proceeding.
78 The proposed Act should include the factors a court must consider in determining whether the published material creates a substantial risk of prejudicing a person’s right to a fair hearing. This list should include:
• the medium in which the publication is presented and its potential accessibility and durability
• the content of the publication
• the character of the publication, including the language and tone used in it
• any other relevant circumstances relating to the likely effect of the publication.
79 The proposed Act should provide that it is a contempt of court to publish material, once a trial has commenced and remains pending, that was heard in the absence of the jury or was held to be inadmissible by the court.
80 The proposed Act should provide that for a person to be liable for contempt by publishing material prejudicial to legal proceedings, the court must be satisfied that the person intended to publish the material.
81 The proposed Act should provide that it is a defence to this form of contempt if at the time of publication, and after taking all reasonable care, the person:
• did not know, or could not reasonably have known, of a fact that caused the publication to be in contempt, or
• reasonably relied on another person to take such reasonable care before publishing the material.
82 The proposed Act should provide that liability for contempt by publishing material prejudicial to legal proceedings only arises where the legal proceeding is ‘pending’ at the time of publication.
83 For criminal proceedings, the proposed Act should provide that a proceeding is ‘pending’:
• from the date on which an arrest or charge is made until the date on which either the verdict is delivered or the criminal proceeding ends otherwise, and
• recommences from the date on which a retrial is ordered until the date on which the retrial concludes.
84 For other legal proceedings, the proposed Act should provide that a proceeding is ‘pending’ from the date on which the initiating process is filed until the date on which a final decision is delivered, or when the proceeding ends otherwise.
85 The proposed Act should provide that a person is not liable to contempt for publishing material prejudicial to legal proceedings if the extent of prejudice is outweighed by the competing public interest in publication, including the effect of restricting publication on freedom of expression and on the principle of open justice.
86 The proposed Act should include the relevant factors a court must consider in determining the balance between the competing interests. These should include the extent to which the publication:
• refers to specific court proceedings
• refers to the guilt or innocence of the accused
• refers to the offending material, in the context of the publication as a whole
• raises an issue of significant public concern
• is relevant to public discussion at the time it is published
• contributes to public debate including through the extent of any research or investigation and the tone of the publication
• contributes to the effective and fair working of the criminal justice process.
87 Subject to Recommendation 79, the proposed Act should provide that it is not a contempt of court to publish in good faith a fair and accurate report of a court proceeding, including where a report is published in sections or as a series.
88 The proposed Act should provide that contempt by publishing material prejudicial to legal proceedings applies in civil proceedings where there is a jury and that:
• the nature of the proceeding is a relevant factor in determining the risk to a fair hearing
• the prejudgment principle does not apply.
Chapter 11: Scandalising the court
89 The proposed Act should recognise ‘scandalising contempt’ as a distinct category of contempt and redefine it as ‘contempt by publishing material undermining public confidence in the judiciary or courts’.
90 The proposed Act should provide that a person may be dealt with by a court for contempt by publishing material undermining public confidence in the judiciary or courts where a person publishes a false statement about a judge or court and intended or was reckless as to whether the publication created a serious risk of undermining public confidence in the independence, integrity, impartiality or authority of the judiciary.
91 The proposed Act should provide that only the Attorney-General, Director of Public Prosecutions and the Supreme Court can bring proceedings to deal with contempt by publishing material undermining public confidence in the judiciary or courts.
92 The proposed Act should provide that the Supreme Court should continue to have power to deal with contempt in respect of publications made about other courts or judges in those courts.
Chapter 12: The Judicial Proceedings Reports Act
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.
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.
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).
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.
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.
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.
Chapter 13: Enforcement in the online age
109 The Victorian Government should raise the issue of the enforcement of restrictions on publications in any national regulatory reforms with respect to take-down orders and other regulation of digital platforms, including the issue of identifying publishers online.
110 The Open Courts Act and the Commission’s proposed Contempt of Court Act should provide that a publisher is not liable, other than under the proposed take-down order scheme, if:
• at the time the material was first made available, the material did not breach the relevant provisions, and
• the publisher has not since taken any steps to republish the material.
111 The definitions of ‘publish’ and ‘publication’ in the Open Courts Act should be amended to include a list of factors the court may have regard to in determining whether the material has been disseminated to ‘the public or a section of the public’. This list should include:
• whether there is any established relationship between the parties
• the nature of any relationship between the parties
• the size of the audience
• the ease with which a person unknown to the publisher can access the communication.
112 The definition of ‘publication’ in the Open Courts Act should be amended to provide that the publication of online material occurs only if the material has been downloaded or accessed by a third party.
113 For consistency, the definitions of ‘publish’ and ‘publication’ in the Open Courts Act should be reflected in the Commission’s proposed Contempt of Court Act.
114 Online intermediaries and the owners of public websites should be excluded from liability for third-party content under the Commission’s proposed Contempt of Court Act and the Open Courts Act (including those offences that should be moved from the Judicial Proceedings Reports Act). This exclusion should not apply where online intermediaries and the owners of public websites:
• have been given notice of a court order requiring that the material should not be published, and have had a reasonable time to comply with that notice
• are ‘involved in the commission of the offence’ as defined in Part II Division 1 of the Crimes Act.
115 The offences in the Open Courts Act, including offences currently in the Judicial Proceedings Report Act, and the scandalising and sub judice provisions of the proposed Contempt of Court Act, should be expressed to apply extra-territorially both within and outside Australia, where any of the following apply:
• a significant part of the conduct, for example, the writing or the uploading of material, occurred in Victoria
• the publication was made with the intention to cause harm in Victoria, and did cause such harm
• the publisher was aware of a significant risk that the material would circulate in Victoria in such a way as to defeat the purpose of the restriction and did not take reasonably available steps to restrict this circulation.
Chapter 14: Take-down orders
116 The Open Courts Act should be amended to provide that the court can order material to be taken down by a publisher, an online intermediary or the owner of a public website, including where the online platform enables a third party to make comment, where the court is satisfied:
• the grounds specified in sections 18 and 26 of the Open Courts Act are met, or
• the material breaches a restriction on publication in the Open Courts Act, the proposed Contempt of Court Act or those in the Judicial Proceedings Reports Act that should be retained, and
• the order can reasonably be complied with.
117 The Open Courts Act should also be amended to provide that a failure to comply with a take-down order within a reasonable time is an offence with a maximum penalty of two years imprisonment and/or 240 penalty units for an individual, and 1200 penalty units for a body corporate.
118 The Open Courts Act should be amended to provide that a court or tribunal may make a take-down order:
• on application by a party to a proceeding or any other person considered by the court or tribunal to have a sufficient interest in the making of a take-down order, or
• by the court or tribunal of its own motion.
119 The Open Courts Act should also be amended to provide that if an application for a take-down order is made, the court or tribunal may make an interim take-down order.
120 The Open Courts Act should be amended to provide that the court may make:
• a final take-down order after hearing from both parties
• an interim take-down order without notice to the parties, in urgent cases.
Chapter 15: Penalties for breaches of restrictions on publication
121 The maximum penalty for breach of a suppression order under the Open Courts Act should be reduced for an individual from five years imprisonment to two years imprisonment or 240 penalty units, or both, and for bodies corporate there should be a maximum penalty of 1200 penalty units.
122 The Open Courts Act should be amended to specify a maximum penalty for breach of a common law suppression order or pseudonym order for an individual of two years imprisonment or 240 penalty units, or both, and for bodies corporate there should be a maximum penalty of 1200 penalty units.
123 The maximum penalty for breach of the prohibitions on the publishing of information about directions hearings and sentence indications, or information likely to lead to the identification of a victim of a sexual offence, currently provided for in the Judicial Proceedings Reports Act should be increased to six months imprisonment and/or 60 penalty units for an individual, and 300 penalty units for a body corporate.
124 The proposed Act should provide that the maximum penalty for a sub judice contempt or a scandalising contempt is, for an individual, two years imprisonment or 240 penalty units, or both, and for bodies corporate, a maximum penalty of 1200 penalty units.
Chapter 16: Promoting compliance with restrictions on publication
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.
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.
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.
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.
131 A ‘DPP consent’ provision should be introduced to the Open Courts Act for prosecutions for breach of suppression orders made under that Act.
Chapter 17: Legacy suppression orders
132 The courts should be resourced by the Victorian Government to conduct an audit of all existing legacy suppression orders.
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.