Open Justice Review: Preliminary Submission

The current legislative framework governing access, disclosure and publication of court and tribunal information is failing to adequately protect women and their children who have experienced domestic and family violence from intrusions of privacy which in many cases result in women and their children being re-traumatised. On the flipside, victims of domestic and family violence often feel further “silenced”, “controlled” and “paternalised” when they are unable to speak out about the injustices which have been committed against them, particularly if such an order has been made for the purpose of  avoiding “undue distress or embarrassment to a party…[1] where that party may be the offender, or it is otherwise regarded as “necessary in the public interest”,[2] and the Court has determined that the parties, including the victim, are to be protected from exposure, but without the victim having self-determination in the process.

Domestic and family violence is centred on power and control. It is thus further compounding of the disempowerment experienced by the victim of domestic and family violence if the decision as to the information about the offences perpetrated upon her[3] is taken away from her.

Traditionally, our Courts have taken a very defendant-centric approach to questions of rights and fairness. However, over time, as our knowledge of the trauma impacts on victims has developed, we have seen an increased focus on their rights, and of fairness to them. We are beginning to see this more so with child victims of sexual assault and now to some extent with adult victims of sexual assault. However, there are still significant improvements that need to be made for both adult and child victims of domestic and family violence.

It is thus submitted that the issues to be considered as part of this review be framed with greater attention to the rights and fairness of victims of violent crime, and in particular victims of violence in the context of significant abuse of power, such as domestic and family violence.

[1]Court Suppression and Non-publication Orders Act 2010(NSW) s 8(1)(d).

[2]Ibid s 8(1)(e).

[3]The paper has assumed a female adult victim and a male adult offender for the purpose of this analysis due to the overrepresentation of female adult victims and male adult offenders of domestic and family violence and the client groups services by WDVCAS NSW members.