Contempt of Court: Consultation Paper (html)

1

New Zealand (2017)

Yes

Yes

Yes

Yes

Yes

Yes

No

Inherent jurisdiction

2

Ireland (2016)

Yes

Yes

No

Yes

No

No

No

Distinction between civil and criminal contempt

3

UK (2014)

No

No

Yes (court reporting)

No

No

No

No

No

4

UK (2013)

No

No

No

No

Yes

(juror misconduct)

No

No

No

5

UK (2012)

No

No

No

Yes

No

No

No

No

6

NSW (2003)

No

Yes

No

No

No

No

No

Suppression orders; access to and reporting on court documents;

penalties and remedies; payment for costs of aborted trials

7

WA (2003)

Yes

Yes

Yes

Yes

No

Yes

No

Distinction between civil and criminal contempt; bringing the administration of justice into disrepute

8

Ireland (1994)

Yes

Yes

No

Yes

No

Yes

Yes

Jurisdiction

9

Common-

wealth (1987)

Yes

Yes

Yes

Yes

Yes

Yes

Yes—influence on juries and other participants

Inherent jurisdiction;

Constitutional considerations; suppression orders

10

Hong Kong (1986)

Yes

No

Yes

Yes

No

Yes

Yes

Distinction between civil and criminal contempt

11

Canada (1982)

Yes

Yes

No

Yes

No

Yes

No

No

12

UK (1974)

Yes

Yes

Yes

Yes

No

Yes

Yes

Yes—various

1.

2017 New Zealand—Law Commission
Report 140: Reforming the Law of Contempt of Court: A Modern Statute

First principles review of the law of contempt and to make recommendations to ensure the law was appropriate for New Zealand

Asked in particular to consider whether the common law of contempt should be amended or replaced by statutory provisions

The law should be brought up to date in one statute. In particular, we recommend the abolition of various old common law contempts of court and their replacement with new statutory offence provisions that are easier to understand and apply. We also propose new provisions specifically empowering courts to make take-down orders for material on the internet and social media platforms that is liable to affect the administration of justice adversely. At the same time we recommend the High Court should retain its inherent jurisdiction so it may still address any conduct not otherwise covered by the new statute.

Administration of Justice (Reform of Contempt of Court) Bill 2018 (3-91)

(Member’s bill—Hon Christopher Finlayson) Introduced 22 May 2018 and adopted by the Government.

The Bill was referred to the Justice Committee which recommended the Bill be passed with amendments: Justice Committee, Administration of Justice (Reform of Contempt of Court) Bill (Final Report, 5 April 2019). As at the time of writing, the Bill is at the Second Reading stage.

The bill has three principal purposes:

to ‘promote and facilitate the administration of justice and uphold the rule of law’

to ‘maintain and enhance’ public confidence in the judicial system’

to ‘reform the law of contempt of the court’ (Part 1, clause 3(1)).

For these purposes, the proposed legislation would enable courts to make certain orders and impose certain sanctions so that:

civil and criminal proceedings are heard and determined fairly by independent and impartial judges

jury verdicts are based only on facts admitted or proved by properly adduced evidence after free, frank and confidential discussions, and the finality of verdicts will be protected

individual cases are heard and determined in a manner that is expeditious, efficient and consistent with the principles of justice and the rule of law

except in proceedings where the law restricts access to the court or restricts the reporting of proceedings (such as proceedings in the Family Court or the Youth Court) or in unusual circumstances, proceedings are open to the public and news media

orders made by the courts are enforceable

the independence, integrity and impartiality of the judiciary are protected (Part 1, clause 3(2)).

The Bill proposes to abolish the common law contempts of:

contempt in the face of the court

publishing information that interferes with a fair trial

jurors researching information relevant to the trial

disclosing juror deliberations

disobeying court orders

scandalising the court.

The Bill expressly retains the High Court’s inherent jurisdiction in circumstances where the bill does not apply.

The Bill:

limits publication of trial-related information

prohibits publication of certain criminal trial information

deals with disruptive behaviour in court

includes offences for juror to investigate or research case or to disclose jury deliberations

provides for enforcement of certain court orders

prohibits publication of untrue allegations or accusations against judges or courts.

2.

2017 Commonwealth—Senate Legal and Constitutional Affairs References Committee
Law of Contempt

The Senate Committee was asked to examine:

the recommendations of the 1987 ALRC report on contempt and, in particular, the recommendation that the common law principles of contempt be abolished and replaced by statutory provisions

the recommendations of the 2003 New South Wales Law Reform Commission on contempt by publication and the need to achieve clarity and precision in the operation of the law on sub-judice contempt

the development and operation of statutory provisions in Australia and overseas that codify common law principles of contempt

That the submissions received to this inquiry be referred to any future Senate inquiry into contempt (Recommendation 1).

Not implemented.

the importance of balancing principles, including freedom of speech and expression, the right of fair trial by an impartial tribunal, public scrutiny of the operations of the court system and the protection of the authority, reputation and due process of the courts

any other related matters.

3.

2016 Ireland—Law Reform Commission Issues Paper on Contempt of Court

Examines 7 issues—including, relevantly:

some general questions concerning contempt of court and asks if legislation should be introduced to address those areas (Issue 1)

the distinction between civil and criminal contempt and asks whether that distinction should be maintained or abolished (Issue 2)

the law concerning contempt in the face of the court (Issue 3)

the law concerning scandalising the court (Issue 4)

the law concerning contempt in connection with pending proceedings, sub judice contempt (Issue 5).

No final report or recommendations.

Review seems to have lapsed—this may be because of the introduction of a private members Bill into the Irish Parliament in 2017 concerning the law of contempt.

Contempt of Court Bill 2017

An Act to codify the law on contempt of court and to provide for related matters.

Bill covers criminal contempt, civil contempt, recording of court proceedings, publication, and court powers in relation to online publications on a summary basis, subject to certain restrictions. These powers include the power to direct that posts be removed or not posted by way of suppression or take-down orders. Court orders may also be made to social media providers and provide for consequential repercussions where orders not complied with.

Status: Presented to the House on 24 October 2017. Bill unopposed. Still before the House.

4.

2014 United Kingdom—Law Commission Contempt of Court (2): Court Reporting

Concerned with one particular aspect of contempt by publication, namely the issue of reporting restrictions ordering the postponement of contemporary court reporting.

Looks at the accurate contemporary reporting of the content of legal proceedings taking place in public in criminal courts. Focuses on the power of the Crown Court to order that such reporting be postponed to avoid prejudice to court proceedings.

The report recommends that all court reporting postponement orders be posted on a single publicly accessible website. A further restricted service would also be available where, for a charge, registered users could find out the detail of the reporting restriction and could sign up for automated email alerts of new orders. This would reduce the risk of contempt for publishers, from large media organisations to individual bloggers, and enable them to comply with the court’s restrictions or report proceedings to the public with confidence.

As at January 2017 it was noted that the Government supports proposals encouraging transparency and openness in the Criminal Justice system, and welcomes these recommendations. It will consider how an online reporting restriction database could be taken forward as existing technology is replaced and updated, and will respond formally when the Criminal Justice System Common Platform is implemented.

5.

2013 United Kingdom—Law Commission Contempt of Court (1): Juror Misconduct and Internet Publications

Considered:

contempt by publication and the impact of the modern media (1.13)

contempt committed by jurors (1.13).

Rationale: these [two] areas represent the two sides of the same most pressing issue, namely, how to maintain public confidence that jury trials are, and continue to be, conducted on the evidence in the case and not by consideration of extraneous material, particularly material available on the internet. (1.14).

Made recommendations to reform the law of strict liability contempt relating to archived online material and to modernise the way in which juror misconduct is handled, including by creating offences of jurors researching their cases, and to provide limited exceptions to the prohibition on jurors disclosing deliberations, for example, in order to uncover miscarriage of justice.

Criminal Justice and Courts Act 2015 (UK)

Recommendations largely incorporated in the Criminal Justice and Courts Bill introduced in February 2014 but the strict liability provisions were later dropped. The remaining provisions relating to juror misconduct remained in the Bill which received Royal Assent on 12 February 2015. The juror misconduct provisions came into force on 13 April 2015.

6.

2012 United Kingdom—Law Commission Contempt of Court: Scandalising the Court

Considered whether the offence of scandalising the court should be retained, abolished, replaced or modified.

Recommends that scandalising the court should cease to exist as an offence or as a form of contempt in the law of England and Wales. This recommendation does not affect contempt in the face of the court, or liability for publications that may interfere with proceedings before any court.

Criminal Justice and Courts Act 2015 (UK)

The Law Commission’s report from its contempt review recommending abolition of the offence of scandalising the court was a major factor in the Government’s decision to support an amendment to the Crime and Courts Bill to repeal the offence. The Bill received Royal Assent on 25 April 2013 and the offence of scandalising the court was abolished two months later on 25 June 2013.

7.

2003 New South Wales—Law Reform Commission Report 100: Contempt by Publication

To inquire into, and report on, whether the law and procedures relating to contempt by publication are adequate and appropriate, including whether and in what circumstances, a person against whom a charge of contempt is found proven should be liable to pay, in addition to any criminal penalty, the costs (of the government and of the parties) of a criminal trial aborted as a result of the contempt.

The Commission noted in its report that its review was primarily concerned with sub judice contempt but also covered the power of courts to restrict the reporting of legal proceedings and the rules determining whether media representatives or other members of the public should be entitled to have court documents.

Recommendations aimed to ‘achieve clarity and precision in the operation of the law on sub judice contempt, with only such restrictions on freedom of discussion as are necessary.’

‘To codify only one aspect of contempt, leaving the common law to regulate the remaining areas, may lead to confusion and uncertainty for legal practitioners and the media. This has been the experience in the UK where the Contempt of Court Act 1981 (UK) purports, among other things to codify sub judice contempt but allows the rest of the law of contempt to be embodied in common law principles.’

Recommended some legislative reforms to make the law ‘clearer and fairer’, while allowing the common law to continue to develop.

Proposed 2 draft bills:

Draft Contempt of Court by Publication Bill 2003

Draft Legal Proceedings (Access to Documents and Reporting) Bill 2003

Court Information Act 2010 (NSW)

Makes provision for access to information held by courts

8.

2003 Western Australia—Law Reform Commission Report on Review on the Law of Contempt (Project No 93)

To inquire into and report upon the principles, practices and procedures relating to:

contempt by publication;

contempt in the face of the court; and

contempt by disobedience to the orders of the court

and whether the law pertaining thereto should be reformed and, if so, in what manner.

The law of contempt of court in Western Australia, other than as applicable under the Family Court Act 1997 (WA), should be codified and the procedures for prosecution made uniform. Upon codification of the law of contempt, s 7 of the Criminal Code Act Compilation Act 1913 (WA), which retains the authority of courts of record to punish a person summarily for the offence commonly known as ‘contempt of court’, should be repealed. (Recommendation 1)

Not implemented.

9.

1994 Ireland—Law Reform Commission Report on Contempt of Court

The Commission was asked to examine the laws of defamation and contempt of court. This report contains proposals on the second branch of the Attorney General’s request, that is, contempt of court.

The report notes: ‘The essential questions to be considered are whether it is (a) possible and (b) necessary to replace the existing common law structure of contempt of court with a new statutory scheme which would abolish the present concepts of criminal and civil contempt and replace them with a number of specific statutory offences. There may well be aspects of the law of contempt which could be reformed or clarified so as to render the law more “acceptable” in modern circumstances, but if the power to attach a person for contempt is an inherent power of the courts can one remove, curtail or vary that power or should one enact parallel legislation?’

The report made a number of recommendations for reform of the law in this area, including that some statutory offences should be introduced to replace the existing common law of contempt.

Notably, the Commission was divided on the issue of the inherent jurisdiction of the courts to deal with contempt, with some Commissioners ruling out any interference with the inherent powers of the courts to attach summarily for contempt and others wishing to clarify and delimit such powers in legislation or remove them entirely, as being unnecessary.

Not implemented.

10.

1987 Commonwealth—Australian Law Reform Commission Report No 35: Contempt

The Commission was asked to examine:

whether the law and procedures relating to contempt of court applied by Federal Courts and courts of the Territories, and by State courts in relation to the exercise of Federal jurisdiction, are adequate and appropriate;

whether the laws and procedures relating to contempt of Tribunals and Commissions created by or under laws of the Commonwealth are adequate and appropriate;

the appropriate legislative means of reforming those laws and procedures, having regard to any constitutional limitations on Commonwealth power; and

any related matter.

The ALRC was to have regard to:

the existing law of contempt;

the provisions of Article 19 of the International Covenant on Civil and Political Rights, that everyone shall have the right to freedom of expression;

the provisions of Article 14 of the International Covenant on Civil and Political Rights, that everyone shall, in the determination of any judicial proceedings, be entitled to a fair trial;

the need to ensure that judicial proceedings are conducted in an orderly fashion; and

the need to ensure that courts, tribunals and their officers are not unjustifiably brought into disrepute.

Note: Gallagher v Durack (1983) 152 CLR 238 was the impetus for the reference being given to the ALRC.

Recommended the common law principles of contempt be abolished and replaced by statutory provisions governing all Federal Courts except the High Court.

Recommendation 1. Approach to reform. Reform of the law of contempt should proceed as follows:

The common law of contempt of court including the procedure at common law for dealing with contempt, should be abolished and replaced by statutory provisions governing both substance and procedure.

The principles of criminal contempt, except for contempt in the face of the court, should be recast as criminal offences, to the extent that they do not already overlap with criminal law. Normal procedures for the trial of criminal offences should apply instead of summary contempt procedures.

Contempt in the face of the court should be replaced by a series of criminal offences, but the mode of trial should continue to be a summary one. The accused person should be entitled to elect, however, to be tried by a member or members of the court other than the member presiding at the time of the alleged offence.

Except in relation to the Family Law Act 1975 (Cth), recommendations not implemented

The law of civil contempt should be replaced by a statutory regime of ‘non-compliance proceedings’, in which the party entitled to the benefit of an order or undertaking allegedly disobeyed should be able to obtain sanctions to coerce the other party into obeying a subsisting order or to punish him or her for past disobedience.

‘Contempt’ in relation to commissions and tribunals should continue to take the form of specific statutory offences.

11.

1986 Hong Kong—The Law Reform Commission Report on Contempt of Court

The Commission was asked to consider whether the present law and practice relating to contempt of court in Hong Kong should be changed and, if so, in what way.

Recommended a comprehensive Contempt of Court Ordinance including the following:

(a) a clear statement of the principles by which ‘contempt of court’ is defined

(b) clear procedures establishing how contempts are to be dealt with in specific situations, including procedural controls to limit the potential for abuse

(c) clear guidelines to allow the media to understand at what time publication can constitute contempt

(d) clear limits on the penalties which may be imposed for contempt of court

(e) clear rules as to who may commence and discontinue contempt proceedings.

Not implemented

12.

1982 Canada—Law Reform Commission of Canada Report on Contempt of Court

The report examines criminal contempt, and does not consider civil contempt.

Recommended codifying the law of criminal contempt, and proposed draft legislation to this end.

A Bill designed to incorporate the law of criminal contempt into provisions of the Canadian Criminal Code was put to the Canadian parliament in 1984 but lapsed.

13.

1974 United Kingdom—Committee on Contempt of Court Report (Phillimore Review)

The Committee was asked to consider whether any changes were required to the law relating to contempt. (Note: Administration of Justice Act 1960 (UK) makes some provision for the law of contempt of court)

Recommendations aimed to achieve greater clarity and certainty in the law of contempt, especially with respect to the media. In relation to sub judice contempt, the recommendations sought to clarify and limit the scope of liability so as to ensure greater freedom of expression for the media.

Contempt of Court Act 1981 (UK)

Amends the law of contempt to introduce a strict liability rule for any publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced. For the Act to apply, the relevant proceedings must be active at the time of publication. The Act also deals with the confidentiality of jury deliberations, use of tape recorders, sources of information, publication of matters exempted from disclosure in court and offences of contempt of magistrates’ courts.

The Act was introduced in response to the ruling of the European Court of Human Rights in Sunday Times v United Kingdom (1979) 2 EHRR 245, where it held that the English law of sub judice contempt violated the right to freedom of expression enshrined in Article 10 of the European Convention on Human Rights.