Contempt of Court: Report (html)

11. Scandalising the court

Overview

• The breadth of the common law contempt of scandalising the court can no longer be justified.

• There is still a limited need to protect against statements that impair public confidence in the courts.

• This protection should exist only where the statement is false and where a person intends or is reckless as to its effect on the courts. It should not extend to opinions.

• This protection should only exist where there is a serious risk to the integrity and authority of the courts.

• Proceedings for this form of contempt may be commenced by the Attorney-General, the Director of Public Prosecutions and the Supreme Court.

• The maximum penalty for this contempt should be two years imprisonment for an individual or an equivalent fine.

What is scandalising the court?

11.1 If a person publishes statements that impair public confidence in the courts, this can be contempt.^[1] This is referred to as ‘scandalising the court’. This kind of contempt is not limited to comment on specific trials.^[2] For example, it can be a contempt to say that a union influenced a judge’s decision^[3] or to allege that judges are biased and corrupt.^[4]

11.2 This is the most controversial form of contempt. This chapter considers whether this form of contempt can still be justified. It concludes that, while it is becoming less relevant, there is still a limited need to protect the judiciary.

11.3 The chapter then discusses how to narrow the scope of this form of contempt. It concludes by considering the appropriate procedure and penalty.

Should scandalising the court be abolished?

11.4 Scandalising the court exists because:

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.^[5]

11.5 The consultation paper asked whether scandalising contempt was still needed.^[6] It noted that attitudes have changed, and the public expects courts will be open to robust scrutiny. There is greater recognition of freedom of expression and the principle of open justice.^[7]

11.6 Having ruled that scandalising the court was incompatible with free speech, Courts in Canada and the United States narrowed its scope to the extent that it is never used.^[8] In other countries with similar protections, such as New Zealand and South Africa, courts have held that scandalising the court is compatible with their respective charters of human rights.^[9]

11.7 The consultation paper discussed other criticisms of this form of contempt, including:

• It gives protection to the judiciary not available to others.^[10]

• It reflects an outmoded view of how to promote public trust and confidence in the courts, which is best earned rather than commanded.^[11]

• There is an inherent conflict of interest in the judicial officer being victim, prosecutor and judge.^[12]

• Exercising the power to punish for this contempt undermines rather than bolsters respect for the courts.^[13]

• It is not well known to the public and has a limited symbolic value.^[14]

• There is no evidence that such protection is needed to maintain public confidence^[15] and the risks to the administration of justice are remote and speculative.^[16]

• Its scope is uncertain.^[17]

• It is selectively prosecuted, which further ‘chills’ public discussion and undermines public confidence in the courts.^[18]

11.8 Another argument is that courts have found other ways to deal with criticism. For example, courts now publish summaries of judgments and sentencing remarks, employ media liaison officers, publish podcasts,^[19] and sometimes respond publicly to criticism.^[20] Professional associations such as the Victorian Bar Association, the Judicial Conference of Australia and the Law Institute of Victoria (LIV) regularly defend judges publicly.^[21]

Abolishing or reforming scandalising the court

11.9 As discussed in the consultation paper, there are two main approaches to scandalising the court:

• abolishing it, as was done by England and Wales in 2013^[22]

• narrowing it in legislation, as recommended by several law reform commissions.^[23]

11.10 The New Zealand Law Commission (NZ Commission) adopted the second approach.^[24] A more limited offence was introduced into Parliament.^[25] During the passage of the Bill, the Justice Committee unanimously recommended that the offence should be removed.^[26]

11.11 It was re-inserted by the New Zealand Government, which relied in part on concerns expressed by the UK Government about its experience since scandalising the court was abolished.^[27] The offence was narrowed further before the Bill was passed.^[28]

Responses

11.12 Stakeholders strongly supported courts being open to criticism and held accountable. Thus, the scope of current law could not be justified. However, they disagreed about whether scandalising the court should be abolished or narrowed in legislation.

11.13 Most stakeholders recommended abolishing scandalising the court,^[29] because it was ‘unnecessary, dangerous and oppressive in a modern democratic society’.^[30] Several considered this contempt an unjustified restriction on freedom of speech.^[31] Further, laws should foster discussion of court decisions and the reporting of judicial misconduct.^[32]

11.14 Many stakeholders agreed with other criticisms of scandalising the court. These included that judges should not be singled out for special treatment^[33] and the judiciary could withstand criticisms.^[34]

11.15 They also agreed this contempt was counterproductive^[35] and there was insufficient evidence for its underlying assumptions.^[36] They pointed to its absence or repeal in other jurisdictions.^[37] They emphasised its extremely vague nature^[38] and the counterproductive effect of selective prosecutions.^[39]

11.16 Most also considered there were better ways to address the underlying concern, such as better engagement with the media and the public.^[40]

11.17 The LIV observed that the case for abolition was stronger in Victoria because of Victoria’s Charter of Human Rights. In its view, the ‘broad, uncertain and unfettered’ scope of this contempt breached the Charter, including the right to a fair trial.^[41] Some noted that its scope may be limited by the implied right to political communication in the Constitution.^[42]

11.18 The Commercial Bar Association Media Law Working Group (CommBar—Media Law Section) argued that the ‘central problem is that the determination of what is true, fair or robust is not always clear and the final determination is made by the very instrument that is being criticised’.^[43]

11.19 The courts and tribunals and the International Commission of Jurists recommended reforming scandalising contempt through a statutory provision.^[44]

11.20 The Supreme Court endorsed the formulation proposed in the New Zealand Bill (before the amendments made in committee).^[45] The Court emphasised that mere criticism and insult should not be criminalised. The law should penalise conduct seemingly directed at influencing decisions or seeking to de-legitimise the courts and undermine their authority.

11.21 The Court pointed to examples in other countries and through history where campaigns had been mounted to undermine the courts’ ability to check power. The Court noted that courts and judicial officers are ethically constrained in responding to public accusations. In its view, contempt remained the appropriate means of enforcement.^[46]

11.22 The County Court said this form of contempt was more important today because of increased media scrutiny and consequent increased risks of unfounded or malicious criticism. It indicated that certain actions could cause significant damage to the court.

11.23 The Court gave as examples attempts to incite others to defy lawful authority or to influence the way judges made their decisions. It supported modernising scandalising the court in legislation. It agreed with the Supreme Court that other remedies did not replace the need for this form of contempt.^[47]

11.24 The International Commission of Jurists reported that, in a recent judicial roundtable, many had expressed concerns about the increasingly ‘vitriolic’ nature of commentary. It argued ‘that this is not the time to diminish the capacity of the contempt power’. In its view, there was no need to restrict fair and objective criticism, even exceptionally harsh criticism, of court decisions on the ground of error of reasoning, facts or exercise of discretion. However, this form of contempt was needed as a last resort and should be sparingly used to protect against ‘unbalanced, ill-informed, inaccurate, biased, superficial or sensational criticism’.^[48]

Commission’s conclusions: define a more limited contempt

11.25 The common law of scandalising the court cannot be justified today. There needs to be greater room for freedom of expression and robust scrutiny of the courts. Respect for the courts is best earned rather than commanded.

11.26 Mere criticism and insult should not be a crime. Nor should this form of contempt protect the reputations and feelings of individual judges.

11.27 The courts can and should use other ways to address much of what is now within this form of contempt. However, the Commission acknowledges that in practice judges are unlikely to sue for defamation, and that defamation proceedings protect the individual reputation rather than systemic harm to the courts.

11.28 Some kinds of conduct falling within scandalising are better characterised as harassment of judicial officers. Such conduct may be better dealt with through specific statutory offences. For example, the existing offence of harassing witnesses could be expressly extended to judges.^[49] However, such a recommendation goes beyond the terms of reference of this inquiry.

11.29 Much of the conduct that falls within scandalising now could be removed safely. The key question is whether a person can, through public statements, risk undermining the public confidence needed to sustain our courts.

11.30 The Commission considers there are few occasions where this could occur. In almost all cases, there will be no substantial risk in criticisms of courts and judges by disappointed litigants, frustrated citizens, or even high-profile media commentators or publications. Such criticism can ordinarily be treated as part of robust public discourse.

11.31 However, there are extreme cases where such statements could create such a risk. In recent years, judges of the United Kingdom Supreme Court have been labelled ‘enemies of the people’,^[50] and, in other countries, presidents and other high-ranking members of the executive or legislature have made increasingly strident attacks on the competency and impartiality of the courts.^[51]

11.32 Such cases expose the limits to which the courts can respond compared to other arms of government. Parliaments and the executive can respond publicly and engage to the full extent with media. Those arms of government are also elected, so must be subject to greater scrutiny.

11.33 The courts perform a distinctive function. They regulate disputes between individuals, as well as between the individual and the state. The judiciary is also the arm of government deliberately designed not to reflect the will of the majority or political power. However, the courts are dependent on the executive to enforce their decisions.

11.34 Therefore, courts are more vulnerable constitutionally because their decisions can be unpopular and can check the power of others. This is especially important today, when there are risks to the rule of law.

11.35 Ultimately, the purpose of this contempt is to protect the rule of law, including the confidence of those appearing before the courts in the fairness of the system. In this way, this contempt protects the right to a competent, independent and impartial court or tribunal.^[52]

11.36 Contempt law can play only a limited role in protecting against the erosion of the respect of the courts. In a healthy constitutional democracy, contempt powers need to be exercised rarely and with great discretion to preserve their effectiveness.

11.37 Nevertheless, such examples show it is possible for statements to create a substantial risk of undermining public confidence in the judiciary. In extreme cases, the risk to the administration of justice may be greater than in more ordinary forms of contempt. It would be inconsistent to protect the administration of justice against these lesser risks but not the greater risks created by public statements.

11.38 The Commission therefore recommends a more limited protection of the judiciary and the courts in the legislation. Consistently with the approach of the Commission elsewhere in this report, this category of contempt should be redefined in simpler and more accessible language that more accurately reflects the scope and purpose of this type of contempt.

Recommendation

89 The proposed Act should recognise ‘scandalising contempt’ as a distinct category of contempt and redefine it as ‘contempt by publishing material undermining public confidence in the judiciary or courts’.

How should scandalising contempt be limited?

11.39 The consultation paper identified two models of statutory offences which had been proposed by the Australian Law Reform Commission (ALRC) and the NZ Commission.

11.40 Some stakeholders endorsed a particular model in their submissions. The Supreme Court and the Criminal Bar Association supported the New Zealand model as introduced into their Parliament.^[53] The LIV, while strongly recommending abolition, supported the ALRC model in the alternative.^[54]

11.41 This section discusses how to identify the permissible limits of the protection. It examines the following areas of the common law that need to be rebalanced or made clear:

• truth

• opinion

• the mental element (intention)

• the appropriate threshold of risk required

• the harm that is the focus of the contempt.

Truth

11.42 It is not clear whether truth is a complete defence to contempt by scandalising the court.^[55] As the NZ Commission stated:

a defendant cannot be said to be responsible for undermining public confidence in the judiciary where the allegations made are in fact true.^[56]

11.43 This uncertainty could discourage people from making well-founded allegations and reduce the proper scrutiny of the judiciary.^[57] Law reform commissions therefore have consistently proposed that truth should be a defence.^[58]

11.44 However, concerns have also been raised about a defence of truth. In New Zealand, such a defence was originally included in the proposed offence but it was opposed by legal academics. They considered that this infringed the presumption of innocence, and the defence of truth ‘may be illusory or, at best, put the courts asked to adjudicate on it in a difficult position’.^[59]

11.45 During the debate on the New Zealand contempt legislation, the New Zealand Ministry of Justice proposed significant changes to the statutory offence.^[60] This included making the prosecution prove the falsity of the statement rather than making the defendant prove truth. This change was made to align with general criminal law principles.^[61] This change is reflected in the Act.^[62]

Opinion and fair comment

11.46 The common law is unclear as to the extent to which it can punish mere opinion. Cases indicated that it is not scandalising the courts if the publication is ‘fair comment’.^[63] ‘Fair comment’ has been said to mean:

it must be honest criticism based on rational grounds, and be a discussion which is fairly conducted. It must not be motivated by malice or by an intention to undermine the standing of the courts within the community.^[64]

11.47 The Law Reform Commission of Western Australian (WA Commission) recommended protecting fair comment.^[65] The NZ Commission, however, considered there should be no defence of honest opinion, because it had never been part of the law of contempt and was not consistent with its overall purpose. In its view, such a defence would ‘confine the proposed offence to a very small choice of exceptional cases’.^[66]

11.48 The freedom to hold an opinion, unlike freedom of expression, is considered an absolute freedom under human rights law.^[67] In the European context, it has been therefore held that it is an infringement of that freedom to hold a person liable for the expression of an opinion based on facts.^[68]

11.49 One of the changes made to the New Zealand Contempt of Court Bill was to limit liability to false factual statements rather than ‘accusations or allegations’. This would exclude expressions of opinion.^[69]

11.50 The New Zealand Ministry of Justice noted that ‘including opinion involves too great a trade-off against free speech for too little benefit’. In its view, if a person’s opinions were extreme and potentially damaging, the Solicitor-General or Attorney-General could still defend the judiciary.^[70]

The mental element (intention)

11.51 As discussed in the consultation paper, it appears that an intention to interfere with the administration of justice is not a necessary element of this form of contempt.^[71]

11.52 The New Zealand Ministry of Justice also changed this part of the offence during the passage of the Bill. It recommended including a mental element of intention or recklessness. This means the prosecution would have to prove that the defendant knew or ought reasonably to have known that their statement could undermine public confidence in the judiciary or a court.^[72]

Threshold of risk

11.53 The courts have emphasised the need for the conduct to pose a ‘real’ or ‘serious’ risk of undermining public confidence in the administration of justice.^[73]

11.54 In this report, the Commission has recommended that a ‘substantial risk’ should be the threshold for the general law of contempt. However, there may be a justification for a higher threshold for scandalising contempt.

11.55 In Canada, courts adopted a higher threshold to better reflect the guarantee of free speech in the Canadian Charter of Human Rights. The Ontario Court of Appeal ruled that the act or publication must be of a ‘clear and present danger to the administration of justice’.^[74]

The harm required

11.56 Judges have described the harm of scandalising contempt in different ways. The most influential statement describes scandalising contempt as:

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.^[75]

11.57 In its proposed statutory offence, the ALRC recommended that the publication must be ‘likely to cause serious harm to the reputation of the judge or magistrate in his or her official capacity’.^[76] The New Zealand offence refers to risks that the publication ‘could undermine public confidence in the independence, integrity, impartiality or authority of the judiciary or a court’.^[77]

Responses

11.58 Several stakeholders supported a defence of truth, including those who would have preferred the offence to be abolished.^[78] The CommBar—Media Law Section also supported a defence of the absence of malice.^[79] The LIV proposed that there should be the defence of truth or honest and reasonable belief in the truth, if the Commission decided that the offence should not be abolished.^[80]

11.59 Australia’s Right to Know coalition (ARTK) suggested that a defence of honest opinion should apply where the comment was based on proper material and related to a matter of public interest.^[81] It noted that the conduct of courts is inherently a matter of public interest. It also supported introducing a public interest defence.^[82]

11.60 Several stakeholders who had supported abolishing scandalising the court objected to the state punishing ‘those who criticise or disagree with the decisions or processes of a court or a judge’. They said people should be able to ‘comment rightly or wrongly on the decisions of the courts’.^[83]

11.61 The CommBar—Media Law Section emphasised that it would not be enough to permit only fair or accurate, or even robust, criticism of the courts. It was not easy to identify the boundary of such criticism. Further, the boundary would be determined by the ‘very instrument that is being criticised’.^[84]

11.62 ARTK argued that public scrutiny could amount to ‘strident criticism’. In its view, discussion of the exercise of a court’s functions should be immune from prosecution.^[85]

11.63 Several stakeholders, including those who argued for the offence to be abolished, addressed the issue of intention.

11.64 ARTK supported requiring that a person must have intended to bring the court into disrepute or reduce the public’s confidence in the integrity of the judicial system.^[86]

11.65 The LIV said there must be an intention to publish the material and the person must have known or ought reasonably to have known the material would interfere with the administration of justice.^[87]

11.66 The Criminal Bar Association supported requiring that a person must have been reckless as to the effect of his or her conduct.^[88] The CommBar—Media Law Section submitted that the defendants must be shown to have been aware of the facts that gave rise to the restriction.^[89]

11.67 The CommBar—Media Law Section also argued that, if scandalising the court was retained, the ‘tendency’ test should be replaced by a test that ‘publications are calculated to, and are likely to, result in a reduction of public confidence in the court system’.^[90]

11.68 The Supreme Court and the Criminal Bar Association favoured identifying the harm in terms similar to those used in the New Zealand legislation.^[91] The LIV proposed that, if scandalising the court was retained, it should be modelled on the offence recommended by the ALRC.^[92]

11.69 The LIV also recommended other defences of a fair, accurate and reasonably contemporaneous reporting of legal or Parliamentary proceedings.^[93]

Commission’s conclusions: limit the scope of the contempt

11.70 True statements should not be punished. This would not serve the purpose of the contempt. It would therefore be disproportionate in its burden on freedom of expression.

11.71 The Commission recommends the New Zealand model in which the prosecution must prove the falsity of the statement. This is more consistent with criminal law principles and the presumption of innocence. It also avoids some of the disadvantages of proving truth.

11.72 Opinion should not be included within the scope of the contempt. Freedom to hold an opinion is a distinctive human right and it is incompatible with that freedom to criminalise the holding of an opinion.^[94]

11.73 Excluding opinion narrows significantly the scope of the contempt. This would remove, for example, the ability to punish mere insults or views on whether a judgment was correct, provided the underlying facts were accurately represented.

11.74 It is also consistent with the requirement that the statement must be false. By definition, it would be impossible to prove an opinion false.

11.75 Further, it must be proved that the person intended to undermine public confidence in the courts or was reckless about whether the publication would undermine public confidence in the courts. This is consistent with the Commission’s view that the scope of this contempt should be narrowed, and the competing rights rebalanced.

11.76 This position differs from sub judice contempt, where intention or recklessness is less relevant to the need to protect a fair trial. It would often be difficult to prove intention or recklessness for sub judice contempt, because the primary purpose may be to publish information that is newsworthy.

11.77 In contrast, the main purpose of the law of scandalising is to punish statements tending to impair public confidence in the courts and judiciary. In many cases, the intention or recklessness will be self-evident or readily inferred from the statement itself.

11.78 However, it would be too restrictive to require only intention and exclude recklessness. As a default, recklessness should be the mental element where it involves a circumstance or result.^[95]

11.79 The contempt should be further narrowed in another way. For other contempts, the Commission has recommended that the threshold should be a ‘substantial risk’.^[96] In this form of contempt, the risk to the administration of justice is more remote and there is no competing right to a fair trial. There is a greater need therefore to justify and limit this restriction.

11.80 A higher threshold of risk should therefore apply to this form of contempt. This is consistent with modern practice in which scandalising is rarely prosecuted. Prosecuting high-profile individuals may, at least in part, reflect an assessment of the level of risk in those cases.

11.81 The Commission recommends elevating the threshold to narrow the scope of this contempt. However, it does not favour a ‘clear and present danger’ test, but rather a ‘serious risk’ test. This is more consistent with the common law in Australia and with the adoption of the ‘substantial risk’ test.

11.82 Finally, the proposed Act should use language that directs attention to the institutional harm at risk in this kind of contempt. This is better reflected in the terms used in the New Zealand legislation, which focus on public confidence and more clearly specify the relevant attributes of the institution that are at risk.

11.83 Together, these changes would deal with most of the criticisms of the contempt. Defining the contempt would remove much of the vagueness and uncertainty of the offence. It would be clear that criticism of court decisions and processes is not punishable, unless such criticism was based on false statements of fact. Falsity would be a necessary element of the offence rather than a presumption to be rebutted by a defence of truth.

11.84 Narrowing the scope of the offence also addresses the concern that this offence is selectively prosecuted. This would also deal with the concern that the law could deter good faith disclosures of judicial misconduct.

Recommendation

90 The proposed Act should provide that a person may be dealt with by a court for contempt by publishing material undermining public confidence in the judiciary or courts where a person publishes a false statement about a judge or court and intended or was reckless as to whether the publication created a serious risk of undermining public confidence in the independence, integrity, impartiality or authority of the judiciary.

The procedure and penalties for scandalising contempt

The proposed procedure

11.85 In Chapter 5 the Commission recommends a procedure for contempt of court that includes greater procedural protections for the accused. However, the procedure does not include the right to a jury. The Supreme Court can still commence proceedings, as well as the Attorney-General and Director of Public Prosecutions. A party with a sufficient interest may also commence proceedings.

11.86 Is there a reason to change this procedure for the new contempt of publishing false statements about the courts? There are three possible reasons:

• the greater risk of an appearance of bias or a conflict of interest

• the concern that it would undermine the aim of protecting public confidence, because courts would appear to be protecting their own interests

• the greater value of a jury in determining whether there is a risk to public confidence in these cases.^[97]

11.87 Arguments to the contrary include:

• It is necessary for the courts to vindicate their own authority swiftly.

• Courts are best placed to understand the need for the integrity and impartiality of courts and judges.

• There is generally no evidentiary dispute about the scandalising conduct.

• A summary trial would involve magistrates ruling on judgments that may involve higher courts.

• The current process is more flexible in allowing for mitigation.^[98]

11.88 These issues are resolved in the New Zealand legislation by replacing the common law with ordinary criminal offences.^[99] The New Zealand legislation also requires the consent of the Solicitor-General and limits the maximum penalty to six months imprisonment or an equivalent fine.^[100]

11.89 Similarly, the New South Wales Law Reform Commission and the WA Commission would have converted these offences to ordinary criminal offences.^[101] The ALRC proposed that trial by jury should be the normal procedure for scandalising contempt.^[102]

Responses

11.90 Most stakeholders addressed this issue in the context of the general features of the contempt procedure (see Chapter 5). Several stakeholders said that the lack of procedural safeguards was another reason to abolish this category of contempt.^[103]

11.91 The CommBar—Media Law Section supported abolishing the summary procedure because it was unacceptable for a judge to act as victim, prosecutor, witness and adjudicator. If there was no practical way of dealing with this contempt other than by summary prosecution, the category of contempt should be abolished.^[104]

11.92 Bill Swannie noted that codifying the contempt had its own risks, including making ‘prosecution less flexible and most likely considerably slower’.^[105]

11.93 The LIV said that, if scandalising the court was retained, it should be an indictable offence that can be tried summarily.^[106] It expressed concern about the ‘global discretionary exercise’ used to determine this contempt, as demonstrated in DPP (Cth) v Besim.^[107]

Commission’s conclusions: procedure

11.94 There is a stronger argument for removing the court’s powers to deal with a person for scandalising contempt. Such powers can undermine the purpose of the contempt by leading people to believe that judges are protecting themselves and involving the court in an apparent conflict of interest.

11.95 The narrowing of the scope of the contempt and the greater procedural protections go some way to addressing these concerns. As discussed in Chapter 15, the Commission is also recommending reducing the maximum penalty.

11.96 These changes do not entirely overcome these concerns. Nevertheless, the Commission concludes on balance that there are insufficient reasons to justify changing the general procedure in this case.

11.97 A summary or indictable procedure has important disadvantages. It leaves the courts dependent on the executive to vindicate their authority. It provides another platform for the accused to republish statements to others. It makes the procedure more complex and costly. This may undermine the effectiveness of the protection, especially as the contempt itself has been narrowed considerably.

11.98 Further, some of the most serious cases have involved senior members of the executive. If the executive alone had the power to commence proceedings, this could leave courts without protection in those cases.

11.99 However, there are greater risks in courts choosing to commence proceedings and such cases should be rare. The Commission recommends, therefore, that only the Supreme Court should have the power to bring proceedings, including in relation to publications made about other courts. As the harm is to the courts and the judiciary, private parties should not be able to commence proceedings for this form of contempt.

11.100 The Commission has considered whether other procedural steps should be required before the Supreme Court exercises this power. The Commission has concluded that these would not add value and could introduce complexity.

Recommendations

91 The proposed Act should provide that only the Attorney-General, Director of Public Prosecutions and the Supreme Court can bring proceedings to deal with contempt by publishing material undermining public confidence in the judiciary or courts.

92 The proposed Act should provide that the Supreme Court should continue to have power to deal with contempt in respect of publications made about other courts or judges in those courts.

The maximum penalty

11.101 Penalties for restrictions on publications are discussed in Chapter 15. For reasons discussed there, the Commission has concluded that a maximum penalty of two years imprisonment or 240 penalty units or both should apply for an individual, and a maximum penalty of 1200 penalty units for bodies corporate.

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

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2. R v Fletcher (1935) 52 CLR 248, 257 (Evatt J); R v Dunbabin; Ex parte Williams [1935] 53 CLR 434, 442 (Rich J).

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3. Gallagher v Durack (1983) 152 CLR 238; McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309.

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

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

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6. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 129, Question 32.

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7. Ibid 121–4 [8.52]–[8.77].

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

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9. Solicitor-General v Smith [2004] 2 NZLR 540; S v Mamabolo [2001] ZACC 17.

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

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11. S v Mamabolo [2001] ZACC 17, [78] (Sachs J, dissenting).

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12. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 119–20 [8.42]–[8.46].

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13. 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.

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14. Law Commission (England and Wales), Contempt of Court: Scandalising the Court (Consultation Paper No 207, December 2012) 5 [8].

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15. Sir Anthony Mason, ‘The Courts and Public Opinion’ (Speech, National Institute of Government, 20 March 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.

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16. Submission 10 (Bill Swannie).

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17. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 116 [8.15]–[8.18]; Gallagher v Durack (1983) 152 CLR 238, 248 (Murphy J).

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18. Submission 10 (Bill Swannie).

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19. See, eg, Gertie’s Law (Supreme Court of Victoria, March 2019) <https://www.supremecourt.vic.gov.au/podcast>.

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20. Submissions 10 (Bill Swannie), 22 (Law Institute of Victoria).

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21. See, eg, Judicial Conference of Australia, ‘Response to Serious Allegations Against a Judge’ (Media Release, 27 February 2019) <https://www.jca.asn.au/wp-content/uploads/2013/10/P18_01_73-Media-release-re-Ergas-article-on-Preston-J-Feb-2019.pdf>; Law Institute of Victoria, ‘LIV Concern over Reaction to Recent Sentencing Decision’ (Media Release, 30 Aug 2019) <https://www.liv.asn.au/Staying-Informed/Media-Releases/Media-Releases/August-2019/LIV-concern-over-reaction-to-recent-sentencing-decs>; Victorian Bar, ‘Leaders of the Legal Profession Unite to Condemn Baseless Attack on Chief Justice Ferguson and the Judiciary’ (Media Release, 27 October 2019) <https://www.vicbar.com.au/news-events/media-release-leaders-legal-profession-unite-condemn-baseless-attack-chief-justice>.

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

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

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24. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, May 2017) Recommendations 42–3.

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25. New Zealand, Parliamentary Debates, House of Representatives, 2 May 2018, 3389 (Christopher Finlayson).

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26. Justice Committee, Administration of Justice (Reform of Contempt of Court) Bill (Final Report, 5 April 2019) 9.

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27. New Zealand, Parliamentary Debates, House of Representatives, 6 August 2019, vol 740 (Andrew Little, Attorney-General).

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28. These largely adopted the recommendations of the Ministry of Justice (NZ), Departmental Report: Administration (Reform of Contempt of Court) Bill (2019).

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29. Submissions 2 (David S Brooks), 10 (Bill Swannie), 12 (Timothy Smartt), 17 (Dr Denis Muller), 18 (Commercial Bar Association Media Law Section Working Group), 22 (Law Institute of Victoria), 23 (MinterEllison Media Group), 27 (Australia’s Right to Know coalition); Consultation 12 (Professor David Rolph).

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30. Submission 10 (Bill Swannie).

    ↑

31. Submissions 10 (Bill Swannie); 12 (Timothy Smartt); 22 (Law Institute of Victoria); .23 (MinterEllison Media Group).

    ↑

32. Submissions 10 (Bill Swannie), 17 (Dr Denis Muller), 22 (Law Institute of Victoria); 23 (MinterEllison Media Group); 27 (Australia’s Right to Know coalition).

    ↑

33. Submissions 12 (Timothy Smartt), 18 (Commercial Bar Association Media Law Section Working Group), 22 (Law Institute of Victoria), 23 (MinterEllison Media Group).

    ↑

34. Submissions 17 (Dr Denis Muller), 22 (Law Institute of Victoria); Consultation 12 (Professor David Rolph).

    ↑

35. Submissions 17 (Dr Denis Muller), 22 (Law Institute of Victoria).

    ↑

36. Submissions 12 (Timothy Smartt), 17 (Dr Denis Muller), 18 (Commercial Bar Association Media Law Section Working Group), 22 (Law Institute of Victoria), 23 (MinterEllison Media Group).

    ↑

37. Submissions 18 (Commercial Bar Association Media Law Section Working Group), 22 (Law Institute of Victoria), 23 (MinterEllison Media Group).

    ↑

38. Submissions 10 (Bill Swannie), 12 (Timothy Smartt), 18 (Commercial Bar Association Media Law Section Working Group), 22 (Law Institute of Victoria), 23 (MinterEllison Media Group).)

    ↑

39. Submissions 22 (Law Institute of Victoria), 23 (MinterEllison Media Group).

    ↑

40. Submissions 10 (Bill Swannie), 12 (Timothy Smartt), 17 (Dr Denis Muller), 18 (Commercial Bar Association Media Law Section Working Group), 22 (Law Institute of Victoria), 23 (MinterEllison Media Group).

    ↑

41. Submission 22 (Law Institute of Victoria). The LIV also noted that the reasons relied on by other law reform commissions to justify retaining the offence were no longer relevant.

    ↑

42. Submission 10 (Bill Swannie); Consultation 12 (Professor David Rolph).

    ↑

43. Submission 18 (Commercial Bar Association Media Law Section Working Group).

    ↑

44. Submissions 7 (The Victorian Civil and Administrative Tribunal), 20 (Criminal Bar Association), 29 (Supreme Court of Victoria), 31 (County Court of Victoria), 32 (International Commission of Jurists, Victoria); Consultation 25 (Magistrates’ Court of Victoria).

    ↑

45. Submission 29 (Supreme Court of Victoria).

    ↑

46. Ibid.

    ↑

47. Submission 31 (County Court of Victoria). The Criminal Bar Association agreed that public engagement was ‘not a complete answer to the problem’: Submission 20 (Criminal Bar Association).

    ↑

48. Submission 32 (International Commission of Jurists, Victoria).

    ↑

49. Summary Offences Act 1966 (Vic) s 52A. The offence covers persons taking part in a criminal proceeding as a witness or in any other capacity, so it may already include judges. Provisions in other states protect judicial officers against threats or intimidation: see, eg, Crimes Act 1900 (NSW) ss 322, 326; Criminal Code 1899 (Qld) s 119B.

    ↑

50. Claire Phipps, ‘British Newspapers React to Judges’ Brexit Ruling: “Enemies of the People”’, The Guardian (online, 4 November 2016) <https://www.theguardian.com/politics/2016/nov/04/enemies-of-the-people-british-newspapers-react-judges-brexit-ruling>.

    ↑

51. Ariane de Vogue and Veronica Stracqualursi, ‘Federal Judge Rebukes Trump Attacks on Courts, Compares to Segregationist Era’, CNN (online, 12 April 2019) <https://edition.cnn.com/2019/04/12/politics/federal-judge-compares-trump-segregationist-era/index.html>; Hugh Corder, ‘Critics of South Africa’s Judges are Raising the Temperature: Legitimate, or Dangerous?’, The Conversation (Web Page, 22 August 2019) <https://theconversation.com/critics-of-south-africas-judges-are-raising-the-temperature-legitimate-or-dangerous-122209>.

    ↑

52. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24.

    ↑

53. Submissions 20 (Criminal Bar Association), 29 (Supreme Court of Victoria).

    ↑

54. Submission 22 (Law Institute of Victoria).

    ↑

55. It has been suggested in obiter that it is a defence: Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 39. Whether it is a complete defence remains unsettled: Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, May 2017) 9 [6.76]; LexisNexis, Halsbury’s Laws of Australia (online, 25 September 2018) 105 Contempt, ‘2 Criminal Contempt’ [05–230].

    ↑

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

    ↑

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

    ↑

58. Ibid; Law Reform Commission of Western Australia, Report on Review of the Law of Contempt (Project No 93, June 2003) 116; Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, May 2017) 120 [6.78].

    ↑

59. Ministry of Justice (NZ), Departmental Report: Administration (Reform of Contempt of Court) Bill (2019) 14 [35].

    ↑

60. This recommendation was made by the NZ Legislation Design and Advisory Committee, if its first submission to abolish the offence was not adopted: Ministry of Justice (NZ), Departmental Report: Administration (Reform of Contempt of Court) Bill (2019) 14 [34].

    ↑

61. Ministry of Justice (NZ), Departmental Report: Administration (Reform of Contempt of Court) Bill (2019) 14 [44].

    ↑

62. Contempt of Court Act 2019 (NZ) s 22.

    ↑

63. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 31–2 (Mason CJ), 38–9 (Brennan J), 90–1 (Dawson J), 98 (McHugh J); R v Hoser & Kotabi Pty Ltd [2001] VSC 443 [66]–[91].

    ↑

64. R v Hoser & Kotabi Pty Ltd [2001] VSC 443 [66].

    ↑

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

    ↑

66. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, May 2017) 121 [6.82]. The Australian Law Reform Commission did not include fair comment as a defence: The Law Reform Commission, Contempt (Report No 35, December 1987) 257 [443], 266 [460].

    ↑

67. United Nations Human Rights Committee, General Comment No. 34 (Article 19: Freedoms of Opinion and Expression), UN Doc CCPR/C/GC/34 (12 September 2011) 2 [9].

    ↑

68. Lingens v Austria (1986) 8 EHRR 496.

    ↑

69. Ministry of Justice (NZ), Departmental Report: Administration (Reform of Contempt of Court) Bill (2019) 16 [43].

    ↑

70. Ibid 17 [47].

    ↑

71. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) [8.14]. See also A-G (NSW) v Mundey [1972] 2 NSWLR 887, 911 (Hope J); A-G (Qld) v Lovitt [2003] QSC 279 [58] (Chesterman J).

    ↑

72. Ministry of Justice (NZ), Departmental Report: Administration (Reform of Contempt of Court) Bill (2019) 16 [44], Recommendation 1.

    ↑

73. R v Hoser & Kotabi Pty Ltd [2001] VSC 443 [205]–[207]; The Herald & Weekly Times v A-G (Vic) [2001] VSCA 152 [7].

    ↑

74. R v Kopyto (1987) 62 OR (2d) 449. This adopted language similar to that used in the United States.

    ↑

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

    ↑

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

    ↑

77. Contempt of Court Act 2019 (NZ) s 22.

    ↑

78. Submissions 18 (Commercial Bar Association Media Law Section Working Group), 20 (Criminal Bar Association), 22 (Law Institute of Victoria).

    ↑

79. Submission 18 (Commercial Bar Association Media Law Section Working Group).

    ↑

80. Submission 22 (Law Institute of Victoria).

    ↑

81. This was based on the defence of honest opinion in defamation law. The Council of Attorneys-General has proposed some amendments to clarify this defence in draft legislation as part of the review of Australia’s defamation law, which is discussed in Chapter 13: Australasian Parliamentary Counsel’s Committee, Council of Attorneys-General (NSW), Model Defamation Amendment Provisions (Draft for public consultation) (Report Draft d15, 2019) sch 1 para 26 <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) paras [23]–[25], Recommendation 12 <https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/defamation-final-background-paper.pdf>.

    ↑

82. Submission 27 (Australia’s Right to Know coalition).

    ↑

83. Submissions 10 (Bill Swannie), 22 (Law Institute of Victoria). The second quote cites Gallagher v Durack (1983) 152 CLR 238, 248 (Murphy J). The original statement continues: ‘in a way that does not constitute a clear and present danger to the administration of justice’.

    ↑

84. Submission 18 (Commercial Bar Association Media Law Section Working Group). See also the analysis of the fair comment defence in Submission 12 (Timothy Smartt).

    ↑

85. Submission 27 (Australia’s Right to Know coalition).

    ↑

86. Ibid.

    ↑

87. Submission 22 (Law Institute of Victoria).

    ↑

88. Submission 20 (Criminal Bar Association).

    ↑

89. Submission 18 (Commercial Bar Association Media Law Section Working Group).

    ↑

90. Ibid.

    ↑

91. Submissions 29 (Supreme Court of Victoria), 20 (Criminal Bar Association).

    ↑

92. Submission 22 (Law Institute of Victoria).

    ↑

93. Ibid.

    ↑

94. UN Human Rights Committee, General Comment No. 34 (Article 19: Freedoms of Opinion and Expression), UN Doc CCPR/C/GC/34 (12 September 2011).

    ↑

95. Attorney-General’s Department (Cth), A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (Report, September 2011) 20 [2.2.4] <https://www.ag.gov.au/Publications/Documents/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers/A%20Guide%20to%20Framing%20Cth%20Offences.pdf>.

    ↑

96. Recommendations 9, 77 and 78.

    ↑

97. The Law Reform Commission, Contempt (Report No 35, December 1987) 279–80 [477].

    ↑

98. The Law Reform Commission, Contempt (Report No 35, December 1987) 280–1 [478].

    ↑

99. Ibid 278 [476].

    ↑

100. Contempt of Court Act 2019 (NZ) ss 22(2), 23(1).

     ↑

101. DPP (Cth) v Besim [2017] VSCA 165.

     ↑

102. The Law Reform Commission, Contempt (Report No 35, December 1987) 281–2 [479].

     ↑

103. Submissions 10 (Bill Swannie), 18 (Commercial Bar Association Media Law Section Working Group), 22 (Law Institute of Victoria); Consultation 12 (Professor David Rolph).

     ↑

104. Submission 18 (Commercial Bar Association Media Law Section Working Group).

     ↑

105. Submission 10 (Bill Swannie).

     ↑

106. Submission 22 (Law Institute of Victoria).

     ↑

107. DPP (Cth) v Besim [2017] VSCA 165.

     ↑