Wednesday, 20 March 2019
Bills
Open Courts and Other Acts Amendment Bill 2019
Bills
Open Courts and Other Acts Amendment Bill 2019
Second reading
Debate resumed.
Mr McGUIRE (Broadmeadows) (16:02): I wonder if I should call for an extension. The new member seemed to be in full flight, making a considerable contribution to the matter of public importance. But I will stick with protocol and continue on this bill.
Just to reframe the argument: rather than an ad hoc approach to suppression orders, courts will now be required to give reasons outlining the grounds on which a suppression order was made, its duration and its scope. This was a critical proposition that particularly the media were concerned about, and the bill attempts to get the balance right there. But the presumption should always be in favour of open justice. That is why these amendments are needed.
The law will empower victims and empower the community, and that is another initiative because that has been important in a lot of cases particularly around violence towards women, particularly around sexual abuse. This is something that has evolved now, and the victims of sexual and family violence offences will be empowered to share their stories under a new process enabling courts to make orders lifting bans on publishing a victim’s identity.
The bill also makes an important change to the existing laws preventing the publication of prior youth convictions. What we are also doing is ensuring that patterns of behaviour are easily identified by amending the law around prior youth convictions to allow the County and Supreme courts to publish relevant convictions in the sentencing remarks of adult offenders if the youth convictions are part of an entrenched pattern of offending. That is the key point—that it is an entrenched pattern. These changes build on amendments introduced by the government last year which explicitly excluded victims from non-publication provisions applying to Children’s Court proceedings as these relate to disclosure of their own identities.
This bill was introduced in the last Parliament, and it is now looking to be enforced. I do not think I need to go into why it did not get through in that last Parliament—the arguments have been well ventilated. But just in summing up the key points: what it will do is get the balance right. We had an outbreak of suppression orders, and in the media in particular, as I know from my own experience in an earlier phase of my career, it is difficult to know what is being suppressed and where you can go to establish that. There is a mechanism for addressing the issue, which I think is critical for certainty. The bill also looks at how we address this as best we can now, looking at these issues.
It is also improving judges’ understanding of suppression orders with new programs and materials developed by the Judicial College of Victoria, and that refers to the fact that the Vincent review found that too many judges and magistrates had limited understanding of their responsibilities under the Open Courts Act 2013. You could tell where the cultural blind spot had occurred. This is a way of addressing that.
Another proposal is creating the central, publicly accessible register, as I have described, so that you know where suppression orders are and where they have been made by courts and tribunals—you know where to go get access. I think this is an important initiative. Having a central databank will enable journalists and other people who need to know to ascertain whether there is a suppression order in place or not so that they can comply with the law.
Another recommendation is that all suppression orders be treated as interim orders for the first five days so that interested parties, including the media, can make submissions against the need for the order. That means they can be contested and arguments can be raised again in court, and I think that is good for transparency and accountability.
I think we have now seen a range of different approaches arising from the work of Frank Vincent and his recommendations. The government is adopting those and now putting this bill through the house as a way of addressing as best we can the need to rebalance this issue and to allow greater access to what happens within the courts. To be able to deliver that is important.
We have to address the issue of the internet, digital technology, social media and whether they make suppression orders all but irrelevant anyway. This is the modern era that we live in. We have seen in a high-profile case recently—because it is on appeal I will not go into the detail, but I want to make this point from this perspective—that even though it was suppressed here it was reported overseas, and with the echo chamber of the digital media the results were known and understood here. So this will continue to be a work in progress, but I think that this is a suite of admirable reforms that will go a long way to providing greater transparency, and I commend this bill to the house.
Mr TAK (Clarinda) (16:09): I am delighted to rise today to speak on the Open Courts and Other Acts Amendment Bill 2019. This bill will require that suppression orders and closed court orders only be used when necessary, such as where publication of information would be unfair or would risk harming victims or other parties. Under the amendments a court will have to give reasons for making a suppression order, outlining the basis on which it is made, its duration and the scope of information it covers. This is a positive development, and I am happy to see this bill before the Parliament today because transparency and public scrutiny are fundamentally important to our justice system.
An open and effective judiciary is critical to democracy, and in this day and age it is more important than ever. The world is becoming a more complex place. Crime is also becoming a more complex issue, and it is changing and evolving. Organised crime and crimes such as terrorism are really complex issues, and as such the principle of open justice has never been more important.
At this point I would like to take this opportunity to share my condolences with the families of all those affected by the terror attack in Christchurch last Friday. I extend my solidarity to all. I was proud to attend the Indonesian Muslim Community of Victoria Masjid Westall mosque on Sunday. One of the quotes that really struck me at the mosque was:
God created different tribes, complete with different colours and languages. The purpose is not to hate each other but to learn from each other.
I think this is a really powerful message, a message that reminds us all that diversity is our strength.
In these changing times I am very happy to see this bill here today. The bill will respond either in full or in part to seven of the remaining legislative recommendations of the Open Courts Act Review. It was in 2016 that the government asked a former Court of Appeal and Supreme Court justice, the Honourable Frank Vincent, to conduct a review of the Open Courts Act 2013 and other Victorian legislation which prohibits or restricts the publication of information. That review was asked to consider whether the act is striking the right balance between the need for open and transparent justice and the need to protect the legitimate interests of victims, witnesses and accused persons and to preserve the proper administration of justice. It was a thorough and comprehensive review process that consulted and received submissions from various stakeholders including the courts, the Director of Public Prosecutions, the Victorian Bar, police, media and victims of crime.
The review found that the courts and tribunals made relatively few suppression orders considering their overall case load but that further work was needed to ensure that future orders are clearer and made only when necessary. In total there were 18 recommendations to ensure that suppression orders are only made when absolutely necessary. The government has supported 17 of the 18 recommendations; one recommendation is subject to further consideration.
One recommendation relating to the disclosure of the identities of adult victims in Children’s Court proceedings was implemented by the government in the Justice Legislation Amendment (Victims) Act 2018, which passed the Parliament in February last year. The remainder of the legislative applications are being addressed in two stages. The first stage is the bill here today, which is identical to the Open Courts and Other Acts Amendment Bill 2018 which lapsed with the conclusion of the last Parliament.
Some of the key changes under the bill include amendments to the purposes of the Open Courts Act 2013 to make clear the value of open justice and to emphasise the importance of transparency in our legal system; preventing suppression orders being made under the Open Courts Act when suppression can be ordered under other legislation; importantly, requiring courts and tribunals to give reasons for making suppression orders under the Open Courts Act; enabling suppression orders to continue after an appeal has been filed unless varied or revoked by the appellate court; and enabling adult victims of sexual and family violence offences to speak more openly about their experiences. The bill will also amend section 534 of the Children, Youth and Families Act 2005 to narrow the scope of particulars deemed likely to lead to the identification of a person. The amendment will ensure that the prohibition against publishing the identity of a young offender applies as narrowly as possible to enable free reporting of court proceedings. This builds on the recommendations of the review.
I am sure many of us took advantage of the live streaming of the sentencing in a high-profile case recently. That is one example of how initiatives can facilitate the public understanding of court proceedings and sentencing. This is quite significant for my constituents in Clarinda. It is a very diverse electorate. More than half of my constituents come from culturally and linguistically diverse backgrounds. Individuals from CALD backgrounds can experience significant barriers to accessing justice as a result of their circumstances and past experiences. One example that I encountered several times during my work as a suburban legal practitioner relates to the presumption of knowledge of the law. In the Victorian judicial system knowledge of the law is presumed and ignorance of the law is no excuse. This is often fundamentally different in the countries of origin of many of my constituents. The same can be said of court processes and the sentencing process. This confusion can breed mistrust of the legal system in migrant communities, so initiatives that help to open courts and help to foster a dialogue also work to enhance public confidence in the justice system and allow for clearer understanding and enforcement. This is an issue for many of my constituents, and I am looking forward to the potential benefits of these changes.
In addition to the proposed changes, the government last year asked the Victorian Law Reform Commission to review contempt-of-court laws and enforcement of suppression orders. I am looking forward to the commission’s report to the government, which is due on 31 December 2019. The government has also committed to progressing all supported legislative recommendations of the review. The government is giving further consideration to recommendation 18 and will be consulting with stakeholders. Four recommendations are non-legislative. One has been implemented, as I mentioned, and the remaining three are being progressed independently with a view to implementing them as soon as possible. So this is a comprehensive and holistic approach to ensure the effective and transparent operation of our justice system. I commend the bill to the house.