You might remember an earlier blog regarding The Open Courts Act 2013 (the Act) which came into operation on 1 December 2013. To refresh your memory, the purpose of the Act is to consolidate and reform statutory powers of Victorian courts and tribunals in relation to granting suppression orders and closed-court orders. These new measures aim to strengthen and promote the principles of open justice and free communication of information by creating a presumption in favour of disclosure of information. This blog aims to help you understand exactly what this means for the Coroners Court which must now have regard to this presumption of disclosure in determining whether to make a suppression order.
Powers of Coroners Court to grant suppression
The Act sets out the test for the Coroners Court to grant a proceeding suppression order, which is an order prohibiting or restricting the disclosure of a report of the whole or any part of a proceeding or any information derived from a proceeding.
The Act preserves the power of the Coroners Court to make a proceeding suppression order in an investigation or inquest if a Coroner reasonably believes that a suppression order is necessary because disclosure would be likely to prejudice the fair trial of a person or be contrary to the public interest.
However, the Act now provides that the Coroners Court cannot grant a suppression order, unless satisfied by evidence, or sufficiently credible information, that the grounds for making the suppression order are established. The Coroners Court may also make interim proceeding suppression orders. However, a Coroner is required to address the substantive application for a suppression order 'as a matter of urgency'. An interim suppression order may be made without the Coroner determining the merit of the grounds of the application.
The Coroners Court can make a proceeding suppression order on its own motion or by application by an interested party, or any other person considered by the Coroners Court to have sufficient interest in the order being made. An interested party seeking a suppression order over evidence must file a Form 46 - Notice of Application for Suppression Order (the Notice). The Notice can be accessed on the Coroners Court website (http://www.coronerscourt.vic.gov.au/). The Notice must specify the details of documents, materials, names or other information and the extent to which suppression is sought, and outline the factual and legal basis to support grounds for the application. The applicant must give three business days' notice to the Coroners Court and to other interested parties of the making of the application.
On receiving a Notice, the Coroners Court must take reasonable steps to ensure that any relevant news media organisations are notified of the application for suppression. The information contained in the Notice itself is not subject to suppression and the Coroners Court will provide a copy of the Notice to news media organisations and interested parties. Various persons, including news media organisations and other interested parties, may appear and make submissions at the hearing of the application for suppression. This process is intended to promote the principles of open justice, in that news media organisations may adopt the role of contradictor and in turn, provide the Coroners Court with the benefit of submissions in favour of the principle of open justice and disclosure of information.
These notice requirements do not apply to a proceeding suppression order on a Coroner's own motion.
At times, circumstances may dictate that an interested party is not aware of the need for a suppression order with sufficient time to satisfy the notice requirements. For example, this may occur where particular documents are requested during the course of an inquest, or in the course of oral evidence given by a witness. In such circumstances, the Coroners Court may still hear the application, but only if it is satisfied that there was a good reason for the notice requirements not being met, or it is in the interests of justice that the Coroners Court hear the application without notice.
Duration of suppression orders
The Act imposes an obligation on the Coroners Court to ensure that a suppression order operates no longer than is reasonably necessary to achieve the purpose for which it is made. A Coroner must determine the period for which the suppression order will operate and specify that period in the order itself. The order may be made for a fixed period, or until the occurrence of a specified future event. For example, in the case of a suppression order which prohibits disclosure of an individual's personal information, a specified future event
may be that person's death.
If you are in the Victorian Government and would like more information on this topic please contact:
Managing Principal Solicitor
t 03 8684 0415
t 8684 0465
t 03 8684 0279
t 8684 0428