Re WD (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0280

IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an application for bail by WD
WD	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2023
DATE OF RULING:	22 December 2023
CASE MAY BE CITED AS:	Re WD (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 790

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OPEN COURTS – Application for proceeding suppression order – Application made by Secretary to the Department of Families, Fairness and Housing – Applicant 12-year-old girl charged with murder – Applicant subject to “care by Secretary” order – Extensive media coverage of alleged offending to date – Whether suppression order necessary to protect applicant’s safety – Utility of suppression order – Availability of treatment, care and supportive services – Protective measures – Suppression order not made – Open Courts Act 2013 (Vic), ss 4, 8, 10, 11, 13, 14, 17, 18, 19 – Children, Youth and Families Act 2005 (Vic), ss 289, 534, 598.

STATUTORY INTERPRETATION – Construction of section 8(1A) and (3) of the Open Courts Act 2013 (Vic) – Interaction with section 534 of the Children, Youth and Families Act 2005 (Vic) – Court precluded from making suppression order in respect of information the publication of which is already prohibited or restricted under separate legislative scheme.

DECLARATORY RELIEF – Application for declaration that media reporting containing certain details said to be likely to lead to the identification of a child would contravene section 534 of the Children, Youth and Families Act 2005 (Vic) – Scope of declaration not limited to existing publications – Declaration not limited to publications in Australia – Whether declaration directed towards legal controversy and not hypothetical question – Whether declaration imprecise and overly broad – Whether declaration appropriate – Declaration not made.

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APPEARANCES:	Counsel	Solicitors
For the applicant	A McGregor (solicitor)	Dowling McGregor
For the respondent	S Tamburro (solicitor)	Office of Public Prosecutions
For the Secretary to the Department of Families, Fairness and Housing	I Freckelton KC	Department of Families, Fairness and Housing
For The Herald & Weekly Times Pty Ltd, The Age Company Pty Ltd, News Life Media Pty Ltd and the Australian Broadcasting Corporation	S Mukerjea	Thomson Geer

HIS HONOUR:

A. Introduction

On 22 November 2023, an application was filed by the Secretary to the Department of Families, Fairness and Housing (“the Secretary”) for a proceeding suppression order pursuant to sections 17 and 18(1)(c) of the Open Courts Act 2013 (Vic), a closed court order pursuant to section 30(1) of the Open Courts Act, and declaratory relief.
Broadly, the Secretary’s application was made to prevent the disclosure by publication or otherwise of information that would tend to identify the applicant, a 12-year-old girl (“WD”)[1] charged with murder, as the subject of proceedings in the Children’s Court of Victoria and in this court. The application was made in the context of extensive media coverage of the alleged offending and its immediate aftermath.
[1]A pseudonym has been used to protect the identity of WD and to ensure compliance with s 534(1)(a)(ii) of the Children, Youth and Families Act 2005 (Vic).
WD first came to the attention of the Department of Families, Fairness and Housing (“the Department”) in 2011, and has since been in and out of the Secretary’s custody. She is presently the subject of a “care by Secretary” order first made in 2019 and since extended. This order has the effect of giving parental responsibility for WD to the Secretary to the exclusion of all other persons.[2]
[2]Children, Youth and Families Act, s 289(1).
Although section 534(1)(a) of the Children, Youth and Families Act 2005 (Vic) prohibits the publication of information likely to lead to the identification of a child involved in a proceeding in or arising out of the Children’s Court, the Secretary sought to restrict the publication of any information that would tend to identify WD as the subject of proceedings in the Children’s Court and this court under the suppression order provisions of the Open Courts Act. This gave rise to questions as to the operation of, and interaction between, these 2 legislative schemes and the appropriateness of making a suppression order in the circumstances. These questions were considered in addition to the general considerations which underpin the making of a proceeding suppression order.
In the alternative, the Secretary sought a declaration to the effect that the publication of information about WD that was likely to lead to her identification would be in breach of section 534 of the Children, Youth and Families Act. However, the parties were in agreement that it was not the role of the court on this application to determine whether or not any existing media coverage of the alleged offending was in fact in contravention of section 534.
For the reasons that follow, the Secretary’s application will be dismissed. A proceeding suppression order under the Open Courts Act is not necessary or permitted in the circumstances of this case. Nor is it appropriate that the declaration sought by the Secretary be made.

B. Background

B.1 Procedural history

On 16 November 2023, WD was arrested and charged with murder in relation to the death of a 37-year-old woman that had occurred in the early hours of the same day. The following afternoon, WD made an application for bail in this court. Immediately prior to the hearing of that application, an email was received by the court from the solicitors for the Secretary foreshadowing the making of an application for an interim suppression order pursuant to section 20 of the Open Courts Act. The email acknowledged that the application was made without the required notices[3] “due to the urgent circumstances of this case”. When this email was raised at the commencement of the hearing, WD’s counsel confirmed that WD would join in the application. The prosecution and a media organisation appeared on that occasion. Ultimately, neither opposed the making of an interim suppression order.[4]
[3]See Open Courts Act, ss 10, 11.
[4]See further pars 84-85 below.
The interim suppression order was sought with an acceptance that some reporting of the bail application could occur. The order was sought on the basis that media organisations would be able to publish details of the age and gender of WD, the offence with which she was charged and the substantive outcome of the bail application, but nothing further.
On 17 November 2023, before the bail application was heard, an interim suppression order was pronounced in the following terms:
Pursuant to section 20 of the [Open Courts Act], any disclosure by publication or otherwise of the following information is prohibited:
(1)    A report of the whole or any part of the application for bail heard on 17 November 2023 in proceeding S ECR 2023 0280 (“the Bail Application”) including any information derived from the Bail Application or any information that would tend to identify [WD], other than:
(a)the age and gender of [WD];
(b)the offence charged; and
(c)the outcome of the Bail Application, namely whether the application was granted or not.
(2) These orders have effect until the hearing and determination of the substantive application for a proceeding suppression order made pursuant to section 17 of the [Open Courts Act], or further order of this court.
(3)    These orders apply to any publication within Australia.
…
(6)    The application for a proceeding suppression order made on 17 November 2023 is adjourned to 10.00am on Wednesday, 22 November 2023.[5]
[5]The return date of the application was subsequently extended to 27 November 2023, to allow further time for evidence to be put before the court.
As WD had been charged with murder, it was necessary for her to establish exceptional circumstances before bail could be granted.[6] The prosecution correctly accepted that the evidence overwhelmingly demonstrated that such circumstances existed.
[6]Bail Act 1977 (Vic), s 4AA(1) and sch 1, item 2.
The real issue on the application was whether or not there was an unacceptable risk that, if released on bail, WD would endanger the safety or welfare of any person.[7] The proposed conditions of bail included that WD be transferred to a secure welfare service from which she could not depart (“the Secure Location”).[8] Evidence was led as to the supportive services available and protective measures that would be in place for WD at the Secure Location. The Secure Location is a secure residential unit with locked doors dividing different areas of the facility. It is staffed 24 hours a day by professionals trained in the complexities of working with children with significant trauma backgrounds, many with whom WD is already familiar. Evidence was also given that WD would continue to have access to therapeutic support and appropriate medical and mental health assistance at the Secure Location. Ultimately, bail was granted on the condition that WD reside at the Secure Location.
[7]Ibid, s 4E(1)(a)(i).
[8]See Children, Youth and Families Act, s 44(a)(ii).
The Secretary’s foreshadowed application for a proceeding suppression order was subsequently filed on 22 November 2023.[9] The application, which also sought closed court orders and declaratory relief, was in the following terms:
[9]Any person considered by the court to have a sufficient interest in the making of a suppression order may make an application under the Open Courts Act: s 19(1)(b)(ii).There was no suggestion at the hearing of the application that the Secretary did not have a sufficient interest in the circumstances.The Secretary’s application was supported by WD.
1. That pursuant to s 17 of the Open Courts Act 2013 (Vic), the disclosure by publication or otherwise in Australia of the following information is prohibited until further order (or for a period of five years, whichever occurs sooner):
a.Any information that would tend to identify [WD] as the subject of the Children’s Court proceedings including:
i.her name;
ii.details of her history as under the care of [c]hild [p]rotection, including references to being in “residential care” and “State care”;
iii.the location of the offending, being Footscray[;]
iv.reference to her history of being a victim of sexual exploitation;
v.reference to her mental health diagnoses; and
vi.reference to her cognitive functioning and related diagnoses.
2. That pursuant to s 30(1) of the Open Courts Act 2013 (Vic):
a.The whole of this proceeding is to be heard in a closed court.
b.Only the parties and their authorised representatives may be present during the proceeding.
3. A declaration is sought that publication of reference to details of [WD]’s child protection or personal history, location of her alleged offending, her being a victim of sexual exploitation, her mental health diagnoses or her cognitive function or related diagnoses constitutes a breach of s 534 of the Children[,] Youth and Families Act 2005 (Vic) by reason of being likely to lead to identification of [WD].
The application was heard on 27 November 2023. Representatives for WD and the prosecution were in attendance at the hearing but made no substantive submissions. The Secretary was represented by senior counsel. The Herald & Weekly Times Pty Ltd, The Age Company Pty Ltd, News Life Media Pty Ltd and the Australian Broadcasting Corporation (“the ABC”) (together, “the Media Organisations”) all appeared as interested parties and were represented by the same counsel.
Before appearances were announced at the commencement of the hearing, I directed that WD only be referred to as “the applicant” and not by her name or a pseudonym. Further, at the outset the Secretary withdrew her application for a closed court order under section 30(1) of the Open Courts Act. Senior counsel for the Secretary stated this position was adopted on the basis that the Secretary was acutely aware of the open justice principle and had formed a tentative view that matters could be addressed in court in a manner that would allow the hearing to remain public.
In light of points raised during the course of argument, the Secretary’s position shifted further. At the conclusion of the hearing, the Secretary was granted leave to file an amended application. Accordingly, the application as ultimately made was as follows:
1. That pursuant to s 17 and s 18(1)(c) of the Open Courts Act 2013 (Vic), the disclosure by publication or otherwise in Australia of the following information is prohibited until further order (or for a period of five years, whichever occurs sooner):
a.Any information that would tend to identify [WD] as the subject of the current proceedings in the Children’s Court or the Supreme Court including:
i.details of her child protection or personal history as under the care of [c]hild [p]rotection, including her having been in “residential care” or “State care” or “Secure Care”;
ii.the location of the offending, being Footscray[;]
iii.reference to her history of being a victim of sexual exploitation or engaging in sex work;
iv.reference to her mental health diagnoses or her cognitive functioning and related diagnoses.
3. In the alternative, a declaration is sought that publication in a report of a proceeding in this Court or the Children’s Court of:
i.details of [WD]’s child protection or personal history, including her having been in being in (sic) “residential care” or “State care” or “Secure Care”;
ii.the location of [WD]’s alleged offending;
iii.[WD] being a victim of sexual exploitation or engaging in sex work;
iv.[WD]’s mental health diagnoses or her cognitive function or related diagnoses;
constitute a breach of s 534 of the Children[,] Youth and Families Act 2005 (Vic) by reason of being likely to lead to identification of [WD].
Soon after WD was granted bail on 17 November 2023, various media organisations reported on the outcome of the application. This was confined to the fact that WD had been granted bail on conditions (without stating what these conditions were).[10] Although this was entirely consistent with the interim suppression order that had been made, reporting of this nature left the distinct impression that WD was or may be at large in the community. Accordingly, with the agreement of the parties, on the return of the Secretary’s application on 27 November 2023, the interim suppression order was varied so that subparagraph (c) of paragraph 1[11] read as follows:
… any disclosure by publication … is prohibited … other than …
(c)the outcome of the Bail Application, namely that [WD] has been bailed to accommodation not in the general community from which she is not free to come and go.
[10]See, for example, par 35 below.
[11]See par 9 above.
The interim suppression order made on 17 November 2023 (as varied on 27 November 2023) has since remained in place pending the hearing and determination of the Secretary’s application for a proceeding suppression order.

B.2 Existing media publications

There has already been extensive media coverage of the circumstances of this case and the alleged offending.
On 16 November 2023, being the day of the alleged murder, it was reported in an article on the website of the Herald Sun that a girl aged 12 had been arrested after a woman had been stabbed to death at a former pub in the west of Melbourne. The article stated that the girl had the intellectual capacity of a 6-year-old and had been “running wild” while in State care for years, “according to sources”. It was reported the girl had been in residential care since 2019, and that the Department had been contacted but had refused to comment.
The article stated that the girl had been on “Victoria Police’s radar and was sexually active”. Referring to an unidentified source, it was reported that the girl may have been “prostituted out”. Later in the article, it was stated it was believed that the girl had been forced to undertake sex work and would occasionally visit the converted hotel where the alleged murder had taken place.
The girl was said to have routinely run away from her care facilities, going missing for days at a time. It was reported that the Herald Sun had been told several calls were made to police in the preceding weeks over concerns for the girl’s welfare and mental health. It was further stated that a youth worker “with close knowledge of the girl’s history” had confirmed that the girl had engaged in the use of illicit drugs.
The article referred more generally to the position of children in State care. It was suggested that 1 in 2 children who went into residential care in Victoria were charged with a criminal offence within 2 years.
Various assertions were also made about the lack of protection offered to the girl by State authorities and the inadequacy of the facilities available to address the girl’s welfare. It was stated that investigators were still working to establish whether “the parties were known to each other, with the identity of the victim, including whether she was a care worker, not yet clear”. The article did not refer to the girl by name.
Representatives of the Department were “extremely concerned” that the Herald Sun article had reported that the alleged perpetrator was in child protection. Various letters were exchanged between the Department’s in-house solicitors and solicitors for the Herald Sun. In a letter to the Department dated 16 November 2023, the Herald Sun maintained that what had been published was not likely to lead to the identification of WD and therefore did not contravene section 534 of the Children, Youth and Families Act.[12] While it was acknowledged that those “very close to the case” might have been able to identify WD, it was contended such a circumstance did not give rise to any contravention. The letter stated the Herald Sun took its role in reporting on matters of public interest very seriously, and that the case had exposed serious flaws in the child protection system which could not go unreported.
[12]The relevant parts of this provision are set out at par 64 below.
Also on 16 November 2023, The Age published an online article with the headline: “Girl, 12, charged with murder over fatal Footscray stabbing”. This article was much shorter than that published by the Herald Sun on the same day. It reported that emergency services had been called to an apartment building on Barkly Street, Footscray, following reports that a 37-year-old woman had been found dead inside the complex. The article reported that a 12-year-old girl had been charged with 1 count of murder and remanded to appear before the Children’s Court at a later date, and that Victoria Police had said earlier that day that homicide squad detectives were still working to establish the relationship between the girl and the victim.
Notwithstanding its stated position in the correspondence outlined above,[13] on 17 November 2023 the Herald Sun published a further article in print format, which omitted some of the details included in its article of the previous day about which the Department had complained. This amended article included a statement that the alleged perpetrator had been in State residential care “for several years” and was believed to have been “forced to undertake sex work”.
[13]See par 24 above.

On the same day, the Herald Sun published a further article headlined: “Court hears Footscray murder accused, 12, has ‘special needs’”. This article reported that a “12-year-old-girl charged with murder” had “faced court over the Footscray stabbing death of a woman”. It was reported that the girl experienced “an array of conditions including anxiety” and had “other special needs”. It was stated to be “understood” that the girl was 1 of the youngest Victorians to be charged with murder and had been “under the [S]tate’s watch in residential care for years”. An account was given of what had occurred when the girl appeared before a magistrate earlier that day, including that the making of a bail application later that day had been foreshadowed. The article stated the magistrate had permitted the public release of charge sheets to the media, with the victim’s name redacted to prevent her family being put under “any more pressure”. Towards the end of the article it was stated that the hearing had come “after the girl was arrested at Footscray’s Royal Hotel building on Barkly St, where a woman was found dead in her home about 2am on Thursday”.
Later on 17 November 2023, but before the bail application was before this court, the Department wrote to the Herald Sun’s solicitors again complaining about the extent of detail in the publications. It was contended that the publication of “highly sensitive and confidential information” had resulted in the identification of WD and placed her at risk of harm. The Department stated that its concern that the Herald Sun had breached section 534 of the Children, Youth and Families Act was borne out by the fact that a member of WD’s community had contacted the Department “reporting anger (including threats) towards her, creating concerns for her safety”. The letter stated that the Department was aware that other members of WD’s community had been able to identify her as a result of the reporting. The letter also recorded the Department’s intention to seek an interim suppression order as a matter of urgency in relation to media reporting on the matter.
In response, the Herald Sun remained steadfast, stating that its position was that nothing it had published was otherwise than in accordance with section 534. It was stated that the Herald Sun did not accept that there was any causal link between people identifying WD within her community and the Herald Sun’s reporting. Reference was made to earlier reporting of multiple calls made to police in recent weeks concerning WD’s behaviour, coupled with the suggestion that it was “inevitable that some people in the community already knew who she was” notwithstanding the articles to which exception had been taken. The letter concluded by stating that, in order to avoid “a protracted argument” and as a show of genuine good faith, the Herald Sun had made yet further amendments to the existing online story “to remove references to the fact that [WD] was in residential care” (emphasis in original). The Herald Sun stated that the article now instead referred only to the “broader term” of State care.
On 20 November 2023, the circumstances of the alleged offending were the subject of further publications. Both in a feature on national television and an article on its website, the ABC referred to numerous matters. The story was entitled: “Locals say 12-year-old girl charged with murder fell through the cracks”. It was claimed that journalists had spoken to a number of people in the area who had “cold-called” police to report the girl’s increasingly erratic behaviour in recent weeks. A local barber “in the inner-city suburb of Footscray” was such a person. He was reported as saying he knew exactly who the girl was, as he had seen her in the street over the previous 6 weeks and had observed that things were getting out of control and believed “something bad was going to happen”.
The interviews conducted during the broadcast also included a social worker who stated she was familiar with the girl, “who has been in residential care”, and had raised issues about her in the past. The social worker stated that she had heard the girl was “selling herself to older men for money” and had raised the girl’s situation with child services and police several times. The segment concluded with the social worker saying the girl had “been failed every step of the way, leading up to the most horrific of crimes and the most horrific of circumstances”.
In signing off, the reporter recapped that a 12-year-old girl had been charged with the murder of a 37-year-old woman in the inner-city Melbourne suburb of Footscray, and stated that the girl was well known to authorities and locals in the area “who had been pleading for months to get the girl mental health support”.
The Department again took exception to what it contended were sensitive and identifying details disclosed in these publications. This included statements to the effect that the girl was selling herself to older men for money, that she was in State care, that she had been witnessed engaging in increasingly erratic behaviour in the Footscray area in recent weeks and that she was well known to the authorities and locals.
Again, correspondence ensued. In a letter dated 21 November 2023, the Department expressed “significant concerns” about the potential impact of the ABC’s current reporting on the girl’s psychological and physical safety, and stated its belief that the information published was likely to lead to the identification of WD, again referring to section 534 of the Children, Youth and Families Act. In a letter in reply dated 22 November 2023, the ABC retorted that the Department had failed to identify the specific information complained of and rejected any suggestion that the publications were likely to lead to the identification of WD.
On 21 November 2023, a further article was published online by the Herald Sun. This article was headed: “A 12-year-old girl charged with murder was ‘prostituted out’ for as long as a year but police ignored multiple pleas for help”. This article referred to the broadcast by the ABC the previous evening[14] and repeated much of the detail the Herald Sun had previously published, including information about the girl’s personal history and child protection status, cognitive impairment and experiences of sexual exploitation, as well as the location of the alleged offending, being Footscray. The article also referred to matters more generally about child protection in Victoria and quoted the Commissioner for Children as describing youth residential care as “a pipeline into the criminal justice system”. The article also stated that, in an emergency late-night sitting of the Supreme Court the previous Friday, the girl had been “granted bail and released”.
[14]See par 30 above.
The Department complained about this publication on the same day. In a letter to the Herald Sun’s solicitors, it was alleged that the article contained a number of details likely to lead to the identification of WD in breach of section 534 of the Children, Youth and Families Act. The allegedly highly sensitive and identifying details included that the girl had the intellectual capacity of a 6-year-old, had been offering sex services around Footscray Mall, had a history of trauma and suffered anxiety, was at risk of self-harm while on remand and had been in State care for at least a year.
In a response dated 22 November 2023, the Herald Sun’s solicitors rejected the Department’s allegations. In doing so, grave concerns were expressed that the Department was attempting to “improperly stifle public discussion on a matter of immense public interest”. In particular, any suggestion that media reporting which included the mere fact that the girl was in child protection would be in breach of section 534 of the Children, Youth and Families Act was refuted on the basis that it would have the effect of preventing any public discussion about the child protection system.
Also on 21 November 2023, the Daily Mail published an article entitled: “Footscray girl, 12, charged with murder of 37-year-old was ‘prostituting herself to older men’ and was a ‘time bomb everyone knew was going to go off’”. Without descending into the detail, this article contained information similar to that which had previously been published by the Herald Sun and the ABC.
The Secretary and the Media Organisations agreed that it was not the role of the court on this application to determine whether or not any of these publications were in contravention of section 534 of the Children, Youth and Families Act. Consistent with this approach, although the competing positions of the Secretary (namely, that the publications were in breach) and the Media Organisations (namely, that the publications were not in breach) were stated at the hearing of this application, no detailed submissions were made to support the contrasting positions.

B.3 Evidence adduced by the Secretary

Three affidavits of a principal practitioner employed by the Department were relied upon in support of the Secretary’s application for a proceeding suppression order.[15] This evidence was adduced without objection.[16]
[15]The principal practitioner has 21 years of experience working in the children and families sector both in Australia and the United Kingdom, including working for 17 years as a social worker in child protection. She holds a bachelor of arts in social work and a postgraduate certificate in children and family studies.
[16]Although some of the evidence may not have been strictly in compliance with the Evidence Act 2008 (Vic), no objection was taken to the affidavits. In this regard, see the reference to “sufficient credible information” in s 14 of the Open Courts Act: see par 60 below. See also Director of Public Prosecutions (Cth) v Brady (2015) 252 A Crim R 50, 60 [60] (Hollingworth J).
The principal practitioner first became involved in WD’s protection and care in November 2020. Since then she has engaged in various measures and had varying degrees of involvement in WD’s care, including working closely with child protection staff who have had responsibility and oversight for WD since November 2022. She has also consulted with professionals in obtaining advice in relation to WD’s mental health disability needs and has met with WD on occasion.
An extensive account of WD’s background was given in the principal practitioner’s affidavits. She has a most unfortunate history. I do not propose to set out the litany of issues with which WD has been confronted over the course of her short life, save to say that it has involved significant trauma, abuse and disruption. I observed her demeanour during the bail application, where she appeared by audio-visual link (with others in attendance to assist her). WD’s behaviour suggested that she was struggling to cope with the situation.[17] It is common ground that WD suffers from a mental disability and has the intellectual capacity of someone much younger than her 12 years.[18] It has been estimated that her maturity and level of comprehension is equivalent to that of a 6-year-old.
[17]After a short while, I suggested that the application proceed in WD’s absence. This course was agreed to by the parties.
[18]WD has been diagnosed with several mental health disorders.
Although she is only 12, WD first came to the attention of the Department as early as 2011. As previously referred to, WD became subject to a “care by Secretary” order in 2019 and has remained under the care and supervision of the Department since this time.[19] WD was described by the principal practitioner as an exceptionally vulnerable young person with extremely complex protection and care needs. The principal practitioner stated that WD struggles to regulate her emotions and does not understand social cues. She also has limited insight into the risk others may pose to her more generally and how to keep herself safe. As a result of her complex care needs, the principal practitioner expressed the view that WD needs stable and intensive specialist care in an environment which is predictable and calm.
[19]Orders of this nature remain in force for a period of 2 years: Children, Youth and Families Act, s 289(2). Although the current order in relation to WD expired in mid-2023, an application for extension was made prior to this and the existing order remains in force until the extension application has been determined.
The Secretary’s position was that the more that people are able to identify WD in connection with the alleged offending, the greater the risk to her physical and psychological safety. In this regard, concern was expressed that WD’s safety was at risk from detailed reporting of her circumstances, including her State care history, her cognitive and psychological diagnoses, her placement arrangements and her engagement with the criminal justice process (including her demeanour in court and questions asked of her by any judicial officer).
It was stated that this risk would be perpetuated as long as information that could lead to WD’s identity being exposed continued to be reported on and the articles referred to above[20] remained in the public domain. Further, concern was expressed not only for the safety and wellbeing of WD as a result of people endeavouring to locate her and harm her, but it was suggested there were also risks to the safety and wellbeing of others who may be with WD or connected with her.
[20]See pars 19-38 above.
The principal practitioner expressed the view that the risks identified were exacerbated by WD’s identifiability because of the exceptional nature of the alleged offending and the extent of the information that had already been published. In this context, the principal practitioner referred to a discussion she had with WD’s mother on 20 November 2023, during which the mother advised that a number of her friends had identified WD from the published articles.[21]
[21]WD’s mother also allegedly conveyed to the principal practitioner that “media outlets” had been in contact with her seeking information about WD.
The principal practitioner then referred to several others who were said to have identified WD from the published articles. In light of the circumstances, it is necessary to refer to the detail.
On the afternoon of 16 November 2023, a member of the public telephoned the Department in relation to WD. This caller stated that she had previously had contact with WD and claimed that WD had murdered her friend. The file note of the conversation recorded that the caller stated that a lot of people were looking for WD and that WD’s mother “would be next if [the Department] don’t get involved”. Although not referred to in any detail, the file note of this call recorded that the caller also made threats about the safety of WD.
Later that day, another representative of the Department contacted the same member of the public that had called earlier “to attempt to gain more information about the alleged threats towards [WD]”. The file note of that discussion again recorded that the caller referred to WD having murdered her friend and stated that WD had been causing a nuisance in Footscray and “everyone was getting annoyed at her”. The file note continued:
[The caller] continued to talk about how not long ago she took [WD] to Footscray to meet her carers because she was getting in trouble and was trying to explain to her that she understands what [WD] is going through as she herself was a kid in care …
The file note indicated that the caller said she had witnessed WD assaulting a carer. The caller also made comments about WD’s mother which appeared to indicate that this person was familiar with her mother as well. Next, the file note recorded that the caller stated she was well known to Footscray police and that the police “tell her things”. The caller said she knew that the 12-year-old who had killed someone was WD and that there were “no other 12-year-olds that are in Footscray”. Without going through the remainder of the file note, it included a statement that people were after WD and knew where she was located.
In an amendment made to the file note of the second call 4 days later to add information said to have been left out at the first instance, it was recorded that the caller had stated 1 of the reasons she knew it was WD who was responsible for the murder was because the incident was “all over the news” and that everyone[22] knew WD had “done it”.
[22]Somewhat cryptically, the file note stated “everyone (meaning Footscray)”.
As a preamble to referring to other persons who had identified WD, the principal practitioner deposed that WD had built strong connections with members of the community in the Footscray area in the previous 12 months. She stated that due to her experience of abuse and trauma, WD was inclined to reject care from professionals and instead seek connection from community members. Reference was also made to the fact that WD had been the subject of approximately 100 emergency care warrants[23] in the last 2 years.
[23]See Children, Youth and Families Act, s 598.
Turning to the further persons who were alleged to have identified WD as a result of media reporting, the first was the director of an organisation who had been managing WD’s national disability insurance scheme plan for approximately 12 months. In a text message sent to the principal practitioner on 16 November 2023, the director referred to a news article about a 12-year-old girl stabbing someone in Footscray and stated she was checking to see if the girl was WD. In a later conversation, the director confirmed she had seen the details reported in the media and knew it must be WD.
Two days after the initial publications, WD’s mother and father contacted the police to make enquiries about her. The principal practitioner stated that up to that time, child protection services had not been able to contact WD’s father, and nor had professionals working with him. On this basis, the principal practitioner expressed the belief that WD’s father would only have known about WD’s situation due to the media coverage of the alleged offending.
Next, the principal practitioner said she was aware of other children within child protection who had identified WD from the media coverage of the alleged offending. On 19 November 2023, the mother of a child known to WD spoke to a residential carer and stated that her child had been told that her friend, WD, “ha[d] murdered a lady in Footscray and [was] on the news currently”.
Next, reference was made to a complaint received by the Department on 21 November 2023 from another member of the public. This person stated that members of the Footscray community were talking about how the child associated with the stabbing incident was known to have been sexually exploited.
Finally, the principal practitioner referred to “multiple professionals either currently working with [WD] or who have worked with her previously, advising … they had identified [WD] as the person charged with murder in the media”. These were said to include: (1) WD’s previous behaviours support specialist; (2) “[WD]’s school”; (3) the psychologist providing support to WD’s carers; (4) lookout practitioners supporting children in out-of-home care with education; (5) WD’s aunt; (6) 1 of WD’s previous foster carers; and (7) 2 residential care workers from different agencies who had cared for WD in the past.
A further topic was the subject of the principal practitioner’s affidavit evidence. A document published by the Department headed “Guidance for journalists – Child Protection and Children’s Court Orders” was exhibited to 1 of her affidavits. The document included a section on “Common mistakes”, which referred to the ease with which a child may be inadvertently identified in reporting about child protection or Children’s Court matters. Amongst other things, the following was stated:
While “identifying details” are usually fairly straightforward, it can also include a combination of details including the person’s birth date, age, pseudonym or alias, physical description, style of dress, employment, occupation or relationships. It can also include specific details of the crime.
None of the media publications referred to above[24] provided any of these details in relation to WD other than her age and that she has been charged with murder (unless it be considered that references to residential care or State care may refer in some way to WD’s “relationships”). However, the publications clearly included specific details of the alleged offending.
[24]See pars 19-38 above.

C. Relevant statutory provisions and principles

The Open Courts Act recognises and promotes the principle that open justice is a fundamental aspect of the Victorian legal system. This principle maintains the integrity and impartiality of courts and tribunals, and strengthens public confidence in the justice system.[25] Accordingly, a court must have regard to the primacy of the principle of open justice and the free communication and disclosure of information in determining whether to make a suppression order.[26] A court may only make a suppression order where it is necessary to override or displace the principle of open justice and the free communication and disclosure of information.[27]
[25]Open Courts Act, s 1(aa).
[26]Ibid, s 4(1).
[27]Ibid, s 4(2).
The importance of necessity in the context of the proper administration of justice was explained in an oft-quoted passage:[28]
The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient.
(Emphasis added.)
[28]John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476G-477B (McHugh JA, with whom Glass JA agreed).
Part 2 of the Open Courts Act outlines general provisions relating to suppression orders, and proceeding suppression orders are dealt with under Part 3. Section 17 empowers the court to make a proceeding suppression order where it is satisfied of any 1 or more of the grounds set out in section 18(1), which grounds relevantly include that the order is necessary to protect the safety of any person.[29] It is useful to set out these and some other provisions of the Open Courts Act of relevance to this application. They include:
[29]Open Courts Act, s 18(1)(c).
13 Scope of information covered by order
(1)A suppression order must specify the information to which the order applies with sufficient particularity to ensure that—
(a)    the order is limited to achieving the purpose for which the order is made; and
(b)   the order does not apply to any more information than is necessary to achieve the purpose for which the order is made; and
(c)    it is readily apparent from the terms of the order what information is subject to the order.
…
14 Order must be made on basis of evidence or sufficient credible information
(1)In making a suppression order, a court or tribunal must be satisfied on the basis of evidence, or sufficient credible information that is satisfactory to the court or tribunal, that the grounds for making the order are established.
…
…
17       Court or tribunal may make proceeding suppression order
A court or tribunal on one or more of the grounds specified in section 18 may make a proceeding suppression order to prohibit or restrict the disclosure by publication or otherwise of—
(a)    a report of the whole or any part of a proceeding;
(b)   any information derived from a proceeding.
18       Grounds for proceeding suppression order
(1)A court or tribunal other than the Coroners Court may make a proceeding suppression order if satisfied as to one or more of the following grounds—
(a)    the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means;
…
(c)    the order is necessary to protect the safety of any person;
…
Numerous authorities have subsequently discussed the requirement of necessity in the context of section 18 of the Open Courts Act, which were recently summarised as follows:[30]
Each of the grounds outlined under section 18(1) [of the Open Courts Act] require the court to be satisfied that a suppression order is “necessary” in the circumstances. The same test of necessity applies where a suppression order is sought pursuant to the court’s inherent jurisdiction. A suppression order will be necessary where, absent the order, “particular unacceptable consequences will flow that ought be prevented to preserve the proper function of the court”. Necessity in this context is a “stringent standard” requiring a high degree of satisfaction. It is insufficient that the making of a suppression order is merely “convenient, reasonable or sensible”. It is also not enough that a failure to make a suppression order may result in embarrassment, shame or humiliation for an applicant. The applicant bears the onus of persuading the court that the suppression order sought is necessary.
Insofar as the “necessity” test is directed towards the ground of safety of any person, it requires the establishment of a causal link between the absence of the order and some increased risk to the person concerned. Thus, if the level of danger faced by a person would not be materially advanced were a suppression order not to be made, it is unlikely that such an order could truly be considered “necessary”.
(Citations omitted.)
[30]Director of Public Prosecutions v EN [2023] VSC 724, [24]-[25].
In relation to what is encapsulated by the phrase “safety of any person”:[31]
Safety in the context of section 18(1)(c) is to be given a broad construction, and the provision has been held to encompass risks to both physical and psychological safety. However, an important distinction can be drawn between “harm” and “safety”, the latter concept being a “conclusion informed by the nature, imminence and degree of likelihood of apprehended harm”.
(Citations omitted.)
Accordingly, section 18(1)(c) will not be enlivened unless the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that the risk to the person would range above the level that could reasonably be regarded as acceptable if a suppression order were not made.[32]
[31]Ibid, [27].
[32]AB v CD (2019) 364 ALR 202, 205-206 [15] (Nettle J).
The nature, extent and scope of the order sought will also be germane to the ultimate disposition of any application for suppression or non-publication. In other words, the degree of derogation from the principle of open justice that would be involved in the making of the suppression order that is sought is a relevant consideration.[33] The extent to which the subject matter of a proposed suppression order has already been the subject of reporting or other publication may also be a relevant factor. On the question of utility of a suppression order and prior publications:[34]
In addition to necessity, the utility or efficacy of a suppression order is also a relevant consideration. If it cannot be said that a suppression order would have the effect of materially reducing the risk to the safety of a person, it is unlikely that the order will be made. Thus, in circumstances where a suppression order would have little practical effect because a proceeding has already garnered significant publicity and it would be difficult to stem any further publication of the matters sought to be suppressed, a court will generally refuse to make a suppression order.
(Citations omitted.)
Another relevant matter in determining whether a suppression order is necessary to protect the safety of any person is the availability of care and treatment for the person, together with any protective measures that are or can be put in place.[35]
[33]Attorney-General v Khan (Suppression Order) [2022] VSC 627, [3] (John Dixon J); ABC v D1 [2007] VSC 480, [36] (Forrest J).
[34]Director of Public Prosecutions v EN [2023] VSC 724, [26].
[35]Ibid, [28], citing Cooper v Herald & Weekly Times Pty Ltd [2013] VSC 589, [15] (Ferguson J).
In addition to the court’s general powers to suppress a proceeding or any part of it under the Open Courts Act, section 534 of the Children, Youth and Families Act contains a restriction on the publication of certain information in connection with proceedings in or arising out of the Children’s Court. In this way, the provision represents an express modification of the principle of open justice. Section 534 provides:
534      Restriction on publication of proceedings
(1)A person must not publish or cause to be published—
(a)    except with the permission of the President[36] or of a magistrate under subsection (1A), a report of a proceeding in the Court[37] or of a proceeding in any other court arising out of a proceeding in the Court that contains any particulars likely to lead to the identification of—
[36]This is a reference to the President of the Children’s Court: Children, Youth and Families Act, ss 3, 508.
[37]WD was before the Children’s Court and was remanded into custody before the hearing of the bail application in this court. It was therefore common ground that this proceeding is “a proceeding in any other court arising out of a proceeding in the [Children’s] Court” within the meaning of s 534(1)(a).
(i)    …
(ii)   a child or other party to the proceeding; or[38]
[38]Although it was not the subject of any argument, the apparent breadth of this subparagraph is notable. In many proceedings in or arising from the Children’s Court (such as this 1), the Director of Public Prosecutions (or other public entity) is a “party to the proceeding”. Presumably, this subparagraph cannot be intended to restrict or prohibit the publication of a report containing any particulars likely to lead to the identification of the Director of Public Prosecutions, as such an interpretation would undermine the purpose of s 534: see Howe v Harvey (2008) 20 VR 638, 658-659 [94] (Neave and Kellam JJA and Forrest AJA).
(iii)   …
(b)   except with the permission of the President or of a magistrate under subsection (1A), a picture as being or including a picture of a child or other party to, or a witness in, a proceeding referred to in paragraph (a); or
(c)    except with the permission of the President or of a magistrate under subsection (1A), or of the Secretary under subsection (3), any matter that contains any particulars likely to lead to the identification of a child as being the subject of an order made by the Court.
…
(1A) On application to the Court, a magistrate may grant permission for the publication if the magistrate is satisfied that—
(a)    the circumstances giving rise to the request for permission to publish are an emergency; and
(b)   publication is reasonably necessary for the safety of—
(i)     the child, other party or witness referred to in subsection (1); or
(ii)   any other person or the community.
…
(4)Without limiting the generality of subsections (1) … the following particulars are deemed to be particulars likely to lead to the identification of a person—
(a)    the name of the person;
(b)   the names of—
(i)     any relative of the person; or
(ii)   any other person having the care of the person; [39] or
(iii) …
(c)    the name or address of any place of residence of the person, or the locality in which the residence is situated;
(d)   the name or address of any place of education, training or employment attended by the person, or the locality in which the place is situated.
(5)Subsection (1) does not apply to the publication of accounts of proceedings of the Court, where those accounts have been approved by the President.
…
[39]In a similar vein, and again as in the circumstances of this case, it will sometimes be the case that a child the subject of a proceeding in or arising from the Children’s Court is in the care of the Secretary. However, this subparagraph likewise cannot be intended to restrict or prohibit the publication of the name of the Secretary in a report of the proceeding, as such an interpretation would likewise undermine the purpose of s 534: ibid.
The penalty for a contravention of section 534(1) is, in the case of a body corporate, 500 penalty units, and 100 penalty units or imprisonment for a period of 2 years in any other case.[40] No permission to publish information in relation to this case has been given by the President or any magistrate for the purposes of section 534 or otherwise.
[40]Children, Youth and Families Act, s 534(1).

D. Declaration sought

In its amended form,[41] the declaration ultimately sought by the Secretary was to the effect that “publication in a report of a proceeding” in this court or the Children’s Court of certain information about WD and the alleged offending would constitute a breach of section 534 of the Children, Youth and Families Act by reason of being likely to lead to the identification of WD.
[41]See par 15 above.
At the hearing of the application, after acknowledging the operation of section 8(1A) of the Open Courts Act and the potential difficulties this posed for the ability of the court to make the proceeding suppression order sought,[42] senior counsel for the Secretary confirmed that the application for declaratory relief was the Secretary’s primary application. Accordingly, it is convenient to deal with this application first.[43]
[42]See further pars 84-86 below.
[43]Nothing in the Open Courts Act limits or otherwise affects the inherent jurisdiction of the Supreme Court: s 5(1).

D.1 Legal principles

Any application for declaratory relief must be “directed to the determination of legal controversies and not to answering abstract or hypothetical questions”.[44] An applicant for declaratory relief must have a “real interest” in seeking the relief,[45] and, ordinarily,[46] there must be a proper contradictor in the sense of a person who has “a true interest to oppose the declaration sought”.[47]
[44]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 582.2 (Mason CJ, Dawson, Toohey and Gaudron JJ).
[45]Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 437.9 (Gibbs J), citing Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438, 448 (Lord Dunedin).
[46]Director of Consumer Affairs Victoria v Mecon Insurance Pty Ltd [2016] VSC 42, [22(3)], [24].
[47]Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 438.1.
Where a declaration is not based on facts found or agreed, it will be purely hypothetical and will not finally resolve a dispute or quell a controversy. It therefore generally cannot assist in the efficient administration of justice.[48] Similarly, declaratory relief may not be appropriate where the declaration sought “will produce no foreseeable consequences for the parties”.[49]
[48]Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334, 357 [49] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[49]Gardner v Dairy Industry Authority of New South Wales (1977) 18 ALR 55, 69.7 (Mason J, with whom Jacobs and Murphy JJ agreed).

D.2 Submissions

In spite of the agreed position that it was not the role of the court on this application to determine whether any previous media coverage of the alleged offending was in contravention of section 534 of the Children, Youth and Families Act,[50] the Secretary’s submissions on both the application for declaratory relief and the application for a suppression order were in large part directed towards establishing that the disclosure of certain information about WD and the alleged offending (whether in existing media publications or otherwise) would be contrary to section 534. To this end, the purpose, scope and application of section 534 were discussed at length in both written and oral argument. With respect, this did little to establish the utility or appropriateness of the declaration sought, which by its very terms was not directed towards any particular publication or publications.
[50]See par 39 above.
In essence, the Secretary submitted that, in light of the media coverage of the alleged offending to date, it was clear that section 534 of the Children, Youth and Families Act was providing inadequate protection for WD’s physical and mental wellbeing. In these circumstances, it was contended to be “absolutely necessary” that the proposed declaration be made. According to the Secretary, the declaration sought would have the effect of saying, “in this very specific and informed context … these are the matters upon which there cannot be publication, pursuant to section 534”.
The Media Organisations submitted that the Secretary’s application for declaratory relief was misconceived and in any event, the declaration sought was imprecise and overly broad. They submitted that the issue raised by the application for declaratory relief was “quintessentially hypothetical”, in that the question of whether any publication would contravene section 534 was a question of fact that would fall to be determined on the circumstances of each publication. Further, it was submitted that the declaration did not concern the rights of any person, nor did it relate to an inter-partes dispute or controversy before the court. Ultimately, it was submitted that the proposed declaration would not involve a final declaration of any party’s rights in respect of any particular conduct or publication and instead sought to do no more than declare that the law would dictate a particular result if certain facts were to exist in the future.

D.3 Analysis

The declaration as originally sought[51] was misconceived. It was plainly too wide and unclear. What was meant by the phrase “reference to details” was not made clear, and several other vague terms were employed. Further and more fundamentally, section 534 of the Children, Youth and Families Act is concerned with prohibiting the publication of reports of proceedings, rather than any publication whatsoever. Accordingly, the declaratory relief originally sought by the Secretary was inherently problematic.[52] In short, its breadth went far beyond the subject matter that, if published, might constitute a breach of section 534(1)(a).
[51]See par 12 above.
[52]That is, “publication” in the application as originally made was not confined to a report of a proceeding in the Children’s Court or of a proceeding in any other court arising out of a proceeding in the Children’s Court, as contemplated by s 534(1) of the Children, Youth and Families Act: see par 64 above. See further Howe v Harvey (2008) 20 VR 638, 658 [92] (Neave and Kellam JJA and Forrest AJA).
The amended application for declaratory relief[53] sought to align the wording of the proposed declaration with the statutory prohibition on publication contained in section 534(1)(a) of the Children, Youth and Families Act. Notwithstanding this attempt, substantial difficulties still arise in relation to the amended application for declaratory relief that make it inappropriate for any declaration to be made.
[53]See par 15 above.
First, as submitted by the Media Organisations, the declaration sought is not based on facts found or agreed, and would not involve a final determination of any party’s rights in respect of any particular conduct or publication. It would not assist in the efficient administration of justice, nor would it finally resolve a dispute or quell a controversy between the parties. As such, it cannot be said that the Secretary’s application is directed to the determination of a legal controversy and not an abstract or hypothetical question.

Secondly, the Secretary is seeking to obtain the relief to use it as a form of proleptic tool to prevent publications she anticipates will be published in the future. Although the Secretary submitted that it was likely media organisations would continue to publish articles and reports as they had done in the past,[54] no imminent threat of a proposed publication (or even a form of possible publication) that would contravene section 534 was identified. Indeed, the Secretary submitted that the subject matter sought to be covered by the declaration would only be speculative or hypothetical if there was “a complete change in trajectory from the media organisations”. It was also submitted that it was clear “from their investigations and from what is being published, there will be more”. Such submissions make plain that the issue the declaration is intended to address may never arise. However, even accepting that it is very likely there will be further publications in future, any assessment of the content of any such publications must necessarily be speculative.
[54]This submission did not appear to be confined to the Media Organisations represented on this application.
Thirdly, there have already been publications about the alleged offending that have included reports of proceedings in both this court and the Children’s Court and have contained 1 or more of the details specified in the proposed declaration. Accordingly, the making of the proposed declaration would have the effect of declaring that such publications were made in breach of section 534 of the Children, Youth and Families Act in circumstances where the matter has not been argued and the parties have explicitly invited the court not to adjudicate on the matter.[55]
[55]See par 39 above.
Fourthly, as I understood the Secretary’s position, it was not intended that the 4 items referred to in the proposed declaration[56] be cumulative. Thus, as submitted by the Media Organisations, the declaration would cover a situation where a publication was, as a matter of fact, unlikely to lead to the identification of WD despite the fact that details falling into 1 of the categories specified had been published. That this could occur is entirely plausible. For example, merely referring to a child as being in State care and nothing more would not be likely to lead to the identification of WD as a matter of fact, and yet such a publication would fall within the terms of the proposed declaration. Thus, on this realistic possible scenario, no breach of section 534 of the Children, Youth and Families Act would have actually occurred, but the effect of the declaration as sought would be to declare otherwise.
[56]See par 15 above.
Fifthly, despite some of the issues with imprecision being addressed in the amended application, much of the language adopted in the proposed declaration is inherently ambiguous. It is unclear exactly what is meant by terms such as “personal history” and “location”,[57] and there could be no understanding of what the limits of these broad terms were said to be. It would therefore be inappropriate for the court to declare that reporting of such details would amount to a breach of section 534.
[57]In contrast to the language adopted in the Secretary’s application for a proceeding suppression order, which specifies the location of the alleged offending as Footscray.
Sixthly, “publication” in the declaration sought is not confined to publications in this jurisdiction or even in Australia. Thus, on its face,[58] the proposed declaration would not be directed to any particular media organisation or other person, but would instead purport to bind anyone who made a publication anywhere in the world that could be described as a report of a proceeding in this court or the Children’s Court that contained any 1 of the specified matters.
[58]And putting aside issues concerning the extent of the court’s jurisdiction.
For any of these reasons, it is not appropriate for the court to make the declaration sought by the Secretary. When considered in combination, the inappropriateness of declaratory relief as sought is manifest.

E. Suppression order

Turning to the Secretary’s alternate application for a proceeding suppression order, a preliminary issue arose at the hearing in relation to the operation of section 8 of the Open Courts Act. It is convenient to address this issue before considering the substance of the application.

E.1 The preliminary issue

As the preliminary issue to be determined concerns the proper construction of section 8 of the Open Courts Act and its operation in the circumstances of this case, it is useful to set out relevant parts of the provision. It provides:
8 Other laws restricting or prohibiting publication not affected
(1)This Act does not limit or otherwise affect the operation of a provision made by or under any other Act, including an Act of the Commonwealth, that—
(a) prohibits or restricts, or authorises a court or tribunal to prohibit or restrict, the publication or other disclosure of information for or in connection with any proceeding; or
(b) requires or authorises a court or tribunal to close any proceeding to the public.
(1A) If a provision of an Act referred to in subsection (2) prohibits or restricts, or authorises a court or tribunal to prohibit or restrict, the publication or other disclosure of information for or in connection with any proceeding, a court or tribunal must not make a suppression order that prohibits or restricts the publication or other disclosure of information which is already prohibited or restricted by that other provision.
(2)Without limiting the generality of subsection (1), this Act does not limit the operation of the following provisions—
…
(b) section 534 of the Children, Youth and Families Act 2005;
(3)A suppression order that prohibits or restricts the publication or other disclosure of information which is already prohibited or restricted by the operation of a provision made by or under any Act, including an Act of the Commonwealth, is not invalid merely because it covers the same prohibition, restriction or disclosure as the provision of an Act.
At the hearing of the bail application on 17 November 2023, the solicitor appearing on behalf of a media organisation submitted that, by virtue of section 8(1A), the court was not permitted to make an interim suppression order in circumstances where a statutory prohibition already existed in relation to the disclosure of the information sought to be suppressed. As section 8(2)(b) makes explicit reference to section 534 of the Children, Youth and Families Act, it was submitted that the court was precluded from making an interim suppression order in the circumstances.
Given that the precise manner of interaction between section 8(1A) of the Open Courts Act and section 534 of the Children, Youth and Families Act was not immediately apparent, it was appropriate to hear further submissions on the point before determining the application for a proceeding suppression order.
The issue was revisited at the hearing of the Secretary’s application on 27 November 2023. At this time, counsel for the Media Organisations again submitted that the court was precluded from making a suppression order pursuant to the Open Courts Act in the circumstances by virtue of section 8(1A). This was put in light of the fact that the information sought to be suppressed by the proposed order was already covered by the prohibition in section 534(1)(a). However, a further question was raised as to the operation of section 8(3) of the Open Courts Act, and whether this provision would nevertheless allow for the making of the proposed suppression order. This prompted a closer examination of section 8 and the interaction between subsections (1A) and (3).

E.1.1 Background to and history of section 8(1A) and (3) of the Open Courts Act

To determine the proper construction of section 8 and its operation and application in the circumstances of this case, it is helpful to set out some background to the provision and its history.
Prior to the introduction of the Open Courts Act, the statutory source of the court’s power to make suppression orders was sections 18 and 19 of the Supreme Court Act 1986 (Vic). These sections were not complemented by any provision with a comparable or equivalent function to that of section 8 of the Open Courts Act.
When the Open Courts Act was introduced in 2013, section 8(1A) and (3) did not feature. Instead, the original formulation of section 8 of the Open Courts Act was limited to current subsections (1) and (2),[59] and the provision was therefore exclusively directed towards preserving the operation of provisions under other Acts that prohibited or restricted the publication or disclosure of information for or in connection with any proceeding.
[59]Further provisions were subsequently added to the list of provisions in subs (2): see pars 93-94 below.
In 2017, an independent review of the Open Courts Act was conducted (“the Open Courts Review”) to examine whether the right balance was being struck between the need for open and transparent justice on the 1 hand, and the need to protect the legitimate interests of victims, witnesses and accused persons and to preserve the proper administration of justice on the other.[60] The Open Courts Review concluded that “[t]he making of some suppression orders has been based essentially upon a number of traditionally-accepted and largely-unquestioned propositions of dubious validity”.[61] Accordingly, several of the recommendations which flowed from the Open Courts Review related to reform of the statutory regime governing suppression orders.
[60]Frank Vincent, Open Courts Act Review (September 2017).
[61]Ibid, 5 [7].
Relevantly for present purposes, the Open Courts Review found that the vast majority of suppression or non-publication orders in Victoria between 2014 and 2016 were made under the Open Courts Act.[62] However, it was noted that:[63]
… analysis of the suppression orders made since the introduction of the [Open Courts Act], indicates that they may, at least on some occasions, have been made in circumstances where dissemination of the encompassed information would have been contrary to law by virtue of provisions contained in other legislation.
[62]Ibid, 5 [8].
[63]Ibid, 108-109 [436].
The Open Courts Review concluded that part of the solution to a reduction in the number of unnecessary suppression orders and the better identification of the circumstances in which such orders were truly necessary was their limitation to situations not already encompassed by other legislative prohibitions or limitations on publication.[64] On this basis, the following overarching recommendation was made:[65]
RECOMMENDATION 3: That the Open Courts Act be amended to restrict the power to make suppression orders to situations not otherwise encompassed by statutory provisions prohibiting or limiting publication.
According to the Open Courts Review, this recommendation was intended to “assist in reducing the number of unnecessary orders and direct attention to what may be required in the circumstances”.[66]
[64]Ibid, 109 [438].
[65]Ibid, 9.
[66]Ibid, 6 [14(a)].
Following the Open Courts Review, the Open Courts and Other Acts Amendment Act 2019 (Vic) was introduced, section 6 of which made substantial modifications to section 8 of the Open Courts Act. These modifications included the introduction of subsections (1A) and (3) and the amendment of subsection (2) to list several other specialised statutory regimes which prohibited or limited the publication of certain information. The explanatory memorandum to the Open Courts and Other Acts Amendment Bill 2019 (Vic) offers the following explanation in relation to clause 6:[67]
Subclause (2) inserts new section 8(1A) which precludes a court or tribunal from making a suppression order under the [Open Courts Act] in respect of certain information for, or in connection with, the proceeding if the publication of that information can be or is prohibited or limited by the operation of a provision referred to in section 8(2) of the [Open Courts Act].
…
Subclause (5) inserts a new section 8(3) for the purpose of ensuring that a suppression order made under the [Open Courts Act] which prohibits or restricts the publication of information contrary to the statutory requirement in section 8(1A) is not invalid as a result of covering the same prohibition, restriction or disclosure.
(Emphasis added.)
[67]Explanatory Memorandum, Open Courts and Other Acts Amendment Bill 2019, 2-3.
Comments made in the second reading speech for the Bill in relation to the amendments to section 8 are also instructive:
Reducing duplication of suppression orders
The Open Courts Act provides that it does not affect the operation of provisions in other legislation which prohibit or restrict the publication of information. Section 8 of the Act includes a non‐exhaustive list of such provisions. The Bill will add a number of provisions to the list in section 8 of the Open Courts Act, for example, provisions in the Judicial Proceedings Reports Act. It will also prohibit courts and tribunals from making a suppression order under the Open Courts Act where any of the provisions listed in section 8 apply to publishing the information. This will reduce the number of suppression orders being made under the Open Courts Act where other legislation operates.[68]
(Emphasis added.)
[68]Victoria, Parliamentary Debates, Legislative Council, 21 March 2019, 1019 (Jaala Pulford).
While similar provisions to section 8(1) of the Open Courts Act can be found in legislation relating to suppression orders in some other jurisdictions,[69] it does not appear that provisions equivalent or comparable to section 8(1A) or (3) have been enacted in other Australian jurisdictions. Further, although section 8 of the Open Courts Act has been referred to in a handful of cases,[70] there does not appear to have been any substantive consideration of its operation to date. Indeed, the Court of Appeal recently observed that “[t]he relationship between [subsections] (1A) and (3) and their overall effect is not immediately obvious”.[71]
[69]See, for example, Court Suppression and Non-Publication Orders Act 2010 (NSW), s 5; Judiciary Act 1903 (Cth), s 77RC; Federal Court of Australia Act 1976 (Cth), s 37AC; Family Law Act 1975 (Cth), s 102PB.
[70]Director of Public Prosecutions v EN [2023] VSC 724, [42]-[43]; Victorian Institute of Teaching v QDP [2021] VSC 844, [23] (McDonald J); PQR v Secretary to the Department of Justice and Regulation (No 1) (2017) 53 VR 45, 52 [21] (Bell J); Chief Commissioner of Police v Nikolic (2016) 338 ALR 683, 707 [90] (Maxwell P, Osborn and Kaye JJA).
[71]Hoser v Pelley (No 4) [2023] VSCA 319, [24(c)] (McLeish and Walker JJA and Elliott AJA).

E.1.2 Submissions

At the hearing on 27 November 2023, when initially asked whether section 8(1A) of the Open Courts Act would prohibit the court from making the suppression order sought, counsel for the Secretary conceded that that may be the case. However, it was later submitted that the situation was not wholly straightforward. It was noted that section 8(1A) appeared to be manifestly directed to preventing situations of overlap between suppression orders made under the Open Courts Act and other statutory prohibitions or restrictions on the publication of information. However, the Secretary submitted that section 8(3) would operate to ensure that a suppression order made contrary to section 8(1A) would not be invalid.
The position adopted by the Media Organisations was that section 8(1A) prevented the court from making the suppression order sought by the Secretary. In the Media Organisations’ submission, the intention of parliament in enacting section 534 of the Children, Youth and Families Act was that it “cover the field” in relation to restrictions on the reporting of proceedings in or arising out of the Children’s Court. This intention was said to be reflected in section 8(1A) of the Open Courts Act, which was submitted to direct that the court “should not enter into the fray” by making a suppression order in respect of information already covered by section 534. Further, the Media Organisations submitted that there was long-standing authority for the proposition that suppression orders ought not be used as a means of punishing or preventing conduct that is already the subject of a restriction or prohibition elsewhere in the law, with section 534 suggested to be a relevant example in this regard.[72] It was submitted that this principle finds a statutory voice in section 8(1A).
[72]Citing Lehrmann v Network Ten Pty Ltd (Livestream) [2023] FCA 1452, [19]-[20] (Lee J); David Syme & Co v Arnold (Supreme Court of Victoria, Cummins J, 5 March 1993) 9-10; Friedrich v Herald & Weekly Times Ltd [1990] VR 995, 1007.5 (Kaye, Fullagar and Ormiston JJ).
When section 8(3) was raised with counsel for the Media Organisations, it was submitted that the primary function of this subsection was to affirm that any suppression orders made prior to the introduction of section 8(1A) which related to information already the subject of a reporting restriction or limitation enumerated in section 8(2) would not become invalid after the 2019 amendments to section 8 came into force. However, it was later accepted that section 8(3) may also have operation in circumstances where a suppression order was made that covered some information falling within the scope of the prohibition in section 534 of the Children, Youth and Families Act but also included subject matter that extended beyond the type of information contemplated by section 534.

E.1.3 Analysis

Essentially, addressing this preliminary issue involves the determination of 2 questions. It is first necessary to consider whether the court is precluded from making the suppression order sought by the Secretary by virtue of section 8(1A) and (2)(b) of the Open Courts Act. If that question is answered affirmatively, a question then arises as to whether section 8(3) has any operation in the circumstances.
In the absence of any prior judicial consideration of the interaction between section 8(1A) and (3), general principles of statutory interpretation must be considered. The central focus should be on the text of the provision, with its words given their natural and ordinary meaning unless a contrary legislative intent is plain.[73] The text of the provision must be also considered in context, including by having regard to the Act as a whole, its purpose and object, and any relevant extrinsic material.[74] A construction of legislation which promotes its underlying purpose or objective is to be preferred over one that does not.[75]
[73]Masson v Parsons (2019) 266 CLR 554, 572 [26](Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ).
[74]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.4 (Brennan CJ, Dawson, Toohey and Gummow JJ).
[75]Interpretation of Legislation Act 1984 (Vic), s 35(a).
With this in mind, the position as far as section 8(1A) is concerned is relatively straightforward. As is clear from the text of the provision, it operates to preclude a court from making a suppression order in relation to information the publication or disclosure of which is already prohibited or restricted by the operation of a provision referred to in section 8(2).[76] Thus, on its face, section 8(1A) precludes the court from making the suppression order sought by the Secretary, which proposes to prohibit the publication or disclosure of information that is already captured by the restriction on publication in section 534 of the Children, Youth and Families Act.[77]
[76]It should be noted that some of the provisions identified in s 8(2) give rise to an automatic prohibition or restriction on the publication or disclosure of information (with s 534 of the Children, Youth and Families Act being a key example in this regard. See also Adoption Act 1984 (Vic), s 121; Family Violence Protection Act 2008 (Vic), s 166), whereas others provide for the making of a court order to give effect to a restriction or prohibition on publication or disclosure (see, for example, Confiscation Act 1997 (Vic), s 17(3); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 75). Curiously, the explanatory memorandum to the Open Courts and Other Acts Amendment Bill provides that s 8(1A) “precludes a court or tribunal from making a suppression order … in respect of certain information … if the publication of that information can be or is prohibited or limited by the operation of a provision referred to in section 8(2)” (emphasis added): see par 93 above. However, the text of s 8(1A) makes clear that the court will only be precluded from making a suppression order in respect of information the disclosure or publication of which is already prohibited or restricted by the operation of a provision referred to in s 8(2). As such, there would seem to be an inconsistency between s 8(1A) and the explanatory memorandum. While the words “is already” in s 8(1A) indicate that, in the case of a provision under s 8(2) that requires the making of a court order to give effect to a restriction or prohibition on publication or disclosure, such an order must have been made before s 8(1A) is enlivened, the words “can be or is” in the explanatory memorandum would suggest that the mere existence of a power to make such an order is sufficient to enliven s 8(1A). Obviously, the clear meaning of the text of s 8(1A) must prevail and, in any event, makes more sense.
[77]Although the point was touched upon by counsel for the Media Organisations at the hearing, no submission was made by the Secretary to the effect that the phrase “information that would tend to identify” WD adopted in the Secretary’s proposed suppression order was any broader than “particulars likely to lead to the identification” of WD under s 534(1)(a) of the Children, Youth and Families Act. In short, the Secretary’s application was made on the basis that the information sought to be the subject of the proposed suppression order was the same as that covered by s 534.

However, the operation of section 8(3), and particularly the manner in which this subsection interacts with section 8(1A), is less clear. While section 8(3) may, as suggested by counsel for the Media Organisations, have operation in relation to suppression orders made prior to the introduction of section 8(1A) in 2019,[78] there is no warrant for confining its operation exclusively to such situations. If parliament had intended for the operation of the provision to be limited in this manner, it would be expected express language to this effect would have been adopted. Instead, the language used in both the provision itself[79] and the explanatory memorandum to the Open Courts and Other Acts Amendment Bill[80] makes clear that its operation is prospective, enduring and in no way temporally limited.
[78]See par 98 above.
[79]See par 83 above.
[80]See par 93 above.
Indeed, a scenario in which subsection (3) would appear to have operation is when a suppression order is made which includes within its scope some information the publication or disclosure of which is already prohibited or restricted by operation of a provision referred to in section 8(2), but also encompasses information or matters outside the scope of that provision. For example, if a broad suppression order were made in this proceeding prohibiting the disclosure by publication or otherwise of a report of the whole or any part of the proceeding or any matter connected with it, self-evidently, such an order would include within its scope information the disclosure or publication of which is already prohibited under section 534 of the Children, Youth and Families Act. Naturally, however, it would also cover material falling outside the scope of section 534. Section 8(3) may also have operation in some circumstances where a suppression order is made that both partly overlaps with and is in some way inconsistent with a provision referred to in section 8(2).
In the absence of section 8(3), a literal reading of section 8(1A) might suggest that a suppression order of this nature “must not” be made, as it would operate to prohibit or restrict “the publication or other disclosure of information which is already prohibited or restricted by” section 534. In such circumstances, absent subsection (3), it might have been necessary for a suppression order of this kind to include an express carve-out for any information the publication or disclosure of which is already prohibited or restricted by operation of a provision referred to in section 8(2). Evidently, this scenario would have the potential to create serious inefficiencies, confusion and other undesirable outcomes. With this in mind, it may be the case that the purpose of section 8(3) is to affirm the validity of a suppression order made in such circumstances, notwithstanding it covers some information already the subject of statutory restrictions on disclosure or publication.
However, on a plain reading of section 8(3), there is equally no warrant to confine its operation to situations of partial overlap. It may be that section 8(3) is intended to operate more broadly as a legislative “safety net” of sorts, acting to save suppression orders that are made in spite of or in ignorance of the fact that the information is already subject to a prohibition or restriction on disclosure or publication by operation of a provision listed in section 8(2) from invalidity. For instance, a scenario can be envisaged where a judge makes an order in a proceeding for the non-publication of particular information under section 17(3) of the Confiscation Act 1997 (Vic), and another judge in another proceeding makes an order in identical terms under the Open Courts Act. It may be that the intended function of section 8(3) is to clarify that section 8(1A) will not immediately and automatically serve to invalidate the latter order made contrary to that provision, to avoid confusion and provide certainty in a proceeding.
That said, it must be noted that a suppression order such as this which seeks to prohibit the publication or disclosure of information already the subject of a prohibition or restriction by operation of a provision under section 8(2) would likely be of little practical utility. Further, the operation of section 8(3) in these circumstances would sit somewhat uncomfortably with the object and purpose of the modifications that were made to section 8 in 2019 following the Open Courts Review, namely, reducing the number of unnecessary suppression orders.[81] It would also appear to be in conflict with the general principle that a court ordinarily should not make a suppression order which has the same effect as an existing statutory prohibition or restriction on the publication of information.[82]
[81]See pars 90-92 above.
[82]See further par 109 below.
Ultimately, it is unnecessary to determine the precise scope and operation of section 8(3) for present purposes. Whatever the position might be, it is clear that the subsection does not operate as an empowering provision. The language used in the provision does not in any way evoke a power on the court’s part to make suppression orders where specialised regimes prohibiting or restricting the publication of the relevant information are already in place. Further, the explanatory memorandum to the Open Courts and Other Acts Amendment Bill makes clear that the function of section 8(3) is “ensuring that a suppression order made … contrary to the statutory requirement in section 8(1A) is not invalid” as a result of covering the same subject matter (emphasis added). This again makes clear that section 8(3) is a safeguard against invalidity, rather than a source of power. In this way, the provision stands in stark contrast to the strong prohibitive language adopted in section 8(1A), which provides that a court “must not” make a suppression order where the publication or disclosure of the relevant information is already prohibited or limited by the operation of a provision referred to in section 8(2).[83]
[83]See also par 93 above and the use of “precludes” and “statutory requirement” in this context.
This interpretation is consistent with the object and purpose of the modifications that were made to section 8 in 2019 by the Open Courts and Other Acts Amendment Act. As is clear from the second reading speech for the relevant Bill,[84] the intention of these amendments was to reduce the number of suppression orders made unnecessarily and to give primacy to the specialised regimes for restricting or limiting the publication of information that exist under the Acts listed in section 8(2). Similar sentiments were also expressed in the Open Courts Review.[85] A broad interpretation of section 8(3) which would empower the court to make suppression orders in a manner contrary to section 8(1A) would not accord with this intention.
[84]See par 94 above.
[85]See pars 90-92 above.
Further, interpreting section 8(1A) and (3) in this manner is also consistent with the general principle referred to by counsel for the Media Organisations that a suppression order should not be used as a means of punishing or preventing conduct that would in any event constitute an offence against or contravention of the law. In this regard, the decision of the New South Wales Court of Appeal in R v AB (No 1)[86] is of note. Here, the court overturned a suppression order prohibiting the publication of information relating to the identity of an offender who had pleaded guilty to child sexual offences committed when he was a juvenile, concluding that the order was not appropriate in circumstances where the information it sought to suppress was already the subject of a statutory prohibition on publication. Meagher JA (with whom Rothman and Garling JJ agreed) explained the rationale for this as follows:[87]
The appropriate remedy for any contravention of the prohibition in s 15A(1) [of the Children (Criminal Proceedings) Act 1987 (NSW)] is for proceedings to be brought under s 15A(7) against a person who has published contrary to that prohibition. … the Act should be allowed to operate according to its terms and with the sanctions which Parliament has prescribed and the court should not make orders which carry with them the prospect of contempt proceedings of a character parallel to any proceedings for a contravention of s 15A.
Although there is no equivalent provision to section 8(1A) or (3) in the Court Suppression and Non-publication Orders Act 2010 (NSW), there is considerable force in the submission made on behalf of the Media Organisations that section 8(1A) can be conceived of as a statutory embodiment of the general principle that it is usually not appropriate for a court to make a suppression order which has the same effect as an existing statutory prohibition or restriction on the publication of information. Further, the more expansive interpretation of section 8(3) which appeared to be contended for by the Secretary would be directly contrary to this principle.
[86](2018) 97 NSWLR 1015.
[87]Ibid, 1023-1024 [38], referring to Application by John Fairfax Publications Pty Ltd re MSK [2006] NSWCCA 386, [29] (Spigelman CJ, with whom Basten JA and Hislop J agreed).
In light of the above, it is not appropriate that a suppression order in the form sought by the Secretary be made. As is clear from the terms of the proposed order, the information that it seeks to suppress the publication or disclosure of is already captured by the restriction on publication found in section 534 of the Children, Youth and Families Act.[88] To make a suppression order in these circumstances would be in direct contravention of the statutory prohibition in section 8(1A) of the Open Courts Act. Even if section 8(3) would be enlivened in the circumstances to prevent such an order being rendered invalid, clearly, this provision could not authorise the making of a suppression order in wilful and flagrant disregard of section 8(1A).
[88]See fn 77 above.

E.2 Application for a proceeding suppression order

For completeness, and in the event that I am wrong as to the proper construction of section 8(1A) and (3) of the Open Courts Act and their interaction with section 534 of the Children, Youth and Families Act in the circumstances of this case, it is appropriate to consider the substance of the Secretary’s application for a suppression order under sections 17 and 18(1)(c) of the Open Courts Act.

E.2.1 Submissions

As mentioned above,[89] the Secretary’s submissions were primarily focused on the interpretation and application of section 534 of the Children, Youth and Families Act. Again, this did little to address the question of whether the suppression order sought was necessary to protect the safety of WD. However, the Secretary ultimately suggested that as section 534 had not been effective in inhibiting publications relating to the alleged offending, it was the role of the court to “step into the breach and provide immediate protection” for WD in the form of a suppression order.
[89]See par 70 above.
The Secretary submitted that a suppression order was justified in the circumstances, as “further and apparently escalating media publicity” of the alleged offending was running the risk of prejudicing WD’s right to a fair trial,[90] causing WD harm and stigmatisation and intruding on her privacy, and breaching her entitlement to anonymity “as a minor and pursuant to the [Children, Youth and Families Act]”. It was submitted that the principal practitioner’s evidence made clear that media coverage of the alleged offending had enabled a diverse range of individuals to identify WD, and this was generating risks to WD’s physical and mental wellbeing.
[90]It should also be noted that, despite the language adopted in making this submission, the Secretary’s application was expressly made pursuant to s 18(1)(c) of the Open Courts Act only. There was no suggestion that the suppression order was sought pursuant to s 18(1)(a) of the Open Courts Act because it was necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that could not be prevented by other reasonably available means.
The Media Organisations, on the other hand, submitted that the Secretary had failed to discharge her onus of establishing that the suppression order sought was necessary to protect the safety of WD. Further, it was submitted that the court could not be satisfied that the proposed order had utility in circumstances where there has already been extensive media coverage of the alleged offending, and any risk that WD would be identified as a result of such media coverage has already apparently materialised.

E.2.2 Analysis

For several reasons, even if the court is not precluded from making the suppression order sought by the Secretary by virtue of section 8(1A) of the Open Courts Act, I do not consider that a proceeding suppression order in the terms sought by the Secretary is necessary to protect the safety of WD. To the contrary, any risk to WD’s physical and psychological wellbeing that may arise from media reporting on the alleged offending and any increased potential for WD to be identified as the subject of such reporting can be sufficiently mitigated or ameliorated through other means, such that it cannot be said that a suppression order is truly necessary.
First, as has been repeatedly affirmed,[91] necessity in the context of section 18 of the Open Courts Act is a high bar. Although accepting that the term “safety” in section 18(1)(c) can encompass both physical and psychological harm, and remaining acutely aware that WD is a young girl who has experienced a great deal of trauma and is in a particularly vulnerable state at present, I do not consider that the Secretary has established a sufficient causal link between media reporting of the specific details that she seeks to have suppressed[92] and any materially increased risk to WD’s safety. The evidence of the principal practitioner does not disclose any specific risk to WD that would be posed by media reporting of such details. Instead, it speaks in general and conclusionary terms about the risk to WD’s physical and psychological safety that may arise from her identification, including making the assertion that WD will suffer psychological harm and distress by virtue of being identified as the alleged offender and raising the possibility that “people” would endeavour to locate and harm her.[93]
[91]See par 61 above.
[92]See par 15 above.
[93]See pars 44-46 above.
Secondly, in terms of the risk that media coverage will cause WD psychological harm and distress, WD is a 12-year-old girl who is said to possess the intellectual capacity of a 6-year-old. She is currently on bail and residing at the Secure Location in the care of the Department. While WD’s level of exposure to news media at the Secure Location is unclear, there was no evidence to suggest that WD has the ability to access the internet or print media sources. Even if she does have such access, serious questions arise as to her ability to comprehend the substance of any reporting.[94] While the principal practitioner gave evidence of a concern that media reporting would generate commentary and discussion about the incident in communities where WD is known which may “be communicated to [WD] through phone or other means”, and have an impact on WD’s psychological wellbeing, safety and stability, the risk of this occurring at the Secure Location is also presumably low. As discussed below,[95] WD is closely supervised at the Secure Location and her movements and interactions are restricted.
[94]There was no evidence as to WD’s ability to read.
[95]See par 118 below. See also par 11 above.
Thirdly, as far as the alleged risk to WD posed by others is concerned, with only 1 exception, none of the individuals referred to in the principal practitioner’s evidence who were said to have identified WD from media coverage of the alleged offending were suggested to pose any threat to WD’s safety.[96] To the contrary, most of these individuals appeared to have had close contact with WD at some point in time, and the contact made by them to the principal practitioner and other Department staff members appeared to be primarily motivated by concern for WD and her wellbeing. Even the phone call from a member of the public received by the Department in which threats were allegedly made against WD[97] does not establish a sufficient causal link between media reporting and any threat to WD’s safety.
[96]See pars 47-56 above.
[97]See pars 48-50 above.
In short, the file note made clear that the caller was personally familiar with WD and her mother independent of any media reporting. Various potential sources of information about WD’s involvement in the alleged offending were identified by the caller, including the police, the local community, and the caller’s personal knowledge of WD. The reference to the incident being “all over the news” contained in the amendment made to the file note 4 days after the phone call does little to change this position. Furthermore, the address of the Secure Location is not a matter of public knowledge, and the likelihood of “people” being able to locate and harm WD while she is in a secure facility in the care of the Department would seem extremely remote.
Fourthly, in my view, the treatment, care and supportive services that are available to WD at the Secure Location, as well as the protective measures that are already and can be put in place, are sufficient to ameliorate any danger to WD’s safety if further media coverage of the alleged offending were to give rise to any risk of her facing physical or psychological harm. The Secure Location is staffed 24 hours a day by experienced professionals, and WD has access to therapeutic services including medical and mental health assistance.[98] Further protective measures to mitigate the risk of WD suffering any physical or psychological harm (such as restricting any access to media[99] and further limiting contact with others) can be put in place if there is considered to be any real risk.
[98]See par 11 above.
[99]See par 117 above.
In my view, these 4 matters establish that the suppression order sought by the Secretary is not necessary to protect WD’s safety in the circumstances. However, there are several further matters which support this conclusion.
Details about WD and the alleged offending which fall into each of the 4 categories of information that the Secretary specifically identifies in the proposed suppression order have already been the subject of publication in the extensive media coverage to date.[100] Indeed, an examination of the contents of the articles already published shows that details of WD’s child protection and personal history,[101] the location of the alleged offending,[102] the fact that she has been a victim of sexual exploitation[103] and her mental health diagnoses and cognitive impairments[104] have featured in multiple publications and are already in the public domain. Accordingly, there is a real question as to the utility or efficacy of the suppression order sought by the Secretary, which in turn casts further doubt on whether such an order can truly be considered necessary (at least at this point in time) within the meaning of section 18(1)(c).
[100]See pars 18-38 above.
[101]See, for example, pars 19-20, 22, 26-27, 30, 35, 36, 38 above.
[102]See, for example, pars 25, 27, 30, 33, 35, 38 above.
[103]See, for example, pars 20, 26, 31, 33, 35, 38 above.
[104]See, for example, pars 19, 26, 27, 30, 32, 35, 36, 38 above.
Further, the proceeding suppression order sought by the Secretary spans well beyond these 4 categories of information to encompass any information that would “tend to identify” WD as the subject of proceedings in this court or the Children’s Court. Section 13 of the Open Courts Act requires that a suppression order specify the information to which the order applies with sufficient particularity to ensure that the order is limited to achieving the purpose for which it is made, that it does not apply to any more information than is necessary to achieve the purpose for which it is made, and that the information subject to the order is readily apparent from its terms. In the circumstances of this case, and in light of the broad and imprecise language used in the proposed order, there is a real question as to whether the order sought by the Secretary complies with these requirements.

Furthermore, a significant degree of protection for WD is already provided by section 534 of the Children, Youth and Families Act. The purpose of section 534 is to protect the privacy and prevent the stigmatisation of children who come before the court by prohibiting the publication of a report containing particulars likely to lead to the identification of a child.[105] In line with these protective objectives, the phrases “report of a proceeding” and “particulars likely to lead to the identification” in section 534(1)(a) have been afforded a broad interpretation.[106]
[105]Howe v Harvey (2008) 20 VR 638, 651 [52] (Neave and Kellam JJA and Forrest AJA). It should be noted that this case concerned the predecessor of s 534 of the Children, Youth and Families Act, being s 26 of the Children and Young Persons Act 1989 (Vic), however the provisions are virtually identical.
[106]Ibid, 658-659 [92]-[94].
As the publication of any report of this proceeding containing information likely to lead to the identification of WD is already prohibited under this provision, it cannot be said that a suppression order is necessary to protect WD’s physical and psychological safety in the circumstances. Instead, the specialised legislative scheme under the Children, Youth and Families Act to protect the identity of children who find themselves involved in legal proceedings has been enacted to provide an appropriate level of protection for children like WD. Even putting aside the question of necessity, it is difficult to see how there would be utility in making a suppression order in relation to information that is already the subject of an express and mandatory statutory restriction on publication. Moreover, to do so would be directly contrary to section 8(1A) of the Open Courts Act.[107]
[107]See pars 83-110 above. Of course, that is not to say that the level of protection provided pursuant to s 534 will be adequate in all cases. However, the suppression order sought in this case does not seek to go beyond the existing statutory protection already provided: see fn 77 above.
For these reasons, even if the court is empowered to make a proceeding suppression order in the circumstances of this case notwithstanding section 8(1A) of the Open Courts Act, it would not be appropriate to make the order sought by the Secretary, as it cannot be said that such an order is necessary to protect the safety of WD.

F. Further observations

These reasons would not be complete without some comment on the nature of the Secretary’s application and the forms of relief sought within it.
During the course of argument, the Media Organisations submitted that the inappropriateness of declaratory relief did not leave the Secretary without a possible remedy. In addition to referring to the ability to prosecute the Media Organisations for any contravention of section 534 of the Children, Youth and Families Act (which contraventions were denied), the Media Organisations referred to the possibility of the Secretary seeking an injunction to prevent any publication which was claimed to go beyond what could be lawfully published.[108] The Secretary did not invite the court to consider any form of injunctive relief.
[108]See Friedrich v Herald & Weekly Times Ltd [1990] VR 995, 1007.6 (Kaye, Fullagar and Ormiston JJ).

G. Conclusion

For the above reasons, the Secretary’s application for a proceeding suppression order pursuant to sections 17 and 18(1)(c) of the Open Courts Act and for declaratory relief will be dismissed. As a consequence, the interim suppression order made on 27 November 2023, together with the interim suppression order made in proceeding S ECI 2023 06014,[109] will lapse upon orders being made dismissing the Secretary’s application.
[109]On 19 December 2023, proceeding S ECI 2023 06014 was commenced after the Secretary filed an originating motion for an application in the parens patriae jurisdiction of the court in relation to WD. At the commencement of the hearing of the Secretary’s application, the parties were asked whether the making of an interim suppression order under s 20 of the Open Courts Act was appropriate, in light of the fact that the interim suppression order in this proceeding was still in effect at the time. Counsel for both the Secretary and WD agreed that such an order was appropriate in the circumstances. Orders were made later that day prohibiting the disclosure by publication or otherwise of a report of the whole or any part of proceeding S ECI 2023 06014 on an interim basis until the hearing and determination of the Secretary’s application for a proceeding suppression order in this proceeding, or further order.
It should go without saying that, despite the conclusion reached in relation to the Secretary’s application, section 534 of the Children, Youth and Families Act continues to operate in the circumstances to prohibit the publication of a report of proceedings in this court or in the Children’s Court containing any particulars likely to lead to the identification of WD and any other party[110] or witness to any relevant proceedings, including proceeding S ECI 2023 06014.
[110]See fnn 38-39 above.

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22 December 2023