Contempt of Court: Consultation Paper (html)

8. Contempt by publication (2)—scandalising the court

Introduction

8.1 This chapter considers the manifestation of contempt which addresses acts or publications calculated to impair the public’s confidence in the judiciary.^[1] This type of contempt is also known as ‘contempt by scandalising the court’ and ‘scandalising contempt’.

8.2 Scandalising contempt was justified by the High Court in Gallagher v Durack (Gallagher) on the following basis:

The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges.^[2]

8.3 The offence is aimed at protecting the administration of justice as an ongoing process, meaning the scope of this law is not limited to publications that comment on a specific trial.^[3] Rather, the offence covers publications which comment on the courts and judges generally. Such publications commonly fall within the category of either ‘scurrilous abuse’^[4] or accusations of partiality.^[5]

8.4 Examples of comments that have been held to constitute scandalising contempt include:

• calling a judge a ‘cretin’ in the presence of the media^[6]

• suggesting that an individual or group of persons, such as a union, can influence a judge’s decision^[7]

• allegations that the judge was racist and that this influenced the judge’s decision^[8]

• allegations that judicial officers were biased and corrupt^[9]

• reprimanding judicial decisions.^[10]

8.5 The principles engaged by scandalising contempt were summarised by Justice Cummins in the Victorian Supreme Court case Anissa v Parsons:

First, proceeding for contempt of court is not and must not be in diminution of free speech. Second, proceeding for contempt of court is to preserve the administration of justice. Third, proceeding for contempt of court is not to protect the individual person of the judge.^[11]

8.6 There are a number of uncertainties in the operation and application of the offence, as well as in the assumption on which the law is based—that the judiciary requires special protection from attacks and criticism in order to maintain the public’s confidence in the system.^[12]

8.7 Not only is there a lack of empirical evidence behind this assumption, but ‘public confidence’ is also a vague and developing concept which may be interpreted differently by the judiciary and may change over time, creating uncertainty around the scope of the law.^[13]

8.8 Further, in today’s political and social environment, public debate and freedom of expression are highly valued and considered a necessary part of democracy.^[14] The nature of criticism has also changed, as well as the technology available to disseminate and access information.^[15]

8.9 In this context, the ongoing adaptability of and need for the law of scandalising contempt and the assumptions on which it is based are being questioned.^[16]

8.10 In the United Kingdom the law of scandalising contempt has been abolished.^[17] Long before then, the courts in England had considered scandalising contempt ‘virtually obsolescent’.^[18] Similarly, in the United States and Canada the law has been found to be incompatible with their respective constitutional rights to freedom of expression.^[19] Conversely, the New Zealand Law Commission (NZ Commission) has recommended that the law of scandalising contempt be retained and replaced by statutory provisions.^[20]

8.11 In Australia, the law of scandalising contempt continues to apply and to be raised as an issue by the courts.^[21] In Victoria, scandalising contempt was raised in 2017 in relation to comments made by three federal ministers about the approach of the Court of Appeal in DPP v Besim; DPP v MHK when considering the adequacy of a sentence for a person who had pleaded guilty to terrorism charges.^[22] In 2019 members of the media were also accused of committing scandalising contempt when reporting on the Victorian County Court criminal trial of George Pell.^[23]

8.12 Given the purpose of the law is to protect the integrity and authority of the court, unique issues arise in relation both to the operation and scope of the offence and to the broader assumptions and policies underlying the law. Accordingly, this chapter considers the following issues:

• the definition and scope of the law

• whether scandalising contempt is a necessary and relevant law in today’s modern context

• the approach of different jurisdictions

• whether reform of the offence is required.

Issues with the law of scandalising contempt

The uncertain test

8.13 In 1935 the High Court stated in R v Dunbabin; Ex Parte Williams (Dunbabin) that scandalising contempt was constituted by:

publications which tend to detract from the authority and influence of judicial determinations; publications calculated to impair the confidence of the people in the Court’s judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office.^[24]

8.14 A number of cases have described this test as an ‘inherent tendency’ to interfere with the administration of justice.^[25] As is the case with other forms of contempt, the test does not require that the administration of justice was in fact undermined or discredited, but rather that a risk existed. There is also no requirement that there be any intention to interfere on the part of the publisher^[26] but it appears that an intention to publish is needed.^[27]

8.15 There is some guidance from the courts as to the scope of the test. For example, it has been stated that the act or publication must pose a ‘real’ or ‘serious’ risk as opposed to a remote possibility that the publication will undermine public confidence in the administration of justice.^[28]

8.16 Similarly to sub judice contempt, however, the ‘inherent tendency’ test has been criticised for being imprecise, broad and as setting a low threshold, thereby infringing on freedom of expression.^[29]

8.17 In particular, ‘tendency’, ‘calculated to impair’ and ‘public confidence’ are all vague and general concepts leaving room for doubt as to what would constitute a scandalising contempt.

8.18 In his dissenting judgment in Gallagher, Justice Murphy stated that the offence is so ‘vague and general that it is an oppressive limitation on free speech’.^[30] In light of this, he supported the higher threshold test used in the United States, that the ‘substantive evil be extremely serious and the degree of imminence extremely high before utterances can be punished’.^[31] It is noted, however, that the US jurisdiction should be treated with some caution, given its constitutional right to freedom of speech.^[32]

8.19 The Australian Law Reform Commission (ALRC) also noted the vague and abstract notion of ‘public confidence’.^[33] The Commission stated that there was a lack of evidence as to what the Australian public expects of judges and the courts and instead there was a reliance on the courts to guess what those expectations might be.^[34]

8.20 In addition, judicial attitudes, community expectations and the political climate are always changing, meaning there can be a lack of consistency in determining what does or does not have an inherent tendency to undermine the integrity and authority of the courts.^[35]

Balancing scandalising contempt and fair criticism

8.21 The court has stated that a comment about the courts or a judge may be scandalising contempt if it is either ‘scurrilous abuse’,^[36] or ‘excites misgivings as to the integrity, propriety and impartiality brought to the exercise of judicial office’.^[37]

8.22 However, it is well established that criticism, even if ‘colourful and vitriolic’,^[38] is not a contempt if it is fair, does not impute improper motives to a judge and is made in good faith.^[39]

8.23 The courts have recognised that there is a delicate balance between protecting the public’s confidence in the judiciary and fair criticism and that fair criticism is a necessary component of the administration of justice.^[40]

8.24 It remains unclear, however, when allegations of partiality or impropriety may be properly distinguished from fair or ‘intemperate, yet permissible, criticism’.^[41] This problem was stated by Justice Hope in the New South Wales case A-G v Mundey:

It is this qualification which must cause the greatest concern for any would-be critic, for its application in particular circumstances can give rise to great difficulty; it is certainly not every such criticism that amounts to contempt, and the boundary between what is and what is not contempt involves questions of degree, and therefore uncertainty.^[42]

8.25 There have been some decisions which have distinguished a fair criticism from an allegation of partiality or impropriety. For example, the following statements were held not to constitute scandalising contempt:

• suggesting that a ‘Judge may, in his approach to a problem be influenced by his character and general outlook’^[43]

• suggesting a judge or court has been influenced by a particular matter, provided the comment is not scurrilous^[44]

• commenting on a statement made by a judge which in itself impairs the public’s confidence in the courts^[45]

• suggesting improper motives if the judge in question is deserving of that accusation.^[46]

8.26 The changing boundaries of the law of scandalising contempt can make it difficult to predict and adhere to.^[47]

Truth as a defence

8.27 Truth as a defence ‘implicitly’^[48] arises from the aim of scandalising contempt to prevent ‘baseless’,^[49] ‘unwarrantable’^[50] and ‘unjustified’^[51] attacks on the integrity of the courts. That is, if the criticism is based on fact or is justifiable, the offence of scandalising contempt may not be made out.

8.28 The obiter comments of Justice Brennan in the High Court case of Nationwide News Pty Ltd v Wills in 1992 appears to suggest that the truth is a defence to scandalising contempt:

It is not necessary, even if it be possible, to chart the limits of contempt scandalizing the court. It is sufficient to say that the revelation of truth—at all events when its revelation is for the public benefit—and the making of a fair criticism based on fact do not amount to a contempt of court though the truth revealed or the criticism made is such as to deprive the court or judge of public confidence.^[52]

8.29 However, it is unclear whether truth operates as a complete defence as it does in defamation.^[53] Academic Oyiela Litaba noted that, given the severe punishment that can arise from the offence, there was still too much unpredictability as to how scandalising contempt could be proved and defended.^[54]

8.30 The ALRC noted that without a defence of truth:

[W]ell-founded allegations of judicial misconduct may be punished and, more importantly, people in possession of sound evidence establishing judicial misconduct may be restrained from revealing it publicly out of fear of being convicted of contempt. The public scrutiny which is necessary to ensure the proper functioning of any social institution of major importance will thus be significantly hampered in the case of the judiciary, and a dangerous tradition of excessive deference to the judiciary may arise within the media and the community at large.^[55]

8.31 To clarify this aspect of the law of scandalising contempt, the ALRC recommended that a defence of justification should be introduced.^[56]

8.32 The Law Reform Commission of Western Australia recommended that the same defences that apply to defamation, including truth and fair comment, should apply to the recommended statutory offence of scandalising contempt.^[57]

8.33 The NZ Commission also recommended a statutory defence of truth similar to the defence available in the jurisdiction’s defamation legislation.^[58] The Commission stated:

The defence of truth exists in defamation law because an individual cannot claim damage to a reputation that he or she does not have. Similarly, a defendant cannot be said to be responsible for undermining public confidence in the judiciary where the allegations made are in fact true.^[59]

8.34 An identified problem with having a defence of truth, however, is that it could have the effect of putting the judge on trial and exposing the judge’s conduct to external scrutiny.^[60]

Prosecution of high-profile individuals

8.35 The relevance of the status and influence of an individual^[61] when prosecuting for scandalising contempt has been criticised, particularly when an accused is prosecuted to the exclusion of the media outlets which published the statement.^[62]

8.36 Justice Murphy in the High Court decision of Gallagher stated in his dissenting judgment:

The authority and standing of the Federal Court can only be lowered if it allows itself to become the vehicle of unexplained selective prosecutions for contempt of itself.^[63]

8.37 The ALRC also noted that the effect of selective prosecution of influential speakers and writers is dangerous.

This concentration on public figures and the media may be justified on the broad basis that power demands responsibility. But it has its dangers. At worst, the law of scandalising can become, or appear to be, an overt political weapon used against prominent individuals who ‘challenge the system’.^[64]

8.38 The Court of Appeal’s decision to hold a hearing in relation to potential charges of contempt against three federal ministers is another more recent example of high-profile individuals being the focus of potential contempt proceedings.^[65] In these circumstances, however, the publishing media outlet, The Australian, was also included as a party.

8.39 In the cases where the original speaker of the statement and the publicising media have both been prosecuted and convicted, there was a distinct connection between the first speaker and publishing media.^[66]

The appropriateness of the summary procedure

8.40 The appropriateness of the summary procedure for scandalising contempt cases has been repeatedly affirmed by the courts.^[67] Justice Dixon stated the justification for this procedure:

It is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority. But it must be done by judicial remedies, and judicial remedies are necessarily administered by the Courts themselves. The Court must, therefore, undertake the task notwithstanding the embarrassment of considering what it should do in relation to an attack upon itself. There is no practicable alternative.^[68]

8.41 The courts have also recognised that, given the broad purpose of scandalising contempt—to protect the authority and integrity of the court—the summary procedure should be invoked only in exceptional^[69] or extremely serious^[70] circumstances and not to protect judges from personal attacks.^[71]

8.42 Despite these acknowledgements of the need for judicial restraint in exercising the summary procedure to punish for scandalising contempt, the process has been the subject of criticism.^[72]

8.43 The varying criticisms arise from the apparent contradiction that the impartial and fair institution of the judiciary should be responsible for prosecuting its own critics and the risk that a judgment against a critic could be perceived as the courts protecting their own interests.^[73]

8.44 The Law Commission of England and Wales, in its review of scandalising contempt, stated:

There is something inherently suspect about an offence both created and enforced by judges which targets offensive remarks about judges.^[74]

8.45 The ALRC, which recommended that a trial by jury be the appropriate mode of procedure for scandalising contempt,^[75] summarised a range of arguments against the current summary procedure:

• The current procedure could possibly be seen as biased and any sentencing that might result could be perceived as a ‘gut reaction’ of the court rather than a measured response.^[76]

• A jury trial is not available for less serious crimes, so if it is not available in the context of scandalising contempt, then should a prosecution be brought at all? ^[77]

• Given the importance of the opinions of the ‘common person’, would a jury trial not be more appropriate to counter the risk of a judge alone being out of touch with the community? ^[78]

8.46 The NZ Commission also raised the question of whether the efficiency of the summary procedure was necessary for scandalising contempt, given the offence is protecting not a particular trial but administration of justice as an ongoing process.^[79]

Apologies and retractions

8.47 As the courts have recognised, apologies can work to either prevent a prosecution or mitigate a sentence in any case of contempt. ^[80] As the ALRC has also recognised, this is particularly relevant to scandalising contempt because it is:

avowedly concerned with the impairment of public confidence in the administration of justice. It is anomalous that an apology to the court itself should be thought to have some effect in restoring such confidence—which by hypothesis has been damaged, or at least jeopardised, by the scandalising remarks in question—while there is no explicit recognition that a publicised apology might be effective to do this.^[81]

8.48 As discussed in Chapter 3, three federal ministers purged their alleged scandalising contempt following an apology.^[82]

8.49 However, as also discussed in Chapter 3, there is uncertainty around when and how an apology should be made for an alleged contempt and how it may affect a prosecution or sentencing for scandalising contempt.

8.50 The ALRC noted that the concept of apologies and retractions in defamation law could be a useful guide for how they should operate in scandalising contempt.^[83]

8.51 In this context it is noted that the Defamation Act 2005 (Vic) provides that an apology made by the defendant to the plaintiff or the publication of a correction can be considered in the mitigation of damages.^[84]

Is the law of scandalising contempt adaptable and relevant?

8.52 This part of the chapter considers the assumption that public confidence in the judiciary must be maintained to ensure the proper administration of justice.

8.53 The evidence behind this assumption is lacking and requires testing, as was stated by former Chief Justice Sir Anthony Mason:

Judges associate public confidence in the administration of justice with the independence of the judiciary and impartial enforcement of the law. That may well be right, though, in the absence of proof, it necessarily rests on that assumption. Whether the public appreciates the concept of judicial independence and values it highly may be questionable.^[85]

8.54 The ALRC summarised the ‘principal responses’ to the argument that public confidence is needed to support the judicial system:

• There is no clear evidence that a lack of public confidence could lead to the operation of the legal system being negatively impacted.^[86]

• It is short-sighted to expect that the public might ‘rise up’ and destroy the system if public discussion, education and criticism were to be allowed instead of repressed.^[87]

• Even if public confidence is perceived to be desirable, it should not be an ‘absolute good’ pursued at all costs, ‘[i]n particular, it should not override the need for public education as to the genuine flaws in the system …’.^[88]

8.55 Further, judicial officers have acknowledged that they should be robust in the face of criticism, and that being criticised is part of the job of a judicial officer.^[89] This is reflected in Lord Salmon’s statement in the 1980 United Kingdom case A-G v BBC:

I am and have always been satisfied that no judge would be influenced in his judgment by what may be said by the media. If he were, he would not be fit to be a judge.^[90]

8.56 The assumptions underlying scandalising contempt and the available evidence testing these assumptions are considered in three contexts. These are:

• the nature of criticism of the judiciary today in the context of new and emerging issues, acceptance of greater scrutiny of the courts and the impact of online and social media

• the global shift towards freedom of speech and the impact of the implied freedom of political communication

• alternative avenues for dealing with criticism of the court today and whether they provide a more appropriate balance between maintaining the integrity and authority of the court and freedom of speech.

Criticism of the judiciary

8.57 Judicial and community expectations as to what type of criticism may ‘shake the public’s confidence’ have changed over time, as has the nature of communication giving rise to new types of criticism.

8.58 The NZ Commission reflected on these changes and the fact that the expression ‘scandalising’, ‘harks back to a bygone era and no longer reflects the nature of the harm caused by the offence or what the punishment is meant to achieve’.^[91]

8.59 Further, heightened public debate and discussion about the judiciary have been acknowledged as a positive development and in the public’s interest.^[92] This is reflected in the courts’ consideration of ‘the good sense of the community’ as a sufficient safeguard against scandalising comments,^[93] and current ‘Australian standards’,^[94] as well as the apparent acceptance of fair comment and truth as defences to scandalising contempt.^[95]

8.60 However, new issues that have come before the court, such as terrorism^[96] and native title cases,^[97] and the consequent public and media attention, have given rise to a ‘climate of intense scrutiny and criticism’^[98] in the form of sophisticated and concerted campaigns against the judiciary.

8.61 Justice Kirby, speaking extra-curially about the public response to the High Court decision in Mabo v Queensland ^[99] (Mabo) stated that there is concern that:

such an unrelenting barrage of criticism and denigration would, if unabated, undermine the community’s confidence in the courts and acceptance of court decisions. Editorialists might declare that “robust political debate [is] good for the country”. But a lot of judges and lawyers, unused to such unrelenting assaults, had their doubts.^[100]

8.62 Justice Eames in R v Hoser & Kotabi Pty Ltd (Hoser) noted the modern challenges posed by criticism in the form of ‘concerted campaigns’ such as that following the Mabo decision. He stated that there was a difference between criticism which can be ignored and sophisticated, sustained campaigns that require a response from the courts.^[101]

8.63 The changing media landscape has also affected the nature and reach of such criticism.^[102] Justice Eames, for example, noted that past calls for the judiciary to exercise caution before punishing contempt may need to be rethought in the context of mass communication.^[103]

8.64 An example of a campaign of this nature was the local, international and social media response to the George Pell trial. Not only did much of the media coverage allegedly breach a suppression order which was in place to prevent prejudice to Pell’s second trial, but the existence of the suppression order in the first place was implicitly criticised by media outlets which published stories about the ‘Censored’ case.^[104]

8.65 International media outlets also commented on the ‘gag order’ and that such orders were ‘true anachronisms in the digital age’.^[105] In March 2019, the Director of Public Prosecutions commenced proceedings against 36 members of the media for contempt of court, including publications which ‘had the effect of scandalising the court’.^[106] A directions hearing in this case took place in the Supreme Court on 15 April 2019 and the matter has been set down for a further directions hearing on 26 June 2019. The matter is yet to be fixed for hearing.

8.66 Social media has also provided a platform for highly critical, malicious and personal comments to be published about individual judges.^[107] Perspectives differ, however, as to whether this type of content is best ignored, or its cumulative effect is a cause for concern.

8.67 The NZ Commission identified a number of ‘unsavoury websites’ with offensive material about judges, some of which took on a menacing tone and could appear to be ‘official’.^[108] The Commission stated that the risks created by social media should not be ignored and may justify retaining scandalising contempt.

With the internet being a permanent repository of information and with the potential for posts to go viral, we can no longer dismiss attacks on judges on the ground that today’s newspaper is tomorrow’s fire lighter.^[109]

8.68 Academics Marilyn Bromberg and Andrew Ekert identified a gap in the current discourse as to how the judiciary should respond to critical or malicious comments on social media.^[110]

8.69 The ability to filter, police and respond to such comments, however, has been identified as impossible.^[111]

8.70 The Law Commission of England and Wales on the other hand has noted that extreme abuse of judges, mostly online, ‘does not appear to be doing any harm. The very extremity of the language prevents most readers from taking it seriously.’^[112]

Scandalising contempt and freedom of expression

8.71 Other jurisdictions have found scandalising contempt to be incompatible with their respective constitutional rights to freedom of expression, with the United Kingdom abolishing the offence,^[113] bringing them into line with Canada^[114] and the United States^[115] where the offence has been found to be incompatible with their constitutional rights to freedom of expression.^[116]

8.72 Despite not having a constitutional right to freedom of expression in Australia, the common law has afforded protection of freedom of speech.^[117] In light of this, Justice Murphy (dissenting) noted in Gallagher:

The absence of a constitutional guarantee does not mean that Australia should accept judicial inroads upon freedom of speech which are not found necessary or desirable in other countries. At stake is not merely the freedom of one person; it is the freedom of everyone to comment rightly or wrongly on the decisions of the courts in a way that does not constitute a clear and present danger to the administration of justice.^[118]

8.73 The Australian Constitution does, however, provide for the protection of freedom of communication about government or political matters.^[119] In 1997 in Lange v ABC, the High Court held that courts must determine whether laws that restrict this freedom are justified.^[120]

8.74 The compatibility of the implied freedom with scandalising contempt appears to be uncertain. On the one hand, Justice Eames stated in Hoser that scandalising contempt did not detract from the principles in Lange and the common law of scandalising contempt already appropriately accommodated freedom of expression.^[121] Further, in a defamation case concerning criticism of a magistrate, it was stated that criticisms of a judicial officer are not considered to be discussion of government and political matters.^[122]

8.75 However, there have been expressions to the contrary where it has been suggested, or at least questioned, that criticism of the courts could be argued to be about ‘government or political matters’ or relevant to the actions of ‘elected representatives’ or ‘public officials’ and thereby protected by the implied freedom.^[123]

8.76 For example, criticisms related to the appointment of or removal of judges may be considered discussion of government or political matters because such discussion ‘concerns, expressly or inferentially, acts or omissions of the legislature or the Executive Government’.^[124]

8.77 Justice Sackville, writing extra-curially, suggested that if the freedom of political communication was to apply to criticism of judicial officers, a much higher threshold would consequently be set for scandalising contempt, aligning the protections afforded to the judiciary with the protections afforded to other ‘elected representatives or public officials’.^[125]

Alternatives to scandalising contempt

8.78 Alternative legal mechanisms for dealing with abusive behaviour towards the judiciary have been identified. These include defamation law and other criminal offences that deal with assaults or threats. The ALRC stated:

… if the offence of scandalising were to be wholly eliminated from the law of contempt, such criticism would still be subject to a substantial degree of legal regulation.^[126]

8.79 Examples of criminal offences under the Crimes Act 1958 (Vic) which may address abusive acts or publications aimed at the court include:

• threats to kill, section 20

• threats to inflict serious injury, section 21

• assaults or threats of assault, section 31

• threats to destroy or damage property, section 198.

8.80 It is also an offence under the Criminal Code Act 1995 (Cth) to use an online service in a way that reasonable persons would regard as being menacing, harassing or offensive.^[127]

8.81 Defamation may also be an alternative when dealing with publications about judges that are unwarranted or false. Recent cases both in Victoria and other jurisdictions indicate a willingness on the part of the courts to use the law of defamation in situations where the publication in question may have also been prosecuted for scandalising contempt.^[128] Academic Kim Gould noted that the Australian judiciary’s use of defamation proceedings may be a sign that traditional ‘judicial restraint’ towards taking such a course may be changing.^[129]

8.82 However, a defamation action, which is aimed at protecting an individual’s reputation, would not address the damage done to the reputation of the administration of justice.^[130] Justice Eames noted in Hoser that there is a need to treat the trend of using defamation proceedings with caution:

The costly, time consuming and distracting pursuit of defamation proceedings … makes the pursuit of such proceedings entirely unattractive, for a judge or magistrate who may have no interest in gaining financial benefit but is simply wanting to defend the institution of the court against unfounded or damaging attack.^[131]

8.83 Scandalising contempt has also been seen to supplement other types of contempt and without it, there may be situations where acts or publications fall outside the other categories of contempt or the law of defamation and so escape legal consequences.^[132]

8.84 Alternatively, the judiciary has been making increasing use of non-legal avenues to address criticisms of the court and to explain the workings of the legal system. This trend contrasts with the traditional view that the judiciary should not reply to criticisms or enter public controversy.^[133]

8.85 The changing media landscape, including the rise of social media and decline in journalists reporting on court cases, has been identified as a force behind the courts engaging more directly with the community.^[134]

8.86 Examples of direct engagement with the public include making comments in the media,^[135] at conferences and in speeches;^[136] the introduction of court media-liaison officers,^[137] court social media pages^[138] and podcasts;^[139] and the availability of judgments online as a means of defending and explaining judicial decisions and conduct.^[140]

8.87 The broadcasting of Chief Judge Peter Kidd’s sentencing of George Pell is another example of developments in relation to the courts’ communication and engagement with the community.^[141] Chief Judge Kidd stated in his sentencing remarks that the decision to broadcast the judgment was made in accordance with ‘transparent and open justice and an accessible communication of the work of the court’.^[142]

Possible reforms to scandalising contempt

8.88 The central question when considering the future of scandalising contempt is whether judicial officers should be subject to special treatment. This in turn depends on the validity of the assumption that certain types of criticism are capable of shaking the public’s confidence in the judiciary in today’s modern context.

8.89 Scandalising contempt cases, although infrequent, continue to arise in Australia, suggesting there is a view that this contempt power needs to be retained in some form.^[143] This stands in contrast to the position taken in other jurisdictions where the offence has been abolished or has fallen into disuse because of its incompatibility with freedom of expression.

8.90 Accordingly, this part sets out a number of criticisms of the law of scandalising contempt, as well as some justifications for the retention of the law and the introduction of a statutory offence. A number of questions are then posed.

Abolition of scandalising contempt

8.91 The law of scandalising contempt has been criticised for treating the judiciary as a ‘specially favoured institution where public criticism is concerned’^[144] and for being self-serving in purpose.^[145]

8.92 Scandalising contempt has also been criticised as an ‘untenable’ imposition on freedom of expression.^[146] Similarly to sub judice contempt, the uncertain and inconsistent nature of the law of scandalising contempt has been criticised for creating a ‘chilling effect’ by which comments about the judiciary are censored.^[147]

8.93 In light of these criticisms, and following recommendations by the Law Commission of England and Wales, scandalising contempt was abolished in the United Kingdom in 2013.^[148]

8.94 In addition, it has been noted that:

• Scandalising contempt is not well-known to the public and has a limited symbolic value.^[149]

• Prosecutions for scandalising contempt can have negative consequences, re-publicising offending material and putting the conduct of the judge on trial.^[150]

• Prosecutions for scandalising contempt are not necessary to uphold the administration of justice.^[151]

• The law of scandalising contempt does not align with current public attitudes and expectations of the judiciary.^[152]

• There are legal alternatives available to address false accusations of misconduct.^[153]

8.95 However, in contrast it has also been recognised that:

• The law of scandalising contempt helps to maintain public confidence in the judiciary and to ensure the proper functioning of the court system, and that any undermining of the judiciary could lead to non-compliance with court orders or the system being ignored.^[154]

• Public confidence will not be maintained unless there is a criminal offence to prevent the making of statements which have a tendency to impair that confidence.^[155]

• The law of scandalising contempt helps to protect the reputation of judges which is essential to the community’s acceptance of their role.^[156]

• The court requires a quick and effective means of dealing with a damaging statement and making sure it is not repeated; the law of scandalising contempt provides that means.^[157]

• The judiciary are restricted by their position from pursuing other avenues to respond to criticism,^[158] and have no forum in which they can do so; the law of scandalising contempt provides a mechanism to deal with these issues.^[159]

• Other legal avenues such as defamation do not provide for the protection of the administration of justice and the preservation of public confidence in the courts and the judiciary.^[160]

Redefining scandalising contempt

8.96 If the purpose and assumptions underlying scandalising contempt are considered still to be valid and necessary in today’s modern context, it may be that the law does not need to be abolished. Instead, it may be sufficient for the law to be retained, replaced by statutory provisions and defined so as to remove any uncertainties.^[161]

8.97 In contrast with the approach of the Law Commission of England and Wales discussed above, this has been the approach proposed by other law reform commissions.^[162]

8.98 For example, the ALRC recommended the introduction of a limited offence to publish an allegation imputing misconduct to a judge or magistrate in circumstances where publication is likely to cause serious harm to the reputation to the judge or magistrate in his or her official capacity.^[163] This recommendation was also subsequently supported by the Law Reform Commission of Western Australia.^[164]

8.99 More recently, the NZ Commission recommended:

• the introduction of a statutory offence for publications which make untrue allegations or accusations against a judge or court where there is a real risk the publication would undermine ‘public confidence in the independence, integrity or impartiality of the judiciary as an institution’^[165]

• the prescription of defences which exclude the prosecution of comments based on fact or that are ‘legitimate criticisms’^[166]

• the High Court having a statutory power to make orders requiring publications to be taken down from the internet or the publication to make a correction or apology.^[167]

8.100 The introduction of a statutory offence would have the benefit of:

• clarifying the requisite knowledge and intention of the person who made or published the statement^[168]

• clearly defining the other elements of the offence and the procedures for hearing and determining the charge

• identifying who would be responsible for investigating complaints or bringing the proceedings^[169]

• providing a remedy in situations where other legal avenues may not be appropriate or available.^[170]

Questions

32 Is there a need to retain the law of scandalising contempt?

33 If the law of scandalising contempt is to be retained, should the common law be replaced by statutory provisions? If so:

(a) How should the law and its constituent elements be described, including:

i. The ‘tendency’ test

ii. What constitutes ‘fair comment’?

(b) Should truth be a defence?

(c) What fault elements, if any, should be required?

(d) What weight, if any, should be given to an apology?

34 In stakeholders’ experience, is criticism of the judiciary on social media a problem that should be dealt with by a law such as scandalising contempt or is it best managed outside of the law?

35 What other reforms, if any, should be made to this area of law?

8.101 However, the uncertainty that exists at common law may have a practical advantage. That is, the broad nature of the offence and the concept of public confidence in the administration of justice ‘does not call for detailed proof of what in many instances will be unprovable’.^[171]

8.102 In addition, a number of problems with a statutory offence have also been identified:

• A statutory offence may not address cumulative allegations against the judiciary as it may be difficult to prove or disprove the falsity of a ‘collective accusation’.^[172]

• How would the offence cover situations where the person making the statement believed their allegations were true?^[173]

• There may be negative implications in narrowing the scope of the offence to deliberate lying, which may also be difficult to prove.^[174]

• The distinction between what kind of abuse or criticism is acceptable and what kind is not changes with time and may be difficult to define in statute.^[175]

1. R v Dunbabin; Ex Parte Williams [1935] 53 CLR 434; R v Kopyto (1987) 62 OR (2d) 449.

   ↑

2. Gallagher v Durack (1983) 152 CLR 238, 243 (Gibbs CJ, Mason, Wilson and Brennan JJ).

   ↑

3. R v Fletcher (1935) 52 CLR 248, 257 (Evatt J); R v Dunbabin; Ex Parte Williams [1935] 53 CLR 434, 443 (Rich J).

   ↑

4. A-G (NSW) v Mundey [1972] 2 NSWLR 887, 910 (Hope JA).

   ↑

5. R v Dunbabin; Ex Parte Williams [1935] 53 CLR 434, 442 (Rich J).

   ↑

6. A-G (Qld) v Lovitt [2003] QSC 279.

   ↑

7. Gallagher v Durack (1983) 152 CLR 238; A-G (NSW) v Mundey [1972] 2 NSWLR 887.

   ↑

8. A-G (NSW) v Mundey [1972] 2 NSWLR 887.

   ↑

9. R v Hoser & Kotabi Pty Ltd [2001] VSC 443; Hoser & Kotabi Pty Ltd v R [2003] VSCA 194.

   ↑

10. Tate v Duncan-Strelec [2014] NSWSC 1125; Hoser & Kotabi Pty Ltd v R [2003] VSCA 194; R v Hoser & Kotabi Pty Ltd [2001] VSC 443; A-G (Qld) v Lovitt [2003] QSC 279.

    ↑

11. Anissa Pty Ltd v Parsons [1999] VSC [19]. See also Gallagher v Durack (1983) 152 CLR 238, 243.

    ↑

12. The Law Reform Commission, Contempt (Report No 35, 1987) 245 [423].

    ↑

13. See Kathy Mack, Sharyn Roach Anleu and Jordan Tutton, ‘The Judiciary and the Public: Judicial Perceptions’ (2018) 39 Adelaide Law Review 1.

    ↑

14. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 31 (Mason CJ), citing The Commonwealth v John Fairfax & Sons Ltd. (1980) 147 CLR 39, 52 (Mason J).

    ↑

15. Justice Michael Kirby, ‘Attacks on Judges—A Universal Phenomenon’ (Speech, Winter Leadership Meeting, Hawaii, 5 January 1998); Kathy Mack, Sharyn Roach Anleu and Jordan Tutton, ‘The Judiciary and the Public: Judicial Perceptions’ (2018) 39 Adelaide Law Review 1.

    ↑

16. The law of scandalising contempt has been described as ‘archaic’ and ‘antiquated’, see Committee on Contempt of Court (UK), Report of the Committee on Contempt of Court (December 1974) 159; Law Reform Commission of Ireland, Report on Contempt of Court (Report No 46, September 1994) [5.1]; Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 109 [6.27].

    ↑

17. Law Commission (England and Wales), Contempt of Court: Scandalising the Court, Report No 335 (2012) 26; Crime and Courts Act 2013 (UK) s 33 ‘Abolishment of scandalising the judiciary as form of contempt of court’.

    ↑

18. McLeod v St Auyn [1899] AC 549, 561; Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339 (HC), 347A.

    ↑

19. R v Kopyto (1987) 62 OR (2d) 449; Bridges v California, 314 US 252 (1941).

    ↑

20. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 116–17.

    ↑

21. Kim Gould, ‘Scandalising Contempt in Australia: Dead? Dying? In Much Danger? …(Not!)…’ (2010) 15 Media and Arts Law Review 23.

    ↑

22. DPP (Cth) v Besim; DPP (Cth) v MHK (No 2) [2017] VSCA 165. See Chapter 3 for a discussion of this case.

    ↑

23. Amanda Meade, ‘Up to 100 Journalists Accused of Breaking Pell Suppression Order Face Possible Jail Terms’, The Guardian (online), 26 February 2019 <www.theguardian.com/media/2019/feb/26/dozens-of-journalists-accused-of-breaking-pell-trial-suppression-order-face-possible-jail-terms?CMP=Share_iOSApp_Other>; Adam Cooper, ‘DPP Moves to Jail Editors, Journalists’, The Age (Melbourne), 27 March 2019; Richard Ackland, ‘The Media and Contempt of Court’, The Saturday Paper (online), 6–12 April 2019 <https://www.thesaturdaypaper.com.au/opinion/topic/2019/04/06/the-media-and-contempt-court/15544692007951>.

    ↑

24. R v Dunbabin; Ex Parte Williams [1935] 53 CLR 434, 442 (Rich J).

    ↑

25. John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 371 (Dixon CJ, Fullagar J, Kitto J, Taylor J); A-G (Qld) v Lovitt [2003] QSC 279 [58] (Chesterman J).

    ↑

26. R v Brett [1950] VLR 226, 231. See also A-G (NSW) v Mundey [1972] 2 NSWLR 887, 911 (Hope J); Cf: A-G (Qld) v Lovitt [2003] QSC 279 [58] (Chesterman J).

    ↑

27. Wade v Gilroy (1986) 83 FLR 14, 20.

    ↑

28. R v Hoser & Kotabi Pty Ltd [2001] VSC 443 [55]; The Herald & Weekly Times Ltd v A-G (Vic) [2001] VSCA 152; R v Herald & Weekly Times Ltd (No 2) [2000] VSC 35.

    ↑

29. Gallagher v Durack (1983) 152 CLR 238, 248 (Murphy J); The Law Reform Commission, Contempt (Report No 35, 1987) 248–9 [428] [431].

    ↑

30. Ibid.

    ↑

31. Ibid.

    ↑

32. Ibid 243.

    ↑

33. The Law Reform Commission, Contempt (Report No 35, 1987) 251 [434].

    ↑

34. Ibid.

    ↑

35. Ibid 251–2 [434]. See A-G (NSW) v Mundey [1972] 2 NSWLR 887, 908 (Hope JA); see also Kim Gould, ‘Scandalising Contempt in Australia: Dead? Dying? In Much Danger? …(Not!)…’ (2010) 15 Media and Arts Law Review 23, 68; Kathy Mack, Sharyn Roach Anleu and Jordan Tutton, ‘The Judiciary and the Public: Judicial Perceptions’ (2018) 39 Adelaide Law Review 1, 6.

    ↑

36. R v Kopyto (1987) 62 OR (2d) 449, 910; A-G (NSW) v Mundey [1972] 2 NSWLR 887. ‘Scurrilous abuse’ is no longer commonly used, but it is defined as ‘grossly or indecently abusive’: Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 57 [6.6].

    ↑

37. R v Dunbabin; Ex Parte Williams [1935] 53 CLR 434, 442 (Rich J); A-G (NSW) v Mundey [1972] 2 NSWLR 887, 910.

    ↑

38. R v Kopyto (1987) 62 OR (2d) 449.

    ↑

39. R v Nicholls (1911) 12 CLR 280, 286 (Griffith CJ).

    ↑

40. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 39 (Brennan J); R v Nicholls (1911) 12 CLR 280, 286 (Griffith CJ). See also Ambard v A-G (Trinidad & Tobago) [1936] AC 322.

    ↑

41. Des Butler and Sharon Rodrick, Australian Media Law (Thomson Reuters, 5th ed, 2015) 446 [6.840].

    ↑

42. A-G (NSW) v Mundey [1972] 2 NSWLR 887, 910.

    ↑

43. R v Brett [1950] VLR 226, 231.

    ↑

44. A-G (NSW) v Mundey [1972] 2 NSWLR 887, 910.

    ↑

45. R v Nicholls (1911) 12 CLR 280, 286.

    ↑

46. Ahnee v DPP [1999] 2 AC 294, 306.

    ↑

47. Law Commission (England and Wales), Contempt of Court: Scandalising the Court (Consultation Paper, 2012) 5 [18].

    ↑

48. See Oyiela Litaba, ‘Does the “Offence” of Contempt by Scandalising the Court Have a Valid Place in the Law of Modern Day Australia?’ (2003) 8(1) Deakin Law Review 113.

    ↑

49. Gallagher v Durack (1983) 152 CLR 238, 243 (Gibbs CJ, Mason, Wilson and Brennan JJ).

    ↑

50. R v Fletcher (1935) 52 CLR 248, 257 (Evatt J); Bell v Stewart (1920) 28 CLR 419, 429 (Isaacs and Rich JJ).

    ↑

51. R v Fletcher (1935) 52 CLR 248, 257 (Evatt J).

    ↑

52. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 39.

    ↑

53. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 119 [6.76]; LexisNexis, Halsbury’s Laws of Australia (online at 25 September 2018) 105 Contempt, ‘2 Criminal Contempt’ [105–230].

    ↑

54. Oyiela Litaba, ‘Does the “Offence” of Contempt by Scandalising the Court Have a Valid Place in the Law of Modern Day Australia?’ (2003) 8(1) Deakin Law Review 113, 145.

    ↑

55. The Law Reform Commission, Contempt (Report No 35, 1987) 255 [439].

    ↑

56. Ibid.

    ↑

57. Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 116.

    ↑

58. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 120 [6.78].

    ↑

59. Ibid.

    ↑

60. Law Commission (New Zealand), Contempt in Modern New Zealand, Issues Paper (2014) 64 [6.62]; The Law Reform Commission, Contempt (Report No 35, 1987) 254 [438].

    ↑

61. For example, Lovitt, a barrister, was carrying out his duties to the court at the time of stating to the media that the judge was a ‘cretin’. In finding the defendant guilty of scandalising contempt, the judge considered the defendant’s status as a barrister and that his criticisms would therefore be considered knowledgeable by the public. Lovitt’s status was held to have contributed to the serious nature of the contempt: A-G (Qld) v Lovitt [2003] QSC 279.

    ↑

62. For example, it was held in Lovitt that the barrister’s recklessness in making the statement in the presence of the media, ‘with no basis for believing that all of their news organisations would decline to publish his remarks’, was enough to establish contempt of court. The publicising media were not prosecuted: A-G (Qld) v Lovitt [2003] QSC 279.

    ↑

63. Gallagher v Durack (1983) 152 CLR 238, 252–3.

    ↑

64. The Law Reform Commission, Contempt (Report No 35, 1987) 253 [435].

    ↑

65. DPP (Cth) v Besim; DPP (Cth) v MHK (No 2) [2017] VSCA 165.

    ↑

66. For example, in Hoser the publishing company of a book (owned by the original speaker) was also prosecuted: R v Hoser & Kotabi Pty Ltd [2001] VSC 443; Hoser & Kotabi Pty Ltd v R [2003] VSCA 194; A-G (Qld) v Lovitt [2003] QSC 279 [63]; A-G (NSW) v Mundey [1972] 2 NSWLR 887, 915; R v The Herald & Weekly Times Ltd [1999] VSC 432; R v Herald & Weekly Times Ltd (No 2) [2000] VSC 35; The Herald & Weekly Times v A-G (Vic) [2001] VSCA 152.

    ↑

67. Re Colina; Ex Parte Torney (1999) 200 CLR 386, 393 (Gleeson CJ and Gummow J) citing DPP v Australian Broadcasting Corporation (1987) 7 NSWLR 588, 595. See also R v Fletcher (1935) 52 CLR 248, 259 (Evatt J).

    ↑

68. R v Dunbabin; Ex Parte Williams [1935] 53 CLR 434, 447.

    ↑

69. Bell v Stewart (1920) 28 CLR 419, 429 (Isaacs and Rich JJ).

    ↑

70. Gallagher v Durack (1983) 152 CLR 238, 240 (Gibbs CJ).

    ↑

71. R v Dunbabin; Ex Parte Williams [1935] 53 CLR 434, 442 (Rich J).

    ↑

72. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 114 [6.53]; The Law Reform Commission, Contempt (Report No 35, 1987) 279; Enid Campbell, ‘Contemptuous Criticism of the Judiciary and the Judicial Process’ (1960) 34 The Australian Law Journal 224. See also Justice Kirby’s (dissenting) discussion of section 80 of The Constitution, and its effect of deeming scandalising contempt as an indictable offence that should have the option of being heard by a jury: Re Colina; Ex Parte Torney (1999) 200 CLR 386, 422–427 (Kirby J); Justice Murphy (dissenting) also stated a trial by jury should be restored: Gallagher v Durack (1983) 152 CLR 238.

    ↑

73. Justice Ronald Sackville, ‘How Fragile are the Courts? Freedom of Speech and Criticism of the Judiciary’ (2005) 31(2) Monash University Law Review 191, 193.

    ↑

74. Law Commission (England and Wales), Contempt of Court: Scandalising the Court (Report No 335, 2012) 15 [63].

    ↑

75. The Law Reform Commission, Contempt (Report No 35, 1987) 281 [479].

    ↑

76. Ibid 279 [477].

    ↑

77. Ibid 280 [477].

    ↑

78. Gallagher v Durack (1983) 152 CLR 238, 249–50 (Murphy J).

    ↑

79. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 114 [6.53].

    ↑

80. See, eg, R v The Age Co Ltd [2008] VSC 305 where an apology mitigated the punishment imposed; DPP (Cth) v Besim; DPP (Cth) v MHK
    (No 2) (2017) 52 VR 296 where an apology purged the contempt so that it was not necessary to impose any penalty or to commence contempt proceedings.

    ↑

81. The Law Reform Commission, Contempt (Report No 35, 1987) 259 [448].

    ↑

82. DPP (Cth) v Besim; DPP (Cth) v MHK (No 2) [2017] VSCA 165 [29].

    ↑

83. The Law Reform Commission, Contempt (Report No 35, 1987) 259 [448].

    ↑

84. Defamation Act 2005 (Vic) s 38(1)(a)(b).

    ↑

85. Sir Anthony Mason, ‘The Courts and Public Opinion’ (Speech to the National Institute of Government and Law, Parliament House Canberra, 20 March 2002) NSW Bar Association News 11 (2002) 30, 31. See also Justice Ronald Sackville, ‘How Fragile are the Courts? Freedom of Speech and Criticism of the Judiciary’ (2005) 31(2) Monash University Law Review 191.

    ↑

86. The Law Reform Commission, Contempt (Report No 35, 1987) 246 [424].

    ↑

87. Ibid.

    ↑

88. Ibid [425].

    ↑

89. Kathy Mack, Sharyn Roach Anleu and Jordan Tutton, ‘The Judiciary and the Public: Judicial Perceptions’ (2018) 39 Adelaide Law Review 1, 16.

    ↑

90. A-G (UK) v British Broadcasting Corporation [1980] 3 All ER 161, 169.

    ↑

91. Law Commission (New Zealand), Contempt in Modern New Zealand, Issues Paper (2014) 60 [6.29].

    ↑

92. R v Police Commissioner of the Metropolis; Ex parte Blackburn (No 2) (1968) 2 QB 150, 155; R v Hoser & Kotabi Pty Ltd [2001] VSC 443; R v Kopyto (1987) 62 OR (2d) 449; A-G (NSW) v Mundey [1972] 2 NSWLR 887, 908.

    ↑

93. Bell v Stewart (1920) 28 CLR 419, 429 (Isaacs and Rich JJ); R v Dunbabin; Ex Parte Williams [1935] 53 CLR 434, 442–3 (Rich J); Gallagher v Durack (1983) 152 CLR 238, 243 (Gibbs CJ, Mason, Wilson and Brennan JJ); Mills v Townsville City Council (No 2) [2003] QPELR 548. Eames J stated, however, that the ‘good sense of the community’ can only go so far in protecting against ‘hyperbole and fatuous argument’ compared to a published book with apparent credibility: R v Hoser & Kotabi Pty Ltd [2001] VSC 443 [234].

    ↑

94. Anissa Pty Ltd v Parsons [1999] VSC [22] (Cummins J).

    ↑

95. R v Nicholls (1911) 12 CLR 280; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 90–1 (Dawson J).

    ↑

96. DPP (Cth) v Besim; DPP (Cth) v MHK (No 2) [2017] VSCA 165.

    ↑

97. Mabo v Queensland (No 2) (1992) 175 CLR 1; Wik Peoples v State of Queensland (1991) 187 CLR 1.

    ↑

98. Kim Gould, ‘When the Judiciary is Defamed: Restraint Policy Under Challenge’ (2006) 80 Australian Law Journal 602, 606.

    ↑

99. Mabo v Queensland (No 2) (1992) 175 CLR 1.

    ↑

100. Justice Michael Kirby, ‘Attacks on Judges—A Universal Phenomenon’ (Speech, Winter Leadership Meeting, Hawaii, 5 January 1998).

     ↑

101. R v Hoser & Kotabi Pty Ltd [2001] VSC 443 [226].

     ↑

102. Kathy Mack, Sharyn Roach Anleu and Jordan Tutton, ‘The Judiciary and the Public: Judicial Perceptions’ (2018) 39 Adelaide Law Review 1, 17.

     ↑

103. R v Hoser & Kotabi Pty Ltd [2001] VSC 443 [228]. See also Chief Justice in Equity Bergin noted in the New South Wales Supreme Court case Tate v Duncan-Strelec [2014] NSWSC 1125 [198]: ‘The fact that there is more capacity to read other people’s opinions, comments and allegations than in times prior to the establishment of the internet does not mean that the Court should be less vigilant in ensuring that there is no interference with the administration of justice and protecting the Court from being scandalised.’

     ↑

104. On Thursday, 13 December 2018, the day Pell’s verdict came down, the Herald-Sun newspaper published on its front page the headline ‘CENSORED’, followed by ‘The world is reading a very important story that is relevant to Victorians. The Herald-Sun is prevented from publishing details of this significant news.’

     ↑

105. Margaret Sullivan, ‘A Top Cardinal’s Sex-Abuse Conviction is Huge News in Australia. But the Media Can’t Report it There’, The Washington Post (Web Page, 12 December 2018) <www.washingtonpost.com/lifestyle/style/a-top-cardinals-sex-abuse-conviction-is-huge-news-in-australia-but-the-media-cant-report-it-there/2018/12/12/49c0eb68-fe27-11e8-83c0-b06139e540e5_story.html?utm_term=.7a635aecd36a>. For a discussion of the media’s reporting of the Pell verdict, see Margaret Simons, ‘Suppression Orders Aren’t Perfect but Journalistic Hubris Won’t Fix the Problem’, The Guardian (Web Page, 27 February 2019) <www.theguardian.com/commentisfree/2019/feb/27/suppression-orders-arent-perfect-but-journalistic-hubris-wont-fix-the-problem>; for a brief discussion of the international coverage of the Pell case, see Justice François Kunc, ‘Current Issues—Victorian Suppression Orders and the International Media’ (2019) 93 Australian Law Journal 79, 80.

     ↑

106. Adam Cooper, ‘DPP Moves to Jail Editors, Journalists’, The Age (Melbourne), 27 March 2019. See also Richard Ackland, ‘The Media and Contempt of Court’, The Saturday Paper (Web Page, 6–12 April 2019) <www.thesaturdaypaper.com.au/opinion/topic/2019/04/06/the-media-and-contempt-court/15544692007951>.

     ↑

107. Marilyn Bromberg and Andrew Eckert , ‘Haters Gonna Hate: When the Public Uses Social Media to Comment Critically or Maliciously About Judicial Officers’ (2017) 24 Journal of Judicial Administration 141, 142–5; Kathy Mack, Sharyn Roach Anleu and Jordan Tutton, ‘The Judiciary and the Public: Judicial Perceptions’ (2018) 39 Adelaide Law Review 1, 14. See also Law Commission (England and Wales), Contempt of Court: Scandalising the Court (Report No 335, 2012) 19 [71].

     ↑

108. Law Commission (New Zealand), Contempt in Modern New Zealand, Issues Paper (2014) 64 [6.58].

     ↑

109. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 113 [6.47].

     ↑

110. Marilyn Bromberg and Andrew Eckert, ‘Haters Gonna Hate: When the Public Uses Social Media to Comment Critically or Maliciously About Judicial Officers’ (2017) 24 Journal of Judicial Administration 141, 145.

     ↑

111. Kathy Mack, Sharyn Roach Anleu and Jordan Tutton, ‘The Judiciary and the Public: Judicial Perceptions’ (2018) 39 Adelaide Law Review 1, 16.

     ↑

112. Law Commission (England and Wales), Contempt of Court: Scandalising the Court (Report No 335, 2012) 9 [33].

     ↑

113. Crime and Courts Act 2013 (UK); Law Commission (England and Wales), Scandalising the Court: Summary of Conclusions (Final Report No 335, 2012).

     ↑

114. R v Kopyto (1987) 62 OR (2d) 449.

     ↑

115. Bridges v California, 314 US 252 (1941).

     ↑

116. See Cory JA’s discussion of the position of different jurisdictions in the Canadian case R v Kopyto (1987) 62 OR (2d) 449. See also: Oyiela Litaba, ‘Does the “Offence” of Contempt by Scandalising the Court Have a Valid Place in the Law of Modern Day Australia?’ (2003) 8(1) Deakin Law Review 113, 135.

     ↑

117. See Michael Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (Ashgate Publishing Company, 2000) 7–13.

     ↑

118. Gallagher v Durack (1983) 152 CLR 238, 248.

     ↑

119. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 560 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ); Peter Hanks, Frances Gordon and Graeme Hill, Constitutional Law in Australia (LexisNexis Butterworths, 4th ed, 2018) 696 [10.237].

     ↑

120. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 560 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).

     ↑

121. R v Hoser & Kotabi Pty Ltd [2001] VSC 443 [90].

     ↑

122. The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 8–10 (Winneke ACJ).

     ↑

123. The Victorian Court of Appeal asked whether comments on the judiciary qualified as ‘communication about government or political matters’; the issue was unresolved: Hoser & Kotabi Pty Ltd v R [2003] VSCA 194.

     ↑

124. This possibility was noted by Justice McHugh but the suggestion was qualified: ‘Courts and judges and the exercise of judicial power are not themselves subjects that are involved in representative or responsible’ government in the constitutional sense: APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322, 361.

     ↑

125. Justice Ronald Sackville, ‘How Fragile are the Courts? Freedom of Speech and Criticism of the Judiciary’ (2005) 31(2) Monash University Law Review 191, 211. The enactment of the Charter of Human Rights and Responsibilities Act 2006 (Vic) which confers a right to a freedom of expression has not been considered at all by the courts in the context of scandalising contempt.

     ↑

126. The Law Reform Commission, Contempt (Report No 35, 1987) 242 [418].

     ↑

127. Criminal Code Act 1995 (Cth), s 474.17 ‘Using a carriage service to menace, harass or cause offence.’

     ↑

128. See The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 291; Mann v O’Neill (1997) 191 CLR; Kim Gould, ‘When the Judiciary is Defamed: Restraint Policy Under Challenge’ (2006) 80 Australian Law Journal 602.

     ↑

129. Justice Ronald Sackville, ‘How Fragile are the Courts? Freedom of Speech and Criticism of the Judiciary’ (2005) 31(2) Monash University Law Review 191; see also Kim Gould, ‘When the Judiciary is Defamed: Restraint Policy Under Challenge’ (2006) 80 Australian Law Journal 602, 603.

     ↑

130. Law Commission (New Zealand), Contempt in Modern New Zealand, Issues Paper (2014) 285 [6.65].

     ↑

131. R v Hoser & Kotabi Pty Ltd [2001] VSC 443 [229] (Hoser). See also Kirby J in Mann v O’Neill (1997) 191 CLR, 271–2.

     ↑

132. For example, scandalising contempt supplemented contempt in the face of the court where a defendant filed an affidavit in which he had included allegations of corruption by the court. As the defendant’s affidavit was read into evidence by the prosecution, it was not a contempt in the face of the court. However, a prosecution did proceed on the basis of scandalising contempt. The defendant was found guilty of contempt and sentenced to a good behaviour bond: Martin v Trustrum (No 3) (2003) 12 Tas R 131. See also The Herald & Weekly Times v A-G (Vic) [2001] VSCA 152; R v Herald & Weekly Times Ltd (No 2) [2000] VSC 35; R v The Herald & Weekly Times Ltd [1999] VSC 432: scandalising contempt may be a supplement for sub judice contempt where a publication is relating to pending proceedings, but the case is being heard by a judge alone and therefore the risk of influencing a jury is not present. Discussed in Kim Gould, ‘Scandalising Contempt in Australia: Dead? Dying? In Much Danger? …(Not!)…’ (2010) 15 Media and Arts Law Review 23.

     ↑

133. R v Police Commissioner of the Metropolis; Ex parte Blackburn (No 2) (1968) 2 QB 150, 155 (Denning MR).

     ↑

134. Chief Justice Marilyn Warren, ‘Open Justice in the Technological Age’ (2014) 40(1) Monash University Law Review 45.

     ↑

135. See, eg, ‘Chief County Court Judge Criticises “Denigrating” Media Coverage of Court Appeal’, on Mornings with Jon Faine (Web Page, 22 May 2018) <www.abc.net.au/radio/melbourne/programs/mornings/peter-kidd/9786720>

     ↑

136. See Justice Michael Kirby, ‘Attacks on Judges—A Universal Phenomenon’ (Speech, Winter Leadership Meeting, Hawaii, 5 January 1998); Sir Anthony Mason, ‘The Courts and Public Opinion’ (Speech, National Institute of Government and Law, Parliament House Canberra, 20 March 2002); the Hon Philip Cummins, ‘Open Courts: Who Guards the Guardians?’ (Paper presented at the Justice Open and Shut: Suppression Orders and Open Justice in Australia and the United Kingdom Seminar, Sydney, 4 June 2014).

     ↑

137. Oyiela Litaba, ‘Does the “Offence” of Contempt by Scandalising the Court Have a Valid Place in the Law of Modern Day Australia?’ (2003) 8(1) Deakin Law Review 113, 128; Jane Johnston, ‘Public Relations in the Courts’ (2001) 28(1) Australian Journal of Communication 109.

     ↑

138. Chief Justice Marilyn Warren, ‘Open Justice in the Technological Age’ (2014) 40(1) Monash University Law Review 45.

     ↑

139. Supreme Court of Victoria, ‘Gertie’s Law Podcast’, (Podcast, March 2019) <www.supremecourt.vic.gov.au/podcast>.

     ↑

140. Oyiela Litaba, ‘Does the “Offence” of Contempt by Scandalising the Court Have a Valid Place in the Law of Modern Day Australia?’ (2003) 8(1) Deakin Law Review 113, 128.

     ↑

141. Jerome Doraisamy, ‘Why Chief Judge Kidd Broadcast the Pell Sentence’, Lawyers Weekly (Web Page, 15 March 2019) <www.lawyersweekly.com.au/wig-chamber/25247-why-kidd-cj-broadcast-the-pell-sentence>.

     ↑

142. County Court of Victoria, ‘Sentencing Remarks in DPP v George Pell’ (Web Page, 19 March 2019) <www.countycourt.vic.gov.au/news-and-media/news-listing/2019-03-13-sentencing-remarks-dpp-v-george-pell>; DPP v Pell (Sentence) [2019] VCC 260 (13 March 2019).

     ↑

143. Kim Gould, ‘Scandalising Contempt in Australia: Dead? Dying? In Much Danger? …(Not!)…’ (2010) 15 Media and Arts Law Review 23, 24–6.

     ↑

144. The Law Reform Commission, Contempt (Report No 35, 1987) 264 [457].

     ↑

145. Law Commission (England and Wales), Contempt of Court: Scandalising the Court (Report No 335, 2012) 6 [18].

     ↑

146. Law Commission (New Zealand), Contempt in Modern New Zealand (Issues Paper, 2014) 64 [6.62].

     ↑

147. Law Commission (England and Wales), Contempt of Court: Scandalising the Court (Report No 335, 2012) 9 [31].

     ↑

148. Crime and Courts Act 2013 (UK) s 33; Law Commission (England and Wales), Scandalising the Court: Summary of Conclusions (Final Report No 335, 2012).

     ↑

149. Law Commission (England and Wales), Contempt of Court: Scandalising the Court (Report No 335, 2012) 5 [18].

     ↑

150. Ibid 6 [18].

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151. Ibid.

     ↑

152. Ibid 18 [66]–[71].

     ↑

153. Law Commission (England and Wales), Contempt of Court: Scandalising the Court (Report No 335, 2012) 6 [18].

     ↑

154. The Law Reform Commission, Contempt (Report No 35, 1987) 244 [422].

     ↑

155. Ibid.

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156. Ibid 264 [457].

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157. Ibid 244 [422].

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158. Ibid 264 [457]; Committee on Contempt of Court (UK), Report of the Committee on Contempt of Court (December 1974) 69 [162].

     ↑

159. Committee on Contempt of Court (UK), Report of the Committee on Contempt of Court (December 1974) 69 [162].

     ↑

160. Ibid.

     ↑

161. Law Commission (England and Wales), Contempt of Court: Scandalising the Court (Report No 335, 2012) 14 [51].

     ↑

162. The Law Reform Commission, Contempt (Report No 35, 1987) 266 [460]; Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 116; Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 118–21.

     ↑

163. The Law Reform Commission, Contempt (Report No 35, 1987) 266 [460].

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164. Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 116.

     ↑

165. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 118 [6.72].

     ↑

166. Ibid 117 [6.67].

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167. Ibid 121–2 [6.83]–[6.85].

     ↑

168. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 118 [6.71–[6.72]; Law Reform Commission of Ireland, Report on Contempt of Court (Report No 46, September 1994) [5.17].

     ↑

169. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 116–7 [6.65]–[6.66].

     ↑

170. The Law Reform Commission, Contempt (Report No 35, 1987) 266 [458].

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171. Ibid 247 [427].

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172. Law Commission (England and Wales), Contempt of Court: Scandalising the Court (Report No 335, 2012) 21 [77].

     ↑

173. Ibid [78].

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174. Ibid.

     ↑

175. Ibid 7 [24].

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