On 19 February 2019, the Open Courts and Other Acts Amendment Bill 2019 (VIC) (‘the Bill’) was reintroduced to the Victorian Legislative Assembly by Attorney-General, Jill Hennessy. The Bill was previously introduced on 7 August 2018 as the Open Courts and Other Acts Amendment Bill 2018 (VIC), but lapsed due to the expiration of the 58th Parliament.
The Bill passed both houses of parliament on 2 May 2019 and was assented to on 7 May 2019. The Open Courts and Other Acts Amendment Act 2019 (VIC) (‘the Act’) has yet to commence, and will automatically commence on 7 February 2020 if not proclaimed on an earlier date.
The Bill was introduced following a 2017 independent review of the Open Courts Act 2013 (VIC) (‘the 2013 Act’) that was conducted by former Victoria Court of Appeal Judge Frank Vincent. The review looked into whether the 2013 Act balanced:
In its conclusion, the review found that further improvements were needed to ensure that future orders were clearer and made only when necessary.
Its recommendations include:
According to the Government, the Act delivers on the first stage of the Government’s response to these recommendations. The Act focuses on the importance of transparency in the court systems, increasing accountability, integrity and protection by ensuring open justice. The Attorney-General notes in her media release:
“The laws are designed to enhance public confidence in Victoria’s legal system and empower victims to share their stories publicly without fear of breaking the law.”
Under the new amendments, suppression and closed court orders can only be used when necessary. For example, in cases where publication of information would create substantial risk against the administration of justice or cause undue distress of victims of sexual or family violence or endanger an individual.
Under the Judicial Proceedings Reports Act 1958 (VIC) (‘the 1958 Act’) victims of certain sexual offences are prohibited from being publicly identified. However, in promoting a legal system that respects and promotes the rights of victims, the Act will give victims over the age of 18 the option to speak publicly about their experiences if they so choose. Under the amendments, courts will be able to make an order lifting the prohibition if the victim consents and there are no other reasons for the information to be concealed. Attorney-General Hennessy comments in her second reading speech to the Legislative Assembly:
“People who are victims of crime should also able to tell their story. For some, this can be an important part of their recovery. It can be frustrating to be stopped from speaking about what has happened to you.”
Suppression orders will also now require a statement of reasons from courts. The statement will have to outline the basis, duration and scope of information for the order. This statement does not need to be in writing, however, the reasons must be sufficient to explain and justify the order. The aim for this amendment is to balance the need of the community to understand the need for the information to be kept private, but maintain quick and efficient court processes.
The Act also amends the Children, Youth and Families Act 2005 (VIC) (‘the 2005 Act’) in regards to publication of juvenile convictions. Under this amendment, judges will have the discretion to publish convictions occurring in an individual’s youth, if the juvenile and adult offences are sufficiently similar and where the adult offence is a serious offence. This was originally prohibited by the 2005 Act in order to increase the chances of rehabilitation for an individual by avoiding a stigma of being known as a long-lasting criminal. However, the Attorney-General notes that this reasoning does not apply to offenders who continue to commit serious crimes when they become adults.
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Open Courts and Other Acts Amendment Act 2019 (VIC) and supporting materials available on TimeBase LawOne.
Open Courts and Other Acts Amendment Bill 2019 (VIC), second reading speech and explanatory memorandum available on TimeBase LawOne.
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