Review of the Open Courts Act 2013

Liberty Victoria had the opportunity to consider the detailed submission by Victoria Legal Aid (‘VLA’) and we respectfully endorse it and its recommendations.

We also make the following brief observations on overarching principles that can be applied to all Acts that contain provisions that restrict or prohibit publication:

1. The principle of open justice is fundamental to the proper administration of justice. That principle is clearly reflected in the Open Courts Act 2013.
2. It is important that the legal system operate in a way that is transparent, accountable and accessible to the public. Indeed, Liberty Victoria is concerned that some criticisms of the justice system stem from ignorance and misinformation. 
3. Liberty Victoria supports measures that would give judicial officers, parties to proceedings, and the wider community, more clarity in relation to the operation and effect of non-publication orders.
4. While the open justice principle is of fundamental importance, it is not absolute and may be limited in certain circumstances.
5. Accordingly, the issue of making non-publication orders often involves balancing competing rights, including those rights protected by the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’), such as the right to a fair trial, the right to privacy, and the right to free expression. 
6. Simply put, it is our view that judicial officers are best placed to determine whether non-publication orders are necessary in a given case in order to protect those competing rights. Often that will require hearing evidence as to whether the threshold has been met for non-publication. 
7. While there should be a strong presumption of open proceedings, it is important that judicial officers retain the power to ensure that litigants and/or witnesses, in appropriate cases, are properly protected. 
8. To that end, it should be noted that the use of pseudonym orders involves a far more limited derogation of the open justice principle than broad suppression orders. Pseudonym orders still allow for reporting of the proceeding, and for the public to be informed about what is occurring in the justice system.
9. In relation to issues of mental illness and intellectual disability, the law should be vigilant to protect the identify of those who have impaired mental functioning.
10. It is important that the open justice principle is not allowed to become used as a sword by those who would engage in sensationalised reporting and tabloid journalism. It is important that the legal system still provide a shield to those who require it in order to access justice.
11. With regard to children and youthful offenders, the law should also be vigilant to give primacy to their rehabilitation. That is a fundamental principle of our legal system, and any derogation that allows for the identification of child offenders, even in the “worst cases”, would constitute a significant erosion that doubtlessly will be further eroded over time.
12. The Courts have a vital role in protecting and promoting rehabilitation, both in criminal matters such as sentencing, but also in allowing for social reintegration through civil matters, such as licencing and accreditation. While the open justice principle is important, it must be carefully balanced against competing rights, and it is judicial officers who are best placed to conduct that careful balancing exercise in a given case.