CHAPTER 2

Key issues

2.1 This chapter discusses concerns raised by witnesses and submitters in relation to Schedules 2, 3 and 4 of the Bill.

Schedule 2 – suppression and non-publication orders

2.2 In its submission, Australia's Right to Know (ARTK) argued that the 'fundamental problem' with suppression and non-publication orders in Australia is that there are 'too many unjustifiable and unnecessary orders which act as a gag on the media's ability to report on the justice system'.[1]

Increase in suppression orders in NSW

2.3 ARTK described its members' experiences with the Court Suppression and Non-publication Orders Act 2010 (NSW) (NSW Court Suppression and
Non-publication Orders Act), which also implements the SCAG model provisions. ARTK argued that the NSW Court Suppression and Non-publication Orders Act provides guidance on the 'pitfalls' of the model provisions:

It appears the [NSW Court Suppression and Non-publication Orders Act has] been seen by members of the judiciary as a licence to make orders, rather than them being exceptional in nature with there being at least a 100% increase in making of orders in a six month period since introduction of the new Act.[2]

2.4 ARTK elaborated on this point at the public hearing, contending that courts can be overly cautious when issuing suppression and non-publication orders:

[O]pinions may differ about the correct balance between transparency and the administration of justice. In our view, without very clear and unambiguous direction, judicial officers tend to weigh the administration process above transparency and so have a tendency to suppress material not as a last resort but based more on abundant caution...[3]

Department response

2.5 The Attorney-General's Department (Department) noted the increase in suppression orders granted in NSW following the introduction of the NSW Court Suppression and Non-publication Orders Act, but was unable to comment specifically on the reasons for the increase:

It may be that there was an increase in particular cases of a sensitive nature. We certainly cannot comment on any link between those increases and the New South Wales bill...There is certainly nothing concrete that we can point to. There may be many reasons as to why there is that increase.[4]

2.6 The Department indicated that it does not anticipate an increase in the number of suppression orders made by federal courts as a result of this Bill. The Department explained that this is because the new suppression order provisions in the Bill largely reflect the grounds upon which federal courts can currently make suppression orders. In addition, the Department noted that the Bill would operate differently in the Commonwealth context than in NSW, due to the number and type of courts empowered to make suppression orders, the jurisdiction of these courts and the grounds on which suppression orders may be made.[5]

Grounds for making a suppression order

2.7 ARTK recommended amending proposed new section 37AG (Grounds for making an order) (to be inserted in the Federal Court Act)[6] to provide that a suppression or non-publication order will only be made where the grounds for making the order significantly outweigh the public interest in open justice. ARTK also suggested that the grounds upon which a suppression or non-publication order is made should be more restricted.[7]

2.8 The Law Council of Australia (Law Council) expressed concern over equivalent provisions setting out the grounds for a suppression order in the Family Law Act (proposed new section 102PF). The Law Council argued that the 'specific' nature of the grounds in proposed new section 102PF may exclude some factual circumstances from being the subject of an order. The Law Council recommended that two additional grounds be added to proposed new section 102PF (to be inserted in the Family Law Act), namely that the court may make a suppression or non-publication order on the following grounds:

the best interests of a child of the party or parties to the proceedings requires it; or
any other circumstances that the court considers just.[8]

Department response

2.9 The Department noted that the issue of safeguarding the public interest in open justice has been considered – not only by the Commonwealth but also by the SCAG working group during development of the SCAG model bill. The Department provided the committee with the common law statement on the application of the principle of open justice, citing the High Court decision in Hogan v Hinch,[9] where Chief Justice French stated:

It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court's inherent jurisdiction or an inferior court's implied powers. This may be done where it is necessary to secure the proper administration of justice....

It is a common law corollary of the open-court principle that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings...

[A] statute which affects the open-court principle...should generally be construed...so as to minimise its intrusion upon that principle...[10]

2.10 An officer of the Department explained that the Bill accords with how the principle of open justice has been stated and applied at common law.[11]

2.11 The Department emphasised that a suppression order can only be made where the order is 'necessary'. In terms of the interpretation of 'necessary' in this context, the Department referred to the High Court's decision in Hogan v Australian Crime Commission:[12]

The High Court has recently stressed that the test that such an order must be 'necessary' has a high threshold, so that it is insufficient if the making of a suppression order is convenient, reasonable or sensible.[13]

2.12 The EM states that the requirement of necessity 'reinforces again that such orders cannot be made lightly, bearing in mind the interest in open justice (as recognised by [proposed new] section 37AE of the Federal Court Act)'.[14]

2.13 In terms of including a specific ground relating to the best interests of the child of a party in the Bill's proposed provisions which amend the Family Law Act, the Department indicated that there are already provisions in the Family Law Act designed to protect the interests of children of a party (or parties). As an official from the Department explained:

The interests of children of parties to proceedings are adequately protected by a combination of section 121 of the Family Law Act, which prevents publication of identifying information in relation to people associated with proceedings under the [A]ct; the court's practice of de-identification of published judgments, which ensures that no sensitive information is published in a way that would allow a person associated with the proceedings to be identified; and the Family Court's power to make an order closing the court when this is appropriate under section 97 [of the Family Law Act].[15]

2.14 In addition, the Department noted that several of the grounds in proposed new subsection 102PF are sufficiently broad to cover these circumstances. For example, proposed new paragraph 102PF(1)(c) (to be applied where it is 'necessary to protect the safety of any person') would provide an express ground upon which a suppression or non-publication order could be made to prevent harm (including psychological harm) to a child or another person associated with family law proceedings.[16]

2.15 With regards to the suggestion that a suppression or non-publication order be made in 'any other circumstances that the court considers just', the Department was of the view that this criterion would be too broad and would give rise to suppression orders in circumstances where they may not necessarily be required.[17]

Review of orders

2.16 ARTK also noted that the NSW Court Suppression and Non-publication Orders Act contains provisions allowing for review of suppression and
non-publication orders, and argued that similar provisions should be included in the Bill.[18]

Department response

2.17 In its evidence to the committee, the Department explained why provisions for the review of orders are not included in the Bill:

This was done in consultation with the courts and it was decided not to include these provisions in the Commonwealth bill since it is clear from case law that suppression orders are interlocutory in nature and, therefore, there is a power to vary them. In relation to appeals the usual provisions governing appeals will apply to suppression orders, so there was no need to put a special provision in relation to this...Rather than putting a specific provision in, we are utilising provisions that are already in the [A]ct and just making amendments to that to make it clear that the ability to appeal requires leave in accordance with all the other provisions to which leave is required.[19]

Schedule 3 – vexatious proceedings orders

2.18 The concerns raised in relation to Schedule 3 were primarily those of the Chief Justice of the Family Court, the Hon Diana Bryant, regarding the Family Court's powers to make vexatious proceedings orders under the Bill.

Power of the Family Court to make orders

2.19 In her submission, the Chief Justice noted:

The form and content of legislation governing vexatious litigants and/or proceedings has been the subject of discussion between the Court and the Attorney-General's Department for many years.[20]

2.20 While supporting the 'spirit and intent'[21] of Schedule 3, the Chief Justice commented that particular clauses relating to vexatious proceedings orders in the Family Court could be improved (proposed new Part XIB of the Family Law Act). In particular, the Chief Justice expressed concern that certain provisions in the Bill, if enacted as currently drafted, will limit the Family Court's ability to make vexatious proceedings orders.[22]

2.21 By way of background, the Chief Justice informed the committee that, as at 1 January 2012, the Family Court had 727 current orders in place which restrain 264 named litigants from instituting proceedings of a particular type.[23] In the Chief Justice's view, the Family Court particularly requires suitable powers to deal with vexatious litigants:

[T]he Family Court has more litigants who are vexatious or who are, in some ways, prohibited from bringing proceedings than, certainly, any other superior court and maybe any other jurisdiction. That is just the nature of the work. I can give you a little example so that you will have some appreciation. If the litigant is persistent in pursuing a parenting matter in the course of the proceedings up until the final hearing, they might sometimes file one, two or more applications every week...It is the nature of the jurisdiction, but it becomes pretty important from our point of view to make sure that we have the appropriate powers so that we can deal with these applications when they are made.[24]

Concerns regarding the use of the phrase 'proceedings under this Act'

2.22 The Chief Justice raised concerns regarding proposed new section 102QB of the Family Law Act, which deals with making vexatious proceedings orders. Proposed new subsection 102QB(1) sets out circumstances of which 'a court exercising jurisdiction in proceedings under this Act' must be satisfied, in order for section 102QB to apply. The Chief Justice noted that the court exercises original and appellate jurisdiction in proceedings other than under the Family Law Act,[25] and expressed the view that the wording in the Bill would limit the ability of the court to make vexatious proceedings orders:

Self-evidently, the limitation in clause 102QB(1) to 'proceedings under this Act' would preclude the Court from making a vexatious proceedings order with respect to proceedings under other statutes which vest the Court with jurisdiction, even where the Court was otherwise satisfied that the conditions in clause 102QB(1)(a) and (b) had otherwise been met. This I believe to be an artificial and unnecessary restraint on the Court to control all proceedings properly before it...[26]

2.23 The Chief Justice did concede that the current provision under which the Family Court deals with vexatious proceedings, section 118 of the Family Law Act, is also limited to 'proceedings under the Act'.[27] However, the Chief Justice noted that the equivalent amendments in Schedule 3 of the Bill, which would amend the Federal Court Act, the Federal Magistrates Act, and the Judiciary Act, do not contain such a limitation:

I can see no reason for the proposed differential treatment of the Family Court and I strongly suggest that clause 102QB(1) be amended to read 'This section applies if the Court is satisfied', or alternatively 'This section applies if the Family Court of Australia or the Federal Magistrates Court is satisfied', consistent with the phraseology used in [proposed new section 37AO of the Federal Court Act, proposed new section 88Q of the Federal Magistrates Act, and proposed new section 77RN of the Judiciary Act].[28]

2.24 The Chief Justice also noted that the wording 'proceedings under this Act' occurs in a number of proposed new subsections or subparagraphs in proposed new Part XIB of the Family Law Act.[29] In one example, the Chief Justice argued that the use of the words 'proceedings under this Act' will lead to the 'illogical and inappropriate' result of the Family Court, which is a superior court, having more limited powers to control vexatious proceedings than the Federal Magistrates Court, which is not a superior court.[30]

Department response

2.25 The Department explained that the intent of the wording in the relevant provisions contained in Schedule 3 of the Bill is to prevent family law vexatious litigants from making vexatious proceedings in multiple courts, rather than to limit the ability of the Family Court to make orders:

The advantage of the current way that this provision [in the Bill] has been drafted is that the application of these provisions applies to all family law proceedings under the Family Law Act. So it is not limited just to the Family Court. Orders can be made under these provisions by not only the Family Court but the Federal Magistrates Court...It also means that the Western Australian courts can make orders under the Family Law Act about vexatious proceedings. The advantage of that is that, as soon as one of those courts makes an order under the Family Law Act, a litigant can then not go to one of the other two courts and start the proceedings again in those courts. The orders apply to any proceeding that is commenced under the Family Law Act. That is different from the Federal Court and the Federal Magistrates Court, but it was a deliberate decision that was made so that family law vexatious litigants cannot move between the three courts that hear family law proceedings and start proceedings in those jurisdictions along the same lines.

...If we limited it just to the Family Court, then the application I have just described would not occur...The order that the Family Court makes specifically would not apply across the board to all family law proceedings.[31]

2.26 The Department noted that some Acts under which the Family Court exercises jurisdiction have provision to deal with vexatious proceedings in similar terms to the Bill. In particular, the Department noted provisions in the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988.[32] The Department acknowledged that it holds a different opinion from that of the Chief Justice in relation to this issue.[33]

2.27 Further:

We did consult with the Family Court about the way in which we were proposing to do this and discussed with them the number of vexatious proceedings that are commenced under things like the Marriage Act...They indicated that it is very unlikely that vexatious proceedings along the lines that are covered by this legislation—and this legislation is not intended to capture a specific preceding that is vexatious; it is intended to capture a course of proceedings that are vexatious—would arise in those contexts.[34]

2.28 The Department informed the committee that the amendments to the Family Law Act in Schedule 3 of the Bill were subject to extensive consideration and consultation through the SCAG process and during the drafting of the Bill.[35] The Chief Justice confirmed that the Family Court had been consulted in relation to the proposed changes.[36] The Department also advised that the high percentage of vexatious litigants in family law was taken into account during the drafting of the legislation:

Consideration was given to different approaches to address that issue. In essence it came down to the fact that for the other [A]cts for which the Family Court has responsibility, the vexatious litigant proceedings would occur very rarely in the majority of those and, in the child-support context, they were already covered. This seemed to be the most simple and appropriate method for dealing with that issue.[37]

2.29 The Department noted that the operation of the Bill is consistent with the current operation of section 118 of the Family Law Act, which sets out the court's existing powers relating to frivolous or vexatious proceedings.[38]

Other concerns regarding vexatious proceedings orders in the Family Court

2.30 The Chief Justice expressed concerns about the absence of an express power to amend or vary a vexatious proceedings order in the Bill.[39]

2.31 The Chief Justice also advocated the removal of the word 'frequently' in proposed new subsection 102QB(1),[40] on the basis that the word 'frequently' is not defined, and the provision may limit the Family Court's ability to make an order in cases where a single proceeding is clearly vexatious.[41] In her evidence to the committee, the Chief Justice noted that the retention of part of section 118 of the Family Law Act under the Bill may enable the Family Court to overcome the 'frequency' requirement when issuing orders. She stressed, however, that clarity is of critical importance in legislation which can limit a person's right to institute proceedings, and stated her preference for the provisions in section 118 and proposed new subsection 102QB(1) to be combined into one section – namely, a new subsection 102QB(1) with the requirement of frequency removed.[42]

Department response

2.32 The Department responded that the issue of an express power to amend or vary orders was discussed with all four courts during the drafting of the Bill:

It was agreed that [the Bill] would not include an express provision for variation or setting aside since the court's general powers to vary or set aside will automatically apply. This is also intended to underscore that vexatious proceedings are final orders.[43]

2.33 In response to the suggestion that the word 'frequently' be removed from proposed new subsection 102QB(1), the Department noted that the Bill is intended to capture a course of proceedings that is vexatious, rather than one specific proceeding that is vexatious, and that the court will still be able to make an order regarding a single vexatious proceeding under the provisions which will be retained in section 118.[44] The Department explained:

The word 'frequently' is one of the key elements of the SCAG model bill. Section 118, as [the Chief Justice] indicated, currently does not require proceedings to have been frequently instituted under the Family Law Act. However, that provision has two applications...[I]t can apply to one proceeding. Where a proceeding of itself is vexatious, section 118 would apply and the court can make orders staying that proceeding as a consequence. It also has the application to a series of vexatious proceedings. This legislation only applies to the series of vexatious proceedings...The SCAG model bill considered the two options and said that it was an option for each jurisdiction to determine whether or not they adopted the common law test or the test of frequency. Those jurisdictions that have implemented this legislation have all adopted 'frequency'. We have adopted the same test to be consistent with those jurisdictions and with the SCAG model.[45]

Schedule 4 – transfer of proceedings from courts of summary jurisdiction

2.34 The Law Council noted that, while Western Australian Family Law magistrates are appropriately qualified to deal with trial matters,[46] the additional flexibility enabled by the Bill would not substantively improve the operation of the Family Court of Western Australia.[47] The Law Council acknowledged that the amendments in Schedule 4 of the Bill would provide the Family Court of Western Australia with greater flexibility to allocate work between its judges and the magistrates of the Magistrates Court of Western Australia.[48] However, the Law Council concluded that additional flexibility to allocate work between magistrates and judges will not help the court, without a commensurate increase in resources.[49]

Department response

2.35 At the hearing, the Department emphasised that the purpose of the amendments in Schedule 4 of the Bill is to improve flexibility for the Family Court in Western Australia. An officer of the Department noted that the amendments would provide a 'facility that will be at the disposal of the Family Court of Western Australia'.[50]

Committee view

2.36 The committee believes that the Bill will fulfil the objectives of harmonising provisions relating to suppression and non-publication orders and vexatious proceedings across all four federal courts. In the committee's view, these Schedules were comprehensively consulted upon during the SCAG process and the drafting of the Bill, and the Bill's provisions in these Schedules are reasonable and well-balanced.

2.37 In relation to Schedule 2 of the Bill (suppression and non-publication orders), the committee notes ARTK's concerns that the Bill does not give adequate weight to the principle of open justice, and might lead to an increase in the making of suppression and non-publication orders. The committee understands that ARTK was involved in consultations during the development of the SCAG model provisions, and has had the opportunity to have its concerns heard through that process. The committee accepts the evidence of the Department that it does not anticipate an increase in the number of suppression orders being made as a result of the provisions in the Bill.

2.38 With respect to Schedule 3 of the Bill (vexatious proceedings orders), the committee acknowledges the concerns raised by the Chief Justice of the Family Court regarding limitations on the Family Court's powers in dealing with vexatious proceedings orders. In this regard, the committee notes the Department's advice that it consulted with the Family Court on the proposals in the Bill.

2.39 While the committee appreciates the concerns raised by the Chief Justice, the committee is satisfied that the Department has given serious consideration to different approaches to address the issue, and that there has been a deliberate decision for these orders to be confined in their application to proceedings under the Family Law Act in the context of the current Bill.[51]

2.40 Notwithstanding this view, the committee notes the Chief Justice's advice that the Family Court and the Department have been in discussion over the form and content of legislation governing vexatious litigants and proceedings for a number of years. The committee would encourage this dialogue to continue and suggests, in the longer term, that the Australian Government undertake a review of the nature, extent and adequacy of the Family Court's powers to make orders with respect to vexatious litigants and proceedings.

2.41 The Chief Justice also expressed concerns about the introduction of the requirement that a person 'frequently' institute proceedings, before a vexatious proceedings order can be made. The committee notes that this requirement does not currently exist in section 118 of the Family Law Act. The committee believes, however, that the Department has sufficiently explained the reasons for including the term 'frequently' in the Bill, noting in particular the adoption of that term by other jurisdictions and its incorporation in the SCAG model bill. In a broader sense, however, the committee is of the view that this issue could also be considered in any review relating to vexatious litigants and proceedings in the Family Court undertaken by the Australian Government.

Recommendation 1

2.42 The committee recommends that the Senate pass the Bill.

Senator Trish Crossin
Chair

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