Judicial Proceedings Reports Amendment Act 2021 (Vic)
Judicial Proceedings Reports Amendment Act 2021
No. 35 of 2021
table of provisions
Section Page
Part 1—Preliminary
1Purpose
2Commencement
3Principal Act
Part 2—Ending publication prohibition after death
4Prohibition of reporting of names
6Repeal of section 4B
6ANew section 4C inserted
Part 3—Victim privacy orders
7Division of Principal Act into Parts
8New Part 3 inserted
Part 4—Repeal of this Act
9Repeal of this Act
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Endnotes
1 General information
Judicial Proceedings Reports Amendment Act 2021
No. 35 of 2021
[Assented to 21 September 2021]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purpose
The purpose of this Act is to amend the Judicial Proceedings Reports Act 1958—
(a)in relation to sunsetting provisions applying to deceased victims; and
(b)to provide for victim privacy orders.
2Commencement
(1)This Act, except section 4(1) and Part 3, comes into operation on the day after the day on which it receives the Royal Assent.
(2)Part 3 comes into operation on 15 October 2021.
(3)Section 4(1) comes into operation on 15 December 2021.
3Principal Act
In this Act, the Judicial Proceedings Reports Act 1958 is called the Principal Act.
Part 2—Ending publication prohibition after death
4Prohibition of reporting of names
(1)After section 4(1BA) of the Principal Act insert—
"(1BAB)Subsection (1A) does not apply to the publication of any matter that contains any particulars likely to lead to the identification of a victim of an alleged offence or an offence after the victim is deceased.
Note
If the publication is likely to lead to the identification of another victim who is not deceased and who does not give permission to publish, the offence under subsection (1A) still applies.".
(2)For section 4(1BF)(a) and (b) of the Principal Act substitute—
"(a)in the case of a living victim—
(i)that it has taken into account the views of any victims likely to be identified, if those views are known following reasonable enquiries; and
(ii)that it is in the public interest to make the order; and
(b)in the case of a deceased victim—
(i)that it has taken into account the views of the deceased victim, if those views are known following reasonable enquiries; and
(ii)that the views of any family members of the deceased victim are taken into account, if those views are known following reasonable enquiries, unless the family member is also the alleged offender or convicted offender; and
(iii)that it is in the public interest to make the order.".
(3)In section 4(1BG)(b)(i) of the Principal Act, for "an adult" substitute "a living adult".
6Repeal of section 4B
Section 4B of the Principal Act is repealed.
6ANew section 4C inserted
Before section 5 of the Principal Act insert—
"4C Test for permitted publication on and after 14 December 2021
(1)On 14 December 2021—
(a)for section 4(1BF)(a) and (b) substitute—
"(a)that it has taken into account the views of any victims likely to be identified, if those views are known following reasonable enquiries; and
(b)that it is in the public interest to make the order."; and
(b)in section 4(1BG)(b)(i), for "a living" substitute "an".
(2)This section is repealed on 16 December 2021.".
Part 3—Victim privacy orders
7Division of Principal Act into Parts
(1)Before section 1 of the Principal Act insert—
"Part 1—Preliminary".
(2)After section 2 of the Principal Act insert—
"Part 2—Restrictions and prohibitions on certain publications".
(3)Before section 5 of the Principal Act insert—
"Part 4—General".
8New Part 3 inserted
After section 4B of the Principal Act insert—
"Part 3—Victim privacy orders
4CDefinitions for this Part
In this Part—
affected person means a natural person against whom a sexual offence has been committed or is alleged to have been committed in Victoria, whether or not a proceeding in respect of the alleged offence or offence has commenced, is being conducted or has been finally determined;
court has the same meaning as in section 4(1);
family violence has the same meaning as it has in section 5 of the Family Violence Protection Act 2008;
interim victim privacy order means an order made under section 4L;
publish has the same meaning as in section 4(1);
relevant news media organisation means a news media organisation that has nominated itself to a court to receive notifications relating to victim privacy orders from the court;
sexual offence has the same meaning as in section 4(1);
vexatious, in relation to an application or a proceeding under this Part, includes—
(a)an abuse of the process of a court;
(b)made or commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;
(c)made, commenced or pursued without reasonable grounds;
(d)pursued or conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose;
victim privacy order means an order made under section 4F.
4DApplying for a victim privacy order
(1)A person with a sufficient interest may apply to a court for a victim privacy order in respect of a deceased affected person who was the victim of a sexual offence or an alleged sexual offence.
(3)The application must set out the reasons the applicant believes—
(a)it is necessary to prohibit or restrict the publication of any matter that contains any particulars likely to lead to the identification of the deceased affected person as a victim of a sexual offence or an alleged sexual offence; and
(b)why the publication would cause undue distress to the applicant.
(4)Without limiting the requirements of the Civil Procedure Act 2010, the applicant must disclose all material facts in relation to the application.
(5)To avoid doubt, an application for a victim privacy order cannot be made by or on behalf of the offender or alleged offender.
(6)An application for a victim privacy order can only be made in relation to an alleged sexual offence if—
(a)a complaint about the alleged offence has been made to a police officer by the deceased affected person when alive; or
(b)the alleged offence has otherwise been brought to the attention of a police officer.
Note
See also the limitations in section 4S.
4ENotifications to relevant news media organisations
(1)On receiving an application for a victim privacy order, the court must take reasonable steps to ensure that any relevant news media organisation is notified of the application for the victim privacy order.
(2)The notification may be by—
(a)electronic communication; or
(b)any other means that the court considers appropriate.
(3)An organisation which receives the notification may appear and be heard at the hearing of the application.
(4)Nothing in this section limits any other requirement for an applicant to serve an application on any other party to the proceeding on the application.
4FCourt may make victim privacy order
(1)On an application under section 4D, the court may make an order prohibiting or restricting the publication of any matter that contains any particulars likely to lead to the identification of the deceased affected person as a victim of a sexual offence or an alleged sexual offence (a victim privacy order) if satisfied that it is necessary to avoid causing undue distress to the applicant.
(2)In determining whether to make a victim privacy order, the court—
(a)must have regard to public interests in accordance with subsection (3); and
(b)may have regard to the nature and circumstances of the offending or alleged offending as part of the consideration of any undue distress to the applicant; and
(c)must take into account any views of the deceased affected person about being publicly identified as a victim of a sexual offence or an alleged sexual offence after their death which were expressed during that person's lifetime, if known, following reasonable enquiries; and
(d)must take into account any risk that—
(i)the application, proceeding for the application or the victim privacy order may be used to perpetrate family violence; or
(ii)the application or proceeding for the application is vexatious; and
(e)must be satisfied that the applicant is a person with a sufficient interest and, for that purpose, may have regard to the following in relation to the applicant and the deceased affected person—
(i)the nature and closeness of the relationship between them, including their social and emotional ties;
(ii)the duration of the relationship between them and the frequency of contact;
(iii)whether they lived together or related together in a home environment;
(iv)any financial dependence or interdependence between them;
(v)any other form of dependence or interdependence between them;
(vi)the provision of any paid or unpaid responsibility or care by or between them;
(vii)the provision of sustenance or support by or between them;
(viii)any history of family violence or other offending or alleged offending by the applicant against the deceased affected person that would make the applicant not an appropriate person to be granted an order;
(ix)whether they were in a relationship that had cultural recognition as being like family in the applicant's or the deceased affected person's community;
(x)any other factors the court considers relevant; and
(f)must not take into account the views of the offender or alleged offender.
(3)Despite subsection (1), a court is only to make a victim privacy order if satisfied that the particular circumstances make it necessary to displace public interests in, as relevant, the principles of open justice and freedom of expression, including free communication and disclosure of information.
4GOrders to be on basis of evidence or sufficient credible information
(1)A court must be satisfied on the basis of evidence, or sufficient credible information that is satisfactory to the court, that the relevant ground is established for—
(a)making a victim privacy order; or
(b)extending the duration of a victim privacy order; or
(c)confirming, varying or revoking of a victim privacy order on a review.
(2)Subsection (1) does not apply to an interim victim privacy order.
4HDuration of victim privacy orders
(1)The period for which a victim privacy order, other than an interim victim privacy order, operates must be—
(a)determined by the court; and
(b)specified in the order.
(2)The period for which a victim privacy order operates—
(a)may be for a fixed or ascertainable period; and
(b)subject to sections 4I and 4J, must not exceed 5 years.
(3)Despite subsection (1), a victim privacy order is automatically revoked on whichever is the latest of—
(a)the death of the person who applied for the order; or
(b)if more than one person applied for the same order, the death of the last of those persons.
4IApplication for extension of victim privacy orders
(1)A person in respect of whom a victim privacy order has been made may apply to the court that made the order for an extension of the duration of the order.
(2)An application under subsection (1) must be made before the expiry of the victim privacy order.
(3)Without limiting the requirements of the Civil Procedure Act 2010, the applicant must disclose all material facts in relation to the application for the extension of the duration of the victim privacy order.
(4)If an application under subsection (1) is made, the victim privacy order which is the subject of the application continues in operation until that application is determined, despite the period of the victim privacy order fixed in accordance with section 4H.
4JCourt may extend victim privacy order
(1)On an application under section 4I(1), the court must take reasonable steps to ensure that any relevant news media organisation is notified of the application for extension of the duration of the victim privacy order.
(2)The notification may be by—
(a)electronic communication; or
(b)any other means that the court considers appropriate.
(3)A person specified in subsection (1) is entitled to appear and be heard by the court on the application for the extension of the duration of the victim privacy order.
(4)In addition to subsection (3), the following are entitled to appear and be heard by the court on the application for the extension of the duration of the victim privacy order—
(a)any person in addition to the applicant who has a sufficient interest in whether the order should be extended;
(b)a party to any current proceeding before a court relating to the offence or alleged offence to which the order relates, other than the offender or alleged offender.
(5)On an application under subsection (1), the court may extend the duration of a victim privacy order if satisfied that it is necessary to avoid causing undue distress to that person.
(6)In determining whether to extend the duration of the victim privacy order, the court—
(a)must have regard to public interests in accordance with subsection (7); and
(b)may have regard to the nature and circumstances of the offending or alleged offending as part of the consideration of any undue distress to the applicant; and
(c)must take into account any views of the deceased affected person about being publicly identified as a victim of a sexual offence or an alleged sexual offence after their death which were expressed during that person's lifetime, if known, following reasonable enquiries; and
(d)must take into account any risk that—
(i)the application to extend, proceeding on the application to extend or the extended victim privacy order may be used to perpetrate family violence; or
(ii)the application to extend or proceeding on the application to extend is vexatious; and
(e)must not take into account the views of the offender or alleged offender.
(7)A court is only to extend the duration of a victim privacy order if satisfied that the particular circumstances make it necessary to displace public interests in, as relevant, the principles of open justice and freedom of expression, including free communication and disclosure of information.
(8)A person may apply for an extension of the duration of a victim privacy order more than once and a court may extend the duration of a victim privacy order more than once.
(9)The period of any extension of a victim privacy order must not exceed 5 years in relation to each extension.
4KScope and effect of victim privacy order
(1)A victim privacy order must specify—
(a)to whom the order applies in relation to prohibiting or restricting publication of information that is likely to lead to the identification of a deceased affected person as a victim of a sexual offence or an alleged sexual offence, including specifying whether the order applies to—
(i)specific persons or bodies as specified in the order, as the case requires; or
(ii)the general public at large; and
(b)the information to which the order prohibiting or restricting publication applies with sufficient detail to ensure that it is readily apparent from the terms of the order what information is subject to the order.
(2)A victim privacy order must not prevent the publication of details of a sexual offence or an alleged sexual offence or the identification of an offender or an alleged offender if that publication is not likely to lead to the identification of the deceased affected person as a victim of that offence or alleged offence.
4LInterim victim privacy orders
(1)If an application is made to a court for a victim privacy order, the court may make an interim victim privacy order in respect of that application.
(2)An interim victim privacy order may be made without determining the merits of the application under sections 4F and 4G.
(3)An interim victim privacy order has effect until—
(a)the substantive application is determined; or
(b)the interim victim privacy order is revoked by a court.
(4)If a court makes an interim victim privacy order, the court must determine the substantive application for the victim privacy order as a matter of urgency.
4MWhere a victim privacy order or interim victim privacy order applies
(1)A victim privacy order or an interim victim privacy order applies only to the prohibition or restriction on the publication of any matter that contains any particulars likely to lead to the identification of the deceased affected person as a victim of the sexual offence or alleged sexual offence in a place where the order applies, as specified in the order.
(2)Subject to subsection (3), a victim privacy order or an interim victim privacy order is not limited to applying in Victoria and may be made to apply anywhere in Australia.
(3)A victim privacy order or an interim victim privacy order must not be made to apply outside Victoria unless the court is satisfied that having the order apply outside Victoria is necessary for achieving the purpose for which the order is made.
4NDisclosure of certain information not prevented
A victim privacy order or an interim victim privacy order does not apply to or prevent a disclosure of information to a prescribed person or body for the purposes of enabling the person or body to perform a prescribed statutory function.
Note
See also the definition of publish in section 4(1).
4OStatement of reasons for making or extending a victim privacy order
(1)Subject to subsection (3), in the circumstances specified in subsection (2), a court must give a written statement of reasons that sets out—
(a)if the court makes a victim privacy order—
(i)the reasons for the terms of the order; and
(ii)the reasons for the duration, grounds and scope of the information covered by the order; and
(b)if the court extends the duration of a victim privacy order, the reasons for the extension of the duration of the order.
(2)A statement of reasons must be given—
(a)at the request of—
(i)the applicant; or
(ii)any other person who in the opinion of the court has a sufficient interest in the terms and effect of the victim privacy order or the extension of the duration of the order; and
(b)if practicable, within 30 days of the making of the request.
(3)A court is not required to give a statement of reasons for—
(a)an interim victim privacy order; or
(b)an order varying a victim privacy order or an interim victim privacy order, if the order itself specifies the reason for the variation; or
(c)an order revoking a victim privacy order or an interim victim privacy order.
(4)A written statement of reasons may be subject to any redactions that are reasonably required to effect the purpose of the order.
(5)A failure to comply with this section does not affect the validity of a victim privacy order.
4PReview of victim privacy orders or interim victim privacy orders
(1)A court that made a victim privacy order or an interim victim privacy order may review the order for the purpose of confirming, varying or revoking the order—
(a)on the court's own motion; or
(b)on the application of the following—
(i)the person who applied for the order;
(ii)any other person who has a sufficient interest in whether the order should be confirmed, varied or revoked;
(iii)a party to any current proceeding before a court relating to the offence or alleged offence to which the order relates, other than the offender or alleged offender;
(iv)a relevant news media organisation.
(2)Without limiting the requirements of the Civil Procedure Act 2010, an applicant must disclose all material facts in relation to the application for review.
(3)To avoid doubt, an application for review cannot be made by or on behalf of the offender or alleged offender.
(4)On determining to review an order on the court's own motion or on receiving an application under subsection (1)(b), the court must take reasonable steps to ensure that any relevant news media organisation is notified of the own motion review or the application for review of the victim privacy order or an interim victim privacy order.
(5)The notification may be by—
(a)electronic communication; or
(b)any other means that the court considers appropriate.
(6)Each of the persons specified in subsection (1)(b) or (4) is entitled to appear and be heard by the court on the review of a victim privacy order or an interim victim privacy order, whether or not the person is the applicant for the review.
(7)Subject to subsection (10), on a review, the court may confirm, vary or revoke the victim privacy order or interim victim privacy order, as appropriate.
(8)In determining whether to confirm, vary or revoke a victim privacy order or an interim victim privacy order, the court—
(a)must have regard to public interests in accordance with subsection (9); and
(b)may have regard to the nature and circumstances of the offending or alleged offending as part of the consideration of any undue distress to the applicant; and
(c)must take into account any views of the deceased affected person about being publicly identified as a victim of a sexual offence or an alleged sexual offence after their death which were expressed during that person's lifetime, if known, following reasonable enquiries; and
(d)must take into account any risk that—
(i)the application to confirm, vary or revoke the victim privacy order or the interim victim privacy order, proceeding to confirm, vary or revoke the order or the interim order or a confirmed, varied or revoked order or interim order may be used to perpetrate family violence; or
(ii)the application to confirm, vary or revoke the victim privacy order or the interim victim privacy order or the proceeding to confirm, vary or revoke the order or the interim order is vexatious; and
(e)must be satisfied that the applicant is a person with a sufficient interest and, for that purpose, may have regard to the following in relation to the applicant and the deceased affected person—
(i)the nature and closeness of the relationship between them, including their social and emotional ties;
(ii)the duration of the relationship between them and the frequency of contact;
(iii)whether they lived together or related together in a home environment;
(iv)any financial dependence or interdependence between them;
(v)any other form of dependence or interdependence between them;
(vi)the provision of any paid or unpaid responsibility or care by or between them;
(vii)the provision of sustenance or support by or between them;
(viii)any history of family violence or other offending or alleged offending by the applicant against the deceased affected person that would make the applicant not an appropriate person to be granted the confirmation, variation or revocation of the order;
(ix)whether they were in a relationship that had cultural recognition as being like family in the applicant's or the deceased affected person's community;
(x)any other factors the court considers relevant; and
(f)must not take into account the views of the offender or alleged offender.
(9)A court is only to confirm or vary a victim privacy order or an interim victim privacy order if satisfied that the particular circumstances make it necessary to displace public interests in, as relevant, the principles of open justice and freedom of expression, including free communication and disclosure of information.
(10)Unless the court considers it is not appropriate to do so, the court must revoke a victim privacy order or an interim victim privacy order if the application for revocation of the order is made by the person who applied for the order.
4QOffence to contravene victim privacy order or interim victim privacy order
(1)A person must not engage in conduct that constitutes a contravention of a victim privacy order or an interim victim privacy that is in force if that person knows that the victim privacy order or interim victim privacy order, as the case requires, is in force.
Penalty:in the case of a natural person, imprisonment for 4 months or 20 penalty units, or both;
in the case of a body corporate, 50 penalty units.
(2)For the purposes of subsection (1), in the absence of evidence to the contrary, a person is taken to be aware that a victim privacy order or an interim victim privacy order is in force if a court has electronically transmitted notice of the order to the person.
4ROther laws prohibiting or restricting publication not limited or otherwise affected
Nothing in this Part limits or otherwise affects any other law that prohibits or restricts, or authorises a court or tribunal to prohibit or restrict, the publication of identifying material.
Example
A victim privacy order does not limit or otherwise affect the operation of a suppression order made under the Open Courts Act 2013.
4SLimitation on applications under this Part where suppression orders under the Open Courts Act 2013 or other prohibitions in force
(1)A person who could apply otherwise for a victim privacy order under this Part cannot apply for a victim privacy order if—
(a)a suppression order under the Open Courts Act 2013 that prohibits or restricts publication of any matter that contains any particulars likely to lead to the identification of the deceased affected person as a victim of the sexual offence or alleged sexual offence (however described) to which the application under this Part would relate is either—
(i)in force; or
(ii)could be sought under that Act; or
(b)a prohibition or restriction on publication under Part 7.5 of Chapter 7 of the Children, Youth and Families Act 2005 or any other Act or law that prohibits or restricts publication of any matter that contains any particulars likely to lead to the identification of the deceased affected person as a victim of the sexual offence or alleged sexual offence (however described) to which the application under this Part would relate is either—
(i)in force; or
(ii)could be sought under that Act or law.
(2)The limitation under subsection (1) applies for as long as there is in force—
(a)the relevant suppression order under the Open Courts Act 2013; or
(b)any other relevant prohibition or restriction on publication under Part 7.5 of Chapter 7 of the Children, Youth and Families Act 2005 or any other Act or law.".
Part 4—Repeal of this Act
9Repeal of this Act
This Act is repealed on 16 December 2022.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 3 August 2021
Legislative Council: 5 August 2021
The long title for the Bill for this Act was "A Bill for an Act to amend the Judicial Proceedings Reports Act 1958 in relation to certain sunsetting provisions, to provide for victim privacy orders and for other purposes."
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