Contempt of Court: Report (html)

2. Contempt of court and the need for reform

Overview

• The law of contempt of court empowers courts to deal with interferences with the proper administration of justice. It can include conduct inside and outside a courtroom. It can also include conduct that does not affect any particular legal proceeding.

• The law of contempt of court is a type of common law offence that is tried differently from other criminal offences.

• The Supreme Court of Victoria has inherent power to punish for contempt to maintain its authority and protect the administration of justice.

• The Commission recommends the common law of contempt of court be restated and reformed in legislation, in a new Contempt of Court Act. This is needed to define the scope of contempt law, so that it is clearer, more certain and more accessible.

• Some parts of the law of contempt require reform to limit liability and modernise its language. This can only be done by legislation.

• Legislation is needed to clarify the procedure for trying and punishing contempt and provide safeguards to ensure a fair trial.

• Legislation will also clarify the relationship between the law of contempt and other laws and limit the penalties imposed.

What is the law of contempt of court?

2.1 The law of contempt of court has a protective purpose, empowering the courts to deal with interferences with the proper administration of justice.

2.2 A ‘contempt of court’ is described as a type of common law offence.^[1] It involves acts or words which interfere with the ability of the courts to administer justice fairly, efficiently and with authority.

2.3 Contempt of court can include conduct in the courtroom that disrupts the proceedings, such as abusing a witness or juror. It can include conduct outside the courtroom that could unfairly affect a proceeding, such as publishing information about the character of the accused that might influence a juror. It can include conduct that does not affect any particular proceeding but could undermine the community’s confidence in the integrity and impartiality of the courts, such as publishing unfounded allegations about the judiciary.^[2]

2.4 Failure to comply with an order made by a court or an undertaking given to a court may also be a contempt of court. A contempt of this type will not necessarily be classified as an offence, although it can still attract punishment.^[3]

2.5 Contempt of court is unlike other criminal offences because the courts use a different procedure to try and punish a contempt of court.

2.6 In Victoria, the Supreme Court has the power to deal with a person for contempt of court as part of its inherent jurisdiction. It is not a power derived from legislation and given to the Supreme Court by Parliament.

2.7 Rather, it is a power the Supreme Court has as a superior court of unlimited jurisdiction that needs to maintain its own authority and protect its ability to administer justice.^[4]

2.8 The Supreme Court also has a supervisory function to ensure justice is properly administered in the lower courts. Therefore, the Supreme Court has the power to deal with a contempt of itself as well as contempts of any lower court.^[5]

2.9 In addition to the Supreme Court’s inherent contempt jurisdiction, Parliament has conferred statutory powers on the lower courts to punish for contempt.^[6]

2.10 The types of conduct that can be dealt with as a contempt of court and the procedures courts follow to prevent and punish such conduct are mostly defined by common law. Therefore, to understand the law of contempt of court, it is necessary to look to cases that have been decided by judges.

2.11 In Victoria, the common law is supplemented by legislation that deems certain behaviour to be a contempt of court,^[7] or provides that certain behaviour can be dealt with as a contempt of court.^[8]

What is the purpose of the law of contempt?

2.12 The purpose of the law of contempt is to protect the proper administration of justice. This concept is important but difficult to define. It requires that:

• People have unhindered access to an independent, impartial and competent court system to determine their legal rights and liabilities.

• The courts determine cases in accordance with the rule of law and uphold the right to a fair hearing.

• There is public confidence in, and respect for, the authority of that system.^[9]

2.13 This in turn requires that:

• The independence, integrity and impartiality of the judiciary are protected.

• Except in unusual cases where the law restricts access to the court or restricts the reporting of proceedings, the court is open to the public and news media,^[10] including access to court files and written submissions.

• Cases are heard in an orderly and efficient manner, free from disruption.^[11]

• Cases are decided on the basis of the evidence before the court and free from outside influence.^[12]

• Witnesses are able to be compelled to attend and give evidence so decisions can be made on the best evidence.^[13]

• Jury verdicts are based only on properly adduced evidence after free, frank, and confidential jury discussions, and the finality of verdicts is protected.^[14]

• Those with duties to perform in the court, including witnesses, jurors and legal practitioners, perform those duties in a safe environment and free from interference and harassment,^[15] and do so fairly and honestly and in accordance with the directions of the court and any undertakings given to the court.^[16]

• Orders made by the courts are complied with and enforced.^[17]

2.14 Stakeholders emphasised the importance of the law of contempt to the proper functioning of the court system and the rule of law more generally.^[18] They submitted that the Supreme Court’s inherent power to punish for contempt secures the independence of the judiciary from the other arms of government, and is the backstop to all powers exercised by the courts. The Supreme Court submitted that ‘For all the jurisdiction and powers invested in the Court, ultimately it is the law of contempt which is the end point of the Court’s authority.’^[19]

2.15 To fulfil its protective purpose, the law of contempt must be consistent with the proper administration of justice in both scope and application. If the law of contempt is arbitrary or unfair, ‘proceedings intended to uphold the authority of the court would be seen to diminish that authority so that the process would, at best, be self-defeating.’^[20]

Is legislative reform needed?

2.16 The consultation paper identified several key issues with the law of contempt and asked:

• whether the scope and elements of contempt of court are too broad and discretionary to enable people to know what conduct might be subject to punishment^[21]

• whether the safeguards that apply to contempt proceedings are sufficiently clear and robust given the punitive nature of such proceedings^[22]

2.17 This section of the report considers stakeholder responses and whether they demonstrate a need to reform the law of contempt and replace it with legislative provisions.

Uncertain scope

2.18 There is no legislative definition of contempt of court.

2.19 At common law, the definition of contempt of court is any conduct that interferes with or has a tendency to interfere with administration of justice.^[23] It is not necessary to prove an intent to interfere with the administration of justice or that such interference did occur.^[24]

2.20 This definition captures diverse conduct which is often grouped into categories:

• Contempt in the face of the court—includes misconduct in or near the courtroom that directly disrupts or interferes with the proceedings

• Contempt by publication—includes publishing material that tends to prejudice pending proceedings or unduly impair public confidence in the impartiality and integrity of the courts

• Contempt by disobedience to court orders—includes failures or refusals to comply with an order of the court or an undertaking given to the court

• Contempt by interference with a person connected with court proceedings—includes improper interference with a witness, judicial officer, juror, party or other person with a role or potential role in court proceedings

• Contempt by breach of duty by a person connected with court proceedings—occurs when those with a special obligation to the court or a special role in court proceedings (for example, a legal practitioner, witness or juror) acts or fails to act in a way which breaches their duty to the court

• Abuse of process—includes the preparation and filing of court documents for purposes which are deceptive, dishonest or in some other way improper.

2.21 Conduct which constitutes contempt of court may fit within multiple categories, or it may not fit within any established category but still be regarded as contempt. The different categories of contempt do not represent distinct contempt offences; they are all examples of the broad offence.

2.22 This broad definition means that the courts have wide discretion to determine whether conduct constitutes contempt of court and whether a person should be punished for contempt.

2.23 The courts’ power to punish for contempt overlaps with the ordinary criminal law. The same misconduct that may be dealt with as a contempt of court can often be prosecuted by way of ordinary criminal charge and prosecution in accordance with the Criminal Procedure Act 2009 (Vic). This overlap adds to confusion about the role and reach of contempt law.^[25]

2.24 Further, the definition of contempt of court is complicated by a distinction between civil and criminal contempt. Most forms of contempt are classified as criminal contempts. However, a contempt arising from a failure to comply with a court order or undertaking, especially in civil proceedings, has traditionally been classified as a civil contempt.^[26] This means even the statement that contempt of court is a common law offence must be qualified.

Responses

2.25 The consultation paper asked whether the contempt power needed to be more precisely defined, and whether the law should specify the conduct subject to sanction.^[27] Competing themes emerged from stakeholders’ responses.

Need for flexibility

2.26 Many stakeholders said that the law of contempt needs to address a broad range of conduct and potentially novel threats. Therefore, contempt of court must be defined flexibly.^[28] Stakeholders observed that only a flexible definition can accommodate the competing considerations at stake.^[29]

2.27 For these reasons, some stakeholders submitted that contempt of court should not be defined in legislation, and instead remain defined by the common law.^[30]

2.28 For example, in relation to sub judice contempt, media lawyers and academics preferred to retain the flexibility of the common law because it was more responsive to a rapidly changing world.^[31] They considered it ‘difficult or impossible to formulate a statutory test capable of covering all relevant situations without giving rise to unintended consequences’.^[32] In their view, the common law is already clear and well-known.

2.29 The Director of Public Prosecutions (DPP) submitted that, while the areas of the law that can be easily restated in legislation are not problematic, the more vexed areas would always be context-specific and difficult to define. The DPP also observed that retaining the common law might allow the law to develop more consistently across Australia.^[33]

Need for clarity, certainty and accessibility

2.30 On the other hand, stakeholders highlighted the need for a more certain and accessible definition of contempt. The Supreme Court noted that ‘it is fundamental to the rule of law that those affected by a law—especially one which carries penalties for breach—should be able to ascertain its terms and understand what compliance requires’. The Supreme Court stated that there is ‘undoubtedly scope for the law of contempt to be made clearer and more certain’.^[34]

2.31 The Supreme Court also noted that clearer guidance in legislation should improve compliance. It identified sub judice contempt as an area that would most benefit from legislation, as this was the area where breaches were most likely to be negligent or inadvertent.^[35]

2.32 The County Court agreed that the law is ‘fragmented and opaque’, and supported codifying the various kinds of contempt in the common law to improve the certainty and clarity of the law.^[36]

2.33 Similarly, the Law Institute of Victoria’s (LIV) view was that the law inappropriately privileges flexibility over consistency and certainty. In its view, the common law of contempt should be replaced by statutory provisions ‘specifying the type of conduct that may be subject to sanction’.^[37]

Need to clarify fault element

2.34 Many stakeholders submitted that liability for contempt is too broad under the common law.^[38] They were concerned that there is no requirement to prove that a person intended to interfere with the administration of justice or was reckless as to the risk of interference. For example, Australia’s Right to Know coalition (ARTK) submitted that ‘conduct that does not intend to interfere with the administration of justice and is not reckless as to the potential to interfere should not be subject to penalties and punishment’.^[39]

2.35 Stakeholders expressed different views on the appropriate fault element in relation to different types of contempt, as discussed in Chapters 7 to 11. Importantly, stakeholders commonly identified a need to clarify or reform the fault element of the contempt of court, even though some of them opposed codification of the common law.^[40] Legislation would be needed to clarify or reform this aspect of the law.

Need to remove distinction between civil and criminal contempt

2.36 The Supreme and County Courts supported the removal of the distinction between civil and criminal contempt. The Supreme Court stated:

The Court’s experience accords with the body of judicial commentary about the illusory and unhelpful nature of attempts to distinguish civil and criminal contempt. Formal abolition of the distinction would seem desirable.^[41]

2.37 The Commission considers this distinction in Chapter 8 and whether it should be clarified or abolished. Any clarification or modification of the distinction would require legislation.

Need to clarify and modernise language

2.38 The language describing the law of contempt is confusing. Terms such as ‘in the face of the court’ or ‘sub judice’ have technical legal meanings but these terms do not tell the community much about the purpose or nature of the restrictions. The term contempt by ‘scandalising the court’ attracted particular criticism from stakeholders. It was described as archaic and misleading.^[42]

2.39 The New Zealand Law Commission found that ‘the language of contempt is antiquated and inappropriate in modern society’,^[43] and concluded that ‘the time has come for the old jargon of the law to be replaced with understandable modern language’.^[44]

2.40 Legislation would be required to modernise the language of contempt in this way.

Commission’s conclusions: legislate to make contempt law clear, certain and accessible

2.41 Significant sanctions can be imposed for contempt of court. A person may be convicted and fined or imprisoned for an indeterminate period.^[45] However, the Commission has established that the scope of the power to deal with a person for contempt is uncertain, except to legal practitioners who work in this area.

2.42 The rule of law requires, and the community expects, that people should know with reasonable certainty what type of conduct will expose them to punishment. People must be able to access and understand the law to comply with it.

2.43 Further, since the law of contempt imposes limitations on rights and freedoms, particularly on freedom of expression and the principle of open justice, it is important these limitations are clearly stated and understood by the community.

2.44 The law must be clear, certain and accessible. In the Commission’s view, the current law of contempt is not. The Commission considers that legislation should define the type of conduct that can be dealt with as a contempt of court.

2.45 A diverse range of conduct can threaten the administration of justice. Legislation that defines contempt of court must accommodate this through careful drafting. The Commission has concluded that legislative reform can be achieved without compromising the ability of the court to protect itself and its proceedings from interference.

2.46 In subsequent chapters, the Commission recommends substantive reforms to particular types of contempt. The reforms are designed to limit the scope of liability and to better accommodate competing rights and principles.

2.47 These reforms would require legislation in any event. It promotes clarity and accessibility to set out fully the scope of the conduct that can be dealt with as contempt, rather than rely on the community to understand both the common law and the changes made in legislation.

2.48 In subsequent chapters, the Commission also recommends simplifying and modernising the language defining contempt, thereby clarifying not just the purpose of the law but the conduct and circumstances that might cause someone to be in breach. These reforms require the law to be restated in legislation.

Uncertain procedural safeguards

2.49 Although a person found guilty of contempt may be convicted and imprisoned or fined, contempt is not tried under the usual criminal procedure in the Criminal Procedure Act. A contempt proceeding does not commence with police or another public official filing a charge in the Magistrates’ Court or with the DPP filing a direct indictment with the County or Supreme Court. There is no committal proceeding to determine if the person should stand trial. There is no criminal trial with a jury to consider the evidence and deliver a verdict.

2.50 Instead, a contempt of court is tried and punished using a summary, judge-alone procedure. There are two ways the courts’ contempt power can be invoked:

• The judge before whom a contempt occurs can directly charge, try and punish the accused themselves. In effect, this judge may assume the roles of victim, witness, prosecutor and judge. This is referred to in the consultation paper as the ‘special summary procedure’.^[46]

• An application to punish the contempt can be made under the Civil Procedure Rules, either by the Prothonotary or registrar on the direction of the court, the Attorney-General, the DPP or by a third party.^[47]

2.51 In both cases, legislation does not provide much guidance about the procedures that must be followed. The procedural status of contempt proceedings is ambiguous.^[48]

2.52 Decisions by the High Court indicate that:

• All proceedings for contempt must ‘realistically be seen as criminal in nature’.^[49]

• However, a proceeding to punish a contempt is not a criminal proceeding.^[50]

• Although a proceeding for contempt of court is a civil proceeding, some of the safeguards applicable to criminal proceedings also apply to a civil proceeding for criminal contempt.^[51]

2.53 It has not always been clear which safeguards apply to contempt proceedings. Over time, the courts have resolved some of this uncertainty but there is still doubt about how contempt proceedings interact with other laws governing matters such as rules of evidence, appeals, sentencing and fitness to plead.^[52]

2.54 Legal practitioners told the Commission that, even for those experienced in the field, it is time-consuming and difficult to navigate the contempt procedure provided for in the Civil Procedure Rules.^[53] Similarly, in consultations members of the Magistrates’ Court said magistrates rarely used their contempt powers, because the procedure was unclear.^[54]

The Coroners Court also requested greater guidance about the procedure for informing and charging a person with contempt.^[55]

Responses

2.55 The consultation paper asked whether the procedure for filing and prosecuting a charge of contempt of court should be the same as for criminal offences. If not, the consultation paper asked why contempt of court needed a different procedure and what the features of that procedure should be.^[56]

2.56 Stakeholders all agreed that, whatever procedures and rules govern contempt proceedings, procedural fairness and the right to a fair hearing must apply in a manner consistent with the punitive nature of the proceeding.^[57]

2.57 The LIV and Victorian Legal Aid (VLA) submitted that to achieve this and to ensure transparency, consistency and fairness, the procedure for filing and prosecuting a charge of contempt of court should be the same as that used for criminal offences.^[58]

2.58 The Supreme Court submitted that ‘the procedure for contempt is different from that which applies to other offences because it derives from a very different basis and serves a particular purpose’.^[59]

2.59 The Supreme Court, County Court and the Chief Examiner did not consider that the summary procedure was unfair or problematic.^[60] Nonetheless, the Supreme and County Courts would prefer legislation to set out the summary procedure in more detail and clarity, to provide more direction to courts and ensure consistency.^[61]

2.60 The LIV was especially concerned that the special summary procedure conflicted with the fair trial rights set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic). It noted that this procedure arguably reverses the onus of proof and ‘may lead to a public perception of injustice, and thus diminish the authority of the court’. The LIV submitted that, although the court must have the power to deal with immediate threats and disruptions in the courtroom, the procedure, including safeguards already established by cases, should be set out in legislation.^[62]

Commission’s conclusions: legislate to reform procedure

2.61 Over time, the common law has provided guidance on the procedure, including safeguards, for trying a person for contempt but elements of the process remain unclear. This creates a risk of inconsistency and a risk that the rights of the accused are not secured in a way that reflects the punitive nature of the proceedings.

2.62 The Commission acknowledges a need for flexibility, immediacy and judicial discretion in responding to contempts of court. However, this should not outweigh the need for procedural fairness. The rule of law requires, and the community expects, that a person

will not be exposed to punishment without a fair trial. This is a right protected by the Charter of Human Rights and Responsibilities Act.^[63]

2.63 Legislative reform is required to clarify the procedure for contempt and the procedural protections afforded accused persons. The Commission discusses options for procedural reforms and makes recommendations in Chapter 5 and, where relevant to specific categories of contempt, elsewhere in Part Two.

A Contempt of Court Act

2.64 The Commission has found little evidence that Victorian courts overuse or misuse their contempt powers. On the contrary, all the evidence suggests that Victorian courts invoke and use these powers sparingly.

2.65 The Commission also found little evidence that the protection of the proper administration of justice is compromised by deficiencies in the law of contempt.^[64]

2.66 Further, although contempt is rarely used and ordinary criminal offences address much of the same conduct, stakeholders told the Commission the law of contempt continues to serve a purpose.^[65] None submitted it should be abolished completely.^[66]

2.67 While courts exercise their contempt powers rarely, the law of contempt affects people even when they are not punished for contempt. When witnesses are required to produce documents or attend court, they are told they can be punished for contempt if they fail to comply.^[67] Those served with court orders are told the same thing.^[68] Anyone who publishes material about courts is constrained by the law of contempt.

2.68 These examples show the impact of the law of contempt, and why the community must be able to understand the law and have confidence that it operates fairly and transparently. Legislation is needed to:

• define the type of conduct that may expose a person to punishment for contempt

• modernise the language of the law

• limit the extent to which contempt restricts rights and freedoms

• clarify the procedure for trying and punishing contempt and rights of appeal

• clarify safeguards to ensure a fair trial

• clarify the relationship between the law of contempt and other laws

• limit the penalties that can be imposed on a person found guilty of contempt.

2.69 The Commission therefore recommends that the law of contempt should be restated and reformed in legislation, in a new Contempt of Court Act. The form and scope of this proposed Act is discussed in Chapters 3–11.

Recommendation

1 For the purpose of ensuring clarity, certainty and accessibility, the common law of contempt of court should be restated in legislation in a new Act, the Contempt of Court Act.

1. Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 256 [65] (Nettle J).

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2. See generally Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) Ch 2.

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3. Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 256 [65] (Nettle J).

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4. Broken Hill Proprietary Co Ltd v Dagi [1996] 2 VR 117, 125, 193.

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5. John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 360; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.05(1)(c).

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6. Coroners Act 2008 (Vic) s 103; Children, Youth and Families Act 2005 (Vic) s 528(2)–(3); Magistrates’ Court Act 1989 (Vic) ss 133–4; County Court Act 1958 (Vic) s 54.

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7. See, eg, Supreme Court Act 1986 (Vic) s 125; Civil Procedure Act 2010 (Vic) s 27(2).

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8. See, eg, Independent Broad-based Anti-corruption Commission Act 2011 (Vic) s 157; Victorian Inspectorate Act 2011 (Vic) s 76; Major Crime (Investigative Powers) Act 2004 (Vic) s 49(10); Casino Control Act 1991 (Vic) s 27(2)(b); Local Government Act 1989 (Vic) s 223C.

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9. A-G (UK) v Times Newspapers Ltd [1974] AC 273, 309.

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10. See generally Frank Vincent, Open Courts Act Review (Report, September 2017) Ch 6 <https://engage.vic.gov.au/open-courts-act-review>.

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11. See, eg, R v Slaveski [2011] VSC 643 [23]; Balogh v St Albans Crown Court [1975] 1 QB 73, 85–6; Morris v Crown Office [1970] 2 QB 114.

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12. See, eg, Dupas v The Queen [2010] HCA 20 [29], (2010) 241 CLR 237.

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13. See, eg, Allen v The Queen (2013) 36 VR 565, 574–5.

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14. Re Matthews & Ford [1973] VR 199, 212–3; R v Gallagher [1986] VR 219, 249.

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15. See, eg, DPP (Vic) v Johnson [2002] VSC 583 [13].

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16. See, eg, R v Witt (No 2) [2016] VSC 142.

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17. See, eg, Law Institute of Victoria v Nagle [2005] VSC 47 [5].

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18. Submissions 29 (Supreme Court of Victoria), 31 (County Court of Victoria), 32 (International Commission of Jurists, Victoria); Consultation 13 (Fiona K Forsyth QC John Langmead QC).

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19. Submission 29 (Supreme Court of Victoria).

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20. Clampett v A-G (Cth) [2009] FCAFC 151 [39] (Black CJ), (2009) 181 FCR 473.

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21. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 24–6 [3.6]–[3.19], Question 2.

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22. Ibid 26–8 [3.20–3.32], Question 3.

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23. Re Dunn [1906] VLR 493, 497; approved in Lane v The Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245, 257.

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24. A-G (NSW) v Dean (1990) 20 NSWLR 650, 655–6; Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650, 673–6; Harkianakis v Skalkos (1997) 42 NSWLR 22, 28–9; see also DPP v Johnson & Yahoo!7 [2016] VSC 699 [24]; R v Vasiliou [2012] VSC 216 [13]–[20]; R v Slaveski [2011] VSC 643 [17]–[20]; R v The Age Co Ltd [2006] VSC 479; DPP (Vic) v Johnson [2002] VSC 583 [7]–[9].

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25. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 29–31 [3.33]–[3.42].

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26. Ibid 17–18 [2.34]–[2.38]; 74–5 [6.26]–[6.32].

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27. Ibid 26, Question 2.

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28. Submissions 18 (Commercial Bar Association Media Law Section Working Group), 26 (Chief Examiner, Victoria), 31 (County Court of Victoria); Consultations 13 (Fiona K Forsyth QC, John Langmead QC), 22 (The Victorian Civil and Administrative Tribunal), 26 (Supreme Court of Victoria).

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29. Submission 32 (International Commission of Jurists Victoria).

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30. Submissions 18 (Commercial Bar Association Media Law Section Working Group), 23 (MinterEllison Media Group), 32 (International Commission of Jurists, Victoria); Consultation 5 (Media lawyers and academics on contempt by publication). The International Commission of Jurists submitted that it was not clear that better definition could be provided through statute rather than the common law, and that no change to the law should be made in the absence of a compelling case.

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31. Submissions 18 (Commercial Bar Association Media Law Section Working Group), 23 (MinterEllison Media Group); Consultation 5 (Media lawyers and academics on contempt by publication). These stakeholders did support some form of change to the existing law, as discussed later in this chapter.

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

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33. Submission 28 (Director of Public Prosecutions).

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34. Submission 29 (Supreme Court of Victoria).

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35. Ibid. Professor Rolph also indicated that suppression orders may be used more often because of the perceived uncertainty of the law of sub judice contempt: Consultation 12 (Professor David Rolph).

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36. Submission 31 (County Court of Victoria).

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37. Submission 22 (Law Institute of Victoria).

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38. Submissions 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).

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

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40. Submissions 6 (Professors Mark Pearson, Patrick Keyzer, Anne Wallace and Associate Professor Jane Johnston), 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), 29 (Supreme Court of Victoria).

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41. Submission 29 (Supreme Court of Victoria).

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42. Ibid; Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

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43. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, May 2017) 3 [9].

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44. Ibid 27 [1.47].

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45. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.11; County Court Civil Procedure Rules 2018 (Vic) r 75.11.

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46. Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 75.02–75.04; County Court Civil Procedure Rules 2018 (Vic) rr 75.02–75.04; Magistrates’ Court Act 1989 (Vic) ss 133–4; Coroners Act 2008 (Vic) s 103.

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47. Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 75.05–75.07; County Court Civil Procedure Rules 2018 (Vic) rr 75.05–75.07.

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48. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 26–8 [3.20]–[3.32].

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49. Witham v Holloway (1995) 183 CLR 525, 534; quoting Hinch v A-G (Vic) (1987) 164 CLR 15, 49 (Deane J).

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50. Hinch v A-G (Vic) (1987) 164 CLR 15, 89.

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51. Doyle v Commonwealth (1985) 516 CLR 510, 516.

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52. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261 [191]–[231], (2014) 47 VR 527; Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 27–8 [3.26]–[3.30].

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53. Consultations 9 (Victorian Government Solicitor’s Office), 13 (Fiona K Forsyth QC, John Langmead QC).

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54. Consultation 25 (Magistrates’ Court of Victoria).

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55. Submission 21 (Coroners Court of Victoria).

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56. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 29, Question 3.

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57. Submissions 11 (Victoria Legal Aid), 14 (Children’s Court of Victoria), 20 (Criminal Bar Association), 22 (Law Institute of Victoria), 26 (Chief Examiner, Victoria), 29 (Supreme Court of Victoria), 31 (County Court of Victoria); Consultations 12 (Professor David Rolph), 13 (Fiona K Forsyth QC, John Langmead QC), 20 (Victorian Equal Opportunity and Human Rights Commission).

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58. Submissions 11 (Victoria Legal Aid), 22 (Law Institute of Victoria). The Criminal Bar Association submitted that, other than the ‘special summary procedure’, the procedures should be the same as for criminal offences: Submission 20 (Criminal Bar Association).

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59. Submission 29 (Supreme Court of Victoria).

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60. Submissions 26 (Chief Examiner, Victoria), 29 (Supreme Court of Victoria), 31 (County Court of Victoria).

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61. Submissions 29 (Supreme Court of Victoria), 31 (County Court of Victoria).

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62. Submission 22 (Law Institute of Victoria).

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63. Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24–5.

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64. However, as discussed in Chapters 9–11, changes in technology and the way and speed with which information is accessed and shared present challenges to the effectiveness of law of contempt.

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65. See Chapters 7–11.

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66. However, as discussed in Chapter 11, many stakeholders submitted that scandalising contempt should be abolished.

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67. See, eg, Supreme Court (General Civil Procedure) Rules 2015 (Vic) sch 3 Form 42A–C.

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68. See, eg, ibid r 66.10(3).

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