Bell J held that an intervention order made under the Family Violence Protection Act 2008 (Vic), which restricted the former spouse of a candidate for election to the Australian Parliament from providing information in relation to the candidate to a third party (eg the mass media), was not contrary to the implied constitutional freedom of political communication.
The Court found that the terms of the intervention order were reasonably appropriate and adapted, or proportionate, to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government.
Bell J states that
184 It follows from general principles that, before determining whether non-publication orders should be made, there must be cogent evidence before the court reasonably justifying the conclusion that it is necessary to make such orders; the onus is on the applicant for the orders to demonstrate that they should be made.
185 Any orders of the court under ss 18 and 19 of the Supreme Court Act should be case-sensitive. Without intending to be exhaustive, the proceeding may be conducted in camera (closed to the public) in whole or in part, the names of some or all of the parties or witnesses may be suppressed or the use of pseudonyms may be ordered, publication of the evidence (including the oral and documentary evidence and the exhibits) and any transcript may be prohibited in whole or in part and the judgment may be published or suppressed wholly or in part, with or without the use of pseudonyms or other appropriate non-identifying (for example, gender neutral) terms. Any non-publication order must be justified by reference to the considerations specified in s 19 and that course which is most compatible, and involves least interference, with the open justice principle should be adopted.
186 Applying these principles to the present case, orders for partial but not complete suppression should be made.
187 I accept that it is necessary to avoid prejudicing the administration of justice for orders to be made prohibiting the publication of any account of the proceeding which identifies the appellant, the respondent, the protected person or the child and which contains any particulars likely to lead to the identification of those persons. That consideration does not require the suppression of a judgment in which the parties are identified by pseudonyms and which is expressed in anonymous and gender neutral terms, as is the case with this judgment. The pseudonyms will be ‘AA’ (the appellant) and ‘BB’ (the respondent).
188 It is necessary to adopt this course because this is an appeal from a proceeding under the Family Violence Protection Act in which the persons involved had statutory privacy protection. In my view, that protection which the persons involved had in the substantive proceeding under the Family Violence Protection Act should also be provided in this appeal proceeding under the Criminal Procedure Act. It would defeat the purpose of the statutory privacy protections which were applicable in the proceeding in the Magistrates’ Court if those protections were not to be applicable in the appeal proceeding in this court.
189 The rationale for the publication restrictions in the substantive proceeding in the Magistrates’ Court apply equally in an appeal proceeding in this court. People needing protection from family violence should not fear the loss of their privacy in an appeal. It would deter people from seeking that protection if privacy protection was not to be provided in a subsequent appeal proceeding. The same consideration applies to the other persons involved in a substantive proceeding in the Magistrates’ Court, such as respondents, witnesses and children. They should not be discouraged from participation in such proceedings by a fear of being identified in an appeal to this court.
190 The family privacy protections in the Family Law Act should also be taken into account. The evidence in this proceeding and the analysis in the judgment frequently refer to the proceeding between the appellant and the protected person in the Family Court in relation to their child. That protection which they had under the Family Law Act in the substantive proceeding in the Family Court should also be provided in the appeal proceeding in this court. Due to the relationship between the Magistrates’ Court and the Family Court in the discharge of their overlapping functions, it would not be unusual, as in the present case, for issues dealt with in a proceeding in the Family Court to later arise in a proceeding in the Magistrates’ Court and later again in an appeal proceeding in this court. A common approach to protecting privacy is necessary to avoid prejudicing the administration of justice.
191 This case falls into categories in which it is acknowledged that non-publication orders might be made. Unless orders were to be made, people – especially vulnerable women and children – would be deterred from seeking legal protection which they need and to which they are entitled. Others would be discouraged from becoming involved in proceedings. Unless orders were to be made, the subject matter of the proceeding would be destroyed. The subject matter of a family violence proceeding is the protection of the safety and wellbeing of the protected person, children and other family members. It would be destroyed or imperilled by loss of privacy in an appeal. Unless orders were to be made, the privacy protections in the Family Violence Protection Act and the Family Law Act would be undermined or lost. It would prejudice the administration of justice in all of these respects for orders not to be made.
192 This court has an independent discretion to exercise under ss 18 and 19 of the Supreme Court Act. When exercising this discretion, the court must consider whether making an order under s 18 would be justified (in this case) under s 19(b). In forming the view in this case that the exercise of the discretion is necessary in order to avoid prejudicing the administration of justice, I take into the account the privacy protections in the Family Violence Protection Act and the Family Law Act. I am not suggesting that consideration of these protections leads me automatically to conclude that orders should be made under the Supreme Court Act. In a particular case there may be reasons why orders should not be made. But nothing said in the submissions in the present case suggests that the privacy protections under the Family Violence Protection Act and the Family Law Act in the Magistrates’ Court and the Family Court respectively should not be equally provided in the appeal proceeding in this court.
193 I reject the application for complete suppression of the proceeding and the judgment because it goes beyond what is necessary for the avoidance of prejudice to the administration of justice. Adequate protection of the privacy of the appellant, the protected person and the child is provided by prohibiting the publication of their identities or of identifying particulars. Complete suppression would involve a high degree of departure from the open court principle in circumstances where this was not necessary to avoid prejudicing the administration of justice. An order for complete suppression would not be the most compatible, and would not involve the least interference, with the principle of open justice.
194 In the interests of protecting the identities of the protected person and the child, the identities of the appellant and the respondent should not be revealed and they should be known by pseudonyms. The appellant is not really seeking privacy protection, but on the principles I have discussed should have it. It would undermine the operation of the non-publication order with respect to the protected person and the child if the appellant or the respondent were to be identified or identifiable. Also in the interests of achieving adequate privacy protection for the protected person and the child, I have expressed the judgment in gender neutral terms. Place names, dates and other identifying particulars are not referred to in the judgment. The status of the protected person as an endorsed candidate for election to federal Parliament in the upcoming election is referred to as this is a material fact. But that fact, taken alone or with the other matters considered in the judgment, would not lead to the identification of the protected person, the respondent or the child.
195 The appellant was convicted and sentenced in the Magistrates’ Court of Victoria to imprisonment for 19 days for contravening an intervention order under the Family Violence Protection Act 2008 (Vic). The appellant pleaded guilty to the 15 charges concerned.
196 The intervention order prohibited the appellant from publishing material about the protected person (who is the appellant’s former spouse) or providing information to third parties about the protected person’s personal, family or professional interests. The order also prohibited the appellant form contacting, or communicating with, the protected person except through a lawyer to arrange mediation or discuss family law matters (including matters concerning their child). The appellant was charged with contravening the order by publishing information about the protected person and contacting that person directly.
197 In this appeal, the appellant contended that, despite the pleas of guilty to the charges, the magistrate committed errors of law and jurisdiction in convicting and sentencing the appellant. It was contended that the intervention order was invalid for being inconsistent with a parenting order made in respect of the appellant, the protected person and their child in the Family Court of Australia under the Family Law Act 1975 (Cth). It was alternatively contended that the provisions of the Family Violence Protection Act under which the intervention order was made were invalid under s 109 of the Constitution for being inconsistent with the provisions of the Family Law Act. It was also contended that the intervention order and those provisions were invalid by reason of the implied constitutional freedom of communication about government and political matters. I have rejected these contentions.
198 The intervention order under the Victorian Family Violence Protection Act which the appellant contravened is not invalid for being inconsistent with the parenting order under the federal Family Law Act. The State intervention order and the federal parenting order sit side by side and harmoniously deal, on the one hand, with the protection of the protected person from family violence of the appellant and, on the other hand, with the relationship between the appellant and the protected person in relation to their child. Further, the Family Violence Protection Act and the Family Law Act have been carefully designed to operate compatibly together according to a common plan. There is no inconsistency between the State and federal Acts and the provisions of the State Act are not invalid under s 109 of the Constitution.
199 Applying the tests stated by the High Court of Australia in cases to which I refer in the judgment, the intervention order and the provisions of the Family Violence Protection Act under which it was made are not invalid by reason of the implied constitutional freedom of communication about governmental and political matters.
200 Contrary to the submissions of the respondent, I have accepted that the intervention order limits the appellant’s capacity to communicate about government and political matters. The protected person is a candidate for election to the Australian Parliament in the upcoming federal election. Because the intervention orders prohibit the appellant from publishing any material about the protected person and from providing information about that person’s personal, family or professional interests to third persons, the order prevents the appellant from commenting on the suitability of the protected person for election to federal Parliament. Public discussion of the suitability of a candidate for election to federal Parliament is a central feature of the democratically representative political system which is enshrined in the Constitution.
201 However, the intervention order was made for the legitimate purpose of protecting the protected person from family violence of the appellant. In limiting the appellant’s capacity to publish material about the protected person and provide information about that person’s personal, family and professional interests to third parties, the order is reasonably appropriate and adapted, and proportionate, to the achievement of that purpose. In making the order, it was necessary for the magistrate to balance, on the one hand, the appellant’s right to free speech in the context of the upcoming federal election as protected by the implied constitutional freedom of communication about government or political matters and, on the other hand, the protected person’s right to be protected from family violence of the appellant, which the protected person did not lose by reason of being a parliamentary candidate in that election. The magistrate properly carried out that balancing judgement and the appellant has not shown that his Honour erred in law in doing so. I note that, in making the order, the magistrate did not inhibit the capacity of the appellant publically to discuss issues of policy or political matters not concerning the protected person or to provide information about such issues or matters to third parties.
202 I have also rejected the appellant’s contention that the intervention order was invalid for being inimical to public policy and for uncertainty.
203 In conclusion, the magistrate did not err in law or jurisdiction in convicting and sentencing the appellant for contravening the intervention order. The appellant’s appeal will be dismissed.
204 I have rejected the application of the respondent and the protected person, supported by the appellant, for complete suppression of the proceeding and this judgment as that would be contrary to the principle of open justice. However, it is appropriate to protect the identities of the appellant, the protected person and their child, as was the case under the Family Violence Protection Act in the substantive proceeding in the Magistrates’ Court and under the Family Law Act in the related proceeding in the Family Court. Therefore this judgment has been produced in gender neutral and anonymous terms and the appellant and the respondent have been given pseudonyms. Under s 18 of the Supreme Court Act 1986 (Vic), and consistently with s 166 of the Family Violence Protection Act and s 121 of the Family Law Act, I have made orders prohibiting the publication of any account of the proceeding, or any part of the proceeding, that identifies the appellant, the respondent, the protected person or the child or of any particulars likely to lead to the identification of those persons.