Thursday, 2 May 2019

Open Courts and Other Acts Amendment Bill 2019

Second reading

Debate resumed on motion of Ms PULFORD:

That the bill be now read a second time.

Mr O’DONOHUE (Eastern Victoria) (14:39): I am pleased to speak on behalf of the opposition in relation to the Open Courts and Other Acts Amendment Bill 2019 and indicate to the chamber that the opposition will not be opposing this bill that comes before us today. The opposition is pleased that indeed it is before us today, because it has now been on the notice paper for some time. These reforms flow from the Vincent report completed by the Honourable Frank Vincent, AO, QC, in September 2017. So we have been waiting for some time for the Vincent report recommendations to be implemented, and I note at the outset that this legislation does not implement all of those, despite the government committing to all but one of the Vincent report recommendations.

Let me say too by way of introduction that the community is lucky to have people like Frank Vincent, so learned and capable, who for governments can navigate the complex public policy questions and legal questions around issues such as suppression orders and transparency in our courts and come to recommendations that try to find that balance that meets community expectations for transparency whilst also giving the courts some limited capacity in some rare circumstances to have a closed court. So I congratulate Mr Vincent for his report. Earlier today I noted the Betrayal of Trust inquiry, and of course Mr Vincent was integral in providing legal advice to that inquiry, a legal minefield as it was. Notwithstanding the extra privileges that Parliament has compared to other normal discourse, with parliamentary privilege and the like, Mr Vincent’s advice to the inquiry committee I understand was invaluable and much, much appreciated.

It would be remiss of me also not to note that this bill, while drafted before the George Pell trial and sentencing, is being considered by this place after the George Pell trial and sentencing. The George Pell trial, the verdict and the sentence have generated enormous debate in the community. I make no observation about the decision or the sentence, but I will raise two issues that are relevant to this legislation that flow from that trial. The first is the challenge, in a modern technological environment, of making suppression orders and closing a court or keeping a decision of a court suppressed in an age when Victorian courts do not have the capacity to regulate the internet in other jurisdictions and do not have the ability to stop communication and discussion, particularly online, in overseas jurisdictions about the verdict of a Victorian court. This has made for a fundamentally very different environment now compared to what it was prior to the advent and proliferation of social media and the fact that so many people—I would say the vast majority of people—now get their information and news from some form of social media or news sites that may be domiciled outside Victoria or indeed outside Australia.

The second point I would make is just to reflect on the Chief Judge, Peter Kidd, and his decision to live stream his sentence. Again there are a variety of views about that sentence, and I make no observation about that, but anyone who listened to him step through the considerations he undertook in arriving at the sentence would, whether they agree with him or not, have to have a deeper appreciation of the variety of factors that must be considered before a determination is made. I note that the Supreme Court is, with greater frequency, live streaming sentencing determinations, and I know that the heads of all jurisdictions are looking at those options where they have them available. I think that can only be a good thing in increasing the community’s understanding of the court processes and the court system. Similarly I think we have seen different heads of jurisdiction appearing on the Neil Mitchell or Jon Faine shows and on other media where they can explore issues perhaps in more detail than you can in a 1-minute or 1-minute-30-second news story or the like. Again I think that is an important part of the community understanding how our justice system works and some of the factors involved and the considerations involved. That to me is a positive thing.

As I said, the government has as I understand it accepted 17 of the 18 Vincent report recommendations. This legislation implements in full or in part seven of those 18 recommendations. I think 14 of them require legislative change, so this bill implements in effect half of the recommendations that require legislative change. I would ask respectfully for the Attorney-General to bring forward subsequent legislation to the other place, and in time to this place, so that the recommendations of Frank Vincent can be implemented.

In recent times—and this is not just an issue that has been a question for the Attorney-General, Jill Hennessy, but for previous attorneys-general back to, I would suggest, Rob Hulls—Victoria has had an unenviable reputation, as some would refer to it, as the suppression state. We have had more suppression orders than other jurisdictions. I think, if my recollection is correct, that the rate of suppression orders being granted in Victoria has increased disproportionately compared to other jurisdictions, whereby in 2017 it was reported that Victoria represented 52 per cent of the national total of suppression orders made. Whilst the percentage of cases that have a suppression order in them is a small percentage, the fact that we have as a jurisdiction more than half the suppression orders—at least in 2017—of all those granted across Australia is surprising, and I think not a good thing for openness and transparency.

The bill, as I mentioned, implements seven recommendations, in full or in part, of the Vincent report—that is, numbers 1, 2, 3, 6, 9, 13 and 15. The purpose of the bill is described as being:

A Bill for an Act to amend the Open Courts Act 2013 in relation to the prohibition and restriction of the publication of information in court and tribunal proceedings, to make related amendments to the Children, Youth and Families Act 2005 and the Judicial Proceedings Reports Act 1958 …

We had the Vincent report, we have 52 per cent of suppression orders from around Australia issued in Victoria and we have this legislation before us partly because the Open Courts Act 2013 has not, I do not think, been implemented in the way that the previous government had hoped. The Open Courts Act was introduced, as its name would indicate, to increase the transparency in our court system. I think in part it helped achieve that, and I congratulate the then Attorney-General, Robert Clark, for his work in doing that.

Mr Finn interjected.

Mr O’DONOHUE: An excellent man, Mr Finn—remarkable. What has become clear is that the Open Courts Act, despite its intentions, has not necessarily been applied in the way perhaps that the Parliament or the then government anticipated it would. So these amendments aim to emphasise the presumption and importance of the principle of open justice and the free disclosure of information and transparent court proceedings when assessing whether to grant suppression orders. The amendments will require courts and tribunals to provide a statement of reasons for suppression orders. I think that is an excellent idea. The court will be required to make that statement, and again—in a similar vein to the live streaming of a sentence—if a suppression order is granted, at least the reasons for that suppression order will now be required to be given. You may not necessarily agree with it, but at least there are transparent reasons as to why.

The bill will enable courts to be able to make orders to not utilise suppression orders in cases where there are victims of sexual offences and family violence post-conviction who do not necessarily wish to be the subject of a suppression order, and again I think that is a good thing. That particular element was the subject of some media coverage back in January when these reforms were again floated by the government. We have some situations where victims are happy for there to be no suppression order, but the perpetrator is able to secure a suppression order despite the wishes of the victim or those associated with the victim.

The bill amends the Children, Youth and Families Act 2005 to restrict publication of proceedings by substituting existing particulars with a new list of restrictions on the publication of proceedings, and makes amendments to the Judicial Proceedings Reports Act 1958 to create a defence to the prohibition against the publication of a matter identifying a person against whom a sexual offence was committed.

This bill is virtually the same as that which was introduced to the Parliament last August, except for the obvious change to the commencement dates, et cetera. As I say, and as was our position at that time, we do not oppose this legislation, but we must see this as the first step. The remaining Vincent reforms need to be brought before the house. Of course it is important that we keep a close eye on the implementation of these reforms, given the history of the Open Courts Act. As I have described previously, the Parliament I think had an expectation that the 2013 legislation would deliver greater reform than it ultimately did.

Of course the Lawyer X royal commission is also afoot as we speak, and of course, again—without considering any of the material that is before that royal commission or making any judgement on that—the use of the suppression orders in relation to that matter has also been a matter of significant public interest.

The Liberal-Nationals support the concept of open courts. We support the concept of transparency in our court system and the community understanding how our court system operates, because that is critical to the administration of justice—the community’s understanding of and confidence in the justice system. Understanding how that operates is key to that confidence. Some of the reforms that are taking place at the moment I hope will increase that confidence the courts have initiated themselves. We look forward to further reforms in this space to implement other recommendations of the Honourable Frank Vincent, AO, QC, from his report of September 2017.

Ms GARRETT (Eastern Victoria) (14:55): I am privileged to rise and make a contribution on the Open Courts and Other Acts Amendment Bill 2019. I pay tribute to the work of the previous Attorney-General, Mr Pakula, and the current Attorney-General, Ms Hennessy, on introducing a fine piece of legislation which will make a significant difference in how justice is not only delivered but seen to be delivered in the state of Victoria.

We are aware, all of us in this house, that our justice system is a fundamental tenet of how we live our lives in a free democracy. It is also a living organism, if you like. It perpetually needs to undergo scrutiny, discussion and change. It needs to be modernised and it also needs to understand the considerations of the community as to how justice is being delivered. While the independence of our judiciary is paramount and the independence of our system is paramount, the system is not operating within an ivory tower. Its members have to be in constant contact with and have an understanding of what community expectation is when they collaborate on these matters in an independent fashion.

This bill is a really important step in the process of ensuring that we have a fairer and more transparent court system. It speaks to accountability, to greater justice and to giving a stronger voice to those victims who should be able to speak out and who are currently constrained by our legal system.

This bill begins the process of addressing the recommendations that came out of the final report of the Open Courts Act review—a review that was made public just over a year ago. I will be going in great detail to the key elements of this bill, particularly around suppression orders and the rights of victims. I would also like, as the previous speaker, Mr O’Donohue, did, to pay tribute to the Honourable Frank Vincent. Those of us who have any relationship with either the justice system or public policy in this state will know the lion and the giant that is Mr Frank Vincent and his contribution across decades to the justice system. I certainly remember him when I was a young lawyer. Obviously he was in the courts and ultimately in the Court of Appeal. He also undertook a significant role on the parole board—a job that we really want people of Mr Vincent’s calibre to take on, to make sure that the right decisions are being made when people are presenting themselves for parole. That was just one small sliver really of the contribution he has made. There could be no better person and no better jurist to have been involved in overseeing and making recommendations about this particular legislation. I congratulate him on his outstanding work.

The bill is the first step to ensuring that the current laws strike the right balance between people’s safety and privacy, fair court proceedings and the public’s right to know. As the previous speaker went through in detail, the different ways in which the public are now being informed about the reasoning behind judicial decisions is a welcome development. As I stated before, not only must justice be done but justice must be seen to be done so that people have confidence in the system. Opening up our justice system so that people gain a greater understanding can only lead to a greater confidence. That is a two-way street. It is also for those who are administering justice to open their minds and their thoughts to the views of the community.

I will go through the bill in detail, focusing on a few areas. When we talk about opening up our system and having a more transparent justice system, which this bill not only seeks to do but does achieve, in particular having a focus on making it absolutely clear that suppression and closed court orders should be the exception to the principle of open justice and should be made only when necessary, that is a key plank and a very big change in Victoria. It really is putting the emphasis, in absolutely no uncertain terms, on saying to our courts, ‘It should be the exception rather than the rule that you are going down a suppression path or a closed door path. Really the presumption should be that you are as open and transparent as possible’. Part of how the bill achieves that is, of course, by requiring that the courts give reasons for the decisions for making a suppression order. Those decisions need to include the reasons for the terms and the reasons for the duration and the grounds and scope of the information. Again, it is not just about making grand statements. We all know that judges love a term or two or a provision of legislation. It is putting meat on the bones of that clear tenet and saying, ‘You’ve got to stump up. You’ve got to provide an explanation for why you are seeking to make a suppression order—and we will want that in writing’.

Rather than our current system, which is very ad hoc, where orders can be made whenever and wherever without a full statement of reasons or the public understanding why they are being made and where things are happening behind closed doors, this is about making those who are administering justice provide information as to why they are making those decisions. I think that is a very significant development in Victoria’s justice system, and I welcome it.

Of course the question will be asked, ‘Will that lead to fewer suppression orders being made as a result of this bill?’. It is the expectation that there is likely to be a reduction in the number of suppression orders made because of that reinforcement of the importance of open justice and also because they are to be made only as exceptions. As I said, there is a further tenet to the bill. It prevents suppression orders being made under the Open Courts Act when a provision in other legislation prohibits or restricts the publication of information. This will of course prevent unnecessary duplication, which is sensational. This is about taking the courts to that next level, making sure that we can have them as open and transparent as possible and making sure that the community understands what is going on in this most important facet of our society.

The justice system at its heart needs to provide justice to victims and, through that, justice to the community. That is why the bill has a really significant focus on the voices of the victims. Increasingly it has been a community expectation and a community demand that the community can actually witness that the voices of the victims are being heard throughout the justice system—and that is in every aspect of the justice system, starting from when first contact is made with the police.

We have seen terrific changes brought in around dedicated family violence and sexual assault units, for example, to transform the experience of victims at that first stage of the justice process right through to the way in which victims are dealt with through cross-examination and how victims of child sexual abuse are dealt with. There is more to do always. As I said, this is a living organism; there is a dynamism about this. But it is to make sure the process throughout the justice system has at its forefront the rights of victims.

Also these changes allow victims, where they want to, to tell their story and to be able to be heard. We know that one of the most devastating consequences of being a victim of crime, in addition to any physical or mental scarring that follows, is the feeling of powerlessness—that you just do not have a voice or that whatever voice you had has been smashed, trashed, destroyed and humiliated. Part of the provisions of this bill give some of that back to make sure that victims are able, where they want to, to tell their story, because we know there is great power and great taking back of power in the naming of things and the telling of the story, not only to restore some of that loss of power in the victim but hopefully to have the effect of making it less likely that the crime which the particular person has suffered will occur again.

At this point in my contribution I want to say that so much of the work of the Andrews Labor government in dealing with these issues in such an interconnected and multifaceted way has been about the steps from the beginning, as I mentioned, when you first meet the police, to how the services are provided. I would like to pay the deepest respect and tribute to the late Fiona Richardson, who was the Minister for Women and Minister for the Prevention of Family Violence in the last term before she was cruelly taken from us. She really led the charge on issues of gender equity not just through the justice system but through how we are administering our social services, to how we are changing social norms and social attitudes and to our gender equity campaign, knowing that these things are all interlinked. Her role in allowing the victims of family violence to be heard was a pioneering role, particularly given what had happened to her personally throughout her life, being a victim herself. This bill continues the work that the Andrews Labor government started and that she was such a key part of in progressing the equality of women and equality in our community, because there are women who want to speak about what has happened to them.

As the Honourable Frank Vincent explains in the review:

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 …

Of course this is always a balance, so there have to be safeguards for people who do not want to be identified, who fear for their safety or who just do not want to hear of it again. This bill takes those issues that are very difficult public policy issues—difficult issues of legality and difficult issues of practicality—and strikes a really important balance.

A lot of why the Attorney-General has been able to deliver this balanced piece of legislation, which strikes the right way forward for our justice system, is the extensive, deep, sensitive and respectful consultation that has occurred around the development of it. It is very difficult to come up with anything that is actually going to work if you do not talk to the people who are at the coalface of delivering it. Too often, in too many parliaments across the land, we have seen legislation that has been done in a kneejerk way or without proper regard and that simply does not work. But the beauty of this piece of legislation is that it does reflect that in-depth consultative process that in turn delivers the outcomes. So when we think of all of the stakeholders who were consulted, right from the courts through to Victoria Police, we can see that that is then reflected in this piece of legislation. I am mindful of the clock, so I will stop.

Mr BOURMAN (Eastern Victoria) (15:10): I rise to speak today on the Open Courts and Other Acts Amendment Bill 2019, which I do support. I have no problems with that. But I actually see the need for this bill as a symptom of a larger problem. Why on earth do we as a Parliament need to legislate the way suppression orders are done? Has it got that bad that we are not relying on the system to properly administer this? I start to wonder at these times who these suppression orders are protecting. I seem to remember a few cases of various people, victims, who were quite happy to have no suppression orders, but due to the nature of their cases suppression orders were put on. If a victim wants a suppression order, I think that is a fair call. It is up to them, particularly in some of these sexual crimes and things like that, but if the victims themselves do not desire suppression orders, then why on earth are they being done? Why on earth are we having to pass a bit of legislation to more or less force the court system to do what is reasonable?

I see this bill as trying to fix a wider problem. Maybe this is just one part of it. Maybe it will stop here. I see that the courts have completely lost touch with the expectations of the community. Earlier there was talk about a live case, so I am not going to go into details, but sentencing is completely out of control. Parole has obviously gone through a fairly large change in attitude, but why are we always having to fight these fights? Why are we always having to have members statements about the sentencing for this or the suppression order for that? Why are we always worrying about victims that feel slighted? The systems are there to dispense justice.

Justice to me means that if there is a victim and the case is proven, then it is time that the system said that the weight should be the victim. The weight should say that the victim was subject to this crime and therefore there is a suitable punishment. Now, we can all get into the philosophy of whether prison is punishment or rehabilitation and all that sort of stuff, but in the end there are some crimes—murder, manslaughter, culpable driving and other ones—where a life is taken. A life can never come back, no matter what non-parole periods are given, no matter what sentence is given. There is constant navel-gazing by various people that look at this and basically say, ‘Oh well, we need to leave it to the system’.

As much as I think there are some problems with an elected judiciary, there are also some good parts. You see the problem about populist policies and populist people getting in, but we answer to the people every four years. If they do not want us, they get rid of us. If we do not perform to their expectations, they get rid of us, and that is how it should be. Who do they answer to? No-one. I think the community would be very supportive of a review of just how our justice system works. There are obviously tenets that we would never get rid of—innocent until proven guilty and all the other various bases—but the actual administration I think leaves a lot to be desired.

Ms VAGHELA (Western Metropolitan) (15:14): I too rise to speak on the Open Courts and Other Acts Amendment Bill 2019. This bill is the first stage of the Andrews Labor government’s response to the recommendations that were made by former Court of Appeal judge in the Supreme Court, the Honourable Frank Vincent, who after the independent review, made recommendations regarding the Open Courts Act 2013.

Through this bill the Andrews Labor government will reform Victoria’s law relating to open justice. This will lead to openness and transparency in our legal system. Open justice is a fundamental principle of Victoria’s legal system. It is essential to public confidence in our legal system. For our society to flourish it is vital to promote integrity and accountability of judicial officers. It is also integral for us to enable and protect those who are involved in our justice system.

We recently saw the live streaming of the sentencing of George Pell. That is an example of how court broadcasting can facilitate the public understanding of how court proceedings work and also how sentencing works. The public has a right to know what is happening in our courts. The public also has a right to know if someone has been given a fair trial and if the trial is in accordance with the law. If someone is found guilty, the public needs to know that the person is being held accountable for their conduct. Open justice ensures that those perpetrators are answerable for their offences.

It is also critical to let people who are victims of sexual violence crimes tell their story so that they are able to say openly and freely what they suffered. For some people, for some victims, telling their story could be an important part of their recovery process. It could also be much-needed closure. For the victims it can be frustrating to be stopped from speaking about what they have endured and what they have suffered.

Having said that, we are aware that there are some situations where publishing information about a court case can be unfair or risk harming victims or other parties. In these circumstances restrictions on what can be published may be appropriate. This bill is crucial to improving the suppression order regime in Victoria. It is the first step in delivering the government’s commitment to reforming the Victorian justice system to protect and promote the principle of open justice.

The Open Courts Act 2013 currently only contains general presumptions in favour of disclosing information and holding hearings in open court. These provisions do not adequately emphasise the importance of transparency in our legal system. The bill will amend the Open Courts Act to make clear that suppression and closed court orders are exceptions, based on necessity, to the principle of open justice. This will serve as a reminder to the courts and tribunals that they need to recognise and promote the principle of open justice when deciding whether to make a suppression or closed-court order.

This bill is expected to reduce the number of suppression orders made by Victorian courts and tribunals. This will happen through implementing the key changes recommended by the review. Currently the Open Courts Act does not require courts and tribunals to give any reason as to why they made the suppression order. Recommendation 6 of the review recommends that Victorian courts and tribunals will have to give a reason in writing for making each suppression order and that these reasons may be made publicly available. This will bring more rigour to the making of suppression orders and give the community greater confidence in the workings of the legal system. The Open Courts and Other Acts Amendment Bill 2019 implements in full or in part seven of the recommendations of the Open Courts Act review.

The Children, Youth and Families Act 2005 prohibits the publication of the convictions of young offenders who are convicted in the Children’s Court. This is due to young people getting an opportunity for rehabilitation so that they avoid the stigma of long-lasting labels and being known as criminals. But there is little reason to prevent the community from knowing the juvenile convictions of hardened offenders who continue to commit serious crimes when they become adults.

The bill will amend the Children, Youth and Families Act to give the County Court and the Supreme Court a discretion to publish relevant juvenile convictions when sentencing an adult offender. Once published by the court, the information about the adult offender’s juvenile convictions may be included in the media. Courts will only be able to publish this information where there is sufficient similarity between the juvenile offence and the adult offence and where the adult offending is serious. The terms ‘serious’ and ‘sufficiently similar’ are not defined in the legislation, so the court can take all relevant matters into account when making a decision.

Consistent with the recommendation of the Open Courts Act review, a court deciding whether to publish the juvenile convictions of an adult offender will also need to consider the adult’s prospects of rehabilitation and their criminal history. This will ensure that juvenile convictions are only released where there is a ‘continuing and entrenched propensity’ to commit further crimes.

The Judicial Proceedings Reports Act 1958 prohibits victims of certain sexual offences from being identified publicly. Courts may also make suppression orders under the Open Courts Act to prohibit disclosure of the victim’s identity or other information to protect victims of sexual and family violence offences. These laws can prevent victims who want to speak openly about their experiences from doing so. In some cases they have also prevented the media from identifying perpetrators. Preventing the willing victims from speaking publicly, through the media, about their experiences is inconsistent with a legal system that respects and promotes the rights of victims. The bill will amend the Judicial Proceedings Reports Act to enable courts to make an order lifting the prohibition on publishing the victim’s identity if the victim consents and there are no other reasons for the information to be concealed.

The bill is the first stage of the Andrews Labor government response. Promoting open justice is not just about legislative reform, it is also about cultural change and changing the way the judicial officers, legal practitioners and parties think about suppression and where it is appropriate.

There are seven recommendations implemented by this bill, which include emphasising the importance of open justice under the Open Courts Act; preventing suppression orders being made under the Open Courts Act when provisions under other legislation apply; requiring courts and tribunals to give reasons for making suppression orders under the Open Courts Act; enabling suppression orders to continue until the determination of an appeal or unless varied or revoked by the appellate court; enabling the publication of relevant juvenile convictions of persons who continue to engage in serious offending as adults, subject to certain safeguards; and enabling adult victims of sexual and family violence offences to speak more openly about their experiences.

Justice Vincent was asked to review the Open Courts Act 2013 and other Victorian legislation to consider whether the current laws strike the right balance between people’s safety and privacy, fair court proceedings and the public’s right to know. I commend the bill and wish it a speedy passage through the house.

Mr GRIMLEY (Western Victoria) (15:26): I also rise today to speak on the Open Courts and Other Acts Amendment Bill 2019. With my background as a police officer I have spent many, many years in the courts. Sometimes we had good results and sometimes we had bad results, having dealt with many, many victims over this time. I can say that many of those victims unfortunately reported their assaults to police in the first instance and in the second instance felt assaulted by the courts, having gone through the sentencing and court process. So I welcome this sense of transparency and openness for the courts. Anything that will help and support victims along the way we are 100 per cent behind.

Derryn Hinch’s Justice Party has long supported greater transparency within the legal system. Opening the courts up to greater public and media scrutiny can only have a positive impact on outcomes for victims. What I will say is that the courts are always open to the public. There are some occasions where they may be closed for specific reasons, but as a general principle if you want to go to the courts at any particular time, you can. You can just sit in and look at a case that may or may not interest you. The courts are open to the public most of the time.

The decisions made by the courts are made public. The classic example of this recently was with George Pell, as was mentioned previously. I was one of many, many thousands of people that watched with interest the proceedings unfold before our eyes. When I was sitting with somebody who did not really understand the court process it was fascinating to hear their feedback on the judge’s comments and remarks. They were not aware that this was how courts and judges make their decisions. Having been a police officer I was fully aware of the decisions, the principles and the sentencing practices, but it was interesting to hear another person’s perspective, someone who had no idea about the court system. In that regard, having that openness and transparency for the courts can only be a good thing. It can only educate the general public as to how these decisions are made, albeit sometimes insufficiently.

I was in the Ballarat Magistrates Court recently, before I changed careers and came into this role. I sat through a magistrate’s hearing, and during his decision I found it fascinating that he made mention of the fact that community correction orders were a complete and utter failure of the system. For a magistrate to say that in a public forum I thought was quite remarkable, and it just indicates that more work needs to be done for our justice system to improve.

As someone who has worked closely with victims and their families throughout the sentencing process, I can appreciate the empowering effect that more transparency within the courts can have. Like I said before, the decisions made by the courts are always public and the information should also be available to the public. The Open Courts and Other Acts Amendment Bill 2019 is the first step in implementing the legislative recommendations of the 2017 Open Courts Act review. This bill keeps in place laws that currently work, such as those which relate to the Children’s Court, while addressing deficiencies within other parts of the legal system. I also welcome the changes to broadcasting laws in the courts that this bill addresses. As a result of these changes, high-profile cases will not be the only ones which are publicised, like I mentioned before.

I welcome the basic changes to suppression orders that this bill achieves. For too long suppression orders have favoured the rights of perpetrators over victims. As Mr O’Donohue said before in relation to suppression orders, Victoria has over the past eight years been the state within Australia with the highest percentage of suppression orders granted, at around 50 per cent of all suppression orders. Perhaps we should look at changing our number plates from ‘The Education State’ to ‘The Suppression Order State’. The changes to suppression orders within this bill will ensure that victims of all crimes are legally able to share their story without being prosecuted alongside their perpetrator. Now that is empowering. However, there is still a lot of work to do for Victoria to move away from being the suppression order state.

It is interesting to note for you those of you that follow the courts on social media that they have become far more transparent and open in publicising information based on their sentencing practices and principles. I follow the Magistrates Court, the County Court and the Supreme Court on Twitter, and they have a number of tutorials, fact sheets and information available to the public which enlightens people like me about their practices. It goes back to the old adage that knowledge is power. The more knowledge you have of the practices and processes of the courts, the more you can understand the decisions that they come to.

However, having said that, as we have heard more recently, it is hard to understand some of the decisions and sentences that have been handed down in more recent times. So, like I said, there is more work to be done. Whilst I support the majority of this bill, because I believe it is a step in the right direction, I note that it does not legislate all the recommendations of the review. Having said that, we will be supporting this bill.

Mr LIMBRICK (South Eastern Metropolitan) (15:32): The Liberal Democrats support the principle of an open and transparent justice system. At the core of our philosophy is the belief that there should be more freedom and less government. While we believe that victimless crime should be abolished, laws that protect the rights of individuals and their property are essential. A just society requires that matters before the courts are heard in a fair, objective and reasonable way. In a free society it is essential that open and transparent justice is not just done but is seen to be done. This principle goes back to before the Magna Carta.

The growth of suppression orders in Victoria is supposed to support fair justice but removes transparency in the process. The Open Courts Act 2013 was intended to create guidelines to balance fairness and transparency. The fact that suppression orders in Victoria far outnumber other jurisdictions shows that it has failed in this endeavour. We hope that the bill before the chamber will do better at achieving transparency while not sacrificing the right to a fair trial.

Of note in this bill is the measure that would allow victims of crime to apply to have a suppression order lifted so that they could name the perpetrator. The idea that a victim would be further victimised by a suppression order protecting the anonymity of their perpetrator is just not right. I commend the government on their aim to rectify this. Any measures that allow victims of violent or sexual crimes to regain agency and empowerment are worthy of our support.

The reform that will allow the records of juvenile offenders to be presented in court for defendants that are accused of similar serious crimes requires more consideration. Children and adolescents that come before the courts require and deserve greater protections for their rights and privacy. This reform does seem to strike a sensible balance where only adults with a pattern of offending can have their juvenile records presented to the courts. This bill aims to improve both justice and transparency and has a very important measure improving the rights of victims to speak out about their experience. We support this bill.

Ms TERPSTRA (Eastern Metropolitan) (15:35): I rise today to make a contribution in regard to this bill. There have been many articulate contributions that have accurately set out the scope of the complexities of this bill and the ability of the bill to balance the needs of victims of crime with the needs of offenders. In support of the Open Courts Act 2013 review, which was conducted in 2017 by the Honourable Frank Vincent, AO, QC, the government did in 2018 publicly support in full or in principle all but one of the recommendations of the review.

The bill that is before the house today is in furtherance of implementing those recommendations. Rather than traversing all of the matters that have been set out today, I might just focus on one aspect, and it is something that was touched on in the last contribution that we just heard. There is a need to balance full and open disclosure around some convictions with the needs of victims of crime in order to tell their story, and this is a very important issue. It is something that victims of crime have commented on much and openly—the need to talk about their experiences and about what has happened to them and give voice to them in the justice process. In looking at balancing some of these imperatives, as an example the courts will be given the power to consider whether it is in the interests of the court process to disclose patterns of offending, and that is something our courts are often charged with doing in terms of being given discretion to take particular actions.

There are some very important safeguards that have been addressed in this bill. There are in fact four legislative safeguards. The bill outlines matters of which the court must be satisfied before it can disclose juvenile convictions in sentencing remarks. This example was touched on earlier, and it is something that was quite an important development. We saw this recently in the sentencing of Cardinal George Pell, where the judge in that case was able to go through his deliberations in the sentencing of Cardinal Pell and went to great lengths to inform the community about the many and varied aspects that the courts are required to take into account in sentencing. This was very well received by the community, and it allowed the community to have great insight into the complexities of the court system. It was very important and in fact I think a watershed moment in the history of the courts. It certainly allowed the community insight into such processes and a greater understanding and appreciation of the complexities of our sentencing regimes.

Certainly in regard to this matter and in regard to what the courts will be required to take into account—and I mentioned earlier the protections—one of the protections, for example, that the courts will weigh when they take into account the discretion that they need to apply will be that the courts will only be able to publish this information where there is sufficient similarity between juvenile and adult offences. So that is one aspect. The second aspect of protections will be where the adult offending is serious. Now, the terms ‘serious’ and ‘sufficiently similar’ are not defined in the legislation, but in fact this is consistent with what courts are often charged to do—that is, to weigh the facts and the circumstances of particular cases and, in the weighing of such, balance out whether, given the serious nature or being sufficiently similar, it is then warranted that a disclosure be made or not. It is in the public interest to do that, and that is an appropriate exercise of a court’s discretion. It is what they are charged to do. That means that there will be consideration of the facts and circumstances particular to relevant cases.

Also consistent with the recommendations of the Open Courts Act review, a court, in deciding whether to publish juvenile convictions of adult offenders, will need to consider the adult’s prospects of rehabilitation and lastly also their criminal history. So again it allows the courts to explore and enter into an assessment of the facts and circumstances of that particular case and to look at the prospects of rehabilitation and the offender’s criminal history. These are all relevant matters. So in turn this will ensure that juvenile convictions are only released where there is a continuing and entrenched propensity to commit further offending. This then also, in doing that, means that the balance is well struck between ensuring community safety is upheld and that being done in the interests of disclosing information that is relevant and appropriate for community safety—allowing victims to tell their story nonetheless. But also the courts will determine what is appropriate in the circumstances for victims and offenders alike.

As I just touched on earlier in mentioning Cardinal Pell’s sentencing hearing, these recent events have made it very clear to us how important it is to have a transparent and open court system. Sometimes it is very difficult for the community to understand why courts take such decisions, and sometimes there is a very heavy weight of expectation in the community about the appropriateness of sentencing. It is indeed a difficult balance, but we are fortunate in Victoria that this legislation will assist our court system to further get that balance right and to continue to strive to make sure that we have openness and transparency in our court system, allowing the community to get greater insight and understanding into how our courts operate.

The Andrews Labor government has shone a light on things like family violence, as we are all aware in this chamber. We are in fact willing to look into the darkness, and we have said to women who have been victims of family violence that we do want to hear from those victims. It is important that victims of family violence are able to talk about their stories. We hope and trust that with the implementation of this bill it will make it easier for them to tell their stories.

Some other aspects in regard to this bill are that it will amend existing prohibitions to allow adults, who as adults or as children were victims of sexual or family violence offences, to opt for disclosure of their identity once the offender has been convicted. Again that is another aspect that will facilitate victims of sexual violence to speak more freely about their experiences. To continue to have these matters contained in the dark further entrenches that aspect of perhaps shame or feeling that somehow a victim is at fault for something that has happened to them that was completely out of their control. It is important that we shine a light in the dark recesses and continue to expose these heinous crimes.

The bill creates a court process to allow the court to make an order authorising the disclosure, if the victim consents to such a disclosure and there are no other reasons for the prohibition to apply. The bill also clarifies the right of the victim to apply to revoke a suppression order under the Open Courts Act 2013 made solely on the basis of protecting the victim’s identity—again, another significantly important reform.

The court process under the bill also further requires the court to be satisfied of the consent of any other victim whose identity would be disclosed before it can make an order enabling victims of sexual or family violence offences to disclose their identity. Further, as an additional safeguard the court must also be satisfied the disclosure of the victim’s identity is appropriate in all of the circumstances. Again the courts are being charged with the responsibility of weighing all of the circumstances of these particular cases and of making sure that the correct balance is in fact struck when weighing the importance of having openness and transparency in regard to the reporting of these offences but also making sure that victims of these particular crimes have their stories told.

The benefits for the media and the public—and this is something that has been commented on—come in the form of suppression orders. For example, the bill is expected to reduce the number of suppression orders made by Victorian courts and tribunals. This has been a matter that has been commented on particularly in cases where there have been high-profile offenders, particularly where it has been seen to be in the public interest to have transparency around high-profile offending. This will then allow for a reduction of the number of anticipated suppression orders. That seems to be more in line with community expectations around openness and transparency.

The bill will also allow the media to report more freely on proceedings before the Children’s Court by limiting prescriptive restrictions applying to the identification of the parties and others. Again, another important feature of this bill is for greater transparency and more openness for public scrutiny. It allows the community and the general public to be more informed about the sorts of matters that are coming before our courts and how the courts are in fact dealing with them, lifting the cloak of what is often seen as secrecy around legal posturing, which might be obviously to protect or limit the amount of information that becomes available in the public arena. Sometimes that is not seen as being in the public’s interest or particularly in the victim’s interest. That gives greater weight to balancing these factors, and the courts are able to make those appropriate determinations as they are charged to do, being required to weigh the particular facts and circumstances of particular matters before them.

The bill will also provide for greater transparency in the making of suppression orders and will require courts to give reasons for making them. So not only will the courts be required to weigh various considerations, but they will also be required to give their reasons in making those decisions—again, another important feature, which can only be seen as being in the public interest. Certainly the community has an expectation of being able to understand the reasons for the making of particular decisions by our courts, and the publishing of those reasons will give the community greater access to transparency.

Just in terms of the consultation for this particular bill, the report of the review was produced after consultation with over 40 stakeholders both in private meetings and through a public submission process. That was a consultation process that was well subscribed to and obviously something that our community here in Victoria thought an appropriate process. It allowed victims and others to make appropriate submissions to be taken into account. The bill was then developed in consultation with key stakeholders, and of course this included the courts, the Office of Public Prosecutions, Victoria Legal Aid, Victoria Police, the victims of crime commissioner and the Commission for Children and Young People.

In late 2016 the government did ask Court of Appeal judge the Honourable Frank Vincent to review the suppression order regime, and of course then the final report of the Open Courts Act review was made public in March 2018. This bill before us is a continuation of the review process and a combination of much work and consultation, as I have just discussed, with the community. This is something that has been an ongoing piece of work for the government to continue to make sure that our courts can remain open and accessible. It is a significant reform. As I touched on earlier, it enables victims to tell their story. We know that victims of sexual and family violence offences have special vulnerabilities. The bill includes significant safeguards. It allows our courts to do the jobs that they are charged to do—to give appropriate weighting to facts and circumstances in particular cases and to disclose relevant information using their discretion—but it balances that with making sure that victims in these processes can have their stories heard.

Ms MAXWELL (Northern Victoria) (15:50): I am very thankful and grateful to be able to speak on the Open Courts and Other Acts Amendment Bill 2019. I am going to keep this brief. We have had many speakers on this bill, as I would have expected.

I would like to extend my appreciation to the government for introducing this amendment to the act. Providing greater transparency and reducing the protection of offenders through suppression orders is supported not only by Derryn Hinch’s Justice Party but the Enough is Enough campaign, which has advocated for victims of violent and sexual crimes over the past three years. In those three years, as a campaign advocate, I have spoken to many victims who have been subjected to suppression orders throughout the traumatic experience of losing a loved one, and that has been an incredibly difficult passage for people to come to terms with. Many victims have often felt that they were actually the ones under scrutiny, and they have often felt like they were the perpetrators of a serious crime.

The introduction of this bill provides an opportunity for victims to be heard, and it is so important that victims have that opportunity to be heard, not only within the court system but within their communities and other areas. It will allow them a freedom to express their grief and sorrow under their terms, without being constricted and confronted with concerns about committing an offence themselves should they reveal publicly the name of an offender who has taken so much from their lives. I speak on behalf of many victims I have met who have suffered for many years, as I said, by keeping a secret of a perpetrator who has traumatised and affected their lives forever.

I realise that this amendment will not be retrospective, but I do urge the government to consider revisiting retrospective suppression orders which have been inflicted upon victims families and who to this day are still threatened many years after the tragedy with prosecution should they speak of the person who has not only destroyed their lives but taken the life of a loved one. With social media now a constant gateway of disseminating information about our lives, not only within Australia but all over the world, our laws need to reflect and convey the reality that suppression orders are in many cases becoming less likely to be enforced.

I also fully support this bill’s approach with regard to the Children, Youth and Families Act 2005 to maintaining the existing restrictions on the publicising of details of cases heard involving children in Victoria. There is one thing I have learned over many years: our children are incredibly precious, and we need to do all that we can to protect them, because they as children do not have that ability to protect themselves. While I do advocate for further transparency of Victorian legal proceedings, I believe that the protection of children in Victoria is absolutely of the utmost importance, and I appreciate the approach that this legislation will take in maintaining the protection of vulnerable children involved in court proceedings.

I hope that this bill will provide all those who have been held at the hands of suppression orders over the years with a new-found hope that the justice system supports them over the rights of offenders.

Mr MELHEM (Western Metropolitan) (15:54): I also rise to speak on the Open Courts and Other Acts Amendment Bill 2019. As previous speakers have outlined, this bill allows the Andrews Labor government to fulfil its commitment in the last election campaign to reform suppression order laws in Victoria, to make sure that suppression and closed court orders are the exceptions to the principal of open justice and that they are only made when necessary.

As we know, the issue of suppression orders has been a topic in relation to recent court cases, including a few major cases in which courts made suppression orders and these made headlines. I can think of one, the George Pell matter, where the court ordered the suppression of a decision when there were two trials on at the same time. Now there are 30, or thereabouts, journalists or media people and other personnel who are in breach of a court order because a suppression order was issued by the court for reasons given by the court, and I think they were probably good reasons. That is one example.

It is really important that we allow the judiciary to have discretion in certain cases to make suppression orders. These could be court cases involving juveniles, for example, which deal with children, or cases such as the George Pell matter, which involves an adult. Courts should have that discretion to put a suppression order in place so that the name of a witness or victim or a person who has been charged with a crime is not revealed.

On the other hand, I think it is important to get the balance right and that we have an open court system in this state. To make the court system work better and to have the confidence of the people we have an open system. A closed system is not subject to scrutiny—not necessarily scrutiny, but the public need to understand and appreciate what actually goes on in a court scenario.

I think we all from time to time—and I have in recent times—question some of the decisions that judges hand down and try to understand whether they have been too harsh or too soft. But to be fair, I was not in the court. I think a lot of our citizens might pass judgement by saying, ‘Well, that judgement was too harsh’ and ‘Why did you suppress that?’. Unless we have an open court system and people take some interest in what is happening in the court and the reasons why a particular judge, prosecutor or even defendant might seek a suppression order from time to time in relation to a particular case or a judgement that is handed down, we will not know what that judgement was based on. Not every person is necessarily going to go and read a 100, 200 or 500-page decision, but I think people largely form their opinion on what is reported in the media. So it is important to actually have an open court where the media have access, which they do now in most cases. It is very rare that they do not. They are not able to report everything, but I think it is important to have that open court system where people are able—if they want to—to have the facts in front of them. Then they can make a sound judgement on whatever issue the court is dealing with. But on the other hand, as I said, it is important to maintain the discretion for judges in certain cases to be able to suppress certain things from being aired in public when there is a good reason for that. What this bill does is make that the exception, not the norm.

Justice Vincent was asked to review the Open Courts Act 2013 and other Victorian legislation to consider whether the current laws strike the right balance between people’s safety and privacy, fair court proceedings and the public’s right to know. The final report of the Open Courts Act review was made public in March 2018. The report made 18 recommendations for improving existing suppression laws, and the government has given support in full to 17 of the 18 recommendations. One recommendation is currently under further consideration by the Attorney-General and the government.

The Open Courts and Other Acts Amendment Bill 2019 is the first step in implementing the legislative recommendations of that review. It was very important to get the review done, and the good work that has been done by Justice Vincent is commended. This bill is based largely on the work that His Honour has done. The bill will reflect that and particularly the 17 recommendations which were accepted by the government.

The bill will also require the court and tribunal to give reasons for making suppression orders under the Open Courts Act, and I think that is very important. When a judge makes a decision about putting a suppression order in place or issuing a suppression order, there has to be some sort of logic and some sort of reason why. I think it has become an issue where we do not want to finish up in a situation where the public are losing faith in our justice system. I think our justice system in Victoria is one of the best in the world, and I have got full confidence in our judicial system. Our judges do a terrific job. They do an excellent job. I think sometimes we—particularly politicians—harshly judge them. As I said earlier, if I want to go and criticise a judge for a decision without having been privy to the proceedings, I do not think I would be qualified to make a judgement on that. The stress these judges are put under and their workload are tremendous. The last thing we want is politicians, and people in the public to some extent, throwing rocks at the very people who are actually trying to make sure that our justice system functions properly and that people get fair hearings and fair outcomes. We know that is taking its toll on judges, particularly in the Magistrates Court. We know there have been a number of suicides, where judges have taken their own lives because of the harsh criticism they sometimes get from the outside world.

I for one, as I said, have got full confidence in the judicial system. I think they do a terrific job. Our job as parliamentarians, as legislators, is to actually pass the law but not interpret the law. The separation of powers is very clear in our constitution. I think we should trust the very people we appoint to the judicial system. Regardless of the colour of governments, I think the appointments have been excellent and I think we should be able to trust them to implement the laws. Surely there is community expectation. That should be taken into account by legislators to make sure we reflect community expectation in relation to whatever laws we pass and by judges when implementing these laws. I think that is very important, but it should not be the only criteria taken into account when a judge hands down a decision in relation to a particular case.

The bill also enables suppression orders to continue until the determination of an appeal or unless varied or revoked by the appealable court. It also enables the publication of relevant juvenile convictions of persons who continue to engage in serious offending as adults, subject to certain safeguards. It also enables adult victims of sexual and family violence offences to speak more openly about their experiences. The bill also amends 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 bill also, as I said earlier, reinforces the importance of open justice and make it clear that suppression orders under the Open Courts Act are only to be made as an exception to the principle. Where necessary, recommendations 1 and 2 of Justice Vincent will ensure that courts do not make suppression orders too easily by applying a mere presumption in favour of openness under the current laws.

I think it is very important to get that balance right. It is very important to protect the privacy and rights of individuals but also to have in place an open justice system so that we can regain some of the lost ground where the public has lost faith in the political system, in us as legislators and in judges, who actually implement the law. I think it is a real issue both for us as legislators and for judges, and the bill will hopefully go some way towards getting back that confidence in the system.

Access for the media will also be reformed as part of this. The bill amends the Children, Youth and Families Act to give a judge of the County Court or the Supreme Court who is sentencing an adult offender the discretion to publish the juvenile convictions of that offender. A court may only disclose the juvenile convictions of an adult offender where the adult offending is the same or of sufficient similarity to the child offending, where the adult offending is serious and where it is appropriate considering the offender’s previous criminal history and prospect of rehabilitation.

The terms ‘sufficient similarity’ and ‘serious’ are not defined in the bill, to enable a court to apply discretion in the circumstances of an individual case. Again, we do not want to be too prescriptive by describing every single event and prescribe what the judges should be doing. I strongly believe that we should still allow our judges discretion to deal with these sorts of cases and a bit of flexibility, because they are the ones who actually hear the evidence, who hear the whole case and who are basically able to make a judgement. The only reason we actually appoint them to the bench is that they are supposed to be fair and reasonably minded persons who have sound knowledge of the legal system—fair people who will hand down a decision not based on any political persuasion and not based on their own personal view. If we appoint people to this sort of position, I think we need to support them and give them some discretion to determine certain matters as required.

The bill hopefully will go a long way to getting some confidence back in our judicial system and our legislation. Some further changes will be coming to the house—for example, ensuring that the reasons for making suppression orders are made publicly available in writing, recommendation 6; establishing a public register of suppression orders, recommendation 7; treating all suppression orders as interim orders for five days after they have become final unless challenged, recommendation 8; and the list goes on. There will be more to come in relation to that. The other supported legislative recommendations are expected to be implemented in 2020.

As I said earlier, the government is giving further consideration to recommendation 18—allowing the Public Interest Monitor to act as a contradictor in suppression order applications—and will be consulting with stakeholders in relation to what we do with that. There are a further four recommendations that are non-legislative. One was implemented when the government asked the Victorian Law Reform Commission to review the laws of contempt and aspects of the Judicial Proceedings Report Act 1958. The remaining three are being progressed independently, with a view to implementing them as soon as possible. With those comments, I commend the bill to the house.

Ms SHING (Eastern Victoria) (16:09): I rise today to speak in relation to the Open Courts and Other Acts Amendment Bill 2019. In doing so I note a number of substantive contributions that have been made in this chamber today that have gone into the detail of the bill itself from a number of specific angles that cover open courts, access to justice and the competing rights and priorities of victims and those affected by crime and criminal activity and of perpetrators and alleged offenders in the context of the criminal justice system and the administration of justice.

I note that in relation to this particular bill there is an extensive outline in the statement of compatibility, which was tabled with the second-reading speech, which talks to these competing priorities and the importance of making sure that we, wherever possible, move away from secrecy in the administration of justice but in doing so do not neglect the obligations that exist around a fair trial and do not compromise any particular appeal rights that may arise, and in fact that we have a justice system which is to the best extent possible something that reflects contemporary social and other media, the reporting of matters within the justice system and indeed the way in which information can be exchanged, published, distributed and disseminated in an instant and in a way which is irretrievable once the send button or print button has been hit.

I note that this bill builds on a number of the reforms that have been proposed by Justice Vincent, who is one of the most influential operators in our justice system, who has led significant reform in the areas of evidence law and who has examined in great forensic detail and analysed in great detail the application of the principles of evidence as they are applied within the common law and as they interface within the statutory framework; that as a result of this work we have seen seven of the recommendations being implemented, with a further review in relation to contempt of court proceedings that, as is referred to in the materials in the context of this debate, is scheduled to be completed by the end of this year; and that 17 of the 18 recommendations have been accepted by the government in order to prioritise open justice and to make that demonstrably communicated and accessible to people within our community so they understand the roles that judge-made law and the distribution of information play in our everyday lives and the impact they can have for people whose lives are affected, often in extremely traumatic ways, as the Hinch party has outlined in a contribution earlier today.

I also wish to look at a number of the reforms that have been proposed that reflect changing attitudes toward the way in which information is covered, reported and distributed in public. In this regard I note the way in which the similarity provisions and the seriousness provisions as they relate to juvenile convictions are referred to specifically throughout the context of the bill and amendments as they might apply to the Children, Youth and Families Act 2005. In the course of the administration of justice, principles such as similar fact evidence are carefully considered by courts around the way in which competing priorities might exist in a legal proceeding—for example, where an offence has been committed which has a substantive similarity or a material similarity to an offence committed by that alleged offender at some other time.

This is the subject of a very, very careful process of analysis by the judge who is overseeing the proceeding, however, and this evidentiary principle of similar fact evidence is something which is the subject of a very, very broad body of jurisprudence. It is something which has been carefully refined over the years and it is something which is already taken into consideration by judges in the way in which matters are determined before the courts and the way in which principles around sentencing might otherwise be handed down and issued in recognising, perhaps, a propensity an offender may have or have had in the context of earlier offending. So this amendment around the publication of juvenile offences committed where that similarity exists, where that substantive seriousness threshold is met, is an important part of in fact communicating more of the work that judges undertake and the way in which they analyse and assess evidence, the way in which they balance those competing priorities around what indeed is admissible and the contest between admissibility as it relates to probative use of information versus the prejudicial nature of information that may be admitted in the context of a court proceeding.

These are matters which courts already turn their minds to. We have seen also the very careful decision-making processes that are undertaken by the courts which are often the subject of voluminous judgements. Having looked at many decisions which go into very, very granular detail it is often very difficult for the layperson to look at these matters—and indeed for many legal practitioners who operate within the system itself to look at these decisions—to examine these judgements and to identify where decisions have been made around fact and where decisions have been made and applications have taken place around questions of law and also, where someone is defending an offender or a defendant on the one hand, or in fact advocating on behalf of an appeal, that they are in the best position possible to identify areas which might give rise to those appeal rights.

In the recent transmission of Justice Kidd’s decision in the matters of offending that were the subject of the Pell matter, we know that a very careful process of analysis was undertaken, a very careful balancing process occurred that shed light on the way in which information is considered, the way in which evidence is analysed and the way in which the court is convinced or not as to the merit or the credibility of witnesses or their material and evidentiary accounts in the course of the proceeding. The way in which Justice Kidd’s decision, his judgement, was published and transmitted has, as a number of other speakers have indicated, given the community a much greater insight into the way in which the administration of justice occurs. Reading a dense judgement is a very, very different proposition to having it accessed and accessible over our radio waves or indeed to see it produced in a live feed or real-time example through social media. The benefit that is associated with distributing and publishing that information has at its heart a greater level of confidence in the way in which the justice system is operating and the way in which our courts and our judges operate. This is a really careful balancing act in and of itself.

In that regard I want to turn to the contempt matters which are also the subject of this bill, and the way in which it is intended to operate. We need to make sure that the courts keep pace with the way in which information can, like lightning, be sent around the world, and we also need to understand the impact of suppression orders where in fact there may be an obsolescence to the application of such suppression orders in certain circumstances. Again, when we look at a number of contemporary matters we see that suppression orders themselves are only as good as the way in which they are applied and only have a deterrent effect to the extent that they are sought to be enforced.

We need to also make sure in the application of suppression orders and contempt proceedings that in administering these processes they in fact strike the right balance. That includes as it may relate to appeal rights, because miscarriages of justice are in fact often based, as much as anything, in process, as much as anything, in procedure and often—too often—as a result of avoidable issues. We need to make sure that we have a better understanding of those avoidable issues that may in fact lead to contempt, that may in fact lead to matters not following through to the conclusion of a proceeding other than to end them without a decision resulting in a conviction, which is for many victims and survivors, particularly of violent crime, a particularly difficult outcome to face. It is often extremely mystifying and bewildering and upsetting for victims and survivors—people affected by violent crime—to have an outcome which in fact has been compromised, infected or otherwise contaminated in a process-based way, such that it can no longer continue through the legal process.

We have seen this occur. We have also seen that the law needs to continue to evolve. We know that when we have a better access to the way in which our courts operate—a better access to the understanding behind matters which juries, for example, are able to take into consideration and are required to take into consideration in jury matters—we have a greater degree of confidence in the system. So making sure that we have those safeguards in place to make sure that disclosures of certain matters, particularly in the juvenile context, only occur where we have that same or sufficient similarity—where, for example, the adult offending is serious and where it is appropriate in consideration of the offender’s previous criminal history and prospect of rehabilitation—we are in fact giving a greater level of effect to the objectives that underpin our justice system. These include deterrence, these include rehabilitation, these include the element of fairness around walking away and moving back from concerns around secrecy. Often we have too much concealment, not by design but by operation of our judicial system, which means that it is very difficult for people to have that measure of confidence in the way a court has arrived at a particular decision.

It may not be impenetrable for an appeal or an appellate jurisdiction to understand, given the volume of research, information and resources that they have to hand, and their relevant experience in understanding and interpreting judge-made law and the intersection of that with statute, but for the community, confidence all too often needs to rest with the way in which information is provided and can be provided to give that better insight into the way in which a judgement has been arrived at, what has played a role as a relevant consideration and what has been discarded or otherwise only given partial weight in the course of that process of balancing those competing priorities.

The process of consultation that has been undertaken in the course of this bill has been really extensive. More than 40 stakeholders have been part of the work associated with the drafting of this particular bill, and the work goes on. It is crucial that we understand that here in the Parliament it is for us to do our best to make the law, which then enables the courts and the court system and the judiciary and the stakeholders and agencies who work within it and alongside it to apply the law in a way that in fact gives that measure of public confidence.

We have seen too often that the reporting of matters before our courts is often and disappointingly inaccurate, it is often and disappointingly not necessarily the most relevant of arguments to make and it is often not something that gives the relevant level of accuracy to the way in which decisions are made by our courts. To some extent this bill does in fact go a way towards rectifying that. It does in fact provide a better reflection of the world that we live in now and it does in fact reflect the work that our judiciary is already undertaking—does already do—whilst also providing a measure of protection to people with those vulnerabilities, who are often part of a court system which can be deeply traumatic and upsetting and troubling.

The way in which access to justice operates is not only a crucial part of confidence in the system but also, for victims and survivors and, as indicated by the victims of crime commissioner, a part of telling a story, which can be a crucial component in moving beyond a violent or serious matter that has had a profound impact. Again, this bill is an important step forward in continuing that work as we try to evolve our legal system to better keep pace with our modern world and to better reflect the views and expectations of the community on the one hand and the judiciary on the other.

Mr DALIDAKIS (Southern Metropolitan) (16:24): I appreciate the opportunity to speak to the legislation before us, the Open Courts and Other Acts Amendment Bill 2019.

Members interjecting.

Mr DALIDAKIS: I might just pause for the chamber just to get a little bit of decorum. I know that I am the last person that would usually call for that, but it is getting late in the day on the third day of sitting this week, and I think it is important that people just calm down and have a Tetley’s or any other preference of tea that you might like.

Can I just follow on from what I thought was actually a very valuable contribution by Ms Shing, and I thank her for that contribution. I think in light of the serious nature of the material that Ms Shing spoke of, to make light of that was somewhat disappointing. Now, I know that at times we in this place can be somewhat robust in our contributions. I know that in this place I also can be robust in my contributions, but I think when we are talking about issues of the gravity that Ms Shing was talking about we should be mindful of expressing a little bit more respect to each other in this place.

Having said that, I would like to speak on this bill. I think the bill has a number of parts to it that are important, and I wish to focus on what I believe is to be of the most importance, and that is giving victims a voice, giving victims, in particular of family violence, an opportunity to speak out, to share the tragedy and the tragic nature of their stories and to be able to do so with confidence, without having to hide, without having to have their stories somewhat muted and without having their stories prevented from being given full appreciation by having to keep their identity secret. And of course, in order to do that, the bill needs to make changes to a number of different acts of legislation as well.

This bill is the first stage of the Andrews Labor government’s response to recommendations undertaken and made by former Supreme Court of Appeal judge Justice Frank Vincent, following his independent review of the Open Courts Act 2013. In so doing, as I said, we are giving victims a chance to speak of the terrors that they experienced and the trauma and torment that they were a party to without having to hide who they are. That is often part of the process that they need to undertake to be able to not just deal with the events that befell them but confront those events in a way of both healing and being able to move on with their lives. For that reason I do give some sincere thought to this piece of legislation.

Can I also point out that earlier this week the opposition sought to quote me from some public utterances that I made in the last fortnight in relation to the Borce Ristevski sentencing. The reason that I raise that now is of course that I wish to provide a bit of clarity around that situation. Number one, I strongly believe in the separation between the legislature and the judiciary. I think it is a fundamental tenet of our democracy. The quote that was used—the comment that I made, the words that I said—was that it was manifestly inadequate in relation to the penalty that was provided by the justice in that case. That was as a result of a judgement that was provided by a justice—a justice, I might add, appointed by the previous government in September 2014, but a justice nonetheless—who appreciates the independence and the ability to carry on with his job and his judgement just as I, as a member of the legislature and a member of the community, am entitled to express an opinion as I saw fit as well.

The reason that I relate and refer back to that point is that if we are going to treat the issue of family violence seriously and talk about how this gives those rights back to the victims to be able to express themselves without hiding, without having their names withheld, we can be grateful that they are alive. In the case of Karen Ristevski, her life was tragically taken by a man committing an act of family violence—yet another woman being murdered by a partner or somebody known to her. At some point in time we as a community have to acknowledge that we must say, ‘Enough is enough’. Either we are part of the solution or we remain part of the problem. I do not see any problems with the comment that I made in relation to the judgement being manifestly inadequate and the role that the judiciary plays as independent from that which we play in the legislature. As I said, it is a fundamental tenet of democracy. They have their rights to make judgement; we have our rights to pass judgement.

In relation to that case, there is a maximum penalty of 20 years for manslaughter. In any trial somebody, should they be the one charged and undergoing that trial, should be—and they are—entitled to the presumption of innocence until proven otherwise. Indeed in the case that I am discussing, that particular person also had the right not to allocute on the crime to which they eventually pleaded guilty. The fact remains that whilst they had the right not to allocute, the judge also has the right to find that, with a failure to allocute despite pleading guilty, the penalty handed down could be increased accordingly. The judgement was a fair and reasoned judgement. I read the judgement. The judge laid out the reasons for the penalty that he prescribed to Mr Ristevski. I have no problems with his judgement in that respect. What I believe is that judges who claim that a penalty handed down is within the range of previous penalties handed down for similar offences fail to appreciate that the legislature has provided a range that they can operate within—not a range to operate within because of past cases that have operated, but a range within the penalties that the legislature has provided to our justices in order to mete out justice to the victim and their friends and families who survive them and the community that continues to operate as well.

I return to the bill. What we have here is a bill that emphasises the importance of open justice under the Open Courts Act. In doing so, we are implementing in full or in part seven of those 18 recommendations by Justice Frank Vincent that I referred to earlier. The bill will prevent suppression orders being made under the Open Courts Act 2013 when provisions under other legislation apply. It requires courts and tribunals to give reasons for making suppression orders under the act; enables suppression orders to continue until the determination of an appeal or unless varied or revoked by the appellate court; enables the publication of relevant juvenile convictions of persons who continue to engage in serious offending as adults, subject to certain safeguards; and—this is the critical one that I was referring to earlier—enables adult victims of sexual and family violence offences to speak more openly about their experiences.

We as a community must confront the evils that occur within. We cannot change our behaviour as a society unless we are able to talk about that behaviour, as uncomfortable as that may be, as difficult as that is, as challenging as we find it. The fact remains that family violence is the number one law and order issue that we must face. It is not the only law and order issue that we face. Of course we have issues with drug and alcohol dependence that have a myriad of consequential issues that we as a society also confront. We of course have our royal commission into mental health that also will shed light into areas of darkness within our society that we for far too long have overlooked, that we for far too long have refused to accept, that we for far too long have refused to acknowledge.

We have a case here where we can afford victims of family violence and victims of sexual violence a right and an opportunity to speak out with confidence, without fear or favour, and without having to hide any longer. Irrespective of the many other attributes of this legislation, that in and of itself is enough for us to be confident that this legislation is going to do things for us as a society and as a community that have been waiting for far too long to occur.

To slightly expand on that for just a little bit longer, the bill, as I said, amends existing prohibitions to allow adults who either as adults or as children were victims of sexual or family violence offences to offer disclosures of their identity once the offender has been convicted. Again, people must be afforded due process. As difficult as it can be to provide protection to people who have allegedly committed an act, we must still afford a degree of protection to people until they are found guilty. This too remains a fundamental part of our democracy: innocent until proven otherwise. But once that is proven, we have a responsibility to support the victim. We have a responsibility to support the victim in the first part, but once that guilt is proven in a court of law, either by a judge or by a jury, we also have a responsibility to make sure that that victim, their family, their friends, their community and our society is afforded the right to support them publicly and openly. There is no shame about what occurred to them. There must only be support for what they have gone through and an ability for them to deal with it as they see fit. If that is publicly revealing who they are and not having to hide from that, then who are we to say that that is not worthy of a change to our legislation to support their right—the victim’s right—to be able to continue as said.

The bill of course does a range of other things. We have had a range of speakers that have dealt with this. I did wish to address what I believe to be the most serious part of the bill, the part that I have had the opportunity to speak on. With those remarks, of course I will be supporting the passing of the Open Courts and Other Acts Amendment Bill 2019. I thank Justice Vincent for the work he did and the recommendations he made. This is of course only the first part of a tranche of recommendations that we will legislate. With that, I commend this bill to the house.

Ms STITT (Western Metropolitan) (16:39): I rise today to add my voice to the many contributions that have been made about this very important bill and the reforms to our court system. It is an issue that obviously is incredibly important to the broader Victorian community. The overall objective of the Open Courts and Other Acts Amendments Bill 2019 is to improve the openness and transparency of our legal system. As many of my colleagues have said today, that is really at the heart of our democracy in Victoria. The principles of open and transparent justice are at the heart of the overall objectives of this bill, and those things are incredibly important. It is incredibly important to have a transparent justice system in a democracy such as ours. It is about people’s understanding of the justice system being clear. It is about the community having the right to know whether justice has been done. It is not necessarily about the punishment attached to judgements or court proceedings; it is about making sure that victims’ voices are heard and that their healing is at the heart of these reforms.

The background to the Open Courts Act review was obviously in late 2016 when the government asked retired Court of Appeal judge, the Honourable Frank Vincent, to review the suppression orders regime in Victoria. That is obviously an incredibly important part of how we have arrived at this bill which is before the house today. Justice Vincent was asked to review the Open Courts Act 2013 and other associated Victorian legislation to consider whether the current laws strike the right balance between people’s safety, people’s privacy and fair court proceedings. The final report of the Open Courts Act review was made public in March 2018. The report made 18 recommendations for improving existing suppression laws. The government has given support in full or in principle to 17 of those 18 recommendations; one recommendation still remains under consideration.

The Andrews Labor government is overhauling Victorian suppression order laws to make it clear that suppression and closed court orders must be the exception rather than the rule in our justice system. Open courts need to deliver transparency that protects the public’s right to information. Of course we have had no clearer example than the recent very high-profile case, which was the subject of suppression orders, to see why it is that our system so desperately needs to be overhauled and reformed. Obviously in the age of the internet and in the age of new technology it is very difficult when there are suppression orders in place in one jurisdiction to actually make them stick. We had a fairly unfortunate situation where we could learn what was going on in court proceedings that had been suppressed in our own jurisdiction simply by doing a bit of a Google search. These are some of the things that have obviously been highlighted through that very high-profile recent case.

In contrast, with the sentencing in that particular case you saw the absolute best of Victoria’s judicial system at work. You had a judge who very carefully and very thoroughly, in a very transparent and open way, explained the basis of the sentencing in that particular case. I think that many laypeople who listened to that judgement and to that sentencing probably for the first time really got an appreciation of the very broad range of issues that our judges have to contend with when they are making these very difficult and complex decisions.

So of course one of the objectives of this bill is to ensure that our court system is open and transparent and that wherever possible we have the right balance between protecting the victims on the one hand and ensuring that the reputations of those charged and before the courts are not unfairly disparaged, allowing justice to take place and take its course in an open and transparent manner.

The emphasis and importance of justice under the Open Courts Act is obvious. We need to prevent suppression orders being made as a matter of course. They need to be the exception rather than the rule. We need to require courts and tribunals to give reasons to make suppression orders under the Open Courts Act and enable suppression orders to continue until the determination of an appeal or unless varied or revoked by an appellate court. The act enables the publication of relevant juvenile convictions of persons who continue to engage in serious offending as adults, subject to certain safeguards.

I just want to briefly touch on some of the aspects of the bill which I think are incredibly important in the light of some very disturbing and high-profile cases recently of family violence in our community. With record investment in trying to prevent family violence and in the very detailed response to the Royal Commission into Family Violence I think it is really important that if we are going to get that long-lasting cultural change, that we do support people, predominantly women, who are the victims of family violence in our court system. The bill amends existing prohibitions to allow adults who, as adults or as children, were victims of sexual or family violence offences to opt for disclosure of their identity once the offenders have been convicted. As others have noted, this is an incredibly important part of the healing process and it should be something that is actually backed up by the law and by our court system.

The bill creates a court process to allow the court to make an order authorising disclosures if the victim consents to disclosure and there are no other reasons for prohibition to apply. Again, it is so important that victims in these shocking circumstances are empowered through the legal process, not further victimised through the legal process. The bill also clarifies the right of a victim to apply to revoke a suppression order under the Open Courts Act 2013 solely on the basis of protecting the victim’s identity.

The court process under the bill requires a court to be satisfied of the consent of any other victim whose identity would be disclosed before it can make an order enabling victims of sexual or family violence offences to disclose their identities. As an additional safeguard the court must also be satisfied that the disclosure of a victim’s identity is appropriate in all the circumstances. I have been quite carefully noting those parts of the bill, because I think it is important that the balance is struck in the right way and that victims are protected in these reforms.

Others have spoken about some of the other aspects of the bill permitting courts to disclose information about an adult offender’s youth convictions. There were some recommendations made by Justice Vincent in relation to those matters. There are some amendments that permit judges of the County Court or Supreme Court sentencing an adult offender to publish a juvenile offender’s convictions. Of course there has to be the right balance struck in relation to these reforms as well because we are dealing with some of the most vulnerable people and some of the most difficult areas of offending in our system. Justice Vincent accordingly recommended that this discretion be subject to appropriate safeguards so that the intention of allowing young offenders to rehabilitate is upheld and people are given that chance.

In terms of consultation that has been undertaken in relation to this bill and the reforms that the government has undertaken, the report of the review was produced after consultation with over 40 stakeholders in private meetings and through a public submission process. The bill was developed in consultation with other key stakeholders, including the courts, the Office of Public Prosecutions, Victoria Police, the victims of crime commissioner and the commissioner for children and young people. So there has been a significant level of consultation undertaken in the development of this bill which, given the content of the bill, is absolutely appropriate.

At the heart of the bill is the presumption that we should always be striving for an open justice system and that the law needs to empower victims and empower the community, and that that is not always what has happened under the current system. This is indeed just part of the first tranche of reforms that this government is committed to delivering.

I have been very pleased to be able to make this contribution to the debate today along with many of my parliamentary colleagues in this place. I am not surprised that the speaking list has been extensive, because this is an issue that is really important in our community. It is awful to see people who are victims of crime not being able to get the justice that they think will be served in our court system. I think these reforms do go a significant way towards ensuring that our justice system delivers that accountability, that transparency and that open justice that are at the heart of the recommendations that were made to the Andrews Labor government in the reviews that I mentioned earlier. So without further ado, I would recommend the bill to the house.

Ms TAYLOR (Southern Metropolitan) (16:53): I certainly would like to pay respect to all the various speakers today. It is a very serious topic and I think it is very important that we as a community are able to express how we feel about these very important matters. Having said that, I seek not to repeat what has been said here today. I am going to try to draw out some other aspects of the implications of these changes.

What really stuck out to me when I was looking at the legislation and so forth was that it really is commanding a cultural change within judicial officers, legal practitioners and parties to a proceeding. Although I never worked in criminal law myself—I studied criminal law at university—I used to triage, in a charitable format, victims of domestic violence. One thing I know for sure from when those victims were sharing their stories with me is that one of the most important things for them was to be heard and, secondly, to be believed, because there is nothing worse, having had the courage to front up to a police station to try to progress a matter, than finding that people do not take what you are saying seriously and try to dismiss it, even after you have found all that courage within to come forward in what can be often a very embarrassing situation—not that it should be, but just by human nature we usually do not want to have to talk about such personal and disturbing matters.

So I am particularly buoyed—I hope that is not overstating the emotion—by the fact that there is this incredible and actually profound paradigm shift, a cultural shift, here in terms of allowing victims to have a voice. I will get to a further point on that issue because I think—and again, I do not want to overstate the ramifications of these particular amendments; there are plans, I understand from looking at the proposed legislative change, to come following the various recommendations from the review—that this is not the end point. As is typical of the nature of the law, it is being reformed bit by bit, over time, carefully and incrementally, to ensure that you do not then inadvertently create a further injustice when you are actually trying to make the situation better for all involved. And really, and this is the other angle that I was seeking to get to, when we are looking at a cultural change it is shifting a mindset as to when it is or is not appropriate to make or seek a suppression order.

On that note, one thing that I will say is that lawyers—and I am not here to defend lawyers; I am just trying to get into the mindset of all parties involved in these proceedings—have a duty to defend the client that presents in front of them. They do not have a choice to say, ‘Well, I’ll defend you because you’re innocent’ or ‘I’ll defend you otherwise because you’re guilty’. They have to defend the client that presents in front of them. Sometimes people will say, ‘How can you defend that person? They’re obviously guilty. They’ve done something absolutely terrible. Why are you defending them?’. But if we truly believe in our system that you are innocent until proven guilty, we must have both sides of any scenario defended appropriately.

What that means for that particular lawyer is that they have to operate within the law as it stands. Their duty is to put the very best case forward that they can. If the law were to persist as it has without these proposed changes and those suppression orders were permitted under these circumstances as they have been up until the present time, then that is what the lawyer would have to work within. I think this actually empowers the legal profession to be able to not only operate in a different way so that they can defend a particular client appropriately but also answer and respond to the changing needs of the community as well. I am referring to judges as well, because often they are damned if they do and damned if they don’t, which is a very difficult predicament.

We also know that the court process itself is not pleasant for anyone. It takes a lot of courage to get up and face cross-examination, and it is not enjoyable, but we do need that rigour in order to ensure that only guilty people are sent to prison. We do have to have that rigour, and I am not stating that we should in any way weaken the rigour that is required within the legal setting. Of course there are caveats and protections in place that have evolved over time to try to mitigate the trauma of the court process, but the downside of this is that it can be an antagonist and it can inhibit the courage of victims to come forward and go through the whole court process.

I do not want to overstate what these particular reforms may or may not deliver, but I hope that they will go some way to giving confidence to victims to see the court process through, knowing full well that they will have that opportunity to reveal their identity. Of course they do have to apply and obviously there are various caveats and protections, and if they do not want to reveal their private details, they do not have to. I think this will actually send a signal to the community that domestic violence—if we are looking at that in this circumstance—and sexual assault are not okay. By allowing victims to share their stories and show their pain we are actually sending a signal to the community that we expect better of our community and we expect better behaviour from people within our community.

I think that there are also sufficient protections within the bill itself in order to help overcome some of the injustices that we see when we look at circumstances where juvenile convictions of an adult offender in the past were not allowed to be shared, so to speak. I have often considered that particular issue and thought that there is a certain injustice when there is a history of repetition of particular offences and yet these are not allowed to be considered in sentencing situations. So it actually brings me some comfort on a personal level—thinking as a layperson—to know that there has been a shift in this regard in order to be able to, at the end of the day, achieve a more just and fair outcome.

I believe Mr Dalidakis and probably multiple speakers before me shared the very important caveats that must be in place when we are talking about disclosing the juvenile offences of an adult offender, which are where their adult offending is the same or of sufficient similarity to their child offending—so you are looking for a correlation there, which makes sense—where their adult offending is serious and where it is appropriate given the offender’s previous criminal history and the prospect of rehabilitation. That gives me some comfort that there are caveats in place to prevent these kinds of legislative changes actually causing more problems than we had in the first place. Ultimately it is our genuine will as legislators to ensure that any change that we bring about when it comes to law reform actually improves the outcomes for the community rather than making them worse.

The fundamental benefit for the media and the public is to reduce the number of suppression orders made by Victorian courts and tribunals—that is our genuine will. The bill will also allow the media to report more freely on proceedings before the Children’s Court by limiting prescriptive restrictions applying to the identification of parties and others.

The bill also provides for greater transparency in the making of suppression orders by requiring courts to give the reasons for making them. With regard to the suppression orders, this is the first, if you like, tranche—you have to be careful with the use of that word—of changes in that regard. My understanding is that there are more changes to come, but I salute the fact that we now have these changes here being brought and passed through the Parliament for the betterment of our community as a whole.

Something fundamental that I did learn back in law school—and there is nothing new about this—is that if the law is to be upheld then it has to have the respect of the majority of people in the community, and it also has to be enforced so people actually take it seriously. Hence it is very important that the law reflects the changing attitudes of the community over time. That is fundamentally what this amending legislation is seeking quite rightly to do—to reflect the changing attitudes over time of the community in particular about offences such as domestic violence and sexual assault. If you think about the people who have committed domestic violence or sexual assault—and there are many reasons and complexities as to why a person might commit domestic violence or sexual assault, and I am not a psychologist, so far be it for me to go into those various reasons. On some level part of the reason was perhaps that we did not have the various mechanisms in place to be able to validate a victim’s experience, to set them on their journey and to ensure that they were supported in the process towards a conviction as is required and appropriate. Ultimately we were not sending that signal that it is not okay, which therefore allowed the perpetrators on some level—and I am generalising—to say to themselves, ‘Well, it’s okay. I have the right to do this’.

Fundamentally what underpins this is a desire of the community for a sense not only of justice but also of equality—making sure that men and women are treated fairly and equally in the community and that, where people in the past might have overlooked a slap or a very destructive form of physical, emotional or other abuse, we now take a very different attitude. So this is a very important part of a holistic approach to overcoming some of the most serious offences in our community.

Accordingly, I wholeheartedly support this bill. I know that there are more legislative changes which will be required in order to be able to realise the various recommendations from the review, so I would ask, I suppose, also for the tolerance of the community to understand that it is important that we are careful in the implementation of each of these very significant and profound changes to ensure that we do get as close as we can to what we deem to be justice in our community. On that note, I commend the bill to the house.

Mr GEPP (Northern Victoria) (17:06): I too rise to speak in support of the Open Courts and Other Acts Amendment Bill 2019. There has been a long list of speakers, and it is going to be very, very difficult not to traverse some of the ground that has already been covered by many of the speakers. But that is because of course it is a very important bill. It is important because it strives to ensure that our courts are open and transparent and that the law protects the public’s right to information as well as all of the rights of the people involved in court proceedings.

The bill of course implements in full or in part seven of the 18 recommendations of the Open Courts Act 2013 review that was conducted by Justice Frank Vincent. I cannot think of anyone more qualified than Justice Vincent to have conducted the review. I think it is important. If other speakers before me have dealt with Justice Vincent’s qualifications, then I apologise. But of course he served 16 years as a judge of the Supreme Court, followed by a further eight years as a judge of the Court of Appeal. He was deputy chair and then chair of the Victorian Adult Parole Board, a position he occupied for some 17 years. He then served as a consultant to the Australian Law Reform Commission and was chair of the Australian Criminal Bar Association, amongst many other things. So there is nobody more qualified to conduct the review on behalf of the government and the Victorian Parliament.

Justice Vincent was particularly asked to look at the suppression order regime that existed in Victoria at the time, and he was asked to review the Open Courts Act 2013 and other Victorian legislation to consider some very important points, and they were whether the current laws struck the right balance between people’s safety, their privacy, fair court proceedings and the public’s right to know. It was a little over 12 months ago that that final report was made public, in March 2018, and it made 18 recommendations for improving existing suppression laws, and I will talk about a couple of those during the course of my contribution. The government has given support in full or in principle to seven of the 18 recommendations, with one still under consideration.

As I said at the beginning of my contribution, the bill in full or in part implements seven of the 18 recommendations. As Ms Taylor and others have noted during the course of their contributions, this is just the first tranche of legislation; there will be other legislation that the Parliament will be asked to consider in due course. But in particular we are looking at the importance of open justice under the Open Courts Act, preventing suppression orders being made under the Open Courts Act when provisions under other legislation apply, requiring courts and tribunals to give reasons for making suppression orders under the Open Courts Act, enabling suppression orders to continue until the determination of an appeal or unless varied or revoked by the appellate court and enabling the publication of relevant juvenile convictions of persons who continue to engage in serious offending as adults, subject to certain safeguards.

Many of the speakers before me have spoken about the importance of the presumption of innocence of anyone before a court and the rights that they have. Importantly, those rights need to be protected under any legislation. But the one that I think everybody that I have heard speak so far in this debate has been captured by is enabling adult victims of sexual and family violence offences to speak more openly about their particular experiences. That gives you some context into some of the issues dealt with by the bill.

I do want to talk a little bit about something raised earlier when we were I think debating the Major Transport Projects Facilitation Amendment Bill 2019. Mr Davis, when he was making his contribution raised the issue of the Scrutiny of Acts and Regulations Committee and its relevance. If I am misquoting him, then I apologise; I do not mean to. But he suggested that it perhaps did not have the teeth that it perhaps once did. I am not here as the chair of that committee to defend that committee. The role of the committee of course is a matter for the Parliament; it is not a matter for me as the chair. But when I was reading through this legislation, just to give Mr Davis and the house some comfort, I went and looked at the statement of compatibility, because contrary to popular belief—and as Ms Taylor, who sits on the committee with me from this place, as well as Mrs McArthur, who is not well, and we all wish her the best for a speedy recovery, could inform Mr Davis and all members of the house—when we do consider a piece of legislation, or indeed a regulation, we do so very, very thoroughly. We do not just give it a cursory glance. We are given a wad of papers every week. They are quite voluminous, and we take them very, very seriously, and we do assess the legislation that comes before this place against the human rights charter.

When I was doing my research on this piece of legislation I did turn to the statement of compatibility, and that statement of compatibility of course is there to ask the questions about whether or not the minister—in this case the Attorney-General—believes that the particular legislation is compatible with the human rights charter.

I note from the statement of compatibility that the Attorney-General has said, in her opinion, the human rights under the charter are relevant to the bill: the right to a fair hearing under section 24 of the charter; the right to freedom of expression under section 15(2) of the charter; the right to privacy under section 13 of the charter; the protection of families and children under section 17 of the charter; the presumption of innocence under section 25(1) of the charter; the right against arbitrary and unlawful detention under sections 21(2) and 21(3) of the charter; and the rights of children in the criminal process under section 23(3) of the charter and in criminal proceedings under section 25(3) of the charter. The advice that we get from the statement of compatibility is that in the view of the Attorney-General the bill is compatible with these human rights.

To give some robustness to the work that the Scrutiny of Acts and Regulations Committee actually does do on a piece of legislation such as this, we rely upon the advice that we got from a consultant that was first attached to the Scrutiny of Acts and Regulations Committee back in 2007, Professor Jeremy Gans. Professor Gans is a professor at Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds high degrees in both law and criminology, and as I said, in 2007 he was appointed as the human rights adviser to the Victorian Parliament’s Scrutiny of Acts and Regulations Committee. The advice goes on to detail some of the work that Professor Gans has done over the journey in both his role as the adviser to that committee but also in his professional life as a criminologist, if I could use that terminology.

On this particular bill we wrote to the Attorney-General and we asked a couple of questions. The Attorney-General’s response is contained in the Alert Digest that has been published in this place. That gives some strength to the role of SARC, the interrogation that we actually do apply to legislation and regulations that come before us, and it supports, if you like, the things that other speakers have said consistently throughout this debate in their contributions in relation to some of the rights that have to be protected in all of these pieces of legislation. SARC has certainly been satisfied through the work that it has done in assessing this piece of legislation against the human rights charter to ensure the rights of individuals throughout the system, be it the accused or the victim, are protected. The advice that we received and subsequently tabled in this place in the Alert Digest, which we table every first sitting day of every sitting week, contains a response from the Attorney-General to the committee about this particular bill. It went to ensuring that the rights that people have spoken about so eloquently today of all participants in some of those proceedings have been protected.

I thought it was important that we provide comfort to at least Mr Davis but also to the entire house that we do in fact take that role very, very seriously and we do apply the appropriate test with the assistance of some of the most qualified and senior criminologists in this state. In Professor Gans’s case, for 10 years he has been advising our committee about the application of the human rights charter to all of these pieces of legislation. He does an excellent job. He certainly provides great support to the committee that Ms Taylor, Mrs McArthur and I sit on. We meet at the beginning of every parliamentary week to consider all of the legislation and regulations that come before this place.

The bill does many, many things, as we have talked about. At the outset I asked why we were doing this and what we were trying to achieve. What we are trying to achieve is the openness and transparency that everybody in our community wants from our judicial system. Everybody wants to be able to look and listen to what is going on throughout our judicial system and understand it, but importantly we want to also ensure that everybody’s rights within that system are protected—those that are accused but particularly also the victims. This is unapologetically directed to victims rights—and we heard many, many contributions today. Ms Stitt particularly referenced people who are victims of family and sexual violence. They now have the right to choose to have their identity disclosed, to make that proposition to the courts and for the courts to then make a determination. If that assists victims of some of those evil crimes to heal and manage the closure of their horrendous ordeal, then all strength to this legislation. With those words, I commend the bill to the house.

Ms TIERNEY (Western Victoria—Minister for Training and Skills, Minister for Higher Education) (17:21): Firstly, I would like to thank everyone for their contributions in this debate this afternoon. Suppression orders in courts are generally used at points that are very distressing for people, and I think that with everyone’s contributions today we have been able to demonstrate to those that have been in that situation that we do as parliamentarians take these issues very seriously. Indeed this debate has been underlined with respectful contributions. I also wanted to indicate that the nature of this bill essentially is about getting the balancing act right, and I think in general terms there is uniformity of opinion that that is about right. So it has been pleasing to hear the broad-based support in this chamber for the underlying principles of this legislation.

It is important legislation as we move to make our justice system as open as possible. Suppression orders are an area of the law that is of particular interest to many in the community. They have been cause for much discussion in recent times in particular, and indeed there were many conversations conducted in the media during the recent trial of George Pell. Transparency is absolutely an important part of our justice system. It is not, however, the only important part of our justice system. This legislation has acknowledged that as much as possible—that justice should not be pursued nor indeed decided in the dark. This bill acknowledges that there are times when suppression orders should be used, but it also draws a line the sand and states that they should not be without a limit, that there should be a time period and that they should not be used indiscriminately.

I do not wish to unnecessarily reiterate the points that have been canvassed for a significant number of hours today about the inception and development of this legislation. However, I will take a brief moment to remind the chamber that the legislation has come out of the Vincent review, which was a review of the operation of the Open Courts Act 2013. Of the review’s 18 recommendations, 14 are legislative and four are non-legislative. The non-legislative recommendations are being progressed independently, and the government has already implemented recommendation 4 by asking the Victorian Law Reform Commission to review the laws of contempt and aspects of the Judicial Proceedings Reports Act 1958. The government has already implemented recommendation 16, which relates to the disclosure of the identities of adult victims in Children’s Court proceedings. This was done in the Justice Legislation Amendment (Victims) Act 2018. This leaves 13 outstanding legislative recommendations. The recommendations implemented in this bill are those that can be implemented now. The recommendations that are not being implemented are complex and require further consultation and funding before they can be given effect.

The support proposed for future implementations is as follows, and many speakers—particularly government members—have mentioned that there is a second tranche, another bill, that will come before this Parliament. That will do a number of things, including: ensuring the reasons for making suppression orders are made publicly available in written form—that is recommendation 6; establishing a public register of suppression orders—that is recommendation 7; treating all suppression orders as interim orders for five days, after which they would become final unless challenged—that is recommendation 8; removing the distinction between proceeding and broad suppression orders in the Open Courts Act—that is recommendation 10; amending the Serious Offenders Act 2018 to restrict the making of orders suppressing the identities and whereabouts of serious sex offenders, having regard to the ramifications of disclosure, including individuals’ personal safety—that is recommendation 14; and requiring the making of interim suppression orders at initial bail hearings in cases involving alleged sexual or family violence offences or creating a statutory prohibition as an alternative mechanism to protect victims, which is recommendation 17.

The other supported legislative recommendations are expected to be implemented in 2020. I think there were some issues that have been raised by people about the timing of where the second tranche of recommendations might be forthcoming, so we do indicate that the objective is definitely 2020. The government is giving further consideration to recommendation 18, and in that consideration there will be full consultation with the stakeholders involved. That of course is about allowing the Public Interest Monitor to act as a contradictor in suppression order applications. So I think that there will be full and robust discussion that will ensue on those areas.

Of the four recommendations that are not legislative in nature, one, as I said, was implemented when the government asked the Victorian Law Reform Commission to review the laws of contempt and aspects of the Judicial Proceedings Reports Act. The remaining three are being progressed independently, with a view to implementing them as soon as possible. So I think that gives members of the chamber an idea about what the government will be doing leading up to the next tranche and indeed when we can expect to see an outcome that will enable the passage of the next round of amendments to the act.

But can I say that whilst there are many aspects to what is before us this afternoon, I think one of the points of significant interest that the community has is what the actual effect will be in terms of the number of suppression orders. Indeed with this bill it is expected that there will be a reduction in the number of suppression orders made by Victorian courts and tribunals through implementing four key changes recommended by the review. These changes are to reinforce the importance of open justice and make clear that suppression orders under the Open Courts Act are only to be made as exceptions to the principle of open justice where necessary. They are recommendations 1 and 2. This will ensure that courts do not make suppression orders too easily by applying a mere presumption in favour of openness as under the current law. Further, it will prevent suppression orders being made under the Open Courts Act when a provision in other legislation prohibits or restricts the publication of information. That is recommendation 4. This will reduce the number of suppression orders by preventing duplication. An example of such a provision is the prohibition against publishing the identity of a victim or alleged victim of a sexual offence in the Judicial Proceedings Reports Act 1958.

Further, requiring the courts to give reasons for making a suppression order under the Open Courts Act particularly implements recommendation 6. This will ensure that orders are only made to the extent necessary. It will also ensure that suppression orders made in a proceeding in a lower court continue on appeal. That is recommendation 9. This will reduce the making of suppression orders which essentially protect the same information of disclosure.

As many other speakers have mentioned, it also deals with the publishing of juvenile convictions of young offenders. It also deals with the reporting of Children’s Court proceedings. It also talks about the expectations to give reasons for making every suppression order. It also deals with the reasons for making suppression orders being publicly available in a written form. Of course this bill will also benefit victims of sexual or family violence offences seeking to disclose their identities. This bill also protects victims of sexual or family violence offences who do not want their identities disclosed.

Overall I consider this to be a good bill in that it does get the balancing act right. It ensures that various users of the justice system, whether it be the courts themselves or indeed victims and perpetrators, understand that there is going to be greater transparency but that at the same time the rights of individuals will be protected.

Whilst this has been a fairly lengthy debate and discussion, the fact of the matter is that this has been an issue of interest and concern in the community for some time. As I mentioned and others have mentioned, the principles have been highlighted in a very active way in the media in recent times as well. In fact it is contemporaneous that this bill is before the house this afternoon, because it does give effect to making sure we do have a more finely tuned justice system in this state, where the principles of openness and transparency get a good footing. I look forward to the next tranche that comes before the house in 2020 that will deal with the outstanding recommendations of the Vincent review.

Again, I thank all members of the chamber who contributed to this debate this afternoon. I think we have canvassed a range of areas that are contained in the bill and have been able to provide a number of examples and lived experience that have added to the true nature of what we are wanting to do with respect to this bill today. I commend this bill to the house. I think it has got the balance right, and indeed I look forward to seeing the next tranche come before this house next year.

Motion agreed to.

Read second time.

Third reading

Ms TIERNEY (Western Victoria—Minister for Training and Skills, Minister for Higher Education) (17:36): I move, by leave:

That the bill be now read a third time.

Motion agreed to.

Read third time.

The PRESIDENT: Pursuant to standing order 14.27, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the bill without amendment.