The Principle of Open Justice and the Children’s Court

The principle of open justice, i.e., justice must not only be done but must be seen to be done, is a foundational tenant of Australian law. It presumes all judicial proceedings to be conducted in open court: a presumption enshrined in and enforced by section 28 of the Open Courts Act 2013 (Vic) (‘OPA’). In many respects, the principle of open justice facilitates judicial transparency and accountability, safeguarding the rights of individuals subject to the force of the law.

Pursuant to s 523(1) of the Children, Youth and Families Act 2005 (Vic) (‘CYFMA’), proceedings in the Children’s Court are presumed to be conducted in open court. However, this statutory presumption is not absolute. In fact, it is subject to several statutory qualifications and safeguards; each of which is designed to protect and promote the best interest(s) of the child.

These qualifications and safeguards include:

• Closed Court Orders (OPA s 30; CYFMA s 523(2));
• Statutory prohibition on publication (CYFMA s 534); and
• Proceeding Suppression Orders (OPA s 17).

Closed Court Order — What is it and How to Apply for it?

The Children’s Court may order proceedings to be wholly or partially conducted in closed court or in the presence of specified persons/classes of persons.

The Court may do so on its own motion or upon application by a party or any person directly interested in a proceeding. According to s 523(3) of the CYFMA, both parties to and those with an interested in proceedings have standing to support or oppose such an application.

To successfully apply for a Closed Court Order, an Applicant must satisfy the Court that such an order is necessary. To do so, an applicant may rely on either s 523(2) of the CYFMA or section 30(2) of the OPA.

Section 30(2)(a)–(f) of the OPA sets out a non-exhaustive list of grounds that may be relied upon to establish that a closed court order is necessary. These include:

• The order is necessary to ‘prevent a real and substantial risk of prejudice to the proper administration of justice’
• The order is necessary to ‘protect the safety of any person’
• The order is necessary to ‘avoid causing undue distress or embarrassment to a complainant or witness in any criminal proceeding’.

Equally, an applicant may rely on s 523(2) of the CYFMA to support its application. Section 523(2) of the CYFMA largely mirrors s 30(1) of the OPA. However, unlike s 30(1) of the OPA, s 523(2) does not provide grounds on which to argue for the necessity of a Close Court Order. Rather, s 523(2) merely reflects the policy of the CYFMA:

It is likely that s 523 is more frequently used in the Children’s Court due to the nature of the jurisdiction and the policy expressed in the Act to minimise the stigma or embarrassment to children which can occur through court proceedings (Judicial College of Victoria, Children’s Court Bench Book (Online) 11).

Statutory Prohibition on Publication — What is it and How does it Operate?

Section 534 of the CYFA expressly prohibits the publication of certain types of information arising from all proceedings in the Children’s Court, namely:

• A report of a proceeding in the Children’s Court, or of a proceeding in any other court arising out of the proceeding in the Court, that contains any particulars likely to lead to the identification of the particular venue of the Children’s Court in which the proceeding was heard (CYFMA s 534(1)(a)(i));
• A report of a proceeding in the Children’s Court, or of a proceeding in any other court arising out of the proceeding in the Court, that contains any particulars likely to lead to the identification of a child, other party or witness in the proceeding (CYFMA s 534(1)(a)(ii)–(iii));
• A picture of a child, other party or witness in a proceeding in the Children’s Court, or of a proceeding in any other court arising out of a proceeding in the Court (CYFMA s 534(1)(b)); and
• 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 Children’s Court (CYFMA s 534(1)(c)).

Put simply, the media or any individual/entity can publish reports on proceedings in the Children’s Court. However, they must not publish particulars/information likely to lead to the identification of:

• The particular venue of the Children’s Court in which the proceeding is being heard;
• A child or other party to the proceeding; or
• A witness in the proceeding (CYFMA s 534(1)(a)(i)–(iii); DPP v Reynolds & Ors [2004] VSC 533).

The penalty for breach of s 534 is 500 penalty units in the case of a body corporate, and in any other case 100 penalty units or two years’ imprisonment (CYFMA s 534(1)).

A report of a proceeding in the Children’s Court includes media reports (e.g., interviews), visual footage of parties (Australian Broadcasting Corporation v Department of Human Services [2015] VChC1).

Proceeding Suppression Orders — What are they and How do they Operate?

Proceeding Suppression Orders prohibit or restrict the disclosure, by publication or otherwise, of a report of the whole or any part of a proceeding or any information derived from a proceeding (OPA s 17).

Pursuant to s 19(2) of the OPA, the Court may make a Proceeding Suppression Order on its own motion, or on the application of a party to the proceeding or any other person considered to have ‘sufficient interest’ in the making of the order.

To make the Order, the Court must be satisfied that the Order is necessary. Section 18(1)(a)–(f) stipulates a series of grounds by which the necessity of a Proceeding Suppression Order may be argued (e.g., to ‘prevent a real and substantial risk of prejudice’ or to protect ‘the safety of any person’).

A proceeding suppression order may be made at any time during a proceeding and after its conclusion (OPA s 19(4)).

Applicants for suppression orders must give three business days’ notice of the application to the Children’s Court and the parties to the proceeding (OPA s 10(1)).

Contravention of a Proceeding Suppression Order attracts a penalty of 600 penalty units, level 6 imprisonment (5 years maximum), or both (OPA s 23(1)).

Practical Advice

If you or someone you care about is involved in a proceeding in the Children’s Court, early legal advice is essential. Our experienced team of criminal defence lawyers can help you understand your options in relation to protecting your rights and securing your privacy/anonymity.