15.27 In Chapter 12, the Commission recommends retaining and relocating two of the restrictions on publication in the Judicial Proceedings Reports Act. These prohibit reporting on directions hearings and sentence indication hearings, and publishing details likely to identify a victim of a sexual offence.
15.28 As discussed in Chapter 12, these restrictions have different purposes. The restriction on reporting of directions hearings and sentence indication hearings is designed to enable early resolution of criminal cases, by allowing free discussion within pre-trial hearings of information that may prejudice a later trial. The restriction on identification is designed to protect victims against further stigma and trauma.
15.29 A breach of these restrictions is a summary offence. The maximum penalty for an individual is four months imprisonment and/or a fine of 20 penalty units and, for a body corporate, 50 penalty units. Both are strict liability offences.
15.30 The maximum penalty for individuals for identifying victims of sexual offences is similar to maximum penalties in other Australian states and territories, except for South Australia and Western Australia, which do not provide for imprisonment. (See Appendix L).
15.31 There is significant disparity with respect to bodies corporate. In New South Wales, the maximum penalty for a body corporate is 500 penalty units, 10 times the penalty in Victoria. In Queensland, the penalty is higher still, at 1000 penalty units.
15.32 As noted in the consultation paper, the restriction on reporting of directions hearings and sentence indication hearings is based on the restriction in the Criminal Justice Act 1987 (UK). There, the offence is also summary, and carries a maximum penalty of a fine of £5000. In New South Wales, publishing ‘case conference material’ is a summary offence, liable to a maximum penalty of 20 penalty units for an individual and 100 penalty units for a body corporate.
15.33 Several responses stated that the penalty for breaching the restriction on identifying victims of sexual offences was inadequate. The Victims of Crime Commissioner submitted that the penalty needed to be increased to be an effective deterrent and ‘illustrate the importance of protecting victims from additional trauma, shame, embarrassment or unwanted attention’.
15.34 Stakeholders did not address the appropriateness of the penalty for breaching the restriction on reporting on directions hearings and sentence indication hearings.
Commission’s conclusions: increase the penalty for breach of Judicial Proceedings Reports Act restrictions
15.35 The Commission considers that the maximum penalties are too low for breaching restrictions on publication that currently appear in the Judicial Proceedings Reports Act (but which the Commission recommends moving to other Acts). They fail to reflect the seriousness of the harm that can result from a breach.
15.36 Further, where possible, the maximum penalties should be consistent with corresponding penalties in other Australian states and territories.
15.37 The Commission therefore considers that the maximum penalty for breaching the restriction on reporting on directions hearings and sentence indication hearings, and on publishing details likely to identify a victim of a sexual offence, should be raised to imprisonment for six months and/or 60 penalty units for an individual, and 300 penalty units for a body corporate. This is more consistent with penalties in other states and territories. As such, the offences will remain summary offences.
123 The maximum penalty for breach of the prohibitions on the publishing of information about directions hearings and sentence indications, or information likely to lead to the identification of a victim of a sexual offence, currently provided for in the Judicial Proceedings Reports Act should be increased to six months imprisonment and/or 60 penalty units for an individual, and 300 penalty units for a body corporate.
Judicial Proceedings Reports Act 1958 (Vic) ss 3(1)(c), 4(1A).
Ibid ss 3(3), 4(2).
Evidence Act 1929 (SA) s 71A; Evidence Act 1906 (WA) s 36C.
Note, however, that the amount of a penalty unit in New South Wales is $110 as at 1 July 2019, while in Victoria it currently stands at $165.22: Crimes (Sentencing Procedure) Act 1999 (NSW) s 17; Treasurer (Vic), ‘Monetary Units Act 2004 (Vic)—Notice under Section 6, Fixing the Value of a Fee Unit and a Penalty Unit’ in Victoria, Victoria Government Gazette, No G 14, 4 April 2019, 544, 572.
Criminal Law (Sexual Offences) Act 1978 (Qld) s 6. The amount of a penalty unit in Queensland is $133.45 as at 1 July 2019: Penalties and Sentences Regulation 2015 (Qld) reg 3.
Criminal Justice Act 1987 (UK) s 11.
Ibid s 11A; Criminal Justice Act 1982 (UK) s 37.
Criminal Procedure Act 1986 (NSW) s 80.
Submissions 20 (Criminal Bar Association), 33 (Victims of Crime Commissioner, Victoria). The CBA Media Law Section also noted that the maximum penalties for this offence were ‘trifling in comparison’ to those under the Open Courts Act: Submission 18 (Commercial Bar Association Media Law Section Working Group).
Submission 33 (Victims of Crime Commissioner, Victoria).