Contempt of Court: Consultation Paper (html)

Questions

Chapter 1: Introduction

Principles of law relevant to this inquiry

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

Chapter 3: General issues with the law of contempt of court

Uncertainty of scope

2 Do the courts need a general power to punish any conduct that has a tendency to interfere with the proper administration of justice? Alternatively, should the law specify the conduct subject to sanction? If so, should only conduct that is intended to interfere with the administration of justice be subject to punishment?

Procedural safeguards

3 Should the procedure for filing and prosecuting a charge of contempt of court be the same as for other criminal offences? If not, what are the reasons necessitating a different procedure for contempt of court and what should be the features of that procedure?

Overlap with criminal law

4 Is there a need for statutory guidance on when the court may exercise its power to punish for contempt of court in circumstances where the conduct is also a statutory offence? If so, what guidance should be provided?

Penalties

5 Should there be a statutory maximum penalty for contempt of court? If so:

(a) What penalties should apply?

(b) Should different penalties apply for different manifestations of contempt?

6 What weight, if any, should be given to apologies in determining whether and what penalty is imposed for contempt of court?

7 Should the Sentencing Act 1991 (Vic) apply to contempt proceedings?

Warnings

8 In what circumstances do the courts give warnings for contempt?

9 When should contempt warnings be given?

10 Is there a need for guidance to the courts on the use of contempt warnings? If so, should such guidance be set out in statutory provisions?

11 Is there a need for greater clarity as to whether, when a court gives a contempt warning, there has been a finding that a contempt has in fact been committed and, if so, the status or effect of such a finding?

Chapter 4: Contempt in or near the courtroom—contempt in the face of the court

Definitional issues and possible reforms

The need for statutory provisions

12 Is there a need to retain the law of contempt in the face of the court?

13 If the law of contempt in the face of the court is to be retained, should the common law be replaced by statutory provisions? If so, how should it be defined and what fault elements, if any, should be required?

Insulting or disrespectful behaviour

14 If the law of contempt in the face of the court is to be replaced by statutory provisions, should insulting or disrespectful behaviour be included within the scope of the offence?

Defining ‘in the face of the court’

15 If the law of contempt in the face of the court is to be replaced by statutory provisions, should it be limited to conduct which is directly seen or heard by the presiding judicial officer? In other words, should the underlying test be whether the judicial officer can decide the contempt on the basis of their own observations, without the need to receive evidence from other witnesses?

Conduct covered by other criminal offences

16 Should conduct covered by other criminal offences be excluded from any statutory offence of contempt in the face of the court?

Procedural issues and possible reforms

The procedure for contempt in the face of the court

17 Should the procedure for initiating, trying and punishing a charge of contempt in the face of the court be set out in statutory provisions? If so, what should the procedure be? In particular:

(a) Is there a need to preserve the power of the courts to deal with contempt in the face of the court summarily?

(b) Should the process for dealing with a disruption to proceedings be separated from the process for trying and punishing the disruptive behaviour?

(c) Who should try the offence? Should the offence be able to be tried by the judicial officer before whom the offence was committed?

A consistent approach to disruptive conduct

18 What measures, if any, are required to ensure there is a consistent approach by judicial officers to disruptive behaviour in the courtroom?

The impact on certain groups of people

19 Under the current law, does the actual or threatened use of the power to punish for contempt in the face of the court affect certain groups of people unfairly? If so, how should this be addressed?

Chapter 5: Juror contempt

20 Does the Juries Act 2000 (Vic) adequately regulate the conduct of jurors and potential jurors? If not, what amendments to the Juries Act 2000 (Vic) should be made?

21 To the extent courts have the power to deal with juror contempt at common law, is there a need to retain this power?

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

(a) How should it be defined?

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

(c) Should conduct already covered by other statutory offence provisions be excluded?

23 Do current jury directions adequately instruct juries about determining cases only on the evidence, prohibitions on research and disclosure and asking questions of the trial judge? If not, what reforms are required?

24 How well are jurors and potential jurors currently educated about their functions and duties during the selection and empanelment process? How should they be educated about, and assisted in performing, their functions and duties?

Chapter 6: Non-compliance with court orders or undertakings—disobedience contempt

25 Is there a need to retain the law of disobedience contempt?

26 If the law of disobedience contempt is to be retained:

(a) What benefit does the distinction between civil and criminal contempt provide? Should this distinction be maintained?

(b) Should the common law of disobedience contempt be replaced by statutory provisions? If so, should it be replaced by statutory offence provisions and/or a statutory procedure for civil enforcement of court orders and undertakings? In either case,

i. Who should be responsible for and/or be able to commence proceedings?

ii. What should the party commencing proceedings be required to establish and to what standard of proof?

iii. What penalties should apply?

Chapter 7: Contempt by publication (1)—sub judice contempt

27 Is there a need to retain the law of sub judice contempt?

28 If the law of sub judice 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 defined, including:

i. The ‘tendency’ test

ii. The definition of ‘publication’

iii. The beginning and end of the ‘pending’ period?

(b) Should fault be an element, or alternatively should there be a defence to cover the absence of fault?

(c) Should the public interest test be expressly stated?

(d) Should upper limits for fines and imprisonment be set?

29 Is there a need for greater use of remedial options, for example jury directions or trial postponement? If so:

(a) How should this be facilitated?

(b) Are other mechanisms, for example pre-trial questioning of jurors, also required?

30 Is there a need for education about the impact of social media on the administration of justice and sub judice contempt to be targeted to particular groups, for example judicial officers and jurors?

31 What other reforms should be made, if any, to this area of the law of contempt of court?

Chapter 8: Contempt by publication (2)— scandalising the court

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?

Chapter 9: Prohibitions on publication under the Judicial Proceedings Reports Act

Indecent matters and public morals

36 Should the prohibition in section 3(1)(a) of the Judicial Proceedings Reports Act 1958 (Vic) on the publication of indecent matter and indecent medical, surgical or physiological details in relation to any judicial proceedings be repealed?

Divorce and related proceedings

37 Should the prohibition in section 3(1)(b) of the Judicial Proceedings Reports Act 1958 (Vic) on the publication of the details of divorce and related proceedings be repealed?

The prohibition on reporting directions hearings and sentence indications

38 Are the statutory prohibitions in section 3(1)(c) of the Judicial Proceedings Reports Act 1958 (Vic) on the reporting of criminal directions hearings and sentence indication hearings necessary? If so:

(a) What should be the scope of such prohibitions?

(b) Where should such prohibitions be located to optimise awareness of their existence and operation?

(c) Should other pre-trial hearings, such as bail hearings or committal proceedings also be subject to statutory reporting restrictions?

Victims of sexual offences

39 Should the statutory prohibition on identifying victims of sexual offences under section 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic) continue to apply automatically from the time of complaint, throughout proceedings and after proceedings have concluded? If so:

(a) What further legislative guidance should be provided about the scope of the prohibition?

(b) Should the prohibition continue to be located in the Judicial Proceedings Reports Act 1958 (Vic) or is the provision more appropriately located in other legislation?

A victim’s ability to speak

40 How should the law accommodate a victim’s ability to speak?

41 When should a victim be able to consent to publication of identifying material?

(a) Should the court’s supervision and permission also be required?

(b) What, if any, special provision should be made for child victims?

Temporary restrictions—sex offences and family violence

42 Is a statutory prohibition required to temporarily restrict reporting in cases where an accused has been charged with a sexual or family violence criminal offence? If so:

(a) What information should be permitted to be published—should the court have discretion to order that additional or less information be published?

(b) When should the temporary prohibition apply?

(c) Should the temporary prohibition only apply to cases where the accused has been charged with a sexual or family violence criminal offence?

Chapter 10: Enforcement of prohibitions and restrictions on publication

Publication

43 Should the terms ‘publish’ and ‘publication’ be defined consistently? If so, how should these terms be defined?

44 Are there any other issues arising out of the definitions of ‘publish’ and ‘publication’ that should also be addressed?

45 To what extent are potential reforms to the definition of the terms ‘publish’ and ‘publication’ affected or limited by Commonwealth law?

46 What reforms, if any, should be made to address the liability of online intermediaries for the publication of prohibited and restricted information?

Jurisdiction

47 Should the law seek to enforce prohibitions and restrictions on publication:

(a) in other Australian states and territories

(b) in foreign jurisdictions?

If so, how should this be achieved?

Awareness of prohibitions and restrictions

48 What processes should be in place for notifying or reminding the media and the wider community of the existence of prohibitions and restrictions on publication, including court orders and the operation of automatic statutory provisions?

Monitoring compliance with prohibitions and restrictions

49 Should there be a system for monitoring compliance with prohibitions and restrictions on publication? If so:

(a) How should such compliance be monitored?

(b) Who should be responsible for monitoring such compliance?

Responsibility for instituting proceedings

50 Who should be responsible for instituting proceedings for breach of prohibitions and restrictions on publication?

51 Should the ‘DPP consent’ requirements under the Judicial Proceedings Reports Act 1958 (Vic) be retained?

Fault elements to prove breach of prohibitions and restrictions

52 Should liability arise where there is a lack of awareness of the relevant prohibition or restriction on publication?

Defences and exceptions

53 Are the existing exceptions for information-sharing agencies appropriate? Alternatively, do they inhibit information-sharing? If so, how should these barriers be addressed?

54 What defences, if any, should be available to people who have published information which is prohibited or restricted?

Penalties and remedies

55 Are the existing penalties and remedies for breaches of prohibitions and restrictions on publication appropriate? If not, what penalties and remedies should be provided?

56 Should penalties for breaches of common law suppression orders and pseudonym orders be set out in statutory provisions?

57 Should a court be able to issue an order for internet materials to be taken down (‘take-down order’)? If so:

(a) Should the process for seeking and making such orders be embodied in legislation?

(b) Who should be responsible for monitoring the Internet (and social media) for potential ‘take-down’ material?

(c) Who should be responsible for making applications for take-down orders?

(d) Should such applications be conducted on an adversarial or ex parte basis?

Legacy suppression orders

58 How many legacy suppression orders with no end date issued by the Supreme, County and Magistrates’ courts are currently in force?

59 Should there be provisions in the Open Courts Act 2013 (Vic), or another statute, which specify the duration of legacy suppression orders? If so:

(a) Should there be a deeming provision in the Open Courts Act 2013 (Vic), or another statute, which provides that legacy suppression orders are deemed to have been revoked from a particular date, subject only to applications from interested parties to:

i. vary the order?

ii. continue the order for a further specified time?

iii. revoke the order at an earlier date?

(b) Should there be provisions in the Open Courts Act 2013 (Vic), or another statute, which specify procedures for notification of legacy suppression orders and applications for continuation or revocation of such orders?