Wednesday, 20 March 2019

 Mr SOUTHWICK (Caulfield) (11:57): I rise to speak on the Open Courts and Other Acts Amendment Bill 2019. Could I say at the outset that the opposition will not be opposing this bill. We believe that the sentiments around this bill are very, very important. It is important to ensure that we protect the rights of victims. We certainly make victims an absolute priority when it comes to law and order, which has not been the case in recent years.

The bill that is in front of us today has two main purposes: the first is to amend the Open Courts Act 2013 in relation to the prohibition and restriction of the publication of information in court and tribunal proceedings, and the second is to make related amendments to the Children, Youth and Families Act 2005 and the Judicial Proceedings Reports Act 1958. The bill implements, in full or in part, seven of the 18 recommendations by the Honourable Frank Vincent in his 2017 report, Open Courts Act Review. This bill is pretty much the same as what we saw introduced just before the end of the last Parliament. There has been an intent to try and strengthen this act for some time, and the opposition has been calling for more transparency and more victim support. Unfortunately what we have seen in Victoria is that suppression orders have been not the exception but rather the norm. Victoria is currently the suppression order capital of Australia. We are seeing more suppression orders in Victoria than in any other state. A number of victim support groups and other key stakeholders in the community have been calling for us to ensure that we do not just have a standard tick-and-flick in providing suppression orders for court proceedings but that there is a proper review and that suppression orders are only granted when they are absolutely required. That is particularly relevant with the increase in serious crimes that we have seen—serious assaults, serious sexual offences and murders. These are the kinds of things that we need to ensure that we provide victim support for, but unfortunately what we are doing is ensuring that the community is not hearing firsthand what is happening, so we have not been able to ensure that we have proper transparency in this process.

While it was intended that the Open Courts Act 2013 would reduce the disproportionately high number of suppression orders made, unfortunately that has not been the case. The second-reading speech for the Open Courts Bill 2013 by former Attorney-General Robert Clark referenced this, and there was certainly an intent back in 2013 to look at it. A number of reforms have been made since then to try and improve this situation, but unfortunately they have led to an increase in suppression orders.

In 2017 Victoria represented 52 per cent of the national total of suppression orders made. That is huge—over half of the suppression orders made in Australia came from Victoria. There is something clearly wrong when that number of suppression orders are being made in our courts. As I said, Victorian suppression orders make up more than half of the suppression orders that are made in the country. We need to reduce that. We should be leading from the front, not being well and truly back of the pack, when it comes to the area of transparency and victims rights. Victims absolutely should be treated as a priority. That is certainly what we on this side of the house believe, and that is why we will not be opposing this bill.

The absurdity of the current state of suppression orders is demonstrated by recent events, particularly two recent cases. The first one was the George Pell case. Local media were unable to disclose details of last December’s court decision of guilty until last week, while international and internet-based news sources were able to report it freely. That shows a complete inconsistency. You cannot prevent local media from televising and reporting live on information while internet-based reporters and the international media are allowed to do so. I will go into a bit more detail later about that situation.

We are also seeing this with regard to Lawyer X, who is also known as informer 3838. Suppression orders have been in place in this case for a number of years, even though Lawyer X outed herself back in 2009 and her identity has been widely known since. Again there is a huge inconsistency here. The courts have not delivered the objectives of the 2013 act. Many people have noted that it has not been implemented in accordance with Parliament’s intention. We have actually seen that stated in the courts themselves. There is an intent to reduce the number of suppression orders. The courts have basically been granting them willy-nilly, as is evidenced by the number of suppression orders that I have outlined.

While the reforms in this bill are welcome, they do not go as far as the measures previously proposed by the coalition, which included publishing the details of serious violent youth offenders. This is a very important point that we want to put on the record today. We are talking about serious violent youth offenders. If you look at the crime statistics—and more crime statistics will come out tomorrow—those who are committing the most serious and violent crimes used to be those in their 20s and 30s, but unfortunately now we are seeing those crimes being committed more by 15 to 19-year-olds. That is who is committing a lot of these serious violent crimes. Therefore what we are saying, particularly with regard to these types of horrific offences that some of these people are committing at 16 or 17 years of age, is that this information should be made public, because what we want to be able to show is that there is zero tolerance when somebody has a deliberate intent to murder, to assault or to harm an individual, as some of these individuals do. We have spoken about how we treat violent youth offenders in terms of how we deal with them in the prison system. This is very, very similar. These people are committing the kinds of crimes we see 18-year-olds commit. When you have got a 16 or 17-year-old doing the same it is very, very important that the public is aware of them and, particularly even from an education perspective, that we send a very strong signal to the community that this will not be accepted in our community, that we have zero tolerance and that if you do the crime, ultimately you do the time. It is also important that we are able to hear an informed decision by judges and the courts as to why the sentencing has happened and also hear some details about it as part of that process.

In terms of some of the details, we have seen that the basic premise of our legal system in regard to reporting of court decisions is a presumption of openness and transparency, and that is really where we should be starting. As I said at the beginning, suppression orders should be the exception and not the norm, but what we are experiencing in Victoria is the reverse. One can understand the need for suppression orders to prevent the publication of court proceedings and specific details when it comes to the likes of child sex offences, family violence or other serious offences where the identity of witnesses needs to be protected. As I said before, witnesses and victims certainly should be our priority in terms of protecting them. Therefore we absolutely understand that when it comes to suppression orders for protecting victims they should certainly be in place, but this goes well and truly beyond that.

The reforms recommended by the Honourable Frank Vincent in his 2017 report were developed to try to find the right balance between fair and transparent court hearings while also preserving the privacy rights of individuals and the public’s right to know about what is actually happening. It is important that suppression orders are used properly in the limited circumstances where they are necessary. I absolutely reinforce that point: in the limited times they are necessary. Not as almost a ‘Yep, we’ll grab this’ tick and flick as we have been seeing in 52 per cent of cases, but certainly in situations where they are used only sparingly when protecting the rights of victims and witnesses.

Frank Vincent’s review made a number of recommendations and I just want to cover a few of these. Firstly, it looked at the:

… fundamental importance that our system of justice must be open to public scrutiny and assessment to the maximum extent possible. Orders suppressing the dissemination of information should be approached as necessary exceptions to the transparent functioning of our courts and tribunals, required in the particular circumstances of the cases involved.

b.   Second, any order for suppression must be directed solely to the advancement of the interests of justice and be supported by adequate information.

c.   Third, each ground upon which an order has been made should not only be identified but separately justified.

d.   Fourth, an order should not be made if the objective to which it is directed could be achieved by other means, such as the use of pseudonyms or … non-identifying descriptions of persons or events.

e.   Fifth, the terms of an order for suppression should be clear and confined in both scope and duration to the minimum required for the purposes for which it has been imposed.

f.   Sixth, reasonably available and inexpensive opportunities should exist to challenge the making of an order, its scope and duration or, once made, to seek its review.

It is very, very important to give people the opportunity to challenge a suppression order if it has been granted without proper detail.

It should be noted that Frank Vincent made the observation that the number of suppression orders granted is proportionately relatively small compared to the total case load of Victorian courts and tribunals. The report states:

To a substantial degree, the workings of Victorian courts and tribunals are compliant with the fundamental need for open justice. The processes of Victorian courts and tribunals and the reasons for their decisions are overwhelmingly open to public scrutiny, reflected by the miniscule number of cases in which suppression orders have been made as a proportion of the overall caseload of courts and tribunals.

Data was collected as part of the review from January 2014 to December 2016. During that time the courts made 1594 orders with the effect of suppressing information under various sources of power and 1279 orders were made under the Open Courts Act. These figures show that the numbers are huge, and certainly open justice does not appear to prevail in Victoria despite concerns about the number of suppression orders.

The bill we are referring to in full or part deals with recommendations 1, 2, 3, 6, 9, 13 and 15. I will go through some of the details. Recommendation 1, which was supported by the government, is:

That sections 4 and 28 of the Open Courts Act … be amended to make clear that orders made under the Act constitute exceptions, based on necessity in the circumstances, to the operation of the principle of open justice rather than it being a matter of the operation of a presumption in favour of transparency.

That is the first recommendation that is now being enacted in the bill.

Recommendation 2 is:

That the Open Courts Act be amended to include a new preamble emphasising the fundamental importance of transparency in our legal system.

Recommendation 3 is:

That the Open Courts Act be amended to restrict the power to make suppression orders to situations not otherwise encompassed by statutory provisions prohibiting or limiting publication.

Recommendation 6 is:

That, in each matter in which a suppression order is made, the court or tribunal be required to prepare a written statement of its reasons for the order, including the justification for its terms and duration. Save for restrictions and redactions reasonably required to effect the purpose and efficacy of the order, these reasons should be publicly available.

This is very important because, again, we are not just allowing the courts to provide a suppression order without then offering up the detail as to why. Recommendation 6 is important because it does deal with the requirement to provide good reason and justification as to why the suppression order would be given.

Recommendation 9 is:

That, in the event of an appeal being lodged against the outcome of proceedings in which a suppression order was made, the order would continue in effect until the determination of the appeal or it is discharged or varied upon application to the court and tribunal hearing the appeal.

Recommendation 13 is:

That consideration be given to statutory reform to enable the discretionary disclosure of the relevant convictions of juvenile offenders in cases of their continuing and entrenched propensity to engage in serious offending as adults.

Certainly some of my opening remarks did deal with that, and we think that the bill does not go far enough in dealing with particularly some youth violent crime.

Recommendation 15 is:

That adult victims of sexual assault or family violence or who as children have been so subjected should, on the conviction of the offender, be able to opt for disclosure of their identity. In situations where there is more than one victim, the court would be required to refuse an application where disclosure of the identity of a victim or perpetrator would result in that of a non-consenting victim …

That is basically where these recommendations are in process and why part of those recommendations should be in place. Frank Vincent’s review was a very comprehensive review, and it certainly does not surprise me, because his work is excellent, as we know. We know what he has done on family violence and certainly on dealing with sexual assault. That royal commission led the way for what was then further developed in the federal royal commission, and a lot of legislation has been developed from the work that Justice Vincent did with that royal commission. So, as I say, it does not surprise me, what is being done here in the work of this review.

I will look at a few of these in a bit more detail. We have seen a lot of calls for sex offenders being named and shamed. There was an article in the Age on 9 January 2019, which says:

Sexual assault victims would have more power to “name and shame” their abusers under a legal shake-up designed to lift a veil of secrecy that has helped shield some of Victoria’s worst sex offenders.

New laws to be introduced … would allow survivors to apply to the courts to identify themselves—in turn allowing greater disclosure of their perpetrators—and would also restrict suppression orders that conceal the identities of certain sex criminals.

This really goes to the core of a lot of these changes, which is again what I said in my opening remarks—that this should be about victims first and foremost. You just see time and time again the situation where it almost feels as though the right of the offender takes priority over the right of the victim. We can certainly talk about lots of cases where that certainly has been the case. Victim impact statements and the like are very, very important, and there have been important changes to allow victims to have their time to talk and provide very important information as to what the results of some of these horrendous crimes have been. Again this is a really important element that has just been sitting for far too long on the shelf, and victims have not been made a priority for some time under this government. It has been far too long.

We accept and we welcome the fact that these changes are taking place. They do not go far enough, and they should have happened a long time ago. If you think about the hundreds of cases that have arisen since this bill first came into play—we started debating this bill in 2018, I believe—even over that time, if this had been in place, for how many cases could we have had information out in the public realm? But we have not had that opportunity.

As I say, this was the intent of that article that I was referring to. It talks about requiring the courts to prepare these statements and to treat all suppression orders as interim orders for the first five days so that the media, victims and interested parties can make submissions against them. That is what I said in terms of one of those earlier recommendations. Interim orders—if they are made as orders—do give the opportunity to those parties to, within a five-day period, be able to object and present a very good case in saying, ‘No, that information should not be suppressed; the details of the offender should not be suppressed, and for these reasons we should be making that information available’.

This is about openness and transparency, and it should be. That is what our role in Parliament should be all about—openness and transparency—when it comes to these situations, and I could not think of a better place to start than in justice and law and order. It is a very important area. As I say, when you are dealing with people’s lives, when you are dealing with a situation that is often life and death—and unfortunately in many cases death or tragic harm to an individual in the most sensitive ways—we need to show compassion. We need to show that we are on the side of the victim and we need to show that we have made all of the elements available to them. That is very important, and I understand that there are situations in which some trialling is being done by the government in terms of evidence that is being given at the moment by offenders via videoconference and not live into the courts. That is contentious itself, and it is certainly a part of this too more broadly, because many of the victims that I have spoken to have said to me they want nothing more than to look the person in the eye that has committed that violent crime and to face them in court.

We saw that tragedy just recently in Christchurch when that horrific, shocking individual was taken to court on that first hearing. Some of the families of the victims wanted to be there to look that person in the eye and to see their face. That is the right of the individual, that should be the right of every victim and that should be a priority, and that is why we need to always look at making this a priority. That is why we need transparency in our courts. It is why we need to ensure that these suppression orders do not become the norm but are the exception and that if we are going to suppress information out of court, there needs to be a very, very good reason why we are keeping that information from the victims, because at the end of the day that is who we should be focused on.

 Mr PEARSON (Essendon) (12:23): I am delighted to make a contribution on the Open Courts and Other Acts Amendment Bill 2019, I listened to the member for Caulfield’s contribution, and there is a bit to unpack in that. I will endeavour to address some of the issues that the member raised.

The first point I will make—and in doing this I am not trying to be partisan, I am merely trying to make an observation—is that in the 58th Parliament the other place contained 14 members of the government out of a total of 40 members. This place can pass as much legislation as it wishes, but in order for it to enter the statute books it must pass the other place. So we brought in this bill in the hope and with the expectation that it would pass, and it did not pass. I do not profess to read Hansard from the other place extensively. I am sure that there were a wide variety of reasons why that might have been the case, but it was certainly a challenge to get the government’s legislative agenda through the other place in the 58th Parliament, and that caused some challenges and issues. So those of us on this side of the house would have liked this bill to already have been on the statute books and to already be in operation, but it is of course a challenge when the government can only field 14 out of 40 members. The crossbench had 10 members in the previous Parliament and there were 16 members of the opposition.

The member for Caulfield talked about 16 and 17-year-old children who commit an offence, and he made the case that if it is a particularly serious crime—and the member talked about murder, rape and serious harm—that should be made publicly available. What this legislation seeks to ensure is that if a juvenile has committed an offence that is of a serious nature and they go on as an adult to commit a similar serious offence, there is the capacity under this legislation for judges to use the serious juvenile offences in their sentencing remarks. There is that capacity to try to do that and to make that publicly available, so I think that can deal with and address some of the concerns raised by the member for Caulfield.

I am very mindful, though, that life is complex and individuals are complex, and there are individuals who at 16 or 17 may do something very bad but who have got the opportunity for redemption. It is not like in the 1970s or the 1980s where if you acted up, you played up, you fronted the Ringwood Magistrates Court—out where I grew up—or the Broadmeadows Magistrates Court or the Children’s Court and you were convicted of an offence. In this day and age in the digital world, we have got a digital identity that follows us through. We have got to be really careful, in terms of younger offenders, that we try to separate the ones who are on the pathway to becoming frequent flyers in the corrections system and those who just did something stupid when they were a kid and who are entitled to a second chance and indeed have the opportunity, if they are given appropriate training and appropriate qualifications, to go on and lead meaningful, fulfilled lives, notwithstanding their interaction with the juvenile justice system.

I take the member for Caulfield at his word in terms of the sincerity of his comments that if these are serious offences and they are 16 or 17, then the victims have the right to know or the offenders’ identities should be revealed, but I would just question that. If you turn around and you make that a blanket approach, then you inadvertently might capture and sweep up more individuals who may have had the opportunity to lead a full and meaningful life than would otherwise be the case. So it is a tight balancing act.

The bill before the house is about trying to look at improving the quality and the efficacy of the justice system, and I think that over the passage of time as legislators we have got a requirement on us to make sure that we continue to look at making the improvements that are required to modernise and update and to make sure that the statute books reflect the expectations of our community, because our community has changed and it is different. It is different now to what it was, and in years to come it will be different to what it is today.

To find that you have got a justice system that is nimble and able to respond to the challenges that we face I think is really important. I do agree with the member for Caulfield. I quote from the second-reading speech a statement by Frank Vincent, who said:

An increasing number of victims reject the absurd notion that they have been in any way diminished by the commission of criminal acts committed against them by another and are prepared to have their identities disclosed. There seems to be no good reason why a person who adopts this view, or an adult who has previously suffered abuse as a child, and makes an informed decision to do so should not be entitled to opt for disclosure …

I think that is fair and reasonable.

As I said, this day and age is different to 40 years ago when I started school. I started primary school in 1978. I had not turned five. I do not regard myself as a victim. I never have. But when I started at school, I spoke back to a teacher and was physically assaulted. I might have just turned five I think. It just had a huge impact upon my schooling and my ability to function as a young person. It was extremely challenging to go through.

At the time I never disclosed to anyone what happened to me. I do not think that, even if I did, in those days it would have been regarded as assault. It would certainly be regarded as assault now. What I do know is that it had a huge impact upon me. It was a really difficult time to go through. The point is that as an adult now I can talk about what happened, and I think that as an adult you do have the benefit of the lived experience, you can look back and reflect on your life and you can see things in a broader context than would otherwise be the case. You have got the capacity to make some calls about the way in which you were treated, you can put it in some sort of context and you approach a sense of understanding with yourself and who you are, whereas otherwise that might not be the case.

So I think that the notion that you have just got a blanket approach to the way in which victims should be treated is flawed. And in saying this I would not categorise what happened to me with some of the instances of assault that others have experienced, so that is why I am really at pains to point out I do not categorise myself as a victim, but I do have the ability as an adult to reflect upon my lived experience and I can make an informed choice as an adult as to how I wish to engage with and discuss and approach that experience. I think that the rights of the individual and the freedoms that the individual holds as an adult are really important. So a blanket approach where we just make an assumption that because something difficult or traumatic happened to you as a child you should automatically be protected I think is a flawed argument.

It is a very good piece of legislation. It should have been on the statute books some time ago, but it is not. Those from the other place can answer why this could not be brought forward and dealt with and put on the statute books earlier, but it will be dealt with. It is being dealt with now by this place and it will be dealt with by the other place in due course. I think it is important that it does get onto the statute books at the earliest opportunity and that we look at trying to modernise and reform our justice system to reflect contemporary practice and to reflect the world we live in. As we have indicated, the world of today is very different to what it was back in the 1970s and 1980s when I was growing up. There is a need and a requirement to make sure that we continue to use our best endeavours to bring forward the best quality legislation that we can to ensure that it reflects the aspirations of our community.

With those brief notes I commend the bill to the house.

 Mr T BULL (Gippsland East) (12:31): I rise to make a contribution on the Open Courts and Other Acts Amendment Bill 2019 and reinforce our not opposed position. I can certainly sympathise with the previous speaker about some of the actions that went on at school. We had a size 12 sandshoe, member for Essendon, of which I was on the receiving end a few times. I will not say I did not deserve it, but it leaves a mark on you for a long time afterwards.

The basic premise of our legal system with regard to the reporting of court decisions and proceedings should be an initial presumption of openness and transparency. The member for Essendon spoke about ensuring that we do not have a blanket approach to this. I do not think any member of the chamber is suggesting that we have a blanket approach, but I think that is a very good starting point when we are taking into account these considerations. As the member for Caulfield pointed out throughout his speech, suppression orders should be the exception, not the norm.

It is worth noting that judges and magistrates have a tough gig in our legal system. They certainly do have a tough job. They have to constantly make decisions and, as has been brought up by previous speakers, they need to make decisions that do not tarnish for life someone who has perhaps been a bit silly on one occasion, and have that balanced against those who commit more serious offences and are perhaps a concern to the community in which they are living or in many cases moving to.

Over time in Victoria there has certainly been a tendency for increased applications for suppression orders in order to protect the identity of victims. I would say that in a lot of those cases it perhaps is questionable whether that should have been applied to the level that it has been in the past. One can understand the need for suppression orders, and absolutely we need suppression orders within our system to prevent the publication of court proceedings and specific details in cases where we might have child sex offences, family violence or other serious offences where the identity of either the victims or even the witnesses who have been involved in those cases do legitimately and absolutely need to be protected. But it is true that the rate of suppression orders being granted in Victoria has increased disproportionately over a period of time in comparison to other jurisdictions around Australia. It is worth noting that in 2017 Victoria represented 52 per cent of the national total of suppression orders. That is a figure that is exceptionally high across the Australian jurisdictions.

In 2016 the government asked the honourable Frank Vincent to conduct the Open Courts Act Review into suppression orders. Mr Vincent delivered his final report in September 2017 with 18 recommendations. As we have heard, this bill is the first step in implementing the legislative recommendations of that review. They were developed around striking the right balance, and previous speakers have spoken at length about that. When we are discussing an issue like this and we are making these determinations that will be put into place as law in Victoria, it is all about striking the right balance. Invariably in the communities that we represent we will have different viewpoints on what the right balance is, but I would certainly agree with the two previous speakers in relation to this being good legislation. Having perused its content I think it takes a significant step to bring us closer in my view to what that right balance would be.

It is critically important that suppression orders be used properly and in the relatively limited circumstances where they are necessary. I go back to my opening comment that our legal system with regard to reporting court decisions should have a presumption of openness and transparency before anything else is brought into line with that. It should be noted that Mr Vincent made the observation that the number of suppression orders granted is proportionately relatively small when compared to the case load of Victorian courts. So whilst we see on the one hand that a couple of years ago more than 50 per cent of suppression orders came from Victoria, when we look at the overall number of cases in Victoria the amount of suppression orders, it could be argued, is relatively low. The comment mentioned in the report is that:

To a substantial degree, the workings of Victorian courts and tribunals are compliant with the fundamental need for open justice. The processes of Victorian courts and tribunals and the reasons for their decisions are overwhelmingly open to public scrutiny, reflected by the minuscule number of cases in which suppression orders have been made as a proportion of the overall caseload of courts and tribunals.

There is an argument back the other way, but I also think that the recommendations that have been put forth by Mr Vincent do strike the right balance. I guess the point he is trying to make there is that it has not been extraordinarily over the top in relation to the number of suppression orders that have been granted, while acknowledging that some changes do need to be made.

The data collected in the course of the review reveals that in the period between 1 January 2014 and 31 December 2016 Victorian courts and tribunals made 1594 orders, with the effect of suppressing information under various sources of power, with 1279 orders made under the Open Courts Act 2013. This bill implements only some of the recommendations of the Vincent review: recommendations 1, 2, 3, 6, 9, 13 and 15. And of course it amends the Open Courts Act in relation to the prohibition and restriction of the publication of information in court and tribunal proceedings.

It also makes related amendments to the Children, Youth and Families Act 2005 and the Judicial Proceedings Reports Act 1958. The overarching thrust of this is that it generally emphasises the presumption and importance of the principle of open justice and the free disclosure of information when assessing whether to grant suppression orders. I think one of the key points of that and the Vincent findings is that the bill now requires the courts and tribunals to provide a statement of reasons for suppression orders. I think one of the criticisms of the past is ‘We’ll grant a suppression order because the option is there’, and it provided perhaps a level of coverage for those who were granting those suppression orders. I think the simple fact that those making these decisions have to provide a statement of reasons for suppression orders is one key element in this legislation that will go a long way to getting those that are making these decisions to think about whether the reasons they are doing this are justifiable and are in line with community expectations.

The bill enables the courts to make orders to not utilise suppression orders in cases where the victims of sexual offences and family violence post-conviction do not necessarily wish to be subjects of suppression orders. We may have cases where some victims wish to tell their story or wish to have their story known to the wider public for purposes of goodwill—to warn others, to educate others of the risks and the concerns of what occurred to them. I think that that is also an extremely positive step. There are also amendments to the Children, Youth and Families Act 2005 and the Judicial Proceedings Reports Act 1958. As has been mentioned, this is largely the same bill that was introduced into Parliament in August 2018, with one of the small differences being the introductory dates.

Just before I finish, there is one point I would like to make and it relates to Justice Vincent’s findings where he talks about having a unifying law across jurisdictions. I think a lot of the differences that we have seen around jurisdictions in the nation could certainly be rectified by having a harmonisation of the law across all Australian states and territories. Now, that will require action from the Council of Attorneys-General—and I believe it will be discussed at that level—but I think that that would be a very positive step in getting some consistency on this issue nationwide.

 Mr RICHARDSON (Mordialloc) (12:41): It is great to rise and speak on the Open Courts and Other Acts Amendment Bill 2019, which makes an important number of reforms that go to the heart of the separation of powers in our Westminster system and of open and accountable courts. It requires that suppression orders have far more reasoning and are underpinned by reasoned judgements, striking the balance between excluding information from the public domain and those important hallmarks and appropriate reasons why suppression orders are put forward.

I will be followed by the member for Broadmeadows, who I am sure will have a very interesting take on how the media plays into that, and with my novice experience in that space I want to touch on a few of those points. Thirty years ago, or even longer, if you wanted to read an international paper, you would have to hope like crazy that your local newsagent might just stock a New York Times or a Washington Post or a paper from the UK. My father-in-law still goes down to get the UK paper as it comes through—it is a few days behind but he is not on social media. But the changing landscape of media means within seconds you can find out from international news sources various things that are happening in the public domain in our court system.

A recent judgement that was substantial to Catholicism really put that at the forefront. Everyone knew what that judgement was and what the issues were except Australian media, which was not able to report it. Across social media—across Twitter, Facebook and other platforms—the nature and the information of the judgement was already well known. It just shows the difficulty that we have with suppression orders. Also, just as with the Facebook live streaming in instances that we have seen and the critical role that social media platforms play, there is a real difficulty in holding big companies who are on these social media platforms to account on suppression orders. It underpins a lot of the reasons we need to modernise our approach to suppression orders, and I think the media has such an important role to play.

But on the other side of that balance is the fact that—we see this with politics, we see this with public figures, we see this in high-profile cases—when you are reported as going towards a trial or a hearing or a sentencing, the way it is portrayed on regular occasion in the media means you actually have a situation that is like trial by media and people are guilty before they have even had their time. A hallmark of our system is always ‘innocent until proven guilty’. So it is an interesting and difficult balance, and that was the underpinning of the review by Justice Vincent. Critically of concern about that, and it was reported in the Age, was that Justice Vincent found that 1594 orders were made between 2014 and 2016 and that 22 per cent were blanket bans that failed to say what was being suppressed and 12 per cent did not give any grounds. At a time when access to information is instantaneous, it is a curious thing that the judiciary has gone the other way, towards trying to suppress more without any grounds given. There might have been very reasonable grounds for those suppression orders being put forward, but there should be accountability, they should be audited and they should be up to the high standard of whether that is the case.

What we find is that either people in our system are protected from that scrutiny and the information that is being put forward or what is genuinely in the public interest about high-profile cases or particular matters that each and every Victorian has a right to know about and understand through that process is suppressed. Tragically as well we have circumstances where victims of child sex abuse, victims of abuse more generally and victims of family violence are excluded and prevented in our court system from being able to share their stories when they want to put them forward. Sometimes people, for very good reasons—for safety or for their personal reasons, because it is a very traumatic process, giving evidence and going through that process again—will not want that information to be public, they will not want to share that in an open court and for that to be reported on. Some people make that choice. I think that is through all our communities.

Particularly post the Royal Commission into Family Violence what I found most powerful during a forum that we did with the former Minister for the Prevention of Family Violence, the late Fiona Richardson, and my colleague the member for Carrum were the stories of people, of survivors, who had gone through the bureaucracy, gone through horrific violence. Telling their stories was so powerful. Their courage and their determination to educate, to try to make a better system for us all and also to warn people along the journey were powerful. It was important for our system that they got to have their voices heard. There was no suppression of those voices. That some of those accounts and some of those experiences have been suppressed or restricted I think is inappropriate, and where possible we should be opening that up.

I want to say, though, that our system of democracy, the Westminster system and our separation of powers, is one of the best in the world. While we can always make improvements—particularly with the culture towards suppression orders—we as Victorians and as Australians should be very proud of the system that we have here and the high standard of it. People in all our communities sometimes do not agree with sentences, do not agree with the length of time given. We hear those voices and those opinions, and it is right that those opinions are offered and put forward, but isn’t it great that we live in a system where that debate and that accountability is known and can be tested and can be tested on appeal.

Having studied law through my time at Deakin University, reading voluminous amounts of case law, particularly in the criminal space, I have seen very clearly in long form the reasons for judgements that are put forward—a well-established practice of hundreds of years of common law that is the highest standard of auditing and accountability. I think of other jurisdictions where that suppression is not down to the information that is provided in a court but is suppression of people, suppression of journalism and suppression of the public interest. We are very fortunate in Victoria and across Australia that we have open courts, that we have a higher and greater accountability and transparency and that where it is seen that under the law the judiciary might have erred there is recourse. There is an ability to appeal and there is an ability to challenge. It strengthens our open courts system; it strengthens our system in the public interest and accountability under our system of democracy. I think that is a really critical point to put forward in that balance.

This particular bill before us today acquits in full or in part seven recommendations of Justice Vincent’s review. We will continue with that work, echoing the member for Essendon’s comments about people being able to tell their story and the member for Essendon’s contribution about how important it is for people to share their story but also about how raw it can be for people to share their personal experiences and about the courage that people have in coming forward to our judiciary and our courts. If they are giving up their time and showing that courage, I think they should be heard in public and in full view.

This is a really important piece of legislation. I welcome the fact that the opposition are not opposed to this bill in principle. It is important work, and it will continue our acquitting of some of the other recommendations. I am a big believer in open, accountable and transparent organisations. Our judiciary is not free from that. It holds up the highest standards and it has an important and very vital role to play. I will say, though, that in our culture and our system we have to be careful about the salacious reporting by media. We have to be careful of those who are given a platform, as we have seen recently. Media have to be more accountable in their decisions on how they can report. We see that with particular platforms that media give to various individuals who preach hate and division, and we see that in the reporting of various matters going towards editorialising or putting forward opinions on what should really be very narrow and black-and-white reporting of court proceedings and the like. We have to get to that standard. It is an important role to play. Sometimes we see that maybe the tendency of the judiciary to go towards more suppression has been due to the lack of accountability in opinionated media rather than straight up and down reporting of court cases and court proceedings. This is a very important bill, and I commend it to the house.

 Ms BRITNELL (South-West Coast) (12:51): I rise to make some brief comments on this bill, which I note is the same as the bill that was introduced during the last Parliament. I will keep my comments brief, as much of what I can talk about has already been said very articulately by my colleagues the member for Caulfield and the member for Gippsland East.

This bill is to amend the Open Courts Act 2013 to emphasise the presumption and importance of the principle of open justice, the free disclosure of information and transparent court proceedings. It will require courts and tribunals to provide a statement of reasons for suppression orders. Basically the bill says that suppression orders should be the exception, not the norm. I note that the opposition will not be opposing this bill, but it is reasonable to assume that open justice does mean exactly that—open justice.

During my consultation on this bill I sought comment from a reporter from within my region who has some 20 years experience working in the field of reporting on the courts’ work. I wanted to speak on this bill mainly to put on record the thoughts they have shared with me about the current system and also to take the time to thank them for sharing those experiences with me. The journalist’s first comment when asked about these changes was that the Open Courts Act is one of the most abused pieces of legislation ever written. Whilst I am not making a reflection on the courts or the judiciary, I must admit I found it a little concerning to hear that in 2017 Victoria represented 52 per cent of the national total of suppression orders made and that in media circles Victoria is well known as the suppression state.

It is very clear the objectives of the 2013 act are not being implemented in line with the Parliament’s intention, so these amendments go some way to strengthening open justice principles. However, you do have to question if they actually do go far enough. I note in her second reading the Attorney-General said this is the first step to greater changes which are needed, as seen by the recent publicity around the trial of George Pell. While publication of a guilty verdict was supressed in Australia, the information was readily available on the internet because the news was produced overseas and of course was available in Victoria through social media and online news. While there were valid reasons for supressing the information in that case—so as to not influence a jury in a later trial—local media not being able to publish while online outlets were just demonstrated that there was inconsistency and that the act is not working. I am pleased the Attorney-General has recognised the anomaly around online and international news and the difficulty of enforcing contempt-of-court law cases and suppression orders. I hope the government acts swiftly on this matter as it is one that does need to be addressed I think as a matter of urgency to keep up with the modern, changing society that we now live in. I will, however, again point out that this bill was introduced in the 58th Parliament in August of last year and failed to make its way through the Parliament. You do have to question the government’s priorities on these matters, and we can only hope that the next steps the Attorney-General speaks about in her second-reading speech are much faster in coming before the house.

Back to the feedback I sought for the bill, the journalist that I mentioned earlier says right now it is extremely rare for any notice to be given of suppression orders as per the legislation. The journalist went on to say that on countless occasions they have argued with judges and magistrates about suppression orders. They have outlined how they planned to write the stories and have even offered to show the judges and magistrates drafts, which I am told is not a normal practice for journalists. But still suppression orders were put in place which the journalist said were unnecessary and simply protected the identity of the perpetrator. The journalist said that the changes outlined in the bill would go some way, but only if judges and magistrates apply the law as intended. They point out that up until now that has not actually happened.

There are clear cases where suppression orders are needed and necessary, but I am happy to see these changes that will allow victims of sexual and family violence to be identified in an effort to give them the power to tell their stories. This of course has appropriate restrictions, these being that the person must be aged 18 years, they provide their consent and there is no other reason the information should be suppressed. For some people, being able to take ownership of their story and control how it is told is important and part of the healing process. It can be an important tool in an effort to end the stigma, particularly around family violence, and help drive cultural change.

All in all these changes are a good first step. They aim to hold offenders publicly accountable for their crimes. I do hope these changes will see a reduction in the number of suppression orders so Victoria can lose the tag of the suppression state and our justice system can be seen as open and transparent by victims and the general public.

 Mr McGUIRE (Broadmeadows) (12:57): What this bill does is rebalance issues concerning suppression orders. We had a situation in Victoria where the rate of suppression orders became unprecedented. There were almost 1600 suppression orders in three years. One of the key arguments from the media was that insufficient explanation was provided as to why these suppression orders were being put in place and what was actually happening in our court system. The Herald Sun, in an editorial of March last year under the headline ‘Court secrecy must stop’, went to a critical point about balance, and I quote:

In a digital age where information spreads quickly and widely, the reporting of certain information which could prejudice a jury does need to be restricted. But the professional media’s reporting requirements and contempt laws have long-established principles regulating reporting. Suppression orders are often superfluous.

I think this goes to the heart of the matter: the tension between the public’s right to know and what the courts are looking to do to protect critical cases and to make sure that cases in the future are not prejudiced.

The Victorian government engaged the eminent Frank Vincent to conduct an inquiry and to weigh and measure these issues. Frank is a former Supreme Court justice, and I have acknowledged across three parliaments now the length of his work and his distinguished career as a jurist. I also want to acknowledge the balance that he has been able to deliver in the advice he has provided to the Andrews Labor government and this Parliament on this inquiry and also, to go back to the 57th Parliament, all the work that he did with the Betrayal of Trust inquiry and investigation into child sexual abuse, which of course ended with a bipartisan report from this Parliament and with recommendations taken up across three parliaments now. The admissions that were obtained during that investigation also were of significance in the subsequent royal commission into all of those matters. I just want to put on record the debt that I think we owe for having someone of Frank’s long, distinguished knowledge as a key adviser to all concerns right across the political spectrum and both houses in this Parliament and for all that has consequently meant.

Sitting suspended 1.00 p.m. until 2.02 p.m.

Business interrupted under sessional orders.