Contempt of Court: Report (html)

3. How to reform the law of contempt of court

Overview

• The source and purpose of the law of contempt are different from those of the ordinary criminal law. The court’s power to deal with any person or organisation for contempt exists so that the courts can protect the administration of justice.

• The proposed Act should recognise that the law of contempt is at its heart a judicial power rather than a series of offences.

• The proposed Act should comprehensively define when and how the courts can exercise their contempt powers to protect the administration of justice. This should include specifying the conduct that can be dealt with as a contempt of court.

• The proposed Act should specify the scope of the existing powers of courts to deal with contempt rather than conferring new powers on the courts or creating parallel offences.

• The overarching purpose of the proposed Act should be to protect the administration of justice. To guide the community and those interpreting the proposed Act, the proposed Act should also explain what is meant by the administration of justice.

Approach to legislative reform

3.1 Most stakeholders submitted that the law of contempt should be restated in legislation but views diverged on the appropriate form of statutory intervention. Many submissions supported statutory clarification or codification without detailing how to achieve it.

3.2 Some stakeholders emphasised that legislative reforms must respect the role of the law of contempt in maintaining the integrity and authority of the court system. The Law Institute of Victoria (LIV) submitted that:

pains should be taken to ensure such reforms reflect the unique nature of this area of law, including the need for judicial officers to be able to maintain the orderly administration of justice.^[1]

3.3 This section of the report considers the options for legislative reform with respect to:

• the source and purpose of the contempt power

• whether the proposed Act should recast the law of contempt as a series of statutory offences

• whether the proposed Act should operate as a conferral of statutory jurisdiction or recognise the Supreme Court’s existing inherent jurisdiction as the source of the

Court’s contempt power

• how the proposed Act could provide a statutory framework for the exercise of the contempt power.

Recognising the source and purpose of the contempt power

3.4 Under the doctrine of the separation of powers, the courts have power to interpret and apply the law independently of the other arms of government. The courts impartially adjudicate disputes about the law and determine parties’ rights and liabilities under the law. However, the law of contempt is not just another law interpreted and applied by the courts. The law of contempt is fundamental to the function of the courts.^[2] It secures the courts’ authority and ability to interpret and apply all other laws independently and fairly. It does this by empowering the court to protect itself and its processes from interference, including from other arms of government, and to compel compliance with its orders.

3.5 The separation of judicial power from executive and legislative power would be ineffective if the courts were given the function of administering justice according to law but had no attendant power to protect against conduct that undermined their ability to do so.^[3] The High Court has therefore described the power to deal with a person for contempt as ‘a power of self-protection or a power incidental to the function of superintending the administration of justice’.^[4] This means that because the Supreme Court is the institution responsible for managing and overseeing the administration of justice in Victoria, it must have this power to fulfil its institutional role. It is an inherent power, derived from the Supreme Court’s function as a superior court, and not from Parliament.^[5] It is a jurisdiction that must be controlled and administered by the Supreme Court itself so that the Court can protect its authority to exercise judicial power independently of the other arms of government.

3.6 Although there is no binding separation of judicial power under the constitutions of the states, including Victoria,^[6] the principles of independence and impartiality that flow from the observance of this doctrine in Victoria support the rule of law and public confidence in the judicial process.^[7] Laws which serve this doctrine have an important function at state level.

3.7 Further, there are Commonwealth constitutional limitations on the legislative power of the Victorian Parliament to remove power from or confer power on state courts.^[8] These limitations protect aspects of the Supreme Court’s jurisdiction from legislative erosion. The Commission has received legal advice that the Supreme Court’s power to punish for contempt may be a ‘defining characteristic’ of the Court as a state Supreme Court and, therefore, a constitutionally protected power. If so, the Victorian Parliament could validly pass legislation which had the effect only of regulating the exercise of the power, rather than removing it. The Victorian Parliament could not remove the Supreme Court’s power to deal with a contempt of court on its own motion.^[9]

3.8 For these reasons, the law of contempt differs from ordinary criminal law, even though the exercise of the contempt power often involves the imposition of punishment.^[10]

It is not just procedurally different. The court’s power to deal with a person for contempt derives from a different source and is exercised for a different purpose than the powers the court exercises in its criminal jurisdiction. When a court deals with a person for contempt, it acts to protect its ability to administer justice according to law, and punishment is in aid of that purpose.^[11]

3.9 The Commission considers that the unique source and purpose of the contempt power should be reflected in the framing of the proposed Act.

Should contempt be recast as statutory criminal offences?

3.10 The aim of legislative reform is to clarify the conduct that can attract punishment for contempt and the procedures that must be followed to deal with a person for contempt. This could be achieved by reframing the law of contempt as a series of statutory offences, albeit with variations to the usual criminal procedure, to allow the court a direct role in instituting and prosecuting proceedings.

3.11 The contempt power may be a judicial power, exercised for a protective purpose, but it still operates on conduct. The law of contempt creates obligations and liabilities. If these rules are breached they expose a person to punishment and in that sense such breaches can be characterised as ‘offences’. The proposed Act could focus on defining these offences.

3.12 Taking contempt in the face of the court as an example, if it were to be expressed as a statutory offence the legislation would provide as follows:

Provision A

A person who intentionally engages in conduct that disrupts a proceeding commits an offence.

OR

A person must not intentionally engage in conduct that disrupts a proceeding.

Penalty: X months imprisonment.

3.13 But would that properly recognise the unique source and purpose of the law of contempt?

3.14 Alternatively, the legislation could recognise the inherent contempt jurisdiction as the source of the judicial power but regulate the exercise of the power by setting out the circumstances and procedures of its application.

3.15 The difference in approach would be captured in the way the legislation was expressed.

3.16 If the proposed Act is expressed to deal with the exercise of the inherent power, it would provide, in the case of contempt in the face of the court, as follows:

Provision B

The Court may deal with a person for contempt if they engage in conduct that disrupts proceedings.

3.17 The difference in expression reflects the differing conceptual foundations of the legislation. Provision A is concerned with regulating and criminalising conduct that interferes with the administration of justice. Provision B is concerned with defining when it may be necessary, and therefore permissible, for the court to exercise its powers, including its punitive powers, to protect the proper administration of justice.

3.18 Several stakeholders supported an approach to reform that would recast the courts’ power to punish for contempt into more standard statutory offences, like hypothetical Provision A. These stakeholders submitted that bringing the law of contempt into line with the ordinary criminal law—by defining the elements of the offence and the procedure for trying the offence—would improve transparency, certainty, predictability and fairness.^[12]

3.19 Recasting the law of contempt as statutory offences would ensure proceedings for contempt were clearly designated as criminal proceedings and the established criminal procedures and safeguards would apply. A person dealt with for contempt would no longer be in a different position from a person dealt with under the ordinary criminal procedure.

3.20 The offences would apply and be enforced uniformly regardless of the court before which the conduct occurred.

3.21 The offences would be investigated and charged by police and then prosecuted by the police or the Office of Public Prosecutions (OPP). However, as with the offence of perjury, special provision could be made in the Criminal Procedure Act for the court to direct that a person be tried for the offences.^[13] This would ensure that the court was not dependent on the prosecutorial discretion of an external agency to have a person charged with a contempt offence.

3.22 Other law reform commissions have recommended that the law of contempt be reformed and restated as statutory offences.

3.23 The Law Reform Commission of Western Australia recommended that the law of contempt of court be codified and replaced by a series of new statutory criminal offences to be inserted in the Criminal Code.^[14]

3.24 The Australian Law Reform Commission (ALRC) recommended that the law of contempt, except for civil contempt, be recast as statutory criminal offences. For the offences replacing contempt in the face of the court, the ALRC recommended a summary mode of trial. For the other replacement offences, the ALRC recommended that the normal procedures for the trial of criminal offences should apply.^[15]

3.25 In New Zealand, the Contempt of Court Act 2019 (NZ) replaces some categories of contempt with statutory criminal offences to be prosecuted, with minor adjustments, in the usual way.

3.26 There are limitations to this approach. Any list of discrete criminal offences will not capture all the ways that a person may interfere with administration of justice. To address these gaps would require one of the following:

• the current inherent power to deal with a person for contempt to be partially preserved to cover these unforeseen circumstances^[16]

• a general statutory contempt offence to be enacted

• Parliament to supplement the statutory contempt offences with other legislative provisions or offences as the need arises.^[17]

3.27 Currently, the court’s flexible exercise of its contempt powers is governed by how the protective purpose of the law of contempt can best be achieved. This allows a special role for warnings, apologies, purging of conduct and flexible punishments. It means the power is used with restraint and only when necessary. If the law is restated as criminal offences, the focus would shift to an assessment of whether an offence had been committed and whether it was in the public interest to prosecute it. This process may be less flexible and less adapted to the purpose of the law of contempt.

3.28 The ordinary criminal procedure can be slow, and delay may undermine the effectiveness of the law in dealing with conduct that interferes with proceedings.^[18] The directions and warnings issued by the courts may lack impact if the courts do not have a swift means to deal with misconduct.^[19]

3.29 If the law is recast as criminal offences, prosecutorial discretion would shift to the police and/or the DPP. In some cases, this might be seen to improve the formality, transparency and perceived impartiality of the process.^[20] However, stakeholders submitted that, in relation to some types of contempt, the police might lack the necessary expertise or insight into the proceedings to assess whether a contempt has been committed or whether a prosecution is necessary.

3.30 Stakeholders submitted that the independence of the courts would be undermined if they were dependent on an executive agency to commence contempt proceedings. If prosecution agencies, who are parties before the courts, were the sole authority to instigate prosecutions for contempt, other parties coming before the court might consider that they were not approaching the court on equal terms.^[21]

3.31 Creating new statutory criminal offences that must be enforced by executive agencies would have resource implications. Adding new offences to the statute book without tasking and resourcing an agency to enforce them will create a prosecutorial gap. This was noted by the New Zealand Law Commission when it recommended the enactment of several offences to replace aspects of the common law of contempt. The New Zealand Commission observed that ‘the success of our various recommendations will depend at least in part on those responsible for enforcing the new offences having the resources and willingness to do so’.^[22]

Commission’s conclusions: the law of contempt is more than a collection of offences

3.32 The proposed Act should not reformulate the law of contempt as statutory offences. The required improvements to the law can be achieved without detracting from the character of the contempt power as an ‘exercise of judicial power by the courts, to protect the due administration of justice’.^[23]

3.33 It is preferable that the proposed Act recognise the unique source and purpose of the law of contempt. To state the law as a series of statutory offences would change the law into a series of prohibitions defined by Parliament and enforced by the courts. The focus of the law would shift from the courts exercising power, where necessary, to protect their integrity and independence, to Parliament criminalising specified conduct and prescribing a procedure to try and punish it.

3.34 The Commission accepts that the law could be recast as statutory offences with a direct role preserved for the court in instituting a prosecution for those offences. However, even with a special role for the courts of this kind, reforms that reduce the law of contempt to statutory offences fail to recognise the importance of the contempt power belonging

to and being controlled by the courts themselves. The proposed Act must recognise the importance of the courts’ discretion in determining whether it is necessary to exercise the contempt power. Recasting the law of contempt as statutory offences might confine the court’s discretion to determining whether and what punishment should be imposed for conduct proscribed by Parliament.

3.35 The Commission has heard that the law of contempt needs to be clarified, redefined to better accommodate competing rights, and made more procedurally certain and fair. The Commission has not heard that the proper administration of justice is undermined because of deficiencies in the law of contempt.^[24] Therefore, the Commission is not satisfied that it is necessary to change the fundamental foundations of the law.

3.36 Consequently, rather than prohibiting certain conduct or defining certain conduct as an offence, the proposed Act should define the conduct which the court may deal with as a contempt, if the court considers it necessary to protect the proper administration of justice.

A statutory framework for exercising the contempt power

3.37 The following chapters in this Part consider how the proposed Act should provide for and regulate the exercise of the courts’ contempt powers.

3.38 Order 75 of the Civil Procedure Rules already regulates the exercise of the Supreme Court’s contempt jurisdiction.^[25] However, these Rules provide minimal procedural guidance or guidance on what conduct may be dealt with as a contempt. The proposed Act would replace Order 75 with a more complete statutory framework for the exercise of Supreme Court’s inherent contempt jurisdiction.

3.39 The statutory framework provided for in the proposed Act would address:

• when the courts’ contempt jurisdiction can be exercised by defining what conduct may be dealt with by the court as a contempt

• the procedures for invoking the courts’ contempt jurisdiction, including specifying who has standing to invoke the jurisdiction

• the procedures governing the conduct of proceedings

• the purpose for which the courts’ power to punish contempt may be exercised

• discretionary factors that should be considered before deciding to deal with a person for contempt rather than using alternative procedures to address their conduct

• the penalties that may be imposed on a person, including a body corporate, found guilty of contempt.

3.40 As discussed further in Chapter 6, the proposed Act would also confer on and regulate contempt powers of other courts, replacing existing statutory provisions.

3.41 The proposed Act should be exhaustive and should deal with all types of contempt. It should not be limited to certain types of contempt.^[26] To reflect this, the proposed Act should provide that a person may only be dealt with for contempt, and application be made to punish a contempt, in accordance with the Act.

3.42 Stakeholders told the Commission that the courts’ contempt powers were rarely used and only as a last resort. In that context, the Commission considers that a new legislative regime which does not exhaustively govern the courts’ contempt powers would be of limited value. A partial approach, where only certain types of contempts are dealt with under the proposed Act, while others remain to be dealt with under existing law, may further complicate the law of contempt.

Recommendations

2 The proposed Act should provide an exhaustive statutory framework for the exercise of the inherent power to deal with all persons for contempt of court.

3 The proposed Act should provide that an application to deal with a person for contempt of court may only be made under the Act and that a person may only be dealt with for contempt of court in accordance with the proposed Act.

Power must give effect to the overarching purpose

3.43 It is standard for Victorian Acts to include a provision that outlines the underlying purpose or objects of the legislation, which can be drawn on to interpret the provisions of the Act.^[27] Many Acts also provide that decisions made or powers exercised in accordance with the Act should seek to give effect to such overarching purpose.^[28]

3.44 For example, the Civil Procedure Act 2010 (Vic) provides that the overarching purpose of that Act is ‘to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute’.^[29] The Act also provides that a court must give effect to the overarching purpose in the exercise of any of its inherent or statutory powers and provides for how this can be achieved.^[30]

3.45 The proposed Act should include a similar overarching provision which explains that:

• the purpose of the proposed Act is to promote and protect the proper administration of justice

• the courts, in exercising the power to deal with a person for contempt under the proposed Act, must seek to give effect to this overarching purpose.

3.46 As discussed in Chapter 2, the term ‘proper administration of justice’ is not easily defined. Instead, the concept is best explained by identifying the requirements of an effective system of justice, as set out in Chapter 2. These requirements should be expressly restated as principles a court must have regard to in seeking to give effect to the overarching purpose of the proposed Act.

3.47 As discussed in the consultation paper,^[31] the protection of the proper administration of justice is not absolute and must be provided for in a way compatible with human rights as recognised at common law and under the Charter of Human Rights and Responsibilities Act 2006 (Vic). Accordingly, the proposed Act should clarify that the proper administration of justice must be promoted and protected in a way that is compatible with human rights.

Recommendations

4 The overarching purpose of the proposed Act should be to promote and protect the proper administration of justice in a way that is compatible with the Charter of Human Rights and Responsibilities Act and other statutory, constitutional and common law rights or principles.

5 The proposed Act should provide that in exercising any of its powers under the proposed Act, a court must seek to give effect to the overarching purpose and, in doing so, must have regard to the following principles:

• that the independence, integrity and impartiality of the judiciary should be protected

• that all persons should have unhindered access to the court system to determine their legal rights and liabilities

• that all cases should be determined in accordance with the rule of law and that the right to a fair hearing should be upheld

• that the public and media should be able to access and report on both court proceedings and court documents unless otherwise provided by law

• that all cases should be heard in an orderly and efficient manner, free from disruption and outside influence, and should be decided based only on the evidence properly admitted and proved

• that for decisions to be made on the best evidence, witnesses should be able to be compelled to attend and give evidence

• that jury verdicts should be based only on evidence properly admitted and proved after free, frank and confidential jury discussions, and that the finality of verdicts should be protected

• that those with duties to perform in the court, including judges, witnesses, jurors and legal practitioners, should do so fairly and honestly, in accordance with the directions of the court and any undertakings given to the court, and in a safe environment, free from interference and harassment

• that orders made by the courts should be complied with and enforced.

1. Submission 22 (Law Institute of Victoria).

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2. Submission 32 (International Commission of Jurists, Victoria).

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3. Ahnee v DPP [1999] 2 AC 294, 303; cited in Re Colina; Ex Parte Torney [1999] HCA 57 [17], (1999) 200 CLR 386.

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4. Porter v The King; Ex parte Yee (1926) 37 CLR 432, 443 (Isaacs J).

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5. R v Forbes; Ex parte Bevan (1972) 127 CLR 1, 7 (Menzies J). Ultimately, the general jurisdiction of the Supreme Court as Victoria’s superior court with unlimited jurisdiction is conferred by section 85 of the Constitution Act 1975 (Vic).

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6. City of Collingwood v Victoria [1994] 1 VR 652.

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7. The Herald & Weekly Times Ltd v Popovic [2003] VSCA 161, (2003) 9 VR 1 [507].

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8. Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; Kable v DPP (NSW) (1996) 189 CLR 51.

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9. See Appendix D.

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10. Re Colina; Ex Parte Torney [1999] HCA 57 [109] (Hayne J).

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11. Ibid 57 [112] (Hayne J); Maslen v Official Receiver (1947) 74 CLR 602, 611.

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12. Submissions 11 (Victoria Legal Aid), 22 (Law Institute of Victoria), 27 (Australia’s Right to Know coalition). The Criminal Bar Association also supported the introduction of statutory offences to cover much of the conduct currently punishable as contempt of court. The Association drew a distinction between use of the contempt power to prevent or stop an ongoing contempt and the use of the power to punish a past contempt. It submitted that the ordinary criminal procedure should apply only where the purpose is to punish past behaviour: Submission 20 (Criminal Bar Association).

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13. Criminal Procedure Act 2009 (Vic) s 415.

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14. Law Reform Commission of Western Australia, Report on Review of the Law of Contempt (Project No 93, June 2003).

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15. The Law Reform Commission, Contempt (Final Report No 35, December 1987) [17].

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16. Both the Law Institute of Victoria and Victoria Legal Aid told the Commission that it was important to preserve the Supreme Court’s inherent jurisdiction in order to address unforeseen circumstances. They submitted that a statutory contempt regime should sit alongside the Court’s inherent contempt powers, albeit with the latter only relied on where there is a statutory gap: Submission 11 (Victoria Legal Aid); Consultation 8 (Law Institute of Victoria). This was the approach adopted in the Contempt of Court Act 2019 (NZ) s 26.

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17. See Law Reform Commission of Western Australia, Report on Review of the Law of Contempt (Project No 93, June 2003) 117–18.

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18. Submission 29 (Supreme Court of Victoria).

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19. Submission 26 (Chief Examiner, Victoria).

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20. It is noted that the Supreme Court submitted that the show cause process the Court often uses ‘is a very transparent process’ and is at least as transparent as the exercise of prosecutorial discretion: Submission 29 (Supreme Court of Victoria).

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21. Submission 29 (Supreme Court of Victoria); Consultation 24 (County Court of Victoria).

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22. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, May 2017) 35 [1.94].

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23. Re Colina; Ex Parte Torney [1999] HCA 57 [112] (Hayne J).

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24. Even an organisation such as the Law Council of Australia, which broadly supports the codification of the law, states that ‘the law of contempt as it currently stands operates satisfactorily’: Law Council of Australia, Submission No 6 to the Senate and Legal Constitutional Affairs References Committee, Law of Contempt (13 November 2017) [6].

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25. Supreme Court (General Civil Procedure) Rules 2015 (Vic). The County Court’s contempt jurisdiction is regulated by County Court Civil Procedure Rules 2018 (Vic). These mirror the Supreme Court Rules.

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26. This is the approach adopted by the Contempt of Court Act 2019 (NZ).

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27. Interpretation of Legislation Act 1984 (Vic) s 35.

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28. See, eg, Guardianship and Administration Act 2019 (Vic) ss 7–9 (not yet in force); Civil Procedure Act 2010 (Vic) ss 7–9; Coroners Act 2008 (Vic) ss 6–9.

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29. Civil Procedure Act 2010 (Vic) s 7.

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30. Ibid ss 8–9.

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31. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 3–6 [1.13]–[1.27].

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