Contempt of Court: Report (html)

15. Penalties for breaches of restrictions on publication

Overview

• The maximum penalty for an offence should reflect the worst case. It should be consistent with similar kinds of offences, including in other Australian states and territories.

• The maximum penalties for breaches of suppression orders should be reduced to two years imprisonment and a fine of 240 penalty units for an individual, and 1200 penalty units for a body corporate.

• The same maximum penalty should apply to contempt by publishing material prejudicial to legal proceedings and by publishing material undermining public confidence in the judiciary or courts.

• The maximum penalty for the offences under the Judicial Proceedings Reports Act for publishing information from sentence indications and directions hearings, and for identifying victims of sexual offences, should be increased to six months imprisonment and/or 60 penalty units for an individual, and 300 penalty units for a body corporate.

Are the existing penalties adequate?

15.1 An important consideration in the legal framework for enforcing restrictions on publication is ensuring the penalties are appropriate to deter conduct and indicate the relative seriousness of the offending.

15.2 The terms of reference asked the Commission to consider the adequacy of penalties for breaches of restrictions on publication.

15.3 The Commission has considered penalties for the following restrictions on publication:

• suppression orders made under the Open Courts Act 2013 (Vic) and suppression and pseudonym orders made under the common law

• restrictions on publication under the Judicial Proceedings Reports Act 1958 (Vic) (see Chapter 12)

• sub judice contempt and scandalising contempt.^[1]

15.4 The consultation paper asked whether the existing penalties for breaches of these restrictions on publication were appropriate.^[2]

General principles of maximum penalties

15.5 Maximum penalties should:

• place a clear, legally defined upper limit on judicial power in sentencing a person who has committed an offence

• clearly and accessibly set out the maximum consequence that a person will face if he or she engages in the conduct prohibited by the relevant offence

• indicate the views of Parliament and the community—and provide guidance to the judiciary—about the relative seriousness of the offence compared with other criminal offences

• establish the outer or upper limits of the punishment that is proportionate to the offence, providing adequate space for sentencing the worst example of the offence by the worst offender.^[3]

15.6 As discussed in Chapter 5, the Commission is recommending maximum penalties for imprisonment and corresponding maximum fines using the default penalty scale in the Sentencing Act 1991 (Vic).^[4] This underpins the recommendations in this chapter.

15.7 Consistently with the approach taken in Chapter 5, the Commission’s recommendations provide for maximum fines for bodies corporate that are five times the maximum imposed on an individual. This is consistent with the Sentencing Act, which applies to offences under the Crimes Act 1958 (Vic),^[5] as well as the existing maximum penalties under the Open Courts Act.^[6]

15.8 In assessing the proportionality of the maximum penalties discussed below, the Commission has reviewed the penalties of comparable restrictions on publication in Australia. (See Appendices L and M.)

15.9 These restrictions on publication differ in their scope and whether they require a person to be at fault (for example, whether they act with knowledge of the restriction). Some restrictions are imposed by court order, while others operate automatically. These differences are relevant to the appropriate maximum penalty.

Penalties for breaching suppression orders

Suppression orders made under the Open Courts Act

15.10 The maximum penalty for breaches of suppression orders made under the Open Courts Act^[7] is five years imprisonment and/or a fine of 600 penalty units or, in the case of a body corporate, 3000 penalty units.^[8] This makes these offences indictable, triable summarily.^[9] A person must know that the suppression order exists, or be reckless as to its existence, for an offence to be committed.^[10]

Comparable offences

15.11 Victoria has the highest maximum penalty in legislation for breach of a suppression order in Australia (see Appendix M).

15.12 There is little consistency across Australia in the elements of the offence or its maximum penalty. The New South Wales offence has a maximum penalty of 12 months imprisonment for an individual.^[11] The South Australian equivalent has a maximum penalty of two years imprisonment.^[12] Maximum fines for both individuals and bodies corporate vary across jurisdictions.

15.13 Appendix M also contains a table of comparable Victorian statutory offences, which relate to publishing information about or derived from proceedings in breach of an order of the court. The maximum penalties under the Open Courts Act are the highest for such offences in Victoria, set at the same level as equivalent offences relating to major criminal activity and criminal organisations.^[13]

15.14 Victoria is the only Australian jurisdiction in which these offences can be heard on indictment. In the rest of Australia, they are summary offences.

15.15 The Contempt of Court Act 2019 (NZ) introduces new powers to make orders to suppress certain trial-related information.^[14] The maximum penalty for breaching this kind of suppression order is six months imprisonment for an individual and a fine not exceeding $100,000 for a body corporate.^[15]

Responses

15.16 Stakeholders differed on the adequacy of the penalties under the Open Courts Act. Some stakeholders viewed the current penalties as appropriate.^[16]

15.17 However, the Commercial Bar Association Media Law Section Working Group (CommBar—Media Law Section) submitted that the penalties were unduly harsh and inconsistent with similar offences. It supported the maximum penalty of one-year imprisonment for an individual or a fine of 600 penalty units for a body corporate in the Serious Offenders Act 2018 (Vic), stating that this reflected a ‘reasonable balance between competing considerations’.^[17]

Commission’s conclusions: reduce the penalty for breaching suppression orders

15.18 The Commission considers the maximum penalty in Victoria is significantly out of step with the rest of Australia and New Zealand. As discussed below, the maximum penalty is also much higher than the highest penalty recorded for sub judice contempt in Victoria.

15.19 Given the similarity of the harms and the jurisdictions, the Commission considers this penalty cannot be justified, especially in the age of online publication and in light of the need for national consistency, as discussed in Chapter 13.

15.20 A reduction in the maximum penalty will mean the offences become summary offences. However, it is not commonly the practice for this offence to be prosecuted on indictment. Accordingly, the Commission can see no reason for retaining the penalty at this level.

Recommendation

121 The maximum penalty for breach of a suppression order under the Open Courts Act should be reduced for an individual from five years imprisonment to two years imprisonment or 240 penalty units, or both, and for bodies corporate there should be a maximum penalty of 1200 penalty units.

Statutory penalties for breaches of common law suppression orders and pseudonym orders

15.21 The consultation paper asked whether the penalties for breaches of common law suppression orders and pseudonym orders should be set out in legislation.^[18]

15.22 While abrogating the common law power to make a suppression order, the Open Courts Act preserves the inherent jurisdiction of the Supreme Court to make orders restricting the publication information in connection with any proceeding.^[19] The Act does not affect the power of any court or tribunal under the common law to make a pseudonym order, which conceals the identity of a person by restricting the way they are referred to in open court.^[20]

Responses

15.23 The Children’s Court and the Criminal Bar Association were in favour of setting maximum penalties for breaches of these kinds of order,^[21] while the DPP was open to this approach.^[22]

15.24 The CommBar—Media Law Section opposed such reform. In its view, the existing regime preserves flexibility and permits the courts to respond appropriately to the circumstances of each case.^[23]

Commission’s conclusions: a maximum penalty of two years

15.25 A maximum penalty would not unduly restrict the ability of the courts to respond appropriately to breaches of these orders. Parliament has set maximum penalties for other common law offences with the aim of modernising those offences and eliminating ‘at large’ penalties.^[24] Maximum penalties would promote consistency and provide an indication of how seriously such a breach is viewed.

15.26 The seriousness of a breach of a common law suppression or pseudonym order is no different to a breach of a suppression order made under the Open Courts Act. The maximum penalty should be two years imprisonment, in line with the recommendations for those penalties discussed above.

Recommendation

122 The Open Courts Act should be amended to specify a maximum penalty for breach of a common law suppression order or pseudonym order for an individual of two years imprisonment or 240 penalty units, or both, and for bodies corporate there should be a maximum penalty of 1200 penalty units.

Penalties under the Judicial Proceedings Reports Act

15.27 In Chapter 12, the Commission recommends retaining and relocating two of the restrictions on publication in the Judicial Proceedings Reports Act. These prohibit reporting on directions hearings and sentence indication hearings, and publishing details likely to identify a victim of a sexual offence.^[25]

15.28 As discussed in Chapter 12, these restrictions have different purposes. The restriction on reporting of directions hearings and sentence indication hearings is designed to enable early resolution of criminal cases, by allowing free discussion within pre-trial hearings of information that may prejudice a later trial. The restriction on identification is designed to protect victims against further stigma and trauma.

15.29 A breach of these restrictions is a summary offence. The maximum penalty for an individual is four months imprisonment and/or a fine of 20 penalty units and, for a body corporate, 50 penalty units.^[26] Both are strict liability offences.

15.30 The maximum penalty for individuals for identifying victims of sexual offences is similar to maximum penalties in other Australian states and territories, except for South Australia and Western Australia, which do not provide for imprisonment. (See Appendix L).^[27]

15.31 There is significant disparity with respect to bodies corporate. In New South Wales, the maximum penalty for a body corporate is 500 penalty units, 10 times the penalty in Victoria.^[28] In Queensland, the penalty is higher still, at 1000 penalty units.^[29]

15.32 As noted in the consultation paper, the restriction on reporting of directions hearings and sentence indication hearings is based on the restriction in the Criminal Justice Act 1987 (UK).^[30] There, the offence is also summary, and carries a maximum penalty of a fine of £5000.^[31] In New South Wales, publishing ‘case conference material’ is a summary offence, liable to a maximum penalty of 20 penalty units for an individual and 100 penalty units for a body corporate.^[32]

Responses

15.33 Several responses stated that the penalty for breaching the restriction on identifying victims of sexual offences was inadequate.^[33] The Victims of Crime Commissioner submitted that the penalty needed to be increased to be an effective deterrent and ‘illustrate the importance of protecting victims from additional trauma, shame, embarrassment or unwanted attention’.^[34]

15.34 Stakeholders did not address the appropriateness of the penalty for breaching the restriction on reporting on directions hearings and sentence indication hearings.

Commission’s conclusions: increase the penalty for breach of Judicial Proceedings Reports Act restrictions

15.35 The Commission considers that the maximum penalties are too low for breaching restrictions on publication that currently appear in the Judicial Proceedings Reports Act (but which the Commission recommends moving to other Acts). They fail to reflect the seriousness of the harm that can result from a breach.

15.36 Further, where possible, the maximum penalties should be consistent with corresponding penalties in other Australian states and territories.

15.37 The Commission therefore considers that the maximum penalty for breaching the restriction on reporting on directions hearings and sentence indication hearings, and on publishing details likely to identify a victim of a sexual offence, should be raised to imprisonment for six months and/or 60 penalty units for an individual, and 300 penalty units for a body corporate. This is more consistent with penalties in other states and territories. As such, the offences will remain summary offences.

Recommendation

123 The maximum penalty for breach of the prohibitions on the publishing of information about directions hearings and sentence indications, or information likely to lead to the identification of a victim of a sexual offence, currently provided for in the Judicial Proceedings Reports Act should be increased to six months imprisonment and/or 60 penalty units for an individual, and 300 penalty units for a body corporate.

Penalties for publication contempts—sub judice contempt and scandalising contempt

15.38 As noted in Chapter 5, the penalties for contempt are currently unlimited.^[35] The Commission recommends in that chapter that maximum penalties be specified for contempt of court. This section considers the two forms of publication contempt addressed in Chapters 10 and 11, namely:

• contempt by publishing material prejudicial to a fair trial (sub judice contempt)

• contempt by publishing material undermining public confidence in the judiciary or courts (scandalising contempt).

Maximum penalties in other jurisdictions

15.39 New Zealand and the United Kingdom have introduced maximum penalties for contempt. The offences in the Contempt of Court Act 2019 (NZ) that replace contempt by publication have a maximum penalty for an individual of imprisonment for six months or a fine not exceeding NZD $25,000 or, for a body corporate, a fine not exceeding NZD $100,000.^[36]

15.40 The Contempt of Court Act 1981 (UK) sets the maximum term for any contempt of court at two years in a superior court and one month in an inferior court. Fines are capped at £2500.^[37]

Responses

15.41 There was general support for a maximum penalty for sub judice contempt.^[38]

15.42 The Law Institute of Victoria supported removing imprisonment as a potential penalty for sub judice contempt. If this was not adopted, it supported imposing an upper limit for imprisonment. It preferred, however, a lower maximum penalty than the two years recommended by the Law Reform Commission of Western Australia, noting that the only term of imprisonment had been set at six weeks and later reduced to 28 days.^[39]

15.43 While open to the prospect of maximum penalties, MinterEllison Media Group expressed concern that, if the penalties were indexed as they were in defamation law, they could grow significantly.^[40] However, the CommBar—Media Law Section considered setting a maximum penalty was unnecessary because the common law and judicial officers dealt adequately with this issue.^[41]

15.44 The unlimited nature of penalties was one of the reasons put forward for the abolition of scandalising contempt.^[42]

Commission’s conclusions: maximum penalty of two years for publication contempts

15.45 The maximum penalties for sub judice and scandalising contempt should be set at two years. This would be consistent with the Commission’s recommendation for the maximum penalty for breach of a suppression order under the Open Courts Act, which deals with similar conduct and harm.

Recommendation

124 The proposed Act should provide that the maximum penalty for a sub judice contempt or a scandalising contempt is, for an individual, two years imprisonment or 240 penalty units, or both, and for bodies corporate, a maximum penalty of 1200 penalty units.

The recording of a conviction for breaches of restrictions on publication

15.46 Australia’s Right to Know coalition submitted that recording convictions against individual journalists for contempt of court causes significant trauma and affects their capacity to work. It proposed laws to prevent the recording of convictions against individual journalists, unless it was found that the journalist intended to interfere with the administration of justice, or the journalist had a prior history of committing contempt.^[43]

15.47 In deciding whether to record a conviction, courts are guided by section 8 of the Sentencing Act.^[44] This requires them to consider:

• the nature of the offence

• the character and history of the offender

• the impact of the recording of a conviction on the offender’s economic or social well-being or on his or her employment prospects.

15.48 The Commission acknowledges the significant consequences of recording a conviction on the offender but the considerations in the Sentencing Act already adequately deal with these concerns. Accordingly, the Commission concludes there is no reason to change the law.

1. See Chapters 10 and 11.

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2. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 180, Question 55.

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3. Sentencing Advisory Council, Maximum Penalties: Principles and Purposes (Preliminary Issues Paper, October 2010) 9–10 <https://www.sentencingcouncil.vic.gov.au/publications/maximum-penalties-principles-and-purposes-preliminary-issues-paper>.

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4. Sentencing Act 1991 (Vic) s 109. This identifies maximum fines in terms of penalty units, the value of which are set under the Monetary Units Act 2004 (Vic).

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5. Sentencing Act 1991 (Vic) s 113D.

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6. Open Courts Act 2013 (Vic) ss 23, 27, 32.

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7. These are: proceeding suppression orders, interim orders, or an order prohibiting the publication of any specified material (broad suppression orders).

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8. Open Courts Act 2013 (Vic) ss 23, 27. As at 1 July 2019, the amount of a penalty unit is $165.22: Treasurer (Vic), ‘Monetary Units Act 2004 (Vic)—Notice under Section 6, Fixing the Value of a Fee Unit and a Penalty Unit’ in Victoria, Victoria Government Gazette, No G 14, 4 April 2019, 544, 572.

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9. Sentencing Act 1991 (Vic) s 112; Criminal Procedure Act 2009 (Vic) s 28.

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10. Open Courts Act 2013 (Vic) ss 23(1), 27(1).

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11. Court Suppression and Non-publication Orders Act 2010 (NSW) s 16. Like the offence in Victoria, a person must know of the order or be reckless as to its existence. The maximum penalty is 1000 penalty units for an individual, and 5000 penalty units for a body corporate. This Act was modelled on a draft model Bill developed by the Standing Committee of Attorneys-General for a nationally uniform scheme of legislation. The Commonwealth also substantially implemented the model legislation, with penalties of imprisonment for 12 months or 60 penalty units for breaches of suppression orders in federal courts: Access to Justice (Federal Jurisdiction) Act 2012 (Cth) sch 2.

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12. Evidence Act 1929 (SA) ss 69A, 70. The maximum fine is $10,000 for an individual, and $120,000 in the case of a body corporate. The legislation does not specify any requirement to prove that the person knew of the order, or was reckless as to its existence.

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13. Major Crime (Investigative Powers) Act 2004 (Vic) ss 7, 43; Criminal Organisations Control Act 2012 (Vic) ss 77, 83.

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14. Contempt of Court Act 2019 (NZ) sch 2. The schedule inserts new sections 199A–D into the Criminal Procedure Act 2011 (NZ). At the time of writing, these provisions had not yet come into force.

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15. Criminal Procedure Act 2011 (NZ) s 211. The section provides a lower penalty for an offence which was not committed knowingly or recklessly, being a maximum fine for an individual of $25,000 or for a body corporate $50,000.

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16. Submissions 14 (Children’s Court of Victoria), 19 (Forgetmenot Foundation Inc). The Children’s Court of Victoria indicated support for the existing penalties for breaches of restriction on publication more generally. However, it noted that the penalty for breach of a restriction under its governing Act was two years imprisonment or 100 penalty units for an individual, and 500 penalty units for a body corporate: Children, Youth and Families Act 2005 (Vic) s 534. The Court noted that it was uncertain whether the Open Courts Act applied to the Children’s Court.

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17. Submission 18 (Commercial Bar Association Media Law Section Working Group). It referred for comparison to the penalties for the following offences: Serious Offenders Act 2018 (Vic) s 277; Court Suppression and Non-publication Orders Act 2010 (NSW) s 16; Children, Youth and Families Act 2005 (Vic) s 534.

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18. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 180, Question 56.

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19. Open Courts Act 2013 (Vic) s 5(1); Hogan v Hinch [2011] HCA 4 [26]; General Television Corporation Pty Ltd v DPP [2008] VSCA 49 [28].

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20. Open Courts Act 2013 (Vic) s 7(d)(i).

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21. Submissions 14 (Children’s Court of Victoria), 20 (Criminal Bar Association).

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22. Submission 28 (Director of Public Prosecutions).

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

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24. Crimes Act 1958 (Vic) s 320.

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25. Judicial Proceedings Reports Act 1958 (Vic) ss 3(1)(c), 4(1A).

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26. Ibid ss 3(3), 4(2).

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27. Evidence Act 1929 (SA) s 71A; Evidence Act 1906 (WA) s 36C.

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28. Note, however, that the amount of a penalty unit in New South Wales is $110 as at 1 July 2019, while in Victoria it currently stands at $165.22: Crimes (Sentencing Procedure) Act 1999 (NSW) s 17; Treasurer (Vic), ‘Monetary Units Act 2004 (Vic)—Notice under Section 6, Fixing the Value of a Fee Unit and a Penalty Unit’ in Victoria, Victoria Government Gazette, No G 14, 4 April 2019, 544, 572.

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29. Criminal Law (Sexual Offences) Act 1978 (Qld) s 6. The amount of a penalty unit in Queensland is $133.45 as at 1 July 2019: Penalties and Sentences Regulation 2015 (Qld) reg 3.

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30. Criminal Justice Act 1987 (UK) s 11.

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31. Ibid s 11A; Criminal Justice Act 1982 (UK) s 37.

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32. Criminal Procedure Act 1986 (NSW) s 80.

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33. Submissions 20 (Criminal Bar Association), 33 (Victims of Crime Commissioner, Victoria). The CBA Media Law Section also noted that the maximum penalties for this offence were ‘trifling in comparison’ to those under the Open Courts Act: Submission 18 (Commercial Bar Association Media Law Section Working Group).

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34. Submission 33 (Victims of Crime Commissioner, Victoria).

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35. See Appendix G for an illustrative list of sentences imposed for sub judice and scandalising contempt.

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36. Contempt of Court Act 2019 (NZ) ss 7(3), 22(2).

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37. Contempt of Court Act 1981 (UK) s 14.

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38. Submissions 11 (Victoria Legal Aid), 18 (Commercial Bar Association Media Law Section Working Group), 20 (Criminal Bar Association), 22 (Law Institute of Victoria), 23 (MinterEllison Media Group), 27 (Australia’s Right to Know coalition).

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39. Submission 8 (Law Institute of Victoria). The case referred to is Hinch v Attorney-General [1987] VR 721. See Appendix G for a list of sentences imposed by courts for different categories of contempt.

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40. Submission 23 (MinterEllison Media Group).

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

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42. Submissions 10 (Bill Swannie), 23 (MinterEllison Media Group).

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

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44. DPP (Vic) v Johnson & Yahoo!7 (No 2) [2017] VSC 45. The discretion is limited by the type of sentence to be imposed: Sentencing Act 1991 (Vic) s 7.

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