Privacy & Media - Open Court Act 2013 - Research Paper Example

Name Tutor Course Date Privacy and Media Introduction Open Court Act 2013(Vic) came into effect on 1 December 2013. According to section 1, the main purposes of the Act is to reform and consolidate the provisions with an aim of ensuring that the media is able to access information easily1. This is considering that prior to the Act the media organizations had a lot of difficulties due to the suppression order. The disclosure of information is important to the members of the public and the media has a role of ensuring that information is disclosed. Prior to the Act, it was difficult for the media to participate in some proceedings for the purposes of enabling the members of the public to obtain information with regards to the court proceedings. The Act is therefore important for the purposes of benefiting the court, media and the parties to the proceedings. A suppression order prohibits the publication or disclosure of information with regards to any proceedings. This means that a suppression order can be used to lock out the media from publishing a certain proceedings. It is also important to note that some parties to the proceeding may be affected by the presence of the media. It is for this reason that the suppression order has been simplified to deal with such situations and hence avoiding any inconvenience to any party. The paper discuses the concepts of Open Court Act 2013 (Vic) in agreement that it has been clarified and it is beneficial to the courts, the parties to the proceedings, and the media organization. Discussion According to section 4, the Act aims at promoting the principles of open justice and free communication and it is in favor of disclosure of information. This section acknowledges the importance of free media and open justice. This is an indication that the courts and the media organizations should benefit from the Act. Open justice is beneficial to the courts as it plays an essential role in wining the confidence and trust of the people. On the other hand, the media house benefit by the lack of restrictions and hence providing the members of the public with the information that they need to know with regards to different proceedings. According to section 5(3), a court or tribunal has no implied jurisdiction to make an order prohibiting the publication of any proceedings. This is beneficial to the media and it is also important in terms of ensuring that the principle of free communication is upheld. Such an issue arose in the case of Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria2. This provision is also important in eliminating the difficult procedures that the media organizations had to undergo in the past before being allowed to publish a certain proceeding. However4, according to section 5(1), section 5 does not limit the inherent jurisdiction of the Supreme Court. This is beneficial to the courts as it still has the powers to issue suppression order depending on the nature of the publication. It is also beneficial to the other parties in the proceedings which have issues with the participation of the media in the proceedings. According to section 7(b), the Act does not limit any rule of law that restrict the permitted use and disclosure of information. This means that the court can allow for disclosure of the parties to the proceeding when giving evidence to the court. This is an indication that the Act is beneficial to the witnesses who are also a party to the proceedings if they are required to give evidence on sensitive matters. Their identities can also be protected where the rule of law requires them to give their evidence in disclosure. According to section 7(d) (i), the Act does not limit the making of a decision by a court or tribunal that conceals the identity of a person by restricting the way the person is referred to in an open court. This is also an indication that the parties to the proceedings can benefit from the provisions in the Act. The parties can be protected from disclosure by a court decision and hence ensuring that they can provide the court with the evidence that is required3. The prosecutor can benefit from this provision which ensures that the identity of the witnesses is protected from the members of the public. On the other hand, it is also important to note that the Act provides for the evidence to be submitted in a manner that is acceptable by all the parties in the proceedings including the media and the court. The act has thus clarified and simplified the situation in a way that it benefits the different stakeholders. According to section 10(1), an applicant has the right to apply for suppression order but must do so by giving 3 business days notice to the court or tribunal and parties to the proceedings. This is an indication that the act is for the interest of all the parties. By allowing the applicants to apply for suppression orders, the proceedings can be carried out in a manner that is convenient to all the parties concerned. According to section 10(3), the court has the powers to hear the application of a suppression order without the applicant giving notice. This is however applicable where the applicant has a good reason or it is in the interest of justice for the court or tribunal to hear the proceedings without the notice being given. This is an indicating that the provisions in the Act will benefit the court and the parties to the proceedings. The Act is also important in avoiding the problems that led to the case of Nationwide News Pty Ltd v Farquharson4. It is also appropriate to the media as there could be genuine reasons for issuing the suppression order. According to section 10, the court or tribunal is supposed to notify the relevant media organizations once it has received an application for suppression orders. This is beneficial to the media organizations as it prevents any inconveniences. This is also an indication that the Act plays an essential role in providing clarifications on whether the information will be disclosed or not. The suppression order can also be made in a way that the stakeholders and the media organization are aware of it and hence avoiding any confusions or inconveniences during the proceedings. According to Section 14(1), the suppression order must be made based on evidence and or sufficient credible information. This means that the suppression order can only be made when the applicant has genuine reasons. This is important in terms of ensuring that the media is not locked out from covering the court proceedings on grounds of bias. The Act is beneficial to the media in as it encourages the media organizations to publish the proceedings. According to section 16, the court has a duty to publish reasons, judgments and decisions. This is beneficial to the court in terms of enabling the members of the public to understand the reasons for judgments and decisions and hence encouraging open justice5. This is important in ensuring that the members of the public have confidence with the justice system. According to section 18, a court or tribunal has the powers to make a suppression order for the purposes of preventing the risk of prejudice or embarrassment. This is important in protecting the parties involved in the court proceedings. It is also important to note that specifying the grounds for a suppression order is important for the purposes of satisfying all the parties including the media. The publication of some of some parts of the proceedings may cause undue distress and embarrassment to the witness or the complainant. The Act recognizes this fact and hence providing the grounds for suppression order. It is also ethical for the media not to publish some of the information that may cause undue distress or embarrassment to the witness and complainants. Section 20 also recognizes the importance of an interim order. The interim order is remains in effect until it is revoked by a court or a substantive application is determined. This is for the purposes of ensuring that all the stakeholders including the media organizations are satisfied with the process. On the other hand, it is an offence to contravene a suppression order or an interim suppression order. This is because contravening the suppression order may have negative impacts on the parties involved ion the proceedings. According to section 23, it is an offence to contravene an interim or a suppression order. A person must not engage in a conduct that contravenes the suppression order as they may face a penalty of level 6 or 600 penalty units for individuals. A corporate body on the other hand may be faced with 3000 penalty units for contravening the suppression order. The penalty is important in ensuring that the parties involved in the proceedings are not affected by the publication of the information6. According to section 25, the County Court has the powers to grant injunction restraining the publication of a criminal proceeding. This is for the purposes of ensuring that crucial information is not published and hence affecting the credibility of the process. The media also has a responsibility of ensuring that information that may affect the witnesses in the criminal proceedings is not published. It is also important to note that the Act is for the best interest of all the stakeholders. The Act plays an important role in ensuring that the media organization is able to publish the information while at the same time parties involved in the proceedings are protected. According to section 28, the court has to ensure that it acts in a way that it favors the use of the open court in its proceedings. However, it has the powers of ensuring that the closed court system is used in some parts during the proceedings of the court. This is beneficial to the parties involved in the proceedings as their identity will not be disclosed7. On the other hand, it is also beneficial to the media organization as they will be able to publish some parts of the proceedings where the open court is allowed. According to section 31, a notice has to be posted on the door of the court or another place where the notices of the court are posted incase a closed court order has been made. This will play an important role informing the media and other stakeholders and hence avoiding any inconveniences. Penalties also apply for any person or corporate body that contravenes the closed court order. The Act is therefore important in ensuring that a fair hearing is achieved and the members of the public are able to obtain information with regards to the proceedings. The Act has thus made a lot of clarifications with regards to the how the parties should conduct its proceedings in a way that the media organizations are able to publish the information. Section 33 also gives powers to the Governor in council to make regulations on the matters regarding the Act. This is important for the purposes of ensuring compliance. The Coroners Court also has some powers with regards to the Suppression order for the purpose of ensuring that the hearing proceeds in a fair manner. According to section 18(2), the Coroners Court may make a suppression order incase the disclosure is likely to prejudice a fair trial or it will be contrary to the public interest. The Act considers the importance that of providing information to the members of the public. This is considering that some of the cases that are handled by the Coroners Court are of public interest. However, the complicated nature of some of the cases in the Coroners Court requires the non-disclosure of some information as it may impact negatively on the parties involved in the proceedings8. The Act is therefore beneficial to the court in terms of ensuring that a fair hearing is achieved and the sensitive information is not disclosed to the members of the public. The Act is also beneficial to the parties involved in the proceedings as it guarantees their protection. Although the media can be allowed to publish some parts of the proceedings, the identity of the witnesses will not be disclosed to the members of the public. This is therefore important in ensuring that the witnesses turn up to give their evidence with a guarantee that their identity will not be disclosed. The public have a right to information and they rely on the media houses for the purposes of obtaining the information. The Act recognizes the important role of the media and it promotes as much as possible the open court. However, Act also recognizes that some of the information may also affect the complainants or the witness. This in turn may put their lives at risk depending on the nature of the case. The Act is therefore for the purpose of ensuring that the witnesses and complainants benefit from the proceeding while at the same time the media is allowed to publish part of the proceedings. On the other hand, disclosing the information to the members of the public may at times lead to unfairness or prejudice and hence affecting the outcome of the court case. The witnesses may tend to copy the information that has been provided by other witnesses incase it is made public and this has a negative impact on the outcome of the case. According to section 30(1) (b), the court or tribunal may order a certain class or classes of persons to be present during the whole or any part of the proceedings. This is important to both the media organizations and the parties involved in the court proceedings. The Act therefore promotes the freedom of information while at the same time protecting the parties to the proceedings from any danger or risk of prejudice. The issues problems that were witnessed in the case of General Television Corporation Pty Ltd v DPP can be avoided through the Act9. It is also important to note that the Act is beneficial to the courts as it makes it easy for the court to make decision with regards to suppression order. Conclusion In conclusion, it is evident that the Open Court Act 2013 (Vic) is beneficial to the courts, the parties to the proceedings and the media organizations. The Act enables the court to promote fair trial while at the same time ensure that the media is encourage to publish the proceedings of the court. It is also evident that the Act is for the purposes of protecting the witnesses or complainants from any risk that may arise incase they give their evidence in public. The Open Court Act 2013 (Vic) also has some provisions that allows for the suppression orders. This is aimed at ensuring that the trial is fair and the witnesses are not inconvenienced when giving their evidence. References Open Court Act 2013(Vic) Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267, 294–5. Nationwide News Pty Ltd v Farquharson (2010) 28 VR 473. General Television Corporation Pty Ltd v DPP (2008) 19 VR 68. Naylor, Bronwyn. "Criminal records and rehabilitation in Australia." European Journal of Probation 3.1 (2011): 79-96. Pearson, Mark. "The media regulation debate in a democracy lacking a free expression guarantee." Pacific Journalism Review 18.2 (2012): 89. Kumar, Miiko A., and David Rolph. "An Appetite for Suppression: Non-Publication Orders, Open Justice and the Protection of Privacy." PERSPECTIVES ON PRIVACY: INCREASING REGULATION IN THE USA, CANADA, AUSTRALIA AND EUROPEAN COUNTRIES, Dieter Dorr, Russell L. Weaver, ed., Walter de Gruyter GmbH, Germany (2014). Scott, Paul. "Crossing the Rubicon: closed hearings in the Supreme Court." Edinburgh Law Review 18 (2014): 88-93. Duke, Aaron A., and Madelon V. Baranoski. "Closed Commitment Proceedings Versus Open Administration of Justice." Journal of the American Academy of Psychiatry and the Law Online 42.1 (2014): 117-119. Woodroffe, Melissa. "Closed courts for open justice." HIV Australia 8.4 (2010): 17. Read More