OPEN COURTS BILL 2013
PARLIAMENT OF VICTORIA Open Courts Bill 2013 TABLE OF PROVISIONS Clause Page PART 1--PRELIMINARY 1 1 Purposes 1 2 Commencement 2 3 Definitions 2 4 Presumption in favour of disclosure of information 4 5 Abrogation of common law and no implied jurisdiction 5 6 Jurisdiction and powers of courts and tribunals to deal with contempt 5 7 Admission of evidence and disclosure of information to a court or tribunal or party to a proceeding 5 8 Other laws restricting or prohibiting publication not affected 6 PART 2--GENERAL PROVISIONS FOR SUPPRESSION ORDERS 8 9 Application of Part 8 10 Duration of orders 8 11 Scope of information covered by order and purpose of suppression order 9 12 Order must be made on basis of evidence or sufficient credible information 9 13 Review of orders 10 14 Duty to publish reasons, judgments or decisions 11 PART 3--PROCEEDING SUPPRESSION ORDERS 12 15 Court or tribunal may make proceeding suppression order 12 16 Grounds for proceeding suppression order 12 17 Procedure for making a proceeding suppression order 13 18 Interim orders 14 19 Where a proceeding suppression order applies 15 20 Exceptions for conduct of proceeding, enforcement or informing persons of existence of proceeding suppression orders or interim orders 16 21 Offence to contravene proceeding suppression order or interim order 16 571222B.I-26/6/2013 i BILL LA INTRODUCTION 26/6/2013
Clause Page PART 4--BROAD SUPPRESSION ORDERS 18 22 Application of this Part 18 23 County Court may grant injunction restraining publication in relation to criminal proceeding 18 24 Magistrates' Court may make order prohibiting publication of specified material 18 25 Offence to contravene order under section 24(1) 19 PART 5--CLOSED COURT ORDERS 21 26 Presumption in favour of open court 21 27 Jurisdiction and powers of courts and tribunals to regulate proceedings 21 28 Power to close proceeding to the public 21 29 Requirement to post notice of closed court order on door of court or tribunal 23 30 Offence to contravene closed court order 23 PART 6--GENERAL 24 31 Regulations 24 PART 7--TRANSITIONAL PROVISIONS 25 32 Transitional 25 33 Power to resolve transitional difficulties in proceeding 25 34 Regulations dealing with transitional matters 25 PART 8--CONSEQUENTIAL AMENDMENTS 27 Division 1--Charter of Human Rights and Responsibilities Act 2006 27 35 Fair hearing 27 Division 2--Coroners Act 2008 27 36 Coroners' powers at inquests 27 37 Publication of findings and reports 27 38 Rules of the Coroners Court 28 39 Registers to be kept by principal registrar 28 40 New clause 22 inserted into Schedule 1 28 22 Savings--Open Courts Act 2013 28 Division 3--County Court Act 1958 29 41 Criminal jurisdiction of the County Court 29 42 Rules of Court 29 43 Power to close proceedings to the public and circumstances in which order may be made under section 80 29 571222B.I-26/6/2013 ii BILL LA INTRODUCTION 26/6/2013
Clause Page 44 Publishing particulars of issued summonses an offence 29 45 New section 98 inserted 30 98 Savings--Open Courts Act 2013 30 Division 4--Magistrates' Court Act 1989 31 46 Rules of Court 31 47 Register 31 48 Business to be conducted in open court 31 49 Power to close proceedings to the public 31 50 New clause 52 inserted in Schedule 8 31 52 Savings--Open Courts Act 2013 31 Division 5--Private Security Act 2004 32 51 General provisions for hearing matters involving protected information 32 Division 6--Supreme Court Act 1986 33 52 Power to close proceedings to the public and circumstances in which order may be made under section 18 33 53 Offence to publish certain information concerning proceedings 33 54 Rules of Court 33 55 New section 152 inserted 34 152 Savings--Open Courts Act 2013 34 Division 7--Victorian Civil and Administrative Tribunal Act 1998 34 56 Secrecy 34 57 Method of conducting hearings 35 58 Hearings to be public unless otherwise ordered 35 59 Consequential amendments to sections 144, 145 and 146 35 60 New section 166 inserted 35 166 Savings--Open Courts Act 2013 35 61 Variations from Parts 3 and 4 for various proceedings 36 62 Subject matter for rules 36 Division 8--Wrongs Act 1958 36 63 Heading to Part I amended 36 64 No action maintainable against a person for faithfully reporting 36 Division 9--Repeal of amending provisions 37 65 Repeal of Part 8 37 ENDNOTES 38 571222B.I-26/6/2013 iii BILL LA INTRODUCTION 26/6/2013
PARLIAMENT OF VICTORIA Introduced in the Assembly Open Courts Bill 2013 A Bill for an Act to reform and consolidate provisions for and powers relating to suppression orders and closed court orders, to make consequential amendments to various Acts and for other purposes. The Parliament of Victoria enacts: PART 1--PRELIMINARY 1 Purposes The main purposes of this Act are to-- (a) reform and consolidate provisions for 5 suppression orders relating to information derived from proceedings applicable to the Supreme Court, the County Court, the Magistrates' Court, the Coroners Court, the Victorian Civil and Administrative Tribunal 10 and other prescribed courts and tribunals; 571222B.I-26/6/2013 1 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 1--Preliminary s. 2 (b) reform and consolidate provisions for suppression orders relating to other information relevant to, but not derived from, certain proceedings in the County 5 Court and the Magistrates' Court; (c) make general provisions applicable to all suppression orders made pursuant to the exercise of the inherent jurisdiction of the Supreme Court and by courts or tribunals 10 under this Act; (d) reform and consolidate provisions for closed court orders applicable to the Supreme Court, the County Court, the Magistrates' Court, the Coroners Court, the Victorian 15 Civil and Administrative Tribunal and other prescribed courts and tribunals. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. 20 (2) If a provision of this Act does not come into operation before 1 December 2013, it comes into operation on that day. 3 Definitions In this Act-- 25 child means a person under 18 years of age; closed court order means an order made under Part 5; court or tribunal means-- (a) the Supreme Court; 30 (b) the County Court; (c) the Magistrates' Court; (d) the Coroners Court; 571222B.I-26/6/2013 2 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 1--Preliminary s. 3 (e) VCAT; (f) any other prescribed court or tribunal; (g) a prescribed person or body; family violence has the same meaning as it has in 5 the Family Violence Protection Act 2008; information includes any document; inquest has the same meaning as it has in the Coroners Act 2008; interim order means an order made under 10 section 18; news media organisation means-- (a) a commercial enterprise that engages in the business of broadcasting or publishing news; 15 (b) a public broadcasting service that engages in the dissemination of news through a public news medium; party to a proceeding includes-- (a) in the case of a criminal proceeding, the 20 complainant or victim or alleged victim; (b) any person named in evidence given in a proceeding; (c) in relation to a proceeding that has 25 concluded, a person who was a party to the proceeding before the proceeding concluded; proceeding means a civil proceeding or a criminal proceeding; 30 proceeding suppression order means an order made under section 15; 571222B.I-26/6/2013 3 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 1--Preliminary s. 4 publish means disseminate or provide access to the public or a section of the public by any means, including by-- (a) publication in a book, newspaper, 5 magazine or other written publication; or (b) broadcast by radio or television; or (c) public exhibition; or (d) broadcast or electronic 10 communication-- and publication must be construed accordingly; sexual offence has the same meaning as it has in the Criminal Procedure Act 2009; 15 suppression order means-- (a) a proceeding suppression order; (b) an interim order; (c) an order made under section 23 or 24; (d) an order made by the Supreme Court in 20 the exercise of its inherent jurisdiction that prohibits or restricts the publication or other disclosure of information in connection with any proceeding, whether or not the information was 25 derived from the proceeding. 4 Presumption in favour of disclosure of information To strengthen and promote the principles of open justice and free communication of information, there is a presumption in favour of disclosure of 30 information to which a court or tribunal must have regard in determining whether to make a suppression order. 571222B.I-26/6/2013 4 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 1--Preliminary s. 5 5 Abrogation of common law and no implied jurisdiction (1) Nothing in this section limits or otherwise affects the inherent jurisdiction of the Supreme Court. 5 (2) Any common law power to make an order prohibiting or restricting the publication of information in connection with any proceeding is abrogated. (3) A court or tribunal has no implied jurisdiction to 10 make an order prohibiting or restricting the publication of information in connection with any proceeding. 6 Jurisdiction and powers of courts and tribunals to deal with contempt 15 (1) This Act does not limit or otherwise affect any jurisdiction or any power that a court or tribunal has apart from this Act to deal with a contempt of the court or tribunal. (2) In this section-- 20 jurisdiction includes any implied jurisdiction and, in the case of the Supreme Court, its inherent jurisdiction; power includes any power at common law. 7 Admission of evidence and disclosure of information 25 to a court or tribunal or party to a proceeding This Act does not limit or otherwise affect-- (a) the making of an order or decision by a court or tribunal that requires the disclosure of information in the course of, or in relation to, 30 a proceeding; (b) any rule of law restricting the permitted use and disclosure of information referred to in paragraph (a); 571222B.I-26/6/2013 5 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 1--Preliminary s. 8 (c) the making of an order or decision by a court or tribunal regarding the admission into evidence of information; (d) the making of an order or decision by a court 5 or tribunal that-- (i) conceals the identity of a person by restricting the way the person is referred to in open court; (ii) restricts the way an event or thing may 10 be referred to in open court; (iii) prohibits or restricts access to a court or tribunal file. 8 Other laws restricting or prohibiting publication not affected 15 (1) This Act does not limit or otherwise affect the operation of a provision made by or under any other Act that-- (a) prohibits or restricts, or authorises a court or tribunal to prohibit or restrict, the publication 20 or other disclosure of information for or in connection with any proceeding; or (b) requires or authorises a court or tribunal to close any proceeding to the public. (2) Without limiting the generality of subsection (1), 25 this Act does not limit the operation of the following provisions-- (a) section 121 of the Adoption Act 1984; (b) section 534 of the Children, Youth and Families Act 2005; 30 (c) sections 17(3), (4) and (5), 36L(6), (7) and (8) and 37(9), (10) and (11) of the Confiscation Act 1997; 571222B.I-26/6/2013 6 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 1--Preliminary s. 8 (d) section 75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; (e) Part 4 of the Criminal Organisations 5 Control Act 2012; (f) sections 32F or 42BQ of the Evidence (Miscellaneous Provisions) Act 1958; (g) sections 166 or 167 of the Family Violence Protection Act 2008; 10 (h) section 43 of the Major Crime (Investigative Powers) Act 2004; (i) section 133 of the Public Health and Wellbeing Act 2008; (j) Division 1 of Part 13 of the Serious Sex 15 Offenders (Detention and Supervision) Act 2009; (k) section 12 of the Terrorism (Community Protection) Act 2003; (l) section 43 of the Victims of Crime 20 Assistance Act 1996; (m) clause 37 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998. Note 25 Other Acts have specific suppression regimes that place statutory restrictions or prohibitions on the disclosure of information. For example, see sections 3 and 4 of the Judicial Proceedings Reports Act 1958 and sections 77 and 78 of the Juries Act 2000. __________________ 571222B.I-26/6/2013 7 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 2--General Provisions for Suppression Orders s. 9 PART 2--GENERAL PROVISIONS FOR SUPPRESSION ORDERS 9 Application of Part This Part applies to any suppression order. 5 10 Duration of orders (1) The period for which a suppression order other than an interim order operates must be-- (a) determined by the court or tribunal in accordance with this section; and 10 (b) specified in the order. Note For interim orders, see section 18(5). (2) The period for which a suppression order operates may be specified by reference to-- 15 (a) a fixed or ascertainable period; or (b) subject to subsection (3), the occurrence of a specified future event. (3) If the period for which a suppression order operates is specified by reference to a future event 20 that may not occur, the order must also specify a period from the date of the order (not exceeding 5 years) at the end of which the order expires unless sooner revoked. Example 25 An order that is expressed to be in effect until further order of the court or tribunal would also need to specify a period not exceeding 5 years at the end of which the order expires unless sooner revoked. (4) The court or tribunal must ensure that a 30 suppression order operates for no longer than is reasonably necessary to achieve the purpose for which it is made. 571222B.I-26/6/2013 8 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 2--General Provisions for Suppression Orders s. 11 11 Scope of information covered by order and purpose of suppression order (1) A suppression order must specify the information to which the order applies with sufficient 5 particularity to ensure that-- (a) the order is limited to achieving the purpose for which the order is made; and (b) the order does not apply to any more information than is necessary to achieve the 10 purpose for which the order is made; and (c) it is readily apparent from the terms of the order what information is subject to the order. (2) A suppression order-- 15 (a) must specify the purpose of the order; and (b) in the case of a proceeding suppression order or an order under section 24(1), must specify the applicable ground or grounds on which it is made. 20 12 Order must be made on basis of evidence or sufficient credible information (1) In making a suppression order, a court or tribunal must be satisfied on the basis of evidence, or sufficient credible information that is satisfactory 25 to the court or tribunal, that the grounds for making the order are established. (2) Subsection (1) does not apply to an interim order. 571222B.I-26/6/2013 9 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 2--General Provisions for Suppression Orders s. 13 13 Review of orders (1) The court or tribunal that made a suppression order may review the order-- (a) on the court's or tribunal's own motion; or 5 (b) on the application of-- (i) the applicant for the order; (ii) a party to the proceeding in connection with which the order was made; (iii) the Attorney-General; 10 (iv) the Attorney-General of another State or Territory or of the Commonwealth; (v) a news media organisation; (vi) any other person who, in the opinion of the court or tribunal, has a sufficient 15 interest in the question of whether the order should be confirmed, varied or revoked. (2) Each of the persons specified in subsection (1)(b) is entitled to appear and be heard by the court or 20 tribunal on the review of a suppression order. (3) On a review under subsection (1), the court or tribunal-- (a) may confirm, vary or revoke the suppression order; and 25 (b) in addition, may make any other order that the court or tribunal may make under this Act. 571222B.I-26/6/2013 10 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 2--General Provisions for Suppression Orders s. 14 14 Duty to publish reasons, judgments or decisions Nothing in this Act limits or otherwise affects any duty of a court or tribunal to publish reasons for judgment or decisions, subject to the court or 5 tribunal editing those reasons to the extent necessary to comply with any order of a court or tribunal or statutory provision restricting the publication of information. Note 10 See also section 24(3) of the Charter of Human Rights and Responsibilities Act 2006. __________________ 571222B.I-26/6/2013 11 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 3--Proceeding Suppression Orders s. 15 PART 3--PROCEEDING SUPPRESSION ORDERS 15 Court or tribunal may make proceeding suppression order A court or tribunal on one or more of the grounds 5 specified in section 16 may make a proceeding suppression order to prohibit or restrict the disclosure by publication or otherwise of-- (a) a report of the whole or any part of a proceeding; 10 (b) any information derived from a proceeding. 16 Grounds for proceeding suppression order (1) A court or tribunal other than the Coroners Court may make a proceeding suppression order if satisfied as to one or more of the following 15 grounds-- (a) the order is necessary to prevent prejudice to the proper administration of justice; (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State 20 or Territory in relation to national or international security; (c) the order is necessary to protect the safety of any person; (d) the order is necessary to avoid causing undue 25 distress or embarrassment to a party to, or witness in, any criminal proceeding involving a sexual offence or family violence; (e) the order is necessary to avoid causing undue 30 distress or embarrassment to a child who is a witness in any criminal proceeding; 571222B.I-26/6/2013 12 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 3--Proceeding Suppression Orders s. 17 (f) in the case of VCAT, the order is necessary-- (i) to avoid the publication of confidential information or information the subject 5 of a certificate under section 53 or 54 of the Victorian Civil and Administrative Tribunal Act 1998; (ii) for any other reason in the interests of justice. 10 (2) The Coroners Court may make a proceeding suppression order in the case of an investigation or inquest into a death or fire if the coroner constituting the Coroners Court reasonably believes that an order is necessary because 15 disclosure would-- (a) be likely to prejudice the fair trial of a person; or (b) be contrary to the public interest. 17 Procedure for making a proceeding suppression 20 order (1) A court or tribunal may make a proceeding suppression order-- (a) on its own motion; or (b) on the application of-- 25 (i) a party to the proceeding concerned; or (ii) any other person considered by the court or tribunal to have a sufficient interest in the making of the order. (2) Each of the following persons may appear and be 30 heard by the court or tribunal on an application for a proceeding suppression order-- (a) the applicant for the order; (b) a party to the proceeding concerned; 571222B.I-26/6/2013 13 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 3--Proceeding Suppression Orders s. 18 (c) the Attorney-General; (d) the Attorney-General of another State or Territory or of the Commonwealth; (e) a news media organisation; 5 (f) any other person who, in the opinion of the court or tribunal, has a sufficient interest in the question of whether the order should be made. (3) Subject to rules of court (if any) or unless the 10 court or tribunal otherwise orders, an applicant for a proceeding suppression order is not required to give notice of the application to a person referred to in subsection (2). (4) A proceeding suppression order may be made-- 15 (a) at any time during a proceeding; (b) after a proceeding has concluded. (5) A proceeding suppression order may be made subject to any exceptions and conditions that the court or tribunal thinks fit and specifies in the 20 order. 18 Interim orders (1) If an application is made to a court or tribunal for a proceeding suppression order, the court or tribunal may make an interim order in respect of 25 that application. (2) Each of the following persons may appear and be heard by the court or tribunal in relation to the making of an interim order-- (a) the applicant for the proceeding suppression 30 order; (b) a party to the proceeding concerned; (c) the Attorney-General; 571222B.I-26/6/2013 14 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 3--Proceeding Suppression Orders s. 19 (d) the Attorney-General of another State or Territory or of the Commonwealth; (e) a news media organisation; (f) any other person who, in the opinion of the 5 court or tribunal, has a sufficient interest in the question of whether a proceeding suppression order which is the subject of the application or motion under section 17 should be made. 10 (3) Subject to rules of court (if any) or unless the court or tribunal otherwise orders, an applicant for a proceeding suppression order is not required to give notice to a person referred to in subsection (2). 15 (4) An interim order may be made without determining the merits of the application under section 16. (5) An interim order has effect until-- (a) the substantive application is determined; or 20 (b) the interim order is revoked by a court or tribunal. (6) If a court or tribunal makes an interim order, the court or tribunal must determine the substantive application for the proceeding suppression order 25 as a matter of urgency. 19 Where a proceeding suppression order applies (1) A proceeding suppression order or an interim order applies only to the publication or disclosure of information in a place where the order applies, 30 as specified in the order. (2) Subject to subsection (3), a proceeding suppression order or an interim order is not limited to applying in Victoria and may be made to apply anywhere in Australia. 571222B.I-26/6/2013 15 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 3--Proceeding Suppression Orders s. 20 (3) A proceeding suppression order or an interim order must not be made to apply outside Victoria unless the court or tribunal is satisfied that having the order apply outside Victoria is necessary for 5 achieving the purpose for which the order is made. 20 Exceptions for conduct of proceeding, enforcement or informing persons of existence of proceeding suppression orders or interim orders A proceeding suppression order or an interim 10 order does not prevent a person from disclosing information if the disclosure is in the course of performing functions or duties or exercising powers in a public official capacity-- (a) in connection with the conduct of any 15 proceeding or the recovery or enforcement of any penalty imposed in a proceeding; or (b) in compliance with any procedure adopted by a court or tribunal for informing a person of the existence and content of a proceeding 20 suppression order or an interim order made by the court or tribunal. 21 Offence to contravene proceeding suppression order or interim order (1) A person must not engage in conduct that 25 constitutes a contravention of a proceeding suppression order or an interim order that is in force if that person-- (a) knows that the proceeding suppression order or interim order, as the case requires, is in 30 force; or (b) is reckless as to whether a proceeding suppression order or an interim order, as the case requires, is in force. 571222B.I-26/6/2013 16 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 3--Proceeding Suppression Orders s. 21 Penalty: in the case of an individual, level 6 imprisonment (5 years maximum) or 600 penalty units, or both; in the case of a body corporate, 5 3000 penalty units. (2) For the purposes of subsection (1), in the absence of evidence to the contrary, a person is taken to be aware that a proceeding suppression order or an interim order is in force if a court or tribunal has 10 electronically transmitted notice of the order to the person. __________________ 571222B.I-26/6/2013 17 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 4--Broad Suppression Orders s. 22 PART 4--BROAD SUPPRESSION ORDERS 22 Application of this Part An order under this Part must not be made in respect of any information which could be the 5 subject of a proceeding suppression order. 23 County Court may grant injunction restraining publication in relation to criminal proceeding (1) The County Court has the same jurisdiction, and may exercise the same powers and authority, to 10 grant an injunction in a criminal proceeding restraining a person from publishing any material or doing any other thing to ensure the fair and proper conduct of the proceeding as the Supreme Court has and may exercise in respect of a 15 criminal proceeding in the Supreme Court. (2) The power of the County Court referred to in subsection (1) is exercisable by making an order, whether interlocutory or final, either unconditionally or on such terms and conditions 20 as the Court thinks just. 24 Magistrates' Court may make order prohibiting publication of specified material (1) The Magistrates' Court may make an order prohibiting the publication of any specified 25 material, or any material of a specified kind, relevant to a proceeding that is pending in the Court if in its opinion it is necessary to do so in order not to-- (a) prejudice the administration of justice; or 30 (b) endanger the safety of any person. (2) An order under subsection (1) applies only to the publication of material in a place where the order applies, as specified in the order. 571222B.I-26/6/2013 18 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 4--Broad Suppression Orders s. 25 (3) Subject to subsection (4), an order under subsection (1) is not limited to applying in Victoria and may be made to apply anywhere in Australia. 5 (4) An order under subsection (1) must not be made to apply outside Victoria unless the Magistrates' Court is satisfied that having the order apply outside Victoria is necessary for achieving the purpose for which the order is made. 10 (5) An order under subsection (1) does not prevent a person from disclosing information if the disclosure is in the course of performing functions or duties or exercising powers in a public official capacity-- 15 (a) in connection with the conduct of any proceeding or the recovery or enforcement of any penalty imposed in a proceeding; or (b) in compliance with any procedure adopted by the Magistrates' Court for informing a 20 person of the existence and content of an order made under subsection (1) by the Court. 25 Offence to contravene order under section 24(1) (1) A person must not engage in conduct that 25 constitutes a contravention of an order under section 24(1) that is in force if that person-- (a) knows that the order is in force; or (b) is reckless as to whether an order under that section is in force. 30 Penalty: in the case of an individual, level 6 imprisonment (5 years maximum) or 600 penalty units, or both; in the case of a body corporate, 3000 penalty units. 571222B.I-26/6/2013 19 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 4--Broad Suppression Orders s. 25 (2) For the purposes of subsection (1), in the absence of evidence to the contrary, a person is taken to be aware that an order is in force if a court or tribunal has electronically transmitted notice of the order 5 to the person. __________________ 571222B.I-26/6/2013 20 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 5--Closed Court Orders s. 26 PART 5--CLOSED COURT ORDERS 26 Presumption in favour of open court To strengthen and promote the principle of open justice, there is a presumption in favour of hearing 5 a proceeding in open court to which a court or tribunal must have regard in determining whether to make any order, including an order under this Part-- (a) that the whole or any part of a proceeding be 10 heard in closed court or closed tribunal; or (b) that only specified persons or classes of persons may be present during the whole or any part of a proceeding. 27 Jurisdiction and powers of courts and tribunals to 15 regulate proceedings (1) Subject to section 26, nothing in this Part limits or affects any jurisdiction or any power that a court or tribunal has apart from this Act to regulate its proceedings. 20 (2) In this section-- jurisdiction includes any implied jurisdiction and, in the case of the Supreme Court, its inherent jurisdiction; power includes any power at common law. 25 28 Power to close proceeding to the public (1) Subject to subsections (2) and (3), a court or tribunal-- (a) may order that the whole or any part of a proceeding be heard in closed court or closed 30 tribunal; or (b) may order that only persons or classes of persons specified by it may be present during the whole or any part of a proceeding. 571222B.I-26/6/2013 21 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 5--Closed Court Orders s. 28 (2) A court or tribunal other than the Coroners Court may make a closed court order if satisfied as to one or more of the following grounds-- (a) the order is necessary to prevent prejudice to 5 the proper administration of justice; (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security; 10 (c) the order is necessary to protect the safety of any person; (d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in any criminal proceeding involving 15 a sexual offence or family violence; (e) the order is necessary to avoid causing undue distress or embarrassment to a child who is a witness in any criminal proceeding; (f) in the case of VCAT, the order is 20 necessary-- (i) to avoid the disclosure of confidential information or information the subject of a certificate under section 53 or 54 of the Victorian Civil and 25 Administrative Tribunal Act 1998; (ii) for any other reason in the interests of justice. (3) The Coroners Court may make a closed court order if the coroner constituting the Coroners 30 Court reasonably believes that an order is necessary in the public interest, having regard to the matters specified in Part 2 of the Coroners Act 2008. 571222B.I-26/6/2013 22 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 5--Closed Court Orders s. 29 29 Requirement to post notice of closed court order on door of court or tribunal If a closed court order has been made, the court or tribunal must cause a copy of the order to be 5 posted-- (a) on a door of the court or tribunal; or (b) in another conspicuous place where notices are usually posted at the place where the court or tribunal is being held. 10 30 Offence to contravene closed court order A person must not engage in conduct that constitutes a contravention of a closed court order that is in force if that person-- (a) knows that the closed court order is in force; 15 or (b) is reckless as to whether a closed court order is in force. Penalty: in the case of an individual, level 6 imprisonment (5 years maximum) or 20 600 penalty units, or both; in the case of a body corporate, 3000 penalty units. __________________ 571222B.I-26/6/2013 23 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 6--General s. 31 PART 6--GENERAL 31 Regulations (1) The Governor in Council may make regulations for or with respect to any matter or thing required 5 or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act. (2) The regulations may-- (a) be of general or limited application; 10 (b) differ according to differences in time, place or circumstances; (c) confer a discretionary authority or impose a duty on a specified person or body or class of persons or bodies; 15 (d) provide in a specified case or class of cases for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations-- (i) whether unconditionally or on specified 20 conditions; and (ii) either wholly or to any extent that is specified. __________________ 571222B.I-26/6/2013 24 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 7--Transitional Provisions s. 32 PART 7--TRANSITIONAL PROVISIONS 32 Transitional This Act applies in relation to a proceeding (including any interlocutory proceeding)-- 5 (a) that is commenced in, or transferred to, a court or tribunal on or after the commencement of section 15; or (b) that has commenced in a court or tribunal but has not been heard and determined by the 10 court or tribunal immediately before the commencement of section 15. 33 Power to resolve transitional difficulties in proceeding (1) If any difficulty arises because of the operation of 15 this Act in relation to a proceeding referred to in section 32, a court or tribunal may make any order it considers appropriate to resolve the difficulty. (2) An order made under subsection (1)-- (a) may be made on application of a party to the 20 proceeding or on the court's or tribunal's own motion, as the case requires; and (b) has effect despite any provision to the contrary made by or under any Act (other than the Charter of Human Rights 25 and Responsibilities Act 2006). 34 Regulations dealing with transitional matters (1) The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings 30 nature, arising as a result of the enactment of this Act, including the repeals and amendments made by this Act. 571222B.I-26/6/2013 25 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 7--Transitional Provisions s. 34 (2) Regulations made under this section may-- (a) have a retrospective effect to a day on or from the date that this Act receives the Royal Assent; 5 (b) be of limited or general application; (c) differ according to differences in time, place or circumstances; (d) leave any matter or thing to be decided by a specified person or specified class of 10 persons; (e) provide for the exemption of persons or proceedings or a class of persons or proceedings from any of the regulations made under this section. 15 (3) Regulations made under this section have effect despite anything to the contrary-- (a) in any Act (other than this Act or the Charter of Human Rights and Responsibilities Act 2006); or 20 (b) in any subordinate instrument. (4) This section is repealed on the second anniversary of the day on which it comes into operation. __________________ 571222B.I-26/6/2013 26 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 8--Consequential Amendments s. 35 PART 8--CONSEQUENTIAL AMENDMENTS Division 1--Charter of Human Rights and Responsibilities Act 2006 35 Fair hearing 5 For the note at the foot of section 24(2) of the See: Act No. Charter of Human Rights and Responsibilities 43/2006. Act 2006 substitute-- Reprint No. 1 as at "Note 1 August 2011. See Part 5 of the Open Courts Act 2013.". LawToday: www. legislation. vic.gov.au 10 Division 2--Coroners Act 2008 36 Coroners' powers at inquests (1) Section 55(2)(d) of the Coroners Act 2008 is See: Act No. repealed. 77/2008. Reprint No. 1 (2) At the foot of section 55(2) of the Coroners Act as at 15 2008 insert-- 21 July 2011 and amending "Note Act Nos See Part 5 of the Open Courts Act 2013.". 52/2012, 83/2012 and 5/2013. LawToday: www. legislation. vic.gov.au 37 Publication of findings and reports (1) At the foot of section 73(1) of the Coroners Act 20 2008 insert-- "Note See Part 3 of the Open Courts Act 2013.". (2) Section 73(2) and (3) of the Coroners Act 2008 are repealed. 571222B.I-26/6/2013 27 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 8--Consequential Amendments s. 38 38 Rules of the Coroners Court (1) After section 105(1)(f) of the Coroners Act 2008 insert-- "(fa) any other matter or thing required or 5 permitted by or under the Open Courts Act 2013 to be dealt with by rules of the Coroners Court or otherwise necessary or required for the purposes of that Act;". (2) In section 105(1)(jb) of the Coroners Act 2008 10 omit "73(2),". 39 Registers to be kept by principal registrar Section 116(1)(e) of the Coroners Act 2008 is repealed. 40 New clause 22 inserted into Schedule 1 15 After clause 21 of Schedule 1 to the Coroners Act 2008 insert-- "22 Savings--Open Courts Act 2013 (1) Despite the repeal of section 55(2)(d) by the Open Courts Act 2013, an order made 20 under section 55(2)(d) (as in force immediately before its repeal) and in force at the date of that repeal continues to apply on and after that repeal. (2) Despite the repeal of section 73(2) and (3) 25 by the Open Courts Act 2013, section 73(2) and (3) (as in force immediately before their repeal) continue to apply on and after that repeal in relation to a proceeding commenced to be heard (but not determined) 30 by the Coroners Court before that repeal.". 571222B.I-26/6/2013 28 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 8--Consequential Amendments s. 41 Division 3--County Court Act 1958 41 Criminal jurisdiction of the County Court Section 36A(3), (4) and (5) of the County Court See: Act No. Act 1958 are repealed. 6230. Reprint No. 15 as at 1 May 2013 and amending Act No. 6230. LawToday: www. legislation. vic.gov.au 5 42 Rules of Court After section 78(1)(d) of the County Court Act 1958 insert-- "(da) any other matter or thing required or permitted by or under the Open Courts Act 10 2013 to be dealt with by rules of court or otherwise necessary or required for the purposes of that Act;". 43 Power to close proceedings to the public and circumstances in which order may be made under 15 section 80 Sections 80 and 80AA of the County Court Act 1958 are repealed. 44 Publishing particulars of issued summonses an offence 20 At the foot of section 80A of the County Court Act 1958 insert-- "Note The Open Courts Act 2013 governs suppression orders and closed court orders generally in relation to the court.". 571222B.I-26/6/2013 29 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 8--Consequential Amendments s. 45 45 New section 98 inserted After section 97 of the County Court Act 1958 insert-- "98 Savings--Open Courts Act 2013 5 (1) Despite the repeal of section 36A(3), (4) and (5) by the Open Courts Act 2013, section 36A(3), (4) and (5) (as in force immediately before their repeal) continue to apply on and after that repeal in relation to a 10 proceeding commenced to be heard (but not determined) by the court before that repeal. (2) Despite the repeal of section 36A(3) by the Open Courts Act 2013, an order made under section 36A(3) (as in force 15 immediately before its repeal) and in force at the date of that repeal continues to apply on and after that repeal. (3) Despite the repeal of sections 80 and 80AA by the Open Courts Act 2013, sections 80 20 and 80AA (as in force immediately before their repeal) continue to apply on and after that repeal in relation to a proceeding commenced to be heard (but not determined) by the court before that repeal. 25 (4) Despite the repeal of section 80 by the Open Courts Act 2013, an order made under section 80 (as in force immediately before its repeal) and in force at the date of that repeal continues to apply on and after that repeal.". 571222B.I-26/6/2013 30 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 8--Consequential Amendments s. 46 Division 4--Magistrates' Court Act 1989 46 Rules of Court After section 16(1)(c) of the Magistrates' Court See: Act No. Act 1989 insert-- 51/1989. Reprint No. 17 5 "(ca) any other matter or thing required or as at 1 May 2013 permitted by or under the Open Courts Act and 2013 to be dealt with by rules of court or amending Act Nos otherwise necessary or required for the 51/1989, purposes of that Act;". 51/2006, 12/2010 and 31/2013. LawToday: www. legislation. vic.gov.au 10 47 Register In section 18(3) of the Magistrates' Court Act 1989 for "section 126" substitute "Part 3 of the Open Courts Act 2013". 48 Business to be conducted in open court 15 At the foot of section 125(1) of the Magistrates' Court Act 1989 insert-- "Note The Open Courts Act 2013 governs suppression orders and closed court orders generally in relation to the Court.". 20 49 Power to close proceedings to the public Section 126 of the Magistrates' Court Act 1989 is repealed. 50 New clause 52 inserted in Schedule 8 After clause 51 of Schedule 8 to the Magistrates' 25 Court Act 1989 insert-- "52 Savings--Open Courts Act 2013 (1) Despite the repeal of section 126 by the Open Courts Act 2013, section 126 (as in force immediately before its repeal) 571222B.I-26/6/2013 31 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 8--Consequential Amendments s. 51 continues to apply on and after its repeal in relation to a proceeding commenced to be heard (but not determined) by the Court before that repeal. 5 (2) Despite the repeal of section 126 by the Open Courts Act 2013, an order made under section 126 (as in force immediately before its repeal) and in force at the date of that repeal-- 10 (a) subject to paragraph (b), continues to apply on and after that repeal; (b) may be set aside or varied in accordance with section 126 as if that section had not been repealed.". 15 Division 5--Private Security Act 2004 51 General provisions for hearing matters involving protected information See: In section 150E(3) of the Private Security Act Act No. 33/2004. 2004-- Reprint No. 1 20 as at (a) in paragraph (a), for "sections 49 and 101" 26 September 2007 substitute "section 49"; and amending (b) after paragraph (a) insert-- Act Nos 4/2008, "(ab) Part 5 of the Open Courts Act 2013;". 13/2008, 1/2010, 6/2010, 61/2010 and 79/2011. LawToday: www. legislation. vic.gov.au 571222B.I-26/6/2013 32 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 8--Consequential Amendments s. 52 Division 6--Supreme Court Act 1986 52 Power to close proceedings to the public and circumstances in which order may be made under section 18 5 Sections 18 and 19 of the Supreme Court Act See: Act No. 1986 are repealed. 110/1986. Reprint No. 7 as at 1 January 2011 and amending Act Nos 50/2011, 26/2012, 68/2012, 80/2012 and 5/2013. LawToday: www. legislation. vic.gov.au 53 Offence to publish certain information concerning proceedings At the foot of section 20 of the Supreme Court 10 Act 1986 insert-- "Note The Open Courts Act 2013 governs suppression orders and closed court orders generally in relation to the Court.". 54 Rules of Court 15 After section 25(1)(ae) of the Supreme Court Act 1986 insert-- "(af) any other matter or thing required or permitted by or under the Open Courts Act 2013 to be dealt with by rules of court or 20 otherwise necessary or required for the purposes of that Act;". 571222B.I-26/6/2013 33 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 8--Consequential Amendments s. 55 55 New section 152 inserted After section 151 of the Supreme Court Act 1986 insert-- "152 Savings--Open Courts Act 2013 5 (1) Despite the repeal of sections 18 and 19 by the Open Courts Act 2013, sections 18 and 19 (as in force immediately before their repeal) continue to apply on and after that repeal in relation to a proceeding 10 commenced to be heard (but not determined) by the Court before that repeal. (2) Despite the repeal of section 18 by the Open Courts Act 2013, an order made under section 18 (as in force immediately before its 15 repeal) and in force at the date of that repeal continues to apply on and after that repeal.". Division 7--Victorian Civil and Administrative Tribunal Act 1998 56 Secrecy 20 See: Act No. In section 34(6) of the Victorian Civil and 53/1998. Administrative Tribunal Act 1998, after Reprint No. 8 "private" insert "or that is the subject of a closed as at 24 January court order under Part 5 of the Open Courts Act 2013 2013". and amending Act Nos 11/2010, 83/2012, 5/2013 and 19/2013. LawToday: www. legislation. vic.gov.au 571222B.I-26/6/2013 34 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 8--Consequential Amendments s. 57 57 Method of conducting hearings At the foot of section 100 of the Victorian Civil and Administrative Tribunal Act 1998 insert-- "Note 5 The Open Courts Act 2013 governs suppression orders and closed tribunal orders generally in relation to the Tribunal.". 58 Hearings to be public unless otherwise ordered Section 101 of the Victorian Civil and Administrative Tribunal Act 1998 is repealed. 10 59 Consequential amendments to sections 144, 145 and 146 In sections 144(5)(b), 145(2) and 146(4)(c) of the Victorian Civil and Administrative Tribunal Act 1998, for "section 101" substitute "Part 5 of 15 the Open Courts Act 2013". 60 New section 166 inserted After section 165 of the Victorian Civil and Administrative Tribunal Act 1998 insert-- "166 Savings--Open Courts Act 2013 20 (1) Despite the repeal of section 101 by the Open Courts Act 2013, section 101 (as in force immediately before its repeal) continues to apply on and after that repeal in relation to a proceeding commenced to be 25 heard (but not determined) by the Tribunal before that repeal. (2) Despite the repeal of section 101 by the Open Courts Act 2013, an order made under section 101 (as in force immediately 30 before its repeal) and in force at the date of that repeal continues to apply on and after that repeal.". 571222B.I-26/6/2013 35 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 8--Consequential Amendments s. 61 61 Variations from Parts 3 and 4 for various proceedings Clause 11AH of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 is 5 repealed. 62 Subject matter for rules At the end of Schedule 2 to the Victorian Civil and Administrative Tribunal Act 1998 insert-- "Procedure under the Open Courts Act 2013.". 10 Division 8--Wrongs Act 1958 63 Heading to Part I amended See: In the heading to Part I of the Wrongs Act 1958, Act No. 6420. after "CRIMINAL DEFAMATION" insert Reprint No.11 "AND THE REPORTING OF COURT as at 15 7 November PROCEEDINGS". 2012 and amending Act No. 20/2012. LawToday: www. legislation. vic.gov.au 64 No action maintainable against a person for faithfully reporting At the end of section 4 of the Wrongs Act 1958 insert-- 20 "(2) Subsection (1) does not limit or otherwise affect-- (a) the operation of a provision made by or under any other Act that prohibits or restricts the publication or disclosure of 25 information; or 571222B.I-26/6/2013 36 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Part 8--Consequential Amendments s. 65 (b) the Supreme Court's inherent jurisdiction to restrict the publication or disclosure of information.". Division 9--Repeal of amending provisions 5 65 Repeal of Part 8 This Part is repealed on 1 December 2014. Note The repeal of this Part does not affect the continuing operation of the amendments made by it (see section 15(1) of the 10 Interpretation of Legislation Act 1984). 571222B.I-26/6/2013 37 BILL LA INTRODUCTION 26/6/2013
Open Courts Bill 2013 Endnotes ENDNOTES By Authority. Government Printer for the State of Victoria. 571222B.I-26/6/2013 38 BILL LA INTRODUCTION 26/6/2013