Victoria needs a new Contempt of Court Act

Date: Victoria needs a new Contempt of Court Act to define different types of contempt and make the law clearer and fairer in the online era, according to a report published today by the Victorian Law Reform Commission.

Contempt of court is any conduct that risks interfering with the ability of the courts to perform their role. It has developed over centuries through decisions made by courts, but is not currently defined in legislation. The new Contempt of Court Act should state where the courts’ powers come from, and when and how the courts can use them. It should use clear and accessible language.

The Commission recommends that publishers should not be punished for hosting content written by other people, such as comments on a web page. However, courts should be able to order publications be taken down if they breach the law, including interstate and overseas publications that could prejudice legal proceedings in Victoria.

The Commission also recommends that the old category of ‘scandalising the court’ should not be included in the new Act, as it is too broad. Instead, a new category of contempt of court would apply to publications only if they risk seriously undermining public confidence in the independence and integrity of the courts.

The new Act should state that it is not a contempt of court to publish material that is prejudicial to legal proceedings, if the prejudice is outweighed by the public interest in publication, including the effect on freedom of expression and the principle of open justice.

The Commission also recommends reform to the current summary process, under which a judge or magistrate has the power to be a witness, prosecutor and judge in the same case when a contempt of court happened in their court. The Commission recommends that in such cases, a different judge should hear the case.

According to the Commission’s recommendations, a new Act should include the following definitions of contempt of court:

•  conduct that interferes with a court proceeding—such as disruptive and abusive behaviour
• non-compliance with a court order or undertaking—disobeying orders made by a court
• publishing material prejudicial to legal proceedings—such as publishing information about an accused person that has not been heard in court. (Now known as sub judice contempt.)
• publishing material undermining public confidence in the courts—such as making false claims about the integrity of a judge or magistrate. (Now known as scandalising contempt.)
• interfering with people involved with a court proceeding—such as threatening witnesses.

The Commission also recommended the modernisation of the Judicial Proceedings Reports Act 1958 (Vic) which covers what can be reported about court cases. In particular, the bans on publishing material about indecent matters and about divorce should be removed.

Chair of the VLRC, the Hon. Anthony North QC said: “The law of contempt of court protects public confidence in the courts and is essential to the rule of law. But it is outdated, confusing, and needs reform.

“A person should know in advance what behaviour can be punished as a contempt of court, who will judge them, the process and the punishment. This is not the case at present.

“Online publishing and social media have changed the way people access and share information. The courts have not kept up, so the law needs to adapt to the new circumstances.”

The Commission’s report, Contempt of Court, can be accessed on the Victorian Law Reform Commission website.

For more information or an interview with the Hon. Anthony North please contact:
Nick Gadd, Communications Manager, 0425 862 119 / nick.gadd@lawreform.vic.gov.au
Date published: 05 Aug 2020