In 2017 the former Supreme Court of Appeal Judge Frank Vincent headed the Open Courts Act Review. The Honorable Vincent AO QC was tasked with considering whether the Open Courts Act 2013 (Vic) struck the right balance between ‘the need for open and transparent justice, and the need to protect the legitimate interests of victims, witnesses and accused persons, and to preserve the proper administration of justice.’[1]
The Review found that there was a need to provide greater protection to victims of sexual offending from the early stages of criminal hearings as a failure to do so resulted in the potential for additional repeated trauma and humiliation to victims as well as the possibility that it might lead to the identification of a victim who may not wish to have their personal information and identity exposed. Without this protection there is the possibility that it may deter potential other victims from coming forward and seeking justice. The report also highlighted the concern of some victims of sexual offences or family violence where the legislation at the time, although designed for their protection, also concealed the identities of sexual offenders which limited their accountability as well as the ability of victims to speak about their personal experiences.
On 7 February 2020 amendments to the Judicial Proceedings Reports Act 1958 (Vic) (‘the Act’) came into force which, although designed to adopt the recommendations of the Open Courts Act Review, has on the face of it, inadvertently created a major roadblock for sexual abuse survivors/victims who wish to tell their story. Section 4(1CA) reads as follows:
If a proceeding for a sexual offence has concluded and resulted in the conviction of the accused for that offence, it is a defence to a charge under subsection (1A) for the accused in relation to the alleged offence under subsection (1A) to prove that the matter was published or caused to be published in accordance with the permission of—
- the Supreme Court, the County Court or the Magistrates’ Court granted on an application by a person or on the court’s own motion; and [emphasis added]
- if the person against whom the sexual offence was committed is 18 years of age or over, that person.
Due to the drafting of this section, a victim of sexual abuse, where the proceeding has concluded and resulted in the conviction against the accused, must now seek the Courts approval prior to being able to tell their story. This appears to be an unintended consequence given that in earlier subsections of the Act, namely section 4(1B), where if there are no proceedings pending in a Court, then a survivor is permitted to tell their story.
Put simply, where a survivor has not reported the matter to the police and the matter is not before the Courts then they are free to publish their story, however if a sexual offence has been found to be committed and the offender was convicted then the victim must apply to the Court for permission to publish their story.
It seems that this was an error in the drafting of the legislation, and one hopes that there will be an urgent sitting of Parliament to correct the mistake.
The other change in the legislation is that if a proceeding is pending before the Court then a survivor must obtain the permission of the court prior to telling their story.
We understand that as a result of the concerns raised by victims and advocacy groups, including the #letusspeak campaign, Attorney General Jill Hennessy has asked the Department of Justice and Community Safety to urgently look at whether further changes are needed to ensure that the legislation effectively reflects the recommendations of the Open Courts Act Review.
Clearly, adult victims of sexual assault or family violence or who as children have been so subjected should, on the conviction of the offender, be able to tell their story without the need for any Court intervention.
[1] See Open Courts Act Review webpage link: www.engage.vic.gov.au/open-courts-act-review
