Contempt of Court: Consultation Paper (html)

1. Introduction

Referral to the Commission

1.1 The Victorian Law Reform Commission (the Commission) has been asked to review and report on the law relating to contempt of court, the possible reform of the Judicial Proceedings Reports Act 1958 (Vic) and the legal framework for enforcement of prohibitions or restrictions on the publication of information.

1.2 The terms of reference are set out on page xii.

1.3 The referral was made by the then Attorney-General, the Hon. Martin Pakula MP by letter to the Commission dated 12 October 2018 and was publicly announced the same day.^[1]

Why this review is needed

1.4 The law of contempt of court is concerned with the protection of the proper administration of justice by empowering the courts at common law to punish conduct that interferes with the due administration of justice, either in a particular case or more generally as a continuing process.^[2] Such conduct may be by a party to a proceeding, a person with official duties in connection with the proceeding, a member of the public attending the court, a person reporting or commenting on proceedings, or anyone else whose actions obstruct or undermine the administration of justice.

1.5 The purpose of the law of contempt is ‘to uphold and preserve the undisturbed and orderly administration of justice in the courts according to law’.^[3]

1.6 The courts have said that the ‘legal principles concerning contempt of court are well known and uncontroversial’.^[4] However, as evidenced by other statements by the courts,^[5] extra-curial comment,^[6] and the number of reviews both in Australia and in other jurisdictions, there have long been concerns with the common law of contempt of court in terms of its nature, processes and enforcement.^[7]

1.7 In addition, and as recognised by other reviews^[8] and commentators,^[9] the law of contempt of court is now facing new challenges with the emergence of the internet and the rise of social media platforms such as Facebook and Twitter. Technology is fundamentally changing the way people access and share information, providing a new and borderless vehicle for people to interpret, challenge, discuss and augment information published by the mainstream print and broadcast media.

1.8 At the same time, there is also a growing body of research on jurors which challenges traditional understandings of juror decision making.^[10]

1.9 Accordingly, and as well as the long-standing technical issues noted above, these developments reinforce the need for a reconsideration of the law of contempt of court, in particular the law of sub judice contempt and the way in which jury trials are protected from potentially prejudicial material.

1.10 However, as discussed below, the terms of reference are broader than solely a focus on sub judice contempt.

1.11 The terms of reference require the Commission to consider all types of contempt, as well as the Judicial Proceedings Reports Act, the Open Courts Act 2013 (Vic) and the legal framework for the enforcement of prohibitions or restrictions on the publication of information.

1.12 As such the reference is an opportunity for a thorough review of the measures available to the courts to ensure the proper administration of justice, and in particular a fair trial, with a view to ensuring such measures remain fit for the modern era. At its heart is the question of what measures are required by the courts to ensure the proper administration of justice. Are existing measures as provided for by the law of contempt of court, the Judicial Proceedings Reports Act and the Open Courts Act still appropriate or are they in need of reform? In this context, and if it is considered these laws are in need of reform, the question arises as to what extent should such laws, in particular the common law of contempt of court, be replaced by statutory provisions? Should such legislative reform be confined to minor technical amendments incorporated into existing legislation or alternatively should such legislative reform entail major change, for example by full codification of the common law of contempt of court.

Key principles of law relevant to this inquiry

The proper administration of justice

1.13 The proper administration of justice is a principle of fundamental importance in our society as an aspect of the integrity of the courts, and is the cornerstone of the Commission’s review. As Lord Diplock has stated, the principle of the proper administration of justice requires that all citizens:

• have unhindered access to the courts for the determination of disputes as to their legal rights and liabilities;

• be able to rely on obtaining in the courts a decision free from bias based on the facts proved in evidence properly adduced; and

• once the dispute has been submitted to the court, be able to rely on there being no usurpation by any other person of the function of that court to decide the dispute according to law.^[11]

1.14 This principle is therefore broad and overarching.

1.15 However the principle of the proper administration of justice can sometimes be in tension with other constitutional, statutory or common law rights and principles. This includes at common law:

• the principle of open justice, which to maintain confidence in the integrity and independence of the courts requires that the administration of justice take place in open court^[12]

• the right of an accused to receive a fair trial according to law, or what the High Court has described as ‘a right not to be tried unfairly’, and which is ‘manifested in rules of law and practice designed to regulate the course of a trial’,^[13] including procedural fairness, natural justice, the right to be heard and the rule against bias

• the recognition of the victims’ interests ‘as part of a modern conception of fairness and a fair trial’^[14]

1.16 In support of these common law rights and principles, the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) provides that:

• A person must not be subjected to arbitrary arrest or detention, and must not be deprived of their liberty except on grounds and in accordance with procedures established by law and must be promptly informed about any proceedings to be brought against them^[15]

• A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.^[16]

• A court or tribunal may exclude members of media organisations or other persons or the general public from all or part of a hearing if permitted to do so by law.^[17]

• All judgments or decisions made by a court or a tribunal in a criminal or civil proceeding must be made public unless the best interests of a child or otherwise requires or a law otherwise permits.^[18]

• A person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law, to be informed promptly and in detail of the nature and reason for the charge and to have adequate time to prepare their defence.^[19]

Freedom of expression

1.17 The Charter also provides that every person has the right to hold an opinion without interference and a right to freedom of expression.^[20] These Charter rights are supported by the common law and rules of statutory interpretation which also provide ‘partial protection’ for freedom of expression.^[21]

1.18 In addition, the Australian Constitution provides for the protection of freedom of communication about government or political matters, so as to enable people to make free and informed choices as electors.^[22] The effect of this implied freedom is to prevent Parliament and the executive government from exercising their powers to curtail the implied freedom. It does not confer personal rights on individuals.^[23] It is a constitutional limit on both statute and the common law.^[24] However it remains uncertain whether the implied freedom protects discussion about the exercise of federal and state judicial power and the workings of the courts and the judiciary.^[25]

1.19 As the courts have recognised, freedom of expression must sometimes be restrained to protect other aspects of the public interest, such as the administration of justice.^[26] As Brennan J noted in R v Glennon:

Free speech is not the only hallmark of a free society, and sometimes it must be restrained by laws designed to protect other aspects of the public interest. Thus the law of contempt of court seeks to strike a balance between the two competing public interests [in the integrity of the administration of justice and in freedom of expression] … The integrity of the administration of justice in criminal proceedings is of fundamental importance in a free society. Freedom of public expression with respect to circumstances touching guilt or innocence is correspondingly limited.^[27]

1.20 However, as Justice Stephen has observed, while the administration of justice and freedom of expression can conflict, they can also sometimes complement each other:

a fair and proper administration of justice provides the only available safeguard of the citizen when freedom of speech is unlawfully denied; and it is only in an open society, where freedom of scrutiny and expression prevails, that justice is likely to be fairly administered.^[28]

Privacy

1.21 As already noted, the principle of open justice is critical to the proper and effective administration of justice. However, such openness can come at the cost of a person’s privacy.^[29] Victims, witnesses and others, such as people who work in courts, may also be exposed to undue trauma or intimidation through their participation in the criminal justice process. For victims, giving evidence and being cross-examined about a traumatic event can be highly distressing due to the publicity of trials and the need for evidence to be properly tested in court.^[30] Victims may also encounter accused persons and their family members and supporters in courtrooms and court precincts, which can expose them to intimidation.^[31]

1.22 In this context, the Victims Charter Act 2006 (Vic) provides that a victim’s privacy is to be protected and that their personal information is not to be disclosed.^[32]

1.23 The Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) also provides that every person has the right not to have his or her privacy unlawfully or arbitrarily interfered with and not to have his or her reputation unlawfully attacked.^[33]

1.24 In this context and in relation to child victims, the Charter provides that every child has the right, without discrimination to such protection as is in his or her best interests and is needed by him or her by reason of being a child.^[34]

An underlying tension

1.25 Underlying this review is a tension between:

• the need to safeguard the proper and effective administration of justice^[35]

• freedom of expression and freedom to criticise public institutions^[36]

• the protection of a person’s privacy and reputation.

1.26 As such, this review is fundamentally concerned with how the common law of contempt of court, the Judicial Proceedings Reports Act and the Open Courts Act should be reformed to better accommodate and balance these often competing and conflicting principles.

1.27 However, in considering options for reform and the impact on the principles noted above, the Commission must be mindful of the principle of legality, which rests on the assumption that ‘unless clear words are used, the courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms’.^[37]

Question

1 What other principles of law, if any, are relevant to the Commission’s consideration of the laws the subject of this review?

A principles-based approach

1.28 The principles identified above provide the framework for the Commission’s consideration of the laws the subject of this review.

1.29 As will be discussed, the law of sub judice contempt and scandalising contempt, as well as the Open Courts Act and the Judicial Proceedings Reports Act, all limit freedom of expression and curtail the principle of open justice. They do this to ensure the proper and effective administration of justice, particularly as it applies in criminal proceedings, by seeking to protect the courts’ decision-making process and to prevent jury access to extraneous materials.

1.30 In addition, both the Open Courts Act and the Judicial Proceedings Reports Act limit freedom of expression and curtail the principle of open justice for the purpose of protecting a person’s privacy and reputation. However such laws can also operate to shield offenders from public accountability and prevent a victim who wishes to speak from doing so.

1.31 Finally, the common law of contempt in the face of the court, in seeking to ensure the proper administration of justice by enabling the judicial officer to immediately and summarily address any interference with proceedings, can also operate to deny an alleged contemnor a fair hearing before a competent, independent and impartial court, contrary to the principle of a fair trial.

1.32 These issues are explored further in following chapters.

1.33 Accordingly, in considering what reforms to the common law of contempt of court, the Judicial Proceedings Reports Act and the Open Courts Act are necessary to ensure the proper administration of justice, the Commission adopts a principles-based approach. The Commission does this by:

• considering each of the identified laws from the perspective of what is required for the proper administration of justice at the same time as balancing the need for open justice, the right to freedom of expression and the need to protect a person’s privacy and reputation.

• articulating some of the principles underlying each of the identified laws

• identifying some of the assumptions which have informed the development and application of each of the identified laws

• evaluating each of the identified laws in terms of how they operate to ensure the proper administration of justice

• discussing options for reform from within that principled context, including whether there is a need for legislative reform to replace the common law of contempt of court with statutory provisions.

Scope of this review

1.34 The terms of reference ask the Commission to review and report on the law relating to contempt of court, the possible reform of the Judicial Proceedings Reports Act and the legal framework for the enforcement of prohibitions or restrictions on the publication of information. In considering this last issue the terms of reference also ask the Commission to look at the Open Courts Act.

1.35 The terms of reference therefore encompass three distinct but related sources of law:

• the common law of contempt of court

• the Judicial Proceedings Reports Act

• the Open Courts Act.

Contempt of court

1.36 The terms of reference ask the Commission to consider all types of contempt. In undertaking this review, the Commission focuses on the most common and problematic manifestations of the common law of contempt of court, namely:

• contempts in or near the courtroom—also known as contempt in the face of the court

• juror contempt

• disobedience contempts arising from non-compliance with court orders or undertakings

• contempts by publication that interfere with or prejudice pending proceedings—also known as sub judice contempt

• contempts by publication that interfere with the administration of justice as a continuing process—also known as contempt by scandalising the court.

1.37 Each of these manifestations of contempt is outlined in Chapter 2, together with an overview of some of the unique features of the law of contempt of court. Key issues in relation to each of the most common and problematic manifestations of contempt of court, together with some options for reform, are then set out in Chapters 4–8. Chapter 3 considers some general issues with the law of contempt of court.

1.38 Where relevant, other forms of contempt of court are noted by way of comparison but are not the focus of the Commission’s review. These other forms of contempt are also briefly discussed in Chapter 2.

1.39 This review does not consider contempt arising in other contexts, such as contempt of parliament or contempt of tribunals or commissions of inquiry, as these types of contempt are outside the Commission’s terms of reference.

1.40 However, tribunals such as the Victorian Civil and Administrative Tribunal are also regularly confronted with issues of contempt, in particular contempt in the face of the court and disobedience contempt, and are empowered to deal with such contempts under their constituting legislation.^[38] Similarly, other bodies or persons with a quasi-judicial role, such as the Chief Examiner, are also confronted with issues of contempt, and have statutory powers to address such contempts.^[39] Accordingly, the broader implications of any reforms to the common law of contempt of court for Victoria’s court system as a whole, including tribunals and other bodies with a quasi-judicial role, will be considered by the Commission in undertaking this review.

The Judicial Proceedings Reports Act 1958 (Vic)

1.41 The terms of reference ask the Commission to consider whether there is a need to retain the provisions of the Judicial Proceedings Reports Act and if so, whether such provisions should instead be contained in subject-specific legislation or in the Open Courts Act. These issues are considered in Chapter 9.

1.42 The terms of reference also ask the Commission to consider the Judicial Proceedings Reports Act in the context of the enforcement of prohibitions and restrictions on publication. Accordingly, the Act is also considered as part of the broader consideration of the enforcement of prohibitions and restrictions on publication discussed in Chapter 10.

The Open Courts Act 2013 (Vic)

1.43 In considering the enforcement of prohibitions and restrictions on the publication of information, the terms of reference ask the Commission to consider the law relating to contempt of court, the Judicial Proceedings Reports Act and the Open Courts Act.

1.44 Accordingly, and given its recent comprehensive review by the Hon. Frank Vincent AO QC in the Open Courts Act Review, the Commission’s consideration of the Open Courts Act is limited to the issues expressly identified in the terms of reference, which includes existing suppression orders made before the commencement of that Act which do not contain an end date. These issues are discussed in Chapter 10.

1.45 This review does not consider other legislation with prohibitions or restrictions on the publication of information, except as may be required by the terms of reference by way of comparison.

Previous reviews and reforms

Reviews and reforms of contempt of court

1.46 As noted above, there have been many reviews of the common law of contempt of court both in Australia and overseas. Indeed in the last 45 years, there have been at least 13 reviews of different aspects of the law of contempt of court, including four reviews each in Australia and the United Kingdom, and two reviews in Ireland. A summary of these other reviews including terms of reference, key recommendations and reform implementation status is set out at Appendix B.

1.47 As a result of these reviews there has been legislative change in the United Kingdom,^[40] New South Wales,^[41] and in Australia to the Family Law Act 1975 (Cth).^[42]

1.48 At the time of writing, New Zealand and Ireland each have Bills before their respective parliaments to reform aspects of their contempt of court laws.^[43]

1.49 In 1984 a Bill to reform the Canadian law of contempt of court was introduced to the Canadian parliament but was never passed.^[44]

Review of the Open Courts Act

1.50 As already noted, in March 2018 a report in relation to the Open Courts Act by the Hon. Frank Vincent AO QC, the Open Courts Act Review,^[45] was published. The report made 18 recommendations to ensure that suppression orders are used only where absolutely necessary. These recommendations are set out at Appendix C.

1.51 The terms of reference require the Commission to have regard to the recommendations of the Open Courts Act Review. Accordingly, the recommendations of the Open Courts Act Review are considered in this consultation paper where relevant.

1.52 The Victorian Government has also committed to giving effect to the recommendations of the Open Courts Act Review.^[46]

1.53 On 2 May 2019, as a first stage of suppression order reforms, the Parliament of Victoria passed the Open Courts and Other Acts Amendment Act 2019 (Vic).^[47] This Act amends existing laws to reinforce the presumption in favour of open justice and the disclosure of information in Victorian courts. The Act requires suppression and closed court orders to be used only when necessary, such as where publication of information would be unfair or would risk harming victims or other parties.

Other reviews

1.54 A number of other reviews both in Australia and overseas are relevant and may have implications for the Commission’s review. These include:

• the Victorian Department of Justice and Community Safety review into the use of judge-alone trials for criminal cases, currently underway^[48]

• the New South Wales Law Reform Commission review on the operation of legislative prohibitions on the disclosure or publication of New South Wales court and tribunal information, New South Wales court suppression and non-publication orders, and tribunal orders restricting disclosure of information, and access to information in New South Wales courts and tribunals, announced in February 2019^[49]

• the Senate Select Inquiry on the Future of Public Interest Journalism report tabled in the Australian Parliament in February 2018^[50]

• the Australian Competition and Consumer Commission Digital Platforms Inquiry, the preliminary report and recommendations for which were published in December 2018^[51]

• in the United Kingdom, the Cairncross Review on a sustainable future for journalism report published on 12 February 2019.^[52]

Conduct of this reference

Commission Chair

1.55 This reference was commenced under the leadership of the Hon. Philip Cummins AM, who was Chair of the Commission from 1 September 2012 until his death on 24 February 2019.

1.56 On 4 March 2019 Mr Bruce Gardner PSM was appointed Acting Chair of the Commission. Mr Gardner has continued to lead the conduct of the reference and the preparation of this consultation paper.

Division

1.57 In accordance with section 13(1)(b) of the Victorian Law Reform Commission Act a Division has been constituted to guide and oversee the conduct of the reference. All members of the Commission are members of the Division.

Advisory committee

1.58 Committees of experts often assist the Commission in identifying issues and exploring options for reform, although they are not involved in developing or voting on the Commission’s recommendations. They are a valuable source of advice and the Commission appreciates the time and expertise that the members contribute.

1.59 Given the technical nature of many aspects of this reference, an advisory committee comprising experts on the law of contempt of court and in the understanding of juror decision making has been formed for this reference.

1.60 The first meeting of the advisory committee was held on 21 February 2019 to assist the Commission in identifying key issues. A further meeting will be held in the middle of the year to discuss reform options. The members of the advisory committee are listed at Appendix A.

Preliminary meetings

1.61 To help inform the development of this consultation paper and as part of its research, the Commission has conducted preliminary meetings with representatives of key stakeholders from the courts and the judiciary, and academics.

1.62 The purpose of these meetings was to enable the Commission to gain an understanding of some of the key issues, and to start identifying proposals and options for reform.

1.63 These preliminary meetings do not form part of the Commission’s formal consultations for this reference. Formal consultations will be conducted in conjunction with the publication of this consultation paper, along with a call for public submissions.

Consultation paper

1.64 The Commission’s preliminary consultations and other research form the basis of this consultation paper.

1.65 This consultation paper does not represent any final conclusions or views on the matters raised.

Formal consultation process

1.66 The next stage of the reference will involve consulting with a wide range of stakeholders, interested organisations and individuals to further examine the issues raised in this consultation paper, to identify additional issues and to develop and test options for reform.

1.67 The Commission also welcomes submissions from the broader community.

1.68 The feedback and information the Commission receives from submissions and consultations, combined with additional research, will inform its recommendations to the Attorney-General.

1.69 A report setting out the Commission’s recommendations will be provided to the Attorney-General by the reporting date of 31 December 2019. Within 14 sitting days of receipt of the report, the Attorney-General must table the report in the Victorian Parliament. The Victorian Government will decide whether to implement the Commission’s recommendations and if so whether to do so by legislative change.

How to use this consultation paper

1.70 The terms of reference and the law of contempt of court are such that this is necessarily an expansive consultation paper, encompassing many different aspects. However, it is also understood that some readers may wish to focus on a particular issue or type of contempt.

1.71 Accordingly, readers should note the following:

• Chapter 2 sets out the existing legal framework for contempt of court, outlining the law’s purpose and identifies some of its unique features. It also provides a brief overview of the key manifestations of contempt which are discussed in detail in subsequent chapters. This chapter does not contain any questions.

• Chapter 3 discusses general issues with the law of contempt of court, including the scope of the law and the procedures to be applied generally, the overlap with general criminal law, the penalties that may be imposed and the place of warnings. A number of options for reform are outlined together with some questions for consideration. This includes the broad question of whether the courts today still require a general power to punish any conduct that has a tendency to interfere with the proper administration of justice.

• Chapter 4 discusses ‘contempt in the face of the court’, that is, a court’s power to punish behaviour in the courtroom or, possibly, the vicinity of the courtroom which interferes with or tends to interfere with the proper administration of justice. This power is important for the efficient and fair conduct of proceedings and to maintain public confidence in those proceedings. This power is also important for the protection of witnesses, jurors and others with duties to the court, so that they can perform their duties effectively without fear or intimidation. However if this power is exercised arbitrarily it has the potential to jeopardise public confidence in the integrity and authority of the courts. Accordingly, this chapter considers and poses questions about whether there is an appropriate balance between the need for flexibility and the need for certainty in defining what constitutes contempt in the face of the court, and whether there is a need for this aspect of the law to be replaced by statutory provisions. In addition, this chapter considers more broadly whether there is a need for a more consistent approach to disruptive conduct and the potentially disproportionate of impact of this area of the law on some groups of people.

• Chapter 5 discusses what the terms of reference describe as ‘juror contempt’. The chapter notes the broad range of behaviours relating to juries, and that these can be classified broadly as either misbehaviour by or interference with jurors. The chapter also notes that juror behaviour is regulated by the Juries Act 2000 (Vic) and the Jury Directions Act 2015 (Vic). The chapter then focuses on two issues: jurors accessing information about cases and jurors disclosing information. Questions are asked about the need to reform the Juries Act 2000 (Vic), and whether there is a need for courts to also retain the power to deal with common law contempt by jurors. In addition, this chapter considers the place of jury directions and whether there is a need for further education of jurors about their role, functions and duties.

• Chapter 6 discusses ‘disobedience contempt’, that is, the power of the court to deal with a person who fails to comply with a court order or undertaking. The distinction between civil and criminal contempt and the implications this has for proceedings and the procedures that are to be adopted is also considered. This chapter asks questions about whether there is a need to retain this aspect of the common law of contempt, particularly given the availability of other enforcement procedures to secure compliance, and, if it is to be retained, what reforms may be required to clarify its purpose and procedures.

• Chapter 7 discusses the law of ‘sub judice contempt’ which is concerned with ensuring a fair trial by protecting jurors from extraneous information by limiting the information which may be published when legal proceedings are pending. It discusses some of the assumptions underpinning this area of the law and asks the question of whether these assumptions remain valid and appropriate for the modern age, including whether this area of the law of should be retained. In addition, this chapter considers some of the more technical issues and difficulties which are raised by this area of the law. To address these issues, a number of options for reform are then outlined together with some questions for consideration.

• Chapter 8 discusses ‘scandalising contempt’, that is, acts or publications which are calculated to impair public confidence in the judiciary and the courts. The purpose of this aspect of the law of contempt is to protect the courts and the judiciary from attacks and criticism in order to maintain the public’s confidence in the system. However, as this chapter discusses, there are a number of uncertainties in the operation and application of this area of the law, as well as in the underlying assumption on which this law is based. A number of options for reform are outlined together with some questions for consideration—this includes whether the law of scandalising contempt should be abolished, or alternatively if it were to be retained whether it should be replaced by statutory provisions.

• Chapter 9 discusses the four statutory prohibitions on publication in the Judicial Proceedings Reports Act. This chapter considers whether there is a need to retain these prohibitions and if so where they should best be located in the Victorian statute book. As required by the terms of reference, this chapter considers and poses questions about whether a further statutory prohibition is required to temporarily restrict the publication of sensitive information upon the laying of charges in relation to sexual and family violence criminal matters. In addition, this chapter considers and poses questions about how statutory prohibitions which are designed to protect the anonymity of victims can afford appropriate agency and choice to those victims who wish to speak about their experiences.

• Chapter 10 considers the enforcement of prohibitions and restrictions on the publication of information. This chapter involves consideration of the common law of contempt of court, the Judicial Proceedings Reports Act, and the Open Courts Act. It considers and asks questions in relation to issues of the definition of publication, the enforcement of Victorian laws outside of Victoria, the awareness of these laws and the notification of court orders, the monitoring of compliance with these laws, responsibility for bringing proceedings for breach of these laws, fault elements that must be proven to establish breach of these laws, and the adequacy of existing penalties and the defences to alleged breaches of these laws. In addition, and in accordance with the terms of reference this chapter also considers the enforcement of suppression orders with no end date that were made before the Open Courts Act commenced.

1. Attorney-General (Victoria), ‘Major Review of Contempt of Court Laws’ (Media release, 12 October 2018).

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2. A-G (UK) v Leveller [1979] AC 440, 449.

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3. The Queen v Hinch (No 2) [2013] VSC 554, [12]. See also Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 107.

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4. R v Nationwide News Pty Ltd [2018] VSC 572, [29].

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5. See, eg Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors (2014) 47 VR 527, [222] where the court noted ‘the discourse with respect to contempt is littered with language … which is imprecise and potentially confusing’; Hearne v Street (2008) 235 CLR 125, [25] where Kirby J noted that the law of civil contempt ‘lacks conceptual coherence and is replete with uncertainties, inadequacies and fictions’. In this context, in A-G (UK) v British Broadcasting Corporation [1980] 3 All ER 161, 169 Lord Salmon stated that ‘[t]his branch of our law is in urgent need of careful consideration by Parliament’.

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6. See, eg Justice Emilios Kyrou, who noted that the law of contempt of court is a ‘very complex topic’: ‘Courts: the Independent, Low Profile Third Arm of Government’ (Speech, La Trobe Law Students’ Association, 17 August 2017).

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7. See, eg Committee on Contempt of Court (UK), Report of the Committee on Contempt of Court (December 1974); The Law Reform Commission, Contempt (Report No 35, December 1987); Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003); New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003); Law Commission (England and Wales), Contempt of Court: Scandalising the Court (Report No 335, 2012); Law Commission (England and Wales), Contempt of Court (1): Juror Misconduct and Internet Publications (Report No 340, 2013); Law Commission (England and Wales), Contempt of Court (2): Court Reporting (Report No 344, 2014); Law Reform Commission (Ireland), Contempt of Court and Other Offences and Torts Involving the Administration of Justice (Issues Paper, 2016); Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report 140, 2017).

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8. See, eg Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report 140, 2017); Law Commission (England and Wales), Contempt of Court (1): Juror Misconduct and Internet Publications (Report No 340, 2013).

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9. See, eg Ian Cram, Borrie & Lowe: The Law of Contempt (LexisNexis, 4th ed, 2010) Chapter 3: The Impact of Globalisation and New Technology.

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10. See, eg Jacqueline Horan and Mark Israel, ‘Beyond the Legal Barriers: Institutional Gatekeeping and Real Jury Research’ (2016) 49(3) Australian and New Zealand Journal of Criminology 422; Annie Cossins et al, Jury Reasoning in Joint and Separate Trials of Institutional Child Sexual Abuse: An Empirical Study (Royal Commission into Institutional Responses to Child Sexual Abuse, May 2016); Jane Johnston et al, Juries and Social Media: A Report Prepared for the Victorian Department of Justice (Report, 2013); Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012); Roxanne Burd and Jacqueline Horan, ‘Protecting the Right to a Fair Trial in the 21st Century – Has Trial by Jury Been Caught in the World Wide Web?’ (2012) 36 Criminal Law Journal 103; Cheryl Thomas and Nigel Balmer, Diversity and Fairness in the Jury System (Ministry of Justice Research Series No 2/07, 2007); Law Commission (New Zealand), Juries in Criminal Trials Part Two – A summary of the research findings (Preliminary Paper, 1999).

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11. A-G (UK) v Times Newspapers Ltd [1974] AC 273, 309.

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12. Scott v Scott [1913] AC 417, 435 (Viscount Haldane LC), 441 (Earl of Halsbury). However this principle is not absolute. See also Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J); Hogan v Hinch (2011) 243 CLR 506, 531–2 [21–22] (French CJ).

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13. Dietrich v The Queen (1992) 177 CLR 292, 299–300 (Mason CJ, McHugh J).

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14. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report, August 2016) 27. See also Jago v District Court of New South Wales (1989) 168 CLR 23, 49–50 where Brennan J stated ‘the court must not forget those who, though not represented, have a legitimate interest in the court’s exercise of its jurisdiction.’

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15. Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 21(2)–(4).

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16. Ibid s 24(1).

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17. Ibid s 24(2).

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18. Ibid s 24(3).

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19. Ibid s 25(1) and (2)(a)–(b).

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20. Ibid s 15. However the Charter also provides that this right is not absolute and may be subject to lawful restrictions reasonably necessary to respect the rights and reputation of other persons or for the protection of national security, public order, public health or public morality.

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21. Tajjour v NSW (2014) 313 ALR 221, [28]; Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1998) 154 ALR 67, 76–7 (French J).

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22. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 560; Peter Hanks, Frances Gordon and Graeme Hill, Constitutional Law in Australia (LexisNexis Butterworths, 4th ed, 2018) 696 [10.237].

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23. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 560.

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24. Ibid 568; Wotton v Commonwealth (2012) 246 CLR 1, 13 [20] (French CJ, Gummow J, Hayne J, Crennan and Bell JJ) citing Coleman v Power (2004) 220 CLR 1, 77 [195] (Gummow and Hayne JJ).

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25. See, eg APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322, 360–1 [63]–[66], 439–40 [346]–[347] (Kirby J), citing; Cunliffe v Commonwealth (1994) 182 CLR 272, 298–9 (Mason CJ); Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 8–11 [5]–[10] (Winneke ACJ), 51–53 [244]–[252] (Gillard AJA), 103 [499]–[500] (Warren AJA).

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26. R v Glennon (1992) 173 CLR 592, 611–12 (Brennan J), citing Hinch v Attorney-General (Victoria) (1987) 164 CLR 15, 18 (Mason CJ).

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27. R v Glennon (1992) 173 CLR 592, 611–12; See also Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

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28. Victoria v Australian Building Construction Employees’ and Builders’ Labourers’ Federation (1982) 152 CLR 25, 74–5 (Stephen J).

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29. Beverley McLachlin, ‘Courts, Transparency and Public Confidence – To the Better Administration of Justice’ (2003) 8(1) Deakin Law Review 1, 3.

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30. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 34 [3.78].

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31. Ibid 34 [3.79].

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32. Victims Charter Act 2006 (Vic) s 14.

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33. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 13.

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34. Ibid s 17(2).

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35. See, eg, R v Dunbabin; Ex Parte Williams [1935] 53 CLR 434, 448 (Dixon J); Victoria v Australian Building Construction Employees’ and Builders’ Labourers’ Federation (1982) 152 CLR 25, 56 (Gibbs CJ); Hinch v Attorney-General (Victoria) (1987) 164 CLR 15, 18–19, 22 (Mason CJ), citing ; Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242, 249–50 (Jordan CJ); 57 (Deane J); 83 (Gaudron J); Gallagher v Durack (1983) 152 CLR 238, 243 (Gibbs CJ, Mason, Wilson and Brennan JJ) citing; R v Dunbabin v Ex Parte Williams [1935] 53 CLR 434, 447 (Dixon J); Attorney-General v Times Newspapers Ltd [1974] AC 273, 294 (Lord Reid); 302 (Lord Borth-Y-Gest); 322 (Lord Cross of Chelsea).

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36. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 34 (Mason CJ); Gallagher v Durack (1983) 152 CLR 238, 246 (Murphy J).

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37. Momcilovic v The Queen (2011) 245 CLR 1 177–8 [444] (Heydon J)

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38. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 137.

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39. Major Crime (Investigative Powers) Act 2004 (Vic) s 49.

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40. Contempt of Court Act 1981 (UK); Criminal Justice and Courts Act 2015 (UK).

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41. Court Information Act 2010 (NSW).

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42. Family Law Amendment Act 1989 (Cth).

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43. See Administration of Justice (Reform of Contempt of Court) Bill 2018 (NZ). This Bill has also been considered by the Justice Committee who recommended the Bill be passed with amendment. Justice Committee, Administration of Justice (Reform of Contempt of Court) Bill (Final Report, 5 April 2019); Contempt of Court Bill 2017 (Ireland).

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44. Criminal Law Reform Act 1984, Bill C-19, 32nd Parl., 2d sess., 1983–84 (1st reading 7 February 1984) cited in Linda Faust ‘Contempt of Court’ [1984] 16 Ottawa Law Review 316.

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45. Frank Vincent, Open Courts Act Review (2017) <https://engage.vic.gov.au/open-courts-act-review>.

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46. Attorney-General (Victoria), ‘First Stage of Suppression Order Overhaul Begins’ (Media release, 19 February 2019).

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47. Open Courts and Other Acts Amendment 2019 Act (Vic).

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48. Farrah Tomazin and Sumeyya Ilanbey, ‘Andrews Government Considers ‘Judge-only’ Trials for Criminal Cases’, The Age (Web Page, 13 December 2018) <www.theage.com.au/national/victoria/andrews-government-considers-judge-only-trials-for-criminal-cases-20181213-p50m5u.html>.

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49. Attorney-General (New South Wales), ‘Open Justice Under Examination’ (Media release, 28 February 2019).

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50. Public Interest Journalism Committee, Parliament of Australia, Future of Public Interest Journalism (Final Report, February 2018, February 2018).

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51. Australian Competition & Consumer Commission, Digital Platforms Inquiry (Preliminary Report, December 2018).

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52. Culture Department for Digital, Media and Sport (UK), The Cairncross Review: A Sustainable Future for Journalism (February 2019).

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