Contempt of Court: Report (html)

4. Defining contempt of court in legislation

Overview

• The proposed Act should define the kinds of conduct that may be dealt with as contempt of court.

• This should include the more common categories of contempt of court defined in other chapters of this report.

• The proposed Act should also recognise interferences with and reprisals against those involved with a court proceeding as distinct categories of conduct that may be dealt with as contempt.

• The proposed Act should include a general category of contempt that covers any other conduct that creates a substantial risk of interference with the administration

of justice.

• For this general category of contempt, the person must intend to create a substantial risk of interference with the administration of justice or be reckless towards this risk.

• The definition of conduct that can be dealt with as a contempt of court should include conduct that under other legislation is deemed to be a contempt of court or can be dealt with as a contempt of court.

Conduct that can be dealt with as a contempt

4.1 This chapter considers how the proposed Act should define what conduct can be dealt with as a contempt of court.

4.2 There are many ways to interfere with the administration of justice, and so the common law definition of contempt of court is broad. Most explanations of the law describe, rather than define, contempt of court by grouping different kinds of conduct into thematic categories.^[1]

4.3 Some stakeholders have therefore submitted that contempt of court should be defined by identifying and describing these more common categories of contempt.^[2] The Commission agrees with this proposal.

Categories of contempt

4.4 The more difficult question is which categories should be included in the proposed Act. In Chapters 7 to 11, the Commission makes recommendations for defining and, in some cases, renaming the following categories of contempt of court:^[3]

• conduct that occurs in or near the courtroom and interferes with a court proceeding (replacing what is now known as contempt in the face of the court)

• witness misconduct

• non-compliance with court orders or undertakings (replacing what is now known as disobedience contempt)

• publication of material that prejudices a person’s right to a fair trial (replacing what is now known as sub judice contempt)

• publication of material undermining public confidence in the judiciary or courts (replacing what is now known as scandalising the court).

4.5 In its consultation paper, the Commission focused on these categories, which was reflected in the feedback it received. Stakeholders have not expressed views on whether or how other categories of conduct should be included in any proposed Act.

4.6 However, other kinds of contempt occur often enough to be included in the proposed Act. In particular, the Commission considers that the proposed Act should also recognise as a distinct category of contempt:

• conduct that interferes with witnesses, jurors, legal practitioners, judges, officers of the court, parties and potential parties to a proceeding

• reprisals against those people after proceedings.

4.7 Interference or reprisals may take many forms including assaults, threats, harassment, inducements and improper pressure.^[4]

4.8 The existing law is unclear about the required fault element for this category of contempt.^[5] The law is also unclear about when pressure placed on a party or potential party will be regarded as improper.^[6] If the proposed Act includes this category of contempt, these matters should be clarified.

Recommendation

6 The proposed Act should define the conduct liable to punishment as a contempt of court by listing the more common categories of contempt and defining in clear and accessible language the elements of each category.

Recommendations

7 The categories of contempt defined as conduct liable to punishment as contempt under the proposed Act should include the following, as set out in subsequent recommendations:

• conduct that occurs in or near to the courtroom and that interferes with a court proceeding

• witness misconduct

• non-compliance with court orders or undertakings

• publication of material that prejudices a person’s right to a fair trial

• publication of material undermining public confidence in the judiciary or courts.

8 The proposed Act should also recognise as a distinct category of conduct liable to punishment as contempt interferences with and reprisals against those involved with a court proceeding, including judges, witnesses, jurors, legal practitioners, officers of the court, parties and potential parties to a proceeding.

A ‘general’ category of contempt

4.9 No definition of contempt of court can comprehensively define all the kinds of conduct that might interfere with the administration of justice.^[7] This means that the proposed Act must provide flexibility for the courts to recognise and respond to new or other forms of conduct liable to punishment as contempt.

4.10 There are two options to accommodate this need for flexibility. The proposed Act could set out:

• a non-exhaustive list of conduct, making it clear it is only listing some of the conduct that might amount to contempt, or

• an exhaustive list of conduct, including in the list a general category of contempt that captures any other conduct with a tendency to interfere with the administration of justice.

4.11 Either approach may undermine the goals of providing certainty and clarity. If a general category of contempt is included, it could be argued that conduct that does not fall within the more precisely defined categories still falls within the general category. This would undermine the purpose of defining those more common categories.

4.12 The Law Reform Commission of Western Australia’s recommendations did not include a general offence of contempt when it recommended replacing contempt law with specific offences. It concluded that this would be inconsistent with the objective of providing greater certainty about the basis for liability and clearer guidance to participants in judicial proceedings.^[8]

4.13 The Australian Law Reform Commission’s recommendations for reform comprehensively set out the offences required to replace the common law of contempt and did not include a general offence provision to cover possible gaps.^[9]

4.14 On the other hand, the New Zealand Law Commission (NZ Commission) was told by stakeholders that defining the law of contempt comprehensively in legislation ‘risked missing some conduct’.^[10] The NZ Commission therefore recommended that the courts should retain inherent jurisdiction to address circumstances not covered by legislative reforms.^[11] This recommendation is reflected in the Contempt of Court Act 2019 (NZ).^[12]

Responses

4.15 The County Court submitted that any proposed Act should leave room for ‘novel or unforeseen conduct’.^[13]

4.16 The Supreme Court submitted that ‘it is not possible in advance to identify every form of behaviour which may have a tendency to interfere with the proper administration of justice’.^[14] Professor David Rolph similarly doubted whether the conduct that might amount to contempt of court could be comprehensively specified in legislation.^[15]

4.17 Victoria Legal Aid (VLA) and the Law Institute of Victoria (LIV) supported recasting some or all of the law of contempt into ordinary criminal offences. However, they also supported preserving the inherent powers of the courts to deal with contempt to address unforeseen conduct and circumstances.^[16]

4.18 Some stakeholders cautioned that a comprehensive definition of contempt of court may encourage people to identify and exploit gaps in the law.^[17]

Commission’s conclusions: include a general category of contempt

4.19 The law of contempt currently favours flexibility at the expense of certainty. This balance should be adjusted by defining the more common categories of contempt.

4.20 The need for certainty does not mean that all conduct capable of constituting contempt must be explicitly defined. This could undermine the protective purpose of the law and deprive the court of the ability to respond to interferences with the administration of justice.

4.21 Certainty and flexibility should be balanced. The proposed Act should exhaustively define the conduct that can be dealt with as a contempt. However, the defined conduct should include a general category of contempt covering any other conduct, not otherwise described, that substantially risks interfering with the proper administration of justice.

4.22 The Commission is satisfied the scope of this general category of contempt will be sufficiently constrained by:

• the exclusion of conduct covered by the more common and defined categories of contempt

• the fault element required to establish a contempt within this category (discussed below)

• the statement of principle to be included in the proposed Act that will explain the purpose for which the court can exercise its power to punish for contempt.^[18]

Tendency test

4.23 Under the common law, conduct may be dealt with as a contempt if it interferes with or has a tendency to interfere with the proper administration of justice.

4.24 As discussed in Chapter 10 and in the consultation paper,^[19] this test of liability has been expressed by the courts in different ways. It has been described as requiring ‘a real and definite tendency as a matter of practical reality to interfere with the due administration of justice’,^[20] that interference is ‘likely’,^[21] or that there is a ‘substantial risk of serious interference’.^[22]

4.25 The differences between these expressions of the test have been discussed in relation to sub judice contempt.^[23] The law reform commissions of New South Wales and Western Australia favoured the ‘substantial risk’ formulation for sub judice contempt.^[24]

4.26 As discussed in Chapter 10, the Commission also prefers a test of ‘substantial risk’ of interference. The Commission considers that the language of ‘risk’ rather than ‘tendency’ is clearer, and the required degree of risk should be stated, although, in practice, it may be no stricter than the current common law test.^[25]

Fault element

4.27 As discussed in the consultation paper, a person does not need to intend to interfere with the administration of justice before they are found guilty of contempt. In this way, contempt is framed differently from typical criminal offences, and is often described as a strict liability offence.

4.28 While many summary offences are strict liability, most indictable offences require a person to have a specified state of mind to be found guilty. This is known as the ‘fault element’.^[26]

4.29 For Commonwealth offences, the default position is if an offence imposes liability for producing a result, a person is only liable if they intended that result or were reckless about causing that result.^[27]

4.30 The Commission considers that the appropriate fault element for conduct liable to be dealt with as contempt of court should vary depending on the category of contempt. Chapters 7 to 11 make recommendations about how to define the fault element for different types of contempt.

4.31 This section considers what the fault element should be for the general category of contempt.^[28]

Responses

4.32 Stakeholders divided on this issue. Some, such as the County Court and Director of Public Prosecutions (DPP), opposed changing the fault element in contempt law.

4.33 The County Court submitted that:

codification of the various manifestations of contempt should closely mirror the principles that currently exist at common law. Any attempt to restrict these provisions, or to include additional elements, would stand as an obstacle to the courts utilising contempt as a tool to maintain the effective administration of justice.^[29]

4.34 The DPP cautioned against introducing fault elements because in many cases it would be impossible to prove contempt. The DPP submitted that ‘Factors relevant to fault and intention should remain the domain of penalty’.^[30]

4.35 Legal practitioners experienced in contempt proceedings told the Commission that requiring proof of specific intent would dramatically confine the law of contempt. It would mean that people could be careless about their conduct and not consider whether this conduct might prejudice proceedings.^[31]

4.36 The Supreme Court submitted that the mental element for each category of contempt should be specified in any legislation. However, the Supreme Court did not specify the mental element that should apply, other than for sub judice contempt.^[32]

4.37 On the other hand, many stakeholders supported introducing a fault element, either for certain categories of contempt or for contempt more generally.

4.38 Professor Mark Pearson et al stated that they ‘favour reforms that emphasise the need for an intention component to provide alleged contemnors with the opportunity to lead evidence relating to intention’. They noted there may be some cases where a person’s mental health issues affect their culpability.^[33]

4.39 The Children’s Court suggested that both intention and reckless disregard be considered as the relevant fault elements.^[34]

4.40 Australia’s Right to Know coalition noted the serious penalties that apply for contempt and submitted:

It is necessary to bring any offence of contempt in line with other criminal offences. Where an allegation of contempt is made, the prosecution should be required to establish the fault element of the offence.^[35]

4.41 In supporting the introduction of a fault element for contempt in the face of the court, the LIV observed more generally that it considered a fault element ‘an essential component of a finding of criminal liability’.^[36]

4.42 The VLA suggested that different fault elements (intention, recklessness or negligence) could apply, and different penalties could be imposed depending on the fault element.^[37]

Commission’s conclusions: intention or recklessness needed for general category of contempt

4.43 As discussed in Chapters 7, 8 and 10, there are circumstances when it will be justifiable to attach strict liability to the consequences of a person’s actions. For example, it may be necessary to put a person on notice that when they undertake a particular activity (such as publishing information about a pending criminal proceeding) or are in a particular place (a courtroom conducting proceedings), they are under an obligation to take care to avoid interfering with the administration of justice.

4.44 However, it is difficult to justify strict liability for the general category of contempt. In this category, the conduct that will constitute contempt is not specified. Conduct will fall within this category simply because of the risk it creates to the administration of justice.

4.45 The Commission considers that, in these circumstances, a person should not be found liable and punished unless they were at least reckless. This means that the person proceeded with the relevant conduct despite being aware of a substantial risk of interference with the administration of justice.

4.46 The Commission therefore concludes that, for the general category of contempt, both of the following must be proved:

• a person intended to do the act that is the subject of the charge

• a person intended or was at least reckless that this would create a substantial risk of interference with the proper administration of justice.

4.47 This is a higher level of fault than currently required under the common law. However, it is consistent with the general premise that it is neither in the interests of fairness nor useful as a deterrent to subject people to criminal punishment for the unforeseen consequences of their actions unless these resulted from an unjustified risk.^[38]

4.48 Further, warnings are often given before a contempt proceeding is commenced.^[39] Such warnings are likely to assist in proving the required fault element.

Recommendation

9 The definition of conduct liable to punishment as a contempt under the proposed Act should include a general category of contempt which:

• is defined as conduct that has a substantial risk of interfering with the proper administration of justice where the person who engages in the conduct intends to create or is reckless as to the risk of that interference

• excludes conduct covered by the more common categories of contempt which are separately listed and defined.

Crimes Act provisions

4.49 The Crimes Act 1958 (Vic) contains provisions which extend liability for certain criminal offences to include:

• attempting to commit the offence^[40]

• inciting any other person to pursue a course of conduct which will involve the commission of the offence^[41]

• agreeing with any other person that a course of conduct shall be pursued which will involve the commission of the offence by a party to the agreement^[42]

• being involved in the commission of the offence.^[43]

4.50 The Commission did not ask how these provisions should apply to contempt and no stakeholders addressed this issue.

4.51 However, the Commission considers that the proposed Act should include similar provisions. This would make it clear when a person can be dealt with for contempt where they have been involved in conduct that risks interfering with the administration of justice, but have not committed the conduct itself, or where they have tried but failed to interfere with the administration of justice.^[44]

4.52 An exception is needed for contempt in the face of the court as renamed and redefined in Chapter 7. In that chapter, the Commission recommends that a person can only be liable for that kind of contempt if the person has in fact interfered with, or undermined, the conduct of a proceeding. This limitation on liability would be ineffective if a person could be dealt with for an attempted contempt.

4.53 For other categories of contempt, these provisions will rarely be needed. In most cases, the definition of contempt requires only that a person creates some kind of risk of interference with the administration of justice. This will often be broad enough to cover attempts and the incitement of another person to interfere with the administration of justice, without the need for extra provisions which extend liability.

4.54 Further, the power to deal with a person for contempt will only be exercised sparingly, where it is necessary to protect the proper administration of justice. If a person tries to interfere with the administration of justice but their efforts are frustrated, the court may decide that no further action is needed.

4.55 The Crimes Act also provides that a person is not guilty of an offence if the conduct is carried out under duress.^[45] The Supreme Court has stated that duress may be a defence to contempt of court where a witness refuses to testify.^[46] A similar defence of duress should be included in the proposed Act.

Recommendations

10 The proposed Act should include provisions which:

• define liability for an attempt, incitement, conspiracy and involvement in the commission of a contempt

• provide for the defence of duress.

The effect of these provisions should be subject to Recommendation 53 that requires that before a person is liable for a contempt by conduct that interferes with a court proceeding actual interference with, or undermining of, the conduct of the proceeding must be proved.

Conduct deemed a contempt or able to be dealt with as a contempt

4.56 Some Victorian legislation deems certain conduct to be a contempt of court,^[47] or provides that certain conduct may be dealt with by the Supreme Court as if it were a contempt of court.^[48]

4.57 For example, section 49 of the Major Crime (Investigative Powers) Act 2004 (Vic) provides for the Supreme Court to deal with a contempt of the Chief Examiner as if it were a contempt of an inferior court.

4.58 It is beyond the scope of this inquiry to consider each of these provisions and whether it is appropriate for the specified conduct to be defined as a contempt of court or punishable by the Supreme Court as if it were a contempt of court. The Commission’s recommendations are not intended to interfere with such legislation.

4.59 To avoid interfering with these provisions, the proposed Act could provide that conduct that can be dealt with as contempt of court includes any conduct that, in other legislation, is deemed to be a contempt of court or capable of being dealt with as a contempt of court.

4.60 Alternatively, the proposed Act could provide that conduct that can be dealt with as a contempt of court includes any conduct listed in a schedule to the proposed Act. The schedule could list all of the relevant legislative provisions. This would make the scope of the court’s contempt jurisdiction more transparent and accessible.

Recommendation

11 The definition of conduct liable to punishment as contempt under the proposed Act should include any conduct that:

• is deemed by legislation to be a contempt of court

• the court is empowered by legislation to deal with as though it were a contempt of court.

1. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 24–5 [3.7]–[3.10].

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

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3. The Commission does not recommend recognising juror contempt as a specific category: see Ch 9.

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4. See, eg, R v Bonacci [2015] VSC 121; R v Vasiliou [2012] VSC 216; Prothonotary of the Supreme Court of New South Wales v Katelaris [2008] NSWSC 389; Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322; Bhagat v Global Custodians Ltd [2002] NSWCA 160; Clarkson v Mandarin Club Ltd (1998) 90 FCR 354; R v McLachlan [1998] 2 VR 55; R v Macdonald [1994] 1 VR 414; R v Wright (No 1) [1968] VR 164.

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5. R v Taylor [1999] 3 VR 657; Gregory v Philip Morris Ltd (1987) 74 ALR 300.

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6. Ulman v Live Group Pty Ltd [2018] NSWCA 338 [72]–[84]; Melbourne University Student Union Inc (in liq) v Ray [2006] VSC 205 [14]–[16].

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7. Submissions 29 (Supreme Court of Victoria), 31 (County Court of Victoria); Consultations 12 (Professor David Rolph), 13 (Fiona K Forsyth QC, John Langmead QC).

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8. Law Reform Commission of Western Australia, Report on Review of the Law of Contempt (Project No 93, June 2003) 113–14, 118.

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9. The Law Reform Commission, Contempt (Final Report No 35, December 1987).

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10. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, May 2017) 131 [7.16].

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11. Ibid 133 [7.21].

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12. Contempt of Court Act 2019 (NZ) s 26.

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13. Consultation 24 (County Court of Victoria).

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14. Submission 29 (Supreme Court of Victoria).

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15. Consultation 12 (Professor David Rolph).

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16. Submission 11 (Victoria Legal Aid), Consultation 8 (Law Institute of Victoria).

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17. Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

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18. See Ch 3.

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19. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 86 [7.24]–[7.26].

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20. See, eg, R v Vasiliou [2012] VSC 216 [15].

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21. Bell v Stewart (1920) 28 CLR 419, 432 (Isaacs and Rich JJ); Davis v Baillie [1946] VLR 486, 492.

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22. Hinch v A-G (Vic) (1987) 164 CLR 15, 27–8 (Mason CJ).

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23. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 67–72 [4.10]–[4.18].

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24. Ibid 72 [4.18]; Law Reform Commission of Western Australia, Report on Review of the Law of Contempt (Project No 93, June 2003) 28–9.

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25. See New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 68 [4.11].

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26. It is also called the ‘mental element’ or mens rea.

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27. Criminal Code Act 1995 (Cth) sch 1 s 5.6(2).

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28. See Appendix E for recommended fault elements for all categories of contempt included in the proposed Contempt of Court Act.

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29. Submission 31 (County Court of Victoria).

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30. Submission 28 (Director of Public Prosecutions).

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31. Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

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32. Submission 29 (Supreme Court of Victoria).

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33. Submission 6 (Professors Mark Pearson, Patrick Keyzer, Anne Wallace and Associate Professor Jane Johnston).

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34. Submission 14 (Children’s Court of Victoria).

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

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36. Submission 22 (Law Institute of Victoria).

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37. Submission 11 (Victoria Legal Aid).

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38. Attorney General’s Deparment (Cth), A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (Report, September 2011) 22 <https://www.ag.gov.au/Publications/Documents/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers/A%20Guide%20to%20Framing%20Cth%20Offences.pdf>.

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39. Submission 29 (Supreme Court of Victoria); Consultation 24 (County Court of Victoria).

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40. Crimes Act 1958 (Vic) Pt 1 Div 12

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41. Crimes Act 1958 (Vic) Pt 1 Div 11

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42. Crimes Act 1958 (Vic) Pt 1 Div 10

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43. Crimes Act 1958 (Vic) Pt 2 s 324

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44. See, eg, Balogh v St Albans Crown Court [1975] 1 QB 73

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45. Crimes Act 1958 (Vic) Pt 1C Div 3

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46. R v Garde-Wilson [2005] VSC 441, [32] citing R v K (1984) 78 Cr. App. Rep. 82. (C.A.)

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47. See, eg, Civil Procedure Act 2010 (Vic) s 27(2) (using information and documents disclosed in civil proceedings for a purpose other than in connection with the civil proceeding); Supreme Court Act 1986 (Vic) s 125 (extortion by and impersonation of court officials); Unauthorized Documents Act 1958 (Vic) s 4(2) (sending or delivering false process).

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48. 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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