Tuesday 19 November 2013

8 things you need to know about the Open Courts Bill

The Open Courts Bill kicks off in December 2013, popping all the suppression order powers of the Victorian courts and VCAT into one convenient piece of legislation.

In case you don’t know, a suppression order is a court order restricting publication or other disclosure of information in connection with a court proceeding.  A closed court order is an order restricting who can be in the courtroom during a proceeding.

Whilst it is primarily a consolidation of the current law, there are some important differences for Victorian litigators to keep in mind:
  1. The Bill creates express presumptions in favour of disclosure of information and holding hearings in open court.  A court or tribunal must have regard to these presumptions when considering whether to make a suppression order or a closed-court order.
  2. The Bill expressly provides that that suppression and closed court orders can only be made in specified limited circumstances where there is a strong and valid reason for doing so.
  3. Where a suppression order is made, the information that is restricted from disclosure must be limited to that which is necessary to achieve the purpose for which the order is made.  The information to which the order relates must also be clearly stated in the order.  Also, the order must be limited to achieving the purpose for which it is made.
  4. Suppression orders must be limited in their duration.  A court or tribunal may only make an order for a fixed or ascertainable period, or until the occurrence of a specified future event.  If it is possible that the future event will not occur, the order also must contain an expiry period of less than five years.
  5. Before making a suppression order, a court or tribunal must be satisfied on the basis of sufficient credible information that the applicant has satisfied the grounds for making a suppression order.  
  6. The Bill expressly protects the right for news organisations to be heard on and contest an application for a suppression order.  News organisations are also given express statutory rights to seek review of orders that are made.
  7. The Supreme Court does retain its powers to make suppression and closed-court orders in the exercise of its inherent jurisdiction, but subject to:
    • The presumptions in favour of disclosure and public hearings; and 
    • The procedural requirements regarding duration, limited scope, evidentiary basis and review.
  8. The Bill proposes grounds on which a suppression order may be made.  These include:
    • Preventing prejudice to the proper administration of justice
    • Preventing prejudice to national or international security
    • Protecting the safety of any person
    • Avoiding undue distress or embarrassment to a party to or witness in criminal proceedings involving a sexual offence or family violence offence
    • Avoiding undue distress or embarrassment to a child who is a witness in any criminal proceeding.
This consolidates the existing grounds, except for the last two, which are worthy additions.

If you are in the Victorian Government and want more information about suppression orders or the Open Courts Bill, please contact:

Dianna Gleeson
Acting Managing Principal Solicitor
t 8684  0404

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