Contempt of Court: Report (html)

1. Introduction

Referral to the Commission

1.1 By letter dated 12 October 2018, the then-Attorney-General, the Hon. Martin Pakula MP asked the Victorian Law Reform Commission (the Commission) to review and report on the law relating to contempt of court, the possible reform of the Judicial Proceedings Reports Act 1958 (Vic) and the legal framework for enforcement of prohibitions or restrictions on the publication of information. In relation to this last issue, the terms of reference ask the Commission to consider the law relating to contempt of court, the Judicial Proceedings Reports Act and the Open Courts Act 2013 (Vic).

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

Scope of the reference

1.3 The terms of reference cover three distinct but related areas of law:

• the common law of contempt of court

• the Judicial Proceedings Reports Act

• the Open Courts Act.

1.4 Underpinning each of these areas of law and this report is a concern with how best to balance:

• the need to safeguard the proper administration of justice

• freedom of expression and freedom to criticise public institutions

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

Contempt of court

1.5 In considering the law of contempt of court, the Commission focuses on its most common forms:

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

• contempt arising from non-compliance with court orders or undertakings—also known as disobedience contempt

• juror contempt

• contempt by publication that interferes with or prejudices pending proceedings—also known as sub judice contempt

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

1.6 This inquiry does not consider contempt arising in other contexts, such as contempts of parliament, tribunals or commissions of inquiry which are outside the Commission’s terms of reference.

1.7 However, tribunals are regularly confronted with issues of contempt, in particular, contempt in the face of the court and disobedience contempt. Tribunals are empowered to deal with contempt under their constituting legislation,^[1] as are other bodies or persons with a quasi-judicial role, such as the Chief Examiner and the Independent Broad-Based Anti-Corruption Commission.^[2]

1.8 Accordingly, the government will need to consider the broader implications of any reforms to the common law of contempt of court for Victoria’s court system as a whole, including tribunals and other bodies with a quasi-judicial role, should it decide to implement the recommendations in this report.

The Judicial Proceedings Reports Act

1.9 The terms of reference asked the Commission to consider whether there is a need to retain the provisions of the Judicial Proceedings Reports Act and, if so, whether such provisions should be moved to subject-specific legislation or in the Open Courts Act.

1.10 The terms of reference also asked the Commission to consider the need for legislative change to temporarily restrict the publication of sensitive information when charges are laid in relation to alleged sexual or family violence offences.

1.11 In addition, the terms of reference asked the Commission to consider the Judicial Proceedings Reports Act in the context of the enforcement of prohibitions and restrictions on publication.

The Open Courts Act

1.12 The terms of reference specifically asked the Commission to consider the Open Courts Act when reviewing the enforcement of prohibitions and restrictions on the publication of information.

1.13 Accordingly, the Commission’s consideration of the Open Courts Act was limited to the issues identified in the terms of reference, which included suppression orders made before the commencement of that Act that do not contain an end date.^[3]

1.14 The report does not consider the Open Courts Act more broadly and does not consider other legislation with prohibitions or restrictions on the publication of information, except as may be required by way of comparison.

Assumptions

1.15 The Commission has assumed that existing laws will continue to apply. In particular, the Commission has assumed that the following will continue to apply:

• the laws of evidence, including when evidence is admissible and the protection of journalists from disclosure

• the laws of criminal procedure, including the jury system

• the laws in relation to family violence and sexual offences, including the treatment of victim survivors.

1.16 These laws are relevant to contempt law. For example, as stakeholders submitted, sub judice contempt disproportionately affects journalists,^[4] and the protection of a free press is a critical element of the principle of open justice as well as freedom of expression.^[5] The scope of sub judice contempt is also affected by the laws regulating the admissibility of evidence, as much of sub judice contempt concerns potentially prejudicial material, which is generally inadmissible at trial. While there is debate about the merits of this aspect of the law of evidence, the Commission has proceeded on the basis that the current position on the issue remains unchanged. The merits of this position are outside the scope of the current terms of reference.

1.17 The rationale for sub judice contempt also depends on the continuation of the jury system. In this context, the Commission notes that the Department of Justice and Community Safety is currently inquiring into the desirability of judge-alone trials.^[6] However, in undertaking this review, the Commission has assumed that jury trials will remain an essential feature of Victoria’s legal system and will continue in their current form.

1.18 Victim survivors in consultations also raised broader issues concerning their protection by the law and from the media.^[7] These are relevant to the discussion in Chapter 12 about the operation of the Judicial Proceedings Reports Act.

1.19 While these issues affect the operation of the law of contempt and have been considered as part of the underlying context for the recommendations in this inquiry, the Commission has not made recommendations to change these laws. Such recommendations would extend beyond the terms of reference in this inquiry and have implications in other areas of the law that the Commission has not fully considered.

The approach of the Commission

1.20 The Commission adopted a principles-based approach to whether reform to the common law of contempt of court, the Judicial Proceedings Reports Act and the legal framework for enforcement of prohibitions or restrictions on publication is necessary. To this end, the Commission’s consultation paper, discussed below, identified a number of key principles and sought stakeholders’ views on whether other principles were relevant.^[8] These principles and views informed the Commission in reaching conclusions and making the recommendations in this report.

Relevant reviews and reforms

1.21 There have been many reviews of the law of contempt of court.^[9] These include reviews in Australia,^[10] the United Kingdom,^[11] Ireland,^[12] Canada^[13] and New Zealand.^[14]

1.22 As a result, there has been legislative change in the United Kingdom^[15] and New Zealand.^[16]

Review of the Open Courts Act

1.23 In 2017, the Hon. Frank Vincent AO QC conducted a review of the Victorian Open Courts Act, making 18 recommendations.^[17]

1.24 The Victorian Government has stated that it supports in full or in principle 17 of the 18 recommendations. As at the time of writing this report, one recommendation remains under consideration.^[18]

1.25 In May 2019, as a first stage of the government’s response, the Open Courts and Other Acts Amendment Act 2019 (Vic) was enacted. The Act amends the Open Courts Act and other existing laws to reinforce the presumption in favour of open justice and the disclosure of information in Victorian courts.

1.26 In particular, the amending Act requires courts to have regard to the primacy of the principle of open justice and the free communication and disclosure of information when making suppression and closed court orders.^[19] Relevantly to the Commission’s review, the Act amends the prohibition on identifying victims of sexual offences in the Judicial Proceedings Reports Act.^[20] This amendment is discussed further in Chapter 12. This amendment will come into operation on 7 February 2020, unless proclaimed earlier.^[21]

1.27 The terms of reference required the Commission to have regard to the recommendations of the Open Courts Act Review. Therefore, they are considered where relevant.

Other relevant reviews and reforms

1.28 A number of other reviews and reforms both in Australia and overseas are relevant and have implications for this review by the Commission. These include:

• the Victorian Department of Justice and Community Safety review currently underway into the use of judge-alone trials for criminal cases^[22]

• the New South Wales Law Reform Commission review on the operation of legislative prohibitions on the disclosure or publication of New South Wales court and tribunal information, New South Wales court suppression and non-publication orders, and tribunal orders restricting disclosure of information, and access to information in New South Wales courts and tribunals, announced in February 2019^[23]

• the Senate Select Inquiry on the Future of Public Interest Journalism report, tabled in the Australian Parliament in February 2018^[24]

• the United Kingdom inquiry into online harms, which published a white paper in April 2019^[25]

• the 2019 inquiry by the Australian Competition and Consumer Commission on the impact of digital platforms, including on the quality of news and journalism,^[26] and the Australian Government’s response, which includes creation of a new platform-neutral regulatory framework^[27]

• the current reference to the Tasmania Law Reform Institute on jurors’ use of social media and other internet platforms during criminal trials^[28]

• the review of Model Defamation provisions currently being undertaken by the Council of Attorneys-General^[29]

• amendments to the Sexual Offences Evidence and Procedure Act 1983 (NT), currently before the Northern Territory Parliament, to enable sexual offences victims to speak out in certain circumstances.^[30]

Commission process

Commission Chair

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

1.30 On 4 March 2019 Mr Bruce Gardner PSM was appointed Acting Chair of the Commission. Mr Gardner led the conduct of the reference until the appointment of the Hon. Anthony North QC as the new Chair of the Commission on 30 August 2019.

The Division

1.31 In accordance with section 13(1)(b) of the Victorian Law Reform Commission Act 2000 (Vic), a Division was constituted to guide and oversee the conduct of the reference. All members of the Commission were members of the Division.

Advisory committee

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

1.33 Given the nature of the reference, an advisory committee comprising experts on the law of contempt of court and in the understanding of juror decision making was formed.

1.34 The first meeting of the advisory committee was held on 21 February 2019 to assist the Commission in identifying key issues. A further meeting was held on 17 October 2019 to discuss reform options. The members of the advisory committee are listed at Appendix A.

Consultation paper

1.35 In May 2019 the Commission published a consultation paper responding to the terms of reference.^[31]

1.36 The consultation paper posed 59 questions for consideration and invited written submissions by 28 June 2019.

Submissions

1.37 A total of 34 written submissions were received (see Appendix B). Those which may be made public were published on the Commission’s website.

Consultations

1.38 In conducting the reference, the Commission consulted with a wide range of stakeholders, including representatives from the legal profession, the courts and judiciary, academics, and victims’ advocacy and support organisations.

1.39 Two stages of consultations were held. The first consisted of preliminary meetings with representatives from the courts, judiciary and academia to assist the Commission to understand some of the key issues and start identifying proposals and options for reform. This helped the development of the consultation paper.

1.40 The second consultation stage followed publication of the consultation paper and consisted of formal consultations with a range of stakeholders, interested organisations and individuals. Twenty-seven formal consultation meetings were held, with the Commission consulting some stakeholders more than once (see Appendix C).

Constitutional advice

1.41 To inform the review, the Commission obtained legal advice on the constitutional limits for reform of the common law of contempt. A copy of the advice from Peter Hanks QC and Thomas Wood, dated 3 September 2019, is included as Appendix D.

Report structure

1.42 This report is divided into four parts:

• Part One: Commission approach (this chapter)

• Part Two: The law of contempt of court (Chapters 2–11)

• Part Three: The Judicial Proceedings Reports Act (Chapter 12)

• Part Four: Enforcing publication restrictions (Chapters 13–17).

1.43 Part Two addresses whether and how the common law of contempt should be reformed. This part sets out the Commission’s general approach to reform, including in Chapter 2 why the law needs to be reformed, and in Chapter 3 the form of the Contempt of Court Act that the Commission recommends. Chapter 4 discusses how contempt should be defined in the proposed Act, and Chapter 5 recommends the procedure and penalties that should apply. Chapter 6 discusses the contempt powers of lower courts. Part Two then considers how to reform some more common categories of contempt that should be defined in the proposed legislation:

• Chapter 7: contempt in the face of the court (interferences with the conduct of court proceedings)

• Chapter 8: disobedience contempt (non-compliance with court orders and undertakings)

• Chapter 9: juror contempt

• Chapter 10: sub judice contempt (restricting the publication of material that prejudices legal proceedings)

• Chapter 11: scandalising the court (restricting the publication of material that undermines public confidence in the judiciary).

1.44 Part Three addresses whether and how the Judicial Proceedings Reports Act should be reformed. This includes the need for a temporary restriction on publishing sensitive information about sexual or family violence offences when charges are laid.

1.45 Part Four addresses how to improve enforcement of restrictions on publications. Chapter 13 discusses how to improve enforcement in the online age, and Chapter 14 the need for a statutory take-down order scheme. Chapter 15 addresses the consistency of penalties, and Chapter 16 recommends other measures to promote compliance with publication restrictions. Finally, Chapter 17 makes recommendations about how to deal with legacy suppression orders made before the commencement of the Open Courts Act.

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

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2. See Major Crime (Investigative Powers) Act 2004 (Vic) s 49; Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ss 152–8.

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3. Prior to the Open Courts Act end dates were optional whereas under the Open Courts Act end dates are mandatory. Hence there is a limited number of pre-Open Court Act orders with indefinite operation.

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4. See, eg, Submissions 6 (Professors Mark Pearson, Patrick Keyzer, Anne Wallace and Associate Professor Jane Johnston), 17 (Dr Denis Muller); 23 (MinterEllison Media Group).

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5. Human Rights Committee, General Comment No. 34 (Article 19: Freedoms of opinion and expression), UN Doc CCPR/C/GC/34 (12 September 2011) [13]–[17].

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

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7. Consultations 1 (Representatives of victims of crime support organisations), 3 (Representatives of victim survivors of family and sexual violence).

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8. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 3-6 [1.13]–[1.27], Question 1.

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9. For a summary of these reviews and reforms see Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) Appendix B

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10. Law Reform Commission of Western Australia, Report on Review of the Law of Contempt (Project No 93, June 2003); New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003); The Law Reform Commission, Contempt (Final Report No 35, December 1987).

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11. Law Commission (England and Wales), Contempt of Court (2): Court Reporting (Report No 344, March 2014); Law Commission (England and Wales), Contempt of Court (1): Juror Misconduct and Internet Publications (Report No 340, 2013); Law Commission (England and Wales), Contempt of Court (Consultation Paper No 209, 2012); Committee on Contempt of Court (UK), Report of the Committee on Contempt of Court (Cmnd 5794, December 1974).

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12. The Law Reform Commission Ireland, Report on Contempt of Court (Report No 46, September 1994); see also Law Reform Commission Ireland, Contempt of Court and Other Offences and Torts Involving the Administration of Justice (Issues Paper No 10, 2016).

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13. Law Reform Commission of Canada, Contempt of Court (Report No 17, 1982).

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14. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, May 2017).

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15. Contempt of Court Act 1981 (UK); Crime and Courts Act 2013 (UK) s 33.

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16. Contempt of Court Act 2019 (NZ).

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17. Frank Vincent, Open Courts Act Review (Report, September 2017) 9–11 <https://engage.vic.gov.au/open-courts-act-review>.

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18. Victorian Government, Open Courts Act Review Table of Recommendations (March 2018) <https://engage.vic.gov.au/open-courts-act-review>.

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19. Open Courts and Other Acts Amendment Act 2019 (Vic) s 12, substituting s 28.

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20. Ibid s 15.

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21. Ibid s 2.

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

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23. Department of Justice (NSW), ‘Open Justice Review’, Justice—Law Reform Commission (Web Page, 3 June 2019) <https://www.lawreform.justice.nsw.gov.au/Pages/lrc/lrc_current_projects/Courtinformation/Project_update.aspx>.

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

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25. Her Majesty’s Government (UK), Online Harms White Paper (April 2019) <https://www.gov.uk/government/consultations/online-harms-white-paper>.

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26. Australian Competition & Consumer Commission, Digital Platforms Inquiry (Final Report, June 2019).

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27. Treasury (Cth), Regulating in the Digital Age: Government Response and Implementation Roadmap for the Digital Platforms Inquiry (Report, 12 December 2019) <https://treasury.gov.au/publication/p2019-41708>.

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28. Tasmania Law Reform Institute, Jurors, Social Media and the Right of an Accused to a Fair Trial (Issues Paper No 30, August 2019).

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29. A Discussion Paper was released for comment in February 2019 and submissions closed on 30 April 2019: ‘Review of Model Defamation Provisions’, Department of Communities and Justice (NSW) (Web Page, 3 February 2020) <https://www.justice.nsw.gov.au/defamationreview>. Draft amendments to the Model Defamation Provisions together with a background paper were released for feedback in November 2019: Australasian Parliamentary Counsel’s Committee, Council of Attorneys-General, Model Defamation Amendment Provisions (Report Draft d15, November 2019) <https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/consultation-draft-of-mdaps.pdf>. Council of Attorneys-General, Department of Communities and Justice (NSW),
    
    Model Defamation Amendment Provisions 2020 (Consultation Draft) (Background Paper, December 2019) <https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/defamation-final-background-paper.pdf>. Submissions are due by
    
    24 January 2020.

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30. Sexual Offences (Evidence and Procedure) Amendment Bill 2019 (NT). At the time of writing the Bill was before the legislative scrutiny committee which will report back to Parliament in March 2020. See also Lauren Roberts, ‘Northern Territory Sexual Assault Survivors Will Be Able to Share Their Stories’, ABC News (online, November 2019) <https://www.abc.net.au/news/2019-11-28/northern-territory-sexual-assault-survivors-speak-out/11745112>.

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31. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019).

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