SPEAKING ON A BILL | OPEN COURTS AND OTHER ACTS AMENDMENT BILL 2019

Mr Melhem (Western Metropolitan): I also rise to speak on the Open Courts and Other Acts Amendment Bill 2019. As previous speakers have outlined, this bill allows the Andrews Labor government to fulfil its commitment in the last election campaign to reform suppression order laws in Victoria, to make sure that suppression and closed court orders are the exceptions to the principal of open justice and that they are only made when necessary.

As we know, the issue of suppression orders has been a topic in relation to recent court cases, including a few major cases in which courts made suppression orders and these made headlines. I can think of one, the George Pell matter, where the court ordered the suppression of a decision when there were two trials on at the same time. Now there are 30, or thereabouts, journalists or media people and other personnel who are in breach of a court order because a suppression order was issued by the court for reasons given by the court, and I think they were probably good reasons. That is one example.

It is really important that we allow the judiciary to have discretion in certain cases to make suppression orders. These could be court cases involving juveniles, for example, which deal with children, or cases such as the George Pell matter, which involves an adult. Courts should have that discretion to put a suppression order in place so that the name of a witness or victim or a person who has been charged with a crime is not revealed. On the other hand, I think it is important to get the balance right and that we have an open court system in this state. To make the court system work better and to have the confidence of the people we have an open system. A closed system is not subject to scrutiny—not necessarily scrutiny, but the public need to understand and appreciate what actually goes on in a court scenario. I think we all from time to time—and I have in recent times—question some of the decisions that judges hand down and try to understand whether they have been too harsh or too soft. But to be fair, I was not in the court. I think a lot of our citizens might pass judgement by saying, ‘Well, that judgement was too harsh’ and ‘Why did you suppress that?’. Unless we have an open court system and people take some interest in what is happening in the court and the reasons why a particular judge, prosecutor or even defendant might seek a suppression order from time to time in relation to a particular case or a judgement that is handed down, we will not know what that judgement was based on. Not every person is necessarily going to go and read a 100, 200 or 500 page decision, but I think people largely form their opinion on what is reported in the media. So it is important to actually have an open court where the media have access, which they do now in most cases. It is very rare that they do not. They are not able to report everything, but I think it is important to have that open court system where people are able—if they want to—to have the facts in front of them. Then they can make a sound judgement on whatever issue the court is dealing with. But on the other hand, as I said, it is important to maintain the discretion for judges in certain cases to be able to suppress certain things from being aired in public when there is a good reason for that.

What this bill does is make that the exception, not the norm. Justice Vincent was asked to review the Open Courts Act 2013 and other Victorian legislation to consider whether the current laws strike the right balance between people’s safety and privacy, fair court proceedings and the public’s right to know. The final report of the Open Courts Act Review was made public in March 2018. The report made 18 recommendations for improving existing suppression laws, and the government has given support in full to 17 of the 18 recommendations. One recommendation is currently under further consideration by the Attorney-General and the government. The Open Courts and Other Acts Amendment Bill 2019 is the first step in implementing the legislative recommendations of that review. It was very important to get the review done, and the good work that has been done by Justice Vincent is commended. This bill is based largely on the work that His Honour has done. The bill will reflect that, and particularly the 17 recommendations which were accepted by the government. The bill will also require the court and tribunal to give reasons for making suppression orders under the Open Courts Act, And I think that it is very important. When a judge makes a decision about putting a suppression order in place or issuing a suppression order there has to be some sort of logic and some sort of reason why.

I think it has become an issue where we do not want to finish up in a situation where the public are losing faith in our justice system. I think our justice system in Victoria is one of the best in the world, and I have got full confidence in our judicial system. Our judges do a terrific job. They do an excellent job. I think sometimes we—particularly politicians—harshly judge them. As I said earlier, if I want to go and criticise a judge for a decision without having been privy to the proceedings, I do not think I would be qualified to make a judgement on that. The stress these judges are put under and their workload is tremendous. The last thing we want is politicians, and people in the public to some extent, throwing rocks at the very people who are actually trying to make sure that our justice system functions properly and that people get fair hearings and fair outcomes. We know that is taking its toll on judges, particularly in the Magistrates Court. We know there have been a number of suicides, where judges have taken their own lives because of the harsh criticism they sometimes get from the outside world. I for one, as I said, have got full confidence in the judicial system. I think they do a terrific job. Our job as parliamentarians, as legislators, is to actually pass the law but not interpret the law. The separation of powers is very clear in our constitution. I think we should trust the very people we appoint to the judicial system. Regardless of the colour of governments, I think the appointments have been excellent and I think we should be able to trust them to implement the laws. Surely there is community expectation. That should be taken into account by judges and legislators to make sure we reflect community expectation in relation to whatever laws we pass, and for judges to implement these laws. I think that is very important, but it should not be the only criteria taken into account when a judge hands down a decision in relation to a particular case.

The bill also enables suppression orders to continue until the determination of an appeal or unless varied or revoked by the appealable court. It also enables the publication of relevant juvenile convictions of persons who continue to engage in serious offending as adults, subject to certain safeguards. It also enables adult victims of sexual and family violence offences to speak more openly about their experiences. The bill also amends section 534 of the Children, Youth and Families Act 2005 to narrow the scope of particulars deemed likely to lead to the identification of a person. The bill also, as I said earlier, will reinforce the importance of open justice and make it clear that suppression orders under the Open Court Act are only to be made as an exception to the principle. Where necessary, recommendation 1 and 2 of Justice Vincent will ensure that courts do not make suppression orders too easily by applying a mere presumption in favour of openness under the current laws. I think it is very important to get that balance right. It is very important to protect the privacy and rights of individuals but also to have in place an open justice system so that we can regain some of the lost ground where the public has lost faith in the political system, in us as legislators and in judges, who actually implement the law. I think it is a real issue both for us as legislators and for judges, and the bill will hopefully go some way towards getting back that confidence in the system.

Access for the media will also be reformed as part of this. The bill amends the Children, Youth and Families Act to give a judge of the County Court or the Supreme Court who is sentencing an adult offender the discretion to publish the juvenile convictions of that offender. A court may only disclose the juvenile convictions of an adult offender where the adult offending is the same or of sufficient similarity to the child offending, where the adult offending is serious and where it is appropriate considering the offender’s previous criminal history and prospect of rehabilitation. The terms ‘sufficient similarity’ and ‘serious’ are not defined in the bill, to enable a court to apply discretion in the circumstances of an individual case. Again, we do not want to be too prescriptive by describing every single event and prescribe what the judges should be doing. I strongly believe that we should still allow our judges discretion to deal with these sorts of cases and a bit of flexibility, because they are the ones who actually hear the evidence, who hear the whole case and who are basically able to make a judgement. The only reason we actually appoint them to the bench is that they are supposed to be fair and reasonably minded persons who have sound knowledge of the legal system—fair people who will hand down a decision not based on any political persuasion and not based on their own personal view. If we appoint people to this sort of position, I think we need to support them and give them some discretion to determine certain matters as required.

The bill hopefully will go a long way to getting some confidence back in our judicial system and our legislation. Some further changes will be coming to the house—for example, ensuring that the reasons for making suppression orders are made publicly available in writing, recommendation 6; establishing a public register of suppression orders, recommendation 7; treating all suppression orders as interim orders for five days after they have become final unless challenged, recommendation 8; and the list goes on. There will be more to come in relation to that. The other supported legislative recommendations are expected to be implemented in 2020. As I said earlier, the government is giving further consideration to recommendation 18—allowing the Public Interest Monitor to act as a contradictor in suppression order applications—and will be consulting with stakeholders in relation to what we do with that. There are a further four recommendations that are non-legislative. One was implemented when the government asked the Victorian Law Reform Commission to review the laws of contempt and aspects of the Judicial Proceedings Report Act 1958. The remaining three are being progressed independently, with a view to implementing them as soon as possible. With those comments, I commend the bill to the house.