The Open Courts Act 2013 directly regulates the conduct of judicial officers and tribunal members across a wide range of bodies defined in s 3 as “court or tribunal”: the Supreme Court, County Court, Magistrates' Court, Coroners Court, VCAT, any other prescribed court or tribunal, and prescribed persons or bodies. These decision-makers must apply the primacy of open justice (ss 4 and 28) when considering any suppression or closed court order and must follow the procedural and substantive requirements set out in the Act.

Parties to proceedings are heavily affected. The definition of “party” in s 3 is expansive, expressly including, in criminal matters, the complainant, victim or alleged victim, any person named in evidence, and persons who were parties before a proceeding concluded. They are entitled to notice of applications (s 10), may appear on applications and reviews (ss 15, 19), and in sexual offence or family violence matters enjoy specific rights to seek revocation of suppression orders (s 15(1B)).

News media organisations occupy a privileged procedural position. Section 11 requires courts to take reasonable steps to notify relevant news media organisations of suppression applications, and s 15(1)(b)(v) and s 19(2)(e) give them standing to appear and be heard on reviews and applications. The definition in s 3 covers both commercial and public broadcasters or publishers of news.

Victims and witnesses in sensitive matters receive particular protection. Grounds in ss 18(1)(d)–(e) and 30(2)(d)–(e) expressly address undue distress or embarrassment to complainants or witnesses in sexual offence and family violence proceedings, or to child witnesses. Victims or alleged victims over 18 who consent may trigger mandatory revocation of suppression orders in certain circumstances (s 15(1B)–(1C)), provided no other protected person’s identity would be disclosed without consent.

The Attorney-General (of Victoria, other States, Territories or the Commonwealth) has standing to appear on any application or review (ss 15, 19) and may apply for review. Public officials performing functions connected with the conduct or enforcement of proceedings are exempted from the effect of orders when acting in their official capacity (ss 22 and 26(5)).

Finally, any member of the public who publishes or disseminates information captured by an order is subject to the strict liability-style offence provisions (ss 23, 27, 32), with the Act’s broad definition of “publish” (s 3) encompassing traditional media, books, broadcasts, public exhibition and electronic communication. The Act therefore casts a wide net across the justice system, participants, media and the general public.

Courts and tribunals carry the central duty to regard the primacy of open justice (s 4(1)) and only make suppression or closed court orders where satisfied that specific circumstances make it necessary to override that principle (s 4(2) and s 28(2)). They must give 3-business-day notice of applications (s 10), notify relevant news media (s 11), ensure orders are based on evidence or sufficient credible information (s 14), provide statements of reasons (s 14A), specify duration, grounds and scope with precision (ss 12–13), and publish reasons for judgment subject only to necessary editing (s 16).

Decision-makers have the right (and obligation) to make interim orders pending determination of substantive applications (s 20), to make orders on their own motion in many cases (ss 10(4), 15(1)(a), 19(1)(a)), and to review orders on their own motion or on application (s 15). They may impose conditions and exceptions (s 19(5)) and must ensure orders last no longer than reasonably necessary (s 12(4)).

Parties and interested persons enjoy rights to appear and be heard on applications and reviews (ss 15(2), 19(2)). Victims of sexual or family violence offences who are adults and consent receive a presumptive right to revocation of suppression orders (s 15(1B)), subject to the safeguard that revocation must not disclose the identity of another protected person without consent or where inappropriate (s 15(1C)).

News media organisations have explicit procedural rights to notification and standing. The Act confers on the public the right to access judgments handed down electronically (s 8A), contemporaneous or post-hearing audio-visual broadcasts or recordings, and transcripts (s 8B), free of charge (s 8B(3)–(4)), although courts may restrict publication of transcripts where in the interests of justice (s 8C).

Conversely, the Act imposes duties on all persons not to contravene operative orders where they know or are reckless as to their existence (ss 23, 27, 32). A presumption of awareness arises from electronic transmission of notice (ss 23(2), 27(2)). Public officials, however, retain the right to disclose information in the performance of their functions connected with the conduct or enforcement of proceedings (ss 22, 26(5)).

The legislation carefully preserves existing statutory suppression regimes (s 8) while ensuring that a suppression order cannot add to an existing statutory prohibition in a way that would be redundant (s 8(1A)), although overlapping orders are not invalid (s 8(3)).

Enforcement is primarily criminal. Section 23 creates an offence of contravening a proceeding suppression order or interim order where the person knows the order is in force or is reckless as to that fact. The identical mental element and penalty structure appears in s 27 (contravention of Magistrates’ Court order under s 26(1)) and s 32 (contravention of closed court order). The maximum penalty for an individual is level 6 imprisonment (5 years) or 600 penalty units, or both; for a body corporate, 3000 penalty units. These are serious penalties intended to deter deliberate or reckless breaches that could undermine the administration of justice.

Proof of the mental element is assisted by ss 23(2) and 27(2): in the absence of evidence to the contrary, electronic transmission of notice by a court or tribunal is taken to render the recipient aware that the order is in force. This reverses the evidential burden on the issue of knowledge once transmission is shown.

The Act does not create a civil enforcement regime; instead, it expressly preserves contempt powers (s 6). Courts and tribunals retain all jurisdiction and powers they possess apart from the Act to punish contempt, including implied and (for the Supreme Court) inherent jurisdiction. This dual track—statutory offence plus contempt—gives enforcement authorities flexibility.

Interim orders under s 20 have the same force as final proceeding suppression orders for the purpose of the offence provision until determined or revoked. Closed court orders are enforced both by the physical notice requirement (s 31) and the offence in s 32.

Because the offences are tied to the existence of a valid order, challenges to validity (for example, failure to give reasons under s 14A(3) expressly does not affect validity) are limited. The non-derogation clauses in s 8 mean that breaches of overlapping statutory prohibitions in other Acts remain enforceable under those Acts.

The Open Courts Act 2013 is expressly designed to sit alongside, rather than replace, a large number of other statutory regimes. Section 8(1) provides that the Act does not limit or affect any other Commonwealth or Victorian provision that prohibits, restricts or authorises prohibition of publication, or authorises closure of proceedings. A long schedule of specific provisions is listed in s 8(2), including s 121 of the Adoption Act 1984, multiple sections of the Children, Youth and Families Act 2005, the Confiscation Act 1997, Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Criminal Procedure Act 2009 (now including s 206G), Criminal Organisations Control Act 2012, Evidence (Miscellaneous Provisions) Act 1958, Family Violence Protection Act 2008, Major Crime (Investigative Powers) Act 2004, Public Health and Wellbeing Act 2008, Serious Offenders Act 2018, Sex Offenders Registration Act 2004, Terrorism (Community Protection) Act 2003, Victims of Crime Assistance Act 1996, various VCAT Act provisions, Judicial Proceedings Reports Act 1958 and Witness Protection Act 1991. A note also points to the Juries Act 2000.

Importantly, s 8(1A) prohibits a court from making a suppression order that would duplicate an existing statutory prohibition, while s 8(3) clarifies that an order that overlaps with a statutory prohibition is not invalid merely because of that overlap. This preserves the integrity of specialised regimes while preventing unnecessary duplication.

The Act abrogates common law powers to suppress (s 5(2)) and denies implied jurisdiction to other courts (s 5(3)), but preserves the Supreme Court’s inherent jurisdiction (s 5(1)) and all existing contempt powers (s 6). It does not affect evidentiary discretions, file access orders or identity concealment in open court (s 7).

Interaction with the Charter of Human Rights and Responsibilities Act 2006 is explicit: the transitional power in s 35(2) may override any other Act except the Charter, and s 8B(4) provides that the no-fee rule for broadcasts and transcripts applies despite any other Act except the Charter. Section 16 notes the duty to publish reasons is subject to s 24(3) of the Charter.

In the digital context, ss 8A–8C interact with rules of court and any fee-fixing legislation by providing that electronic delivery, broadcasting and free transcripts do not breach open justice and are fee-free (subject to the Charter). The definition of “publish” in s 3 is deliberately technology-neutral, capturing electronic communication.

Transitional provisions (s 34) apply the Act to proceedings commenced or pending on or after 1 December 2013, with s 35 supplying a broad power to resolve transitional difficulties that can override other legislation (except the Charter).

The version incorporated as at 30 September 2025 reflects a series of amendments that have progressively refined the Act’s balance between open justice and competing interests.

The Open Courts and Other Acts Amendment Act 2019 (No. 11/2019) was the most substantial. It inserted s 1(aa) to recognise open justice as a fundamental aspect of the Victorian legal system, substituted s 4 to elevate the primacy test, added s 8(1A)–(3) to clarify interaction with other statutory regimes, inserted s 14A requiring statements of reasons, expanded review rights in s 15 (especially for sexual and family violence victims), amended duration rules (s 12(3A)), and substituted s 28 to mirror the new open justice primacy language. These changes responded to concerns that suppression orders were being made too readily and without sufficient transparency or accountability.

The Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (No. 11/2021) inserted ss 8A and 8B to confirm that electronic delivery of judgments and remote audio-visual hearings do not contravene open justice. This was a direct response to the COVID-19 pandemic’s acceleration of digital court processes and the need for legislative certainty that such innovations were lawful.

The Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 (No. 38/2022) and Justice Legislation Amendment Act 2023 (No. 26/2023) further amended s 8B to expand the range of permissible remote access methods and to make transcripts available free of charge, reflecting a policy of maximising public access to justice in the post-pandemic environment. Section 8C was added in 2023 to permit courts to restrict publication of transcripts provided under s 8B where in the interests of justice.

The Youth Justice Act 2024 (No. 32/2024) added s 8(2)(da) referencing s 206G of the Criminal Procedure Act 2009, ensuring continued non-derogation from youth justice publication controls. Earlier amendments (2014–2018) had inserted references to family violence legislation, non-local DVOs, serious offenders and sex offender registration regimes to maintain coherence across protective order schemes.

Collectively, these changes demonstrate a legislative trajectory from procedural consolidation toward greater emphasis on transparency, victim agency, and technological adaptability while preserving the Act’s foundational commitment to open justice.

Although the supplied text does not cite specific judicial decisions, the structure of the Act itself reveals areas of likely contention. The “real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means” test in ss 18(1)(a) and 30(2)(a) invites litigation over whether less restrictive alternatives (expressly referenced in the example of jury directions) were genuinely unavailable. The requirement that orders be based on “evidence or sufficient credible information” (s 14) raises questions about the admissibility and weight of hearsay or confidential affidavits in ex parte applications.

The 5-year default sunset for orders tied to uncertain future events (s 12(3)) has generated debate about whether courts are properly specifying durations that are “no longer than is reasonably necessary” (s 12(4)). Media organisations have used their standing under ss 15 and 19 to contest the breadth of orders, particularly those that purport to apply Australia-wide (ss 21, 26(3)–(4)), raising constitutional questions about extra-territorial operation.

The interaction provisions in s 8 have been controversial where overlapping statutory regimes exist; the 2019 insertion of s 8(1A) was a legislative response to arguments that courts were making redundant suppression orders that chilled reporting even where a statutory prohibition already applied. Conversely, s 8(3) was added to protect the validity of orders that might otherwise have been challenged as ultra vires.

The introduction of mandatory victim-consent revocation pathways in s 15(1B)–(1C) has shifted power dynamics in sexual offence and family violence proceedings, prompting debate about whether a single victim’s consent can adequately protect co-victims or whether courts are sufficiently rigorous in assessing “appropriateness in all the circumstances”.

Section 14A’s statement-of-reasons obligation (with exceptions where reasons would render the order ineffective) has been criticised for potentially undermining accountability, although s 14A(3) expressly provides that non-compliance does not affect validity. The new ss 8A–8C have largely been welcomed but have raised practical questions about how courts should calibrate “interests of justice” when deciding whether to restrict transcript publication under s 8C.

Overall, the legislative history shows Parliament responding to judicial and media criticism that suppression orders were granted too readily and with insufficient transparency, while seeking to future-proof the Act for digital justice.

Most practitioners assume that once a suppression order is made it remains in force indefinitely; s 12(3A) and (4) overturn that assumption by providing that, unless otherwise ordered, the order continues only until the expiry of any appeal period or determination of an appeal, and in any event must operate no longer than reasonably necessary. The 5-year default cap for event-based orders is another trap for the unwary.

The electronic-notice presumption in ss 23(2) and 27(2) means that media outlets or litigants who receive an email from a court registry are deemed to know of the order even if they have not opened the attachment. This reverses the evidential onus and can ground a recklessness finding.

Section 8(1A) is frequently overlooked: a court cannot make a suppression order that duplicates an existing statutory prohibition. Many applications are therefore doomed because the information is already covered by, for example, s 534 of the Children, Youth and Families Act 2005 or provisions of the Judicial Proceedings Reports Act 1958.

The “sufficient credible information” limb of s 14 is narrower than it appears; while it relaxes the rules of evidence for interim orders (s 14(2)), final orders still require the court to be affirmatively satisfied on a proper basis. Affidavits containing mere assertion rather than detailed evidence have been held insufficient in practice.

Section 15(1B) creates an almost mandatory revocation pathway for adult victims of sexual or family violence offences who consent, but the safeguard in s 15(1C) protecting other victims’ identities is often missed by counsel. A single order may cover multiple victims; revocation for one can be blocked if it would identify another.

The free-transcript rule in s 8B(3)–(4) applies despite any fee-fixing Act (except the Charter), yet many court websites still charge for transcripts—an administrative lag that can mislead litigants and journalists.

Finally, the abrogation in s 5(2)–(3) means that pre-2013 common law authorities on inherent suppression powers must be treated with extreme caution; the statute now occupies the field for all courts except the Supreme Court’s preserved inherent jurisdiction.

Compliance begins with the primacy test. Any application or consideration of a suppression or closed court order must start with s 4 or s 28: open justice prevails unless the specific circumstances make displacement necessary. Draft orders with laser-like precision (s 13) identifying exactly what information is caught, the ground(s) relied upon, duration (with a fixed or event-based end point and 5-year backstop if required), geographical reach, and any exceptions.

Give 3 business days’ notice to the court and parties on the record (s 10(1)), using the applicable rules of court. Where urgency exists, be prepared to satisfy the court that good reason or the interests of justice justify abridgment (s 10(3)). Notify or ensure the court notifies relevant news media (s 11).

File evidence or sufficient credible information that directly addresses the statutory grounds and demonstrates why no lesser measure (jury directions, narrower order, etc.) will suffice. For final orders, anticipate a request for a statement of reasons (s 14A) addressing the terms, duration, grounds and scope.

When drafting, consider whether the information is already prohibited by another Act listed in s 8(2); if so, an additional suppression order may be unavailable (s 8(1A)) although an overlapping order is not automatically invalid (s 8(3)).

For remote hearings, ensure that any decision to broadcast or provide transcripts under s 8B is accompanied by a formal “in the interests of justice” finding, and consider whether a s 8C order restricting publication of the transcript is required. Judgments handed down electronically must be made available to the public or on request (s 8A).

When reviewing or varying an existing order, check whether any victim of a sexual or family violence offence who is over 18 and consents triggers the revocation pathway in s 15(1B), while ensuring s 15(1C) protections for other victims are observed.

Organisations that receive court emails should have protocols to open and circulate suppression notices immediately; the electronic-notice presumption leaves little margin for error. Media outlets should maintain a register of active orders and diarise expiry dates, including the automatic continuation until appeal determination under s 12(3A).

Practitioners appearing in VCAT or the Coroners Court must note the slightly different tests in ss 18(1)(f), 18(2), 30(2)(f) and 30(3). When advising clients, emphasise that breach can occur through reckless publication; actual knowledge is not required.

Finally, keep a copy of the order on file and, where appropriate, seek clarification or variation before publishing any arguably related material. Compliance is not merely avoiding breach but demonstrating to the court that the least restrictive order necessary has been sought or opposed.