Terms of reference
[Referral to the Victorian Law Reform Commission pursuant to section 5(1)(a) of the Victorian Law Reform Commission Act 2000 (Vic) on 12 October 2018.]
Contempt of court, Judicial Proceedings Reports Act 1958
and enforcement processes
The Victorian Law Reform Commission is asked to review and report on the law relating to contempt of court, the possible reform of the Judicial Proceedings Reports Act 1958 and the legal framework for enforcement of prohibitions or restrictions on the publication of information.
The Commission should consider whether, and how, the common law of contempt should be reformed, and whether and to what extent it should be replaced by statutory provisions.
The Commission should consider all types of contempt in its review, including:
• contempt in the face of the court;
• sub judice contempt;
• contempt by publication;
• juror contempt; and
• contempt by scandalising the court.
The Commission is asked to consider whether, and how, the Judicial Proceedings Reports Act 1958 (JPRA) should be reformed, including whether the Act should be repealed and prohibitions against publication of certain information should instead be contained in subject-specific legislation or in the Open Courts Act 2013. As part of this review, the Commission should consider whether the JPRA, or alternative legislation, should be amended to temporarily restrict the publication of sensitive information in relation to alleged sexual or family violence criminal offences upon the laying of charges.
The Commission should also consider the underlying principles for enforcement of prohibitions or restrictions on the publication of information, with particular reference to the law relating to contempt, the JPRA and the Open Courts Act. It should recommend new procedural, administrative and legislative changes if appropriate to do so. The Commission should consider, in addition to any matters it considers relevant:
• the adequacy of existing penalties for breaches of orders;
• appropriateness of the fault elements that must be proven to establish an offence;
• relevant defences to the commission of an offence; and
• the process for bringing proceedings to enforce these laws, including who should be empowered to commence proceedings for breaches.
In considering enforcement of restrictions on the publication of information the Commission should also review and make recommendations in relation to existing suppression orders made before the commencement of the Open Courts Act which do not contain an end date.
In conducting this reference, the Commission should take into account the development of the internet and new media, and research on juror decision-making. It should also have regard to the recommendations of the Open Courts Act Review, published in March 2018.
The Commission is to report by 28 February 2020.