Scope of the reference

1.3 The terms of reference cover three distinct but related areas of law:

• the common law of contempt of court

• the Judicial Proceedings Reports Act

• the Open Courts Act.

1.4 Underpinning each of these areas of law and this report is a concern with how best to balance:

• the need to safeguard the proper administration of justice

• freedom of expression and freedom to criticise public institutions

• the protection of a person’s privacy and reputation.

Contempt of court

1.5 In considering the law of contempt of court, the Commission focuses on its most common forms:

• disruptive behaviour in or near the courtroom—also known as contempt in the face of the court

• contempt arising from non-compliance with court orders or undertakings—also known as disobedience contempt

• juror contempt

• contempt by publication that interferes with or prejudices pending proceedings—also known as sub judice contempt

• contempt by publication that interferes with the administration of justice as a continuing process—also known as contempt by scandalising the court.

1.6 This inquiry does not consider contempt arising in other contexts, such as contempts of parliament, tribunals or commissions of inquiry which are outside the Commission’s terms of reference.

1.7 However, tribunals are regularly confronted with issues of contempt, in particular, contempt in the face of the court and disobedience contempt. Tribunals are empowered to deal with contempt under their constituting legislation,[1] as are other bodies or persons with a quasi-judicial role, such as the Chief Examiner and the Independent Broad-Based Anti-Corruption Commission.[2]

1.8 Accordingly, the government will need to consider the broader implications of any reforms to the common law of contempt of court for Victoria’s court system as a whole, including tribunals and other bodies with a quasi-judicial role, should it decide to implement the recommendations in this report.

The Judicial Proceedings Reports Act

1.9 The terms of reference asked the Commission to consider whether there is a need to retain the provisions of the Judicial Proceedings Reports Act and, if so, whether such provisions should be moved to subject-specific legislation or in the Open Courts Act.

1.10 The terms of reference also asked the Commission to consider the need for legislative change to temporarily restrict the publication of sensitive information when charges are laid in relation to alleged sexual or family violence offences.

1.11 In addition, the terms of reference asked the Commission to consider the Judicial Proceedings Reports Act in the context of the enforcement of prohibitions and restrictions on publication.

The Open Courts Act

1.12 The terms of reference specifically asked the Commission to consider the Open Courts Act when reviewing the enforcement of prohibitions and restrictions on the publication of information.

1.13 Accordingly, the Commission’s consideration of the Open Courts Act was limited to the issues identified in the terms of reference, which included suppression orders made before the commencement of that Act that do not contain an end date.[3]

1.14 The report does not consider the Open Courts Act more broadly and does not consider other legislation with prohibitions or restrictions on the publication of information, except as may be required by way of comparison.

Assumptions

1.15 The Commission has assumed that existing laws will continue to apply. In particular, the Commission has assumed that the following will continue to apply:

• the laws of evidence, including when evidence is admissible and the protection of journalists from disclosure

• the laws of criminal procedure, including the jury system

• the laws in relation to family violence and sexual offences, including the treatment of victim survivors.

1.16 These laws are relevant to contempt law. For example, as stakeholders submitted, sub judice contempt disproportionately affects journalists,[4] and the protection of a free press is a critical element of the principle of open justice as well as freedom of expression.[5] The scope of sub judice contempt is also affected by the laws regulating the admissibility of evidence, as much of sub judice contempt concerns potentially prejudicial material, which is generally inadmissible at trial. While there is debate about the merits of this aspect of the law of evidence, the Commission has proceeded on the basis that the current position on the issue remains unchanged. The merits of this position are outside the scope of the current terms of reference.

1.17 The rationale for sub judice contempt also depends on the continuation of the jury system. In this context, the Commission notes that the Department of Justice and Community Safety is currently inquiring into the desirability of judge-alone trials.[6] However, in undertaking this review, the Commission has assumed that jury trials will remain an essential feature of Victoria’s legal system and will continue in their current form.

1.18 Victim survivors in consultations also raised broader issues concerning their protection by the law and from the media.[7] These are relevant to the discussion in Chapter 12 about the operation of the Judicial Proceedings Reports Act.

1.19 While these issues affect the operation of the law of contempt and have been considered as part of the underlying context for the recommendations in this inquiry, the Commission has not made recommendations to change these laws. Such recommendations would extend beyond the terms of reference in this inquiry and have implications in other areas of the law that the Commission has not fully considered.


  1. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 137.

  2. See Major Crime (Investigative Powers) Act 2004 (Vic) s 49; Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ss 152–8.

  3. Prior to the Open Courts Act end dates were optional whereas under the Open Courts Act end dates are mandatory. Hence there is a limited number of pre-Open Court Act orders with indefinite operation.

  4. See, eg, Submissions 6 (Professors Mark Pearson, Patrick Keyzer, Anne Wallace and Associate Professor Jane Johnston), 17 (Dr Denis Muller); 23 (MinterEllison Media Group).

  5. Human Rights Committee, General Comment No. 34 (Article 19: Freedoms of opinion and expression), UN Doc CCPR/C/GC/34 (12 September 2011) [13]–[17].

  6. Farrah Tomazin and Sumeyya Ilanbey, ‘Andrews Government Considers “Judge-Only” Trials for Criminal Cases’, The Age (online, 13 December 2018) <www.theage.com.au/national/victoria/andrews-government-considers-judge-only-trials-for-criminal-cases-20181213-p50m5u.html>.

  7. Consultations 1 (Representatives of victims of crime support organisations), 3 (Representatives of victim survivors of family and sexual violence).

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